Young EnergyServe Inc Plaintiff/Applicant - v. -, 2021 ABQB 101

Court of Queen’s Bench of Alberta Citation: Young EnergyServe Inc v LR Ltd, LR Processing Partnership, 2021 ABQB 101 DATE: 20210212 Docket: 1601-01798 Registry: Calgary Between: Young EnergyServe Inc Plaintiff/Applicant - and - LR Processing Ltd, LR Processing Partnership, MFC Power Limited Partnership and MFC Power General Partner Ltd Defendants/Respondents _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice D.B. Nixon _______________________________________________________ I.

Introduction [ 1 ] The Applicant in this hearing is Young EnergyServe Inc (“ YESCo ”). It entered into an agreement with LR Processing Partnership to carry out a turnaround project at the Mazeppa gas processing plant (the “ Mazeppa Gas Plant ”). The Mazeppa Gas Plant is situated on land in the vicinity of High River, Alberta (the “ Mazeppa Lands ”). [ 2 ] The turnaround project at the Mazeppa Gas Plant allegedly involved: (

i) the cleaning, repairing, and relining the interior of

all tanks and pressure vessels; and (ii) the replacement of worn or faulty piping and pressure valves (collectively, the “ Turnaround Project ”). [ 3 ] Despite the provision of services, YESCo was not fully remunerated. YESCo alleges it is owed approximately $1.7 million. [ 4 ] YESCo filed a builders’ lien in respect of the Turnaround Project (the “ YESCo Lien ”). The YESCo Lien was filed against the land on which the Mazeppa Gas Plant is situated (the “ Mazeppa Lands ”). II. Issues [ 5 ] The threshold issue is whether YESCo has a proven lien under the Builders’ Lien Act , RSA 2000, c B-7 (the “ Alberta BLA ”).

If it is determined that the YESCo Lien is not valid, then the remaining issues are moot. [ 6 ] If it is established that the YESCo Lien is valid, then I will need to determine: (

i) whether the relevant assets are chattels or fixtures over which a builders’ lien can apply; (ii) whether the application to set aside a particular lease (the “ Lease ”) is res judicata or barred as an abuse of process; (iii) whether the Lease should be set aside as a fraudulent conveyance or fraudulent preference; and (iv) whether the Court should postpone the claim of MFC Power over the power plant assets to, and for the benefit of, the creditors of the LR Processing group of entities. III.

Summary of Findings [ 7 ] Given the facts and analysis, I find the YESCo Lien is not valid against the Mazeppa Lands. My reasons for this conclusion are outlined below. IV. Facts [ 8 ] LR Processing Ltd is the owner of the Mazeppa Lands.

The LR Processing Partnership operated the Mazeppa Gas Plant on the Mazeppa Lands. (LR Processing Ltd and LR Processing Partnership are sometimes referred to collectively as “ LR Processing ”.) [ 9 ] On April 5, 2014, LR Processing Ltd entered into a contract with EPS AB Energy Canada Ltd concerning the design, construction, and installation of a 16.5 MW SX ECOMAX power plant located on the Mazeppa Lands (the “ Mazeppa Power Plant ”). Amongst other components, the ECOMAX SX – 16.5MW power plant module was composed of five JGS620 GS-N.L engines (collectively, the “ Engines ”).

The total price for the Mazeppa Power Plant addition was approximately CAD$25 million. [ 10 ] Construction of the Mazeppa Power Plant began in August 2014 with the erection of a building, including its concrete foundation. That construction was completed in or about February 2015, with the installation of the Engines. [ 11 ] The Mazeppa Gas Plant was owned by LR Processing Ltd and operated by LR Processing Partnership.

The Mazeppa Gas Plant was closed down before YESCo commenced the Turnaround Project, pending regulatory approval of the continued operation of the plant. [ 12 ] The Turnaround Project was carried out by YESCo in the fall of 2015. YESCo undertook the Turnaround Project under contract to LR Processing Partnership. This contract was for the benefit of LR Processing Ltd, in its capacity as the owner of the Mazeppa Lands, and as general partner in LR Processing Partnership.

In December of 2015, YESCo completed the Turnaround Project in respect of the Mazeppa Gas Plant facilities (collectively, the " Work "). [ 13 ] The Work was required so that the Mazeppa Gas Plant could pass inspection, and continue to operate efficiently and economically.

As part of the Turnaround Project, the plant had to pass inspections by the Alberta Boiler Safety Association and the Alberta Energy Regulator. [ 14 ] The Work underlying the Turnaround Project involved cleaning, repairing, and relining the interior of all tanks and pressure vessels, and the replacement of worn or faulty piping and pressure valves. To clean a vessel, tank or tower, YESCo had to install blinds to isolate the item from the system. [ 15 ] The entire inner surface of the vessels, tanks, and towers were completely cleaned by YESCo. This was necessary so that an inspector could identify any areas: (

i) that had been weakened by wear or corrosion; and (ii) that displayed holes or cracks. Those areas were repaired, and any worn valves were replaced, as the circumstances required. [ 16 ] YESCo did not perform any Work directly on the Mazeppa Power Plant during the Turnaround Project.

However, the completion of the Turnaround Project was necessary to return the Mazeppa Gas Plant to operation so that the Mazeppa Power Plant could continue to generate electricity. [ 17 ] Between October 20, 2015 and December 6, 2015, YESCo issued five invoices to LR Processing Partnership for the Work completed on the Turnaround Project. The total amount billed by YESCo to LR Processing Partnership was $1,686,256.89. There is not full agreement between the contracting parties concerning the invoiced amounts.

The Respondents allege that the amount invoiced by YESCo for the Work is approximately 26% higher than the amount contained in underlying purchase orders issued by LR Processing. [ 18 ] LR Processing Partnership paid one invoice to YESCo in the amount of $7,261.49, but made no further payments. The balance outstanding is $1,678,995.40.

[ 19 ] YESCo filed the YESCo Lien against the Mazeppa Lands on December 23, 2015. YESCo filed the Statement of Claim in this action on February 3, 2016 (the “ Action ”). [ 20 ] YESCo filed a Certificate of Lis Pendens on February 3, 2016. YESCo filed an Amended Certificate of Lis Pendens on February 5, 2016, adding the instrument number for the YESCo Lien which had been omitted from the original Certificate of Lis Pendens . YESCo filed the Amended Certificate of Lis Pendens against title to the Mazeppa Lands on February 8, 2016. [ 21 ] The Respondents/Defendants denied the allegations.

They delivered a Statement of Defence to the Action on March 1, 2016. [ 22 ] No Defendant or other interested party has served YESCo with a Notice to Prove Lien under section 48(3) of the Alberta BLA . V. Analysis [ 23 ] A "turnaround" is a scheduled event in which processing activity at a facility is shut down for repair, maintenance, and renewal. Turnarounds are necessary because the functionality of pressure vessels, tanks, pressure piping systems and valves deteriorate with time and use. This deterioration can result in: (

i) a decline in efficiency; (ii) an increase in cost; and (iii) reduced production. [ 24 ] To ensure that deterioration was being addressed appropriately, LR Processing had to undertake the Turnaround Project. A. The Remedy Sought [ 25 ] YESCo seeks a determination that the YESCo Lien is valid against the Mazeppa Lands, pursuant to

section 6 of the Alberta BLA . This determination of the YESCo Lien is critical because it is the foundation on which the YESCo claim rests. If the YESCo Lien is not valid, the other issues underlying this dispute are moot. [ 26 ] The Respondents argue that the YESCo Lien is not valid because the Work provided by YESCo was not on, or in respect of, an “improvement” as contemplated by the Alberta BLA . B. Legislative Framework [ 27 ] With regards to the creation of a valid lien, the relevant provisions in the Alberta BLA are: (

i) the definition of “improvement” in

section 1 (d); and (ii) the prerequisites to the creation of a lien in

section 6 .

Those provisions read as follows: [section 1] In this Act, ...(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; [...] [section 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. [ 28 ] Given the wording of the definition of “improvement”, the main issue is whether the Work by YESCo was: (

i) on or in respect of an “improvement” pursuant to

section 1 (

d) of the Alberta BLA ; or (ii) simply in the nature of maintenance. C. The Context – The Turnaround Project [ 29 ] YESCo asserts that its efforts under the contract concerning the Turnaround Project resulted in: (

i) an improvement in the functionality of the vessels, tanks, piping systems, and valves; (ii) an increase their efficiency; (iii) a reduction in plant operating costs; and (iv) increased production. This Work was required on the Mazeppa Gas Plant in order to pass inspection, and to obtain the regulatory approval, which was a prerequisite to the continued operation of the facility. [ 30 ] There is no evidence to suggest that the Turnaround Project was a component of a larger construction project on the Mazeppa Lands. In particular, there is no evidence: (

i) that the overall project in this case was any broader than the Turnaround Project; or (ii) that the Turnaround Project was a component of the construction of the Mazeppa Power Plant. [ 31 ] I mention this point for context because the Alberta Courts considers “improvement” from the perspective of the “overall project” involved: Re Davidson Well Drilling Limited , 2016 ABQB 416 at para 79 [ Davidson Well Drilling ].

Based on the facts underlying this case, the Work under the Turnaround Project was not part of an overall project to build a structure on the Mazeppa Lands: see Trotter and Morton Building Technologies Inc v Stealth Acoustical & Emission Control Inc , 2017 ABQB 262 (Master Prowse) at paras 54 , 55, and 58. As mentioned above, there is no evidence that the Work was part of the overall project to build the Mazeppa Power Plant.

While there is a connection because the Mazeppa Gas Plant was to supply natural gas to the Mazeppa Power Plant, that supply nexus does not directly connect the Turnaround Project to the construction of the Mazeppa Power Plant.

D. Alberta BIA

Interpretation - Liberal vs Strict Construction [32] An important factor in the determination of whether the YESCo Lien is valid against the Mazeppa Lands concerns theconstruction of the relevant provisions of the Alberta BIA. YESCo asserts that the Alberta BLA should be interpreted liberally, accordingto the modern statutory

interpretation principles. It further asserts this interpretive position on the premise that the Alberta BLA isremedial in nature, such that it must be given a fair, large, and liberal construction to ensure the attainment of its purposes: see DavidsonWell Drilling at para 22. [33] While I acknowledge the argument of YESCo, I construe the jurisprudence to draw a distinction between: (

i) the scope of lienrights; and (ii) the procedure required to enforce a lien. On this topic, the Alberta Court of Appeal has stated that a liberal

interpretationof the BLA is called for with regard to the scope of lien rights, while a strict

interpretation applies to procedures required to enforce a lien:Davidson Well at para 22(4); citing Tervita Corporation v ConCreate USL (GP) Inc, 2015 ABCA 80, para 5; and Clarkson Co v AceLumber Ltd, (SCC), [1963] SCR 110 at 114 [Clarkson]. [34] In assessing the appropriate interpretive approach concerning the YESCo Lien, the Supreme Court of Canada has addressedthe bifurcated approach that I touched on above. In particular, the Supreme Court of Canada has cited, with approval, the dissent of KellyJA of the Ontario Court of Appeal that “... while the statute may merit a liberal

interpretation with respect to the rights it confers uponthose to whom it applies, it must be given a strict

interpretation in determining whether any lien-claimant is a person to whom a lien isgiven by it”: Clarkson at 114. [35] To reinforce the point, the Supreme Court of Canada referenced, with approval, the following comment from the SupremeCourt of Oregon: We agree with the defendant that the right to a lien is purely statutory and a claimant to such a lien must in the first instance, bringhimself clearly within the terms of the statute.

The statute is strictly construed as to persons entitled to its benefits and as to the procedurenecessary to perfect the lien; but when the claimant’s right has been clearly established, the law will be liberally interpreted towardaccomplishing the purposes of its enactment: Clarkson at 114. [36] Based on the judicial guidance of the appellate courts concerning builders’ liens, two separate interpretative steps must beapplied. First, a strict

interpretation must be applied when establishing the claimant’s right. Second, a liberal

interpretation must beapplied after the claimant’s right is established. [37] This Court has endorsed those two separate interpretative steps: see TRG Developments Corp v Kee Installations Ltd, 2014ABQB 482 [TRG Developments]. Citing the comments of the Supreme Court of Canada in Clarkson, Justice Veit stated the following inTRG Developments: The first is the lien itself. Because a lien establishes a new right, unknown to the common law, lien claimants must bring themselvesstrictly within the statutory framework. The second is notice of the lien.

A certificate of lis pendens, or certificate of pending litigation,does not create rights; therefore, the statutory framework relating to the giving of notice may be interpreted remedially rather thanstrictly: TRG Developments at para 4. [...] In

summary, case law from both the Supreme Court of Canada and our Court of Appeal establishes that, in order to establish a builders'lien, a claimant must strictly comply with the statutory pre-requisites to the creation of the right.

However, the court is entitled toliberally interpret other matters dealt with in the legislation: TRG Developments at para 27. [38] As the Alberta Court of Appeal framed it, "[t]here is ample authority for the proposition that the statute must be strictlyconstrued in determining whether any lien claimant is a person to whom a lien is given by it": PTI Group Inc v ANG Gathering &Processing Ltd, 2002 ABCA 89 at para 8 [PTI Group]. [39] In a case that pre-dates the judicial comments in PTI Group, this Court took a similar interpretive approach, and stated that“[t]here can be no doubt that a builders' lien is a unique phenomenon in our system of law, the right to which the Alberta Court of Appealhas recognized as not extending to everyone who does work connected with land.

The provisions of the Act are to be strictly interpreted":Calgary Landscape Maintenance Ltd v Khoury Real Estate Services Ltd, [1993] AJ No 585 at para 14 (QB) [Cited to QL] [CalgaryLandscape].

In another case, this Court commented, "[f]urther, authorities point to the fact that the [BIA] grants rights to workers that donot exist at common law and, as a result, must be interpreted strictly": Time Seismic Exchange Ltd v Northern Mountain HelicoptersInc, 2002 ABQB 1008 at para 18 [Time Seismic]. [40] Based on the above analysis, to establish the validity of the YESCo Lien the Plaintiff must strictly comply with the statutorypre-requisites to the creation of the right.

Once the validity of the YESCo Lien is established, the Court is entitled to liberally interpretother matters dealt with in the legislation. E. Is the YESCo Lien within the ambit of the Alberta BLA? [41] In the course of addressing this question, I reviewed the issue in the context of the Alberta BIA. However, because YESCorelied on jurisprudence from other provinces, I also address the Construction Lien Act, RSO 1990, c C30 (the “Ontario CLA”) and TheBuilders' Lien Act, SS 1984-85-86, c B-7.1 (the “Saskatchewan BLA”). 1.

The Alberta BLA [42] When asked to determine whether a builders’ lien filed by a claimant is within the Alberta BIA, the jurisprudence dictates that

the first stage of that inquiry imposes a strict

interpretation approach: Clarkson at 114; PTI Group at para 8; TRG Developments at para27; Time Seismic at para 18; Calgary Landscape at para 14. As a result, the validity of the YESCo Lien depends on whether the Workperformed by YESCo during the Turnaround Project constitutes an “improvement” to the Mazeppa Lands. This question needs to beanswered in the context of the legislative framework applicable in Alberta. [43] As outlined above, the term “improvement” is defined in

section 1(

d) of the Alberta BLA as “anything constructed, erected,built, placed, dug or drilled…on or in land”. [44] Alberta courts have determined that services must be directly related to the creation or construction of an improvement toentitle the provider to a lien under the Alberta BLA. As a result, the Courts in this province have, as a rule, rejected claims related to themaintenance and the remediation of lands. [45] The Alberta Court of Appeal has reinforced this interpretative approach by commenting that when assessing whether anapplicant and the work it performs fall within the terms of the Alberta BLA, the proper approach is to give a strict

interpretation to therelevant provisions: see Calgary Landscape at paras 13-19. That appellate Court was cited, and it stated that “[a]lthough it is clear thatservices need not be physically performed upon the improvement to fall with the meaning of the [Alberta BLA] they must [...] be directlyrelated to the process of construction”: Hett v Samoth Realty Projects Limited, 1977 ALTASCAD 120 , 3 Alta LR (2d) 97 atpara 25 (CA); see also Leduc Estates Ltd v IBI Group, (AB QB) at para 34. [46] In adopting this

interpretation, the Alberta Court of Appeal confirmed that while services need not be physically performedfor the improvement to fall within the meaning of the Alberta BLA, they must be directly related to the process of construction. As aresult, the Alberta Courts have drawn a clear distinction between the work involved in the construction of an improvement as part of theconstruction process on a building site and the subsequent maintenance.

As held in Calgary Landscape the former is “obviously relatedto ‘making or constructing’ while the latter, falling in the category of maintenance, clearly is not”: at para 12. [47] The same analysis applies against the YESCo Lien. The Work performed by YESCo involved the cleaning, repairing andrelining of the tanks and pressure vessels of the Mazeppa Gas Plant, and the repair or replacement of existing piping. [48] Given that none of the Work is related to the construction or expansion of the Mazeppa Gas Plant, I find it cannot constitutean “improvement” to the plant within the meaning of the Alberta BLA. 2.

The Ontario CLA [49] YESCo asserts that the clean-up and removal of contaminants and other materials constitutes an improvement to land, whichsupports the validity of the YESCo Lien. In advancing this argument, YESCo relies on 310 Waste Ltd v Casboro Industries Ltd, (ON SCDC) [310 Waste]. [50] The subject work underlying the 310 Waste case was carried out in Ontario.

As a result, the Court was required to considerthe Ontario CLA to reach its conclusion. [51] The relevant provisions of section 1(1) of the Ontario CLA reads as follows: "improvement" means, in respect of any land, a. any alteration, addition or repair to the land, b. any construction, erection or installation on the land, including the installation of industrial, mechanical, electrical or otherequipment on the land or on any building, structure or works on the land that is essential to the normal or intended use of the land,building, structure or works, or c. the complete or partial demolition or removal of any building, structure or works on the land; [Emphasis added.] [52] The phrase "an alteration and a repair to land" is important in the context of the remedy that 310Co was seeking, and thejurisdiction within which it was operating.

The subject work was carried out in Ontario. As a result, the Court was required to considerthe Ontario CLA. [53] The facts underlying the 310 Waste decision indicate that the case revolved around a waste removal company that performedclean-up services at a dumpsite (the “Casboro Dumpsite”). The Casboro Dumpsite was used as tire dump by Casboro Industries Ltd(“CILCo”), and there were hundreds of thousands of used tires on the property. [54] The used tires on the Casboro Dumpsite were designated as "waste" by the Ontario Ministry of the Environment (the“Ontario MOE”).

The Ontario MOE ordered CILCo to clean up its dumpsite, which required the removal of hundreds of thousands ofused tires. [55] CILCo retained 310 Waste Ltd (“310Co”) to effect the clean-up work. Claiming that it was paid only part of what it wasowed, 310Co filed a lien against the premises. A motion by CILCo to discharge the lien was dismissed. CILCo appealed. [56] In a two out of three decision, the appeal in 310 Waste was dismissed. The endorsement of MacDonald J (with Swinton J

concurring), upheld Weekes J in the Court below. In his decision, Weekes J concluded that the work performed by 310Co in removing the tires constituted both “an alteration and a repair to the land”: 310 Waste at para 7. As such it constituted an improvement, and not maintenance. He stated specifically that maintenance does not give rise to a lien under the Ontario CLA . [ 57 ] Given the absence of the words "alter," "add," and "repair" in the Alberta BLA , I find that the term “improvement” is to be construed more narrowly than the term “improvement” as defined in Ontario CLA . This narrower

interpretation of the term “improvement” under the Alberta BIA is supported by a relatively recent decision from Ontario: US Steel Canada Inc (Re) , [2016] OJ No 4025 (ONSC) [Cited to QL] [ US Steel ] . At para 18, the Court stated: Dicam relied on the decision of Steele, D.C.J. in Star Landscaping & Excavating Ltd. v Phillips for the proposition that landscaping services are lienable. The Newfoundland statute, specifically

section 7 which was in consideration includes the equivalent of improvement as defined in the CLA in that a lien can arise when a person does work or furnishes any materials for altering or repairing any land (my paraphrase of the section). The justice found that on that basis landscaping was lienable which I accept as support for my conclusions. The applicant takes issue with Steele's decision relying on Calgary Landscape Maintenance Ltd. v. Khoury Real Estate Services Ltd. , [1993] A.J. No. 585 a decision by Moshansky J. of the Alberta Court of Queen's Bench.

Justice Moshansky's decision is not of assistance as the Alberta statutory definition of "improvement" is completely different from that of the CLA and does not include "any alteration, addition or repair to the land" whereas the Newfoundland statute did. [ 58 ] Importantly, in the course of advancing its case, YESCo did not distinguish between the environmental remediation work considered in 310Co Waste and ordinary maintenance. This distinction is important because maintenance does not give rise to a lien: 310Co Waste at para 7.

In particular, regular maintenance is not sufficient to support a lien, even if it is necessary to maintain compliance with the applicable regulations of a business . [ 59 ] I emphasize that the phrase "alteration, addition or repair" or a similar phrase is absent from the Alberta BLA . That being the case, 310 Waste and other Ontario cases are distinguishable as a matter of statutory

interpretation. As a result of that clear language difference between the Alberta BLA and the Ontario CLA , I am of the view that 310 Waste does not assist YESCo in this instance. 3. The Saskatchewan BLA [ 60 ] Some Saskatchewan jurisprudence is also instructive on the

interpretation of the term “improvement”. The relevant provision is section 2(1) (

h) of the Saskatchewan BLA , and it reads as follows: "improvement" means a thing constructed, erected, built, placed, altered, repaired, improved, added to , dug or drilled or intended to be constructed, erected, built, placed, altered, repaired, improved, added to, dug or drilled on or into, land, except a thing that is not affixed to the land or intended to become part of the land and includes: i. landscaping, clearing, breaking, excavating, digging, drilling, tunnelling, filling, grading or ditching of, in, on or under land ; ii. the demolition or removal of any building, structure or works or part thereof; iii. services provided by an architect, engineer or land surveyor; [Emphasis added.] [ 61 ] The Saskatchewan BIA ties into the issue underlying the YESCo Lien because of an argument made in Davidson Well .

In particular, in the Davidson Well decision the lien applicant relied on Grey Owl Engineering Ltd v Propak Systems Ltd , 2015 SKCA 108 [ Grey Owl Engineering ] to support its lien claim for services related to repair and maintenance of oil rigs and support equipment.

I acknowledge an argument that the maintenance services underlying Grey Owl Engineering is analogous to the Work in the Turnaround Project. [ 62 ] In Davidson Well , the Receiver argued that Grey Owl Engineering should be distinguished because the Saskatchewan BIA defined "improvement" more broadly than the Alberta BLA : Grey Owl Engineering at paras 22-26 .

In particular, the Receiver tried to distinguish Grey Owl Engineering on the grounds that the Saskatchewan BLA defined “improvement” so as to include anything “altered, repaired, improved [or] added to” the land, and that language was similar to the Ontario CLA . [ 63 ] The Court in Davidson Well rejected the proposed distinction: at para 76. The reasoning of the Court was that “[t]he [Saskatchewan] BLA definition of ‘improvement’ is virtually identical. The additional express inclusions under section 2(1)(h)(

i) of the Saskatchewan Act do not detract from the breadth of the basic definition under both Acts. In any event, the issue is not whether the Work constituted an improvement, but whether [the lien claimant’s] services were ‘on the improvement’…”: Davidson Well at para 76. [ 64 ] In my view, the conclusion of the Court in Davidson Well is logical in the context of that case, and it is not inconsistent with a determination in this case that the YESCo Lien is not valid. I make this comment because: (

i) the work carried out by Davidson Well Drilling Limited involved digging and drilling; (ii) the words “dug” and “drilled” are included in the text of “improvement” in the Alberta BLA ; (iii) section 2(1) (

h) of the Saskatchewan BLA similarly contains “dug or drilled”; and (iv) subsection 2(1) (h)(

i) of the Saskatchewan BLA seems to simply expand upon the phrase. In these circumstances, the Court in Davidson Well did not need to consider the phrase “altered, repaired, improved, added to” or components thereof and did not do so, except in the context of the “overall project” discussion: at para 79. [ 65 ] Based on the above analysis, I am of the view that it would be erroneous to regard Davidson Well as standing for the

proposition that “improvement” under the Alberta BLA and the Ontario CLA is substantially the same despite the difference in language. 4. Directly Related – Maintenance Context [ 66 ] In PTI Group , the Court made clear that "services need not be physically performed upon the improvement to fall within the meaning of the [ BLA ]. They must, however, be 'directly related to the process of construction'": PTI Group at para 16 .

The Court went on to distinguish between primary services and secondary services: It is an attempt to distinguish on a principled basis between primary services which have the attributes of proximity from those which are relatively remote and which, accordingly, are properly described as secondary.

Mere contribution to the total project will not entitle the person who performed the "work" to file a lien. […]it is the degree of proximate connection to the process of construction that must be evaluated: PTI Group at para 17 . [ 67 ] Given the description and nature of the Work provided by YESCo in the Turnaround Project, I do not find it to be in the nature of "primary services." I make this finding because the cleaning, repairing, and relining the interior of tanks and pressure vessels and replacing old or faulty piping and pressure valves are not directly related to the process of construction.

Those activities are more appropriately characterized as being in the nature of maintenance. [ 68 ] Based on the judicial guidance provided by PTI Group , I find that the Turnaround Project does not amount to an "improvement" as contemplated by the Alberta BLA . As a result, YESCo Lien is not valid. VI. Conclusion [ 69 ] Given the facts and analysis in this case, I find that the Work executed on the Turnaround Project does not constitute an "improvement" as contemplated by the Alberta BLA . As a result, the YESCo Lien is not valid. VII. Costs [ 70 ] The parties may speak to costs, if they cannot otherwise agree.

Heard on the 29 th day of September, 2020. Dated at the City of Calgary, Alberta this 12 th day of February, 2021. D.B. Nixon J.C.Q.B.A. Appearances: Mr. Rick Billington QC and Andrew Hayles of Billington Barristers for the Applicant Mr. J Kenneth McEwan QC and William Stransky of McEwan Cooper Dennis LLP for MFC Power Ltd Partnership and MFC Power General Ltd, Respondents Mr. Andrew Stead and Kourtney Rylands of McMillan LLP for Raiffesien Bank International AG, Respondent Mr. Dan Jukes of Miles Davison LLP

for Unique Scaffold Inc, Respondent