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LIENS - Vacating, loss or discharge of lien - Expiry of lien

Tuesday, March 05, 2019 @ 8:23 AM  

Lexis Advance® Quicklaw®
Appeal by Artis Builders from a decision declaring its builders’ lien void. The appellant registered the lien in 2015 but did not commence an action to enforce it. The appellant’s principal adduced it had provided materials and services to the respondent in the past when she had flipped other houses and the parties’ practice was for the respondent to partially pay for materials and cover the balance once the house was sold. The principal further adduced he understood the respondent would be delayed in selling the property because of personal issues. The respondent denied any indebtedness to the appellant. The chambers judge held the date on which the lien was registered was the latest date on which the appellant could have discovered its claim and hence was the latest date on which the limitation period for an action to enforce the lien could have begun to run. He concluded the lien was void as more than two years had elapsed since the registration of the lien.

HELD: Appeal allowed. There was nothing in the Builders’ Lien Act that spoke to when an action to enforce a claim of lien had to be commenced. As a result, the two-year limitation period set out in the Limitations Act applied. The question of when a claim was discovered was one of fact. A cause of action did not automatically arise when the lien came into existence by the provision of services or by the lien being filed. The chambers judge erred in his determination of when the limitation period began to run, as it was not necessarily the date on which the lien was filed. The contradiction in the affidavit evidence had to be resolved. The matter was remitted back to the Court of Queen’s Bench.

Kehoe v. Artis Builders, [2019] S.J. No. 35, Saskatchewan Court of Appeal, R.G. Richards C.J.S., N.W. Caldwell and M.J. Herauf JJ.A., January 30, 2019. Digest No. TLD-March42019004