East Central Gas Co-Op Ltd. et al. v. Henuset Ranches and Construction Ltd., (1977) 6 A.R. 347 (CA)

• Judge: McGillivray, C.J.A., Prowse and Moir, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: September 13, 1977
• Citations: (1977), 6 A.R. 347 (CA)

East Central Gas v. Henuset Ranches (1977), 6 A.R. 347 (CA)

MLB headnote and full text

East Central Gas Co-Op Ltd. et al. v. Henuset Ranches and Construction Ltd.

Indexed As: East Central Gas Co-Op Ltd. et al. v. Henuset Ranches and Construction Ltd.

Alberta Supreme Court

Appellate Division

McGillivray, C.J.A., Prowse and Moir, JJ.A.

September 13, 1977.

Summary:

This case arose out of a claim for lien against an incorporated co-operative association and all of its members. The members formed the co-operative association to construct and operate a gas distribution system, which would supply the members' properties. Each member granted the co-operative a right-of-way over his land to construct lines connecting his property to the system. The members shared in the cost of construction of the system and each paid the cost of the service line on the right-of-way over his property. The contractor claimed a lien against the co-operative and its members on the ground that the members were owners within the meaning of s. 2(1)(g) of the Builders' Lien Act, R.S.A. 1970, c. 35, because each member had requested the line to be constructed on his property. The co-operative and its members applied to vacate the lien against the interests of the members of the co-operative. The Alberta Supreme Court, Trial Division, in a judgment reported 2 A.R. 409, allowed the application. The contractor appealed.

The Alberta Court of Appeal dismissed the appeal and held that the members were not owners under s. 2(1)(g). The Court of Appeal held that the co-operative was the owner of the property on which the system was built and that the system was built for its benefit and at its request.

Mechanics' Liens - Topic 1279

The owner - Owner defined - Builders' Lien Act, R.S.A. 1970, c. 35, s. 2(1)(g) - Co-operatives - A contractor filed a lien against an incorporated co-operative association and all of its members - The members formed the co-operative association to construct and operate a gas distribution system, which would supply the members' properties - Each member granted the co-operative a right-of-way over his land to construct lines connecting his property to the system - The members shared in the cost of construction of the system and each paid the cost of the service line on the right-of-way over his property - The contractor claimed a lien against the members on the ground that each had requested the line to be constructed on his property - The lien holder also submitted that, since a co-operative association existed solely for the benefit of its members, the members had actually directly dealt with the lien holder and were owners within s. 2(1)(g) of the Builders' Lien Act - The Alberta Court of Appeal vacated the liens against the properties of the members and held that the members were not owners under s. 2(1)(g) - The Court of Appeal held that the co-operative association was the owner of the property on which the system was built and the system was built for its benefit and at its request.

Cases Noticed:

J.A. Marshall Brick Co. v. York Farmers Colonization Co. (1916), 54 S.C.R. 569, affirming 28 D.L.R. 464, appld. [para. 18].

Modern Construction Co. Ltd. v. Maritime Rock Products Ltd. (1963), 39 D.L.R.(2d) 539, dist. [para. 23].

Statutes Noticed:

Builders' Lien Act, R.S.A. 1970, c. 35, sect. 2(1)(b), sect. 2(1)(d), sect. 2(1)(g), sect. 4(1) [para. 9].

Co-Operative Associations Act, R.S.A. 1970, c. 67, sect. 23 [para. 5].

Counsel:

D.R. Haigh, for the appellant;

T.F. McMahon, for the respondent.

This case was heard before McGILLIVRAY, C.J.A., PROWSE and MOIR, JJ.A., of the Alberta Supreme Court, Appellate Division.

On September 13, 1977, PROWSE, J.A., delivered the following judgment for the Appellate Division: