Alberta Drywall & Stucco Supply Inc v Tilt-Tech Construction Ltd, 2017 ABQB 325

Court of Queen’s Bench of Alberta Citation: Alberta Drywall & Stucco Supply Inc v Tilt-Tech Construction Ltd 2017 ABQB 325 Date: 20170515 Docket: 1603 13850 Registry: Edmonton Between: Alberta Drywall & Stucco Supply Inc. Appellant - and - Tilt-Tech Construction Ltd. Respondent 1778403 Alberta Ltd. and Ocean Cloud Ltd. Parties of Interest _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Invoking s. 148(1) of the Land Titles Act , LTA , and its own statement of claim herein, Alberta Drywall appeals the Master’s decision and asks the court to re-instate its certificates of lis pendens , CLPs, or, as described in other provinces, certificates of pending litigation. The Master removed the CLPs on two grounds: first, Alberta Drywall’s statement of claim was only an in personam claim rather than an in rem claim and therefore did not come within s. 148(1) of the LTA , and, second, the filing of CLPs in the circumstances

here was an abuse of process. [2] Alberta Drywall’s appeal is dismissed; the Master’s decision removing Alberta Drywall’s CLPs is correct: see 2016 ABQB490. [3] Alberta Drywall argues that once, as here, a CLP has been filed pursuant to s. 148(1) of the LTA, the CLP cannot be removeduntil after a judgment decides the fate of the claim on which it is based. With respect, that is wrong.

Section 152 of the LTA and ss. 38(4)and 43(5) of the Builders’ Lien Act are statutory provisions which authorize a Registrar – in the exercise of ministerial duties - to correcttitles to real property. Those sections do not even purport to limit the statutory and inherent rights of judges of courts of superiorjurisdiction to correct titles by applying legal and equitable principles.

Section 190 of the LTA explicitly authorizes a judge to dosomething which a Registrar cannot do. If a judge could only do what a Registrar can do, s. 190 would not be necessary. Even apartentirely from s. 190 of the LTA, a superior court judge has an inherent right to apply equitable remedies when it is fair and just to do so. [4] When a superior court is asked to remove a CLP which has been filed pursuant to s. 148(1) of the LTA, the court will, as afirst step, ascertain whether the person filing the CLP has complied with that section.

As Prophet Capital suggests, compliance with theliteral wording of that sub-section is, apparently, easy: all a litigant has to do is claim an interest in land. Alberta Drywall failed at thatstep. As the Master correctly outlined, Alberta Drywall has not claimed an interest in land. A CLP does not give an interest in land; itmerely provides notice of a claim.

Alberta Drywall attempts to link its CLPs to builders’ liens; builders’ liens do grant an interest in land.However, a builders’ lien claim is a claim to a statutory interest in land where no such interest exists at common law, therefore, as thecase law establishes, a person claiming an interest in land through a builders’ lien must strictly comply with the Builders’ Lien Act as thatstatute is strictly construed.

Alberta Drywall did not strictly comply with the Builders’ Lien Act: on the contrary, it voluntarily withdrewits builders’ liens and did not, and could not, apply for the re-instatement of those liens pursuant to s. 38 of the Builders’ Lien Act.Alberta Drywall’s reliance on Prophet Capital as a legal link between a claim to indirectly request the revival of a builders’ lien and aclaim to an interest in land is misplaced. The chambers judge in that case did not address the nature of a builders’ lien interest; rather, heanalogized a claim for a builders’ lien to a matrimonial property claim.

There may well be situations where, on the facts, that analogywould be valid; for example, if a supplier of goods or services had complied with all of the statutory requirements of lien legislation, abuilders’ lien claim could be a claim for an interest in land. However, both the statutory and the common law establish an interest inmatrimonial property arising out of the matrimonial relationship; therefore, the nature of a claim under the Matrimonial Property Act isentirely different from a builders’ lien claim.

On the first step of the removal analysis, the Master correctly concluded that, in thecircumstances here, Alberta Drywall is left only with an in personam claim and an in personam claim cannot give rights under s. 148(1)of the LTA. That conclusion is also supported by case law such as Moretta, cited by the appellant. [5] It may be that the Master went no further than this first step of the CLP removal analysis; it was certainly not necessary forhim to go further.

However, if the Master’s comment that the filing of a CLP in the circumstances here was an abuse of process isviewed as the application by him of equitable principles, I turn to the second step of the analysis. [6] The second step in the analysis of whether a superior court should remove a CLP from a title requires the court to determinewhether, pursuant to the provisions of s. 190 LTA, there is a reason to remove the CLP notwithstanding the filer’s compliance with s.148(1), and non-compliance with s. 152, of the LTA.

There is little jurisprudence in Alberta on the scope of s. 190: Rohit Land.However, it seems clear that a court will begin its analysis by reminding itself of the background and purpose of the legislation whichgrants the right to file a CLP. CLPs do not give an interest in the land against the title of which they are registered, but they do preventthe owner of the land from certifying that it has marketable title to the land. As many decisions have emphasized, a CLP is, therefore, apowerful tool. Because of its practical effects, it is appropriate for a CLP to be subject to scrutiny in equity.

At the second stage ofdetermining whether a CLP should be removed from title, the weight of the case law asserts that a superior court is entitled to applyequity; I am in respectful disagreement with decisions that hold otherwise. In a jurisdiction such as Alberta, where there is no legislativesummary of the court’s equitable jurisdiction in this area, the court can look to first principles as outlined in other jurisdictions: see, forexample, York University. The court can also look to land titles legislation in other provinces for guidance in interpreting its jurisdictionunder s. 190.

As one example, Daniels Investments relies on Saskatchewan legislation but is instructive about the types of situations thatlegislators must have had in mind when they authorized the placing of a cloud or clog on the title to real property. Starke Capital in ourCourt of Appeal illustrates another potential approach: to the assessment of the equities in a situation such as this one by using theinterlocutory relief approach to pre-judgment relief: does the balance of convenience favour the person who has clogged the title byfiling a CLP or the owner of the land?

Should the person who filed the CLP be able to prevent the owner of land from marketing it? Inthe circumstances here, where Alberta Drywall has a legal means of pursuing its in personam claim without recourse to a CLP, the filingof a CLP which does not itself give an interest in land constitutes an abuse of process. In

summary on the second step, the Master wascorrect in deciding that the court has equitable jurisdiction to decide if filing a CLP is an abuse of process and he was also correct inconcluding that the filing of CLPs in the circumstances here was an abuse of process.

Cases and authority cited: [7] By Alberta Drywall: TRG Developments Corp. v Kee Installations Ltd. 2014 ABQB 482; Adair Homes Ltd. v Desjardine2005 ABQB 373; 395432 Alberta Ltd. v Broadcast Hill Holdings Ltd. 2003 ABCA 96; MCL Development Corporation v HarbourFirst Mortgage Fund GP Inc. 2012 ABQB 555; Prophet Capital Corp. v Deer Valley Developments Ltd. 2009 ABQB 609; Alberta(North Alberta Land Registration District) v Mackenzie (County) 2012 ABQB 447; Builders’ Lien Act, RSA 2000, c. B-7, ss. 41-43;Land Titles Act, RSA 2000, c. L-4, ss 190, 191. [8] By Tilt-Tech Construction: Moretta v Kiener [2000] O.J.

No. 2432; s. 38 Builders’ Lien Act. RSA 2000, c B-7. [9] By the Parties of Interest (Owners of the properties): Bahcheli v Yorkton Securities Inc., 2012 ABCA 166; Boyd v Cook,2013 ABCA 27; The Land Titles Act, RSA 2000 c L-4; Studio Homes Ltd. v Signature Land Corp., 2015 ABQB 381; Main v Jeerh,2006 ABCA 138; Moretta v Kiener [2000] O.J. No. 2432. [10] By the court: Alberta Drywall & Stucco Supply Inc. v. Tilt-Tech Construction Ltd. 2016 ABQB 490; G.P.I. Greenfield Pioneer Inc. v Moore (2002) (ON CA), 58 O.R. (3rd) 87 (C.A.); Triska v Wiggins 2015 ABQB 33; Nyal v

Citifinancial Canada Inc . 2015 ABQB 486 ; Blue Hills Capital Corp. v Daon Property Corp . 2014 ABCA 282 ; 1048497 Alberta Corp. v Lessoway, 2006 CarswellAlta 2132 ; Rohit Land Inc. v Cambrian Strathcona Properties Corp 2015 ABQB 375 ; Condominium Plan No. 822 1011 v 775601 Alberta Ltd 2004 ABQB 692 ; York University v Markisevic 2014 ONSC 3227 ; AM Inspection Ltd. v Chizen 2007 ABQB 387 ; Daniels Investments Saskatoon Ltd. v Houk 2016 SKCA 147 ; Starke Capital Corp. v Strategic Acquisition Corp 2017 ABCA 36 ; Cappis v Allen 2016 ABQB 473 ; Taylor v 1103919 Alberta Ltd . 2014 ABQB 167 ; V. Di Castri, Q.C.

Registration of Title to Land, looseleaf, Carswell, 2015. Appendix A: Extracts from the Land Titles Act , the Builders’ Lien Act , and the Rules of Court. 1. Background

a) Factual [ 11 ] Alberta Drywall is a drywall sub- sub-contractor on a commercial condo building development which consisted of two buildings on two lots. (The buildings have now been condominiumized and there are a total of 24 titles.) On or about April 19, 2016, Alberta Drywall supplied the last of a total of approximately $405,000.00 of materials to the condo building project through a sub- contractor Luxor. Luxor has two shareholders, a Mr. Usman and a Mr. Lateef. Luxor is represented by a separate law firm.

Approximately $300,000.00 was paid to Alberta Drywall by Luxor; some of those payments were made by Mr. Lateef on his personal credit card. Materials were last supplied by Alberta Drywall to the project on about mid-April, 2016. [ 12 ] On or about April 29, 2016, Alberta Drywall placed a builders’ lien on the titles in relation to the then outstanding amount of approximately $105,000.00 from Luxor. [ 13 ] After the lien was placed on the title, it is alleged that Mr. Usman requested invoices from Alberta Drywall.

Having received the invoices, Luxor then began to dispute credit card payments which had already been made. [ 14 ] Presumably because it was concerned about Luxor’s – or Mr. Usman’s or Mr. Lateef’s -conduct to that date, on June 1, 2016, Alberta Drywall filed builders’ liens on the project for the total contract amount of $405,000.00 approximately. [ 15 ] In its capacity as general contractor, Tilt-Tech then engaged in negotiations with Alberta Drywall to remove the liens. Tilt- Tech argues that it was not acting for Luxor in those negotiations and Alberta Drywall knew that it was not acting for Luxor.

Alberta Drywall alleges that negotiations were held between Alberta Drywall and Tilt-Tech only and that Tilt-Tech was acting for all the parties. Alberta Drywall alleges that Tilt-Tech assured it that it had “nothing to worry about”. Tilt-Tech paid Alberta Drywall $101,000.00, approximately, which was the then outstanding balance on its account.

In order to deal with the credit card reversals, Luxor offered Alberta Drywall a statement, dated July 20, 2016, signed by Luxor and its President Usman, addressed to the credit card company on whom the credit card charges had been drawn which states: Re: Alberta Drywall & Stucco Supply Inc.

Credit Card Charges Please be advised that Luxor Millwork Installation Inc. and Sharif Usman confirm that all credit card charges incurred to date with respect to materials supplied by Alberta Drywall & stucco Supply Inc. are valid and Luxor Millwork Installation Inc. and Sharif Usman shall not contest the validity of those charges. [ 16 ] When that did not satisfy Alberta Drywall, Luxor provided a new statement, dated July 21, 2016, signed by Luxor and its President Sharif, which incorporated the July 20, 2016 language and added: In the event that there are further unforeseen challenges, Luxor Millwork Installation Inc. agrees to indemnity Alberta Drywall & Stucco Supply Inc. for the amounts subject to those challenges. [ 17 ] After receiving the indemnity, Alberta Drywall voluntarily removed its liens from the titles and discontinued its action. [ 18 ] Alberta Drywall alleges that within 24 hours of removal of its liens, Luxor reversed approximately $70,000.00 of credit card payments which had been made.

It also alleges that Tilt-Tech colluded with Luxor to withhold material facts from Alberta Drywall and this disadvantaged Alberta Drywall. [ 19 ] Alberta Drywall sued Luxor Millwork Installation Inc. for the reversed charges which were, as of August 30, 2016 when the parties were before the Master, approximately $30,000.00. [ 20 ] Alberta Drywall also issued a statement of claim, amended as of August 5, 2016, naming Tilt-Tech, Luxor, Usman, Lateef and the owners of the land as defendants, in which it claims the following: 43.

At all material times the defendants failed to act in good faith during contractual performance and failed in their common law duty to act honestly in the performance of the contract and reasonably, not capriciously. 44. [Alberta Drywall] cancelled its lien claims on the basis of misrepresentations and the withholding of material facts which were known to the defendants at all times. 45. The cancellation of liens should be set aside and the Plaintiff’s rights under the Builders Lien Act be reinstated. 46. The Plaintiff pleads the following: a. The Defendants have been unjustly enriched. b. Breach of Contract

c. Breach of Trust d. The tort of of deceit and misrepresentation. e. Bad faith f. Collusion as between the parties to the Plaintiff’s detriment. 47. The Plaintiff proposes a 14 day trial in the Court of Queen’s Bench in Edmonton, Alberta. [ 21 ] (At the time of this hearing, a two week trial could be booked for 2019.) [ 22 ] Based on this statement of claim, on August 5, 2016, Alberta Drywall filed CLPs on all the titles in the project claiming the following interest in land: Unjust enrichment for unpaid materials and supplies.

Fraudulent rescinding of payments made pursuant to contract for materials and supplies. [ 23 ] Statements of defence have been filed by all the defendants in Alberta Drywall’s statement of claim. [ 24 ] Although there is no specific evidence on this point in the application before me, given the length of time which has elapsed from the date on which Alberta Drywall removed its liens and the fact that separate condominium titles have been issued on at least one of the projects, I assume that the owners of the property have paid out the hold-back to the general contractor. [ 25 ] Invoking its responsibility as a general contractor, with support from the Interested Parties who are the owners of the project, Tilt-Tech brought an application before the Master to remove the CLPs.

During the course of the hearing before the Master on August 30, 2016, the Master inquired about recent case law which dealt with the relationship between caveats and CLPs. Alberta Drywall argued that Studio Homes stood for the principle that the Master could not remove the CLPs until Alberta Drywall’s claim had been tried and the court had concluded that the claim was invalid, or until some other action was taken to ensure that Alberta Drywall’s claim would be protected prior to the decision being reached.

The Master reserved his decision and informed the litigants that he would give them a decision prior to September 7th. On September 1, 2016, in a written decision, the Master allowed Tilt-Tech’s application: see citation above. The core of the Master’s decision is the following: 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 Builders’ 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. [ 26 ] As indicated by the Master, Alberta Drywall has arranged a special chambers application to reinstate its CLPs; that application will be heard in October, 2017. [ 27 ] As of April 27, 2017, Alberta Drywall states that it is still owed $54,000.00 for the materials supplied to the condo project. [ 28 ] On or about April 19, 2016, Alberta Drywall last supplied what totalled approximately $400,000.00 of materials to a building project.

On April 29, 2016, Alberta Drywall placed a builders’ lien on the titles to the project for the approximately $100,000.00 which remained unpaid under the contract on that date. After the filing of the lien, the sub-contractor to which Alberta Drywall had provided the materials, Luxor Millwork, began disputing the Alberta Drywall’s claims and reversing some of the credit card payments which one of Luxor’s principals had made to Alberta Drywall. Alberta Drywall then placed a second lien, in the amount of $400,000.00 on the titles.

The general contractor on the project, Tilt-Tech then began negotiations with Alberta Drywall to remove the liens. Tilt-Tech paid Alberta Drywall $100,000.00. Luxor provided Alberta Drywall with an undertaking to not contest any of Alberta Drywall’s charges. Luxor then provided Alberta Drywall with an indemnity agreement as follows: In the event that there are further unforeseen challenges, Luxor Millwork Installation Inc. agrees to indemnity Alberta Drywall & Stucco Supply Inc. for the amounts subject to those challenges.

After receiving the cash and the indemnity, Alberta Drywall voluntarily withdrew its builders’ liens on the properties. Alberta Drywall may have subsequently sued Luxor and Usman on the indemnity in separate proceedings, but that is not clear on the materials before me. [ 29 ] On August 4, 2016, Alberta Drywall issued a statement of claim against Tilt-Tech, Luxor, Luxor’s principals - Usman and Lateef - and the two owners of the titles - 177 and Ocean Cloud.

In its statement of claim, Alberta Drywall requested that its own removal of its builders’ liens be cancelled and that its right under the Builders’ Lien Act be reinstated.

b) Legislative [ 30 ] Appendix A contains the following extracts from: - the Land Titles Act : ss. 130 , 148 , 149 , 152, 153 , 190, 191 ; - the Builders’ Lien Act : ss. 6 , 21 , 31 , 34 , 38 , 43 ; - the Rules of Court: Rule 6.14(3).

2. Standard of review [31] No application was made on this appeal to lead evidence in addition to the evidence put before the Master. The parties agree,and I agree with them, that the standard of review on the appeal is correctness: Bahceli. 3. General principles on the

interpretation of s. 148(1) LTA [32] Alberta Drywall argues that s. 148(1) is extremely broad and encompasses any claim made in a statement of claim to aninterest in land. This view is supported not only by the wording of the sub-section itself, but also by comments in the case law: ProphetCapital at para.40. [33] Despite the broad sweep of s. 148(1), in order to file a CLP a litigant must at least cross the low threshold of claiming aninterest in land. What s. 148(1) does not cover is also relatively clear.

In Blue Hill Capital Corp., our Court of Appeal stated: 9 A damage claim will not support a caveat or lis pendens. See Main v Jeerh, 2006 ABCA 138, 384 AR 276; 395432 Alta v BroadcastHill Hldg, 2003 ABCA 96, 327 AR 117; MCL Development Corp v Harbour First Mortgage Fund, 2012 ABQB 555, 547 AR 359;Lamont (Town) v Jabneel Development, 2014 ABQB 328 (M May 30). A host of other similar cases on caveats could be cited. [34] A CLP is not an interest in land: it is merely notice that a claim to an interest in land is being made. Di Castri's text points outtwo things of interest about a CLP.

First, although it does not give an interest in land, its practical effect is important: it is a "perilousthing to deal with property while it was in litigation", and "a prudent solicitor could not certify that a title subject to the hazard oflitigation was a marketable title": art. 15-4.1. Second, both CLPs and builders' liens are somewhat inconsistent with a Torrens system -which is the land titles system in use in Alberta; the difficulties of certifying titles while claims are yet undecided speak for themselves. [35] A builders’ lien, on the other hand, is an interest in land: s. 6(1) Builders’ Lien Act.

However, at common law, a personsupplying materials or services to a building project did not acquire an interest in land. Because a builders’ lien has a purely statutorybasis, a claimant must strictly comply with the statute and the statute itself must be strictly construed. Extensive case law supportingthese principles can be found in Di Castri, Registration of title to land:

article 15.2 ff. [36] In

summary, then, s. 148(1) can be used to justify the filing of a CLP if the filer claims an interest in land. 4. General principles on the

interpretation of s. 190 LTA [37] In Rohit, the court indicates that there is not much consideration in the case law of the scope of s. 190 of the LTA: see para.146. [38] Watson J., as he then was, said this in Condominium Plan No. 822 1011 in the context of a claim for unpaid condo feeswhich he concluded was a claim for an interest in land. 32 I have come to be persuaded that Counsel for the Condominium Corporation is correct that in order to remove a lis pendens underthat particular rubric, one would have to comply with

Section 152 of the statute and proceed in the manner which occurred in the Beckercase as I have mentioned. 33 However, in light of the possible injustice that may occur in relation to land titles on the point that is raised by Counsel for Mr.Dueck and the numbered company, it seems to me that one should give some teeth to Section 190(1) of the Land Titles Act in relation tothe possibility of correcting certificates of title. 34 While I am not going to exercise that particular jurisdiction in this instance, I do think that there is some merit and somebodyshould argue someday whether or not that particular

section can, in effect, supplement

Section 152 of the Land Titles Act in order topreserve titles from being embarrassed by lis pendens which are, in fact to some extent, a straw man in relation to the attack upon thetitle. That decision proceeds, of course, on the basis that existence of a claim to land pursuant to s. 148(1) claim had been made out. In an oraldecision, Watson J. agreed that a CLP which had been properly filed should not be removed except in compliance with s. 152. However,even without having received proper argument on the subject, he intuited that s. 190 could have a role in deciding whether a CLP shouldbe removed.

Indeed, if the Registrar could only remove a CLP pursuant to s. 152 and the Registrar were the only person who could doso, and the Registrar could only remove a CLP after judgment on the claim had issued, there would be no need for s. 190. [39] Using the same starting point as Blue Hill Capital Corp, in Nyal, Master Schlosser held that it was inappropriate to use a bareor technical claim to an interest in land to maintain a cloud on the title: 15 The circumstances of this case have to be unique. This ATB mortgage is really only a vestige of the mortgage that was once on theneighboring property.

I will not pretend that this mortgage does not, at least in a technical sense, create an interest in land. I alsoacknowledge that there are differences between this mortgage and a caveat or lis pendens which, themselves, create no substantive rights.But what is happening here is much like an attempt to maintain a caveat to protect a claim for damages. (e.g. Semelhago v Paramadevan, (SCC), [1996] 2 SCR 415; 1244034 Alberta Ltd. v.

Walton International Group Inc., 2007 ABCA 372; ParamountMortgage Corp v Avenue AH Construction GP Corp, 2014 ABQB 84; Blue Hill Capital Corp v Daon Property Corp, 2014 ABCA 282,at para 9; (and the cases cited there). To put it another way, this unenforceable mortgage is essentially being used as an instrument forpre-judgment relief for an unproven damages claim or relief that would otherwise be statute-barred: AM Inspection Ltd v. Chizen, 2007ABQB 387; Festival City Holdings Ltd v Worthington Properties Inc, 2002 ABQB 543, at para 15 per Funduk, M. In my view, theconsequences should be the same.

This is an appropriate situation for the court to use its powers under

section 190 and 1(

l) of the LandTitles Act, RSA 200, c. L-4. [40] MCL Development, on which Alberta Drywall relies, describes the powers under s. 190 as “wide”: see para. 26. Graesser J.

notes that s. 190 is rarely referred to in the case law even where the court appears to have relied on it; he summarized the powers undersection 190 as follows: 39 In my view, s. 190 of the Land Titles Act operates to give the court express jurisdiction (in addition to any equitable jurisdiction itmay have) to discharge a certificate of lis pendens in appropriate circumstances, notwithstanding that the conditions under s. 152 of theLand Titles Act have not been met.

I endorse Graesser J.’s comments to the effect that s. 190 and equity are two separate bases for the exercise of equity by superior courtjudges. [41] In Samchuk, I reviewed the case law cited on the removal of CLPs and came to the following conclusion: 24 In

summary, the case law establishes that, unless a CLP was filed as an abuse of process, the CLP runs with the action: so long asthe action has not been tried, the CLP cannot be discharged. [Emphasis added] I acknowledge that I would have made myself more clear had I had said, “unless a CLP was filed in circumstances that make itinequitable for the CLP to cloud the owner’s title”. [42] Outside Alberta, case law has explored the relationship between an untested claim to an interest in land and an immediateinjury to the owner of the land.

In G.P.I Greenfield, the Ontario Court of Appeal stated: [15] Section 103(1) of the CJA entitles a plaintiff, who has commenced a proceeding in which an interest in land is in question, to obtaina CPL and to register it against the title to the land. The registration of the CPL protects the plaintiff by effectively preventing dispositionof the property prior to judgment. As such, a CPL can be as effective as an interlocutory injunction in restraining dealings with theproperty as, generally speaking, it is considered to be an encumbrance on the land. See Brock v. Crawford (1908), 11 O.W.R. 143 at p.146 (K.B.).

No rights are given by a CPL. The effect of registration of a CPL on the title to land is to give notice that rights in respect tothe land are being claimed in a pending court proceeding. [16] As severe hardship may result to the owner of the land as the result of the registration of a CPL, s. 103(6) confers a broad discretionon the court to discharge a CPL and, depending on the circumstances, to impose appropriate terms.

As the practical effect of a CPL issimilar to that of an interlocutory injunction restraining dealing with the land, to discourage abuse s. 103(4) imposes liability for damagesresulting from the registration of a CPL where the registrant is "without a reasonable claim to an interest in the land". For an historicaldiscussion of a certificate of lis pendens, which was the term by which a CPL was previously known, see W.B. Williston and R.J. Rolls,The Law of Civil Procedure (Toronto: Butterworths, 1970), Vol. 2, at pp. 599-607 and Brock v.

Crawford, supra, at pp. 145-47 O.W.R. [17] Subsection 103(6) confers a broad discretion upon the court to discharge a CPL upon a demonstration by the defendant in the actionin which the CPL was obtained of any of the grounds contained in the subsection, the last of which invites an examination of the equitiesas between the parties. How such discretion is to be exercised was described by Steele J. in Clock Investments Ltd. v. Hardwood EstatesLtd. (1977), (ON SC), 16 O.R. (2d) 671 at p. 674, 79 D.L.R. (3d) 129 (Div.

Ct.): I am of the opinion that the governing test is that the Judge must exercise his discretion in equity and look at all of the relative mattersbetween the parties in determining whether or not the certificate should be vacated.. [43] The jurisdiction of a court to apply principles of equity when asked to remove a CLP has, in my view, been usefullysummarized by the Ontario Divisional Court in York University: 6 The test for the discharge of a CPL is two-pronged. First, the court must determine whether the claimant has a reasonable claim to aninterest in the land.

Second, even if the claimant has a reasonable claim to an interest in land, the court considers the equities of the case,including the nature of the claims and the harm to each party if the CPL is or is not removed. 7 The appellant argues that the motions judge erred in law when he stated that the new claims advanced in the amended statement ofclaim are not proprietary in nature (see para. 48 of his reasons). Those claims allege a fraudulent conveyance of the property fromMichael to Mima and a resulting trust whereby Mima holds the title to the property in trust for Michael. 8 Cases such as Bank of Montreal v.

Ewing (1982), (ON SC), 35 O.R. (2d) 225 (Div. Ct.) and Transmaris FarmsLtd. v. Sieber, [1999] O.J. No. 300 (Gen. Div.) show that a CPL is available when a claim of fraudulent conveyance is made by acreditor, provided that the creditor shows that there is a triable issue respecting the fraudulent nature of the conveyance. Indeed, themotions judge had granted a CPL on Janet's property based on claims of constructive trust and fraudulent conveyance. 9 The appellant argues that the motions judge ignored the nature of its fraudulent conveyance claim and applied too high anevidentiary standard.

He also failed to consider the resulting trust claim. 10 In my view, the motions judge made no legal error. When he states in para. 48 that the fraudulent conveyance claim is notproprietary in nature, he is making a statement about the nature of the appellant's claims.

He is not saying that there is no right to a CPLbecause the claim is not proprietary. 11 The motions judge went on to consider the strength of the appellant's new claims and concluded that the evidence in support ofthose claims does not support a finding that there is a "strong indication" that the conveyance to Mima may have been fraudulent.Ultimately, he concluded that the two new claims added "little additional weight" to York's claim for a reasonable interest in theproperty.

In my view, this indicates that he has considered the first stage of the test with respect to the two new claims. 12 The motions judge also considered that Mima had agreed to pay $142,330 from the proceeds into court as security for York'sproprietary claim based on constructive trust, and that was an adequate security for the proprietary claims.

13 The motions judge then considered the equities, as he was required to do, even if the appellant has a reasonable claim to an interest in the land. He discussed the changed financial circumstances of the Markicevic family based on the new evidence before him.

In his view, this action can be resolved only with a trial, where the outcome will turn on an assessment of the credibility of Michael and other witnesses respecting the alleged fraudulent activities. [ 44 ] Other cases to the same effect can be found in Di Castri at 15-35. [ 45 ] I am aware that Chizen is sometimes cited as authority for the proposition that equity has no place in a court’s consideration of whether a CLP should be discharged.

In my respectful view, that decision merely states that in the circumstances before that court, equitable principles could not come into play; if the comment against the use of equitable principles was intended to be applied more broadly, for the reasons that I have set out above, I am in respectful disagreement with the decision. [ 46 ] Our Court of Appeal has held, in Main , that s. 152 is not the only route for removing a CLP; indeed, that decision did not address its mind to the powers under s. 190 . [ 47 ] In Daniels Investments , the Saskatchewan Court of Appeal dealt with the removal of CLPs within a framework which is similar to, but clearly not the same as, the framework in Alberta.

The Saskatchewan legislation reads: 46(1) Commencing an action or matter in which any title to or interest in land is brought in question is not deemed to be notice of the action or matter to any person who is not a party to it until an interest based on a certificate of pending litigation, accompanied by a certificate of pending litigation signed by the local registrar, is registered in the Land Titles Registry.

(2) A certificate of pending litigation must: (

a) certify that some title or interest in land is called in question by an action or matter pending in the court; and (

b) describe the land and the parties to the action or matter. (3) Subsection (1) does not apply to: (

a) an action or matter for foreclosure or sale on a registered mortgage; or (

b) an action or matter for cancellation or sale on an agreement for the sale of land of which the plaintiff is the registered owner. 47(1) A judge may make an order vacating a certificate of pending litigation: (

a) where the plaintiff or other party at whose instance the certificate was issued does not proceed with the action or matter in good faith; (

b) where the plaintiff 's claim is not solely to recover land or an interest in land, but to recover money or money's worth: (

i) that is chargeable on or payable out of land or some interest in land; or (ii) for the payment of which the plaintiff claims that the land or the interest in land ought to be subjected; (

c) where the plaintiff claims land or an interest in land and, in the alternative, damages or compensation in money or money's worth; or (

d) on any other ground that the judge considers appropriate . [Emphasis added] The Saskatchewan legislation outlines the equitable jurisdiction of a court to correct a title by vacating a CLP. [ 48 ] When interpreting that legislation, the Court of Appeal held: 14 On the other hand, s. 46 of the Act provides for the registration of a certificate of pending litigation against land. Such certificates can only be registered where an "action or matter" calls into question title to or an interest in the land. Whether that precondition has been satisfied depends solely on the pleadings.

Failure to establish that precondition has been recognized by this Court in Fisher and other cases such as Lubs v Ahmad, 2005 SKCA 125 , 275 Sask R 108, as a ground for vacating a certificate of pending litigation. 15 In my view, Fisher does not need to be reconsidered or set aside. It remains good law. Fisher dealt only with the issue of whether the certificate of pending litigation in that case should be vacated pursuant to s. 46 of the Act on the basis the plaintiff's action did not bring into question title to or an interest in the land against which the certificate had been registered.

The Court was not called upon to consider any other ground for vacating the certificate and thus did not deal with the matters enumerated in s. 47 of the Act. This Court has consistently applied Fisher only to the question of whether the requirement enunciated in s. 46 of the Act has been met (see Garden v Rizo, 2014 SKCA 90 at paras 10-11 , 442 Sask R 180; Fonagy v Hicks, 2016 SKCA 122 ).

The vast majority of decisions emanating from the Court of Queen's Bench have applied Fisher in the same manner (see Garden v Rizo, 2014 SKQB 183 , 449 Sask R 8, leave to appeal refused 2014 SKCA 90, 442 Sask R 180; Palsich v Williams, 2012 SKQB 367 ; MFI AG Services Ltd. v Sotkowy, 2012 SKQB 236 at para 21 , 398 Sask R 196; Marshall v Marshall Estate, 2009 SKQB 293 at paras 63-68 , 341 Sask R 115; Mitchelson v Jahnke (Aspen Village Land Corporation), 2009 SKQB 138 at para 13 , 333 Sask R 61; Holmes v Jastek Master Builder 2004 Inc., 2008 SKQB 367 at paras 27-38 , 323 Sask R 288 ; Tkalych v Tkalych, 2001 SKQB 208 at paras 14-15 , 208 Sask R 19). 16 Relying on Fisher, the Chambers judge in this case correctly determined that Daniels' statement of claim called into question title to or an interest in the land covered by the certificates of pending litigation as required by s. 46; however, he failed to determine whether the certificates should nonetheless be vacated on other grounds pursuant to s. 47 of the Act.

In short, he erred in law by overlooking s. 47 of the Act in his analysis and by misinterpreting and misapplying Fisher as setting out the sole ground upon which a certificate of

pending litigation can be vacated . [Emphasis added] [ 49 ] In a recent decision, our Court of Appeal has illustrated another way in which the jurisdiction under s. 190 might be addressed, i.e. by way of an injunction analysis: Starke Capital . The point of that analysis is to establish whether, prior to a trial which will decide the dispute between the parties, it is fair for a court give to one of the parties a material advantage which they did not previously have.

The two main factors in that type of analysis are whether the damage suffered by the claiming would be and whether the balance of convenience favours the claiming party. It is to be noted in the context of this application that an analysis of the balance of convenience does not require an application for

summary judgment. [ 50 ] The Starke Capital approach, i.e. of determining where the balance of convenience lies, has been used in other situations: Cappis . [ 51 ] In

summary on this point, an Albert superior court, but not a Registrar, can apply equitable principles in its analysis of whether a CLP, even one which was properly filed, should be removed from a title. A principled way to apply equity is suggested by our Court of Appeal in Starke Capital . 5. Application of the general principles here [ 52 ] Alberta Drywall has claimed an interest in land: it has claimed that the CLPs which it removed should be re-instated by the court.

However, CLPs do not grant an interest in land; in asking for the re-instatement of its CLPs, Alberta Drywall is not claiming an interest in land. The nature of the claim made by Alberta Drywall should not be embellished by the court; Alberta Drywall links its CLPs to its previous builders’ liens, which did give Alberta Drywall an interest in the land. However, that interest was voluntarily given up by Alberta Drywall; also, Alberta Drywall has not, and could not have, applied for the reinstatement of its builders’ liens pursuant to the mechanism for doing so under the Builders’ Liens Act .

In the result, Alberta Drywall has not formally claimed an interest in land and it does not, therefore, come within the ambit of s. 148(1) of the LTA ; Alberta Drywall therefore had no right to file CLPs. The Master was correct in so concluding. [ 53 ] In addition to its argument about compliance with s. 148(1) of the LTA , Alberta Drywall’s also presents an argument relating to standing; it says that Tilt-Tech had no standing to request the removal of the CLPs. With respect, this argument does not withstand the position taken by the owners of the properties on this application.

The owners assert that Tilt-Tech has a direct interest in the matter pursuant to its contractual obligations as general contractor to the owners to address registrations or encumbrances placed on title by a sub-contractor. Moreover, the owners have supported Tilt-Tech’s applications throughout. Tilt-Tech did have standing to apply for the removal of the CLPs. [ 54 ] Alberta Drywall also argues that the Master should not have made a decision on Tilt-Tech’s application because there was only “cursory” evidence before him.

With respect, the parties were all agreed on the material facts that were put before the Master. The Master had a sound basis on which to make his decision concerning the existence of only an in personam claim.

The Supreme Court’s clarion call to a change of culture whereby a court should make a decision when it can fairly do so on the materials filed justify the Master in making the decision when he did. [ 55 ] The fact that the Master’s decision was lapidary in style is a testament only to the Master’s familiarity with the area and to the fact that he was writing for the benefit of lawyers who are also familiar with the area. [ 56 ] It is possible that, when he described Alberta Drywall's filing of CLPs as an “abuse of process”, it is possible that the Master was commenting on the equities of the situation even though it was not necessary for him to further analyze Tilt-Tech's application.

If that is the correct

interpretation of the Master’s decision, I will go on to consider the second step of the CLP removal analysis. [ 57 ]

Section 190 of the LTA explicitly allows a court to consider whether even a CLP which has been properly filed pursuant to s. 148(1) of the LTA and in respect of which no judgment has yet issued on the underlying lawsuit, should remain on title. In doing so, an Alberta superior court is entitled to consider the equities of the situation.

One can therefore observe that, in the circumstances here, Alberta Drywall does not meet the balance of convenience test: - while it’s true that, if the CLPs had remained on title and Alberta Drywall’s statement of claim had not been upheld at trial, the defendants could sue Alberta Drywall for damages, a very long time gap would have elapsed before that remedy could be obtained and many additional, costly, steps would have had to be undertaken: Taylor . (Incidentally, that case is further authority for the practical effect of the filing of a caveat or a CLP on the ability to sell real property.); - the persons who suffer as a result of the CLPs are not the persons who may be at fault - Luxor and its principals - but the property owners.

Alberta Drywall has no privity of contract with the owners of the property. It is only public policy which allows them to cloud the owners’ title to the properties. The owners of the property have not been unjustly enriched by their own actions; - Alberta Drywall was properly paid for its proper builders’ lien. The second lien, for the entirety of the contract price, was undoubtedly invalid, at least in part; - money damages are obviously a proper, indeed the only proper, relief for Alberta Drywall. [ 58 ] In

summary, from an equitable perspective, the Master was correct in holding that the filing of CLPs in the circumstances here was an abuse of process. 6. Costs [ 59 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision.

Heard on the 26 th and 27 th days of April and the 5 th day of May, 2017. Dated at the City of Edmonton, Alberta this 12 th day of May, 2017. J.B. Veit J.C.Q.B.A. Appearances: Eliza A. Maynes, Maynes Radovici Lawyers for Alberta Drywall Atul Omkar Reynolds Mirth Richards & Famer LLP for the Respondent Michael Murray, (Student at Law) Shourie Bhatia LLP, for the Parties of Interest APPENDIX A Extracts from the pertinent legislation The pertinent legislative provisions include the following from the Land Titles Act : Filing of caveat 130 A person claiming to be interested in land for which a certificate of title has been issued or in a mortgage or encumbrance relating to that land (

a) pursuant to (

i) a will, settlement or trust deed, (ii) an instrument of transfer or transmission, or (iii) an unregistered instrument, (

b) by virtue of the provisions of any Act of Alberta under which that person acquired any right with respect to that land, mortgage or encumbrance, or (

c) by virtue of

(

i) having acquired through the owner or any prior owner of that land, mortgage or encumbrance, otherwise than under clause (

a) or (b), an interest in that land, mortgage or encumbrance after the first certificate of title was issued for that land, (ii) being the owner or previous owner of an interest in that land, otherwise than under clause (

a) or (b), when that interest arose after the first certificate of title was issued for that land, or (iii) being the owner or a previous owner of the mortgage or encumbrance, otherwise than under clause (

a) or (b), may cause to be filed with the Registrar a caveat on the person’s behalf in the prescribed form against the registration of any person as transferee or owner of, or any instrument affecting, the estate or interest, unless the certificate of title is expressed to be subject to the claim of the caveator. . . . Registration of certificate of lis pendens 148

(1) A person claiming an interest in any land, mortgage or encumbrance may, instead of filing a caveat or after filing a caveat, proceed by way of action to enforce the person’s claim and register a certificate of lis pendens in the prescribed form.

(2) A person who has proceeded by way of action to call into question some title or interest in any land may register a certificate of lis pendens in the prescribed form. Compensation re certificate of lis pendens 149 A person filing or continuing a certificate of lis pendens without reasonable cause is liable to make compensation to any person who may have sustained damage by that filing or continuation. . . . Cancellation of certificate of lis pendens 152 The Registrar shall cancel the registration of a certificate of lis pendens on receiving (

a) a certificate from the clerk of the court stating that the proceedings for which the certificate of lis pendens was granted are (

i) discontinued, or (ii) dismissed and the time for commencing an appeal has expired and no appeal has been commenced, or if commenced, has been finally disposed of or discontinued, (

b) a withdrawal of the certificate of lis pendens signed by the person on whose behalf the certificate was registered, or (

c) where a certificate of lis pendens relates to a caveat that was signed by an attorney or an agent, a withdrawal of the certificate of lis pendens signed by (

i) the attorney or the agent, as the case may be, or (ii) the person on whose behalf the certificate was registered. Builders’ liens 153(1) On receipt of a claim for registration of a lien under the Builders’ Lien Act and the entry and registration of the lien as an encumbrance against the estate or interest in the land described in the claim, the Registrar shall forthwith send a notice of the lien and of the amount claimed (

a) to the registered owner of the land, (

b) to the person alleged on the claim for lien to be the owner of the land, and (

c) to the person for whom the work referred to in the claim for lien was done or proposed to be done, or the materials were furnished or to be furnished.

(2) The notice may be addressed to the registered owner of the land and sent through the post office to the person alleged in the claim to be the owner of the land and to the person for whom the work was or was proposed to be done, or the materials to be supplied, each at their respective residences as stated in the claim for lien.

. . . Power of judge to cancel, correct, etc., duplicate certificate 190

(1) In any proceeding respecting land or in respect of any transaction or contract relating to it, or in respect of any instrument, caveat, memorandum or entry affecting land, the judge by decree or order may direct the Registrar to cancel, correct, substitute or issue any certificate of title or make any memorandum or entry on it and otherwise to do every act necessary to give effect to the decree or order.

(2) In particular and without limiting the generality of subsection (1), in any case where a title to land has been issued and the owner has entered into any contract relating to the sale or disposition of the land and if it can be shown to the satisfaction of the judge that (

a) the applicant is entitled to a transfer of the land and to be registered as its owner and the registered owner has no further interest in the land, and (

b) the registered owner is dead and no transfer of the land to the purchaser has been made or the registered owner has not been located after a reasonable inquiry and no transfer of the land to the purchaser has been made, the judge on the giving of any notice to any persons that the judge may require, may by order direct the Registrar to cancel the existing certificate of title and issue a new certificate of title in the name of the purchaser. Registration of judgment, order or certificate 191

(1) Subject to subsection (3), the Registrar shall not register a judgment, order or certificate made in any proceedings of a court that operates to cancel a certificate of title, terminate an interest in land or discharge an instrument or a caveat unless the judgment, order or certificate (

a) is consented to by all the parties to the proceedings or their solicitors, (

b) was granted ex parte and states that it does not have to be served on any person, (

c) is accompanied with a written undertaking from those persons having a right to appeal from the judgment, order or certificate, or their solicitors, that no appeal from the judgment, order or certificate will be commenced, (

d) is accompanied with a certificate of the clerk of the court that issued the judgment, order or certificate to the effect (

i) that no defence or demand of notice of proceedings has been filed in the proceedings on behalf of any defendant, or (ii) that the time for appeal from the judgment, order or certificate has expired and that no notice of appeal has been filed, or (

e) is accompanied with a certificate of a solicitor to the effect (

i) that an appeal to the Court of Appeal has been finally disposed of or discontinued, that the time for an appeal to the Supreme Court of Canada has expired and that no notice of appeal has been filed, or (ii) that the judgment, order or certificate has been appealed to the Supreme Court of Canada and that the appeal has been finally disposed of or discontinued.

(2) If a judgment, order or certificate referred to in subsection (1) has been appealed to the Court of Appeal or to the Supreme Court of Canada, a copy of the final judgment shall accompany the solicitor’s certificate referred to in clause (

e) of that subsection.

(3) This

section does not apply to (

a) an order removing a builders’ lien or removing a certificate of lis pendens with respect to a builders’ lien, or (

b) a judgment, order or certificate that expressly states that it shall be registered notwithstanding the requirements of subsection (1). In addition, the following sections from the Builders’ Lien Act are also pertinent : Creation of lien 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 the estate or interest of the owner in the land in respect of which the improvement is being made.

(2) When work is done or materials are furnished (

a) preparatory to,

(

b) in connection with, or (

c) for an abandonment operation in connection with, the recovery of a mineral, then, notwithstanding that a person holding a particular estate or interest in the mineral concerned has not requested the work to be done or the material to be furnished, the lien given by subsection (1) attaches to all estates and interests in the mineral concerned, other than the estate in fee simple in the mines and minerals, unless the person holding the estate in fee simple in the mines and minerals has expressly requested the work or the furnishing of material, in which case the lien also attaches to the estate in fee simple in the mines and minerals but not to that person’s estate, if any, in the rest of the land.

(3) A lien attaching to an estate or interest in mines and minerals also attaches to the minerals when severed from the land.

(4) For the purposes of this Act, a person who rents equipment to an owner, contractor or subcontractor is, while the equipment is on the contract site or in the immediate vicinity of the contract site, deemed to have performed a service and has a lien for reasonable and just rental of the equipment while it is used or is reasonably required to be available for the purpose of the work. . . . Money required to be retained 21

(1) Notwithstanding section 18(1) , if (

a) a certificate of substantial performance is issued for a contract, (

b) a period of 45 days has expired from the date of issue of the certificate of substantial performance, and (

c) no lien has been registered, the amount that the owner is required to retain under

section 18 is reduced by 10% of the value of the work actually done and materials actually furnished under the contract at the date of issue of the certificate of substantial performance.

(2) Notwithstanding section 18(1) , if (

a) a certificate of substantial performance is issued for a subcontract, (

b) a period of 45 days has expired from the date of issue of the certificate of substantial performance, and (

c) no lien has been registered, the amount that the owner is required to retain under

section 18 is reduced by 10% of the value of the work actually done and materials actually furnished under the subcontract at the date of issue of the certificate of substantial performance.

(3) Notwithstanding section 18(1.1) , if, with respect to improvements to an oil or gas well or to an oil or gas well site, (

c) no lien has been registered, the amount that the owner is required to retain under

section 18 is reduced by 10% of the value of the work actually done and materials actually furnished under the contract at the date of issue of the certificate of substantial performance.

(4) Notwithstanding section 18(1.1) , if, with respect to improvements to an oil or gas well or to an oil or gas well site, (

a) a certificate of substantial performance is issued for a subcontract, (

b) a period of 90 days has expired from the date of issue of the certificate of substantial performance, and (

c) no lien has been registered, the amount that the owner is required to retain under

section 18 is reduced by 10% of the value of the work actually done and materials actually furnished under the subcontract at the date of issue of the certificate of substantial performance. . . . Merging of lien 31

(1) A lien is not merged, paid, satisfied, prejudiced or destroyed by (

a) the taking of any security, (

b) the acceptance of a promissory note or bill of exchange, (

c) the taking of any acknowledgment of the claim, (

d) the giving of time for payment, or (

e) the taking of proceedings for the recovery of a personal judgment,

unless the lienholder agrees in writing that such an action is to have that effect.

(2) If a promissory note or bill of exchange issued in respect of the claim of a lienholder has been negotiated, the lienholder does not by that negotiation lose the lienholder’s lien if the lienholder is the holder of the promissory note or bill of exchange (

a) at the time of beginning proceedings to enforce the lien, or (

b) at the time of proving the lienholder’s claim in proceedings, when those proceedings are brought by another lienholder. . . . Registration of lien 34

(1) A lien may be registered in the land titles office by filing with the Registrar a statement of lien in the prescribed form.

(2) The statement of lien shall set out (

a) the name and residence of (

i) the lienholder, (ii) the owner or alleged owner, and (iii) the person for whom the work was or is being done or the materials were or are being furnished, (

b) the date when the work was completed or the last materials were furnished, or if the statement of lien is filed before the completion of the contract or subcontract, as the case may be, a statement that the work is not yet completed or the materials have not yet all been furnished, (

c) a short description of the work done or to be done or of the materials furnished or to be furnished, (

d) the sum claimed as due or to become due, (

e) a description, sufficient for registration, of the land and estate or interest in the land to be charged, and (

f) an address for service of the lienholder in Alberta.

(3) A statement of lien shall be signed by the lienholder or the lienholder’s agent.

(4) In the case of a lien arising in connection with an oil or gas well or an oil or gas well site it is not necessary to set out in the statement of lien the name of the owner or alleged owner of the oil or gas well or the oil or gas well site.

(5) When a lienholder desires to register a lien against a railway, it is a sufficient description of the land to describe it as the land of the railway company.

(6) The statement of lien shall be verified by an affidavit in the prescribed form of the lienholder or of the lienholder’s agent or assignee.

(7) When the statement of lien is made by a corporation, it shall be verified by the affidavit of an officer or employee of the corporation or its agent.

(8) When the affidavit is made by a person other than the lienholder it may be made not only as to the facts within the personal knowledge of the deponent, but also as to the facts of which the deponent is informed, if the deponent gives the source of the deponent’s information and states that the deponent believes the facts to be true. . . . Reinstatement of lien 38

(1) On an application to the court by a lien claimant whose lien has been invalidated by an order or judgment for failure to comply with

section 155 or 156 of the Land Titles Act , the court may order the reinstatement of the lien or make any other order that is just in the circumstances subject to the order not prejudicing (

a) any rights acquired in good faith for valuable consideration subsequent to the discharge of the lien at the land titles office as a result of the order or judgment invalidating the lien, or (

b) any person who has acted in reliance on (

i) the order or judgment invalidating the lien, or (ii) the discharge of the lien at the land titles office as a result of the order or judgment invalidating the lien.

(2) In a proceeding under this section, the court may extend any time limits provided for under this Act as the court considers proper in the circumstances.

(3) The application shall be served on all persons who by the records of the land titles office appear to have an interest in the land in question and on any other persons that the court may direct.

(4) All persons, including lienholders, served with an application are parties to the proceeding.

(5) A court clerk in the judicial centre in which a proceeding is begun under this

section may grant a certificate of lis pendens to a lien claimant (

a) who is a party to the proceeding, and (

b) whose lien was invalidated for failure to comply with

section 155 or 156 of the Land Titles Act .

(6) A lien claimant who is granted a certificate of lis pendens under subsection (5) may cause the certificate of lis pendens to be registered in the appropriate land titles office.

(7) On receiving (

a) a certificate from a court clerk stating that the proceeding for which a certificate of lis pendens was granted is discontinued, or (

b) a withdrawal of a certificate of lis pendens signed by the person on whose behalf the certificate was registered, the Registrar shall cancel registration of the certificate of lis pendens.

(8) No order or judgment shall be made or granted in any action, including any action commenced before the coming into force of this section, invalidating a lien for the failure of the statement of lien to comply with

section 155 or 156 of the Land Titles Act . . . . Expiry of registered lien 43

(1) A lien that has been registered ceases to exist unless, within 180 days from the date it is registered, (

a) an action is commenced under this Act (

i) to realize on the lien, or (ii) in which the lien may be realized, and (

b) the lien claimant registers a certificate of lis pendens in respect of the claimant’s lien in the appropriate land titles office.

(2) A court clerk in the judicial centre in which an action is begun may grant a certificate of lis pendens to any lienholder who is a party to the proceedings.

(3) Any lienholder who is a party to the proceedings may cause a certificate of lis pendens to be registered in the appropriate land titles office.

(4) On receiving (

a) a certificate from a court clerk stating that proceedings for which a certificate of lis pendens was granted are discontinued, or (

b) a withdrawal of a certificate of lis pendens signed by the person on whose behalf the certificate was registered or the person’s agent, if the claim was signed by that agent, the Registrar shall cancel registration of the certificate of lis pendens.

(5) The Registrar without charge may on the Registrar’s own initiative, and shall on request, cancel registration of a lien where the lien has ceased to exist under subsection (1). Finally, Rule 6.14(3) of the Rules of Court states: 6.14(3) An appeal from a master's judgment or order is an appeal on the record of proceedings before the master and may also be based on additional evidence that is, in the opinion of the judge hearing the appeal, relevant and material.