Woodbend Holdings Ltd. v. Home Hardware Stores Ltd., (2009) 478 A.R. 162 (QB)

• Judge: Bielby, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 19, 2009
• Citations: (2009), 478 A.R. 162 (QB);2009 ABQB 432

Woodbend Holdings v. Home Hardware (2009), 478 A.R. 162 (QB)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JL.070

In The Matter Of the Builders' Lien Act, being Chapter B-7, R.S.A. 2000, and amendments thereto;

And In The Matter Of a certain lien filed by Woodbend Holdings Ltd., against property legally described as: Plan 0625725, Block 8, Lot 31, exempting thereout all mines and minerals.

Woodbend Holdings Ltd. (appellant) v. Home Hardware Stores Limited (respondent)

(0903 04997; 2009 ABQB 432)

Indexed As: Woodbend Holdings Ltd. v. Home Hardware Stores Ltd.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Bielby, J.

July 17, 2009.

Summary:

Woodbend Holdings Ltd. filed a builder's lien on land owned by Home Hardware Stores Ltd., protecting a claim of $450,000 for work done and materials supplied to the site of a new store. Home Hardware applied to discharge the lien. Woodbend did not appear at the hearing. A Master in Chambers allowed the application. Woodbend appealed.

The Alberta Court of Queen's Bench allowed the appeal on the basis that service of the application to discharge on Woodbend had been ineffective. The lien was restored and the matter was remitted to the Master for argument on the merits.

Courts - Topic 1127

Masters - Appeals from - Standard of review - Woodbend Holdings Ltd. filed a builder's lien on land owned by Home Hardware Stores Ltd., protecting a claim of $450,000 for work done and materials supplied to the site of a new store - Home Hardware applied to discharge the lien - Woodbend did not appear at the hearing - A Master in Chambers allowed the application - Woodbend appealed - The Alberta Court of Queen's Bench held that the standard of review of the decision, dismissing the claim in its entirety, was correctness - The appeal was a de novo hearing on which fresh evidence could be received and considered - See paragraph 12.

Courts - Topic 8442

Provincial courts - Alberta - Masters - Appeals from - [See Courts - Topic 1127 and Practice - Topic 9002 ].

Mechanics' Liens - Topic 5056

Obtaining a lien - Vacating registered lien - Burden of proof - On January 23, 2009, Woodbend Holdings Ltd. filed a builder's lien on land owned by Home Hardware Stores Ltd., protecting a claim of $450,000 for work done and materials supplied to the site of a new store - Home Hardware applied to discharge the lien on the basis that it had not been filed within the time limit (45 days) stipulated in s. 41 of the Builders' Lien Act - In support of the application, Home Hardware relied on an affidavit in which the affiant, a lawyer in Ontario, deposed that Woodbend "had not been on site since October 15, 2008" - Home Hardware filed an affidavit of service, stating that the application had been served on Woodbend at its registered office - Woodbend did not appear at the hearing - A Master in Chambers allowed the application, discharging the lien - The Alberta Court of Queen's Bench allowed Woodbend's appeal on the basis that the service was ineffective - However, the court also indicated that the affidavit filed by Home Hardware in support of its application did not meet the requirements of rules 159 and 305 of the Alberta Rules of Court - The affiant had not stated how the information that Woodbend had not been on site since October 15, 2008, came to her attention - She indicated no first hand observations nor other identified source for the information - She had not, therefore, established that the information deposed to was "within the knowledge of the deponent" as required by rule 305(1) - Further, a landowner seeking to discharge a builder's lien bore the onus of proving that there was no genuine issue to be tried, which was the same standard of proof imposed by rule 159, requiring evidence based on personal knowledge, not mere allegation - See paragraphs 2 and 28 to 37.

Mechanics' Liens - Topic 7006

Loss or discharge of lien - Order vacating lien - Procedure - [See Mechanics' Liens - Topic 5056 , Practice - Topic 2646 and Practice - Topic 2649 ].

Practice - Topic 2643

Service - Generally - Valid service - What constitutes - On January 23, 2009, Woodbend Holdings Ltd. filed a builder's lien on land owned by Home Hardware Stores Ltd., protecting a claim of $450,000 for work done and materials supplied to the site of a new store - The address for service in the lien was the street address for Woodbend's solicitor - Home Hardware applied to discharge the lien and filed an affidavit of service, stating that the application had been served on Woodbend at its registered office (the home address of Woodbend's president, who was away until April 23, 2009) by placing the documents in registered mail on April 6, 2009 - Home Hardware also couriered the documents to Woodbend's registered office on April 14, 2009 - Woodbend did not appear at the hearing of the application on April 22, 2009 - A Master in Chambers allowed the application, discharging the lien - The service by registered mail failed - The documents were returned to Home Hardware on April 24, 2009 - The Alberta Court of Queen's Bench allowed Woodbend's appeal - The service by registered mail was not effective because, under s. 256(3) of the Business Corporations Act, Home Hardware had reasonable grounds to believe that Woodbend had not received the notice in a timely way or at all - The absence of confirmation of delivery by telephone or internet, particularly given that less than three weeks had passed between the date that the documents were mailed and the date of the hearing, created reasonable grounds for concern - Nor was the service by courier effective as it was made only eight days before the hearing - The lien was restored and the matter was remitted to the Master for argument on the merits - See paragraphs 13 to 22.

Practice - Topic 2646

Service - Generally - On solicitor of party - On January 23, 2009, Woodbend Holdings Ltd. filed a builder's lien on land owned by Home Hardware Stores Ltd., protecting a claim of $450,000 for work done and materials supplied to the site of a new store - The address for service in the lien was the street address for Woodbend's solicitor, although nothing in the lien expressly identified that the lien was filed by Woodbend's solicitors other than that the accompanying affidavit was sworn by a "student at law" - Home Hardware applied to discharge the lien and filed an affidavit of service, stating that the application had been served on Woodbend at its registered office (the home address of Woodbend's president, who was away until April 23, 2009) by placing the documents in registered mail on April 6, 2009 - Home Hardware also couriered the documents to Woodbend's registered office on April 14, 2009 - Woodbend did not appear at the hearing of the application on April 22, 2009 - A Master in Chambers allowed the application, discharging the lien - The service by registered mail failed - The documents were returned to Home Hardware on April 24, 2009 - The Alberta Court of Queen's Bench allowed Woodbend's appeal on the basis that the service was ineffective - While it was not necessary to consider Woodbend's argument that Home Hardware had breached its obligation to advise Woodbend's solicitor of the application, the court noted that s. 67 of the Builder's Lien Act did not require service on the address for service set out in the statement of lien - That was merely an option - However, independent of the issue of formal service, where a respondent was known to have counsel, that counsel should be advised of the application in advance of the application being made - Failure to do so resulted in those applications being essentially ex parte even though formal service had been made - A close reading of the lien here would have made one suspicious that a solicitor was involved - See paragraphs 23 to 27.

Practice - Topic 2649

Service - Generally - Registered post - General - The Alberta Court of Queen's Bench stated that a "landowner applying to discharge a builders' lien must prove service of the Originating Notice of Motion seeking this relief and its supporting affidavit. If service was effected by registered mail, the landowner cannot meet this service requirement by merely showing the date the documents were placed in the post; the landowner must also lead evidence to show that the documents were received by the lienholder by reference to the tracking service found on the Canada Post website or otherwise" - See paragraph 1.

Practice - Topic 2650

Service - Generally - Registered post - Effect of nondelivery - [See Practice - Topic 2643 ].

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - On January 23, 2009, Woodbend Holdings Ltd. filed a builder's lien on land owned by Home Hardware Stores Ltd., protecting a claim of $450,000 for work done and materials supplied to the site of a new store - The address for service in the lien was the street address for Woodbend's solicitor - Home Hardware applied to discharge the lien and filed an affidavit of service, stating that the application had been served on Woodbend at its registered office (the home address of Woodbend's president, who was away until April 23, 2009) by placing the documents in registered mail on April 6, 2009 - Home Hardware also couriered the documents to Woodbend's registered office on April 14, 2009 - Woodbend did not appear at the hearing of the application on April 22, 2009 - A Master in Chambers allowed the application, discharging the lien - The service by registered mail failed - The documents were returned to Home Hardware on April 24, 2009 - The Master's order was served on Woodbend on April 24, 2009 - On May 14, 2009, Woodbend filed and served a notice of motion to appeal the order - Under rule 500, the notice of motion had to be served within seven days of the Master's order being entered and served - The Alberta Court of Queen's Bench granted Woodbend an enlargement of time under rule 548 - There had been no material prejudice arising from the late service - See paragraphs 38 to 40.

Cases Noticed:

United Utility Workers Association of Canada et al. v. TransAlta Corp. et al. (2004), 354 A.R. 58; 329 W.A.C. 58; 2004 ABCA 200, refd to. [para. 12].

Willman v. Administrator, Motor Vehicle Accident Claims Act (1979), 17 A.R. 608; 107 D.L.R.(3d) 191 (C.A.), refd to. [para. 12].

Plouffe et al. v. Fountains of Mission Ltd. et al. (2006), 398 A.R. 236 2006 ABQB 321, refd to. [para. 12].

Wright v. Disposal Services Ltd. and Marsh (1977), 8 A.R. 394; 4 Alta. L.R.(2d) 173 (T.D.), refd to. [para. 12].

Aero Aviation Centre (1981) Ltd. v. 210698 Investments Ltd. (1986), 45 Alta. L.R.(2d) 17; 38 A.C.W.S.(2d) 421 (Q.B. Master), dist. [para. 19].

Gunther's Building Centre Ltd. v. Kleinschmidt (1976), 63 D.L.R.(3d) 361 (Alta. C.A.), refd to. [para. 26].

Royal Bank of Canada v. Got (W.) & Associates Electric Ltd. et al. (1994), 150 A.R. 93; 17 Alta. L.R.(3d) 23 (Q.B.), affd. (1997), 196 A.R. 241; 141 W.A.C. 241; 47 C.B.R.(3d) 1 (C.A.), affd. [1999] 3 S.C.R. 408; 247 N.R. 1; 250 A.R. 1; 213 W.A.C. 1; 178 D.L.R.(4th) 385, refd to. [para. 26].

M.A.B., Re (1992), 126 A.R. 276; 31 A.C.W.S.(3d) 435 (Prov. Ct.), refd to. [para. 26].

Vinterra Properties Inc. v. Calabria Interiors Ltd. (2005), 377 A.R. 60; 2005 ABQB 130, refd to. [para. 32].

925512 Alberta Ltd. et al. v. Tri-Force (Alberta) Construction Ltd. et al., [2006] A.R. Uned. 305; 63 Alta. L.R.(4th) 219; 2006 ABQB 413, refd to. [para. 32].

Rahco International Inc. v. Laird Electric Ltd. (2006), 398 A.R. 332; 2006 ABQB 592 (Master), refd to. [para. 33].

Lansdowne Equity Ventures Ltd. v. Alsa Road Construction Ltd., [2009] A.R. Uned. 333; 2009 ABQB 273 (Master), refd to. [para. 34].

Robinson Engineering Co. et al. v. Wasabi Resources Ltd. et al. (1988), 93 A.R. 321; 32 C.L.R. 243 (Q.B.), refd to. [para. 39].

Counsel:

Jose A. Delgado (Bishop & McKenzie LLP), for the appellant;

Joseph J. Kueber (Bryan & Company LLP), for the respondent.

This appeal was heard on May 19, 2009, by Bielby, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on July 17, 2009.