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Construction - Notice of Non-Payment. Blackstone Paving and Construction Ltd. v. Barrie (City of)
In Blackstone Paving and Construction Ltd. v. Barrie (City of) (Div Court, 2024) the Divisional Court dismissed a Construction Act JR of a 'prompt payment' adjudication.
Here the court considers 'notices of non-payment' [under CA s.6.4(2)]:(c) Failure to Identify all Reasons for Non-Payment in the Notices of Non-Payment
[9] The Act, s.6.4(2) expressly requires that a Notice of Non-Payment “[detail] all of the reasons for non-payment”. Blackstone argues that the City’s Notices of Non-Payment did not include “all of the reasons for non-payment”, and specifically did not “detail” the City’s claims for set-off and liquidated damages. These “undetailed” claims were the principal basis upon which the adjudications were decided against Blackstone.
[10] In its submissions, Barrie does not agree that it raised issues in the adjudication that had not been set out in the Notices of Non-Payment. Rather, it argues that it provided “elaborations” of the reasons it had given in its Notices of Non-Payment. Neither Adjudicator expressly resolved the issue of whether Barrie raised “additional” reasons or merely “elaborated” on its reasons for non-payment in its adjudication submissions. However, it is apparent that both Adjudicators implicitly accepted Barrie’s characterization that it did no more than “elaborate” the reasons it gave for non-payment in the Notices of Non-Payment.
[11] I am satisfied that the Adjudicators’ implicit findings on this issue were available on the records before the Adjudicators. Given the numerous technical and procedural objections raised by Blackstone, I would not fault the Adjudicators for dealing with this particular issue in the manner that they did: issues of set-off and charge-backs were clearly raised in the Notices of Non-Payment and were addressed by Blackstone in its submissions.
[12] Accordingly, I would defer to the findings of the Adjudicators that the Notices of Non-Payment were not in breach of s.6.4(2) of the Act and did raise all the reasons for non-payment relied on by Barrie. It follows that Blackstone has not met the first branch of the conjunctive statutory test for procedural unfairness prescribed by s.13.18(5)5 of the Act.
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