Alberta Drywall & Stucco Supply Inc v Tilt-Tech Construction Ltd, 2016 ABQB 490

Court of Queen’s Bench of Alberta Citation: Alberta Drywall & Stucco Supply Inc v Tilt-Tech Construction Ltd, 2016 ABQB 490 Date: 20160901 Docket: 1603 13850 Registry: Edmonton Between: Alberta Drywall & Stucco Supply Inc Plaintiff/Respondent - and - Tilt-Tech Construction Ltd and Luxor Millwork Installation Inc and Sharif Usman and Mohammad Lateef and 1778403 Alberta Ltd and Ocean Cloud Ltd Defendants/Applicant _______________________________________________________ Reasons for Judgment of W.S.

Schlosser , a Master of the Court of Queen’s Bench of Alberta _______________________________________________________ [ 1 ] This is an application by Tilt-Tech to discharge a certificate of lis pendens . The Respondents are drywall suppliers. They supplied drywall for a project and were paid, though not by the owners. They discharged their liens. Problems then arose with some of the payments, which had been made by credit card.

They started an action for these amounts and then filed certificates of lis pendens against the owners land. [ 2 ] The right to file a certificate of lis pendens is a statutory right based upon either: the Matrimonial Property Act, RSA 2000, c M-8, s 35; the Builders' Lien Act, RSA 2000, c B-7, or, the Land Titles Act, RSA 2000, c L-4, ss 38, 148 and 190. Apart from the specific rights set out in the Matrimonial Property Act or the Builder’s Lien Act , a certificate of lis pendens filed under the Land Titles Act requires an interest in the land.

[ 3 ] A damages claim, or an in personam right will not support a certificate of lis pendens : Blue Hill Capital Corporation v Daon Property Corporation , 2014 ABCA 282 at para 9 Triska v Wiggins , 2015 ABQB 33 Taylor v 1103919 Alberta Ltd , 2015 ABCA 201 TRG Developments Corp v Kee Installations Ltd , 2014 ABQB 482 , at para 23 Studio Homes Ltd v Signature Land Corp , 2015 ABQB 381 [ 4 ] Improperly filing a certificate of lis pendens can, itself, give rise to a claim for damages (eg Taylor , above and LTA s 149). [ 5 ] In this case the Respondent’s lien rights have been lost.

All that remains is an in personam claim, or a debt or damages claim, against the payor, and not an in rem claim against the owner’s land. Absent a statutory right or the most extraordinary circumstances – and none exist here – a materials supplier or a subcontractor has no direct right against the land. Otherwise, we could do away with the Builder’s Lien Act . [ 6 ] There is an application scheduled to restore the liens. However, in the meantime, the certificates of lis pendens constitute an abuse of process and must be discharged. Heard on the 30 th day of August, 2016.

Dated at the City of Edmonton, Alberta this 1 st day of September, 2016. W.S. Schlosser M.C.C.Q.B.A. Appearances: Atul Omkar Reynolds Mirth Richards & Farmer LLP for the Applicant, Tilt Tech Construction Ltd Eliza A. Maynes Maynes & Radovici Lawyers for the Respondent, Alberta Drywall & Stucco Supply Inc