Acera Developments Inc. v. Sterling Homes Ltd., (2009) 486 A.R. 1 (QB)

• Judge: Jeffrey, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 05, 2009
• Citations: (2009), 486 A.R. 1 (QB);2009 ABQB 494

Acera Dev. Inc. v. Sterling Homes Ltd. (2009), 486 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. SE.005

Acera Developments Inc. (appellant) v. Sterling Homes Ltd. (respondent)

(0901 05041; 2009 ABQB 494)

Indexed As: Acera Developments Inc. v. Sterling Homes Ltd.

Alberta Court of Queen's Bench

Judicial District of Calgary

Jeffrey, J.

August 25, 2009.

Summary:

Acera Developments Inc. (Acera) applied for a declaration that a builders' lien, registered by Sterling Homes Ltd. (Sterling) against Acera's lands, was invalid under s. 48(1)(c) of the Builders' Lien Act.

A Master of the Alberta Court of Queen's Bench, in a decision not reported in this series of reports, dismissed the application. Acera appealed.

The Alberta Court of Queen's Bench allowed the appeal. The court granted a limited stay of its decision where Sterling indicated that it intended to appeal.

Mechanics' Liens - Topic 1305

The owner - What constitutes an owner - Conditions precedent - "Request" for work or materials - At issue was whether the construction of show homes and spec homes by a home builder (Sterling), in the early days of an arrangement between the builder and a real estate developer (Acera) for the sale over time of 136 new lots, could give rise to a valid builders' lien - Acera applied for a declaration that a builders' lien registered by Sterling against its lands was invalid under s. 48(1)(c) of the Builders' Lien Act (BLA) - A Master dismissed the application - The Alberta Court of Queen's Bench allowed Acera's appeal - Acera was not an "owner" under the BLA - There was no express "request" by Acera to Sterling to build the homes - The parties' Lot Purchase Agreement was an agreement to purchase lots - It contained no request, express or implied, that Sterling build on them for Acera's sake or at all - The requirement to complete the exterior and roof arose only after Sterling chose to build and got its plans approved by Acera as compliant with the community standards - Checking for compliance with architectural and construction guidelines by Acera was not active participation in the nature of implying a request to start building - The cooperation and collaboration between the parties stemmed from their common interest in the success of the development of the new residential community, not around whether Sterling would build spec and show homes - See paragraphs 31 to 60.

Mechanics' Liens - Topic 8582

Evidence and proof - Burden of proof - Entitlement to lien - Acera Developments Inc. (Acera) applied for a declaration that a builders' lien, registered by Sterling Homes Ltd. (Sterling) against Acera's lands, was invalid under s. 48(1)(c) of the Builders' Lien Act - A Master dismissed the application - The Alberta Court of Queen's Bench stated that the burden Acera bore on the de novo rehearing of its application was a heavy one, since granting it would have the effect of summarily dismissing Sterling's lien claim before Sterling even initiated any enforcement steps - Therefore, for these purposes, the court would assume to be true all fact allegations proffered by Sterling that conflicted with Acera's fact allegations - The issue on appeal was whether Acera had demonstrated that any further steps by Sterling to enforce its lien claim had no reasonable prospect of success - There could be no genuine issue for trial; it had to be plain and obvious that Sterling's case was bound to fail - See paragraphs 2 to 30.

Cases Noticed:

United Utility Workers Association of Canada et al. v. TransAlta Corp. et al. (2004), 354 A.R. 58; 329 W.A.C. 58; 2004 ABCA 200, refd to. [para. 21].

Clarkson Co. v. Ace Lumber Ltd., [1963] S.C.R. 110, refd to. [para. 22].

Vinterra Properties Inc. v. Calabria Interiors Ltd. (2005), 377 A.R. 60; 2005 ABQB 130, refd to. [para. 23].

1246798 Ontario Inc. et al. v. Sterling et al. (2000), 139 O.A.C. 27; 194 D.L.R.(4th) 346 (Div. Ct.), refd to. [para. 27].

Fairview Investments Ltd. v. Irving (J.D.) Ltd. (1999), 187 Nfld. & P.E.I.R. 175; 566 A.P.R. 175 (Nfld. T.D.), refd to. [para. 28].

V.A.H. v. Lynch et al. (2000), 255 A.R. 359; 220 W.A.C. 359; 78 Alta. L.R.(3d) 1 (C.A.), refd to. [para. 29].

Rahco International Inc. v. Laird Electric Ltd. (2006), 398 A.R. 332; 2006 ABQB 592 (Master), refd to. [para. 29].

Daon Development Corp. v. Bahry's Glass Ltd. et al. (1982), 48 A.R. 212 (Q.B. Master), refd to. [para. 30].

Royal Trust Corp. of Canada v. Bengert Construction Ltd., Coyes and Coyes (1988), 85 A.R. 210 (C.A.), refd to. [para. 34].

K. & Fung Canada Ltd. v. Reykdal (N.V.) & Associates Ltd. et al. (1998), 216 A.R. 164; 175 W.A.C. 164; 1998 ABCA 178, dist. [para. 47].

Marshall (John A.), Brick Co. v. York Farmers Colonization Co. (1917), 54 S.C.R. 569, refd to. [para. 56].

Suss Woodcraft Ltd. v. Abbey Glen Property Corp. and Zwaig, [1975] 5 W.W.R. 57 (Alta. S.C.), refd to. [para. 57].

Beaudoin v. Waters et al., [1997] 9 W.W.R. 370; 203 A.R. 1 (Q.B.), refd to. [para. 61].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128; 2004 SCC 25, refd to. [para. 62].

Dieleman Planer Co. v. Elizabeth Townhouses Ltd. et al., [1975] 2 S.C.R. 44; 3 N.R. 376, refd to. [para. 65].

Statutes Noticed:

Builders' Lien Act, R.S.A. 2000, c. B-7, sect. 48(1)(c) [para. 24].

Counsel:

Peter Ridout, for the appellant;

Jane Sidnell, for the respondent.

This appeal was heard on August 5, 2009, by Jeffrey, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following decision on August 25, 2009.