DBD Construction Ltd. v. Tenfold Contracting Ltd., 2015 ABCA 303

• Judge: Berger, Martin and Veldhuis, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 08, 2015
• Citations: 2015 ABCA 303;(2015), 609 A.R. 31

DBD Constr. Ltd. v. Tenfold Contracting (2015), 609 A.R. 31; 656 W.A.C. 31 (CA)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. SE.089

DBD Construction Ltd. (appellant) v. Tenfold Contracting Ltd. (respondent)

(1501-0075-AC; 2015 ABCA 303)

Indexed As: DBD Construction Ltd. v. Tenfold Contracting Ltd.

Alberta Court of Appeal

Berger, Martin and Veldhuis, JJ.A.

September 29, 2015.

Summary:

Tenfold Contracting Ltd. registered builders' liens against two properties for which DBD Construction Ltd. was the general contractor. A consent order was granted which substituted the payment of monies into court as security for the liens and set out deadlines for filing and serving an affidavit proving the liens and commencing an action to enforce the lien claims. DBD Construction claimed that the deadlines were not met. On November 12, 2014, Tenfold Contracting applied for an extension of time to file and serve its affidavit and to file and serve its statement of claim. DBD Construction applied for an order that the monies in court be returned and that Tenfold Contracting's application be dismissed.

A Master of the Alberta Court of Queen's Bench held that the 180 day time limit set out in the Builders' Lien Act should not and could not be extended. His judgment was delivered in writing on December 15, 2014 and entered on February 24, 2015. Tenfold Contracting filed and served a notice of appeal on February 25, 2015, and sought a stay of execution of the Master's order.

The Alberta Court of Queen's Bench, per Dario, J., granted the stay pending the resolution of the appeal, or a declaration, that it was improperly brought, whichever came first. DBD Construction appealed the order of Dario, J. granting the stay of enforcement of the Master's order.

The Alberta Court of Appeal dismissed the appeal.

Courts - Topic 1125

Masters - Appeals from - Jurisdiction - [See Courts - Topic 1128 ].

Courts - Topic 1128

Masters - Appeals from - Limitation periods - Tenfold Contracting applied for an extension of time to commence a builders' lien action against DBD Construction - A Master ruled that the 180 day time limit in the Builders' Lien Act should not and could not be extended - His judgment was delivered in writing on December 15, 2014, and entered on February 24, 2015 - Tenfold filed and served a notice of appeal on February 25, 2015, including a request for a stay of execution of the Master's order - A Queen's Bench judge (Dario, J.), granted a stay pending appeal - DBD appealed, arguing that the notice of appeal was not filed and served within 10 days after the judgment or order was entered or served (Rules of Court, rule 6.14(2)) and that Dario, J., lacked jurisdiction - The Alberta Court of Appeal dismissed the appeal - February 24, 2014, was the commencement of the appeal period - Further, Dario, J., had jurisdiction to hear and grant the stay of enforcement of the Master's order, notwithstanding s. 66(1) of the Builders' Lien Act.

Practice - Topic 9000

Appeals - Notice of appeal - Time for filing and service of notice of appeal or reply - [See Courts - Topic 1128 ].

Cases Noticed:

C & A Electrical Industries Ltd. v. Gitersos et al. (1983), 43 A.R. 234 (C.A.), refd to. [para. 12].

Opi Ltd. v. Harway Industrial Enterprises (1986), 47 Alta. L.R.(2d) 142 (C.A.), refd to. [para. 12].

Statutes Noticed:

Builders' Lien Act, R.S.A. 2000, c. B-7, sect. 66(1) [para. 12].

Rules of Court (Alta.), rule 6.14(2) [para. 6]; rule 14.48 [para. 11].

Counsel:

R.M. Schuett, for the appellant, DBD Construction Ltd.;

E. Semenova, for the respondent, Tenfold Contracting Ltd.

This appeal was heard in Calgary, Alberta, on September 8, 2015, before Berger, Martin and Veldhuis, JJ.A., of the Alberta Court of Appeal. The following memorandum of judgment was filed by the court on September 29, 2015.