Caburn Contracting Ltd v Creekside Estates (Camrose) Inc, 2016 ABQB 29

Court of Queen ’ s Bench of Alberta Citation: Caburn Contracting Ltd v Creekside Estates (Camrose) Inc, 2016 ABQB 29 Date: 20160114 Docket: 1203 01376 Registry: Edmonton Between: Caburn Contracting Ltd. Plaintiff - and - Creekside Estates (Camrose) Inc. and Solid Rock Free Lutheran Church of Camrose Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Gerald A.

Verville _______________________________________________________ Introduction [ 1 ] The plaintiff, Caburn Contracting Ltd. (Caburn), asserts that it entered into a contract with the defendants, Creekside Estates (Camrose) Inc. (Creekside) and Solid Rock Free Lutheran Church of Camrose (Church), to remove topsoil from lands owned by the Church. It has obtained a consent judgment from Creekside.

It seeks an in personam judgment against the Church and an in rem judgment by way of declaration that a builder’s lien filed on the lands is valid and enforceable. [ 2 ] The Church denies any contractual relationship with Caburn and argues that the lien is invalid. In the alternative, it seeks indemnity from Creekside. Background [ 3 ] Collin Hauch (Hauch) was at all material times the senior pastor of the Church.

[ 4 ] In 1999, the Church purchased a 54 acre parcel of raw land situated in the City of Camrose (City). [ 5 ] In August 2005, the Church entered into a joint venture agreement (Agreement) with Global Real Estate Developments Inc. (Global). The Agreement provided that Global wished to purchase a portion of these lands for the purpose of subdividing and developing it. [ 6 ] In January 2006, Global assigned its interest in the Agreement to Creekside pursuant to a supplementary agreement. At that time, a portion of the lands was transferred to Creekside for development.

This consisted of 20 residential lots (First Stage). [ 7 ] In November 2006, a further portion of the lands was transferred to Creekside pursuant to a second supplementary agreement. This was subsequently subdivided into 44 residential lots (Second Stage). [ 8 ] Pursuant to a third supplementary agreement entered into in September 2007, a third stage of development was contemplated and a further portion of the lands described as Block 17, Lot 6 was transferred to Creekside (Lot 6). It was contemplated that Lot 6 would be subdivided into 42 residential lots.

Lot 6 consists of 2.41 hectares (5.96 acres) more or less. [ 9 ] Finally, pursuant to a fourth supplementary agreement in November 2010, Block 17, Lot 8 was transferred to Creekside. It was contemplated that this development would be a 63 suite multi-residential site. [ 10 ] The Church retained a portion of the 54 acre parcel described as Plan 072905, Block 17, Lot 7 which consists of 3.32 hectares (8.2 acres) more or less (Lot 7). Other than that which was required for reserve in the subdivision process, all of the remaining parcel was transferred to Creekside pursuant to the four supplementary agreements.

The Church maintained an interest in the lands transferred to Creekside through vendor take back mortgages. [ 11 ] The First Stage is on the east side of 60 th Street between 54 th Avenue and what is notionally shown on a plan of subdivision as 56 th Avenue. 56 th Avenue does not exist, but is part of a proposed Ring Road for the City. The Second Stage is immediately to the east of the First Stage and also between 54 th Avenue and the proposed Ring Road. Lots 6 and 7 border the east side of the Second Stage.

Lot 6 is north of Lot 7, and its northern edge borders the proposed Ring Road. [ 12 ] During the development of the First and Second Stages, Creekside stripped dirt from the 64 lots and moved the topsoil and clay onto Lot 7 with the permission of the Church, creating a large pile (Pile). [ 13 ] The Pile was unsightly and after receiving complaints, the City requested that Creekside remove it. Frederick Jaremchuk (Jaremchuk) was at all material times the principal officer of Creekside.

He informed Hauch of the City’s request. [ 14 ] At the commencement of trial, counsel for Caburn advised that it had received a consent judgment for the full amount of its claim from Creekside, but that the judgment had not yet been entered. [ 15 ] An order was granted by Manderscheid J. on October 11, 2013 setting out the issues to be determined at trial. In light of the consent judgment, the issues and approaches taken by counsel changed somewhat.

The Court nonetheless attempts to follow the spirit of Manderscheid J.’s order in this judgment. [ 16 ] Jaremchuk did not testify at the trial. [ 17 ] At the end of the trial, counsel for the Church read in a series of questions to, and answers by, Creekside which clearly established that if the Church is found liable to Caburn, it is entitled to full indemnity from Creekside. [ 18 ] Counsel advised that Creekside is in financial difficulty and any judgments may be “hollow”. Evidence Cameron Thorburn [ 19 ] Cameron Thorburn (Thorburn) is the principal officer of Caburn.

He testified that he has been in the construction business for over 30 years. Caburn owns machinery and equipment used for the moving and hauling of clay and topsoil. [ 20 ] Thorburn was a member of the Church until late fall 2010, and knew the people who were on the Church Board. He had done work for the Church in previous years and had been paid. He stated that he often talked to Hauch at church or over coffee. [ 21 ] Thorburn stated that there was a schism in the Church during the period 2010 and 2011. Some members of the Board were trying to have Hauch removed.

Thorburn quit attending the Church as he had friends on both sides. He was aware of an unsuccessful action by an individual by the name of Neil Hansen and others to dissolve the Church. [ 22 ] Thorburn stated that Hauch told him that the City wanted the Pile to be removed. He stated that this discussion took place in December 2010 when Caburn was in the middle of a large project. He attended at the site where the Pile was situated to have a look at it. He described it as a gigantic pile of topsoil covered with snow. He estimated that there were approximately 35,000 cubic metres of topsoil.

He advised Hauch that he would put feelers out with consultants for oil companies to see if anyone was interested in taking the topsoil. [ 23 ] Thorburn stated that he received some positive responses after Christmas as a couple of oil companies indicated they could use some of the topsoil. In the spring of 2011, Caburn began stripping topsoil off of the Pile and hauling it to various sites. This work was completed in May 2011. Caburn invoiced the oil companies and was paid approximately $127,000.

[ 24 ] The oil companies did not have money left in their budgets to take more topsoil, and a considerable portion of the Pile remained. Thorburn advised Hauch of this fact. Thorburn stated that Hauch told him to call Jaremchuk of Creekside who was looking after things. Thorburn did not know Jaremchuk. [ 25 ] Thorburn stated that after several discussions with Jaremchuk, it was determined that rather than hauling the topsoil in the Pile off the site, it would be would be moved and spread around.

He received a memorandum dated July 6, 2011 from Jaremchuk stating in part: We are attaching a drawing indicating approximately where the balance of the dirt pile is located and the location of the approximate 6 acre site. We would like to have this spread over the approximate 6 acre site immediately North of the dirt pile. It has to be spread fairly evenly and not in another pile. Can you provide me with an hourly quotation to distribute this dirt and the type of equipment you will be using.

Thanks. [ 26 ] Thorburn stated that he told Jaremchuk what type of equipment Caburn had at its disposal, and gave him the rates. He stated that he also gave him the name of another contractor, as Caburn was busy and was not looking for more work. [ 27 ] It was ultimately determined that Caburn would proceed to spread the Pile. [ 28 ] In a voir dire , Thorburn stated that prior to commencing the work performed by Caburn, he was assured by Neil Hansen that the Church would pay for it. Thorburn advised that Hansen is now deceased. [ 29 ] Thorburn stated that Caburn commenced its work on July 21, 2011.

However, he was concerned about property lines. As he could not get in touch with Jaremchuk, he called Hauch who told him the northern boundary of the site to the north of the dirt pile extended to a fence line.

Thorburn subsequently learned that the fence line was not the boundary, and that some of the topsoil was spread on to City property [ 30 ] On August 24, 2011, Thorburn sent a memo to Jaremchuk to which was attached an invoice to Creekside in the amount of $124,698. [ 31 ] Caburn provided a second invoice to Creekside in the amount of $25,410 for work performed between August 25 and August 30, 2011. [ 32 ] On September 6, 2011, Thorburn received a fax memorandum from Jaremchuk expressing shock at the amount of the claim and criticizing the work that had been done.

The memorandum went on to state “we are placing your account into arbitration” and directed that Caburn cease all further work and remove its equipment from the site. [ 33 ] Thorburn confirmed that Caburn registered a builder’s lien (Lien) against Lot 7 on September 26, 2011. It is asserted in the Lien that the work was completed on August 30, 2011 and that the sum claimed as due is $150,108.

Collin Hauch [ 34 ] Hauch testified that after purchasing the 54 acres of raw land, the Church’s goal was to have a developer develop most of the land with the Church keeping about 9 acres for the eventual construction of a church and other facilities. He stated that the Church was approached by Jaremchuk in 2003 and 2004 with development offers, but those were turned down.

Finally, a further offer was accepted in 2005. [ 35 ] Hauch confirmed that 20 houses were constructed and sold in the First Stage and that the 44 houses in the Second Stage were constructed and sold prior to 2011. [ 36 ] Hauch stated that there has been no development on Lot 6. Because of Creekside’s financial difficulties, it failed to make mortgage payments and foreclosure proceedings were commenced by a mortgagee. Hauch stated that Lot 8 is also in foreclosure. [ 37 ] Hauch testified that Lot 7 is undeveloped, and was never part of the Agreement. Creekside was never hired to develop it.

Hauch stated that the plan was to build a church and perhaps other facilities on Lot 7 when all four stages were completed. [ 38 ] He said that in the interim, the Church bought what had been a bingo hall in Camrose in 2005 and since then use that building for its services. [ 39 ] Hauch stated that the City required certain drainage work to be done around the building, and confirmed that the Church retained and paid Caburn to do it. He recalled another occasion where Caburn was retained to do certain work, but could not remember the specifics.

It involved 47 members of the Church (of which he was one) buying and building a house on a lot in the First Stage as a fundraiser, with the profit being used to finance a trip for the group to Israel. He stated that Caburn was paid for doing the work, but that it did not involve Church money. [ 40 ] Hauch stated that pursuant to the Agreement, the role of the Church was essentially to earn money when each lot in a stage was sold by the developer.

He testified that the Church has had no involvement in the development of the lands. [ 41 ] Hauch confirmed that the Church permitted Creekside to put soil on Lot 7 during the first two stages, but that Creekside was responsible for removing it. He said that he learned from Jaremchuk that the City had contacted him to remove the Pile, and further that Jaremchuk had obtained a quote for the removal which he thought was high. Hauch stated that the Church was never contacted by the City. [ 42 ] Hauch stated that he talked to Thorburn on a fairly regular basis while Thorburn was a member of the Church. Hauch

described him as a friend. He knew Thorburn was in construction, as the Church had used Caburn. He knew that Thorburn had ceased tobe a member in 2010 due to dissention in the Church, but stated that things had settled down to some degree in 2011 and that heoccasionally met with Thorburn. [43] Hauch testified that the Church problems began at the annual meeting in March 2010 when four Church officers who had puttheir names forward were not re-elected. The situation became heated and in March 2011 the four individuals, one of whom was NeilHansen, brought an action to dissolve the Church.

Hauch stated that the matter went to court in October 2011 and the action wasdismissed by a judge of this Court. He stated further that the four individuals stopped attending the Church in February 2011 and thatthree of them later formed a new church. [44] Hauch stated that he raised the issue of the Pile with Thorburn because of Thorburn’s knowledge of construction. Hauch wasaware that Thorburn was able to get some oil companies to take some of the dirt and stated that if they would take all of the dirt, it wouldcost Creekside nothing.

He recalled Jaremchuk becoming excited about the prospect of the oil companies taking the dirt and saying “takeit all”. When Hauch learned that the dirt removal by the oil companies had come to an end, and there was dirt remaining to be removed,he either put Thorburn in contact with Jaremchuk or vice versa. [45] Hauch testified that he never requested that Caburn remove the dirt in the Pile, and that the Church never undertook to payCaburn to remove the soil. He stated that he was aware when the work was being done, as he drives by the site every day.

He said Lot 7still has some debris and dirt on it that has never been removed. [46] Hauch stated that with respect to specifics, all communication concerning the removal of the Pile by Caburn was betweenThorburn and Jaremchuk, and that the Church never received copies of the invoices which were from Caburn to Creekside. [47] Hauch could not recall a telephone call with Thorburn on July 21, 2011 concerning the property line of Lot 6, but did not denythat it could have happened. [48] As to the assertion by Thorburn that Neil Hansen told him the Church would pay for the spreading of the Pile, Hauch statedthat the first time he heard of it was when Thorburn testified in the trial.

Hearsay [49] During his testimony, Thorburn asserted that prior to commencing the work performed by Caburn, he was assured by NeilHansen that the Church would pay for it. Counsel for the Church objected on the basis of hearsay. Thorburn advised that Hansen isdeceased. This evidence was admitted in the context of a voir dire on the understanding that counsel would make submissions at the endof the trial. [50] In R v Khelawon, 2006 SCC 57 , [2006] 2 SCR 787 at para 2, Charron J. for the Court explained that all relevantevidence is admissible as a general principle.

The rule excluding hearsay is an exception to this general principle. The main reason forthe presumptive exclusion of hearsay statements is the general inability to test their reliability. It is impossible to inquire of the maker ofthe statement, and the statement itself may not have been accurately recorded. Mistakes, exaggerations or deliberate falsehoods may goundetected. However, in some circumstances, the evidence presents minimal dangers and its exclusion, rather than its admission, wouldimpede accurate fact finding.

The principled exception to hearsay allows a hearsay statement to be admitted if, because of the way inwhich it came about, its contents are trustworthy, or circumstances permit the ultimate trier of fact to sufficiently assess its worth.

Thetwin criteria of necessity and reliability must be met. [51] Graesser J. in Brennenstuhl Estate v Trynchy, 2007 ABQB 647, 441 AR 312 discussed the approach to be taken with respectto reliability: 33....The Court took a slightly different direction in Khelawon, by mandating an approach to threshold reliability focussed on theparticular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by theproponent to overcome those dangers.

As part of determining threshold reliability for the purpose of admissibility, a court is nowrequired to look at the circumstances in which the statement was made to see whether the circumstances provide circumstantialguarantees of trustworthiness. [52] The undisputed evidence before the Court is that there was a schism in the Church at the time Hansen allegedly made thestatement. Thorburn was aware of legal proceedings to dissolve the Church and that Hansen was part of a group of members who wantedto oust Hauch.

I accept Hauch’s evidence that Hansen did not hold any position of authority in the Church at this time. Further, I acceptHauch’s evidence that the first time he heard Thorburn make the assertion was at the trial. [53] Without more, the alleged statement amounts at most to an opinion of a Church member who was embroiled in a dispute withthe Church governance. In the circumstances, I find that this hearsay evidence is not relevant.

I further find that it does not meet thecircumstantial guarantee of reliability, given the circumstances at the time it was made, and there is no way to test the evidence in theabsence of the maker of the statement. The evidence is therefore not admitted. Issues [54] The Court must determine two issues:

a) Is the Church liable to pay Caburn for the spreading of the Pile?

b) Is the Builder’s Lien valid? Parties’ Positions [ 55 ] Caburn submits that Creekside and the Church are jointly and severally liable. It says they were parties to a joint venture for the development of the lands and that the work done by Caburn in spreading the topsoil was for the benefit of both parties. It was an authorized act under the joint venture. The Church, as part of the joint venture, had permitted the Pile to be constructed on Lot 7 while the First and Second Stages were being completed. Further, the Church agreed and undertook to pay for the work performed.

Finally, Caburn argues that it improved Lot 7 in spreading the Pile at the express or implied request of the Church, and with its knowledge, and that accordingly it has a valid Lien. [ 56 ] The Church submits that the Agreement with Creekside did not create a partnership and that this fact is explicitly set out in the Agreement. It says that while it permitted Creekside to create the Pile on Lot 7, it was clearly understood by Creekside that it would be obliged at some point in time to remove it.

That time came when the City requested that it be removed by Creekside, and all of the contractual dealings with respect to the spreading of the Pile by Caburn were between Caburn and Creekside. As to the Lien, the Church argues that as owner of Lot 7, it did not request Caburn to do the work and that Creekside in the circumstances of this case was not a contractor. The Church further submits that Lot 7 was not in the process of development, and that the Lien is not valid, as removal of the pile did not constitute an improvement.

Analysis Liability [ 57 ] Caburn argues that the Church is liable in the circumstances of this case by virtue of the Agreement, citing Ben 102 Enterprises Ltd v Ben 105 Enterprises Ltd , 2007 BCSC 1069 at para 101 , 60 RPR (4th) 213. In that case, Barrow J. explained that a joint venture is a creature of contract; it is not a concept that admits a precise definition. Courts have shown a wide divergence of views in their characterization of the joint venture and there has been a complete lack of terminological uniformity or exactitude in describing it, and the cases are fact driven.

Barrow J. adopted a definition of a joint venture as an association of persons who agree by contract to engage in some common, usually ad hoc , undertaking for joint profit by combining their respective resources without, however, forming a partnership or corporation. There must be a contribution by the parties to a common undertaking, and a community of interest as well as some control over the subject matter or property right of the contract. The parties’ intentions are determinative, and must be ascertained in accordance with the ordinary rules governing the

interpretation and construction of contracts. See, to the same effect, Gironella v Berndt , [1982] AJ No 264 (CA) . [ 58 ] Caburn also cited Pen-Bro Holdings Ltd v Demchuk , 2007 ABQB 282 , 419 AR 313 in which Hanebury M. cited with approval Williston on Contracts , 3d ed (New York: Baker Voorhis & Co, 1957-) at 563-5: Besides the requirement that a joint venture must have a contractual basis, the courts have laid down certain additional requisites deemed essential for the existence of a joint venture.

Although its existence depends on the facts and circumstances of each particular case, and while no definite rules have been promulgated which will apply generally to all situations, the decisions are in substantial agreement that the following factors must be present: (

a) A contribution by the parties of money, property, effort, knowledge, skill or other asset to a common undertaking; (

b) A joint property interest in the subject matter of the venture; (

c) A right of mutual control or management of the enterprise; (

d) Expectation of profit, or the presence of "adventure," as it is sometimes called; (

e) A right to participate in the profits; (

f) Most usually, limitation of the objective to a single undertaking or ad hoc enterprise. [ 59 ] In Pen-Bro Holdings Ltd. , a defendant who had been sued under a lease agreement signed by his son sought to have the claim struck against him. Hanebury M. granted the application, finding that the evidence did not establish a partnership and the facts did not support the establishment of a joint venture.

Accordingly, she did not go on to consider whether, absent a partnership, simply finding there was a joint venture would have would have exposed the defendant to potential liability. [ 60 ] In Ben 102 Enterprises Ltd , Barrow J. commented: 104 .... as pointed out by the authors of the Lindley & Banks on Partnership , 18th ed. (London: Sweet & Maxwell, 2002) at p. 74, all partnerships involve a joint venture, but not all joint ventures involve a partnership. There is no issue on the facts of this case that the parties formed a joint venture. The issue is whether they also formed a partnership.

Whether they did or not falls to be determined by "the true account and intention of the parties as appearing from the whole of the facts" (see Lord Lindley in his supplement to the 1890 Partnership Act of the United Kingdom). Further, while a statement in a contract to the effect that what is created by it is not a partnership is not determinative of the issue, it surely must be important evidence of the parties' intentions.

[ 61 ] The joint venture being a creature of contract, the Court must have regard to the particular joint venture agreement in order to determine the nature of the agreement. Williston at 706 states that a joint venture agreement provides for a community of interest among the joint venturers each of whom is both principal and agent as to the others within the scope of the venture over which each venturer exercises some degree of control. [ 62 ] This action is framed in contract.

The plaintiff in the statement of claim alleges that the Church was and continues to be the owner of Lot 7 and that Creekside was a developer hired by the Church to develop it. It further alleges: 6. Between April and June 2011 a representative of Caburn had discussions with representatives of Creekside and Solid Rock regarding Caburn being hired to move topsoil on the Lands . 7. On or about July 2011 Creekside on its own behalf and on behalf of Solid Rock entered into an agreement with Caburn (the “Agreement”) some particulars of which were:

a) Caburn would move topsoil on the Lands as directed by Creekside;

b) Caburn would be paid for the services at an hourly rate;

c) Caburn would issue invoices to Creekside and Solid Rock as work proceeded;

d) Creekside and Solid Rock would pay Caburn’s invoices upon receipt; and

e) Caburn would provide Creekside and Solid Rock with a discount of 10% on invoices paid within 30 days. [ 63 ] Nowhere in the pleading is there any allegation that there was a contract with Caburn arising from the joint venture. [ 64 ] Articles 2.1 and 2.2 of the Agreement between the Church and Creekside provide: 2.1 Definition of Joint Venture : The Joint Venturers, including their respective successors, transferees and assignees, as may be permitted by this Agreement, do hereby agree to embark upon a Joint Venture (referred to in this Agreement as the “Joint Venture”) with the name Bedrock, or such other name as the Joint Venturers may from time to time decide, with the purpose and object of acquiring the Lands and developing the Lands as single-family, multi-family residential lots and adult only units and selling such lots and units upon terms and conditions set forth in this Agreement and the Joint Venturers agree that the purpose and scope of the Joint venture shall be limited to the ownership, development and sale of the Lands. 2.2 Relationship of the Parties : This Agreement is not intended to create, nor shall be construed or interpreted as creating any partnership relationship by implication or otherwise between the Joint Venturers, nor shall anything contained be read or construed to in any way restrict the freedom of any Joint Venturers to conduct business or activity whatsoever (other than such business or activity encompassed by this Joint Venture;) free of any accountability to the Joint Venture or other Joint Venturers. 6.1 Unauthorized Acts : Except as otherwise expressly and specifically provided for in this Agreement or any Management Agreement entered into by the Joint Venturers, no Joint Venturer shall have the authority to act for, or assume any obligations or responsibility on behalf of the Joint Venture or in respect of the Lands... [ 65 ] I find that the Agreement did not contemplate development of Lot 7 or any work in relation to it.

The Agreement contemplated development of the property transferred to Creekside, which did not include Lot 7. The Agreement expressly provided that Creekside did not have the ability to assume any obligations on behalf of the Church outside of the work contemplated in the Agreement. [ 66 ] Caburn concedes that Lot 7 was not part of the Agreement. Caburn argues that the fact that the Church allowed the topsoil from the First and Second Stages to be stored on Lot 7 essentially resulted in Lot 7 being subsumed in the joint venture as it contributed to the joint venture and became part of it.

In other words, Caburn says that while Lot 7 was not part of the joint venture, the topsoil was part of it because it was incidental to the development of the first two stages. Caburn says further that removal was necessary for the eventual development of Lot 7. [ 67 ] The Agreement provided that the Church would contribute to the joint venture solely through financing. The Church, as owner of Lot 7, permitted Creekside to move topsoil stripped off the First and Second Stages during their development, and store it in the Pile on Lot 7.

There is nothing in the Agreement from which an obligation could be inferred on the part of the Church to provide storage on Lot 7. Creekside could not have insisted under the Agreement that the Church permit storage of the topsoil on Lot 7. Although it was understood that the Pile would be removed at a later date, it could have remained for years were it not for the complaint to the City, as there have been no steps taken by the Church to develop Lot 7.

The arrangement between the Church and Creekside was extraneous to the Agreement. [ 68 ] I conclude that the Agreement did not result in Creekside assuming liability on the part of the Church for removal of the Pile from Lot 7. Arrangements with respect to storage of topsoil on Lot 7 did not make it part of the Agreement. [ 69 ] There is no evidence that the Church assumed contractual liability in relation to Caburn’s removal of the topsoil. [ 70 ] Creekside undertook to remove the Pile at its cost at a later date.

Because of complaints by neighbors, the City requested at some time in 2010 that Creekside remove the Pile. The evidence is to the effect that after being advised by Jaremchuk of the City’s request, Hauch contacted Thorburn to see if he knew of anyone who would take the topsoil. [ 71 ] In 2011, Caburn located a couple of oil companies that were prepared to take some of the topsoil and pay for its removal and transportation to various sites.

Caburn was paid approximately $127,000 by the oil companies for this work. [ 72 ] I accept that, as a significant portion of the Pile remained, Hauch put Thorburn and Jaremchuk in contact with each other.

From that point forward, all discussions of substance with respect to the removal of the Pile were between Thorburn and Jaremchuk. Further, the field tickets prepared by Caburn showed Creekside (some said Creek View) as the customer, and both invoices were billed to Creekside. No copies of the invoices were sent to the Church.

Finally, the correspondence, namely the Memorandums of July 6, 2011, August 24, 2011 and September 6, 2011 were between Thorburn and Jaremchuk, with the September 6, 2011 memo also being copied to Hauch. [ 73 ] I accept Thorburn’s evidence that when he was unable to contact Jaremchuk on July 21, 2011 to determine the northern boundary of Lot 6, he called Hauch and was told that it extended to the fence line. Although this information appears to have been wrong, in my view it would only have been relevant if the City had sued Caburn for moving topsoil onto its property.

I find that it is not evidence that the Church was a party to the contract for the removal of the Pile. [ 74 ] Caburn did not dispute Hauch’s testimony that the Church never requested that Caburn remove the Pile. I accept Hauch’s evidence on this point. Further, Hauch testified that there was never an undertaking by the Church to pay Caburn to remove the Pile. I accept Hauch’s evidence on this point.

Even if the hearsay evidence was admissible, there is no evidence that Hansen was in a position to bind the Church in this regard. [ 75 ] In this case, I accept the evidence of Hauch that the City did not contact the Church with respect to the Pile, but rather requested Creekside to remove it. No one from the City testified, nor did Jaremchuk. Although not in evidence, counsel made reference to the fact that the City may have indicated to Creekside that it would not issue further development permits for the other stages. [ 76 ] In any event, there was no evidence of pressure on the Church to remove the Pile.

The Pile was owned by Creekside. The Church did not have immediate plans to develop Lot 7 in the summer of 2011, and has no immediate plans almost five years later. [ 77 ] I conclude on the evidence that the Church did not assume any contractual obligation to pay Caburn to remove the topsoil. [ 78 ] Further, on the facts of this case I find that the Church and Creekside did not form a partnership for the purpose of having the Pile removed from Lot 7. The law distinguishes between joint ventures and partnerships. Legally, a partnership is inseparable from its owners.

As a result, each partner (with the exception of the limited partners in a limited liability partnership) is personally liable for the entire amount of any business related obligations. [ 79 ] In my view, Caburn is attempting to equate the two concepts of joint venture and partnership in claiming liability on the part of the Church, or to extend the law by in essence making the Church vicariously liable (importing a tort concept) because of the joint venture.

For the above reasons, I see no merit to this argument. [ 80 ] I have found that the arrangement with respect to storage of the topsoil was extraneous to the Agreement. I find that in the circumstances of this case the Church does not attract liability by virtue of the joint venture. The Church did not ask Caburn to remove the Pile, nor did it undertake to pay for its removal. It did not assume any contractual obligation in relation to Caburn’s removal of the topsoil. I have found further that a partnership did not exist with respect to the removal of the Pile.

There is no evidence of any agreement between Creekside and the Church to this effect. [ 81 ] Caburn’s claim is therefore dismissed.

Builder’s Lien Act [ 82 ] The Builder’s Lien Act , RSA 2000, c B-7 provides in part: 1 In this Act, ...(b) “contractor” means a person contracting with or employed directly by an owner or the owner’s agent to do work on or to furnish materials for an improvement, but does not include a labourer; ...(d) “improvement” means anything constructed, erected, built, placed, dug or drilled, or intended to be constructed, erected, built, placed, dug or drilled, on or in land except a thing that is neither affixed to the land nor intended to be or become part of the land; ...(j) “owner” means a person having an estate or interest in land at whose request, express or implied, and (

i) on whose credit, (ii) on whose behalf, (iii) with whose privity and consent, or (iv) for whose direct benefit, work is done on or material is furnished for an improvement to the land and includes all persons claiming under the owner whose rights are acquired after the commencement of the work or the furnishing of the material; ...(n) “subcontractor” means a person other than (

i) a labourer, (ii) a person engaged only in furnishing materials, or (iii) a person engaged only in the performance of services,

who is not a contractor but is contracted with or employed under a contract; (p) “work” includes the performance of services on the improvement. 6(1) Subject to subsection (2), a person who (

a) does or causes to be done any work on or in respect of an improvement, or (

b) furnishes any material to be used in or in respect of an improvement, for an owner, contractor or subcontractor has, for so much of the price of the work or material as remains due to the person, a lien on theestate or interest of the owner in the land in respect of which the improvement is being made. [83] Caburn registered the Lien on Lot 7 on September 26, 2011. The Lien states that the work was completed on August 30, 2011.The sum claimed as due is $150,108. As stated, the Church says the Lien is not valid.

The relevant portion of the Lien (which containsthe information provided by Caburn in italics) reads as follows: The lien is claimed in respect of the following work or materials For movement of clay and topsoil at the worksitewhich work or materials were or are to be provided for Name of person or Corporation Creek Side Estates (Camrose) Inc [84] A builder’s lien was not registered against Lot 6, which at all material times was owned by Creekside. Much of the topsoilfrom the Pile was spread over Lot 6 or beyond the northern boundary of Lot 6 onto City property.

Although as previously mentionedCreekside has given Caburn a consent judgment for the full amount of its claim, it is noted that Creekside counterclaimed against Caburnregarding wrongful placing of soil on the right of way, and alleging that the City had demanded that Creekside remove the topsoil on itslands which removal “will cost in excess of $60,000”. [85] Caburn took the position that removal of the topsoil would have been necessary for any future development.

Further, it mademore sense to haul the topsoil from Lot 7 to another site rather than to simply spread it out on Lots 6 & 7, as the work would have to beessentially duplicated when those lots were developed. [86] The parties cite the following authorities: Daon Development Corp v Bahry's Glass Ltd, (AB KB), [1982]AJ No 594, 48 AR 212 (QB Master), Leduc Estates Ltd v IBI Group, (AB KB), [1992] AJ No 309, [1992] 4 WWR561 (QB), aff’d 1994 ABCA 5, [1994] AJ No 22, Beaudoin v Waters, (AB KB), [1997] AJ No 529, 203 AR 1 (QB), Time Seismic Exchange Ltd v Northern Mountain Helicopters, 2002 ABQB 1008, 10 Alta LR (4th) 111, Canbar West Projects Ltd(cob Can-West Projects Ltd) v Sure Shot Sandblasting & Painting Ltd, 2011 ABCA 107, 502 AR 235, and Bruell Contracting Limitedv J & P Leveque Bros Haulage Limited, 2015 ONCA 273, 334 OAC 46. [87] The authorities confirm that:

a) A builder's lien cannot exist independently of an enforceable obligation to pay (Beaudoin, para 58);

b) The lienholder must show that the work was done at the request, express or implied of the owner; if it cannot show this, the liencannot be maintained (Daon, para 23);

c) Mere knowledge by the owner that work is being done is insufficient to found a lien (Daon, para 36);

d) In order for the lien to be sustainable, something in the nature of a structure or improvement on the land must be underway or atleast in contemplation (Leduc Estates, paras 25, 33, 34);

e) An increase in the value of the land is an irrelevant consideration when determining whether an individual is entitled to a lien(Time Seismic, para 24);

f) Courts are required to adopt a strict

interpretation in determining whether a lien claimant is entitled to a lien, and a liberal approachwith respect to those to whom the statute applies. Builders' liens are business oriented statutes with practical, as opposed to formalistic,goals; their overall intent is to ensure that "the land that receives the benefit shall bear the burden” (Canbar, para 14);

g) The lien claimant must prove that it has satisfied the requirements of s. 6 of the Act. In doing so the claimant must prove that it hasperformed work in respect of an improvement on the lands subject to the lien, and that such work has been done for and at the requestexpress or implied of an owner contractor or subcontractor. For the work to constitute an improvement it must be directly related to theprocess of construction and must improve the lands (Time Seismic, paras 17, 18, 19, 20, 21, 24, 34, 38). [88] In this case, the Church owned Lot 7 and allowed Creekside to store topsoil and create the Pile on it.

Creekside owned thePile and was responsible for removing it at some point in time at its own cost. The City asked Creekside to remove the Pile. It informedthe Church of the City’s request and the Church put Caburn in touch with Creekside. Creekside retained Caburn to do the work. Lot 7was not part of the Agreement between the Church and Creekside. There were no immediate plans by the Church at the time to developLot 7. [89] Caburn did not receive a request express or implied from the Church to remove the Pile. As stated above, knowledge by an

owner is insufficient. Further Creekside was not the Church’s agent. Caburn did not do work for an owner, contractor or subcontractor pursuant to s. 6(1) and therefore is not entitled to register a lien. I find for these reasons that the Lien is invalid. There was no enforceable obligation on the part of the Church to pay for the removal of the Pile. [ 90 ] Further, I have found that Lot 7 was not in process of development and did not form part of the joint venture Agreement. While there may have been some urgency for Creekside to have the Pile removed, this was not the case with respect to the Church.

The evidence is that the work performed by Caburn involved spreading the topsoil from the Pile on to Lot 6 which was owned by Creekside and beyond its northern boundary on to City property. In the circumstances of this case, I find that the work did not constitute an improvement. Accordingly, the Lien is invalid for this reason as well. Conclusion [ 91 ] The action is dismissed. Costs [ 92 ] If the parties cannot agree on costs, they may speak me within 60 days of the date of this decision. Heard on the 5 th , 6 th , and 7 th days of January, 2016.

Dated at the City of Edmonton, Alberta this 14 th day of January, 2016. Gerald A. Verville J.C.Q.B.A. Appearances: J.A. Delgado (Bishop & McKenzie LLP) for the Plaintiff J.K. McFadyen, Q.C. (Parlee McLaws LLP) for the Defendant Solid Rock Free Lutheran Church of Camrose