Reid v. Halter, 2012 ABQB 401

Court of Queen ’ s Bench of Alberta Citation: Reid v. Halter, 2012 ABQB 401 Date: 20120615 Docket: 1203 06222 Registry: Edmonton Between: Robert Reid Applicant - and - Leslie E. Halter Respondent _______________________________________________________ Memorandum of Decision of W. S. Schlosser, Master in Chambers _______________________________________________________ [ 1 ] This builders lien matter came before me in regular chambers.

The central issue is whether the Respondent ’ s lien can be summarily discharged from title. [ 2 ] In December 2010, Haltek Developments Inc. agreed to purchase a residential property from the Applicant, Robert Reid. Patricia Halter is the principal of Haltek. Leslie Halter, the Respondent, is her husband. [ 3 ] Haltek signed an Agreement for Sale and protected its interest with a Caveat. It could not perform as agreed so the parties

decided to extend the Agreement for Sale to March 1, 2012. Haltek gave the Applicant a “Quit Claim” and a Discharge of Caveat. Thesedocuments were to be used only if the purchaser did not complete by March 1, 2012. [4] The parties did not enter into a fresh written Agreement for Sale. The old one was simply extended. The Quit Claim itself issilent about the extension. [5] The purchase was not concluded by the extended date so the Quit Claim came into effect. The Applicant filed theDischarge of Caveat only to discover that Leslie Halter had filed a lien against the property. [6] The Applicant took out an Originating Application to get the lien off title pursuant to section 48(1) (

c) and, for goodmeasure, filed and served a Notice to Prove Lien under section 48(3) of the Builders Lien Act. [7] The troublesome part of this double-barrelled procedure is that under section 48(1)(c), the Applicant bears the onus ofestablishing that that lien should be removed. The onus of proving the lien under section 48(3) is on the lien holder. Vinterra Properties Inc. v. Calabria Interiors Ltd., 2005 ABQB 130 , 2005 43 Alta. L.R. (4th) 170 at para. 40, per Marceau, J. [8] In order for a lien to bind the vendor under an Agreement for Sale and to attach the vendor’s interest, the vendor must haverequested the work and otherwise fall within the meaning of “owner” in

section 1(

j) of the Builders Lien Act. Triple 5 CorporationLimited v. Nordel Development Corporation Limited, (1985) 58, Alta. L.R. (2d) 33 at 37, per Funduk, M. [9] In Royal Trust Corp. of Canada v. Bengert Construction Ltd. (1988) 1988 ABCA 58 , 58 Alta. L.R. (2d) 97,Laycraft, C.J.A. writing for the Court (at page 102), said: To bring the person sought to be charged within the definition of owner, the lien claimant must establish three elements.

First it must beshown that the person has “an estate or interest” in the land, secondly that he has requested, expressly or impliedly, that the materials befurnished or the work done and finally at least one of the remaining elements must be present: the work must have been done or thematerials furnished on his credit, on his behalf, with his privity and consent or for his direct benefit. [10] Whether there is a “request” is a question of fact. Royal Trust (above) and Acera Developments Inc. v. Sterling Homes Ltd. (2011) 37 Alta. L.R. (5th) 97 (C.A.). [11] The Respondent says: 3.

As part of the consideration for the Agreement, the parties discussed the completion of renovations and the Seller agreed to thecompletion of the renovations. [12] The Respondent goes on to say that the work was completed between December 7, 2010 and March 1, 2012, and details thework that was done. [13] The Applicant referred me to ReMax Real Estate (Edmonton) Ltd. v. M.B.I.

Miller Brothers Properties Inc., JDE 910307007, a decision of Master Quinn in October, 1991, which was apparently affirmed by the Court of Appeal, to say that the Respondent’sparagraph 3, quoted above, should be ignored as it runs afoul of the parol evidence rule. [14] Whether it was part of the consideration for the sale, or not, the Respondent’s evidence is that ‘the seller agreed to thecompletion of the renovations’.

[ 15 ] The Applicant effectively denies this by saying: 8. I have never had any discussions with the Respondent or with Haltek Developments Inc. with respect to any improvements being made to the property. Any improvements were made solely by the Respondent and/or Haltek Developments Inc. for their own account and in the hopes that they could re-sell the property for profit on the open market. [ 16 ] The Respondent swears positively to the Applicant ’ s consent to the renovations. The Applicant denies this, at least implicitly, by saying that there were no discussions.

So the conflicting evidence effectively puts the parties at a stalemate. Not only does the conflict prevent the Applicant from discharging its onus to have the liens removed, it prevents the lien claimant from proving the validity of the lien and even if the lien claimant were able to get over this first hurdle, the evidence at this stage is a long way from being sufficient to provide any satisfactory valuation, much less to overcome the seller ’ s priority in section 11(6). [ 17 ] The purpose of the Builders Lien Act is to provide an expeditious and cost-effective means of dealing with these issues.

I am reluctant to send this matter back to square one. The parties are under no illusions about what is in issue. If they wish, they can proceed directly to the trial of an issue, or alternatively, bring a

section 53 Application directly. [ 18 ] In the circumstances it is appropriate that the costs of this application be in the cause. Heard on the 23 rd day of May, 2012. Dated at the City of Edmonton, Alberta this 15 th day of June, 2012. W. S. Schlosser M.C.C.Q.B.A. Appearances: Craig Lupal Lovatt LLP for the Applicant Barry King Strathcona Law Group for the Respondent