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The Limitation of Time for Registration of a Lien

February 21, 2022

Alberta

,

Canada

Issue

Can a contractor renew the lien filing period by returning to complete a nominal amount of additional work at the site?

Conclusion

Section 41(2) of the Builders' Lien Act (the "Act") provides that the time for registration of a lien terminates 45 days from the day that the performance of the services is completed or the contract to provide the services is abandoned. (Builders' Lien Act)

Cessation of work and abandonment are not necessarily co-existent. In order to constitute abandonment, a cessation of work would have to be permanent in the sense that it was not intended to carry the project to completion. (Elizabeth Townhouses Ltd. v. Sigurdson)

A temporary cessation of work, (for example, as a result of temporary financial problems of the owner,) is not the same thing as a permanent abandonment of the contract. The test or abandonment is when the lien claimant knew or should have known that the other party would not complete the contract. Once it would have been obvious to a reasonable contractor that the cessation of work was not merely temporary, but represented a termination of the contract, the contract was effectively “abandoned”. An abandonment can occur without a formal communication from the other parties that the contract is terminated. (Tervita Corporation v ConCreate USL (GP) Inc.)

The fact that work done at on certain date is trivial makes no difference so far as the validity of the builder's lien is concerned as long as the materials furnished and the services performed were done in good faith to complete the contract and were not colourable. (Glenway Supply (Alta.) Ltd. v. Knobloch Drywall)

When a claimant delivers goods of comparatively small value some time after the greater part of its material has been placed on site, and thereby purports to get an extension of time for filing a lien, such action is naturally open to suspicion. (Vanderwell Lumber Ltd. v. Grant Industries Ltd.)

In Zurich Canada v. Pepper-Olson Electrical Contractors Ltd., the plaintiff contracted for the improvements to a property. The defendant was subcontracted by Bow West for the supply and installation of electrical components including the installation of lobby lights. The defendant completed the vast majority of the work by August 1991 and Bow West was billed for the full amount of the contract price at that time. However, the lobby lights that were to be installed were not delivered to the defendant for installation until October 1991. The day after the defendant received the lights, it installed them. After the installation of the lights, the defendant filed a building lien for the full amount of the unpaid portion of the contract. The Court held that the lien was timely filed. There was no suggestion that the installation of the lobby lights on October 2nd, 1991 was undertaken on some colourable or mala fides basis.

In Vanderwell Lumber Ltd. v. Grant Industries Ltd., goods were mistakenly delivered later than expected. A lien was filed within the required time after the delivery of the late-delivered goods. The Court held that there no mala fides in delaying delivery of the goods and that the delayed delivery was not done for the purpose of preserving lien rights otherwise lost. The delay was simply the result of a mistake, which was serious, but not dishonest. However, despite this, the Court dismissed the lien because the late delivery of the goods was a correction of something not done or improperly done and fell under sec. 32 (5) of The Mechanics Lien Act, which stated that the doing of such a thing does not extend the time for registering a lien.

Similar to The Mechanics Lien Act cited in Vanderwell, pursuant to s. 41(5) of the Act, the time limited by s. 41 for registering a lien is not extended by reason only that something improperly done or omitted to be done is corrected or done at a later date. (Builders' Lien Act)

In Factors Western Inc v DCR Inc, the Alberta Court of Appeal heard an appeal regarding the timely filing of a lien. The respondent lienholder had performed work in December 2015 and provided an invoice in December 2015. A lien was filed in January 2016. The respondent then completed additional work in April and June 2016 and filed a second lien in June 2016. In this case, the appellants argued that the work performed by the respondent in 2016 was remediation work and was not lienable under s. 41(5) of the Act. The Court explained that, if the work was not remediation work, in order for the lien to be valid, the work had to be done pursuant to an additional contract or at the implied request of the owner. In this case, the respondent lienholder had no evidence of this, and therefore, the Court held that the lien was invalid.

Law

Section 41(2) of the Builders' Lien Act, RSA 2000, c B-7 (the "Act") provides that the time for registration of a lien terminates 45 days from the day that the performance of the services is completed or the contract to provide the services is abandoned:

Time for registration

41(1) A lien for materials may be registered at any time within the period commencing when the lien arises and

(a) subject to clause (b), terminating 45 days from the day that the last of the materials is furnished or the contract to furnish the materials is abandoned, or

(b) with respect to improvements to an oil or gas well or to an oil or gas well site, terminating 90 days from the day that the last of the materials is furnished or the contract to furnish the materials is abandoned.

(2) A lien for the performance of services may be registered at any time within the period commencing when the lien arises and

(a) subject to clause (b), terminating 45 days from the day that the performance of the services is completed or the contract to provide the services is abandoned, or

(b) with respect to improvements to an oil or gas well or to an oil or gas well site, terminating 90 days from the day that the performance of the services is completed or the contract to provide the services is abandoned.

[...]

In Elizabeth Townhouses Ltd. v. Sigurdson, 1974 CanLII 175 (SCC), the Supreme Court of Canada stated that cessation of work and abandonment are not necessarily co-existent. In order to constitute abandonment, a cessation of work would have to be permanent in the sense that it was not intended to carry the project to completion. In this case, work on the project ceased, but the evidence was clear that it was intended that work be resumed when the financial problems of the plaintiff had been overcome. Therefore, the work had not been abandoned and the lien was determined to have been timely filed:

He therefore defined the problem as one of abandonment and agreed with the trial judge and the majority reasons delivered by Seaton J.A. on this point. These reasons are:

Central to the appellants’ main argument is the position that the situation was absolutely hopeless for the appellant company, and it must be deemed to have abandoned. In my view that misses the question and one must look to the evidence, not to see whether they ought to have abandoned, but to see whether they did in fact abandon.

It is clear that work ceased, but in my view cessation of work and abandonment are not necessarily co-existent. In order to constitute abandonment a cessation of work would have to be permanent in the sense that it was not intended to carry the project to completion. Work on this project ceased before 10th December but the evidence is clear that it was intended that work be resumed when the financial problems had been overcome. It was likely that those problems would be overcome because the cost of completion was more than offset by the funds remaining to be advanced on the mortgage.

I agree with the learned trial Judge that it is difficult to determine the intention of the company and

[Page 453]

that this difficulty is made more severe by the several roles played by the directors as creditors, part of the management committee and so forth. I think that he was wholly justified in concluding as he did:

“Nowhere throughout the evidence can I discern any intention by anyone able to control the destiny of the project to abandon the improvement, nor was there in fact such an abandonment as I construe that word. It is true that there was a short cessation of work on construction of the uncompleted portion of the improvement but this, I think, is only one factor to consider and an insignificant one in comparison with the paper work and other efforts proceeding continuously to enable actual construction to continue. A change in ownership of the improvement does not in itself constitute an abandonment, nor does a mere cessation of work.”

The findings of fact justified by the evidence defeat the appellants’ contention that the respondent fails by reason of late filing.

I agree with these reasons. This branch of the appeal fails.

In Tervita Corporation v ConCreate USL (GP) Inc., 2015 ABCA 80 (CanLII), the Alberta Court of Appeal discussed the meaning of the terms "completion" and "abandonment" under the Act. The Court rejected a narrow interpretation of "abandonment" which would mean that the time for filing a lien would never expire in cases where a contractor is prevented from completing its work by the default of the party with whom it has contracted. The ABCA noted that the Supreme Court of Canada, in Dieleman Planer Co. Ltd. v Elizabeth Townhouses Ltd., 1974 CanLII 175 (SCC), held that a temporary cessation of work, (for example, as a result of temporary financial problems of the owner,) is not the same thing as a permanent abandonment of the contract. The Court held that the test for abandonment is when the lien claimant knew or should have known that the other party would not complete the contract. Once it would have been obvious to a reasonable contractor that the cessation of work was not merely temporary, but represented a termination of the contract, the contract was effectively “abandoned”. The Court noted that abandonment can occur without a formal communication from the other parties that the contract is terminated:

[6] The key section is s. 41(4):

41(4) In cases not referred to in subsections (1) to (3), a lien in favour of a contractor or subcontractor may be registered at any time within the period commencing when the lien arises and

(a) subject to clause (b), terminating 45 days from the day the contract or subcontract, as the case may be, is completed or abandoned . . .

The Act thus provides that the 45 days to file a lien starts running on the happening of either of two events: 1) the completion of the contract, or 2) the “abandonment” of the contract.

[7] It is immediately obvious that if a narrow interpretation is placed on the term “abandonment”, the time for filing a lien will never expire in cases where a contractor is prevented from completing its work by the default of the party with whom it has contracted, such as happened here. It is not disputed that the work called for under the Tervita contract was never actually completed by Tervita; the actions of the receiver prevented that. Further, in a subjective sense Tervita never “abandoned” the contract, because it was always ready, willing and able to complete its obligations. If the contracted work was never completed by Tervita, and the contract was never abandoned (in this subjective sense) then the 45 day time period for filing a lien never started running.

[8] The Builders’ Lien Act creates an extraordinary statutory remedy. The lien rights under the Act must be given a practical interpretation, so as not to unduly prejudice the rights of owners and third parties: Canbar West Projects Ltd. v Sure Shot Sandblasting & Painting Ltd., 2011 ABCA 107 at para. 14, 39 Alta LR (5th) 38, 502 AR 235. An interpretation which indefinitely delays the time limitation for filing a lien is unlikely to be in accordance with the intention of the legislature: Dieleman Planer Co. Ltd. v Elizabeth Townhouses Ltd. (1973), 1973 CanLII 1110 (BC CA), 38 DLR (3d) 595 at p. 600 (BCCA), affirmed 1974 CanLII 175 (SCC), [1975] 2 SCR 449.

[9] There are two interpretive approaches that accomplish a practical result. The first is with respect to “completion of the contract”. Where a contract is objectively terminated by the repudiation or breach of one of the parties, there are a number of consequences, and various legal remedies then become available. One consequence of a termination from breach is that both parties are relieved from any further performance under the contract: Keneric Tractor Sales Ltd. v Langille, 1987 CanLII 29 (SCC), [1987] 2 SCR 440 at p. 455; Vallieres v Vozniak, 2014 ABCA 384 at paras. 9-10; Think Kitchen Cabinets Ltd. v Harbourvista Apartments Ltd., 2014 NSSC 28 at para. 40, 339 NSR (2d) 327. Thus, when the receiver for ConCreate effectively terminated the contract, Tervita’s future performance obligations were at an end. While in a physical or functional sense there was still “undone work”, in a contractual sense all of the work required by the (now terminated) contract had been exhausted. The contract was “completed” in the sense that no further work would be done under it: Think Kitchen Cabinets at paras. 45-6.

[10] To summarize, in early April, ConCreate’s receiver blocked access to the site. Tervita commenced discussions with the City about doing the remaining testing directly for it. By July 23, 2012 Tervita acknowledged that the ConCreate contract had been terminated by breach, which, under this approach, would be the latest that the 45 day lien registration period would start running.

[11] The second interpretive approach relates to the term “abandonment”. The term “abandonment” can have a narrow meaning, denoting conduct of the contractor that signifies a subjective intention to cease performing its obligations. This would include the contractor “walking off the job” or “no longer showing up”. Abandonment may often be assumed upon the insolvency of the contractor, although in this case Tervita was never insolvent. Under the Act, however, a purely subjective test for abandonment as adopted in cases like W.M. Fares & Associates Inc. v 3035605 Nova Scotia Ltd., 2006 NSCA 120 at para. 23, 249 NSR (2d) 156 is inappropriate.

[12] In some cases a contract may be “abandoned” on an objective basis. The statute just requires abandonment, not necessarily abandonment by the lien claimant. Certainly a subjective abandonment by the lien claimant will be sufficient. However, when it becomes clear that the contract has been rendered un-performable by the conduct of either or both parties, by the actions of third parties, or as a result of external factors, the contract is essentially “abandoned”. Once it becomes impractical or impossible to perform the contract, no reasonable party would persist in saying they are “ready, willing and able” to continue performing: Lake of the Woods Electric (Kenora) Ltd. v Kenora Prospectors & Miners Ltd., (1996), 27 CLR (2d) 184 at para. 49 (OCJ Gen Div). There comes a point in time when it is clear that the contract is at an end. That will also start the 45 days running. At some time between the date when ConCreate’s receiver posted guards and blocked access to the site, and the email of July 23, this contract was essentially abandoned.

[13] The summary trial judge noted that in a physical sense the work was never completed, because the “anchor lift-off testing” was never done. He applied a primarily subjective test to “abandonment”, noting that Tervita was always ready, willing and able to do the anchor lift-off testing. Tervita’s statement on July 23 that the contract was terminated did not indicate that it had been terminated by Tervita, but rather that it had been terminated by others. There was always the possibility that ConCreate’s receiver would affirm Tervita’s contract, or that the City of Calgary would separately retain Tervita to do the same work. Notwithstanding Tervita’s acknowledgment on July 23 that its contract had been terminated, he held that it was not until October 24, 2012 that the City conclusively told Tervita that it would not be allowed to complete performance.

[14] The trial judge relied on Dieleman Planer Co. Ltd. v Elizabeth Townhouses Ltd., 1974 CanLII 175 (SCC), [1975] 2 SCR 449. That decision does not, however, mandate a purely subjective approach to abandonment. It decides that a temporary cessation of work (for example, as a result of temporary financial problems of the owner) is not the same thing as a permanent abandonment of the contract. Dieleman Planer implies that there can be an “abandonment” even if the contractor is ready, willing and able to do more work, if the work or the contract is permanently terminated.

[15] A review on appeal discloses that the trial judge applied too narrow a legal test. The test is when the lien claimant knew or should have known that the other party would not complete the contract. Once it would have been obvious to a reasonable contractor that the cessation of work caused by the receivership was not merely temporary, but represented a termination of the contract, the contract was effectively “abandoned”. An abandonment can occur without a formal communication from the other parties that the contract is terminated. Here the insolvency of ConCreate, the actions of its receiver in blocking access to the site, the discussion with the City about the possibility of doing the remaining work directly for the City, combined with the other surrounding factors, would cause a reasonable person to conclude that the contract was terminated. Tervita acknowledged that in its email of July 23. The fact that the City of Calgary might enter into a new contract for the same work was irrelevant to the ability to file a lien for the work done under the first contract.

[16] The time to file the lien starts running when the lien claimant knew or ought to have known that the other contracting party would not complete (i.e. had “abandoned”) the contract. To resolve this appeal, it is not necessary to determine exactly when the 45 days started to run. The contract had been abandoned, at the very latest, by the time of Tervita’s acknowledgment on July 23 that its contract had been terminated. In an objective sense, Tervita realized by that day that the cessation of work was not just temporary. The last day on which a lien could have been filed was approximately September 6, 2012, making the second lien ineffective.

In Equinox Electric Ltd v Progress Construction & Development Ltd, 2014 ABQB 552 (CanLII), Master Robertson of the Alberta Court of Queen’s Bench noted that a mere cessation of work is not sufficient to constitute an abandonment. In order to constitute an abandonment there must be both a cessation of work and a coexisting intention not to carry on with the project:

[26] The argument before me seems to have proceeded on the misunderstanding at the 45 day period runs from the last day that the subcontractor was on site. That is clearly not the law. This was discussed by Master Funduk in Kershaw Financial Corporation v. Jehan Holdings Ltd., 1988 CanLII 3853 (AB QB), 1988 CarswellAlta 567, [1988] A.J. No. 627, where he said, at paragraph 41:

The case law bears out that a mere cessation of work is not sufficient to constitute an abandonment. In order to constitute an abandonment there must be both a cessation of work and a coexisting intention not to carry on with the project. The cases are set out in Macklem and Bristow, Construction and Mechanics Liens in Canada (5th ed.) at pp. 80 – 81.

In Glenway Supply (Alta.) Ltd. v. Knobloch Drywall, 1972 ALTASCAD 67 (CanLII) the Supreme Court of Alberta, Appellate Division stated that the fact that work performed on a certain date is trivial makes no difference so far as the validity of the builder's lien is concerned as long as the materials furnished and the services performed were done in good faith to complete the contract and were not colourable:

[13] The fact that what was furnished or worked upon or furnished and worked upon on December 10th, was trivial when compared with the size of the contract, makes no difference so far as the validity of the builder's lien is concerned provided the materials furnished and the services performed were done in good faith to complete the contract and not colourable. (County of Lambton v. Canadian Comstock Co. et al (1960) 1959 CanLII 22 (SCC), S.C.R. 86; Emco Limited v. Starlight Towers Saskatchewan Drive Ltd. (1969) 1969 CanLII 1061 (AB CA), 70 W.W.R. 3, affirmed by the Supreme Court of Canada (1970) 1970 CanLII 979 (SCC), 72 W.W.R. 236. Reference on this point may also be made to Emco (Western) Ltd. v. Carillon Inv. Ltd. (1962) 1962 CanLII 469 (MB CA), 34 D.L.R. (2d) 403, and Winnipeg Supply S Fuel Co. v. Genevieve Mortgage Corporation (1972) 1971 CanLII 1156 (MB CA), 23 D.L.R. (3d) 160).

In Zurich Canada v. Pepper-Olson Electrical Contractors Ltd., 1992 CanLII 6222 (AB QB), the plaintiff contracted for improvements to a property. The defendant was subcontracted by Bow West for the supply and installation of electrical components including the installation of lobby lights. The defendant completed the vast majority of the work by August 1991 and Bow West was billed for the full amount of the contract price at that time. However, the lobby lights that were to be installed were not delivered to the defendant for installation until October 1991. The day after the defendant received the lights, it installed them. After the installation of the lights, the defendant filed a building lien for the full amount of the unpaid portion of the contract. Dixon J. of the Alberta Court of Queen's Bench held that the lien was timely filed. There was no suggestion that the installation of the lobby lights on October 2nd, 1991 was undertaken on some colourable or mala fides basis. In this case, the lobby lights were unavailable for installation to the Plaintiff prior to October 1st, 1991 and, in the result, its lien registration on November 13th, 1991 was appropriately effected within the 45-day registration period:

[1] DIXON J.:– This is an appeal from the Order of Master Waller dated November 19th, 1992 whereunder, inter alia, he found that the Builder's Lien registered by the Respondent, and the Certificate of Lis Pendens relating thereto, are invalid, the Builder's Lien having been registered after the time allowed by s. 30 of the Builders' Lien Act (the "Act").

[2] Section 30 provides that a lien for materials or a lien for the performance of services may be registered at any time within the period commencing when the lien arises and terminating 45 days from the day that the last of the materials is furnished or 45 days from the date the performance of the services is completed.

[3] The principal issue in the appeal involves the interpretation and application of s. 30(5) of the Act which reads as follows:

(5) Notwithstanding subsections (1) to (4), the time limited by this section for registering a lien is not extended by reason only that something improperly done or omitted to be done in respect of the work done or materials furnished is corrected or done, as the case may be, at a later date.

[4] The Plaintiff holds a leasehold estate in a certain Calgary building property and contracted with Bow West Construction Ltd. ("Bow West") for the construction of improvements thereon. Bow West subcontracted with the Defendant for the supply and installation of electrical components, having a value of $61,965.30 plus GST. The subcontract required the Defendant to install certain lobby lights in the building, which lights were to be furnished by Bow West to the Defendant. The vast majority of the materials and services to be supplied and performed by the Defendant to the Plaintiff were supplied and performed by August 1991 and Bow West was billed for the full amount of the contract price during the month of August 1991.

[5] The Defendant took delivery of the lobby lights from Bow West on or about October 1st, 1991 and sent personnel to the job site on the following day when the installation was completed in one-half day's time.

[6] A builder's lien in the amount of $6,777.12, being the amount then unpaid under the contract, was filed by the Defendant against the Plaintiff's leasehold interest on November 13th, 1991, as Instrument No. 911256761.

[...]

[9] There has been no suggestion that the installation of the lobby lights on October 2nd, 1991, was undertaken on some colourable or mala fides basis. These lights were installed by the Defendant on the day following its receipt of same from the general contractor and it is not contested that these lights were to be furnished by the general contractor to the Defendant as a matter of subcontract. Under these circumstances, there is no reason to characterize their installation as "something improperly done or omitted to be done" as countenanced under s. 30(5).

[10] I have been referred by counsel to the decision of Stratton J., as he then was, in Ironco Iron Works Ltd. v. Peace River (Town), 1985 CanLII 1190 (AB QB), 39 Alta. L.R. (2d) 142, [1985] 5 W.W.R. 697 (Q.B.), wherein the learned Justice applied s. 30(5) and made a finding of invalid registration. In that case there was a finding that shorted materials should have been delivered earlier and thus the resulting invalid lien registration. In this case, the lobby lights were unavailable for installation to the Plaintiff prior to October 1st, 1991 and, in the result, its lien registration on November 13th, 1991 was appropriately effected within the 45-day registration period.

[11] I accordingly allow the appeal from the Master's Order of November 19th, 1992 in regard to para. 3 thereof. In that, through lack of time, counsel did not have an opportunity to fully argue any consequential changes to the Master's Order as a result of a finding on this appeal of validity of lien registration, I will seek further representation on any remaining items, including costs.

In Vanderwell Lumber Ltd. v. Grant Industries Ltd., 1963 CanLII 965 (AB QB), Farthing J. of the Alberta Supreme Court noted that when a claimant delivers goods of comparatively small value some time after by far the greater part of its material has been placed on site, and thereby purports to get an extension of time for filing a lien, such action is naturally open to suspicion. In this case, goods were mistakenly delivered later than expected. A lien was filed within the required time after the delivery of the late-delivered goods. The Court held that there was no mala fides in delaying delivery of the goods. The delayed delivery was not done for the purpose of preserving lien rights otherwise lost. The delay was simply the result of a mistake that was serious but not dishonest. However, despite this, the Court dismissed the lien because the late delivery of the goods was a correction of something not done or improperly done and fell under s. 32(5) of The Mechanics Lien Act, which stated that the doing of such a thing does not extend the time for registering a lien:

[2] At the close of the hearing in Edmonton on 20th and 21st instant I dismissed the lien of Rosco Metal Products Ltd. because of late filing and stated my reasons. As no court reporter was present, counsel for Rosco has asked me to give written reasons, which I am now doing.

[3] When, as in this case, a claimant delivers goods of comparatively small value some time after by far the greater part of its material has been placed on site, and thereby purports to get an extension of time for filing a lien, such action is naturally open to suspicion — particularly, when, as in this case no charge was made for the goods in question. Rosco contracted to supply bulk-feed tanks with five ladders on the walls thereof. Between September 29 and November 9, 1961, goods to the value of nearly $12,000 were delivered in seven shipments. On January 2, 1962, the ladders were delivered with a "no charge" invoice.

[4] The invoice sent with the tanks included the price of the ladders and Rosco had no knowledge that they had not been shipped with the tanks until one or more of its officials were so informed by the manager of the contractor in conversation in Edmonton some time later, when the financial stability of the contractor was beginning to appear very doubtful. On inquiry at Rosco's Calgary branch, whence the shipments had been sent to Edmonton, it was discovered that the ladders had been allocated to Corral but, when an apparently more urgent need therefor had come from another customer, they had been sent to the latter and no replacements had been allocated to the Edmonton shipment until after the said conversation.

[5] On these facts it is clear to me that there was no mala fides in delaying delivery of the ladders. Such was not done for the purpose of preserving lien rights otherwise lost. The delay was simply the result of a mistake, serious but not dishonest. But I cannot agree with counsel for Rosco that the delay was, in effect, in the natural course of business. The ladders were not shipped when they should have been shipped — and when the claimant erroneously thought they had been shipped. In my opinion it would be difficult to conceive a case which falls more clearly within the commendably plain, simple words of sec. 32 (5) of The Mechanics Lien Act, 1960, 1960, ch. 64, which reads:

32. (5) Where, in respect of work done on or material furnished for an improvement,

(a) something is improperly done, or

(b) something that should have been done is not done, at the time when the thing should have been done and if at a later date the thing improperly done is put right or the thing not done is done, the doing of the thing at the later date shall not be deemed to be the completion of the work or the furnishing of the last materials so as to enable a person to extend the time limited by this section for registering a lien.

[6] The claim of Rosco Metal Products Ltd. is therefore dismissed.

Pursuant to s. 41(5) of the Builders' Lien Act, RSA 2000, c B-7, the time limited by s. 41 for registering a lien is not extended by reason only that something improperly done or omitted to be done in respect of work done or materials furnished is corrected or done, as the case may be, at a later date:

Time for registration

41

[...]

(5) Notwithstanding subsections (1) to (4), the time limited by this section for registering a lien is not extended by reason only that something improperly done or omitted to be done in respect of work done or materials furnished is corrected or done, as the case may be, at a later date.

In Factors Western Inc v DCR Inc, 2021 ABCA 433 (CanLII), the Alberta Court of Appeal heard an appeal regarding the timely filing of a lien. The respondent lienholder had performed work in December 2015 and provided an invoice in December 2015. A lien was filed in January 2016. The respondent them completed additional work in April and June 2016 and filed a second lien in June 2016. In this case, the appellants argued that the work performed by the respondent in 2016 was remediation work and was not lienable under s. 41(5) of the Act. The Court held that respondent lienholder bears the onus of establishing the validity of its lien. The Court explained that, if the work was not remediation work, in order for the lien to be valid, the work had to be done pursuant to an additional contract or at the implied request of the owner. In this case, the respondent lienholder had no evidence of this and therefore, the Court held that the lien was invalid:

[17] On January 26, 2016 Slimdor registered its first builders’ lien in the amount of $125,655 (the January Lien).

[18] Slimdor undertook additional work between April and June 2016. We have very little evidence about what happened. Slimdor filed an affidavit, but it does not contain information about when it was requested to undertake the additional work and by whom. There is no evidence as to whether Slimdor

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