Case: Avli BRC Developments Inc v. BMP Construction Management Ltd, 2023 ABCA 147
Keywords: condominium project; construction law; builders’ liens; Builders’ Lien Act, RSA 2000, c B-7
The Appellant is the developer of an apartment-style condominium project on lands it owns in Inglewood, Calgary. As described by the Court of Appeal (Slatter, Hughes, and Kirker JJ.A.), “[the Respondents] all did work or furnished materials for the project but were not paid”. (See para. 2).
The Respondents register claims against the Appellant’s property. (See at paras. 5-6). The Appellant challenges the validity of the Respondents’ liens for non-compliance with the technical requirements set out in s. 34 of the Builders’ Lien Act. (See paras. 7-8). Pursuant to s. 37 of the Builders’ Lien Act,the Application Judge determines the liens are in “substantial compliance” with s. 34 and that there is no evidence of prejudice to the Appellant. (See paras. 9; 15).
The Appellant appeals the Application Judge’s discretionary decision under s. 37 of the Builders’ Lien Act. The Chambers Judge (Justice Hall) upholds the decision, determining that:
- notwithstanding registration errors associated with the liens, the curative provision in s. 37 of the Builders’ Lien Act applies;
- the Respondents’ liens are valid; and
- the Appellant’s case should be dismissed. (See para. 2).
The Court of Appeal finds no basis to intervene with the Chambers Judge’s decision to uphold the decision of the Applications Judge. (See para. 17).
This case provides important guidance with respect to the registration requirements in s. 34 of the Builders’ Lien Act. (See paras. 1, 13). That section outlines the technical requirements for a statement of lien as follows:
Section 34(2) of the Builders’ Lien Act requires that a statement of lien set out:
(a) the name and residence of
- (i) the lienholder,
- (ii) the owner or alleged owner, and
- (iii) the person for whom the work was or is being done or the materials were or are being furnished,
(b) the date when the work was completed or the last materials were furnished, or if the statement of lien is filed before the completion of the contract or subcontract, as the case may be, a statement that the work is not yet completed or the materials have not yet all been furnished,
(c) a short description of the work done or to be done or of the materials furnished or to be furnished,
(d) the sum claimed as due or to become due,
(e) a description, sufficient for registration, of the land and estate or interest in the land to be charged, and
(f) an address for service of the lienholder in Alberta. (See para. 13).
As outlined by the Court of Appeal, the issue of compliance raised by the Appellants arises because of “the timing of the condominium plan’s registration relative to the project construction work done by the [R]espondents”. (See para. 14).
Simply put, the Respondents registered their liens against the “Additional Sheet”, only some of the individual units of the Appellants’ condominium project, or, otherwise misidentified the owner. In those circumstances, the lien claimant has to rely upon s. 37 of the Builders’ Lien Act to validate their claims. This section provides the court discretion to validate the liens, notwithstanding technical deficiencies. (See para. 15).
For the Court of Appeal, this issue can be avoided in future by registering the lien “against the certificates of title for all the condominium units”. The Court of Appeal describes this as the “standard approach” for claimants seeking to secure payment for work against condominium common property. (See para. 14). Taking this approach also avoids “unnecessary litigation” under s. 37 of the Builders’ Lien Act which can have the effect of undermining “efficiency and cost effectiveness”. (See para. 1).
In its reasons at para. 12, the Court of Appeal also provides a helpful catalogue of appellate standards of review. Very briefly, for questions of law, including the interpretation of statutory provisions in the Builders’ Lien Act, the applicable standard is “correctness”. (See para. 12; Housen v. Nikolaisen, 2002 SCC 33 at para. 8; Pauli v. ACE INA Insurance Co, 2004 ABCA 84 at para. 5, leave to appeal to SCC dismissed, 30276 (26 August 2004)). For questions of mixed fact and law, absent an extricable question of law, the standard is “palpable and overriding error”. (See para. 12; Housen at paras. 10, 26-27).
Importantly in this case, the Court of Appeal affirmed that decisions involving an exercise of discretion (including a decision made pursuant to s. 37 of the Builders’ Lien Act)are owed deference on appeal. Citing Penner v. Niagara (Regional Police Services Board), 2013 SCC 19 at para. 27, the Court noted that such decisions are only reversible where the court “misdirected itself or came to a decision that is so clearly wrong that it amounts to an injustice, or where it failed to give sufficient weight to relevant considerations”. (See para. 12).
Applying this deferential standard, the Court of Appeal addressed the following ground of appeal: “Did the [Chambers Judge] err in upholding the decision to validate the [Respondents’] liens against all the project lands based on substantial compliance with s. 34 of the Builders’ Lien Act and no prejudice to the [Appellant]?” (See paras. 11, 17). Ultimately, the Court of Appeal concluded that the Application Judge’s findings were supported by the record (see para. 16) and, given the deference owed to the Chambers Judge, dismissed the appeal. (See paras. 17-18).
Counsel for the Appellant: Adrianna Worman (no appearance) and Russell Patterson (Goodfellow & Schuett Law, Calgary)
Counsel for the Respondent (Grant Metal Products Ltd.): Jason Demers (no appearance) and Vincent Li (HD Law Group, Calgary)
Counsel for the Respondent (Rimrock Landscaping and Property Management): Megan Stoker (Peacock Linder Halt & Mack LLP, Calgary)
Counsel for the Respondent (Desa Glass a Division of Desa Holdings Ltd.): Stephen Mulrain (Miller Thomson LLP, Calgary)
Counsel for the Respondent (Shanahan’s GP Ltd.): Elizabeth Stewart (no appearance) (Soby Boyden Lenz LLP, Calgary)