Factors Western Inc v DCR Inc, 2019 ABQB 971

Court of Queen’s Bench of Alberta Citation: Factors Western Inc v DCR Inc, 2019 ABQB 971 Date: 20191218 Dockets: 1601 10423, 1601 03928 Registry: Calgary Between: 1601 10423 Factors Western Inc., formerly 1239783 Alberta Ltd. Plaintiff - and - DCR Inc. and Point Design Homes Ltd. Defendants 1601 03928 Between: Point Design Homes Ltd. Applicant - and - Allen Thiessen, Ground Zero Grading Inc., Calgary Landscaper Ltd., DCR Inc. and Factors Western Inc. Respondents _______________________________________________________

Reasons for Decision of the Honourable Mr. Justice K.D. Yamauchi _______________________________________________________ I. Introduction [ 1 ] This matter arises out of three separate actions.

One action involves the factoring by DCR Inc. ("DCR") of one of its accounts receivable (the "Factored Account") to Factors Western Inc., formerly 1239783 Alberta Ltd. ("Factors Western"), and the liability of Point Design Homes Ltd. ("Point Design") for the payment of the Factored Account. [ 2 ] Slimdor Contracting Ltd. ("Slimdor") commenced an action against DCR and Point Design in relation to work that Slimdor performed as one of DCR's subcontractors on lands registered in the name of Point Design (the "Lands"). To protect its interest, Slimdor registered two builders' liens against the Lands.

Slimdor seeks to enforce its rights under the Builders' Lien Act , RSA 2000, c B-7 [ BLA ]. [ 3 ] Point Design commenced the final action to deal with the discharge of various builders' liens that various persons, including Slimdor, had registered against the Lands. [ 4 ] Master Farrington heard Factors Western's

summary judgment application against Point Design. He rendered a decision, cited at 2018 ABQB 2004 [Farrington Decision] . He dismissed Factors Western's application, but found that, because Factors Western's application was somewhat intertwined with the other actions, he did not believe "that a fair and just result can be achieved by piecemeal resolution of the issues": Farrington Decision at para 12. Pursuant to rule 3.72(1) (

b) of the Alberta Rules of Court , Alta Reg 124/2010 [ Rules ] he suggested the following: The way to ensure a consistent, fair and just adjudication of the rights of the parties is to direct that this action be tried consecutively with the lien fund action, whether in a traditional trial or

summary trial as may be applicable, with this action being heard second, subject to the discretion of the hearing justice to decide how to best take evidence and whether to adopt evidence from one action in the other action. Proceeding in this fashion will ensure a fair and orderly resolution which resolves all of the claims of the parties and determines whether or not Point Design is found to be liable for more than the amount owing to DCR. Farrington Decision at paras 14-15. [ 5 ] Of course, in the end, it is within this Court's discretion whether it will hear this matter by way of a

summary trial, which it will discuss later in these reasons. II. Background A. Uncontested Facts [ 6 ] Point Design was, at all material times, the owner of the Lands on which it was going to construct a retail shopping plaza (the "Project"). The Lands are legally described as follows: PLAN 8211412 BLOCK S LOT 9 EXCEPTING THEREOUT ALL MINES AND MINERALS [ 7 ] On or around March 12, 2015, DCR provided Point Design with a bid for excavation, sub-grade, underground service, and various other earthworks related to the Project. Point Design amended DCR's bid to remove some of the work.

As a result of the amended bid, Point Design and DCR entered into a lump sum contract for DCR's provision of earthwork and underground services work ("Work") on the Project (the "Contract"). The principal of Point Design who inserted the amendments to DCR's bid, is Raj Chahal, who has a law degree and was called to the Alberta bar in 1998. Mr. Chahal is on the non-practising list. [ 8 ] After Point Design and DCR entered into the Contract, DCR engaged the services of several sub-contractors, including Slimdor. [ 9 ] Sometime during March of 2015, DCR commenced the Work.

Throughout the course of the Work, some extra work, not originally included in the Contract price or scope, became necessary. None of the parties disputes that this extra work was done and invoiced. Between April 20, 2015, and May 12, 2015, DCR invoiced Point Design for Work and extra work. Point Design paid those invoices. DCR provided Point Design with copies of invoices bearing a "Paid" stamp, indicating that DCR had received payment. As well, in an "Acknowledgement" dated December 29, 2015, DCR confirmed that Point Design had paid in full certain invoices, subject to holdback.

[ 10 ] On or about July 7, 2015, Point Design received DCR invoice 1-15-0092 in the amount of $216,878.92. This is the Factored Account. On or about July 9, 2015, Factors Western agreed to purchase the Factored Account. DCR and Factors Western entered into a "Sale of Specific Debt Agreement" in which DCR factored the Factored Account to Factors Western. [ 11 ] Before it advanced the purchase consideration to DCR for the Factored Account, Factors Western and DCR issued a "Notice of Sale and Assignment of Debt & Direction to Pay" (the "Notice of Assignment") to Point Design.

The Notice of Assignment advised Point Design that DCR had assigned the Factored Account to Factors Western, and it directed Point Design to remit payment of the Factored Account directly to Factors Western. When Point Design received the Notice of Assignment, it called DCR to further discuss the Factored Account, as Point Design did not agree with some of the terms, including the 30-day payment term. The Factored Account was amended on July 9, 2015, to show that it was not payable for 50 days. [ 12 ] Mr.

Chahal, on behalf of Point Design, executed the Notice of Assignment directly under the following words: ACKNOWLEDGEMENT: Please sign as indicated below and fax the signed copy to Factors Western Inc. at (403) [telephone number].

"We acknowledge herewith that the account described in the above noted invoice is due and payable without dispute or offset and undertake to make payment directly to Factors Western Inc. at the address indicated above". (the "Acknowledgement"). [ 13 ] The word "ACKNOWLEDGEMENT" is in bold-faced type. [ 14 ] Based on the Notice of Assignment and the Acknowledgement, Factors Western proceeded, on or about July 9, 2015, to provide consideration to DCR for the purchase of the Factored Account in the amount of $205,989.97.

The consideration for the Factored Account was provided through payments to several of DCR's creditors, as well as through a set-off of certain indebtedness that DCR owed to Factors Western. [ 15 ] Slimdor began working on the Project in November of 2015. No one challenges the work that Slimdor completed for DCR. [ 16 ] On or around December 22, 2015, DCR provided a certificate of substantial performance to Point Design.

On or around December 30, 2015, DCR submitted a final invoice to Point Design in the amount of $68,250, which amount includes a holdback. [ 17 ] DCR's last day of work on the Lands was December 29, 2015, when the Contract was mutually terminated. [ 18 ] A number of DCR's subcontractors, including Slimdor, registered builders' liens against title to the Lands. Factors Western first became aware that there was a builders' lien dispute in relation to the Project and the Lands more than two months after it purchased the Factored Account and received the Acknowledgement from Point Design.

As at the date of this Court hearing this matter, the only remaining builders' liens are those that Slimdor filed against the Lands. Slimdor registered one of its builder's liens on January 26, 2016, for the amount of $125,655 (the "January Lien"). It registered the other builder's lien on June 9, 2016, for the amount of $42,630 (the "June Lien"). This Court will refer to the January Lien and the June Lien, collectively, as the "Lien".

Slimdor did not commence work on the Project until November 2015, which was approximately four months after DCR factored the Factored Account to Factors Western. [ 19 ] On Factors Western's application, DCR was placed into receivership pursuant to a receivership order that Nixon J granted November 4, 2016. [ 20 ] The total amount of the Contract, plus additional work that DCR, or its subcontractors performed, is $474,979.81. Point Design has paid a total of $189,850.89 to DCR leaving $285,128.92 owing by Point Design on account of the Contract.

This amount is made up of the Factored Account, and $68,250, which is an amount that DCR and Point Design, on December 29, 2015, agreed remained due and owing to DCR pursuant to the Contract. B. Legal Proceedings 1. The Lien Action [ 21 ] On March 21, 2016, Point Design commenced an action in Court of Queen's Bench Action No. 1601- 03928, in relation to the Lien and other builders' liens that had been registered against the Lands for work done on the Project (the "Lien Action").

Among other things, Point Design sought a direction for payment of the Factored Account. [ 22 ] On November 6, 2016, Master Robertson granted a Consent Order that allowed Point Design to post security with the Clerk of the Court in the sum of $627,451, being the value of the registered builders' liens, plus ten percent for costs (the "Security"). The Security would stand in place of the Lands, and would be subject to Slimdor's lien claim and one other builders' lien claimant's claim which is not part of this action. Paragraph 6 of Master Robertson's order is important.

It provides as follows: The deposit of Security shall not constitute nor be deemed to constitute an admission by the Applicant [Point Design] as to the validity of either the Liens or the claims for money set forth in the Liens and is without prejudice to any parties' right to reapply to determine the validity of the Liens, or a lesser amount of security, namely the maximum amount to which the Liens may attach under the appropriate section(

s) of the Act. [ 23 ] Master Farrington heard Point Design's originating application to set the lien fund in a special chambers application, and issued an Order on April 19, 2017, declaring that the application be dismissed as the matter of setting the lien fund could not be determined summarily. Master Farrington further ordered that the matter of setting the lien fund go to a trial or

summary trial, as appropriate.

[ 24 ] Point Design and the other builder's lien claimant entered into a settlement agreement. This agreement resulted in a Consent Order that Master Prowse granted on January 2, 2018. The Consent Order authorized payment of $179,375 of the Security to the other builders' lien claimant, and $262,962.50 of the Security to Point Design. The balance of the Security, in the amount of $185,113.50 (the "Remaining Security") would remain in court in accordance with the terms of Master Robertson's order of November 6, 2016. 2.

The Debt Action [ 25 ] On or about June 22, 2016, Factors Western demanded payment from Point Design of the Factored Account in full, along with interest. As at that date the amount owing was $261,942.20, which included interest. [ 26 ] Factors Western did not receive payment, so it commenced an action on August 9, 2016 in Court of Queens' Bench Action No. 1601-10423 (the "Debt Action"). The Debt Action names both DCR and Point Design as defendants. [ 27 ] On November 26, 2018, Factors Western brought a

summary judgment application, seeking judgment against DCR for payment of the Factored Account. Master Farrington heard the application, which resulted in the Farrington Decision, referred to above. III. Discussion [ 28 ] Point Design does not dispute that it owes $285,128.92 pursuant to the Contract (the "DCR Debt"). However, it argues that it has not paid this amount because of the registration of builders' liens against the Lands, and the competing claim of Factors Western. [ 29 ] There are some disputed facts, which this Court will address through its discussion. A. Are These Matters Appropriate for A

Summary Trial? [ 30 ] All the parties agree that this Court should adjudicate this matter through the

summary trial procedure, as Master Farrington suggested. Master Farrington's suggestion does not bind this Court and it is ultimately within this Court's discretion as to whether it will deal with these matters by way of a

summary trial: Imperial Oil v Flatiron Constructors Canada Limited , 2017 ABCA 102 at para 16 , 51 Alta LR (6th) 70. [ 31 ] The starting point for this discussion is Rules r 7.5, which provides as follows: 7.5(1) A party may apply to a judge for judgment by way of a

summary trial on an issue, a question, or generally.

(2) The application must (

a) be in Form 36, (

b) specify the issue or question to be determined, or that the claim as a whole is to be determined, (

c) include reasons why the matter is suitable for determination by way of

summary trial, (

d) be accompanied with an affidavit or any other evidence to be relied on, and (

e) specify a date for the hearing of the

summary trial scheduled by the court clerk, which must be one month or longer after service of notice of the application on the respondent.

(3) The applicant may not file anything else for the purposes of the application except (

a) to adduce evidence that would, at trial, be admitted as rebuttal evidence, or (

b) with the judge’s permission. [ 32 ] Except in a general way, the parties have not strictly complied with Rules r 7.5. However, it is this Court's view that the substance of the matters they have addressed in the briefs they provided to it, and the materials on which they have advised this Court that they intend to rely, substantively complies with that rule. [ 33 ] Rules r 7.8 deals with a situation in which the respondent to an application for

summary trial might object to the matter proceeding in that way. That rule also provides some guidance on when a matter may be heard by way of a

summary trial. It provides that a court might deny the application if " the issue or question raised in the claim, or the claim generally, is not suitable for a

summary trial ," or "a

summary trial will not facilitate resolution of the claim or any part of it." The first

part is what this Court is presently considering. It will discuss the second

part later in these reasons. [ 34 ] The majority in Imperial Oil articulated the "correct test" for determining whether a

summary trial is appropriate by providing the following quotation from N(

J) v Kozens , 2004 ABCA 394 at paras 40-41 : The test for whether a

summary trial is appropriate is twofold: 1) can the court decide disputed questions of fact on affidavits or by any of the other proceedings authorized by the Rules for a

summary trial? 2) would it be unjust to decide the issues in such a way? ... In determining the suitability of a

summary trial, there are a variety of factors the trial judge may consider ... Imperial Oil at para 24 [citations excluded].

See also SHN Grundstuecksverwaltungsgesellschaft MBH & Co Seniorenresidenz Hoppegarten-Neuenhagen KG v Hanne , 2014 ABCA 168 at para 9 . [ 35 ] In Jagodnik v Oudshoorn , 2015 ABQB 456 at para 3 , Ross J articulated some of the "variety of factors" a chambers judge might consider when they decide whether a

summary trial is an appropriate way to proceed.

She provided the following list: 1. the amount involved; 2. the complexity of the matter; 3. its urgency; 4. any prejudice likely to arise by reason of delay; 5. the cost of taking the case forward to a conventional trial in relation to the amount involved; 6. the course of the proceedings; 7. whether all witnesses or only some were (will be) cross-examined in court; 8. whether there is a real possibility that the defendant can bolster its evidence by discovery of the plaintiff's documents and witnesses; and 9. whether the resolution will depend on findings of credibility. [ 36 ] Without diminishing the importance of the issues before this Court, the quanta of the claims are not particularly large, and the issues are not complex.

They involve questions concerning the priority of claims relative to each other. Although no party has raised the issue of prejudice arising from further delay, all parties want to proceed by way of a

summary trial to avoid the further delay and costs that would result from having to go through a conventional trial. [ 37 ] The parties have had the opportunity to, and have, cross-examined opposing affiants on their respective affidavits. The transcripts arising from those cross-examinations were filed in these proceedings. [ 38 ] The real concern relates to some of the conflicting evidence that the parties have presented to this Court.

Of course, if, during this Court's analysis of the issues, it sees it worthwhile to have the parties present it with viva voce evidence, it may so order that such evidence be presented to it: 776826 Alberta Ltd v Ostrowercha , 2015 ABCA 49 at para 8 . However, Ross J said the following in Jagodnik : Not all conflicts in evidence mean that viva voce evidence is necessary. In 571582 Alberta Ltd. v. N.V. Reykdal & Associates Ltd. , 2000 ABCA 330 (Alta. C.A.), the Court of Appeal held that

summary trials may be appropriate notwithstanding conflicting evidence and the absence of viva voce testimony if there is other admissible evidence that makes it possible for a judge to make necessary findings of fact ... Jagodnik at para 5 . [ 39 ] Thus, this Court finds that the issues or question raised in the claims are suitable for a

summary trial. [ 40 ] The second factor is whether a

summary trial will "facilitate resolution of the claim or any part of it." All of the parties argue that it will. The ultimate question is against whom and to what fund may Slimdor and Factors Western look to recover the sums that are owed to them. [ 41 ] For now, and based on the materials that the parties have provided to this Court, this Court determines that this matter may proceed by way of a

summary trial. It will comment on the conflicting evidence as it arises during its discussion. B. The Factors Western Debt [ 42 ] There is no dispute that DCR factored or assigned the Factored Account to Factors Western. Both the Judicature Act , RSA 2000, c J-2 [ JA ] and the Personal Property Security Act , RSA 2000, c P-7 [ PPSA ] recognize such a transaction.

In both, the legislation refers to a factoring transaction as an "assignment." [ 43 ] JA s 20 provides as follows: 20(1) When a debt or other legal chose in action is assigned by an absolute assignment made in writing under the hand of the assignor and not purporting to be by way of charge only, if express notice in writing of the assignment has been given to the debtor, trustee or other person from whom the assignor would have been entitled to receive or claim the debt or chose in action, the absolute assignment is effectual in law to pass and transfer (

a) the legal right to the debt or chose in action from the date of the notice of the assignment, (

b) all legal and other remedies for the debt or chose in action, and (

c) power to give a good discharge for the debt or chose in action without concurrence of the assignor, and is subject to all equities that would have been entitled to priority over the right of the assignee if this

section had not been enacted.

(2) In the case of an assignment of a debt or other chose in action, if the debtor, trustee or other person liable in respect of the debt or chose in action has had notice (

a) that the assignment is disputed by the assignor or anyone claiming under the assignor, or (

b) of any other opposing or conflicting claims to the debt or chose in action, the debtor, trustee or other person is entitled, if the debtor, trustee or other person thinks fit, to call on the several persons making claim to the debt or chose in action to interplead concerning it. [ 44 ] In the case at bar, the "assignor" is DCR, the "assignee" is Factors Western, and the "debtor" is Point Design. Of course, the remedy set forth in JA s 20(2) is essentially what the parties are presenting to this Court.

Although not framed as an interpleader action, they ask this Court to determine the rights of the various parties to the amount that Factors Western is claiming. This Court will discuss the "equities" later in these reasons. [ 45 ] PPSA s 41 provides as follows: 41(1) In this section, “account debtor” means a person who is obligated under an intangible or chattel paper.

(2) The rights of an assignee of collateral that is either an intangible or chattel paper are subject to (

a) the terms of the contract between the account debtor and the assignor and any defence or claim arising out of the contract or a closely connected contract, and (

b) any other defence or claim of the account debtor against the assignor that accrues before the account debtor has knowledge of the assignment, unless the account debtor has made an enforceable agreement not to assert defences or claims arising out of the contract.

(3) To the extent that an assigned right to payment arising out of the contract has not been earned by performance, and notwithstanding notice of the assignment to the account debtor, any modification of or substitution for the contract, made in good faith and in accordance with reasonable commercial standards and without material adverse effect on the assignee’s rights under the contract or the assignor’s ability to perform the contract, is effective against the assignee unless the account debtor has otherwise agreed, but the assignee acquires corresponding rights under the modified or substituted contract.

(4) Nothing in subsection (3) affects the validity of a term in an assignment agreement that provides that a modification or substitution referred to in that subsection is a breach of contract by the assignor.

(5) Where collateral that is either an intangible or chattel paper is assigned, the account debtor may make payments under the contract to the assignor (

a) before the account debtor receives a notice that (

i) states that the amount payable or to become payable under the contract has been assigned and payment is to be made to the assignee, and (ii) identifies the contract under which the amount payable is to become payable, or (

b) after (

i) the account debtor requests the assignee to furnish proof of the assignment, and (ii) the assignee fails to furnish the proof within 15 days from the date of the request.

(6) Payment by an account debtor to an assignee pursuant to a notice referred to in subsection (5)(

a) discharges the obligation of the account debtor to the extent of the payment.

(7) A term in a contract between an account debtor and an assignor that prohibits or restricts assignment of the whole of the account or chattel paper for money due or to become due is binding on the assignor, but only to the extent of making the assignor liable in damages for breach of contract, and is unenforceable against third parties. [ 46 ] Arguably, PPSA s 41 does not apply to the case at bar, as it is questionable whether the Factored Account fits within the PPSA

definitions of "intangible" or "chattel paper," especially because "account" has its own definition. Despite this, in their text, Ronald CC Cuming & Roderick J Wood, Alberta Personal Property Security Handbook , 4 th ed (Toronto: Carswell , 1998) at ¶ 1[1](b), the authors say, "[a]n account is a subcategory of "intangible". They go on to say the following: The usage also conforms to the business term "accounts receivable" used by the business community when referring to monetary obligations arising out of the sale of goods or services.

In order to fall within the definition, a right need not be an existing debt; and in order to be assigned an account need not be earned. In this respect, the Act defers entirely to equity. Ibid [ 47 ] Similar to the JA , under PPSA s 41, the "account debtor" is Point Design, the "assignee" is Factors Western, and the

"assignor" is DCR. Of course, some of the provisions contained in PPSA s 41 are not applicable to the case at bar, but this Court felt itwise to include the whole of the

section in the interests of completeness. [48] Point Design argues that the Factored Account does not fall within the PPSA definition of "chattel paper," as the FactoredAccount is not a security interest, because it is an unconditional sale of an invoice. This Court does not agree with that analysis. Besides,the Factored Account, whether it is unconditional or conditional matters not from a PPSA perspective inasmuch as the PPSA itself"deems" such transactions to fall within the purview of the act.

Cuming & Wood say "all assignments, whether general or of specificaccounts, and whether absolute or by way of security, are brought within the scope of the [PPSA]": Cuming & Wood at ¶ 3[4]. [49] Inasmuch as the authors themselves refer to an "account" being a subcategory of "intangible," and that they say thatassignments fall within the purview of the PPSA, this Court agrees. See also, TCE Capital Corp v Kolenc (1999), (ON SC), 172 DLR (4th) 186 (Ont Div Ct), aff'g (1998), 3 CBR (4th) 98 (Ont Gen Div).

Accordingly, PPSA s 41 applies to the FactoredAccount, whether as an "intangible," or a deemed security interest. [50] Does the Acknowledgement fall within the exception contained in PPSA s 41(2)? Factors Western argues that theAcknowledgement is "an enforceable agreement not to assert defences or claims arising out of the contract," and it relied on theAcknowledgement when it provided valuable consideration to DCR for the assignment of the Factored Account.

Point Design arguesthat it received no consideration for its signing of the Acknowledgement, and therefore, Factors Western cannot rely on it. [51] In Gauthier Estate v Capital City Savings & Credit Union Ltd (1992), (AB KB), 129 AR 12, 2 Alta LR(3d) 277 (QB), there was an agreement among a plaintiff in a personal injury claim and an insurer in which they both promised a creditunion that it would be the payee on the settlement draft. The plaintiff assigned the settlement funds to others before he received thefunds. Côté J said the following: ...

The Credit Union's claim lies in the three-cornered oral agreement among it, the plaintiff and the insurance company. ... The plaintiffand the insurance company both so promised expressly to induce the Credit Union to rely on that, and to loan the plaintiff over $40,000for a short time until that payment. The loan was to be repaid from that payment. There was obvious consideration, for the credit unionso relied, and did advance the loan at once.

Gauthier Estate at para 25. [52] In the case at bar, Factors Western relied on its agreement with DCR, and the Acknowledgement, when it purchased theFactored Account and advanced funds to DCR. This reliance distinguishes the case at bar from 518718 Alberta Ltd v Canadian ForestProducts Ltd, 1998 ABQB 619, 231 AR 21, 63 Alta LR (3d) 371, in which Romaine J found no such reliance on the part of a factoringcompany. [53] Point Design argues that there were discussions between it and Factors Western that altered the terms of theAcknowledgement.

Its argument rests on the fact that even though the Acknowledgement says that the Factored Account was "due andpayable," in fact, it was not due and payable until 50 days later, and Factors Western knew this. Factors Western takes a different view,and argues that the Acknowledgement speaks for itself. Thus, there appears to be a factual dispute that arguably prevents this Court fromruling on this matter. [54] If there is conflicting evidence a

summary proceeding, such as a

summary judgment application or a

summary trial, asummary proceeding is not an appropriate method to resolve such a conflict: Sherwood Steel Ltd v Odyssey Construction Inc, 2014ABCA 320 at para 7. In Skyline Concrete Services Ltd v Flint Energy Services Ltd, 2016 ABQB 396 at para 11, 68 CLR (4th) 26,however, Master Prowse said the following: There are some exceptions to this general rule, for example: (

i) where the chambers judge/master assumes that the evidence of the non-moving party is correct, ... (ii) where the evidence of the non-moving party is either destroyed by cross-examination on affidavit or the introduction of otherevidence rendering that party's evidence completely non-credible ... (iii) where the conflicting evidence is on matters which are irrelevant to the ground upon which

summary judgment is being sought (forexample, where there is conflicting evidence as to which driver caused a collision between two automobiles but the

summary dismissalapplication is being brought on a limitations defence). [Citations excluded]. [55] In its statement of defence in the Debt Action, Point Design pleads that the Factored Account "would not be due and payableto DCR until DCR had completed the structural excavation and backfilling [on certain aspects] of the Project." It also pleads that "itadvised Factors Western, both verbally and by email, on a number of occasions that the invoice was not due and payable to DCR at thetime the Notice of Assignment was executed." If Point Design advised Factors Western before Factors Western advanced funds topurchase the Factored Account to DCR, Factors Western would have no cause to complain, as it would have made the advance with itseyes open.

If the advice was given after Factors Western advanced funds to DCR, this Court should uphold the wording of theAcknowledgement, as Factors Western detrimentally relied on that wording. [56] Mr. Chahal's evidence on this point is equivocal, as it does not state when he might have advised Factors Western of thisposition. During his cross-examination on his affidavit, he confirms that his conversations with Factors Western took place sometime inSeptember or October 2015: Transcript of Mr. Chahal's Cross-Examination, May 1, 2018, p 27, l 22 to p 28, l 9.

This was well after Mr.Chahal executed and returned the Acknowledgement to Factors Western. Furthermore, he sent all the emails in which he states that theFactored Account was not due and payable to DCR when he executed the Acknowledgement in the Fall of 2015, well after the date hesigned the Acknowledgement. Beyond that, his other evidence, which this Court will not repeat in these reasons, is equally equivocal or

unreliable, as Factors Western has "destroyed" it or introduced cogent contrary evidence that this Court accepts. [57] Point Design concedes that when a written document is clear and unambiguous, the parol evidence rule precludes theadmission of other, extrinsic evidence to modify the written document. The court must interpret the document based on its plain andordinary meaning. [58] Although there are exceptions to the so-called parol evidence rule, none of those exceptions apply to the case at bar. See e.g.Gallen v Allstate Grain Co (1984), (BC CA), 53 BCLR 38 at 49-50, 9 DLR (4th) 496 (CA) at para 35.

In particular,Factors Western's collection of the Factored Account was not subject to a condition precedent that the Project be completed, as no oneadvised it of such a condition until after Point Design signed the Acknowledgement confirming that the Account was "due and owing":Mintage Financial Corporation v Shah, 2005 ABCA 86 at paras 6-7, 19, 26, 363 AR 243, 39 Alta LR (4th) 43. [59] As a result of the foregoing, this Court accepts the Acknowledgement on its face, and its plain and unambiguous meaning.Point Design is liable to Factors Western for the full amount of the Factored Account. [60] The next question is whether Factors Western is entitled to interest.

Factors Western claims interest on the Factored Accountat the rate of 24% per annum, based on a notation on the bottom of the invoice that DCR sent to Point Design, which states, "NET 30-2%per month (24% per annum) charged on overdue accounts." Point Design argues that Factors Western is not entitled to the interestclaimed because DCR was not entitled to interest pursuant to the Contract.

There is no evidence that DCR and Point Design discussed oragreed to the payment of interest at the time they entered into the Contract, and the Contract does not provide for the payment of interest. [61] Factors Western argues that it bought the invoice that DCR sent to Point Design, which contains the statement concerninginterest. [62] Factors Western did not purchase an invoice. It purchased a debt that Point Design owed to DCR.

In the leading case ofCanada Trustco Mortgage Corp v Port O'Call Hotel Inc, (SCC), [1996] 1 SCR 963 at 986, 184 AR 1, 38 Alta LR(3d) 1, Cory J, for the majority described a factoring arrangement as, "a sale by a company of its accounts receivable at a discountedvalue to the factoring company for immediate consideration" [emphasis added].

He did not say that it was the sale of an invoice. [63] Furthermore, it is this Court's view that an assignee of an account receivable cannot have more rights than did the assignor.The invoice that DCR sent to Point Design unilaterally seeks to impose interest of 24% per annum on Point Design, when Point Designdid not agree to such an imposition. Such an imposition is insufficient to establish an agreement to pay interest.

As Master Funduk said inCanadian Concrete Products Ltd v Kerna Construction Ltd (January 24, 2991), Doc Edmonton 9103-13386), as quoted by Phillips J inTriple R Contracting Ltd v 384848 Alberta Ltd, 2001 ABQB 52, 282 AR 1, 6 CLR (3d) 198 at para 79, "[u]nilateral attempts to chargeinterest by putting such a statement on the bottom of an invoice are after the fact and are not effective." C. The Lien Fund [64] Point Design argues that it is only required to pay to Slimdor the lesser of the lien fund, which it calculates as $68,250, and theJanuary Lien.

It argues that Slimdor is not entitled to the amount Slimdor claims in the June Lien, as that amount was for deficiencies orwas without authority, as Point Design's contract with DCR had terminated on December 29, 2015. [65] Slimdor seeks payment of the January Lien amount (plus goods and services tax, which it had failed to articulate in theJanuary Lien), and the amount of the June Lien. [66] Point Design argues that because the BLA is a "code," lienholders are not entitled to more than the BLA allows.

All the partiesprovided this Court with the Alberta Court of Appeal's decision in Iona Contractors Ltd (Receiver of) v Guarantee Co of NorthAmerica, 2015 ABCA 240, 19 Alta LR (6th) 87, 602 AR 295. Slatter JA, for the majority, outlines an important policy reason for theway in which the BLA is structured, when he said the following: The general provisions of the Builders' Lien Act are well known. At common law, subcontractors have no claim against the owner ofproperty that they improve, because there is no privity of contract between them. The Builders' Lien Act provides a partial remedy to thatproblem.

It allows an unpaid subcontractor to file a lien against the owner's property, and potentially to sell the owner's property tosatisfy its claim. The owner can post security in substitution for the lien, in which case the subcontractor's rights are transferred to thesecurity. The owner can also limit its exposure by keeping statutorily mandated "holdbacks", which it can decline to pay to the contractoruntil it is satisfied that there are no liens. If necessary, the owner can pay the holdback into court, and allow the contractor and thesubcontractors to litigate entitlement.

The Builders' Lien Act therefore creates a comprehensive, integrated system that provides some assurance to subcontractors that they willget paid for improving land. Iona Contractors at para 20-21. [67] Of course, Slatter JA was dealing with an issue that is not before this Court. However, his explanation of the BLA's purpose isimportant, no matter the issue. Master Robertson allowed Point Design to post the Security to stand in the place of the Lands. Slimdorhas not lost its lien rights. It may make a claim against the Security.

Slatter JA refers to the important way in which an owner can "limitits exposure," viz, through retaining holdbacks. Thus, the BLA creates a "code" to which Point Design refers. It also balances the interestsof builders' lien holders and property owners. How does the BLA accomplish this balancing? [68] BLA s 25 provides as follows: 25 An owner is not liable under this Act for more than

(

a) the total of the major lien fund and the minor lien fund, or (

b) the major lien fund, where a minor lien fund does not arise under

section 23. [ 69 ] BLA s 1 defines major lien fund and minor lien fund as follows: (h) “major lien fund” means (

i) where a certificate of substantial performance is not issued, the amount required to be retained under section 18(1) or (1.1) plus any amount payable under the contract (

A) that is over and above the 10% referred to in section 18(1) or (1.1), and (

B) that has not been paid by the owner in good faith while there is no lien registered; (ii) where a certificate of substantial performance is issued, the amount required to be retained under section 18(1) or (1.1) plus any amount payable under the contract (

A) that is over and above the 10% referred to in section 18(1) or (1.1), and (

B) that, with respect to any work done or materials furnished before the date of issue of the certificate of substantial performance, has not been paid by the owner in good faith while there is no lien registered; (i) “minor lien fund” means the amount required to be retained under section 23(1) or (1.1) plus any amount payable under the contract (

i) that is over and above the 10% referred to in section 23(1) or (1.1), and (ii) that, with respect to any work done or materials furnished on and after the date of issue of a certificate of substantial performance, has not been paid by the owner in good faith while there is no lien registered; [Emphasis added]. [ 70 ] BLA s 18 provides as follows: 18(1) Irrespective of whether a contract provides for instalment payments or payment on completion of the contract, an owner who is liable on a contract under which a lien may arise shall, when making payment on the contract , retain an amount equal to 10% of the value of the work actually done and materials actually furnished for a period of 45 days from (

a) the date of issue of a certificate of substantial performance of the contract, in a case where a certificate of substantial performance is issued, or (

b) the date of completion of the contract, in a case where a certificate of substantial performance is not issued. ...

(2) In addition to the amount retained under subsection (1) or (1.1), the owner shall also retain, during any time while a lien is registered, any amount payable under the contract that has not been paid under the contract that is over and above the 10% referred to in subsection (1) or (1.1).

(3) Except as provided in section 13(1), when a lien is claimed by a person other than the contractor, it does not attach so as to make the major lien fund liable for a sum greater than the total of (a) 10% of the value of the work actually done or materials actually furnished by the contractor or subcontractor for whom and at whose request the work was done or the materials were supplied giving rise to the claim of lien, and (

b) any additional sum due and owing but unpaid to that contractor or subcontractor for work done or materials furnished.

(4) Except as provided in section 13(1), when, in respect of liens to which this

section applies, there is more than one lien claim arising from work done or materials furnished for and at the request of the contractor or the same subcontractor, they do not attach so as to make the major lien fund liable in their cumulative total for a sum greater than the total of (a) 10% of the value of the work actually done or materials actually furnished by the contractor or subcontractor, as the case may be, and (

b) any additional sum due and owing but unpaid to that contractor or subcontractor for work done or materials furnished.

(5) A payment of an amount, other than that required to be retained under subsection (1) or (1.1), that is made in good faith by an owner or mortgagee to a contractor at a time when there is not any lien registered is valid, so that the major lien fund is reduced by the amount of the payment.

(6) If a contractor or subcontractor defaults in completing the contractor’s or subcontractor’s contract, the major lien fund (

a) shall not, as against a lienholder, be applied to the completion of the contract or for any purpose other than the satisfaction of liens, and (

b) when distributed, shall be distributed in the manner prescribed by

section 61.

(7) A person who in good faith underestimates the value of the work actually done or materials actually furnished at any specific timeand retains the percentage of the value required to be retained by this section, calculated on that underestimated value, does not lose theprotection afforded by this Act if the person provides, for the satisfaction of liens in accordance with this Act, an amount equal to thecorrect amount that should have been retained pursuant to this section. [Emphasis added]. [71] Point Design does not dispute the fact that it is an "owner," as defined in the BLA. [72] What do the words "payable under the contract" mean?

In Red Deer College v WW Construction (Lethbridge) Ltd (1989),1989 ABCA 51 , 65 Alta LR (2d) 1, 93 AR 393 at para 10, Bracco JA quoted Stevenson JA in Community Capital Mgmt(1976) Ltd v Master Mech Plumbing & Heating Ltd (1981), 1981 ABCA 149 , 17 Alta LR (2d) 10, 34 AR 233 at 241, whereStevenson JA said the following: In order to give the lien claimants access to a fund in excess of 15 per cent, the additional amount must be "payable under the contract".If it is not payable under the contract the lienholders cannot have resort to it. This

interpretation is consistent with the view that this typeof legislation is directed towards ensuring that the holdback is retained, not to the creation of an additional fund for lien claimants ... [73] Recall that the total amount of the Contract, plus additional work that DCR, or its subcontractors performed, is $474,979.81.Point Design has paid a total of $189,850.89 to DCR, leaving $285,128.92 owing by Point Design on account of the Contract.

Thequestion is whether the $285,128.92 remains "payable under the contract," or whether the amount of the Factored Account reduces thatamount, on the basis that it is no longer owed by Point Design to DCR under the Contract as it was factored to Factors Western. [74] Factors Western and Point Design argue that Van T Holdings Inc v KCS Equipment Ltd (2013), 2013 ABQB 154 , 558 AR 392, 31 CLR (4th) 73 (QB), resolves this matter in favour of not having the Factored Account form part of the lien fund. In thatcase, Van T Holdings Inc ("Van T") provided work in relation to project lands.

Van T hired KCS Equipment Ltd ("KCS"), which hiredother sub-trades and suppliers. KCS became insolvent and was not able to pay its sub-trades and suppliers. KCS had factored some of itsaccounts receivable to Liquid Capital Exchange Corp ("Liquid Capital"). Substantial builders' lien claims were filed against the projectlands. As well, the Minister of National Revenue was claiming unremitted source deductions and goods and services tax. MasterWacowich cleared the builders' liens from title after ordering $673,335.88 be paid into court pending resolution of numerous claims.

Theresulting application was to determine the priority among Liquid Capital, the Crown and the builders' lien holders. Master Schlosserfound that the order of priority was Liquid Capital, the Crown and the builders' lien holders. The general contractor, Van T, was entitledto nothing. The Crown, Van T, and the builders' lien holders appealed. Michalyshyn J heard the appeal. [75] It is important to note that the parties in Van T made a number of concessions, which Michalyshyn J summarized early in hisdecision.

Those concessions were as follows: • Crown conceded Liquid Capital's priority to $276,367.56 • The builders' lien holders conceded the Crown's priority over them • Liquid Capital conceded nothing Van T at paras 7-14. [76] The most important aspect of Michalyshyn J's decision, for the purposes of this Court's decision, is his discussion of LiquidCapital's interest. He found that once KCS sold and assigned the accounts receivable to Liquid Capital, KCS no longer had an interest inthose factored accounts. He then considered this finding in the light of BLA s 11, which provides as follows: 11

(1) A lien has priority over all judgments, executions, assignments, attachments, garnishments and receiving orders recovered, issuedor made after the lien arises.

(2) Notwithstanding subsection (1), a payment made pursuant to an assignment, attachment, garnishment or receiving order that is paid,before the lien is registered, to a person for whose benefit the assignment, attachment, garnishment or receiving order is made or issued,takes priority over the lien. [77] He then said the following: As the assignor is left with absolutely no interest in the assigned property, the term "assignment" under the BLA could not have beenmeant to and does not include an absolute assignment such as a factoring agreement.

The assignor no longer has any interest in thefactored accounts receivable which have been absolutely assigned. A lien can only attach to the estate or interest of the owner in theproperty. It therefore cannot attach to accounts receivable which have been absolutely assigned. … [I]t is reasonable and logical to conclude that the absolute assignment in the factoring agreement before the Master is not anassignment for purposes of s. 11(1) of the BLA.

Van T at paras 36-38. [78] He then considered certain policy arguments and provided the following quotation from the Alberta Court of Appeal'sdecision in Canbar West Projects Ltd v Sure Shot Sandblasting & Painting Ltd, 2011 ABCA 107 at para 14, 39 Alta LR (5th) 38, 502AR 235 [citations excluded]: The general interpretive directives set out in Rizzo and Bell are subject to modification when builders' lien statutes are being interpreted.Specifically, courts are required to adopt a strict

interpretation in determining whether a lien claimant is entitled to a lien, and a liberal

approach with respect to those to whom the statute applies … Builders' liens are business oriented statutes with practical, as opposed toformalistic, goals; their overall intent is to ensure that "the land that receives the benefit shall bear the burden" … Vat T at para 43. [79] Michalyshyn J then found that, "the appropriate

interpretation of s. 11(1) of the BLA, excludes the absolute assignment in thefactoring agreement from the lien holders' claims": Van T at para 47. [80] In Saskatchewan Power Corp v Mainline Industrial Limited Partnership, 2018 SKQB 222, 84 CLR (4th) 57, Barrington-Foote J, as he then was, distinguished Van T from the case before him. The basis on which Barrington-Foote J distinguished Van T wasthat Michalyshyn J was dealing with different legislation, viz, the BLA.

The wording of section 70(2) of the Builders' Lien Act, SS 1984-85-86, c B-7.1 [Sask Act] is as follows: 70(2) No assignment by a contractor or subcontractor of any moneys that may be or become payable under or in respect of any contractor subcontract to which this Act applies is valid as against any lien arising under this Act. [81] Arguably, Sask Act s 70(2) is broader than BLA s 11(1). Under BLA s 11(1), a "lien has priority over all ... assignments ...made ... after the lien arises," whereas under Sask Act s 70(2), no such temporal limitation exists.

The similarities between the sections,however, are evident when one looks at the policies that underlie both acts. In PCL Industrial Management Inc v Agrium, 2015 SKCA55 at paras 26-28, 457 Sask R 298, Richards CJS said as follows: The scheme of rights and remedies established by the Act is a response to this common law situation. It has two main interrelatedfeatures. The first and central feature is aimed at assisting those individuals who supply labour, services and materials to constructionprojects to more readily recover amounts owing to them.... The second dimension of the Act concerns business efficacy.

It reflects the business reality that funds must continue to flow through tocontractors and subcontractors during the life of a project if those individuals are going to meet bills as they come due.... This Court has consistently emphasized that "the principal object of this Act is to better ensure that those who contribute work andmaterial to the improvement of real estate are paid for doing so." [82] This sounds similar to what Slatter JA said in Iona.

Beyond that, should the BLA not "be read in their entire context and intheir grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament"?:Rizzo & Rizzo Shoes Ltd, Re, (SCC), [1998] 1 SCR 27 at 41; Bell ExpressVu Ltd Partnership v Rex, 2002 SCC 42,[2002] 2 SCR 559. Furthermore, as

section 10 of the

Interpretation Act, RSA 2000, c I-8 says, "An enactment shall be construed as beingremedial, and shall be given the fair, large and liberal construction and

interpretation that best ensures the attainment of its objects." Isthis not what the Alberta Court of Appeal was saying in Canbar? As Barrington-Foote J said in Saskatchewan Power at par 49, thefinding that Michalyshyn J made in Van T is a "strict construction" approach in relation to the question of whether the builders' lienclaimants had priority over a factoring company. This approach flies in the face of Rizzo and

section 10 of the

Interpretation Act.Barrington-Foote J went on to say the following: ... [A]n "assignment" within the meaning of [section 70(2) of the Saskatchewan Builders' Lien Act] includes an absolute assignment. Thepurpose of this provision is to ensure that the interests of lien claimants cannot be defeated by way of an assignment. The grammaticaland ordinary sense of "assignment" is sufficiently broad to include absolute assignments. That

interpretation best ensures the attainmentof the principal object of the BLA. [83] Barrington-Foote J's decision in Saskatchewan Power was upheld on appeal. See Liquid Capital Prairie Corp v MainlineIndustrial Limited Partnership, 2019 SKCA 66, [2019] 11 WWR 310. Leurer JA, for the court, likewise distinguished Van T based onthe wording of the respective acts. [84] In Van T Michalyshyn J was dealing with a priority dispute among the Crown, Liquid Capital, and the builders' lien holders.That priority dispute had the potential of ending up with a circular result.

The same concern does not occur in the case at bar, as thisCourt is dealing with only Factors Western and Slimdor, a builder's lien holder. This Court need not deal with any claim of the Ministerof National Revenue. As well, Michalyshyn J did not have Slatter JA's decision in Iona which articulates a policy underlying the BLA,which is similar to the policy underlying the Sask Act. [85] As importantly, in this Court's view, is that Slimdor and Factors Western are looking to different sources of funds forpayment. Slimdor's is an in rem right that attaches to the Lands. Factors Western's is an in personam right.

In Van T, Michalyshyn Jcorrectly describes how rights in rem are dealt with as against rights in personam, when he said the following: A right in rem is described by Professor Ziff in Principles of Property Law as "a right against the world at large" (at page 75). Rights inrem are therefore distinct from rights in personam, as they are exercisable against more than one person, and attach to the land for whichthe work or services were provided. As a general proposition of law, rights in rem trump rights in personam.

Van T at para 32 [emphasis added]. [86] In Liquid Capital, Leurer JA for the court said the following: The [Sask Act] creates in rem rights. Pursuant to the BLA, a person who participates in a construction project has a lien which "arises andtakes effect when he first provides his services or materials to the improvement" (s.27). Liquid Capital at para 33. [87] Of course, Michalyshyn J came to a different conclusion than does this Court. However, this Court agrees with the principle

he articulates. [88] The question is not as against what fund the builders' lien holders and a factoring company may seek to enforce their rights.They are different funds. The builders' lien holders may look to the Lands or the security that stands in the place of the Lands. Thefactoring company may look to any of the debtor's exigible assets, meaning assets that are not exempt or subject to a security or otherpriority interest, such as a builders' lien fund. [89] Factors Western acknowledges that its rights are in personam as against Point Design.

This Court agrees. [90] Against what fund may Slimdor seek to enforce its in rem rights?

The definition of "major lien fund," which is the amountthat the owner must retain pursuant to BLA s 25, refers to the 10%, "plus any amount payable under the contract." The amount of theFactored Account is "payable under the contract," because Point Design has not paid that amount to anyone: Community Capital at para13. [91] In this Court's view, Point Design's argument that, pursuant to BLA s 18(3)(b), it does not owe the "contractor," viz, DCR, theamount payable on the Factored Account as DCR had factored the Factored Account to Factors Western, would permit form to trumpsubstance.

As well, it flies in the face of Slatter JA's comment in Iona that because "subcontractors have no claim against the owner ofproperty that they improve, because there is no privity of contract between them, ... the BLA provides some assurance to subcontractorsthat they will get paid for improving land." [92] This Court finds that the amount of the Factored Account is an "amount payable under the contract," and therefore, it formspart of the lien fund.

As a result, and, in particular, Slatter JA's comment that the BLA "creates a comprehensive, integrated system thatprovides some assurance to subcontractors that they will get paid for improving land," this Court finds that scheme of the BLA and theintent of the legislature is best attained by finding that the $285,128.92 is a balance owing under the Contract, and it forms part of thelien fund. [93] Point Design concedes that the value of the Work that DCR performed, including any extra work, was $474,979.81.

ThisCourt accepts that Point Design paid a total of $189,850.89 to DCR, leaving a balance owing under the contract of $285,128.92. Tenpercent of the Work and extra work is $47,497.98. Subtracting that amount from the $285,128.92 is $237,900.94, which is the additionalsum due and owing but unpaid to DCR: BLA s 18(3)(b).

The lien fund is therefore, $285,128.92. [94] This Court is mindful of the majority's comment in Noranda Exploration Co v Sigurdson, (SCC), [1976] 1SCR 296 at 301-02, 3 NR 512, 53 DLR (3d) 641, that builders' lien legislation is intended to protect those who supply materials andlabour, "so long as the owner is not prejudiced." That protection is embodied in the BLA s 25. This Court's finding exposes Point Designto no more, so it is not prejudiced by this Court's finding. [95] Slimdor has asked this Court to include further amounts into the lien fund.

This Court rejects Slimdor's arguments, as it issatisfied with the amounts that Point Design paid to DCR pursuant to the Contract. D. The Lien and the Amount Slimdor May Claim Against the Lien Fund [96] This Court posed the additional question to the parties concerning the amount of the lien fund that Slimdor may claim. Moreparticularly, it was seeking information on whether Slimdor could claim more than its proportionate share of the lien fund.

Slimdor andPoint Design provided this Court with additional materials to address this concern. [97] The Alberta Court of Appeal was faced with a similar question in Maple Reindeers Inc v Eagle Sheet Metal Inc, 2007 ABCA247, 412 AR 133, 76 Alta LR (4th) 215. In particular, it articulated the issue as follows: ... [W]hether Dalton is entitled to the full amount of its claim from the lien fund ($26,340) or only its pro rata share after taking accountof the seven other liens previously discharged ($7,417.70).

Maple Reindeers at para 42. [98] In part, the court answered that question by referring to BLA s 61(5), which provides as follows: Each class of lienholders, as between themselves, rank without preference for their several amounts and the portion of the moneyavailable for distribution to each class shall be distributed among the lienholders in that class proportionately according to the amounts oftheir respective claims as proved. [99] This, the court noted, "essentially requires a pro rata distribution among 'each class of lienholders'": ibid. [100] It then went on to consider whether Dalton's share is "determined on a pro rata basis taking account of the previously settledlienholders claims or should Dalton be treated as the only lienholder and thereby entitled to its full claim": ibid.

It found that Dalton isonly entitled to its pro rata share taking into account the previous settled lienholders' claims. It gave the following reasons for itsconclusions: First, this approach finds support in cases where only one lienholder has proceeded to trial. In Arctic Distributors Ltd. v. Nordine (1984),7 C.L.R. 21, 52 B.C.L.R. 110 (B.C. Co. Ct.), it was held that when the last lienholder goes to trial, he must share the holdback with allother successful lienholders on a pro rata basis. To similar effect are a number of other cases cited in Nordine.

Similarly, in West v.620693 Alberta Ltd. (1995), (AB KB), 173 A.R. 103 (Alta. Master), three out of nine lienholders contested theamount of the fund, but each was entitled to a pro rata share. ...

Third, any other result would potentially make the owner liable for greater amounts than the limit of liability found in

section 25 of the BLA , namely, the amount of the major lien fund. The other lienholders settled on the basis of their pro rata share. To now award Dalton more than its pro rata share would increase the owner's liability beyond the major lien fund by the difference between Dalton's full claim and its pro rata share. This is obviously contrary to the thrust of the BLA .

Maple Reindeers at paras 43-45. [ 101 ] Thus, Slimdor is entitled only to its pro rata share of the lien fund, taking account of the claim of the builder's lienholder that settled its matter and any other builders' lienholders who had a claim against the lien fund. [ 102 ] Slimdor is certainly entitled to maintain the January Lien and have its pro rata share calculated based on that lien.

The question becomes whether it is entitled to maintain the June Lien. [ 103 ] Point Design argues that Slimdor is not entitled to maintain the June Lien because, among other things, the contract between Point Design and DCR was terminated on December 29, 2015, and Point Design did not ask Slimdor to perform any additional work after that date. As well, it argues that the work that Slimdor performed in the Spring of 2016 was deficiency work, which is not lienable. [ 104 ] Slimdor argues that the work that forms the subject-matter of the June Lien is the direct result of winter settlement.

Slimdor was required to perform such work, as required by the City of Calgary in its Addendum to Master Indemnification Agreement dated November 26, 2015. [ 105 ] This Court finds that it is disingenuous for anyone who does property development not to be aware of the City of Calgary's requirements for post-winter remediation as a result of settling and frost-heaves during the winters that Calgary experiences. As a result, this Court finds that Slimdor is entitled to include the quantum of the June Lien as part of its pro rata entitlement to the lien fund. IV.

Conclusion [ 106 ] As a result of the forgoing, this Court finds as follows: (

a) Pursuant to Rules r 7.9, it awards Factors Western judgment in the amount of $216,878, as against Point Design and DCR, plus interest pursuant to the Judgment Interest Act , RSA 2000, c J-1 [ JI Act ]; and (

b) It awards Slimdor its pro rata share of a lien fund, which this Court establishes as $285,128.92. Slimdor's pro rata share of the lien fund will be based on a judgment in the amount of $174,568.02, which is the total of the January Lien (plus goods and services tax) and the June Lien, plus interest pursuant to the JI Act . Slimdor's pro rata share will be payable out of the Security. [ 107 ] If the parties are unable to agree on costs, they may appear before this Court within 60 days after the entry of the judgment emanating from these reasons.

Heard on the 11 th day of October, 2019, with additional written submissions provided on October 25, 2019, and November 4, 2019. Dated at the City of Calgary, Alberta this 18 th day of December, 2019. K.D. Yamauchi J.C.Q.B.A. Appearances: Trevor Batty Field Law LLP

for Factors Western Inc Adrianna Worman Schuettlaw for Point Design Homes Ltd Shaun Cody New Horizon Law for Slimdor Contracting Ltd