b'BENCHMARKSACCESS TO INFORMATION INTHE CONSTRUCTION PYRAMIDBy Daryl Chicoine, John Martens and Justin LaffertySection 58 of the Builders Liensof the BLA (and similar provisions in otherSubsection 58(3) provides that a person Act, CCSM c. B91 (the BLA) grantsjurisdictions), or consideration of theentitled to a lien may demand from the considerable rights to information toobligations placed on parties presentedmortgagee or unpaid vendor of the land parties at all levels of the constructionwith such demands.(or their respective agents): pyramid who are entitled to a lien inWhile we await a judicial clarification of(a) the terms of the mortgage on the respect of work done, services provided or materials supplied for a project. Thisthe full extent of rights and obligationsland or the agreement for the potentially includes rights to, amongcreated by Section 58 of the BLA, thispurchase of the land; and other things, copies of prime andarticle provides a high-level overview of(b) a statement showing amounts the section. sub-contracts, information regarding theadvanced under the mortgageholdback and where it is maintained,SUBSECTION 58(1)INFORMATIONor amounts owing onand a statement of the state of accountsRELATING TO THE PRIME CONTRACT the agreement. between project parties.Subsection 58(1) provides that anySUBSECTION 58(6)COURT ORDER At times the information a party mayperson entitled to a lien regarding workTO PRODUCEseek would not ordinarily be availabledone, services provided or materialsIf a party is unable to obtain the due to a lack of contractual privity,supplied may demand in writing frominformation voluntarily from the recipient absent the statutory entitlement createdthe owner or the contractor (and theirof the demand for information, the BLA by the BLA. Moreover, Section 58respective agents):further provides that a person who contemplates a right to information (a) a copy of the prime contract; may be entitled to a lien may bring an before a party commences an action to(b) a statement of the state ofapplication to court torealize a lien, meaning parties may notcompel disclosure. have to wait for disclosure in the contextaccounts for the primeof court proceedings. contract; and Specifically, pursuant to Section 58(6), (c) particulars regarding the holdback,at any time before or after an action The information available to partiesis commenced on a lien, a party may under Section 58 may be helpful to aincluding the balance, creditsseek an order directing an owner, prime lien claimant (or potential lien claimant)and payments, and the accountcontractor, mortgagee, unpaid vendor or number and institution where the who may be considering whether toholdback account is maintained. sub-contractor (or any of their respective advance a lien claim, or to provide aagents) to permit such party to inspect: party the financial data necessary for aSUBSECTIONS 58(2)-(3) (a) the prime contract; proper cost-benefit analysis of enforcingINFORMATION RELATING TO potential lien rights. SUB-CONTRACTS AND MORTGAGES(b) a sub-contract; Subsection 58(2) provides rights to In practice, information requests areinformation relating to particulars of a(c) mortgage; not often used by lien claimants, andsub-contract. Namely, a person entitled(d) agreement for sale of land; many owners and other parties may beto a lien may demand a copy of a project unaware such information rights exist. Assub-contract with the prime contractor(e) accounts; the right is only occasionally used, thereor another sub-contractor. Similarly, a(f) the holdback account passis very little legal guidance in Manitobademand may be made for a statement of or elsewhere delineating the extent ofthe state of accounts between the partiesbook; or information available under Section 58to project sub-contracts. (g) any other relevant documents. 24 BUILD MANITOBAwinnipegconstruction.ca'