Propak Systems v. Grey Owl Eng., (2015) 468 Sask.R. 308 (QB)

Judge:Allbright, J.
Court:Court of Queen's Bench for Saskatchewan
Case Date:February 11, 2015
Jurisdiction:Saskatchewan
Citations:(2015), 468 Sask.R. 308 (QB);2015 SKQB 43
 
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Propak Systems v. Grey Owl Eng. (2015), 468 Sask.R. 308 (QB)

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Temp. Cite: [2015] Sask.R. TBEd. MR.021

Propak Systems Ltd. (applicant) v. Grey Owl Engineering Ltd. (respondent)

(2014 QBG No. 1524; 2015 SKQB 43)

Indexed As: Propak Systems Ltd. v. Grey Owl Engineering Ltd.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Allbright, J.

February 11, 2015.

Summary:

Propak Systems Ltd. contracted with BlackPearl Resources Inc. to provide engineering services to land leased by BlackPearl for the extraction of minerals. Propak retained Advanced Metal Concepts & Fabrication Ltd. to build three storage tanks for use on the land. Advanced Metal retained Grey Owl Engineering Ltd. to provide engineering services in regard to the tanks. Grey Owl provided all services as required. Advanced Metal abandoned the contract before building the tanks. Grey Owl registered a lien against the land. Propak initially brought an application without notice pursuant to s. 56(1) of the Builders' Lien Act, seeking an order vacating the written notice of lien registered on behalf of Grey Owl upon payment into court of $121,887.50, representing the amount of the lien plus 25% as security for costs. Smith, J., ordered that the written notice of lien registered by Grey Owl was vacated. Propak now sought an order paying out the funds currently held in court as security for the lien along with an order for solicitor-client costs.

The Saskatchewan Court of Queen's Bench held that the storage tanks were not improvements within the meaning of the Builders' Lien Act. Accordingly, Propak was entitled to a release of the money held in court as security for the lien on the fundamental basis that the subject of the lien was not lienable. The court held that it was not an appropriate case to order costs on a solicitor-client basis. Propak was entitled to an order of costs in the normal fashion.

Mechanics' Liens - Topic 4

General principles and definitions - General principles - Interpretation of mechanics' lien legislation - [See first Mechanics' Liens - Topic 255 ].

Mechanics' Liens - Topic 255

Lienable interest - Improvements, buildings, etc. - What constitutes an "improvement" - The applicant sought an order paying out the funds currently held in court as security for a lien registered against land by Grey Owl Engineering Ltd. - Grey Owl had provided engineering services in regard to three storage tanks that were to be built on the land - At issue was whether the storage tanks constituted an "improvement" on the land, and were a thing capable of maintaining a builders' lien pursuant to s. 22 (1) of the Builders' Lien Act - Also at issue was whether the statutory definition of "improvement" was expansive in its meaning or exhaustive and restrictive - The Saskatchewan Court of Queen's Bench held that the Saskatchewan legislation could most likely be characterized as "exhaustive" - It expressly contained an exception to the definition of "improvement" and directed the court to examine the intention of the parties in determining each matter - In order to determine whether the storage tanks were improvements, the court had to examine the parties' intentions, including the degree of affixation and the ability of the tanks to be moved - See paragraphs 8 to 10 and 16.

Mechanics' Liens - Topic 255

Lienable interest - Improvements, buildings, etc. - What constitutes an "improvement" - Propak Systems Ltd. contracted with BlackPearl Resources Inc. to provide engineering services to land leased by BlackPearl for the extraction of minerals - Propak retained Advanced Metal Concepts & Fabrication Ltd. to build three storage tanks for use on the land - Advanced Metal retained Grey Owl Engineering Ltd. to provide engineering services in regard to the tanks - Grey Owl provided all services as required - Advanced Metal abandoned the contract before building the tanks - Grey Owl registered a lien against the land - Propak sought an order paying out the funds held in court as security for the lien - The Saskatchewan Court of Queen's Bench held that the storage tanks were not improvements within the meaning of the Builders' Lien Act - Accordingly, Propak was entitled to a release of the money held in court as security for the lien on the basis that the subject of the lien was not lienable - See paragraphs 11 to 16.

Mechanics' Liens - Topic 2306

Lienable claims - General principles - Requirement that work done or materials supplied in respect of an improvement - [See second Mechanics' Liens - Topic 255 ].

Mechanics' Liens - Topic 8248

Practice - Filing of security or lien bond - Payment out of court - [See second Mechanics' Liens - Topic 255 ].

Mechanics' Liens - Topic 8800

Costs - General - The applicant, Propak Systems Ltd., sought an order paying out the funds currently held in court as security for a lien registered against land by Grey Owl Engineering Ltd. - Grey Owl had provided engineering services in regard to three storage tanks that were to be built on the land - In addition to an order paying out the funds held in court, Propak sought an order for solicitor-client costs - Propak referred to s. 97(1) of the Builders' Lien Act which provided that a court could order costs on a solicitor and client basis - The Saskatchewan Court of Queen's Bench held that the tanks were not improvements within the meaning of the Act - Accordingly, Propak was entitled to a release of the money held in court as security for the lien on the basis that the subject of the lien was not lienable - The court held that it was not an appropriate case to order costs on a solicitor-client basis - There had not been a Saskatchewan decision on the point at issue - Further, there was a difference in approach across jurisdictions, and it was not surprising that the parties had a legitimate difference of opinion as to the appropriate interpretation - Propak was entitled to an order of costs in the normal fashion - See paragraph 18.

Practice - Topic 7451

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - General - [See [ Mechanics' Liens - Topic 8800 ].

Cases Noticed:

Kennedy Electric Ltd. v. Dana Canada Corp. (2006), 265 D.L.R.(4th) 20 (Ont. Sup. Ct.), refd to. [para. 9].

Boomars Plumbing & Heating Ltd. v. Maronga Bros. Enterprises Ltd. (1988), 51 D.L.R.(4th) 13 (B.C.C.A.), refd to. [para. 9].

Gauntlet Energy Corp., Re (2003), 49 C.B.R.(4th) 219 (Alta. Q.B.), refd to. [para. 10].

Rahco International Inc. v. Laird Electric Ltd. (2006), 398 A.R. 332; 2006 ABQB 592 (Master), refd to. [para. 12].

Statutes Noticed:

Builders' Lien Act, S.S. 1984-85-86, c. B-7.1 sect. 2(1), sect. 22(1) [para. 7].

Counsel:

Jared D. Epp, for the applicant;

Paul J. Harasen, for the respondent.

This application was heard before Allbright, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following fiat on February 11, 2015.

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