Setting the lien fund can be a complicated and drawn out
process. As a subcontractor lienholder, you may find you are
standing idly by for payment while the owner and the GC fight
amongst themselves. Can you receive partial payment for your work
before the lien fund is finalized? Yes, although the
"pot" may not be as big as you think.
It's well settled in Canadian case law that subcontractors
with clear entitlements do not have to wait until all issues are
settled before receiving partial payment based on the minimum
holdback to be retained by the owner, being 10% of the value of the
work actually done or materials actually furnished by the GC.
In Trotter and Morton Building Technologies Inc.
v Stealth Acoustical &Emission Control Inc., (Stealth Energy
Services), 2017 ABQB 431, the subcontractor lienholders,
Trotter and Hamil, were seeking interim payment from the owner,
Canadian Natural Resources Limited ("CNRL"), pending
final determination of the lien fund.
