Cash Flow Concerns: How to Collect Payment in the Midst of COVID-19

by | Mar 19, 2020 | Articles & Research, Construction, Covid-19, Jared D Epp, Misty S Alexandre

Introduction

Over the past year much of the focus of the Saskatchewan construction industry has been on the impact that new prompt payment legislation will have on the timeliness of payment on construction projects. Cash flow is never far from the mind of any prudent business owner. However, a focus and concern with cash flow is perhaps never more evident than now, given the global, and increasingly local, rescheduling and shutdown of various construction projects.

In considering your ability to collect on outstanding invoices, it is critical that the payment terms of your contract be reviewed. Although contract terms, like force majeure, may justify a suspension of work or an adjustment to schedule, they do not necessarily suspend or modify a party’s payment obligations. Rather, the exact contract language needs to be reviewed. Absent specific contractual language excusing a party’s payment obligations, payments are still required to be made.

However, what is legally required, and what will, in practice, actually happen are, of course, two different things. A contractual right to be paid, though important, may not change the fact that certain companies will either not be able to pay or will, in an act of self-preservation, simply choose not to pay. In these types of circumstances, a few different collection options should be considered:

  1. Register a lien. Although a lien may not result in immediate payment, it provides security, in the event the project fails or is not completed, for future payment. It also ensures, in the event a future progress draw is made, that enough funds are withheld to satisfy the lien claim in the future. Although it is best practice to ensure a lien is registered in Saskatchewan within 40 days of substantial completion, liens can still be registered after this date and, in many circumstances, will remain enforceable.
  2. Determine whether or not a project is secured by a labour and material bond. Labour and material bonds are secured by insurance companies. As companies cease meeting their obligations, the ability to receive payment from an insurance company under a bond may, in certain cases, represent the best option available to collect payment. As labour and material bonds have predetermined pay-out amounts, it is important to submit your claim for payment as soon as possible. All L&M bonds have cap limits, and after the insurance company has paid out the amount of the bond, additional claims cannot be processed.
  3. Determine whether or not the project is secured by a performance bond. Although a performance bond is often put in place for the benefit of the owner, in the event a general contractor defaults, the ability of an owner to rely upon insurance to complete a project may be beneficial, given the possibility of the insurer using existing subcontractors to complete the work.

  4. File a lawsuit. Although lawsuits typically do not lead to quick payment, if your claim for payment is not defended, you may have the ability to register and then enforce a judgment. As judgments, once registered, exist for 10 years, this also may give your company a long-term option to satisfy a debt.

  5. Be mindful of trust obligations in the lien legislation. Saskatchewan’s lien legislation imposes trust obligations on project financing, and on funds paid between the owner, contractor and subcontractors. During times of cash flow crisis, it may be tempting for parties to pay money out of the project chain. This may result in a breach of trust obligations under the lien legislation, and could lead to personal liability for directors and officers as well. The lien legislation provides lien claimants a right to certain information from the owner, so use these tools to find out what’s happening in the project payment chain.

Like any situation, the best approach depends on your particular circumstance. However, all options should be explored given the uncertainty that is COVID-19.

For more information, please contact:

Misty M. Alexandre

306.933.1352

Email: [email protected]

Jared Epp

306.933.1326

Email: [email protected]

Estate planning in a time of uncertainty

by | Mar 19, 2020 | Articles & Research, Covid-19, Succession Planning, Wills, Estates, Trusts, Health Care Directives and Powers of Attorney

As the world changes in response to the coronavirus (Covid-19) outbreak, you may wonder how you can legally best protect yourself, and loved ones. The present is a good time to make certain that you have certain crucial legal documents in place.

Last Will and Testament

Every adult should have a Will in place at all times. The Will ensures your instructions are honoured after your passing. You will name a party to be your executor, and you will clearly set out the terms you wish for the distribution of your property. It is encouraged that you consult a lawyer in drafting your Will, to ensure the Will is not easily challenged, or subject to misinterpretation.

Power of Attorney

With the advent of Covid-19, many people may need to provide care to elderly parents. If your parents wish you to make such decisions, it is very important that you have the legal authority to do so.

The legal way to confer such decision making power is through a power of attorney, naming someone as the “attorney”. A grantor should only choose someone you trust implicitly – you will be giving them immediate power over your banking, money, and property.

If someone has an illness such as dementia or Alzheimer’s, and is therefore already unable to make their own decisions, they will not be able to validly name an attorney. Instead, a loved one may need to seek a court-appointed guardianship order to be able to make decisions on their behalf.

Health Care Directive

A Health Care Directive allows you to express your wishes regarding medical treatment. This document can become important if you later lose the ability to speak or communicate. The Health Care Directive will name a proxy to make medical decisions for you.

Making sure that you have signed the above legal documents to better protect yourself is a means to exert control in this time of uncertainty. And given the current impetus to stay at home, what better time to deal with estate planning? For any specific questions, readers are encouraged to consult a lawyer.

The above is for general information only. Parties should seek legal advice prior to taking action in specific situations. Robertson Stromberg LLP offers legal advice and representation in all areas of law, including experience in estate planning, and estate litigation.

COVID 19 and Co-Parenting

by | Mar 19, 2020 | Articles & Research, Covid-19, Family Law, Kirsten M Hnatuk

Introduction

COVID-19 is creating uncertainty across the world and in our homes. Amid school and daycare cancelations, altered work schedules, self-isolation and growing health concerns, parents have been especially impacted by the pandemic. Separated and divorced parents are faced with the additional challenge of parenting their children between households during this time. The following is intended to provide information and considerations for separated and divorced parents. This information is not intended as legal advice. Should you have any questions respecting family law related matters we recommend that you consult with a lawyer.

Parenting Orders and Agreements

Parenting arrangements that are set out in Agreements or Court Orders should continue despite the pandemic. While the Courts in Saskatchewan have not yet had the opportunity to address this issue, it is expected that parties to an Agreement or Court Order will abide by the terms of the Agreement or Order. In a recent ruling in the United States it was determined that Court Orders for parenting time are not impacted by COVID-19; it is expected that our courts would take the same position. It is important for children to continue to have consistency and ongoing relationships with each of their parents, especially in times such as these when children may be especially anxious. Relying on the pandemic as reason to deny parenting time is not reasonable; it is not an opportunity to “cut out” the other parent. What the Courts will want to see is parents coming together during a time of uncertainty to act in their children’s best interests.

In extraordinary cases where there may be imminent risks to the children, parenting arrangements may need to be altered. Examples of which might include, where a parent has recently travelled to a high risk area, where a child has compromised immunity, where a parent or child has been in close contact with someone diagnosed with COVID-19, or if the parent or child has COVID-19 symptoms or has been diagnosed with COVID-19. If one of these exceptions exists, it is important that you communicate with the other parent and attempt to reach a resolution that safeguards the health of all involved. If you are unable to reach a resolution, or have questions about what constitutes an extraordinary circumstance, you should contact a lawyer.

Communication

With the closure of schools and daycares, the reality is that many parents will have to alter their parenting arrangements. This is a time for co-operation and flexibility to ensure that your children’s needs are being met. Important discussions should also be had between parents. Such discussions might include how to talk to your children about the pandemic, ensuring proper hygiene and handwashing in both households, whether to self-isolate the children, whether to avoid playdates, and what the plan will be if a child exhibits symptoms of COVID-19. The implementation of consistent COVID-19 precautions in both households will not only maintain stability for the children but will ensure that their health is foremost.

Self-Isolation

In the event parents determine that children or themselves should self-isolate, there are many ways in which children can communicate with the parent whom they are not with. In addition to texting and phone calls, electronic communication such as FaceTime and Skype allow children to maintain contact with their parents. Be creative and read books over the phone, play games such as “I spy” on FaceTime, or watch shows together on Youtube.

Conclusion

Children are looking to their parents for hope, safety and security during this time. Now more than ever it is important for parents to be civil and respectful to each other. Communicating with the other parent to ensure the well-being and stability of the children is vital. If this cannot be done, it is important to communicate through a third party to work out a sensible solution.

For more information, please contact:

 

Kirsten M. Hnatuk

306.933.1351

Email: [email protected]

COVID-19: Information for Employers

by | Mar 13, 2020 | Articles & Research, Candice D Grant, Covid-19, News, Small Business

Candice Grant has supplied a handout for employers giving them useful tips on how to manage the workplace during the Covid-19 pandemic.

Introduction

As an employer, you may have concerns about how to manage your business and protect the health and safety of your employees during the COVID-19 pandemic. Below, we have addressed some of the common questions we have heard from employers. This information, which is current as of the date of publication (March 13, 2020), is not legal advice and we recommend consulting with your legal advisors for advice which is specific to your business.

Occupational Health and Safety

The Saskatchewan Employment Act imposes upon every employer an obligation to ensure, insofar as is reasonably practicable, the health, safety and welfare at work of all of the employer’s workers. This obligation includes a requirement to take reasonable preventative steps to ensure that the health, safety and welfare of employees is not harmed by an infectious disease such as COVID-19 in the course of their employment.

What constitutes “reasonable” steps will depend on the nature of the workplace (for instance, whether the employees interact with members of the public, whether tools or electronics are shared with other workers, whether employees have an ability to work remotely). An employer should carefully consider the potential sources of risk to employees in the course of their work, and what reasonable steps might be taken to alleviate those risks.

Employers may find it helpful to have a robust and comprehensive policy which outlines the responses that the organization will take in response to a pandemic.

Refusal to Work

Workers in Saskatchewan have the right to refuse to perform unsafe work if the employee has reasonable grounds to believe that the work is unusually dangerous to their health or safety (or the health or safety of any other person at the place of employment).

Any claim by an employee that it is unsafe to work is a serious matter which must be investigated by the employer. As indicated above, the employer must take all reasonable measures to protect the health and safety of its employees. It is not yet clear whether employees in Saskatchewan may be justified in refusing work because of potential for exposure to COVID-19. In the meantime, employers are encouraged to work with their employees to find solutions which address the employees’ concerns, while allowing the employer to continue to carry on business.

Absences from Work

Generally speaking, and as with any other illness, if an employee discloses that they are not feeling well or are showing symptoms which are consistent with COVID-19, it is reasonable for the employer to request that the employee refrain from reporting to work until they are well. In addition, the employer should have regard for the latest provincial and federal directions regarding the self-isolation of employees who have travelled or been in contact with others who may have been exposed. In some cases, it may be possible to allow the employee to work from home during a period of minor illness or self-isolation.

An absence due to COVID-19 should be handled the same as any other absence due to illness. Under The Saskatchewan Employment Act, an employee is generally not entitled to be paid while absent from work; however, some employees have entitlement to paid sick leave under a workplace policy, collective agreement or other employment contract.

The Saskatchewan Employment Act protects the jobs of employees who are absent from work due to illness or serious illness for up to 12 weeks. In addition, The Saskatchewan Human Rights Code, 2018 protects employees from discrimination on the basis of a prohibited ground, including disability. We strongly recommend that employers seek out legal advice specific to their situation before making any long term decisions with respect to their employees.

For further information, please contact:

Candice D. Grant

Direct: 306.933.1304

Email: [email protected]

Jared Epp Contributes to Construction Contract Administration Program

by | Mar 9, 2020 | Construction, Jared D Epp, News

Construction Specifications Canada (CSC) offers quality education programs for the betterment of the construction community. Included in their offerings is the Construction Contract Administration (CCA) program.The objective of the CCA program is to improve construction contract administration by providing education related to the administration and enforcement of contract requirements during the construction phase of the project.

Jared Epp supported the program by instructing three modules of this program:

  • Changes in the work
  • Contract law and dispute resolution
  • Bid change mechanisms

 

 

Area of Expertise