Anixter Can. Inc. v. Miller Electric, 2004 NSCA 67

• Judge: Bateman, Hamilton and Fichaud, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: April 08, 2004
• Jurisdiction: Nova Scotia
• Citations: 2004 NSCA 67;(2004), 224 N.S.R.(2d) 55 (CA)

Anixter Can. Inc. v. Miller Electric (2004), 224 N.S.R.(2d) 55 (CA);

 708 A.P.R. 55

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. JN.021

Anixter Canada Inc. (appellant) v. Phil Miller Electric Ltd. and J.D. Irving Ltd. (respondents)

(CA 212725; 2004 NSCA 67)

Indexed As: Anixter Canada Inc. v. Miller (Phil) Electric Ltd. et al.

Nova Scotia Court of Appeal

Bateman, Hamilton and Fichaud, JJ.A.

May 27, 2004.

Summary:

J.D. Irving contracted with Miller (Phil) Electric for the electrical installation for a stud mill (contract price of $1,501,250). Anixter Canada supplied wire and cable to Miller. By April 12, 2000, Miller's work was substantially completed. On June 8, 2000, Anixter filed a claim for lien against Irving's lands for $128,186.04. On June 14, 2000, Irving sent Miller cheques totalling $128,800. Anixter argued that when it filed its lien on June 8, the statutory holdback under s. 13 of the Mechanics' Lien Act included the full $128,800 paid by Irving on June 14.

The Nova Scotia Supreme Court, in a decision not reported in this series of reports, rejected the argument and held that the statutory holdback was two and one-half percent of the contract price ($37,531.25). Anixter applied for leave to appeal and if granted, appealed.

The Nova Scotia Court of Appeal granted leave to appeal and dismissed the appeal.

Mechanics' Liens - Topic 2808

The holdback - General - Liability of owner - J.D. Irving contracted with Miller (Phil) Electric for the electrical installation for a stud mill (contract price of $1,501,250) - Anixter Canada supplied wire and cable to Miller - By April 12, 2000, Miller's work was substantially completed - On June 8, 2000, Anixter filed a claim for lien against Irving's lands for $128,186.04 - On June 14, 2000, Irving sent Miller cheques totalling $128,800 - Anixter argued that when it filed its lien on June 8, the statutory holdback under s. 13 of the Mechanics' Lien Act included the full $128,800 paid by Irving on June 14 - The Nova Scotia Court of Appeal confirmed the chambers judge's ruling that the statutory holdback was two and one-half percent of the contract price - Section 13(2) of the Act held that the initial holdback of ten percent of the contract price was to be held for 45 days after completion of the work - Section 13(3) stated that beginning 45 days after the completion of the work, the amount of the holdback could be reduced to two and one-half percent - An owner's decision to retain more than the statutory holdback did not designate the excess as "statutory" holdback - See paragraphs 10 to 24.

Mechanics' Liens - Topic 2844

The holdback - Duties of owner - Amount of holdback required - General - [See Mechanics' Liens - Topic 2808 ].

Cases Noticed:

Vaillancourt Lumber Co. v. Board of Education of Balfour (Township) Separate School Section No. 2 (1964), 42 D.L.R.(2d) 610 (Ont. C.A.), refd to. [para. 27].

S.I. Guttman Ltd. v. James D. Mokry Ltd., [1969] 1 O.R. 7 (C.A.), refd to. [para. 27].

Canadian Comstock Company Limited v. Toronto Transit Commission et al. (1969), 8 D.L.R.(3d) 582 (S.C.C.), refd to. [para. 27].

Statutes Noticed:

Mechanics' Lien Act, R.S.N.S. 1989, c. 277, sect. 13 [para. 13].

Authors and Works Noticed:

Macklem, D.N., and Bristow, D.I., Construction Builders' and Mechanics' Liens in Canada (6th Ed.), generally [paras. 11, 25]; pp. 3-20.3 [para. 27]; 3-35 [paras. 10, 22]; 3-85 [para. 27].

Counsel:

Colin Bryson, for the appellant;

George MacDonald, Q.C., for the respondent.

This appeal was heard on April 8, 2004, at Halifax, Nova Scotia, by Bateman, Hamilton and Fichaud, JJ.A., of the Nova Scotia Court of Appeal. The following decision of the court was delivered by Fichaud, J.A., on May 27, 2004.