101050094 Saskatchewan Ltd. v. Terramax Sitework Ltd. et al., 2007 SKCA 123

• Judge: Cameron, Smith and Wilkinson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: November 02, 2007
• Jurisdiction: Saskatchewan
• Citations: 2007 SKCA 123;(2007), 304 Sask.R. 179 (CA)

101050094 Sask. v. Terramax Sitework (2007), 304 Sask.R. 179 (CA);

      413 W.A.C. 179

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. NO.014

Terramax Sitework Ltd. (defendant/appellant) v. 101050094 Saskatchewan Ltd. (plaintiff/respondent) and The City of Regina (defendant/non-party)

(No. 1453; 2007 SKCA 123)

Indexed As: 101050094 Saskatchewan Ltd. v. Terramax Sitework Ltd. et al.

Saskatchewan Court of Appeal

Cameron, Smith and Wilkinson, JJ.A.

November 2, 2007.

Summary:

A subcontractor sued a general contractor in debt prior to registration of a lien. Subsequently, the subcontractor amended its statement of claim, adding relief that would normally be requested on a builders' lien action. The contractor applied under s. 55(3) of the Builders' Lien Act to dismiss the subcontractor's claim as the two year limitation period for setting the matter down for trial had expired.

The Saskatchewan Court of Queen's Bench, in a decision reported at 295 Sask.R. 240, dismissed the application. The contractor appealed.

The Saskatchewan Court of Appeal allowed the appeal. The lien claim stood expired and the portion of the action directed to the claim and enforcement of the lien was dismissed.

Mechanics' Liens - Topic 5527

Obtaining a lien - Commencement of action - By filing a statement of claim - A subcontractor sued a general contractor in debt prior to registering a lien - Subsequently, the subcontractor amended its claim, adding relief that would normally be requested on a builders' lien action - The contractor applied under s. 55(3) of the Builders' Lien Act to dismiss the subcontractor's claim as the two year limitation period for setting the matter down for trial had expired - The trial court dismissed the application because the action was commenced before registration of the lien and, under s. 54, was not a lien action - As s. 54 had not been complied with, s. 55 had no application - The Saskatchewan Court of Appeal allowed the contractor's appeal - The trial judge's interpretation of s. 54 was overly technical and artificial - The amendment, made after registration of the lien, in effect advanced a new claim - The lien claim was thus commenced after registration of the lien in compliance with s. 54 - The two year period set out in s. 55(1) for setting the matter down for trial had expired - The lien claim stood expired and the portion of the action directed to the claim and enforcement of the lien was dismissed - See paragraphs 1 to 12.

Mechanics' Liens - Topic 6983

Loss or discharge of lien - Loss by operation of statute - Expiration of time period - [See Mechanics' Liens - Topic 5527 ].

Mechanics' Liens - Topic 6983

Loss or discharge of lien - Loss by operation of statute - Expiration of time period - A subcontractor sued a general contractor in debt prior to registering a lien - Subsequently, the subcontractor amended its claim, adding relief that would normally be requested on a builders' lien action - The contractor applied under s. 55(3) of the Builders' Lien Act to dismiss the subcontractor's claim as the two year limitation period for setting the matter down for trial had expired - The trial court dismissed the application because the action was commenced before registration of the lien and, under s. 54, was not a lien action - Section 55 had no application - Further, even if the action was properly constituted, the court would have extended the time period for 90 days as there were issues to be resolved - The Saskatchewan Court of Appeal allowed the contractor's appeal on the basis of the application of s. 55(3) - The court also observed that even if the discretion to extend the time period imposed in s. 55(1) existed, it was not exercised on proper principles - The time limit was for the defendant's protection - An applicant seeking to extend the time had to show that the delay was not unreasonable nor unjustified - No such explanation was offered - Further, the judge erred in assuming that the action survived or fell in its entirety - It was possible to dismiss the lien claim without affecting the original action - See paragraphs 13 to 20.

Mechanics' Liens - Topic 8030

Practice - Pleadings - Statement of claim - Amendment of - [See Mechanics' Liens - Topic 5527 ].

Practice - Topic 2104

Pleadings - Amendment of pleadings - Effect of - [See Mechanics' Liens - Topic 5527 ].

Cases Noticed:

Howden (Roy) Construction Ltd. v. Dewitt et al., [1994] 1 W.W.R. 617; 114 Sask.R. 263 (Q.B.), refd to. [para. 15].

Statutes Noticed:

Builders' Lien Act, S.S. 1984-85-86, c. B-7.1, sect. 54, sect. 55 [para. 9].

Counsel:

David D. Kowalishen, for the appellant;

Donald J. Harmon, for the respondent.

This appeal was heard on November 2, 2007, by Cameron, Smith and Wilkinson, JJ.A., of the Saskatchewan Court of Appeal. Smith, J.A., delivered the court's judgment orally on November 2, 2007, and filed the following written reasons on November 9, 2007.