RGR Enterprises Ltd. v. Allsteel Builders (2) Ltd. et al., 2015 SKCA 33

• Judge: Jackson, Ottenbreit and Caldwell, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 23, 2014
• Jurisdiction: Saskatchewan
• Citations: 2015 SKCA 33;(2015), 457 Sask.R. 131 (CA)

RGR Ent. Ltd. v. Allsteel Builders (2015), 457 Sask.R. 131 (CA);

    632 W.A.C. 131

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. AP.022

Axcess Capital Partners Inc. (appellant) v. Allsteel Builders (2) Limited, Feldspar Excavating & Redi Mix, Signs 'n More Ltd., Hardes Fencing Ltd., Harris Electric, Webb Surveys, Nodgram Holdings Ltd. (Quick Pick Waste Disposal), Alpine Drywall and Plastering (Lloydminster) Ltd., Summer Capital Inc., Ian Williamson, and Erna Harder (respondents)

(CACV2295; 2015 SKCA 33)

Indexed As: RGR Enterprises Ltd. v. Allsteel Builders (2) Ltd. et al.

Saskatchewan Court of Appeal

Jackson, Ottenbreit and Caldwell, JJ.A.

April 9, 2015.

Summary:

RGR Enterprises Ltd. was foreclosing on two mortgages it held over property subject to subsequently registered builders' liens. The lien registrants, as defendants in RGR's foreclosure action, disputed the extent to which RGR's mortgage advances were secured by its mortgages and its claimed priority over their builders' liens. They sought judicial sale of the property to realize on their liens. RGR applied to have various lien registrations discharged on the basis that the registrants failed to either commence their own actions or to become parties to existing lien actions within the two-year limitation period required by s. 55 of the Builders' Lien Act. In response, the builders' lien claimant "Alpine Drywall" applied to add various lien claimants as parties to its existing builders' lien action. Alpine Drywall failed to set its action down for trial within two years, and requested leave extending the time.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2012), 400 Sask.R. 150, dismissed RGR's application; granted leave to Alpine Drywall to add parties (Feldspar Excavating and Harris Electric) to its action; and extended the time for Alpine Drywall to set its action down for trial. RGR (now Axcess Capital Partners Inc.) appealed.

The Saskatchewan Court of Appeal dismissed the appeal. (1) The Chambers judge did not err either as a matter of law or discretion by adding Feldspar and Harris to the action begun by Alpine Drywall; and (2) "s. 55(2) of the Builders' Lien Act must be interpreted as permitting an application to be made after, as well as before, the two-year period expires." The Chambers judge did not err by exercising his discretion to grant Alpine Drywall time to set its action down for trial.

Limitation of Actions - Topic 8

General principles - Interpretation of limitation provisions - [See first and third Mechanics' Liens - Topic 5540 ].

Limitation of Actions - Topic 9603

Enlargement of time period - General - Power to grant - [See all Mechanics' Liens - Topic 5540 ].

Mechanics' Liens - Topic 3

General principles and definitions - General principles - Purpose of mechanics' lien legislation - [See third Mechanics' Liens - Topic 5540 ].

Mechanics' Liens - Topic 5532

Obtaining a lien - Commencement of action - Time for - Extension of - [See third Mechanics' Liens - Topic 5540 ].

Mechanics' Liens - Topic 5540

Obtaining a lien - Commencement of action - Preservation of lien by action commenced by another lien claimant - Section 20 of the Limitations Act permitted the Court to add parties to existing actions in certain circumstances - The Chambers judge concluded that s. 20, read in light of the Builders' Lien Act, empowered a judge of the Court of Queen's Bench to add a lien claimant even if the claimant's own two-year period to commence proceedings had expired - In the result, he added lien claimants Feldspar Excavating and Harris Electric to Alpine Drywall's existing action against RGR - On the appeal, RGR asserted that s. 20 did not apply because the claims of Feldspar Excavating and Harris Electric did not arise out of the "same transaction or occurrence" as Alpine Drywall's claim - The Saskatchewan Court of Appeal, on that point, adopted the reasons of the Chambers judge, and stated that "[i]n short, s. 20 must be read in light of the Builders' Lien Act. ... If the Limitations Act does not apply, s. 88(4) of the Builders' Lien Act can stand alone. ... '88(4) Any person may, at any stage of the proceedings , be joined as a party on his own application or on the application of any party, which may be made ex parte or on such notice as the court may direct.' ... These words are unambiguous: they confer a discretionary power on the Court of Queen's Bench to add a party at any stage of the proceedings." - See paragraphs 34 to 36.

Mechanics' Liens - Topic 5540

Obtaining a lien - Commencement of action - Preservation of lien by action commenced by another lien claimant - RGR applied to have various lien registrations discharged on the basis that the registrants failed to either commence their own actions or to become parties to existing lien actions within the two-year limitation period required by s. 55 of the Builders' Lien Act - The question in this appeal was whether the Limitations Act prevented the lien claimants Feldspar Excavating and Harris Electric from being added to Alpine Drywall's existing action against RGR - It was common ground that Alpine Drywall was required to do so when it commenced its action - The Saskatchewan Court of Appeal held that the Chambers judge did not err by exercising his discretion to add the lien claimants - Feldspar Excavating and Harris Electric were named in both foreclosure actions - They were at the negotiating table with the appellant and with the previous owner - They were parties in every sense of the word except being named in Alpine Drywall's statement of claim - "The Court could not have made an order in the foreclosure action without allowing or denying their claims in whole or in part. It would be a criticism of the system of civil dispute resolution if registered lien claimants, who were proceeding to resolve their dispute in the context of a foreclosure application, could be deprived of their claims on the basis that they had not been named as a party in a corresponding action-when they should have been so named." - See paragraphs 37 and 38.

Mechanics' Liens - Topic 5540

Obtaining a lien - Commencement of action - Preservation of lien by action commenced by another lien claimant - The Saskatchewan Court of Appeal addressed "what appears to be a conflict in the jurisprudence in this province ... . The conflict is apparent by juxtaposing s. 45 of the Interpretation Act [extension of time] with s. 55 of the Builders' Lien Act [lien expires unless action set down for trial] ... Given that the Legislature has conferred a power on the Court of Queen's Bench to extend the two-year time period in s. 55(2), the issue is whether an application to extend the time may be made after the two-year period has expired or must the application be made before, in light of s. 55(3) of the Builders' Lien Act. ... Having regard for (i) the principles of statutory interpretation, (ii) the purpose of the legislation, and (iii) the words of s. 55(2) of the Builders' Lien Act considered in the context of the whole of the statute, I have concluded that s. 45 of the Interpretation Act applies to s. 55(2). Any ambiguity created by ss. 55(3) and 87 must be resolved in favour of conferring discretion on the Court of Queen's Bench." - See paragraphs 39 to 52.

Mechanics' Liens - Topic 6983

Loss or discharge of lien - Loss by operation of statute - Expiration of time period - [See third Mechanics' Liens - Topic 5540 ].

Mechanics' Liens - Topic 8007

Practice - General - Setting case down for trial - [See third Mechanics' Liens - Topic 5540 ].

Mechanics' Liens - Topic 8123

Practice - Parties - Adding plaintiffs - [See first and second Mechanics' Liens - Topic 5540 ].

Statutes - Topic 2601

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - General principles - [See third Mechanics' Liens - Topic 5540 ].

Cases Noticed:

101050094 Saskatchewan Ltd. v. Terramax Sitework Ltd. et al. (2007), 304 Sask.R. 179; 413 W.A.C. 179; 2007 SKCA 123, refd to. [para. 23].

Syed v. 612565 Saskatchewan Ltd. (2009), 335 Sask.R. 65; 2009 SKQB 141, refd to. [para. 29].

West Dee Construction Ltd. v. T & B Electric Ltd. (2013), 425 Sask.R. 87; 2013 SKQB 260, refd to. [para. 29].

Howden (Roy) Construction Ltd. v. Dewitt et al. (1993), 114 Sask.R. 263 (Q.B.), refd to. [para. 41].

Weinrich v. Bouskill et al. (1996), 140 Sask.R. 203 (Q.B.), refd to. [para. 43].

Woodland Home & Building Products Ltd. v. Chessall et al. (2009), 339 Sask.R. 310; 2009 SKQB 221, refd to. [para. 45].

Prairie Panels Ltd. v. McCaw et al. (2010), 372 Sask.R. 17; 2010 SKQB 450, refd to. [para. 45].

Artistic Masonry & Stucco Ltd. v. Whitley (2013), 411 Sask.R. 222; 2013 SKQB 11, refd to. [para. 45].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 54].

Hansen et al. v. Canadian National Railway Co. et al. (1983), 22 Sask.R. 126 (C.A.), refd to. [para. 58].

Town-N-Country Plumbing & Heating (1985) Ltd. et al. v. Schmidt et al. (1991), 93 Sask.R. 278; 4 W.A.C. 278 (C.A.), refd to. [para. 59].

BWV Investments Ltd. v. Saskferco Products Inc. et al. (1994), 125 Sask.R. 286; 81 W.A.C. 286 (C.A.), refd to. [para. 60].

Defazio Bulldozing and Backhoe Ltd. v. Stephenson (W.A.) Construction (Western) Ltd. (1986), 28 D.L.R.(4th) 291 (B.C.C.A.), refd to. [para. 60].

D & K Horizontal Drilling (1998) Ltd. (Bankrupt) v. Alliance Pipeline Ltd. et al. (2002), 227 Sask.R. 250; 287 W.A.C. 250; 2002 SKCA 145, refd to. [para. 60].

Statutes Noticed:

Builders' Lien Act, S.S. 1984-85-86, c. B-7.1, sect. 55 [paras. 11, 40, 61]; sect. 60 [para. 9]; sect. 87 [para. 49]; sect. 88(2)(d) [para. 5]; sect. 88(4) [paras. 10, 35].

Interpretation Act, S.S. 1995, c. I-11.2, sect. 3(1) [para. 46]; sect. 45 [para. 40].

Limitations Act, S.S. 2004, c. L-16.1, sect. 2(a), sect. 3(1), sect. 3(4), sect. 5 [para. 9]; sect. 20 [para. 15]; sect. 23 [para. 9].

Authors and Works Noticed:

Gough, W. Brent, and Hirschfeld, Collin K., Saskatchewan Builders' Lien Manual (2nd Ed. 2014), p. 100 [para. 31].

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), p. i-ii [para. 57].

Sullivan, Ruth, Sullivan on the Construction of Statutes (6th Ed. 2014), p. 7, para. 2.1 [para. 53]; p. 7, para. 2.2 [para. 55]; p. 8, para. 2.5 [para. 56]; p. 10, para. 2.8 [para. 56]; p. 10, para. 2.9 [para. 72].

Counsel:

Collin K. Hirschfeld, for the appellant;

Michael S.J. Hall, for the respondents.

This appeal was heard on September 23, 2014, before Jackson, Ottenbreit and Caldwell, JJ.A., of the Saskatchewan Court of Appeal. In reasons written by Jackson, J.A., the Court delivered the following judgment, dated April 9, 2015.