CCS Contracting Ltd v Condominium Corporation No, 2023 ABKB 147

Court of King’s Bench of Alberta Citation: CCS Contracting Ltd v Condominium Corporation No 1520090, 2023 ABKB 147 Date: 20230314 Docket: 2203 12282 Registry: Edmonton Between: CCS Contracting Ltd Plaintiff - and - Condominium Corporation No 1520090 Defendant _______________________________________________________ Reasons for Decision of the Honourable Applications Judge W.S. Schlosser _______________________________________________________ [ 1 ] This is an application to discharge a lien on the grounds that a certificate of lis pendens was filed late.

The specific question for this application is whether the time for enforcement proceedings and a certificate of lis pendens under the Prompt Payment and Construction Lien Act , RSA 2000, c P-26.4 , runs from the date the lien was registered against title, or from the date that it was put into the registration queue. [ 2 ] The facts are not in dispute. In this case, the lien was submitted for registration April 8, 2022. It was registered July 25, 2022. A Statement of Claim was filed October 5, 2022 (within 180 days of the lien being submitted for registration).

The certificate of lis pendens was not filed until November 21, 2022; within 180 days of the date of registration , but outside of the time permitted by the Act if the clock begins to run from the date the lien was submitted for registration.

[ 3 ] If the CLP was late, the lien ceases to exist. Section 43 (1)(2)(3) of the Act provides: 43(1) A lien that has been registered ceases to exist unless, within 180 days from the date it is registered, (

a) an action is commenced under this Act (

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

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

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

(3) Any lienholder who is a party to the proceedings may cause a certificate of lis pendens to be registered in the appropriate land titles office. ... [ 4 ] A certificate of lis pendens is not necessary if funds have been paid into court because there is no longer any title that is involved: 892336 Alberta Ltd v Silver Site Construction Ltd, 2006 ABCA 67 (at paras 3-6 ). [ 5 ] In this case there are no funds in court to stand in place of the land.

Registration and Requests [ 6 ] Registration under the Land Titles Act is: 1(v) “registration” means ... (ii) the entering on the certificate of title of a memorandum authorized by this Act or any other Act of any instrument or caveat, and (iii) the entering in the proper register of any instrument or caveat authorized to be registered, of which a memorandum is not required to be entered on a certificate of title; [ 7 ] In the past, a lien holder would present a lien for registration and it would be examined and either accepted (and registered), or rejected, on the spot.

Because the Registrar could not keep up with demand and needed time to examine instruments submitted for registration, and because the delay put the validity of the instruments that were required to be registered within a certain time limit into jeopardy, an amendment to the Land Titles Act was passed.

Section 14.1 of the Land Titles Act now provides (in part): 14.1(1) Subject to the regulations, this

section applies to instruments and caveats affecting a parcel of land to which a land identification number has been assigned under

section 51.

(2) The Registrar shall establish and maintain a pending registration queue. ...

(7) Where, under a court order or enactment, an instrument or caveat must be registered within a specific period of time, the requirements of the court order or enactment with respect to the timing of registration are deemed to have been satisfied when the instrument or caveat is entered in the pending registration queue, unless the instrument or caveat is later removed from the pending registration queue under subsection (6)(a)(ii) or (b). (emphasis added) [ 8 ] When an instrument is registered , it is assigned a nine-digit registration number.

When it is put into the queue, it is assigned a ‘document registration request (DRR) number’. It is not registered when it is placed in the queue, but only sits in the lineup waiting to be examined. [ 9 ] DRR documents are noted on title in the order that they were submitted. Typically, the type of instrument is described (eg certificate of lis pendens ) together with the parties seeking to have the instrument registered - usually a law firm - but the details of the instrument, or the name of the person claiming the interest are not set out as they would be on registration.

Registration after examination is not backdated to the date the instrument was put into the queue. [ 10 ] A registration request is not registration. It only indicates that the Registrar will examine the request in the order it was requested at some future date. (The ‘Pending Registration Queue Regulation’ , AR 43/2021 permits the Registrar to consider the requests out of order in some circumstances.) When the instrument is examined, the Registrar can refuse to register it ( Land Titles Act s 50).

Registration (or pending registration) of a lien can also be cancelled for the grounds set out in s 43(4) of the Prompt Payment and Construction Lien Act . This can be done at the request of an owner and it can occur prior to registration. (This was the issue in TRG

Developments Corp v Kee Installations Ltd, 2015 ABCA 187). [11] The decided cases uniformly say that lien legislation is to be interpreted strictly : eg Hett v Samoth Realty Projects Limited(1977) (AB CA), 76 DLR (3d) 362 (CA) and, Tervita Corporation v ConCreate USL (GP) Inc, 2015 ABCA 80 (atpara 5); but not so as to prejudice the rights of owners and third parties, and not in a way that would be inconsistent with the intention ofthe legislation: eg Tervita at para 8 (and the cases cited there). [12]

Section 14.1(7) of the Land Titles Act provides that the time limit in s 43 of the PPCLA is satisfied when the lien is put intothe queue. But it is still only a request and it is not registered until it is examined and placed on title. Many things can happen between aregistration request and acceptance for registration after examination. [13] The time for enforcement proceedings and a certificate of lis pendens runs from the date of registration (s 43 PPCLA).

TheAct does not provide that it runs from the date it is put into the queue, though the effect of s 14.1 Land Titles Act is to preserve the lienholder’s rights in the interim. If there is any ambiguity from the wording of the PPCLA and the amendments to the Land Titles Act, it ismy view that it should be resolved in favour of the lien holder. Certainly, there is no prejudice to the owner and there are no third partyrights affected. [14] The certificate of lis pendens, having been filed withing 180 days from the date of registration of the lien is in time. TheApplication to discharge the lien is dismissed.

Heard on the 6th day of February, 2023. Dated at the City of Edmonton, Alberta this 14th day of March, 2023. W.S. Schlosser A.J.C.K.B.A. Appearances: Tim Mavko Reynolds Mirth Richards & Farmer LLP for the Plaintiff Anthony Burden Field LLP for the Defendant