Canada Case Law

Zheng v. Kao

Court

Supreme Court of British Columbia

The application was dismissed because the roughly three‑year pause could not be characterized as inordinate or inexcusable in the factual matrix where both sides had taken no steps, and the defendants offered some explanation (counsel error and medical issues) and had documentary evidence; dismissal would be unfair where the plaintiffs likewise failed to progress their claim and statutory remedies exist to remove liens/CPLs from title without dismissing the counterclaim.

Source excerpt

• Dismissal for want of prosecution
• Builders lien
• Certificate of pending litigation
• Delay
• Costs

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1866noentry.com Systems Ltd. v. Surrey (City)

Court

Supreme Court of British Columbia

The Court concluded the BCSC Action, insofar as it sought monetary relief duplicative of the Small Claims claim and beyond the cap which Intercon had expressly abandoned, constituted an abuse of process and must be struck; however Shimco lien claims against the statutory holdback are fora-specific to the Supreme Court and therefore may proceed but should be stayed pending resolution of the Small Claims Action; the registered builder's lien is extinguished for failure to commence Supreme Court proceedings within the one-year BLA deadline and the lien bond may be released to Graham.

Source excerpt

• Builders lien
• Shimco lien
• Abuse of process
• Stay
• Statutory limitation
• Small claims jurisdiction

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Chung v. Klein Homes Ltd. 0717233

Court

Supreme Court of British Columbia

The appeal is dismissed because the trial judge did not commit palpable or overriding errors: he acted within the broad discretion afforded by the Small Claims Act and Rules in admitting and weighing disclosure, permissibly allowed a mid-trial correction to the counterclaim, correctly interpreted the contract and Builder's Lien provisions to treat payment as due on occupancy/substantial completion, and correctly concluded the appellants repudiated the contract by occupying without paying final sums, leaving the trial judgment and resultant set-off intact.

Source excerpt

• Repudiation
• Substantial completion
• Interim occupancy
• Late disclosure
• Amendment of pleadings
• Damages

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Lonsdale Quay Market Corporation v. Klondike Contracting Corporation

Court

British Columbia Court of Appeal

The Court of Appeal mostly upheld a Builders Lien Act discharge order, rejected a new lien-holder argument, and dismissed the cross-appeal, correcting only an omitted term.

• Builders lien
• Statutory holdback
• Payment into court
• Notice of lien
• S.34(3) interpretation
• S.23 discharge order

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Mainland Civil Site Services Inc. v. Anthem Coyote Creek One Holdings Limited Partnership

Court

Supreme Court of British Columbia

The court cancelled a builders lien as out of time and, alternatively, for not relating to the land it was filed against. The remaining A1H lien stayed secured.

• Builders lien
• Lien cancellation
• Statutory limitation (45 day filing)
• Substantial completion
• Wrongful filing
• Lien bond release

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Mazzei Electric Ltd. v. Aragon (English Inn) Development Corp.

Court

Supreme Court of British Columbia

The court refused to cancel a builders lien, but reduced discharge security to the holdback amount after finding the lien was inflated by unsupported delay claims.

• Builders lien
• Security for lien
• Abuse of process
• Delay damages
• Holdback
• Builders-lien

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Cornerstone Design Solutions Ltd. v. Ayyash

Court

Supreme Court of Nova Scotia

The motion for partial summary judgment on evidence was dismissed because there are genuine issues of material fact that must be resolved at trial concerning formation and certainty of the APS, agency (Said's authority), whether either party breached the APS (including tendering monies or deed), and whether time was of the essence; these factual disputes preclude summary disposition of the claim for specific performance and discharge of the lis pendens.

Source excerpt

• Specific performance
• Summary judgment on the evidence
• Builders lien
• Lis pendens
• Agency
• Time is of the essence

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Hi-Tide Shoring & Foundations (2012) Ltd. v. Chandos Construction Ltd.

Court

Supreme Court of British Columbia

The court held that Hi-Tide’s premature builders lien summary trial application warranted costs to Chandos in any event of the cause, with costs of the costs submissions included.

• Builders lien
• Summary trial
• Prematurity
• Holdback
• Costs in the cause
• Builders-lien

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Diamant Cleaning Vancouver Inc. v. Kindred Construction Ltd.

Court

Supreme Court of British Columbia

The court held a settlement release binding on the plaintiff and dismissed the claim against Kindred, but allowed the claim against former counsel to proceed with cross-examination.

• Builders lien
• Release and settlement
• Ostensible authority
• Security for costs
• Special costs
• Summary trial

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1153765 B.C. Ltd. v. Dann

Court

Supreme Court of British Columbia

The court cancelled a CPL and struck constructive trust allegations, finding the pleadings did not disclose a sufficient interest in land under s. 215 of the Land Title Act.

• Certificate of pending litigation
• Constructive trust
• Unjust enrichment
• Builders lien
• Striking pleadings under rule 9-5
• Land title act s.215

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