as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, c. H65
The Highway and Transportation Construction Contracts Disbursement Act
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
In this Act
"contract" means a contract between the department and a contractor for the construction or improvement of a transportation facility including a highway, bridge, airstrip, dock and ferry terminal; ("contrat")
"contractor" means a person who has entered into a contract with the department; ("entrepreneur")
"department" means the Department of Highways and Transportation; ("ministère")
"holdback" means monies payable to a contractor but held back and not paid by the government to the contractor under the provisions of the contract; ("retenue")
"minister" means the Minister of Highways and Transportation; ("ministre")
"sub-contract" means a binding agreement between a sub-contractor and a contractor or between a sub-contractor and another sub-contractor for the doing of any work, the providing of any services, the supplying of any material or the rental of equipment with or without an operator to be used in the completion of the contract; ("contrat de sous-traitance")
"sub-contractor" means a person other than a contractor who has entered into a sub-contract; ("sous-traitant")
"trustee" means the trustee appointed under section 2. ("fiduciaire")
Where the department is notified prior to paying out the holdback to the contractor that a sub-contractor claims that monies are owing to him under the sub-contract, the minister shall not pay the holdback to the contractor but shall either
(a) retain the holdback or enough thereof to satisfy the claim of the sub-contractor until the contractor and sub-contractor direct the department in writing how to pay the holdback; or
(b) take interpleader proceedings before the proper court; or
(c) appoint a trustee to act under this Act.
The trustee appointed under subsection (1) may be a firm of accountants or such other independent person as the minister in his discretion may decide.
The Minister of Finance on the requisition of the minister shall pay out of the Consolidated Fund the holdback under the contract into court or to the trustee.
Upon receiving the holdback, the trustee shall be deemed to be the contractor under that contract in respect of the holdback to the extent of the holdback and to have received the moneys on account of the contract, and the amount so paid constitutes a trust fund in the hand of the trustee in respect of that contract as provided in section 4 of The Builder's Liens Act.
Before paying out any moneys under the trust created under section 4 in respect of the contract, the trustee shall by public advertisement in The Manitoba Gazette and in at least two issues of such newspapers as, by its determination, are suitable for the purpose, including a newspaper having general circulation in The City of Winnipeg, request all persons who have claims against the contractor and who are entitled to any benefit under the trust created under section 4 to submit particulars of the claim in writing to the trustee before a date specified in the advertisement, the date being at least 30 days after the date of publication of the last advertisement.
Upon moneys being paid to the trustee under section 3 with respect to the contract, the minister shall provide all documents and papers containing information concerning the contract and the persons making claims against the contractor that are in his possession or in the records of the department to the trustee.
After the date specified in the advertisement relating to the contract, the trustee shall prepare a schedule showing how it intends to distribute the holdback under the contract, including the name and address of each person to whom it intends to make any payment from the holdback and the amount of each payment it intends to make, and shall send a copy thereof by registered mail to the department, the contractor and to each person who
(a) has notified the minister or an official of the department in writing of a claim against the contractor; or
(b) prior to the date specified in the advertisement, has notified the trustee in writing of a claim against the contractor.
Each copy of the schedule sent under subsection (1) shall be accompanied by a notice setting forth the procedure for objection set out in section 8.
Any person who objects to the distribution of the holdback in accordance with the schedule of distribution prepared by the trustee may, within 30 days of the date copies of the schedule are mailed out under subsection 7(1), but not thereafter,
(a) apply to a judge of the Court of Queen's Bench, in Chambers, to vary or alter the schedule; and
(b) serve notice thereof on the trustee;
and the judge upon such application may hear evidence relating to any claim against the contractor and may make an order varying the schedule of distribution prepared by the trustee as to him appears just.
No appeal lies from the decision of a judge made under subsection (1).
Where no notice of an application made under section 8 is served upon the trustee within 30 days of the date on which the copies of the schedule of distribution prepared by the trustee are mailed out under subsection 7(1), the trustee shall pay out the holdback in accordance with the schedule of distribution prepared by the trustee.
Where notice of an application under section 8 is served upon the trustee within 30 days of the date on which the copies of the schedule of distribution prepared by the trustee are mailed out under subsection 7(1), the trustee shall not pay out the holdback until a judge has made an order under section 8; and thereupon the trustee shall pay out the holdback
(a) where the judge does not vary the schedule, in accordance with the schedule as prepared by the trustee; or
(b) where the judge varies the schedule, in accordance with the schedule as varied by the order of the judge.
If the holdback under the contract is more than sufficient to pay all the persons who are entitled to be paid therefrom under the trust created under section 4, the trustee shall deduct from the balance of the holdback the amount of his fees and disbursements in respect thereof, or so much thereof as can be paid therefrom, and any balance remaining shall be paid to the contractor.
Upon distributing and paying out the holdback under the contract under section 9, the trustee has no further obligation or responsibility under the trust created in respect thereto.
If under section 3 the Minister of Finance pays the whole or any part of the holdback under the contract, the payment shall be conclusively deemed to have been paid under the contract and the liability of the government to the contractor under the contract, or to any other person who has a claim against or right to moneys payable under the contract, is discharged to the extent of the amount so paid.
A payment made by the trustee under section 9 to a person who has a claim against the contractor shall be deemed to have been made by the contractor on account of the claim, and the claim shall be reduced by the amount so paid: but the part payment under this Act of a claim in respect of which no action may be commenced to enforce the claim against the contractor because of lapse of time, does not revive the right of the claimant to commence such an action.
Neither the trustee, nor any employee of the trustee, is liable for any act or omission done or made in good faith in carrying out the intent of this Act.
The Minister of Finance shall pay from and out of the Consolidated Fund any fees and disbursements of the trustee for, or made in the course of, carrying out its duties under this Act and not deducted under subsection 9(3).
The Crown in right of Manitoba is bound by this Act and may make claims against the contractor and submit particulars thereof to the trustee in respect of the holdback under the contract.