Canada Hanjiang Construction Ltd. v. Lee's Noodle House Ltd.

2021 BCSC 219 Canada Hanjiang Construction Ltd. v. Lee's Noodle House Ltd.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Canada Hanjiang Construction Ltd. v. Lee's Noodle House Ltd., 2021 BCSC 219 Date: 20210211 Docket: S201727 Registry: Victoria Between: Canada Hanjiang Construction Ltd. Respondent/Plaintiff And Lee's Noodle House Ltd. 1110837 B.C. Ltd., Angela Lee and Shu-Mei Liu Appellant/Defendant Before: The Honourable Mr. Justice Steeves On appeal from: An order of the Master of the Supreme Court of British Columbia, dated October 8, 2020 (Canada Hanjiang Construction Ltd. v. Lee's Noodle House Ltd., 2020 BCSC 1598, S201727) Reasons for Judgment Counsel for the Appellant/Defendant: W. C. Vaughan Counsel for Respondent/Plaintiff: R. T. Vangenne Place and Date Hearing: Victoria, B.C. December 10, 2020 Place and Date of Judgment: Victoria, B.C. February 11, 2021 A. INTRODUCTION [1] This is an appeal of a Master's decision dated October 8, 2020. It is about the registration of a certificate of pending litigation ("CPL") under the Builders Lien Act, S.B.C. 1997, c. 45 ("BLA") by the respondent/plaintiff against land owned by the appellant/defendant. [2] The respondent/plaintiff's builder's lien was filed on May 7, 2019. The appellant/defendant says that the CPL had to be filed by May 7, 2020 because s. 33 of the BLA requires that the respondent/plaintiff register a CPL within one year of filing the lien. The respondent/plaintiff says it was

required to be filed on May 27, 2020 and it was filed on May 25, 2020. The British Columbia Land Title and Survey Authority ("LTSA") would not accept the filing on that date because of the running of the limitation period. However, it reconsidered and the CPL was registered on June 3, 2020. [3] The difference between the parties arises from different interpretations of provincial orders that suspended limitation periods during the state of emergency caused by the COVID-19 pandemic. [4] The appellant/defendant claimed before the Master that the filing of the CPL was late but the Master dismissed that claim. It now appeals that dismissal. B. BACKGROUND [5] The respondent/plaintiff was working on the appellant/defendant's property. On May 7, 2019, the respondent/plaintiff filed a claim of builders' lien against the property under charge CA7489013. [6] The usual time of one year for filing a CPL was in place pursuant to s. 33 of the BLA. Applying that provision the limitation period expired on May 7, 2020. The relevant parts of s. 33 are: Limitation and notice to commence an action 33 (1) If a claim of lien has been filed, an action to enforce the claim of lien must be commenced and, unless the claim of lien has been removed or cancelled under section 23 or 24, a certificate of pending litigation in respect of the action must be registered, not later than one year from the date of

its filing, in the land title office or gold commissioner's office in which the claim has been filed. [Emphasis added.] [7] In February or March 2020 a pandemic was declared by the Government of British Columbia with respect to COVID-19. On March 18, 2020 a state of emergency under the Emergency Program Act, R.S.B.C. 1996, c. 111 was also declared by the Government of British Columbia. The Supreme Court of British Columbia closed its operations except for urgent matters, among other closures in the province. [8] On March 26, 2020 the provincial Minister of Public Safety and Solicitor General issued Ministerial Order M086 ("MO86") under the declared state of emergency arising from the pandemic. It included a "Limitation Periods (COVID-19) Order." I reproduce MO86 and the Limitation Periods (COVID-19) Order as follows: Ministerial Order No. M086 WHEREAS a declaration of a state of emergency throughout the whole of the Province of British Columbia was declared on March 18,2020 because of the COVID-19 pandemic; AND WHEREAS section 10 (1) of the Emergency Program Act provides that I may do all acts and implement all procedures that I consider necessary to prevent, respond to or alleviate the effects of any emergency or disaster; AND WHEREAS, as a result of the pandemic and necessary public health measures to be taken in response to it, it may not be possible for a person involved in

legal or administrative proceedings to take steps required by legislation; AND WHEREAS I have considered the problems that delay of proceedings may cause to persons seeking to enforce their legal rights and I have determined that this order is a necessary and proportionate response to the state of emergency; I HEREBY order that the attached Limitation Periods (COVID-19) Order is made. March 26, 2020 [Signature] Date Minister of Public Safety and Solicitor General (This part is for administrative purposes only and is not part of the Order.) Authority under which Order is made: Act and section: Emergency Program Act, R.S.B.C. 1996, c. 111, s. 10 Other: MO 73/2020 LIMITATION PERIODS (COVID-19) ORDER Application 1. This order applies during the period that starts on the date this order is made and ends on the date on which the declaration of a state of emergency made March 18, 2020 under section 9 (1) of the Emergency Program Act expires or is cancelled, or if there is an extension under section 9 (4) of the Emergency Program Act, the date on which the last extension of that declaration expires or is cancelled. Limitation periods in court proceedings 2. Every mandatory limitation period and any other mandatory time period that is established in an enactment or law of British Columbia within which a civil or family action, proceeding, claim or appeal must be commenced in the

Provincial Court, Supreme Court or Court of Appeal is suspended. Statutory decisions 3. A person, tribunal or other body that has a statutory power of decision may waive, suspend or extend a mandatory time period relating to the exercise of that power. [9] On April 8, 2020 the Minister issued Ministerial Order M098 ("MO98"). I reproduce that order as follows: Ministerial Order No. M098 WHEREAS a declaration of a state of emergency throughout the whole of the Province of British Columbia was declared on March 18, 2020 because of the COVID-19 pandemic; AND WHEREAS section 10 (1) of the Emergency Program Act provides that I may do all acts and implement all procedures that I consider necessary to prevent, respond to or alleviate the effects of any emergency or disaster; AND WHEREAS, as a result of the pandemic and necessary public health measures to be taken in response to it, it may not be possible for a person involved in legal or administrative proceedings to take steps required by legislation; AND WHEREAS I have considered the problems that delay of proceedings may cause to persons seeking to enforce their legal rights and I have determined that this order is a necessary and proportionate response to the state of emergency; I, Mike Farnworth, Minister of Public Safety and Solicitor General, order that, effective April 15, 2020, (a) the Limitation Periods (COVID-19) Order made

by MO 86/2020 is repealed, and (b) the attached Limitation Periods (COVID-19) Order No. 2 is made. April 08, 2020 [Signature] Date Minister of Public Safety and Solicitor General (This part is for administrative purposes only and is not part of the Order.) Authority under which Order is made: Act and section: Emergency Program Act, R.S.B.C. 1996, c. 1996, c. III, s. 10 Other: MO 73/2020; MO 86/2020; OIC 155/2020 LIMITATION PERIODS (COVID-19) ORDER No. 2 Application 1 (1) This order applies during the period that starts on the date this order is made and ends on the date on which the last extension of the declaration of a state of emergency made March 18,2020 under section 9 (1) of the Emergency Program Act expires or is cancelled. (2) This order replaces the Limitation Periods (COVID-19) Order made by MO 86/2020. Limitation periods in court proceedings 2 (1) Subject to subsection (2), every mandatory limitation period and any other mandatory time period that is established in an enactment or law of British Columbia within which a civil or family action, proceeding, claim or appeal must be commenced in the Provincial Court, Supreme Court or Court of Appeal is suspended. (2) Subsection (1) does not apply to a mandatory limitation period and any other mandatory time period established under the following enactments: (a) the Builders Lien Act; (b) Division 5 [Builders Liens and

Other Charges] of Part 5 [Property] of the Strata Property Act. Statutory decisions 3 A person, tribunal or other body that has a statutory power of decision may waive, suspend or extend a mandatory time period relating to the exercise of that power. [10] On May 19, 2020 the respondent/plaintiff commenced this action. [11] On May 25, 2020 the respondent/plaintiff filed a CPL against the property of the appellant/defendant. The LTSA declined to accept the CPL, then reconsidered its decision and accepted the CPL as registered on June 3, 2020. [12] The appellant/defendant challenged the acceptance of the CPL in an application filed September 17, 2020. On October 8, 2020 the application was dismissed by a Master (Canada Hanjiang Construction Ltd. v. Lee's Noodle House Ltd., 2020 BCSC 1598). She concluded that the effect of MO86 was to extend the limitation period applicable to the respondent/plaintiff by 20 days (at para. 8). And she disagreed with the appellant/defendant that MO98 eliminated this extension (at paras. 11-12). [13] The appellant/defendant now appeals the Master's decision. C. ANALYSIS [14] As can be seen above, the appellant/defendant says that the respondent/plaintiff was to file its CPL on or before May 7, 2020. That would comply with the one year limitation period in the BLA and reflect the view that MO98 repealed the relief given in MO86. On the other hand, the

respondent/plaintiff says that, applying MO86 and MO98, it had until May 27, 2020 to file the CPL because the Ministerial Orders suspended the running of the limitation period for 20 days. The respondent/plaintiff attempted to file the CPL on May 25, 2020 which was initially rejected, but the CPL was ultimately registered on June 3, 2020. [15] A more detailed chronology may also be useful: May 7, 2019 Builders' lien filed by respondent/plaintiff. Normally, under s. 33 of the BLA, a CPL would have to be filed by May 7, 2020. March 26, 2020 Effective date of MO86. April 15, 2020 Effective date of MO98; signed on April 8, 2020. May 7, 2020 Date that appellant/defendant says the respondent/plaintiff was to file the CPL, one year after filing the lien. May 25, 2020 Respondent/plaintiff files CPL. Declined by LTSA on May 26, 2020. May 27, 2020 Date that the respondent/plaintiff says it had to file the CPL. May 27, 2020 LTSA reconsiders and, on June 2, 2020, accepts the CPL effective this date. June 3, 2020 CPL registered by the LTSA. [16] I will proceed by a brief discussion of the standard of review and then discuss MO86 and MO98. (a) Standard of review [17] The parties differ over what is the standard of review of the Master's decision in this case. The appellant/defendant says that its appeal raises an issue of law that is vital to the final issue in this case and, therefore, the

standard is one of correctness. On the other hand, the respondent/plaintiff says the Master's decision involved mixed findings of law applied to the facts and the standard is one of reasonableness. [18] In a previous judgement Justice Horsman usefully summarized the analysis to be applied when deciding the standard of review (4HD Construction Ltd. v. Dawson Wallace Construction Ltd., 2020 BCSC 1224): [19] The review of an interlocutory decision of a master is a true appeal and appellate interference is warranted only if the master is "clearly wrong". However, a master's decision on a question of law, a final order, or a ruling that raises questions vital to the final issue in the case will be reviewed by way of rehearing on the merits based on the record that was before the master. The question in the latter category of cases is whether the master was correct, not whether she was clearly wrong. See: Canadian Western Bank v. 353806 B.C. Ltd., 2017 BCSC 1072 at para. 11; Abermin Corp. v. Granges Exploration Ltd. (1990), 45 B.C.L.R. (2d) 188 (S.C.). [19] As will be seen below, I will assume that the standard of review is correctness. (b) The two Ministerial orders [20] MO86 was effective on March 26, 2020 and applied to all limitation periods, including the one under the BLA. MO98 was signed on April 8, 2020 and it was effective April 15, 2020. [21] The appellant/defendant seems

to accept that MO86 suspended limitation periods generally, including under the BLA. However, it is submitted that the effect of MO98 was to expressly exclude the suspension set out in MO86 regarding the BLA. On this view, the statutory limitation period under the BLA was suspended under MO86 but reinstated under MO98. Therefore, according to the appellant/defendant, the one year limitation period under s. 33 of the BLA continued and the respondent/plaintiff was required to file its CPL by May 7, 2020. Conversely, the respondent/plaintiff contends that while MO98 repealed MO86 with respect to matters concerning liens under the BLA, the repeal of MO86 did not have a retroactive effect. [22] The appellant/defendant also submits that the respondent/plaintiff was not a lien claimant affected by MO86 and MO98 because the deadline to register its CPL (May 7, 2020) did not fall between March 26 and April 15, 2020. However, according to the respondent/plaintiff, this is immaterial because while MO98 repealed MO86, it did not extinguish the 20-day suspension of the limitation period that had accrued between the two Ministerial orders. It submits that the latest date for the filing of its CPL is May 27, 2020. I accept that as a correct calculation. [23] However, I disagree with the appellant/defendant's interpretation of the two emergency orders. [24] MO86 is straightforward and not

particularly controversial. As above, Order #2, under MO86, states that "[e]very mandatory limitation period" requiring a civil or family action, proceeding or claim to be commenced on Provincial Court, Supreme Court or Court of Appeal "is suspended." Order #1 states that it applies during the "period that starts on the date this order is made." That date was March 26, 2020. It ends on the date on which the declaration of a state of emergency (made March 18, 2020) expires or is cancelled. An extension was also permitted in circumstances not applicable here. [25] Simply put, MO86 suspended all limitation periods from March 26, 2020 to the date when the state of emergency ends (as yet unknown). [26] MO98 is more complicated and is controversial. As can be seen above, it repealed MO86 and replaced it with new limitation orders. It was signed on April 8, 2020 and it was effective April 15, 2020. It ends on the same terms as MO86, the date when the state of emergency is declared expired or cancelled. [27] In my view, Order #1(1) of MO98 is significant. It states that MO98 "applies during the period that starts on the date this order is made " (emphasis added). This is an express statement that the intention of the government was that MO98 would not apply prior to April 8, 2020. In light of this language I am unable to agree with the appellant/defendant that MO98 applies

retroactively to eliminate what MO86 did. It "starts on the date" MO98 was made, presumably April 8, 2020. That is what had occurred before MO98 - i.e. MO86 was to continue until the start of MO98. It is not clear what was to happen between April 8, 2020 (when MO98 was made) and April 15, 2020 (its effective date) but that question does not affect the subject matter here. [28] It is true that the limitation period orders made under MO86 were "repealed" by MO98, effective April 15, 2020, and I accept that it was the intention of government in April 2020 to change what it did a month earlier. There was apparently a recognition that limitation periods under the BLA were to be treated differently than other limitation periods. However, I am unable to accept that the intention goes further to reverse the effects of what was done previously. In my view, if the intention of the government was to retroactively eliminate the effect of MO86 that would have been a significant event and it would have been stated in clear language. MO86 and its effects cannot be extinguished without clear language saying that. [29] The appellant/defendant raises other arguments. [30] It emphasizes that there is no scope for the exercise of discretion in these matters, including an extension of time under s. 33 of the BLA. Commencement of an action and registration of a CPL are both to be performed in the

time specified under s. 33 (Alan Jones Construction Ltd. v. Hicks, 2019 BCSC 568, at para 14). I accept that point but I also conclude that the issue here is not one of discretion; it is the interpretation and application of MO86 and MO98. I agree with the Master that Alan Jones is not applicable here (at para. 10). [31] The appellant/defendant also relies on an Order in Council made on August 4, 2020 ("OIC 453"). Among a number of other things, that Order stated: 3 Effective 90 days after the date on which the last extension of the declaration of a state of emergency made March 18, 2020 under section 9 (1) of the Emergency Program Act expires or is cancelled, item 27 in Schedule 2 is repealed. "Item 27" is COVID-19 (Limitation Periods in Court Proceedings) Regulation, B.C. Reg. 199/2020. [32] The appellant/defendant notes that this OIC expressly extends the limitation period and uses the specific period of 90 days after the last extension for the state of emergency. That level of specificity is required in the Ministerial Orders at issue in this appeal, according to the appellant/defendant. Be that as it may, the appellant/defendant does not challenge the validity of the Ministerial Orders. In addition, they are obviously drafted differently than OIC 453, but I am unable to find how the differences assist the appellant/defendant. [33] Overall, I conclude that the Master's

analysis and conclusion was correct: [11] In my view, the limitation period was extended for the 20 days as argued by the plaintiff. [12] The plaintiff agrees that the second ministerial order, M098, applies, but so does the first one, M086, and I do not think it is logical at all to interpret the second ministerial order as eliminating the 20‑day extension that operated under the first ministerial order. Otherwise, the first ministerial order would be meaningless. I do not think the second ministerial order resurrected the limitation period that was in fact suspended by the first ministerial order. C. SUMMARY & CONCLUSION [34] In the result I conclude that the limitation period applicable to the respondent/plaintiff was extended by MO86 for about 20 days (from March 26, 2020, the date of MO86, to April 15, 2020, the effective date of MO98). MO98 started on April 8, 2020, it was effective on April 15, 2020 and it did not repeal the effect of MO86. [35] The filing date for the CPL in this case was, therefore, May 27, 2020, one year and 20 days from the filing of the lien on May 7, 2019. This is not a matter of discretion but the operation of MO86 and MO98. The CPL was filed on May 25, 2020, rejected but then accepted. Counsel for the appellant/defendant says "general legal practice" is to obtain a retroactive registration date and relies on the apparent fact that it was not done

in this case. It is acknowledged this is speculation. Apparently the LTSA was not conversant with the operation of MO86 and MO98 and, in my view that should not defeat their effect. [36] The appeal of the appellant/defendant is dismissed. [37] I note that the Master did not award costs in the matter before her because of the inadequacy of the respondent/plaintiff's pleadings. That conclusion was, in my view, correct. However, I also conclude that it is not applicable to the matter before me. The appeal materials filed by the respondent/plaintiff are satisfactory. Therefore, since the respondent/plaintiff has been substantially successful, it is entitled to costs for this appeal at Scale B, payable by the appellant/defendant. J. J. Steeves, J. The Honourable Mr. Justice Steeves