PCL Industrial Management Inc. et al. v. Agrium et al., (2015) 457 Sask.R. 298 (CA)

• Judge: Richards, C.J.S., Herauf and Whitmore, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: April 20, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 457 Sask.R. 298 (CA);2015 SKCA 55

PCL Industrial Mgmt v. Agrium (2015), 457 Sask.R. 298 (CA);

    632 W.A.C. 298

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JN.001

PCL Industrial Management Inc. and SNC - Lavalin Inc. (appellants) v. Agrium, a Partnership of Agrium Products Inc., Viridian Fertilizers Limited and Agrium Inc. (respondents)

(CACV2677; 2015 SKCA 55)

Indexed As: PCL Industrial Management Inc. et al. v. Agrium et al.

Saskatchewan Court of Appeal

Richards, C.J.S., Herauf and Whitmore, JJ.A.

April 21, 2015.

Summary:

In November 2009, PCL and Agrium entered into a contract for PCL to expand Agrium's potash mine. Substantial performance and completion was to be achieved in June 2015. Under s. 46 of the Builders' Lien Act, Agrium had made anniversary holdback payments in December of each year from 2010 to 2013. The applicants (PCL and SNC-Lavalin) sought an order directing Agrium to pay to them the statutory holdback funds that had accumulated between November 2013 and November 2014 ($117,376,021.84).

The Saskatchewan Court of Queen's Bench, in a decision reported at (2015), 456 Sask.R. 72, dismissed the application. The applicants appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Mechanics' Liens - Topic 4

General principles and definitions - General principles - Interpretation of mechanics' lien legislation - [See Mechanics' Liens - Topic 3066 ].

Mechanics' Liens - Topic 3066

The holdback - Release of holdback - Partial release - In November 2009, PCL and Agrium entered into a contract for PCL to expand Agrium's potash mine - Substantial performance and completion was to be achieved in June 2015 - Under s. 46 of the Builders' Lien Act, Agrium had made anniversary holdback payments in December of each year from 2010 to 2013 - The applicants (PCL and SNC-Lavalin) sought an order directing Agrium to pay to them the statutory holdback funds that had accumulated between November 2013 and November 2014 ($117,376,021.84) - Laing, J., dismissed the application - Under the ordinary meaning of the words of s. 46(3), where there was less than one year remaining to completion of the contract and the last anniversary date fell within that period, there could be no further early annual release of holdback on the last anniversary date - The Saskatchewan Court of Appeal dismissed the applicants' appeal - Section 46(1) was an exception to the ordinary rule that holdback funds were released following substantial performance - Section 46(3) was an exception to the exception where the unexpired term of the contract was less than one year from the last anniversary date - Section 46(3) displaced the early release provisions - This interpretation was consistent with the overall policy thrust of s. 46, reflecting a concern that early release of the holdback would reduce the pool of funds available to lien claimants at the very stage when lien claims were most likely to arise - Laing, J., correctly interpreted and applied s. 46 - See paragraphs 23 to 48.

Mechanics' Liens - Topic 8164

Practice - Appeals - Leave to appeal - In November 2009, PCL and Agrium entered into a contract for PCL to expand Agrium's potash mine - Substantial performance and completion was to be achieved in June 2015 - Under s. 46 of the Builders' Lien Act, Agrium had made anniversary holdback payments in December of each year from 2010 to 2013 - The applicants (PCL and SNC-Lavalin) sought an order directing Agrium to pay to them the statutory holdback funds that had accumulated between November 2013 and November 2014 ($117,376,021.84) - Laing, J., dismissed the application - The applicants appealed - Agrium asserted that Laing, J.'s decision was an interlocutory one and that leave to appeal was required - The Saskatchewan Court of Appeal disagreed - Laing, J.'s ruling was a final decision on the only live issue between the parties - Leave to appeal was not required - See paragraphs 18 to 22.

Practice - Topic 5729

Judgments and orders - Final judgments and orders - What constitute - [See Mechanics' Liens - Topic 8164 ].

Practice - Topic 5779

Judgments and orders - Interlocutory or interim orders - What constitutes - [See Mechanics' Liens - Topic 8164 ].

Practice - Topic 8871.2

Appeals - Leave to appeal - Whether required - [See Mechanics' Liens - Topic 8164 ].

Statutes - Topic 516

Interpretation - General principles - Ordinary meaning of words - [See Mechanics' Liens - Topic 3066 ].

Statutes - Topic 530

Interpretation - General principles - Social or economic policy considerations - [See Mechanics' Liens - Topic 3066 ].

Cases Noticed:

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 23].

Town-N-Country Plumbing & Heating (1985) Ltd. et al. v. Schmidt et al. (1991), 93 Sask.R. 278; 4 W.A.C. 278; 86 D.L.R.(4th) 716 (C.A.), refd to. [para. 26].

Hansen et al. v. Canadian National Railway Co. et al. (1983), 22 Sask.R. 126 (C.A.), refd to. [para. 28].

RGR Enterprises Ltd. v. Allsteel Builders (2) Ltd. et al. (2015), 457 Sask.R. 131; 632 W.A.C. 131; 2015 SKCA 33, refd to. [para. 28].

Statutes Noticed:

Builders' Lien Act, S.S. 1984-85-86, c. B-7.1, sect. 46 [para. 7].

Authors and Works Noticed:

Semenchuck, Gary G.W., Liens in the Construction Industry: A Report Prepared for The Hon. J. Gary Lane, Q.C., Minister of Justice by The Special Advisory Committee to the Minister of Justice on Builders' Liens (1984), generally [para. 30]; pp. 171, 172 [para. 32].

Counsel:

James Ehmann, Q.C., and Jason Clayards, for the appellants;

Phillip Scheibel, for the respondents.

This appeal was heard on April 20, 2015, by Richards, C.J.S., Herauf and Whitmore, JJ.A., of the Saskatchewan Court of Appeal. The court's decision was released on April 21, 2015, with reasons to follow. Richards, C.J.S., delivered the following written reasons for the court on May 29, 2015.