Avli BRC Developments Inc v BMP Construction Management Ltd, 2021 ABQB 412

Court of Queen’s Bench of Alberta Citation: Avli BRC Developments Inc v BMP Construction Management Ltd, 2021 ABQB 412 Date: 20210527 Docket: 2001 01246 Registry: Calgary Between: Avli BRC Developments Inc.

Applicant - and - BMP Construction Management Ltd. and 1024876 Alberta Ltd. and 1093776 Alberta Inc. and CP Distributors Ltd. and EAP Construction Ltd. and 1970805 Alberta Ltd. operating as Starlight Lighting and Alsa Road Construction Ltd. and DESA Glass a division of DESA Holdings Ltd. and Grant Metal Products Ltd. and Shanahan’s GP Ltd. and 1037375 Alberta Ltd. operating as Trades Labour Corporation Calgary and Fast Fence Rentals Ltd. and ElecTech Contracting Ltd. and Dick’s Lumber a division of Rona Inc. and Diamond Contractors and Rimrock Landscaping and Property Management Respondents Docket: 2001 01263 Registry: Calgary And between: William Off Whyte Developments Ltd.

Applicant - and - BMP Construction Management Ltd. and Sieben Cement Contractors Ltd. and Igloo Building Supplies Group Ltd. and ASCA Contracting Ltd. and 1093776 Alberta Ltd. and ProSpark Electrical Ltd. and Super Save Fence Rentals Inc. and Super Save Disposal (Alberta) Ltd. and 1970805 Alberta Ltd. operating as Starlight Lighting and 2001426 Alberta Ltd. operating as Ultimate Tradesmen Edmonton and Trades Labour (Edmonton) Corporation and Regal Building Materials Ltd. and Nerval

Corporation and Avanti Painting and Remodeling Ltd. and 1197855 Alberta Ltd operating as Just Done Appliance Installationsand Points West Mechanical Ltd. and Excalibur Control Products Inc. and Divinci’s Finishing Carpentry Ltd. Respondents _______________________________________________________ Memorandum of Decision of A.R. Robertson, Q.C., Master in Chambers _______________________________________________________ Introduction [1] Two residential condominium projects were being constructed in 2019 for the benefit of two related owners. [2] One project is in Calgary.

The owner of that project is Avli BRC Developments Inc. The other is in Edmonton. The ownerof that project is William Off Whyte Developments Ltd. For both projects, the general contractor was BMP Construction ManagementLtd. [3] Construction suddenly stopped. The reasons why this happened are yet to be determined. The disputes between the twoowners and the general contractor have been referred to arbitration. The owners assert that there are deficiencies. I have no details ofwhat the deficiencies are said to be. [4] BMP Construction was not paid for some of its invoices. It did not pay its subcontractors.

This led to a host of builders’liens being registered by both BMP Construction as well as its sub-trades and suppliers. In one case, a lien was registered by a sub-subcontractor. [5] An application was brought in each of the two separate actions on behalf of the owners pursuant to

section 48 of theBuilders’ Lien Act, RSA 2000, c. B – 7 (the “BLA”). Orders were obtained on November 12, 2020, and security was posted by way oflien bonds. In the meantime, more than 180 days had elapsed since the liens were filed, and a number of lien claimants had not filedstatements of claim with the Court of Queen’s Bench and registered certificates of lis pendens so as to preserve their liens.

Accordingly,counsel for the owners applied for declarations that those liens were not valid and obtained an order for the reduction of the security. [6] However, many of the lien claimants had issued statements of claim, almost all in separate proceedings, and had registeredcertificates of lis pendens. Many of those who took steps to preserve their liens have been either successful in obtaining orders declaringtheir lien to be valid, or that application is brought now. No issue with the validity of many of those liens was put forward by either thegeneral contractor BMP Construction, or by the owners.

However, some of the liens registered against the Calgary project arechallenged by Avli BRC. Those challenges are discussed below. [7] Some of the applications currently before me, in addition to those for declarations that the liens are valid, include

summaryjudgment applications by the various subcontractors against the general contractor BMP Construction, and two include

summaryjudgment applications against the owners. [8] The primary issues before me were initially whether an interim, or perhaps final, distribution can be made to thesubcontractors (and, one case, a sub-subcontractor) from the funds preserved by the orders under

section 48, and whether certain of thelien claims are valid. Additional issues relate to interest, costs, and whether

summary judgments should be granted against either thegeneral contractor, the owners, or both. [9] Shortly before the hearing, some of these issues were resolved. Both BMP and the owners agreed that a partial payment ofthe major lien fund could be made to the subcontractors other than BMP Construction. [10] Section 18(3) of the BLA provides for a major lien fund that has two components. First, there is a minimum of 10% of thevalue of the work done or material furnished. The parties call this “Part A” of the major lien fund. [11] The fact that no set-off is allowed as against the minimum hold back was indirectly established by the Court of Appeal inCommunity Capital Management

(1976) Ltd v Master Mechanical Plumbing & Heating Ltd, 1981 ABCA 149. [12] After referring to some earlier decisions, the Court said this: Since those two decisions a definition of lien fund has been introduced and it is my view that the difficulties have been put to rest. Inorder to give the lien claimants access to a fund in excess of 15 per cent, the additional amount must be “payable under the contract”. Ifit is not payable under the contract the lien holders cannot have resort to it. This

interpretation is consistent with the view that this typeof legislation is directed towards ensuring that the hold back is retained, not to the creation of an additional fund for lien claimants:Noranda Exploration Co. Ltd. and Noranda Mines Ltd. v Sigurdson [ (SCC), [1976] 1 S.C.R. 296].

[13] This decision has been followed several times in subsequent cases (both before and after 1985 when the Builders’ Lien Actwas re-written) in the following cases, where it has been made clear that the minimum lien fund is available to the sub-contractors andsuppliers regardless of the owner’s claim of set-off as against the general contractor: (

a) Belanger v Pointer Construction Group Ltd, , 54 A.R. 139 (M.C.); (

b) Parizeault v Pointer Construction Group Ltd, , 31 Alta. L.R. (2d) 336 (M.C.); (

c) Calgary Masonry Supplies v Staher Allen Holdings Ltd, , [1994] 4 W.W.R. 425 at para. 25 (Q.B.); and (

d) Plouffe v Fountains of Mission Ltd, 2006 ABQB 321 at para. 22 (Q.B.). [14] Parizeault is especially clear on this point. At paragraph 22, Master Funduk said, The 15 per cent cannot be encroached on by claims for set-off, or for any other reason.

Lien claimants are assured of at least 15 per centof the value of the work done. [15] Since these cases were decided, the 15% minimum holdback in the Builders’ Lien Act has been reduced to 10%. [16] The second component of the major lien fund, or “Part B”, is any additional sum due and owing to the general contractor, butthe owners of both projects claim to be entitled to set off their claims for damages against this second component.

The entitlement to setoff against Part B is well established in law: Lloydminster Roman Catholic Separate School District No 34 v Border City Transit Mix(1980) Ltd, at para. 24, where Master Funduk expressed the opinion that Community Capital Management “does notpreclude an owner advancing a claim of equitable setoff for damages (which is a defence) to show there is no amount payable over the15 per cent.” [17] In the case of the Calgary project, that means that 100% of the subcontractors’ valid liens can be paid, because the amount ofthe minimum holdback was enough to cover all of the subcontractors’ lien claims.

It is not necessary to determine the full amount of themajor lien fund to reach this conclusion. For the Calgary project, the balance of the major lien fund might be available to secure BMPConstruction, the general contractor.

That depends on the outcome of the arbitration proceedings between the owner and the generalcontractor. [18] In the case of the Edmonton project, BMP Construction and William Off Whyte (“WOW”) agreed that “10% of the value ofthe work actually done or materials actually furnished by” BMP Construction, being the minimum major lien fund described insubsection 18(3) of the BLA, was no less than $493,185.30.

Using the face amounts of the liens that have not been lost by failing topreserve them, that allows an interim payment to the subcontractors of 55.6% of their claims, and in the case of the only sub-subcontractor that registered a lien, 100% of its lien claim. [19] The security posted under

section 48 of the BLA was not cash deposits with the clerk of court, but rather lien bonds, but theappropriate order can be made for funds to be paid either to the clerk, to the owners’ or general contractor’s counsel, or directly tocounsel for the subcontractors for the appropriate distribution. (The alternative might be for the clerk of the court to call on the lien bondand then make the distribution, but no one has asked for that formal step and it should not be necessary.) The Calgary Project [20] In Calgary, the condominium project to be constructed was called the “Atlantic”.

The developer and owned was Avli BRCDevelopments Inc. The condominium plan was registered on October 20, 2019. After registration, all of the units (and accordingly allof the common property) was owned by Avli BRC. [21] Work continued for a short period, until at least October 31 or into November, 2019. Grant Metal Products Ltd. states that itlast performed work November 20, 2019. [22] On November 25, 2019, BMP filed three liens against this land.

One was for the entire project, in the amount of$1,953,493.70, and one was against unit 63 in the amount of $10,425.52, and one was against unit 64 in the amount of $16,098.52. [23] In addition, BMP has “delay claims” of $77,583.33 including GST, per month. BMP claims to have suffered further impactcosts, of at least $169,412.07, and those amounts were added to the liens. I am not asked to rule on the validity of BMP Construction’slien.

The Edmonton Project [24] In Edmonton, WOW entered into a contract with BMP Construction dated April 24, 2018 with a guaranteed maximum pricefor construction management services and the construction of the condominium project, to be built at 10837 – 83 Avenue NW,Edmonton. [25] On this Edmonton project, BMP says that Part A of the minimum lien fund, is $1,796,258.44, whereas WOW says that theminimum amount is $493,185.30.

WOW submits that the major lien fund cannot be established in instalments, but does not oppose apartial payment to the sub-trades, as allowed in Trotter and Morton Building Technologies Inc v Stealth Acoustical & EmissionControls Inc, 2017 ABQB 431, 2017 CarswellAlta 1248. [26] Rideau Aluminum & Steels Ltd v McKechnie, (ON CA), 1964 CarswellOnt 230, [1964] 1 O.R. 523, aff’d1965 CarswellOnt 577, [1965] S.C.R. v, 48 D.L.R. (2d) 62 says that the subcontractors are entitled to priority over the generalcontractor, BMP Construction.

BMP initially opposed a partial or full payment in which it did not share, but now acknowledges that thesub-contractors’ liens should be paid from the security in court, either entirely (on the Calgary project) or partially (on the Edmonton

project). [ 27 ] As set out in Rideau Aluminum , when the subcontractors are paid there is a credit to the balances that are owed to them by the general contractor. The same approach would follow through down to subcontractors as their sub-subcontractors are paid from the major lien fund. [ 28 ] BMP asserts that it proposed a payment plan from the security in court that would allow BMP to at least pay the sub-trades in full, leaving only BMP’s invoices delayed and, presumably subject to the arbitration decision. WOW rejected that proposal.

Complication and Duplication [ 29 ] When the liens were filed, BMP Construction asserted that WOW had told the sub-trades that it had paid BMP in full. This assertion was obviously not true, and it is not clear to me whether that was ever corrected. That may be a factor that affects costs. The proposal that BMP Construction says that it made about payment of subcontractors in full first might also affect a costs award.

I will return to this below. [ 30 ] The litigation is complicated because each of the lien claimants have each commenced their own proceedings in order to make sure that they had a certificate of lis pendens so as to preserve their lien, with the exception of Dick’s Lumber, a division of Rona Inc., which “sheltered” under the action taken by BMP Construction to preserve its lien. [ 31 ] The result is that we now have some proceedings commenced in Edmonton and some in Calgary, and the evidence of each of the lien claims is in separate court files.

Trying to find the relevant evidence is a struggle for the clerks and the Court. [ 32 ] I was first told that there were three court files in play for the application I heard on April 27, then I was told that there were five. There are far more. [ 33 ] This multiplicity of court actions is, at least in theory, avoidable because

section 50 of the Builders Lien Act allows the “sheltering” that Dick’s Lumber used. It says, “All persons named as parties in the statement of claim and all registered lienholders are parties to the proceedings.” The BLA does not state exactly what “proceedings” means, but it would seem to include an application under

section 48 , which is usually done by originating application. [ 34 ] That is, each lienholder is a party to every other lienholder proceeding. Each lien claimant should be entitled to obtain a certificate of lis pendens in the first action commenced by any lien claimant on the project, but the BLA gives no directions, and there is no well-known and established practice for doing so. In any event, when one lien claimant starts a court action the others are not immediately made aware, reducing the potential for “sheltering” under

section 50 . [ 35 ] So everyone usually starts their own lawsuit. [ 36 ] Here is the list of related lien claim actions in Edmonton and Calgary affected by this application and the orders that result from it: 1. William Off Whyte Developments Ltd. v BMP Construction et al . (the “ Edmonton

section 48 proceeding ”): 2001-01263; 2. Excalibur Control Products Inc.: 2003-04023; 3. Trades Labour (Edmonton) Corporation v BMP Construction et al .: 2001-06712; 4. 2001426 Alberta Ltd. operating as Ultimate Tradesmen Edmonton v. BMP Construction et al .: 2001-06711; 5. Points West Mechanical Limited v. BMP Construction et al .: 2003-08197; 6. Prospark Electrical Ltd. v BMP Construction et al .: 2003-08196; 7. Sieben Cement Contractors Ltd. v. William Off Whyte et al .: 2001-063234; 8. Avanti Painting & Remodelling Ltd. v. BMP Construction et al .: 2003-03409; 9. Avli BRC Developments Inc. v BMP Construction et al .: 2001-01246 (the “ Calgary

section 48 proceeding ”); 10. ElecTech Contracting Ltd. v. BMP Construction et al .: 2001-06672; 11. 1037375 Alberta Ltd. dba Trades Labour Corporation v. BMP Construction et al .: 2001-06710; 12. Rimrock Landscaping and Property Management v. Avli BRC et al .: 2001-06687; 13. Grant Metal Products Ltd. v. Avli BRC et al : 2001-05726; 14. Alsa Road Construction Ltd. v Avli BRC et al : 2001-02554; 15. 1970805 Alberta Ltd. o/a Starlight Lighting v Avli BRC et al .: 2001-01366; 16. Shanahan’s Limited Partnership by its General partner Shanahan’s GP Ltd. v. BMP Construction et al .: 2001-05271; 17. Desa Glass, a division of Desa Holdings Ltd. v. BMP Construction et al .: 2001-06579; and

18. Dick’s Lumber, a division of Rona Inc., sheltered under the action BMP Construction v Avli BRC: 2001-06578. [ 37 ] Often when this sort of thing happens, one lienholder, typically either the general contractor or the lienholder with the largest claim, asks the court for direction to be made responsible for the advancement of all the lien claims generally, recognizing that there may be conflicts of interest on some points. That is, the party leading the parade may conclude that one of the lien claimants has a claim that was filed out of time, or it is otherwise invalid.

In that case an application can be brought where the counsel who is advancing the claims for the group as a whole steps out of that role and represents either his or her own client alone, or all of the lien claimants other than the lien claimant whose lien is under attack. [ 38 ] That direction was not sought here, but steps taken by Mr. Smith on behalf of Trades Labour (Edmonton), Ultimate Tradesmen, and Trades Labour Corporation had the effect of something similar.

When he brought applications (in particular, the applications that were ultimately heard by me) many others joined in with applications returnable on the same date. Those applications were shepherded by Master Prowse. Ultimately the hearing before me was heard on April 27, 2021. [ 39 ] There are other lien claimants who have preserved their claims but who did not join in the application, and so far they have not obtained orders declaring their liens to be valid. Accordingly, they do not benefit (at least not directly) from the result of these applications, and their claims are not prejudiced.

Further Applications [ 40 ] For purposes of what I hope is simplicity, this decision is being released in the two actions commenced by originating applications to seek the

section 48 orders, which I have called the “Edmonton

section 48 proceeding” and the “Calgary

section 48 proceeding”. It is in those proceedings that funds are available for distribution. There is no point in duplicating the reasons in each of the other actions. [ 41 ] All orders resulting from this decision should be styled in the applicable lien claimant’s action and the order’s

preamble should reference either the Edmonton

section 48 proceeding or the Calgary

section 48 proceeding, as appropriate. [ 42 ] With that in mind, in order to avoid confusion going forward, I direct that all further applications for interest and/or for costs (discussed below) be brought in the context of these two actions only. The funds that the lien claimants say are available to pay them were posted in these two proceedings. Therefore, if an application is brought in respect of the Edmonton project, it shall be brought in Court Docket 2001-01263.

If an application is brought in respect of the Calgary project, it shall be brought in Court Docket 2001-01246. [ 43 ] I ask that counsel for BMP Construction write to the remaining subcontractors (that is, those who did not participate in this application but who have preserved their lien claims) or their counsel (as applicable) to advise of this direction. [ 44 ] I further direct that any party may refer, as appropriate, to evidence filed previously in any of the other actions, but there should not be a multitude of different court files in play going forward, and therefore there is no need to file a new affidavit and application in two or more court files. (I refer to sections 53(3)(

d) and 50 of the BLA and rules 6.11(1)(

f) and 1.7(2).) Analysis Interim Payments [ 45 ] As discussed above, an owner may deduct, as damages, amounts to reduce the amount payable to the general contractor BMP Construction, but may not reduce the 10% minimum hold back that is secured for the benefit of the lien claimants.

After the dispute between the owners and BMP Construction have been resolved in arbitration there may be an “additional amount due and owing but unpaid” to BMP Construction. [ 46 ] With this approach, it is clear that the final amount of the major lien fund cannot be determined at this time, but a minimum amount can be determined. [ 47 ] At the oral hearing on April 27, 2021, I directed that 100% of the lien claims of the lien claimants whose liens had been declared valid on the Calgary project be paid in full.

That would leave approximately $100,000 in the major lien fund if all subcontractors’ liens are declared valid. I directed that the 55.6% minimum amount of the major lien fund for the Edmonton project be paid pro rata to the remaining lien claimants who have had their liens declared valid either previously or in the proceedings before me. [ 48 ] Since that oral hearing, several of the lien claimants have arranged for consent orders to have the money paid to their counsel. Costs [ 49 ] Mr.

Smith sought costs from that amount on behalf of the three parties that he represents. (Others did as well, but as effective lead counsel for the subcontractors Mr. Smith addressed this request.) [ 50 ] The entitlement to costs payable under the Builders’ Lien Act (as opposed to the Alberta Rules of Court ) is set out in

section 69: 69 When it appears to the court in a proceeding to enforce a lien under this Act that the proceedings have arisen from the failure of an owner or contractor (

a) to fulfil the terms of the owner’s or contractor’s contract of engagement for the work in respect of which the liens are sought to be enforced, or (

b) to comply with this Act,

the court may order the owner and contractor, or either of them, t o pay all the costs of the proceedings in addition to the amount of the contract or subcontract or wages due by the owner or contractor, or both, to any contractor, subcontractor or labourer and may order a final judgment against the owner and contractor, or either of them, in default for those costs. (My emphasis.) [ 51 ] I am not aware of a case helping construe this provision. Mr.

Smith’s clients, and the lien claimants generally who have valid liens would, of course be entitled to a costs award against BMP Construction as in any debt action under the Alberta Rules of Court . The question is whether it should be paid out of the major lien fund.

Section 69 appears to provide that it might be (and a kind of Bullock order might be made) if either (or both) of the general contractor and the owner failed to fulfil the terms of the general contract. [ 52 ] However, the

section makes no reference to the major lien fund or security posted under

section 48. That is, the extent to which a claim for costs is to be recoverable from the major lien fund (or a minor lien fund, if one exists) seems to arise, at best, from an order under

section 69. But it does expressly not say that. [ 53 ] The BLA as a whole is at best oblique on the point. The creation of the lien entitlement says nothing about an entitlement to costs. It says that the lien is created “for so much of the price of the work or material as remains due to the [lien claimant]”:

section

Section 48 says that security may be posted by Court order including an mount for “any costs that the court may fix”. That provision would not necessarily create an automatic entitlement to the major lien fund for payment of costs. It may refer to the entitlement to costs where there is a specific award made under

section 69, which would require making a determination at the conclusion of the dispute. [ 54 ] It seems likely that one or the other of BMP Construction or the owners is at fault, if not both, but the odd communication from the owners to the subcontractors to the effect that BMP had been fully paid, and the proposal that BMP Construction said it made on the Edmonton project might be factors to take into account in determining the level of costs (solicitor client costs, perhaps) as well as setting out who is to pay them. [ 55 ] My current view is that I do not appear to be in a position to determine if any costs should be directed under this

section without having seen the award of the arbitrator. The arbitration process is underway, but only barely. [ 56 ] Accordingly, I adjourned Mr. Smith’s request for costs sine die , and it will likely be inappropriate to bring that part of the application back before the Court before the arbitration is complete. The applications for costs by other lien claimants are also adjourned sine die . [ 57 ] However, further legal research may support bringing that part of the application back before the arbitration is complete. I do not discourage that.

I was simply not prepared to make an award as to costs at this juncture. Classes of Lien Claims and Priorities [ 58 ] I turn now to the question of priorities of lien claimants. This is addressed a little obliquely in subsections 18(3) and (4) of the Builders’ Lien Act in Alberta. These subsections place caps on the amount that can be claimed from the major lien fund.

Where there is only one lien registered, subsection (3) limits the claim to the amount “due and owing but unpaid” to the contractor or sub-contractor who has requested the work or the materials, with a minimum claim of 10% of the value of the work done (or materials actually furnished) of the party who requested the work or materials. [ 59 ] That is, sub-subcontractors have a limit based on the value of the claim of the sub-contractor that hired them, with a minimum based on the value of that sub-contractor’s work. [ 60 ] Using an “upside-down tree” diagram that shows the owner at the top (or “root”), then the general contractor, and then the subcontractors and suppliers (and sub-subcontractors and suppliers as is appropriate), a lien claimant’s entitlement is limited to the claim of the party above it on the diagram. [ 61 ] Subsection (4) deals with a circumstance where there is more than one lien claim.

The approach is the same, and it limits each group of lien claimants whose claims arise from work done or materials furnished by a particular contractor or subcontractor. [ 62 ] Subsection (4) therefore establishes that there are “classes” of lien claims, and since the entitlement of those claimants is set by reference to the entitlement of the party above them on the “upside down tree”, the result is that there is a priority to the major lien fund money.

The entitlement to recover from the major lien fund is determined by starting at the bottom, finding out what caps might apply to their claims, determining what is left, and then in a complex case the general contractor has a lien for the remainder of the major lien fund (if any) after the subcontractors’ and suppliers’ entitlements have been determined. [ 63 ] The result can properly be described as a priority for the subcontractor and sub-supplier lien claimants, and maybe a “super- priority” for the sub-subcontractor lien claimants.

But this “super-priority” is capped at the entitlement of the party above the sub- subcontractor lien claimant. [ 64 ] If it were otherwise, the sub-subcontractor would be claiming from a portion of the major lien fund that was created to protect others. That is, the subcontractor’s chain of claimants would be over -paid from the major lien fund.

The cap in subsection 18(4) is designed to limit that to the super-priority that might arise from the 10% minimum. [ 65 ] Excalibur Control Products Inc., as a sub-subcontractor to Points West Mechanical, asserts a “super-priority” on the basis that it is the only sub-subcontractor, and therefore it is the only member of that class of builders’ lien claimants. [ 66 ] Excalibur relies, in part, on section 61(5) of the BLA in support of its assertion that it is entitled to be paid in priority proportionally to all other sub-subcontractors.

But there are no other sub-subcontractors (at least, none who have registered liens) so it claims to be entitled to be paid first, in full.

[ 67 ] But

section 61 deals with the circumstances of an actual sale. When there is a sale the major lien fund has not been determined – the purpose of having major and minor lien funds is to allow an order setting the lien fund under sub- paragraph 48(1) (a)(ii) of the BLA in order to avoid a sale. When there is a sale, it is because no one has brought an application under

section 48. There is no security in court. If there were, there would be no sale. [ 68 ]

Section 61 has no application here. [ 69 ] Furthermore, if I am wrong on this point, subsection 61(5) says that the claimants in a class “rank without preference f or their several amounts ”, which may be a reference to the amounts to which they are entitled under

section 18. [ 70 ] Sales of land to satisfy lien claimants happen very rarely, except in the context of foreclosure proceedings by a prior mortgagee, and to my knowledge this provision has not been considered by a court. [ 71 ] Excalibur argues that that decision of super-priority is now res judicata and cannot be attacked. That may be correct. [ 72 ] In any event, Excalibur’s claim is as a sub-subcontractor to Points West Mechanical Ltd. and that sub-contractor is owed sufficient funds that the cap in subsection 18(4) has not been reached.

Therefore, it is entitled to be paid in full, and its claim is then deducted from the amount otherwise payable to Points West. The Claims of Some Claimants against the Additional Condominium Sheet: “On the request of the Corporation” [ 73 ] I now turn to issues surrounding registration of some of the statements of lien on the Calgary project owned by Avli BRC. As mentioned, there is sufficient money in the major lien fund to pay all of the lien claimants (other that BMP Construction) the full amount of their lien claims. However, certain liens are challenged by the owner, Avli BRC.

It is in its interest to minimize the claims from the major lien fund so as to maximize the amount claimed by BMP Construction against which Avli BRC can set off its damage claim. Management of the Condominium Corporation [ 74 ] The project was a residential condominium, as mentioned above, and shortly before the liens were filed Avli BRC submitted a condominium plan to the Land Titles Registrar for registration.

Upon registration of the plan, Avli BRC was no longer the owner of the lands as the was previously described, but rather it was the owner of every one of the condominium units so created. [ 75 ] Each of those units had an interest in the common property, expressed as a fraction of 10,000.

Accordingly, after the plan was registered, Avli BRC owned all of the property as before – but through its ownership of all of units of the condominium that it had created, including all of the common property. [ 76 ] Upon registration of the plan, a new condominium corporation was created. [ 77 ] Common property is the responsibility of the condominium corporation, and it is to be managed by the Board of Directors, not the owners: see ss. 37 and 28.2 of the Condominium Property Act, R.S.A. 2000, c.

C-22 (the “ CPA ”). [ 78 ] I will refer to the specific condominium corporation here as the “ Corporation ”. [ 79 ] Of course, no Board of Directors was established immediately upon registration of the plan. It never is.

The Act requires a developer to set up an interim board within 30 days after the registration of the condominium plan: 10.1(1) A developer shall, no later than 30 days after registration of a condominium plan, appoint an interim board of directors and file at the land titles office a notice in the prescribed form stating the names and addresses of the members of the interim board. [ 80 ] The CPA sets out a deadline for the developer (Avli BRC) to set up a meeting to establish a non-interim Board: 29(1) When a developer registers a condominium plan, the developer shall within 90 days from the day that the certificates of title to units representing 50% of unit factors have been issued in the name of the purchasers convene a meeting of the corporation at which a board must be elected.

(2) Notwithstanding subsection (1), if the developer does not convene a meeting of the corporation under subsection (1) within the time period determined under subsection (1), an owner may convene the meeting. [ 81 ] The use of the word “board” in the CPA includes a reference to the interim board except in respect of certain provisions, as set out in

section 1: “board” means the board of a corporation as provided for in

section 28 and, except in sections 17(2), 17.1, 28 and 29, includes an interim board; [ 82 ] Section 17(2) and 17.1 are not applicable here, and

section 28 applies specifically to the non-interim board. [ 83 ] There is no evidence that Avli BRC actually set up an interim Board of Directors as required by the CPA . The Additional Condominium Sheet [ 84 ] Avli BRC Developments Inc. points out that some of the lien claimants registered against the wrong interest in lands, or they claimed simply against the “Additional Condominium Sheet” (the “ ACS ”) and not against any specific condominium unit. Avli BRC argues those liens are invalid.

[ 85 ] The Additional Condominium Sheet is a repository for liens and other registrations.

Section 10 of the Condominium Property Act Regulation allows for its creation: 10(1) The Registrar may add additional sheets to a condominium plan on which may be made any endorsement, registration, memorandum, notification or other entry that is to be or may be made on the plan. [ 86 ] The Alberta Land Titles Procedures Manual reflects the understanding of the Registrar of Land Titles in respect of builders’ liens registered against common property.

Section 13 of the Manual says this: Builders’ Liens – If the owner of a condominium unit or the condominium requests that work be done or materials be furnished to that unit, the lien is registered against the individual owner’s certificate of title. If the condominium corporation requests that work be done or materials be furnished for the benefit of the common property generally, the lien is registered against the additional sheet. When a lien is registered against the additional sheet, a partial discharge as it pertains to the owner’s unit and the owner’s share in the common property may be registered.

See procedure under BUL-1. (My emphasis.) [ 87 ] This appears to reflect what is clearly set out in

section 78 of the CPA :

(1) For the purposes of the Builders’ Lien Act , (a) …; (

b) if on the request of a corporation (

i) work is done in or on or in respect of the common property or a unit, or both, or (ii) material is furnished to be used in or on the common property or a unit, or both, intended for the benefit of the common property generally, any lien that arises under that Act in consequence of it is on the estates of all the owners in all the units and the common property;

(2) Where (

a) a lien referred to in subsection (1)(

b) arises, and (

b) a statement of lien is registered against the condominium plan, that statement of lien, on being registered against the condominium plan, (

c) is deemed to be also registered against the certificate of title for each unit, and (

d) may be enforced against the common property and each unit in the same manner as if the statement of lien were specifically registered against the estate of each owner and that owner’s share in the common property. Who Requested the Work? [ 88 ] Avli BRC acknowledges that although a lien registered on the ACS “is deemed to be also registered against the certificate of title for each unit” (paragraph 78(2)(

c) of the CPA ), that provision is only in play if work is done or material is supplied “on the request of [the] corporation” (para. 78(1)(b)) - being the newly-created condominium corporation that was created upon registration of the condominium plan, but which did not yet have a Board of Directors who might have requested the work. [ 89 ] As I have said, it is the Board of Directors that manages the common property of the condominium corporation, not the owners of the units: see ss. 37 and 28.2 of the CPA . [ 90 ] Avli BRC argues that the work was requested by it, in its capacity as developer, before the condominium corporation was created, not by the condominium corporation, even though Avli BRC owned every unit once the plan was registered.

Therefore, it submits that paragraph 78(2)(

c) does not apply. Avli BRC argues that the liens should have been registered against each and every title if the lien claimant wanted to claim against the common property. [ 91 ] This issue relates to the liens registered by Grant Metal Products Ltd., Desa Holdings Ltd., 1093776 Alberta Inc., and EAP Construction Ltd. Grant Metal Products [ 92 ] Additionally, Avli BRC argues that Grant Metal Products Ltd.’s statement of lien (registered only against the ACS) named the wrong owner.

That statement of lien said that the owner of the interest that Grant Metal was claiming against was the Corporation, although it correctly named BMP Construction as the party that requested the work. But it should have named Avli BRC as the owner, because Avli BRC owned the common property through its ownership of all of the units. The Corporation does not own the common property. [ 93 ] Its lien was only registered against the ACS, not against each certificate of title to the units. 1093776 Alberta Inc. and EAP Construction Ltd.

[ 94 ] These two lien claimants did not submit briefs or attend at the application by counsel. Their liens were only registered against the ACS. Desa Holdings [ 95 ] Desa Holdings’ statement of lien did say (correctly) that Avli BRC was the owner and that BMP Construction was the party that requested the work. However, Desa’s lien was also only registered on the ACS, not against each certificate of title. It does not say that the Corporation had requested the work.

Further Argument: Common Property Cannot Be Alienated without the Unit [ 96 ] The first question is whether the registrations against the ACS, alone, were effective. That than takes us to the question of whether the newly-created Corporation had requested the work. [ 97 ] However, Avli BRC further argues that the registration of a statement of lien only against the common property must be ineffective because the common property cannot be disposed of or charged separately than a unit or units: section 6(3) of the CPA .

Although no sale of the land is contemplated here, the argument is made in the basis of how the BLA works, as a whole. [ 98 ] But its main argument, of course presumes that the registration against the common property that was intended to be achieved by registration against the ACS was completely ineffective. If it was effective, then the lien is deemed to have been registered against the certificate of title to each unit: para. 78(2)(c). [ 99 ] If paragraph 78(1)(

b) applies, then there is no issue about alienating “orphan” common property. The lien is deemed to have been registered against all of the unit titles. No one could sell the common property without the units. The Big Picture [ 100 ] Avli BRC was still running things when the liens were registered. [ 101 ] The common property is supposed to be the responsibility of the Corporation, which is managed by a Board of Directors, but that can only happen once one has actually been set up under

section 29 of the Act. [ 102 ] Nonetheless, after the registration of the condominium plan work continued on the common property under Avli BRC’s direction, for a short period of time until BMP Construction and its subcontractors stopped working because they were not being paid. All work stopped around the same time. [ 103 ] So who was managing the common property during that interim period? It had to be the Corporation in some manner, but without a Board of Directors, it must have been the developer, Avli BRC, acting in the role as interim Board.

Otherwise everyone, including Avli BRC as owner of all of the units, was trespassing. [ 104 ] The continuing work had to be at the request of the Corporation. That seems intuitive and obvious. [ 105 ] But Avli BRC argues otherwise. It says that Avli BRP had requested the work and was expected to complete it. No one would suggest otherwise. But that does not address the issue. [ 106 ] That requires a careful analysis of the legal principles in play.

Who Was Minding the Store? [ 107 ] If we follow its own logic, Avli BRC, as the owner of all of the units, would have had no authority to allow any construction work to be done on the common property once the plan was registered.

Only the Board of Directors, as manager of the Corporation’s common property, could allow that, and there was not yet any Board of Directors in existence to do that. [ 108 ] The first version of the Board of Directors would have been the interim board, which Avli BRC was required set up. (The plan was registered October 20, and work began to stop October 31.) [ 109 ] Following Avli BRC’s central argument about who requested the work, until the interim board was set up Avli BRC could only allow or direct work to be done on each of the units, all of which it owned.

It had no authority to be on the common property either directly or through its general contractor BMP Construction and its subcontractors because the continuing work had not been requested by the Board of Directors. [ 110 ] But the units of a condominium are often mostly air – the structure of an apartment-style condominium (as this is) is mostly common property. The roof is common property. The walls (other than interior partitions) are common property. The entrances and elevators are common property. The hallways are common property. The walkways leading to the entrances are common property.

The demising walls separating the units are common property. [ 111 ] Therefore, most of the work, if not all of it (other than perhaps the painting of the interior unit walls) done by BMP Construction and its subcontractors, done on behalf of Avli BRC, must have been on the common property. [ 112 ] The CPA indicates that just because the plan has been registered does not excuse the developer from further responsibilities for the construction of the project. It has some specific obligations. For example, it must provide an occupancy permit: s. 12.1 of the CPA .

It must set up an interim board promptly after registration. It must arrange for a general meeting where a non-interim board must be created. [ 113 ] That would seem to assume some continued work is expected to be done by the developer – (

a) managing the assets of the

Corporation until a non-interim Board of Directors has been created at a meeting convened by the developer (or, failing the developer, anowner of a unit) under

section 29, and (

b) facilitating the lawful use of the new premises that it has constructed. [114] Nonetheless, Avli BRC argues that the work being done by these lien claimants was not done specifically “at the request of thecorporation”, but rather only by Avli BRC before it registered the condominium plan. Therefore, it argues, the registration of liensagainst the ACS was ineffective to register against any interest. [115] The issue therefore revolves around whether the work was “requested” by the Corporation - which Avli BRC controlled.

Post-Incorporation Contracts [116] The Supreme Court of Canada addressed pre- and post-incorporation contracts recently, in the context of a condominiumdevelopment, in Owners, Strata Plan LMS 3905 v Crystal Square Parking Corp, 2020 SCC 29. That case arose under the BritishColumbia condominium legislation, which is the Strata Property Act, S.B.C. 1998, c. 43. [117] The Alberta Condominium Property Act states that the Business Corporations Act (“BCA”) does not apply to condominiumcorporations: s. 25(5). Accordingly, the provision in the BCA relating to pre-incorporation contracts (s. 15, RSA 2000, c.

B-9) does notapply to condominium corporations, just as is the case in B.C. [118] In Owners, the Supreme Court therefore looked to the common law to deal with a contract made by the developer inanticipation of the completion of the project, to determine whether the new condominium corporation was bound by it, post-incorporation of the condominium (or “strata”) corporation.

This is described as a “post-incorporation contract”. [119] The sort of contract that the Court was dealing with was different from the construction contract here, but in my view theprinciples that the Court relied on apply. [120] The Court noted that a corporation can enter into a post-incorporation contract on the same terms as the pre-incorporationcontract entered into by the developer: paragraph 26. [121] Determining whether this has happened involves considering the conduct of the parties and the surrounding circumstances:Owners, paragraph 28. [122] The Court also considered a line of cases that approached a more subjective analysis: “considering whether the company’s post-incorporation conduct was animated by an erroneous opinion that the company was bound by the pre-incorporation contract” (para. 28),but the Court considered this subjective approach to be “anomalous” because “parties’ reasonable expectations are generally protected inthe common law of contracts”: paragraph 31.

Reasonable Expectations [123] There are several cases decided by the Supreme Court of Canada to the effect that the “reasonable expectations” of the partiesgovern the resolution of claims of various kinds, for example BCE Inc v 1976 Debentureholders, 2008 SCC 69 , [2008] 3 SCR560 (corporate oppression); Bhasin v Hrynew, 2014 SCC 71, [2014] 3 S.C.R. 494 (contract performance); CM Callow Inc v Zollinger,2020 SCC 45 (contract performance); and Honda Canada Inc v Keays, [2008] 2 S.C.R. 362, 2008 SCC 39, citing Hadley vBaxendale, 9 Ex. 341, 156 E.R. 145 (1854) (damages in a wrongful dismissal claim). [124] At paragraph 33 of Strata, the Court stated this: In sum, an “outward manifestation of assent by each party such as to induce a reasonable expectation in the other” is required in order tofind that a binding post-incorporation contract exists: Waddams, at §25.

The test is objective. It requires an examination of how eachparty’s conduct would appear to a reasonable person in the position of the other party: P. Benson, Justice in Transactions: A Theory ofContract Law (2019), at pp. 112-13. Thus, a court should determine whether a reasonable person in the position of one party wouldconsider that the other party’s conduct constituted an offer: Grant v. Province of New Brunswick (1973), (NB CA), 6N.B.R. (2d) 95 (S.C. (App. Div.)), at para. 12.

And, conversely, whether a reasonable person in the position of the latter would considerthat the former’s conduct constituted an acceptance: Saint-John Tug Boat [v Irving Refinery Ltd, , [1964] S.C.R. 614], atpp. 621-22. The pre-incorporation contract is merely one aspect of the objective circumstances that can be used to interpret the parties’conduct and from which the terms of a post-incorporation contract may be inferred. [125] Given that (

a) the Corporation here was fully within the control of Avli BRC throughout, and (

b) the expectations of all parties must have been that Avli BRC would cause a condominium plan to be registered, so that (

c) the resulting owners (Avli BRC itself in the first instance) and the resulting Corporation would enjoy the benefit of the work andmaterials supplied by BMP and its sub-contractors and suppliers, the Corporation must, in these transition circumstances, be found to have fully ratified and adopted all of the terms of the constructioncontract between Avli BRC and BMP Construction, thus in effect requesting that the work be completed. [126] Accordingly, the Corporation must have requested that work that was done after the registration of the plan.

Furthermore, byadopting the pre-incorporation contract, it must be deemed to have ratified the request for the work done previously by its assumption ofthe contract as a “post-incorporation contract”. The Corporation was controlled by Avli BRC notwithstanding that it had not yet gottenaround to setting up an interim board of directors. [127] If the Condominium had not requested the work, then Avli BRC had no authority for either it or its subtrades to be on the

common property after the plan was registered. [ 128 ] Accordingly, in my view the work done by the subcontractors was requested by the Corporation, and the liens are not invalid, as against all of the units, on that ground. Substantial Compliance [ 129 ] In addition, the failure to follow any of the requirements of

section 34 of the Builders’ Lien Act (which sets out how a lien is to be registered) does not necessarily invalidate it, other than the requirement of actual registration. Substantial compliance is enough. That

section provides as follows: 37(1) A substantial compliance with

section 34 is sufficient and a lien shall not be invalidated by failure to comply with any requirements of

section 34 unless, in the opinion of the court, the owner, contractor, subcontractor, mortgagee or some other person is prejudiced by the failure.

(2) When, in the opinion of the court, a person is prejudiced by a failure to comply with

section 34 , the lien shall be invalidated only to the extent that the person is prejudiced by the default.

(3) Nothing in this

section dispenses with the requirement of registration of a lien. [ 130 ] The determination of whether there has been prejudice is to be “in the opinion of the court”. There is no evidence put forward suggesting that Avli BRC has been prejudiced by these concerns about registration. [ 131 ] I made some general comments about why only “substantial compliance” with

section 34 is required, so long as no one is prejudiced, in International Brotherhood of Electrical Workers, Local 424 v Imperial Oil Resources Ventures Limited , 2017 ABQB 434 .

In that decision I reflected on the reality that builders’ liens are often registered by the subcontractors themselves (as was the case here for some lien claimants), not lawyers. [ 132 ] My views do not change simply because a law firm is involved in trying to find the correct legal description of the property – neither a purchase order, nor a contract, nor a change order or any other documents the subcontractor has received would normally disclose the legal description of the property. The quest could be made more difficult, perhaps, after a condominium plan has recently been registered.

A lien claimant claiming against all of the common property and units must then try to find out how many units there are in total, and on which one or more of them the lien claimant has actually worked, or provided materials for. [ 133 ] All of this, of course, must be done before the expiry of 45 days from abandonment or completion of the job, and sometimes that deadline is not clear while the claimant is preparing, executing, and registering the statement of lien. [ 134 ] The BLA was intentionally written to anticipate some error, provided the lien was actually registered in time and no one is prejudiced by the error.

If someone is prejudiced, the lien is to be invalidated only to the extent that there is prejudice. [ 135 ] To the extent that any of the subcontractors’ liens are invalid, BMP Construction is entitled to claim more against the lien fund. That is, the errors and potential invalidation of the liens could not affect the major lien fund unless a successful set-off against BMP Construction’s claim reduced the major lien fund below the amount necessary to play the subcontractors in full.

That might affect the Edmonton project. [ 136 ] In my view, the registrations against the ACS were substantial compliance in the circumstances of this case. They are not invalid on this ground. [ 137 ] In the result, the liens of Grant Metal and Desa Holdings are declared to be valid. To my understanding, 1093776 Alberta Inc. and EAP Construction Ltd. have not made an application to have their lines declared valid, so the details of their claims have not been considered yet.

Rimrock Landscaping and Property Management Ltd. [ 138 ] Avli BRC also argues that Rimrock Landscaping and Property Management Ltd. only registered its lien claim against unit 106. But Rimrock’s work related to the project as a whole, involving the installation of a privacy fence, landscaping (trees, grass, loam, mulch), the installation of a deck, a bike rack and other work, as well as a two-year maintenance commitment. That would be all, or almost all, on common property.

By registration against unit 106, it would have at least registration on the share of the common property owned by the owner of unit 106, which was Avli BRC. [ 139 ] That means the lien is valid as against unit 106 and the common property attached to it, at least. [ 140 ] Does it mean the lien is only valid to the extent of a small amount? I am not aware of any case law that would suggest that.

What it might mean is that if there were a sale of the project to pay the lien claims, and unit 106 were sold separately, then only the reasonable share of the proceeds attributable to unit 106 would be available to Rimrock. But there will be no sale.

The security in court stands in place of the land. [ 141 ] I am of the view that, subject to evidence of prejudice, the validity of the registration against land in respect of which there is a common purpose, including some geographical proximity, does not invalidate the lien because of the error in respect of not registering against all of the land on which work was done: MJL Ltd v Prairie Mountain Construction

(2010) Inc , 2016 ABQB 395 , 2016 CarswellAlta 1816 (M.C.). [ 142 ] This is also consistent with Chisholm Mechanical Contractors Ltd v Regard Enterprises Ltd , 1983 CarswellAlta 459, 48 A.R. 385 (M.C.) where a lien was found to be valid notwithstanding that it had been registered against only the certificate of title to one of two

lots that comprised the lands that benefitted from the work. [143] In these circumstances, none of the other lien claimants are challenging Rimrock’s lien. With both BMP Construction andRimrock having liened for the same work, the only prejudice to other lien claimants that might be suffered by Rimrock’s failure to lienagainst all of the units would be if the priority claims of the other subcontractor’s lien claims were reduced on a pro-rata payout of thelien fund. If they are all fully paid (the case here), there is no prejudice to them. [144] The “prejudice” that Avli BRC would argue is perhaps that to the extent that Rimrock’s lien is validated under

section 37, AvliBRC will have been “prejudiced” by the validity of the lien claim against the major lien fund to the extent that the claim exceeds thevalue of the interest of unit 106. Perhaps Avli BRC will have less to set off against. But there is no evidence of the value of unit 106 (ifthat is the measure), and in my view this is not the “prejudice” that

section 37 contemplates, because whenever

section 37 is invoked theresult is that a lien is held to be valid notwithstanding some defect in registration. [145] In my opinion, Avli BRC was not prejudiced by the registration by Rimrock of its lien against only unit 106. It did nothingdifferent based on the error. There was no subsequent registration on the title to another unit that would be affected by allowing the liento stand as against the entire project.

The allowance of the lien claim as against the major lien fund still leaves an excess in the majorlien fund (leaving aside BMP Construction’s claim against it). [146] In the result, Rimrock’s lien is declared to be valid as against the entire Calgary project land. Shanahan’s GP Ltd. [147] The facts of Shanahan’s lien parallel those of Rimrock, except that the lien was only registered against unit 1. I declare that liento be valid as well. Other Issues Costs [148] As discussed, I adjourned the claims for costs sine die. Interest [149] I do the same for the claims for interest.

A claim for interest is not as automatic or straightforward as it might be thought. [150] To the extent that the claim for interest may be recoverable from the major lien fund, there must be clear evidence of how theclaimant is entitled to interest.

The claim affects not only BMP Construction but perhaps Avli BRC and, if there is ultimatelyinsufficient funds to pay all of the subcontractors’ claims, then it will affect other subcontractors. [151] If interest was not expressly agreed upon in the contract between the lien claimant and BMP Construction, the interestentitlement would be limited to that under the Judgment Interest Act.

To the extent that there was a clear agreement for the payment ofinterest using a formula based on the prime rate of a particular bank (as is asserted by one lien claimant, at least) there must be evidenceof what the prime rate referred to is (banks usually have more than one), at the applicable time. In all cases there must be a basis for thestart date for the calculation. [152] Pre-judgment interest, or an award in this circumstance, should be in dollars, not expressed in an order by a formula.

Otherwise,it becomes extremely difficult to calculate later pro-rata payments (and possible deduction from the major lien fund as between BMPConstruction and Avli BRC). Once interest has been ordered for the claims generally, then each party’s pro rata share goes upconsistently. [153] And if a claimant has already taken

summary judgment against BMP Construction, then the interest claim after judgment wouldbe the entitlement under the Judgment Interest Act, not calculated at the contract rate (if there was one): Avco Financial ServicesCanada Ltd v Kilbreath, (Alta. Q.B.) and National Trust Co v Conroy, (M.C.).

Summary Judgment [154] As to the various claims for

summary judgment, I adjourned those as well. To the extent that

summary judgment might begranted as against BMP Construction, I would have stayed the enforcement until after the interim payments made by this order have beenprocessed. To the extent that some lien claimants seek judgment against the owners (Alsa Road Construction and Grant Metal), I wouldrequire a detailed explanation, supported by evidence, why the lien claimant is entitled to judgment against a party with whom it had nocontractual relationship. That entitlement does not automatically arise under the BLA.

Dick’s Lumber [155] The proceedings brought by Dick’s Lumber were stayed because they were sheltered under the BMP Construction proceedings,which were stayed. The stay of proceedings was lifted to the extent that Dick’s Lumber was allowed to seek to have its lien declaredvalid (which was done in February, 2021). I lift the stay of proceedings in that action to allow Dick’s Lumber to participate in receipt ofthe payment resulting from this decision, and to seek costs and interest at a later time. Further Directions [156] Because the security posted under

section 48 was by bond security, not a cash deposit with the clerk of the court, the ownersmay have to obtain further directions to facilitate the release of the existing bonds so as to substitute new bonds in their place afterdeducting amounts reflecting the payments directed herein. I reserve jurisdiction to hear an application for those directions, or toapprove a consent order if one is agreed upon by counsel for BMP Construction, counsel for Avli BRC, and at least counsel for Trades

Labour (Edmonton Corporation, Ultimate Tradesmen, and 1037375 Alberta Ltd dba Trades Labour Corporation. [ 157 ] In light of the numbers of lien claimants, if an application is required to address the substitution of security, it need only be served upon counsel for those parties who filed a brief for the April 27 application (notwithstanding that other lien claimants would also be affected), and they may be served by email. [ 158 ] I direct that the orders required to reflect this memorandum of decision be prepared by counsel for BMP Construction, and sent for approval as to form and content by counsel for Avli BRC.

Drafts of the orders are to be sent as a courtesy to counsel for other parties with claims on the applicable project and against the applicable major lien fund) who filed briefs for the April 27 application, and they shall be given at least a week to provide any input on the form of order to counsel for BMP Construction. However, formal approval as to form and content need only be signed by counsel for Avli BRC. [ 159 ] I thank all counsel for their careful presentation, cooperation, professionalism, patience, and courtesy throughout.

This complex and compendious set of disputes has been made much easier by the professional cooperation and organization of counsel. Heard on the 27 th day of April, 2021. Dated at the City of Calgary, Alberta this 27 th day of May, 2021. A.R. Robertson, Q.C. M.C.C.Q.B.A. Appearances: Adrianna Worman Goodfellow & Schuettlaw for the Applicants Avli BRC Developments Inc. and William Off Whyte Developments Ltd. Norman D. Anderson and Kerry Holmes Anderson Morin LLP for the Respondents, BMP Construction Management Ltd. and Sieben Cement Contractors Ltd. Jeffrey L.

Smith Wilson Laycraft for the Respondents Trades Labour (Edmonton) Corporation, 2001426 Alberta Ltd. operating as Ultimate Tradesmen, and 1037375 Alberta Ltd. operating as Trades Labour Corporation Calgary Tanner Oscapella McLennan Ross LLP for the Respondent Electech Contracting Ltd. Jennifer Davis McLennan Ross LLP for the Respondent ProSpark Electrical Ltd. Vincent Li (student-at-law) HD Law Group for the Respondent Grant Metal Products Ltd.

Stephen Mulrain Miller Thomson LLP for the Respondent Desa Glass, a division of Desa Holdings Ltd. Elena Semenova Peacock Linder Halt & Mack for the Respondent Rimrock Landscaping and Property Management Elisa Stewart Rose LLP for the Respondent Shanahan’s Limited partnership by its general partner Shanahan’s GP Ltd. Peter W.K. Ridout Ridout Barron for the Respondent Also Road Construction Ltd. Robyn High DLA Piper (Canada) LLP for the Respondent 1970805 Alberta Ltd. o/a Starlight Lighting Jonathan Hillson Dentons Canada LLP for the Respondent Excalibur Control Products Inc.

Blair Falconer Falconer Law for the Respondent Avanti Painting & Remodeling Ltd. Beth Younggren Dunphy Best Blocksom LLP for the Respondent Dick’s Lumber, a division of Rona Inc. Graham Semeniuk Biamonte LLP for the Respondent Igloo Building Supplies Group Ltd.