Focus On

Construction Law - Liens - Obtaining a lien - Claim - Filing - Defects and formalities - Notice of lien - Failure to provide - Vacating, loss or discharge of lien

Thursday, November 10, 2016 @ 7:00 PM  

Appeal by Superior Construction Solutions (Superior) from an order vacating its written notice of lien and a claim of lien. Superior performed work in respect of City property and other property under a subcontract to Hamilton Construction (Hamilton). The last day Superior performed work under its contract was November 19, 2013. Hamilton brought the present application on December 10, 2015. Superior had commenced a claim against Hamilton and several others on July 16, 2015 in Regina, but had failed to serve Hamilton with the claim or to give Hamilton notice of the claim. Superior obtained an order extending time for service, and served Hamilton with the claim. In the meantime, before Superior had effected service of its statement of claim, Hamilton searched the local registry and, finding no statement of claim, applied to vacate Superior’s written notice and claim of lien on the ground that no action had been commenced within two years. The judge allowed the application and vacated the written notice of lien and claim of lien. He found that s. 86(2) of the Builders’ Lien Act applied and he interpreted that section as requiring a lien claimant to file its statement of claim in the judicial centre nearest to the land over which the claim related. He also found Superior was required to provide the court with an evidentiary and legal basis for the claim to permit a determination that there was an arguable case and thus justification to maintain the extraordinary remedy of claim of lien and that Superior had failed to do so.

HELD: Appeal allowed. The chambers judge misinterpreted the effect of s. 86(2) of the Builders’ Lien Act. While it was an error for Superior to commence its action to enforce its claim of lien in Regina, the error could be cured by transferring the action to the proper judicial centre. Notwithstanding that Superior had filed in the wrong judicial centre, it had filed a statement of claim in the court within the time allowed. In addition, the judge’s alternate ground for making the order was erroneous. None of the provisions or principles the judge relied on supported the reversal of the onus and burden of proof in an application to vacate a claim of lien. Moreover, the judge appeared to have misapprehended the evidence by making findings of fact not supported by the evidence before him. Finally, neither of the grounds upon which the judge based his decision was actually argued before him.