Nexen Energy ULC v. EDS Decommissioning Canada Inc. (Bankrupt) et al.,

• Judge: Mason
• Neutral Citation: 2015 ABQB 271
• Citation: (2015), 615 A.R. 245 (QBM),2015 ABQB 271,615 AR 245,(2015), 615 AR 245 (QBM),615 A.R. 245
• Date: 18 February 2015
• Court: Court of Queen's Bench of Alberta (Canada)

Nexen Energy ULC v. EDS Decommissioning (2015), 615 A.R. 245 (QBM)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. MY.046

Nexen Energy ULC (applicant) v. PricewaterhouseCoopers Inc., in its capacity as Trustee to the Bankruptcy of EDS Decommissioning Canada Inc., Hydro-West Scaffolding Ltd., Tarpon Energy Services Ltd., Tri-Venture Construction Ltd. and Chinook Scaffold Systems Ltd. (respondents)

(1401 05227; 2015 ABQB 271)

Indexed As: Nexen Energy ULC v. EDS Decommissioning Canada Inc. (Bankrupt) et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Mason, Master

April 27, 2015.

Summary:

Nexen contracted with EDS to decommission a gas plant. EDS subcontracted various work. EDS went bankrupt. Four unpaid subcontractors filed liens against Nexen's lands. Section 43 of the Builders' Lien Act provided that a registered lien "ceases to exist" unless, within 180 days of registration, an action was commenced to realize on the lien and the lien claimant filed a certificate of lis pendens. Two subcontractors (Hydro-West and Tri-Venture) complied with s. 43. The other two subcontractors (Chinook and Tarpon) did not. Following an application by Nexen under s. 43(5), the Registrar discharged the liens of Chinook and Tarpon. Chinook and Tarpon applied to reinstate their liens. Hydro-West and Tri-Venture opposed the application.

A Master of the Alberta Court of Queen's Bench dismissed the application. A registered lien that ceased to exist could not be reinstated absent express statutory authority. The Master held that there was insufficient evidence of conduct supporting the application of principles of waiver and estoppel.

Mechanics' Liens - Topic 5486

Obtaining a lien - Lis pendens - Effect of failure to file - See paragraphs 1 to 43.

Mechanics' Liens - Topic 5527

Obtaining a lien - Commencement of action - By filing a statement of claim - See paragraphs 1 to 43.

Mechanics' Liens - Topic 6906

Loss or discharge of lien - General - Reinstatement of - See paragraphs 1 to 43.

Mechanics' Liens - Topic 6983

Loss or discharge of lien - Loss by operation of statute - Expiration of time period - See paragraphs 1 to 43.

Counsel:

Geoffrey Boddy (Jensen Shawa Solomon Duguid Hawkes LLP), for Chinook Scaffold Systems Ltd.;

James P. Flanagan (McLennan Ross LLP), for Hydro-West Scaffolding Ltd.;

Patrick D. Fitzpatrick (Burstall Winger Zammit LLP), for Tarpon Energy Services Ltd.

This application was heard on February 18, 2015, before Mason, Master, of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on April 27, 2015.