Case two
In another recent Alberta decision – Boulevard Real Estate
Equities Ltd. v. 1851514 Alberta Ltd. – Master Prowse relied
on the TRG case to hold that a lien may validly be filed out of
time in certain circumstances.
1851514 Alberta Ltd. (“185”) provided work and materials
at two projects owned by Boulevard Real Estate Equities Ltd.
(“Boulevard”). When 185 went unpaid, it filed liens against
both properties. At this point, Boulevard’s representatives
contacted 185, promising payment and requesting that 185
remove the liens so that Boulevard could secure financing.
On the faith of this promise, 185 discharged the liens.
Shortly thereafter, Boulevard went silent and stopped
paying contractors on other projects. 185 then attempted to
re-register its liens against title to the projects. However, sections
41 and 42 of the Alberta Act require that a lien be filed
within 45 days of completion of the work or the abandonment
of the contract, failing which the lien “ceases to exist,”
and more than 45 days had passed. Boulevard sought to have
the liens removed on the basis that they were filed after this
statutorily prescribed timeline.
Master Prowse held that the law of Alberta allows “the
doctrine of promissory estoppel to prevent an owner whose
false representations have prevented the timely registration
of a lien from asserting that the lien was filed out of time, provided
that no third party rights are adversely affected” (para.
38). In other words, Boulevard made a false promise that
affected 185’s decision regarding the filing of the lien.
As no third party rights were involved and Boulevard
plainly made false representations to 185, which 185 relied
upon in discharging the original liens, the Court held that the
doctrine of promissory estoppel prevented Boulevard from
asserting that the re-registered liens were filed out of time.
These two decisions illustrate that all is not what it seems
when it comes to timelines under builders’ liens legislation.
Readers should be aware that there are significant differences
in the lien legislation from province to province, and that
these Alberta decisions may have little impact in other provinces.
That said, recently the courts do seem more inclined to
grant relief from what are otherwise clear legislative requirements
to allow the court to reach what it considers to be a
just result in a particular case. If a timeline is missed, contractors
would be wise to obtain legal advice before simply
assuming that their lien claims are invalid.
Jason E. Roberts is a lawyer at Fillmore Riley LLP who practises
in the area of general civil litigation with a focus on construction,
insurance and condominium law. You may reach him at
204-957-8356 or jroberts@fillmoreriley.com.
www.westcodrilling.ca
LEGAL
These two decisions illustrate
that all is not what it seems
when it comes to timelines
under builders’ liens legislation.
Ten Years of Piling Canada 77
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