Saskatchewan’s Builders’ Lien Act (the “Act”) says that it does not apply to provincial road construction projects at section 5(2):
5(2) This Act does not apply where services or materials are provided:
(a) in connection with a contract entered into under or pursuant to The Highways and Transportation Act; or
(b) in connection with the construction or improvement of a street or highway owned by the Crown.
The plain meaning of section 5(2) would suggest that the trust and holdback provisions of the Act would not apply when services or materials are provided for any provincial road construction project.
But Saskatchewan courts have not accepted this plain meaning—at least not yet. Instead, the Saskatchewan Court of Queen’s Bench has left open the possibility that the Act might apply to everyone on a road construction project except for the Crown. If so, this means that there can be no lien against the Crown respecting highway lands or Crown funds, but other parties on a construction project might still be obligated to retain the statutory holdbacks and meet the trust obligations established under the Act (Slim Contracting Inc. v Saskcon Repair Services Ltd., 2015 SKQB 258 at paragraph 17).
This means that if your business is involved in provincial road construction, you may be required to follow the Act’s holdback provisions and be subject to its trust obligations. On the flip side of the coin, your business might have remedies you did not expect existed, unless, of course, your business provided materials or services directly to the Crown.
If you have any questions about the Act or how it applies to your business, please contact anyone of our lawyers who specialize in construction law as they will be in the best position to assist you.
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