Totem Electric Ltd. v. Humford Developments Ltd. et al., (1986) 68 A.R. 217 (QBM)

• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: February 06, 1986
• Citations: (1986), 68 A.R. 217 (QBM)

Totem Electric Ltd. v. Humford Dev. (1986), 68 A.R. 217 (QBM)

MLB headnote and full text

Totem Electric Ltd. v. Humford Developments Ltd., J.D. Bond Construction Group Ltd., Procreate Concrete Const. Inc. and Castle Interiors Ltd.

(Action No. 8403 08556)

Indexed As: Totem Electric Ltd. v. Humford Developments Ltd. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Funduk, Master in Chambers

February 6, 1986.

Summary:

Two lien claimants made a pre-trial application under s. 39 of the Builders' Lien Act to determine whether another lien claimant's lien was registered within the 35 day limitation period.

A Master of the Alberta Court of Queen's Bench held that the lien was not filed in time and was therefore invalid.

Mechanics' Liens - Topic 5021

Obtaining a lien - Registration or filing of claim for lien - Time for filing - Subcontractor - A Master of the Alberta Court of Queen's Bench held that the 35 day period for a subcontractor to file its lien began to run when the subcontract was substantially performed within the meaning of s. 2(1) of the Builders' Lien Act - The Master held that substantial performance occurred when the work or a substantial part of it was ready for use and when 97% of the contract cost was surpassed - A subcontractor filed a lien more than 35 days after the 97% cost was surpassed and after the owner accepted the building and turned it over to the tenant - The Master held that a substantial part of the work was ready for use, therefore the subcontract was substantially performed and the lien was invalid for being filed out of time.

Cases Noticed:

Lockerbie and Hole Company v. V.K. Mason Construction, [1984] 5 W.W.R. 376; 55 A.R. 211 (Alta. Q.B.), not folld. [para. 26].

Glenway Supply (Alta) Ltd. v. Knobloch, [1972] 6 W.W.R. 513 (Alta. C.A.), refd to. [para. 28].

Lambton v. Canadian Comstock Co. Ltd., [1960] S.C.R. 86, consd. [para. 32].

Wagg v. Boudeau Sheet Metal Works, 21 D.L.R.(2d) 80 (N.B.C.A.), refd to. [para. 40].

Union Electric Supply Co. v. Joice-Sweanor Electric, 7 O.R.(2d) 227 (C.A.), refd to. [para. 53].

Winnicky v. Grande Prairie and District Savings and Credit Union, [1976] 1 W.W.R. 80 (Alta. S.C.), refd to. [para. 69].

Statutes Noticed:

Builders' Lien Act, R.S.A. 1980, c. B-12, sect. 1(a), sect. 2(1), sect. 39.

Authors and Works Noticed:

Macklem and Bristow, Mechanics' Liens in Canada (4th Ed.), pp. 189-190, 194-195 [para. 37].

Counsel:

H.K. Gaffney (Braul, Gaffney & Co.), for the plaintiff;

H. Reich, for the lien claimant, Nu-Way Plumbing, Heating and Sprinkler Ltd.;

P.E. Ettinger (Ackroyd Piasta), for the lien claimant, Procreate Concrete Construction.

This application was heard before Funduk, Master in Chambers, of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on February 6, 1986.