We have previously provided you with reports of our successful argument that section 24 of the Builders Lien Act, S.B.C. 1997, c. 45 (the “Lien Act”) authorizes the court to cancel a certificate of pending litigation as consequential relief of cancelling a claim of lien. You can find our past articles on 4HD Construction Ltd. v. Dawson Wallace Construction Ltd., 2020 BCSC 1224 here.

Recently, the B.C. Supreme Court confirmed the findings of the prior decision in the decision of BSSD Excavating & Landscaping Ltd. v. Green Blvd. Construction Ltd. 2023 BCSC 1685. The dispute in this recent decision arose in connection with a residential construction project that was being developed by the Defendant Green Blvd. Construction Ltd. (“Green Blvd.”) over two lots located in Coquitlam. The plaintiff, BSSD Excavating & Landscaping Ltd. (“BSSD”) entered into a contract with Green Blvd. for various lot digging, extraction, soil and dirt removal, road cleaning, backfill and drain installation over the two lots (the “Excavation Work”). The agreed on price for the Excavation Work was $32,000 plus GST.

BSSD began the Excavation Work in November 2022. After this time, disputes arose between the parties. Green Blvd. raised concerns with deficiencies in the Excavation Work performed by BSSD, and BSSD, in turn, demanded increased payment from Green Blvd. for the Excavation Work performed. Ultimately, Green Blvd. terminated BSSD’s contract, prior to BSSD completing the Excavation Work.

On or about April 5, 2023, BSSD registered two builders liens in the amounts of $62,417.25 plus $61,934.25 on the project lots in connection with the Excavation Work (the “Liens”). On or about May 10, 2023, BSSD commenced an action to enforce the Liens as required by the Lien Act and subsequently registered certificates of pending litigation (“CPLs”) against the two lots.

In response, Green Blvd. brought an application to cancel the Liens and discharge the certificates of pending litigation. Green Blvd. relied on sections 25(2)(b) and 24(1) of the Lien Act and sections 256 and 257 of the Land Title Act, R.S.B.C. 1996, c. 250 (the “Land Title Act”). Section 256 and 257 of the Land Title Act provide mechanisms for owners to seek cancellation of certificates of pending litigation registered to their property where, among other things, the certificate of pending litigation is causing hardship and inconvenience, or where the owner posts security.

Section 25(2)(b) of the Lien Act gives an owner the ability to apply to court to have a claim of lien cancelled from title to land if the court is satisfied that the claim of lien is vexatious, frivolous or an abuse of process. This section requires that the claim of lien be clearly vexatious, frivolous or an abuse of process, as the court is significantly restricted in the evidence that it can consider on such application. Section 24(1) of the Lien Act provides that an owner (or contractor) may seek the cancellation of a lien claim from title to land on giving sufficient security for the lien claim.

In this case, the Court found that, as it could not consider evidence on a section 25 application, the more appropriate section to consider in connection with the discharge of the Liens was section 24(1).  Specifically, the Court ordered that the Liens be cancelled on Green Blvd. posting $32,000.00 in security. The Court relied on 4HD Construction Ltd. v. Dawson Wallace Construction Ltd., 2003 BCSC 1685 to find that, on cancelling the Liens pursuant to section 24(1), it also had the authority to cancel the CPLs.

The Court also found that, as the reason that Green Blvd.’s application to discharge the CPLs was linked to the Liens, it was inappropriate for it to apply the provisions of the Land Title Act when the relief being sought was available in the Lien Act.

Takeaways

This case builds on the reasoning from the decision in 4HD Construction Ltd. v. Dawson Wallace Construction Ltd., 2003 BCSC 1685, that confirms the Lien Act is a cohesive piece of legislation that grants the court the authority to order the cancellation of a certificate of pending litigation filed to perfect a claim of lien where it also orders that a claim of lien be cancelled.

Owner’s seeking to cancel a claim of builders lien from title to their property and to cancel any related certificate of pending litigation should be aware that the Lien Act gives the court the authority to make an order cancelling both a claim of builders lien and certificate of pending litigation and that the Lien Act provides the mechanism for the owner to obtain both the cancellation of a claim of builders lien and related certificate of pending litigation (provided all other elements of the lien cancellation are established).