Dahl v. Sanispec Hld Inc., 2011 ABQB 589

Court of Queen ’ s Bench of Alberta Citation: Dahl v. Sanispec Hld Inc., 2011 ABQB 589 Date: 20110927 Docket: 1101 06828 Registry: Calgary Between: Garth Dahl and Agnes Dahl Plaintiffs - and - Sanispec Hld Inc., Sanispec Industries Ltd., Hydronic Heating Specialty Supplies Ltd., Pawel Michalewicz, and Adrian Michalewicz Defendants _______________________________________________________ Reasons for Judgment of J.T. Prowse, Q.C.

Master in Chambers _______________________________________________________ Application to remove a builders ’ lien [ 1 ] The applicants Garth Dahl and Agnes Dahl (the “Dahls”) seek to remove a lien filed against their property by Sanispec Hld. Inc. (“Sanispec”). I assume that this application is made under

section 48 of the Builders ’ Lien Act (the “Act”), which allows owners to apply to remove a lien from the title to their land. The primary ground advanced for removal was that the lien was registered more than 45 days after Sanispec completed its last work on the land, and therefore it was out of time under

section 41 of the Act.

Onus of proof [ 2 ] The onus of proof on this type of application was summarized succinctly by Jeffrey J. in John Barlot Architect v. 413481 Alberta Ltd. , 2009 CarswellAlta 1919, 2009 ABQB 498 , 22 Alta.L.R. (5 th ) 336, 479 A.R. 1, as follows: This is the Defendant’s application, apparently under sub-section 48(1) of the [Act], and as such the Defendant bears the burden of proof: Vinterra Properties Inc. v. Calabria Interiors Ltd. , 2005 ABQB 130 , 377 A.R. 60 (Alta.Q.B.).

Given that success on the application will have the effect of summarily dismissing the lien claim, the Defendant must demonstrate that there is no genuine issue for trial: Woodbend Holdings Ltd. v. Home Hardware Stores Ltd. , 2009 ABQB 432 (Alta.Q.B.), and Acera Developments Inc. v. Sterling Homes Ltd. , 2009 ABQB 494 (Alta. Q.B.). [ 3 ] The Dahls assert, to the contrary, that Sanispec has the onus to uphold the lien because they had served Sanispec with a Notice to Prove Lien pursuant to section 48(3) of the Act. They rely in that regard on an obiter comment contained at paragraph 36 of the Vinterra decision.

With respect, I do not agree that the onus has been reversed from that quoted in paragraph 2 above. [ 4 ] Perhaps the misunderstanding arises from the label Notice to Prove Lien, which really could have been more accurately labelled a ‘Notice to Provide Particulars of Lien’. When an application is heard under

section 48 of the Act, it is an application to remove a lien, not an application to validate a lien, even where the lienholder has been served with a Notice to Prove Lien. What the notice does accomplish, for the applicant seeking removal, is to compel the lienholder to come forward with the particulars of its lien claim, and to expose the lienholder to questioning on its affidavit providing those particulars. The notice does not accomplish a change of onus, which remains with the party seeking to have the lien removed under

section 48. Application of the onus to the facts of this case [ 5 ] The Dahl’s have not met the onus on them to show that the lien was filed out of time. There is conflicting evidence as to when Sanispec last performed work on its contract. The Dahls say that no work was done after mid-November of 2010. Sanispec provides more specific evidence to the effect that it had a four man crew attend the premises on January 4, 2011 to remove a brace and place solar tank insulation in the mechanical room of the property.

January 4, 2011 is within 45 days prior to the filing of Sanispec’s lien. [ 6 ] I find that there is a triable issue as to when Sanispec last completed work on the site. The Dahls ’ evidence with respect to the value of the work done by Sanispec [ 7 ] The Dahls also submitted evidence with respect to the value of the work done, suggesting that, given the amount paid already to Sanispec ($506,457.69) and the stage of completion of the work (28%), there was little if anything left owing to Sanispec. The evidence submitted was incomplete and disjointed.

The only conclusion that I can draw was that there is a triable issue as to the amount owing to Sanispec. Conclusion [ 8 ] I dismiss the Dahl’s application to remove Sanispec’s lien. If counsel cannot agree as to costs of this application they may seek a ruling from me in that regard.

Heard on the 08 th day of September, 2011. Dated at the City of Calgary, Alberta this 27 th day of September, 2011. J.T. Prowse, Q.C. M.C.C.Q.B.A. Appearances: Erynne Schuster Verjee & Associates for the Plaintiffs Reynaldo Lum Burstall Winger LLP for the Defendants