Lesenko v Wild Rose Ready Mix Ltd, 2023 ABKB 148

Court of King’s Bench of Alberta Citation: Lesenko v Wild Rose Ready Mix Ltd, 2023 ABKB 148 Date: 20230314 Docket: 1903 22094 Registry: Edmonton Between: Todd Lesenko and Elizabeth Lesenko Plaintiffs (Applicants) - and - Wild Rose Ready Mix Ltd Defendant (Respondent) Corrected judgment: A corrigendum was issued on April 4, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Applications Judge W.S.

Schlosser _______________________________________________________ [ 1 ] This is an application to have liens declared to be invalid. The respondent requests an extension of time to bring enforcement proceedings set by a template s 48 (consent) order under the (now) Prompt Payment and Construction Lien Act , RSA 2000, c P-26.4 ( PPCLA ) .

Cases Cited By the Parties Homes by Element Construction Ltd (Re) , 2017 ABQB 442 ; Manseau & Perron Inc v ThyssenKrupp Industrial Solutions (Canada) Inc, 2018 ABQB 949 ; Golden Triangle Construction Management Inc v Nuwest Interior Systems Inc , 2019 ABQB 292 ; Nexen Energy ULC v Pricewaterhousecoopers Inc , 2015 ABQB 271 ; 892336 Alberta Ltd v Silver Site Construction Ltd , 2006 ABCA 67 ;

Tervita Corporation v ConCreate USL (GP) Inc, 2015 ABCA 80;

Interpretation Act, RSC 1985, c I-21; Maple Reinders Inc v WDalton Energy Corp, 2007 ABCA 247; Schubert v A-S4 Steel Ltd, 2010 ABCA 62 Driden Industries Ltd v Sieber, 1974 ALTASCAD 14. By the Court Alberta Rules of Court, AR 124/2010, rules 1.5(5), 3.12 and 9.15(4). Facts [2] Wildrose, a subcontractor of Nulook Builders Inc, supplied concrete for the Lesenkos’ residence and commercial building.When the Lesenkos did not pay for the work and materials, Wild Rose filed two liens.

The liens were filed on October 4, 2019. [3] On November 27, 2019, the Lesenkos and Wild Rose entered into a template s 48 PPCLA Consent Order paying the sum of$99,182.60 into court to act as security for the liens. The liens were discharged from title. [4] The order provided: ... 5.Without prejudice to any party's right to seek other applicable remedies under the [then] Builders' Lien Act, the Lien Claimant shall, notlater than 180 days following the date of the registration of the applicable Lien with the Registrar of Land Titles, either; (

a) commence a separate court action to enforce the Lien; (

b) commence a separate court action to preserve remedies under the Builders' Lien Act and commence arbitrationproceedings where the agreement between the parties authorizes or requires such proceedings; or (

c) if authorized by separate Court Order, file a "statement of the plaintiff's claim" in these proceedings, (collectively, the "Lien Enforcement Proceedings"), failing which the Lien shall cease to exist. ... [5] The 180 days was up in early April 2020.

Until then Wild Rose had two options: it could file a Statement of Claim to enforceits rights, or, because s 48 applications are typically brought by Originating Application, Wild Rose could apply to the Court to file a‘Statement of its Claim’ (via r 3.12) in the proceedings already started. [6] After the Lesenkos’ Originating Application, there were three sets of questioning: (in November 2019, and March 9, 2020),and two further affidavits (December 9 and 24, 2019). [7] Instead of bringing enforcement proceedings within 180 days of registration of the liens, as specified by the Order, WildRose commenced an action by way of Statement of Claim just short of the two-year time limit under the Limitations Act; joining theLesenkos, Nulook and a company called Green Sight Agri-Holdings Inc. [8] The Lesenkos apply to have the lien action dismissed against them and their security returned.

Wild rose seeks an extensionof the time specified by the Consent Order pursuant to r 13.5. [9] The PPCLA sets out strict time limits. In exchange for a right to encumber the land and to sue the owner, when there wouldotherwise be no privity, a subcontractor is required to register the liens on title within the statutory period set by s

Section 43 requiresa certificate of lis pendens and enforcement proceedings within 180 days of the registration of the liens. [10] The time limits specified by the Act are recognized and repeated in the wording of the template order. There is no mention of s44, which is presumed to be waived. [11] 892336 Alberta Ltd v Silver Site Construction Ltd, 2006 ABCA 67 (at paras 3, 4, 5 and 6) tells us that: [3] While

Section 43 of the Act provides that a lien for which a claim has been registered will cease to exist unless a lis pendens isregistered within 180 days, a court may order pursuant to Section 48(1) within that time that the registration of a lien be removed fromthe land in exchange for security given, money paid into court, or on any other ground the court considers proper. If a court makes suchan order, the lien does not cease to exist by reason that the certificate of lis pendens is not registered:

Section 44. [4] The purpose of this scheme is clear. Where a lien registered against land is discharged, there is no need to register a certificate of lispendens because there is no longer an encumbrance on the land: Re Driden Industry Ltd. v. Seiber (1974), 1974 ALTASCAD 14, 44 D.L.R. (3d) 629 (Alta. C.A.). [5] As indicated in Re Driden, to hold otherwise would be contrary to the whole purpose of an order under what is now Section 48(1),to remove a registered lien so that the land may be dealt with. [6] The only difference between the type of order dealt with in Re Driden and other similar cases and this case is that the appellant’s

lien is discharged over time, rather than immediately upon the granting of the order. However, in this as in other cases, the filing of a certificate of lis pendens would serve no purpose, since realistically any prospective purchaser would never take subject to litigation. [ 12 ] A certificate of lis pendens is not necessary after a s 48 order (s 44(a)). However, the terms of the order preserve the time limit for a claim to enforce the liens, despite s 44(b). Otherwise, the liens cease to exist. The extraordinary statutory remedy that permits a lien holder to sue an owner requires speedy action and, to the extent possible,

summary determination (cf. sections 46 , 43 and 53 PPCLA ). [ 13 ] The Wild Rose application to extend the time is brought under r 13. 5. There is no doubt that the Court has a general power to vary the time specified in an order, though there are limits. (There is a similar power for interlocutory orders under r 9.15(4)). [ 14 ] Rule 13.5 is to be read together with r 1.5. [ 15 ] The discretion to cure non-compliance with the rules, or with an Order, outside of contempt, usually involves a balancing of harm, prejudice and sanction. It also requires a consideration of the merits.

The Court will not act without purpose. A weak excuse for a strong case might suffice but there is no point in excusing non-compliance if failure is inevitable. [ 16 ] In short, while the Court has the power to vary an order, or excuse non-performance in other circumstances, this remedy is not available here. No compelling reason to extend the time has been offered by the respondent. [ 17 ] The application is allowed. The liens have ceased to exist. The security is to be returned to the applicants. No directions are given with respect to the action referred to above in para 7.

Heard on the 16 th day of February, 2023. Dated at the City of Edmonton, Alberta this 14 th day of March, 2023. W.S. Schlosser A.J.C.K.B.A. Appearances: Joseph J. Kueber, KC and Cameron Brunet Bryan & Company LLP for the Plaintiffs Brent W. Mielke MLT Aikins LLP for the Defendant _______________________________________________________ Corrigendum of the Reasons for Decision of

The Honourable Applications Judge W.S. Schlosser _______________________________________________________ Changes have been made to paras 1 (including sub-paragraph “By the Court”), 7, 10, 12 and 20 (now 16). Previous paras 16-19 have been deleted.