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C.C.S.M. c. B91

The Builders' Liens Act

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions

1(1)        In this Act,

"common-law partner" of a person means a person who, not being married to the other person, is cohabiting with him or her in a conjugal relationship of some permanence; (« conjoint de fait »)

"construction" means the making, building, construction, erection, fitting, placing, alteration, improvement or repair of a structure; (« construction »)

"contract" means a contract entered into with the owner or his agent

(a) for construction, or

(b) for improving land, or

(c) for the doing of any work or the providing of any services in construction or in improving land, or

(d) for the supplying of any materials to be used in construction or in improving land,

but does not include a contract of employment; (« contrat »)

"contractor" means a person who has entered into a contract with the owner or his agent; (« entrepreneur »)

"contract price" means the price to be paid under a contract or sub-contract for performance of the contract or sub-contract; (« prix contractuel »)

"court" means Her Majesty's Court of Queen's Bench for Manitoba; (« tribunal »)

"Crown" means Her Majesty, The Queen in Right of Manitoba; (« Couronne »)

"Crown agency" means

(a) Manitoba Agricultural Services Corporation,

(b) The Manitoba Public Insurance Corporation,

(c) Manitoba Development Corporation,

(d) [repealed] S.M. 1992, c. 35, s. 58,

(e) The Manitoba Housing and Renewal Corporation,

(f) Manitoba Hydro,

(g) Manitoba Liquor and Lotteries Corporation,

(h) [repealed] S.M. 1996, c. 79, s. 30,

(i) The Manitoba Water Services Board; (« organisme gouvernemental »)

"encumbrance" means any mortgage of or charge or lien on land and includes an hypothecation of a mortgage of or charge or lien on land; (« charge »)

"holdback" means the amount required under this Act to be deducted from payments to be made under a contract and retained for a period prescribed under this Act and, where the hold back is deposited in a hold back account, includes any interest accruing thereon; (« retenue »)

"holdback account" means an interest bearing account in a bank, trust company or credit union in the joint names of the owner and the contractor; (« compte de dépôt des retenues »)

"improving land" means the doing of any work which improves the character of the land and without limiting the generality of the foregoing includes

(a) clearing the land of timber or scrub,

(b) landscaping the land,

(c) fencing the land, and

(d) demolishing structures on the land,

but does not include tilling, seeding, cultivating or mowing the land for agricultural or forest production or the harvesting of a crop from the land or the cutting of timber from the land for sale; (« amélioration d'un bien-fonds »)

"judge" means a judge of the court; (« juge »)

"lien" means a lien created under this Act; (« privilège »)

"materials" includes every kind of movable property; (« matériaux »)

"municipality" includes a local government district and "clerk of the municipality" includes the resident administrator of a local government district; (« municipalité »)

"owner" means any person having any estate or interest in the structure and the land occupied thereby or enjoyed therewith, or in the land upon or in respect of which work is done or services are provided or materials are supplied, at whose request and

(a) upon whose credit, or

(b) on whose behalf, or

(c) with whose privity or consent, or

(d) for whose direct benefit,

the work is done or the services are provided or the materials are supplied, and all persons claiming under or through him whose rights are acquired after the work or services were commenced or after the materials were supplied; (« propriétaire »)

"payment certifier" means an architect, engineer or other person upon whose certificate payments are made under a contract; (« certificateur »)

"person" includes the Crown; (« personne »)

"prescribed" means prescribed in the regulations; (« prescrit »)

"registrar" includes

(a) a district registrar,

(b) with respect to a lien registered in the office of a recorder of a mining district, the recorder,

(c) with respect to a claim registered under subsection 37(5), the registrar under The Oil and Gas Act,

(d) with respect to a lien registered in the office of the Director of Crown Lands, the Director of Crown Lands; (« registraire »)

"registry office" includes a land titles office and "land titles office" includes

(a) a registry office,

(b) with respect to a lien registered in the office of a recorder of a mining district, the office of the recorder,

(c) with respect to a claim registered under subsection 37(5), the office of the registrar under The Oil and Gas Act,

(d) with respect to a lien registered in the office of the Director of Crown Lands, the office of the Director of Crown Lands; (« bureau du registre foncier »)

"services" includes

(a) the preparation of specifications, drawings and other documents used or to be used in construction,

(b) administration of a contract or sub-contract,

(c) inspection or supervision of work done under a contract or a sub-contract, or

(d) renting of equipment with or without an operator to an owner, contractor or sub-contractor to be used in the performance of a contract or a sub-contract,

but does not include the preparation of specifications, drawings and other documents by, or the administration of a contract or sub-contract by, or inspection or supervision of work done under a contract or sub-contract by, a professional architect or engineer who is not an employee of the contractor or sub-contractor; (« services »)

"structure" means anything built or made on and affixed to or imbedded in land or affixed to or imbedded in land after being built or made elsewhere, and appurtenances thereto, and, without limiting the generality of the foregoing, includes

(a) any building, structure, erection, wharf, pier, bulkhead, bridge, trestlework, vault, sidewalk, road, roadbed, lane, paving, pipeline, fountain, fishpond, drain, sewer, canal, or aqueduct, built or made on and affixed to or imbedded in land or affixed to or imbedded in land after being built or made elsewhere, and appurtenances thereto, and

(b) any well, mine or excavation drilled, sunk or made in or on land and any appurtenances thereto,

and a reference to a structure on land includes a structure in or beneath the surface of the land; (« ouvrage »)

"sub-contract" means a binding agreement between a sub-contractor and a contractor or between a sub-contractor and another sub-contractor

(a) for construction, or

(b) for improving land, or

(c) for the doing of any work or the providing of any services in construction or in improving land, or

(d) for the supplying of any materials to be used in construction or in improving land; (« contrat de sous-traitance »)

"sub-contractor" means a person other than a contractor, who has entered into a sub-contract but who does not have a contract directly with the owner or his agent; (« sous-traitant »)

"wages" means money earned by a worker for work or services done, whether upon a time or piece work basis; (« salaires »)

"worker" means an employee. (« ouvrier »)

Registered common-law relationship

1(2)        For the purposes of this Act, while they are cohabiting, persons who have registered their common-law relationship under section 13.1 of The Vital Statistics Act are deemed to be cohabiting in a conjugal relationship of some permanence.

R.S.M. 1987 Corr.; S.M. 1992, c. 35, s. 58; S.M. 1993, c. 4, s. 225; S.M. 1996, c. 79, s. 30; S.M. 2002, c. 24, c. 5; S.M. 2002, c. 48, s. 28; S.M. 2005, c. 28, s. 82; S.M. 2013, c. 51, Sch. A, s. 58.

Substantial performance

2(1)        For the purposes of this Act, a contract or sub-contract shall be conclusively deemed to be substantially performed when

(a) the structure to be constructed under the contract or sub-contract or a substantial part thereof is ready for use or is being used for the purpose intended or, where the contract or sub-contract relates solely to improving land, the improved land or a substantial part thereof is ready for use or is being used for the purpose intended; and

(b) the work to be done under the contract or sub-contract is capable of completion or correction at a cost of not more than

(i) 3% of the first $250,000. of the contract price,

(ii) 2% of the next $250,000. of the contract price, and

(iii) 1% of the balance of the contract price.

Where work cannot be completed

2(2)        For the purposes of this Act, where a structure or a substantial part thereof or the improved land or a substantial part thereof is ready for use or is being used for the purpose intended, and the work to be done under the contract or sub-contract relating to the construction or the improvement of the land cannot be completed expeditiously for reasons beyond the control of the contractor or sub-contractor, the value of the work to be completed shall be deducted from the contract price in determining substantial performance.

Supplying materials

2(3)        For the purposes of this Act, materials shall be deemed to have been supplied to be used in the performance of a contract or a sub-contract

(a) if they are delivered to land in respect of which the contract or sub-contract is to be performed; or

(b) if they are delivered to some other land which is in the immediate vicinity of the land in respect of which the contract or sub-contract is to be performed and which has been designated by the owner or his agent as the land to which the materials are to be delivered; or

(c) if the materials were made to specifications set out in the contract or sub-contract and were delivered to the contractor or sub-contractor for the purpose of being used in the performance of the contract or sub-contract;

but delivery of materials on land designated under clause (b) does not make the land so designated subject to a lien in respect of the supplying of the materials.

Meaning of "agent" in subsection (3)

2(4)        For the purposes of subsection (3), "agent" includes a contractor, or sub-contractor for whom, or on whose direction, the materials are supplied unless the person supplying the materials has had actual notice from the owner to the contrary.

Crown, etc. bound

3(1)        Subject to subsection (2), the Crown, all Crown agencies, and all boards, commissions and bodies performing any duties or functions under an Act of the Legislature on behalf of the Crown, are bound by this Act.

Act not to apply to provincial highways, etc.

3(2)        This Act does not apply to or in respect of work relating to or contracts of the Crown with respect to the construction, repair or maintenance of highways, bridges, air strips, docks and ferry terminals under the control and management of the Crown.

Act not to apply to certain Manitoba Hydro contracts

3(3)        This Act does not apply to contracts, or work related to contracts, entered into by Manitoba Hydro with respect to or in any way associated with the construction, repair or maintenance of hydro-electric generating stations or facilities, and plant appurtenant thereto.

TRUST PROVISIONS

Receipts of contractor constitute trust fund

4(1)        All sums, including any interest on the holdback, received by a contractor on account of a contract price constitute a trust fund for the benefit of

(a) sub-contractors who have sub-contracted with the contractor and other persons who have supplied materials or provided services to the contractor for the purpose of performing the contract;

(b) the Workers' Compensation Board;

(c) workers who have been employed by the contractor for the purpose of performing the contract; and

(d) the owner for any set-off or counterclaim relating to the performance of the contract.

Receipts of sub-contractor constitute trust fund

4(2)        All sums, including any interest on the holdback, received by a sub-contractor on account of a contract price in the sub-contract, constitute a trust fund for the benefit of

(a) sub-contractors who have sub-contract with the sub-contractor and other persons who have supplied materials or provided services to the sub-contractor for the purpose of performing the sub-contract;

(b) the Workers' Compensation Board;

(c) workers who have been employed by the sub-contractor for the purpose of performing the sub-contract; and

(d) the contractor or any sub-contractor for any set-off or counterclaim relating to the performance of the sub-contract.

Duties of contractor respecting trust fund

4(3)        A contractor receiving a sum mentioned in subsection (1) is the trustee of the trust fund and he shall not appropriate or convert any part of the trust fund to or for his own use or to or for any use not authorized by the trust until

(a) all sub-contractors who have entered into a sub-contract with him and all persons who have supplied materials or provided services to him for the purpose of performing the contract have been paid all amounts then owing to them out of the sum received;

(b) the Workers' Compensation Board has been paid all assessments which the contractor could reasonably anticipate as arising out of work done by workers employed by him in performing the contract to the extent for which the sum was received;

(c) all workers who have been employed by him for the purpose of performing the contract have been paid all amounts then owing to them out of the sum received for work done in performing the contract; and

(d) provision has been made for the payment of other affected beneficiaries of the trust to whom amounts are then owing out of the sum received.

Duties of sub-contractor re trust

4(4)        A sub-contractor receiving a sum mentioned in subsection (2) is the trustee of the trust fund and he shall not appropriate or convert any part of the trust fund to or for his own use or to or for any use not authorized by the trust until

(a) all sub-contractors who have sub-contracted with him and all persons who have supplied materials or provided services for the purpose of performing the sub-contract have been paid all amounts then owing to them out of the sum received;

(b) the Workers' Compensation Board has been paid all assessments which the sub-contractor could reasonably anticipate as arising out of work done by workers employed by him in performing the sub-contract to the extent for which the sum was received;

(c) all workers who have been employed by him for the purpose of performing the sub-contract have been paid all amounts then owing to them out of the sum received for work done in performing the sub-contract; and

(d) provision has been made for the payment of other affected beneficiaries of the trust to whom amounts are then owing out of the sum received.

Receipts and moneys of owner constitute trust fund

5(1)        Where, under a contract, sums become payable to the contractor by the owner on the basis of a certificate of a payment certifier, any amount, up to the aggregate of the sums so certified, that is in the hands of the owner or received by him at any time thereafter for payment under the contract constitutes, until paid to the contractor, a trust fund for the benefit of

(a) the contractor and all sub-contractors and other persons who have supplied materials or provided services for the purposes of performing the contract or any sub-contract under the contract;

(b) The Workers Compensation Board; and

(c) workers who have been employed for the purpose of performing the contract or any sub-contract under the contract.

Advances on mortgages, etc.

5(2)        All sums received by an owner that are to be used in the financing of a structure or improving land, including the purchase price of the land and payment for the discharge or withdrawal of prior encumbrances against the land, constitute, subject to the payment of the purchase price and of payments for the discharge or withdrawal of prior encumbrances against the land, a trust fund for the benefit of the persons mentioned in subsection (1).

Duties of owner as to trust fund

5(3)        The owner is the trustee of the trust funds created under subsections (1) and (2) and he shall not appropriate or convert any part of the trust fund to or for his own use or to or for any use not authorized by the trust until

(a) the contractor has been paid all sums justly owed to him in respect of the performance of the contract; and

(b) provision for the payment of other affected beneficiaries of the trust has been made.

Exception

5(4)        Notwithstanding subsection (3), where an owner has himself paid, in whole or in part,

(a) any sub-contractor or other person who has supplied materials or provided services for the purpose of performing the contract or any sub-contract thereunder;

(b) any assessment of The Workers Compensation Board arising out of work done in performing the contract or any sub-contract thereunder;

(c) any worker who has been employed by the contractor or any sub-contractor for the purpose of performing the contract or sub-contract for work done in the performance of the contract or the sub-contract; or

(d) any other affected beneficiary in respect of a claim arising out of the performance of the contract or any sub-contract thereunder;

the retention by the owner of a sum equal to the sum so paid by him shall be deemed not to be an appropriation or conversion thereof to or for his own use or to or for any use not authorized by the trust if, prior to the retention, all beneficiaries of the trust entitled under him have been paid in full.

Protection of money lenders

6(1)        Notwithstanding sections 4 and 5, where money is lent to a person upon whom, in respect of a contract or sub-contract, a trust is imposed by those sections, and is used by him to pay in whole or in part

(a) any sub-contractor engaged for the purposes of performing the contract or sub-contract;

(b) any assessment of The Workers Compensation Board arising out of work done in performing the contract or sub-contract;

(c) any workers who have been employed for the purposes of performing the contract or sub-contract; or

(d) any persons who have supplied materials or provided services for the purposes of the contract or sub-contract;

trust moneys may be applied to discharge the loan to the extent that the lender's money was so used by the trustee and any sum so applied shall be deemed not to be an appropriation or conversion thereof to or for his own use or to or for any use not authorized by the trust.

Certain moneys not subject to garnishment

6(2)        Where money owing to a contractor or sub-contractor in respect of the contract price under a contract or sub-contract would, if paid to the contractor or sub-contractor, be subject to a trust under section 4, the money is not subject to garnishment under The Garnishment Act.

Assignment not valid against lien or trust

6(3)        No assignment by the contractor or sub-contractor of any moneys due or to become due on account of the contract price under a contract or sub-contract is valid as against any lien or trust created under this Act.

Assignment subject to trust

6(4)        Where a right to payment of moneys, which upon receipt by the assignor would be subject to a trust under this Act, is assigned, or purported to be assigned, moneys received by the assignee under the assignment or purported assignment are subject to the trust and the assignee is the trustee.

Offence and penalty

7           Every person upon whom a trust is imposed by section 4, 5 or 6 who knowingly appropriates or converts any moneys constituting a trust under those sections to or for his own use or to or for any use not authorized by the trust is guilty of an offence and liable, on summary conviction, to a fine of not more than $50,000. or to imprisonment for a term of not more than two years, or to both and every director or officer of a corporation who knowingly assents to or acquiesces in an offence by the corporation under this section is, in addition to the corporation, guilty of the same offence and liable, on summary conviction, to a similar penalty.

Limit of time for asserting claims to trust moneys

8           No action to assert any claim to moneys constituting a trust under section 4 or 5 shall be commenced after the expiry of 180 days after the date upon which the person bringing the action first became aware of the breach of trust.

Registration time limits, etc., do not apply to trusts

9           The existence of a trust and a cause of action asserting the existence of a trust or any breach of trust under this Act are not affected by the fact that the time for filing a lien under this Act has expired.

RECORDS

Records by contractors and sub-contractors

10(1)       Every contractor and sub-contractor shall maintain in his principal place of business in the province a true and correct record in the English or French language of the following particulars in respect of each contract and sub-contract which he enters into under or by virtue of which a lien may arise under this Act:

(a) The whole or essential terms of the contract or sub-contract.

(b) The amounts of payments and times for payments under the contract or sub-contract.

(c) The name, last known address and business of the parties to the contract or sub-contract.

(d) The dates upon which payments are made under the contract or sub-contract and the amount of each payment.

(e) The amount of each deduction made from each payment under the contract or sub-contract and the particulars thereof.

(f) The date of commencement of work undertaken in the performance of the contract or sub-contract.

(g) The date and particulars of any certificate given by a payment certifier as to the substantial performance or completion of the contract or sub-contract or of any part thereof and the name and address of the payment certifier.

(h) The date of substantial performance of the contract or sub-contract and the date of the completion of the contract or sub-contract.

Records to be current

10(2)       The records required to be maintained under subsection (1) shall be kept up-to-date not less frequently than monthly.

Records to be kept after completion

10(3)       The records required to be maintained under subsection (1) in respect of a contract or sub-contract shall be maintained and preserved by the contractor or sub-contractor, as the case may be, for a period of not less than one year after the date of the completion of construction or the improving of the land with respect to which the contract or sub-contract relates.

Separate records for each project

10(4)       A separate record shall be maintained by contractors and sub-contractors under subsection (1) in respect of each separate contract and sub-contract.

Requirement to produce to inspector

10(5)       A contractor or sub-contractor shall produce the records required to be kept under subsection (1) to any inspector appointed under The Labour Administration Act, including a chief inspector, upon his request and make them available for his inspection and shall furnish copies of any part thereof to the inspector upon his written demand.

Offence

10(6)       Every person who contravenes or fails to comply with a provision of this section is guilty of an offence and liable, on summary conviction, to a fine of not more than $500. or to imprisonment for a term of not more than three months, or to both and every director or officer of a corporation who knowingly assents to or acquiesces in an offence by the corporation under this section is, in addition to the corporation, guilty of the same offence and liable, on summary conviction, to a similar penalty.

Continuing offence

10(7)       Where a person contravenes or fails to comply with a provision of this section for a period of more than one day, he is guilty of a separate offence for each day that the contravention or failure to comply continues.

S.M. 2001, c. 43, s. 34; S.M. 2012, c. 40, s. 51.

ATTEMPTS TO CIRCUMVENT ACT

Waivers, etc., against public policy

11          Every agreement, oral or written, express or implied, on the part of any person

(a) that provides or purports to provide that this Act does not apply to him; or

(b) that provides or purports to provide that remedies available under this Act are not to be available for his benefit; or

(c) that waives or purports to waive any lien or right of lien under this Act;

is against public policy and void.

Devices to defeat liens and trusts

12          Every device by a person and every payment made for the purpose of defeating or impairing a lien or a trust created under this Act is against public policy and void.

ORIGIN AND NATURE OF LIEN

Creation of lien

13          Any person who

(a) does any work; or

(b) provides any services; or

(c) supplies any materials to be used;

in performance of a contract or sub-contract for any owner, contractor or sub-contractor has, by virtue thereof, a lien for the value of the work, services or materials which, subject to section 16, attaches upon the estate or interest of the owner in the land or structure upon or in respect of which the work was done or the services were provided or the materials were supplied, and the land occupied thereby or enjoyed therewith.

Small liens

14          No lien exists under this Act for a claim of less than $300.

Commencement of lien

15          As against owners, chargees or mortgagees under or through instruments, registered or unregistered, a lien, upon registration as hereinafter provided, arises and takes effect from the date of the commencement of the work or services or from the date the materials were first supplied.

Liens against Crown, etc.

16          Where the owner of the land or structure upon or in respect of which any work is done, or services are provided, or materials are supplied, is the Crown, a Crown agency, or a municipality, the lien created by section 13 does not attach to the interest of the Crown, the Crown agency or the municipality, in the land or structure but constitutes a charge on amounts required to be retained under section 24 and, subject to section 45, this Act applies, with such modifications as the circumstances require, and shall be construed to have effect in the enforcement of the charge on the amounts retained without the requirement of registration of the lien or a claim for lien against the land or structure.

Where materials incorporated

17          Notwithstanding the materials supplied to be used in the performance of a contract or sub-contract have not been supplied in strict accordance with subsection 2(3), if the materials are incorporated or used in the construction or the improvement of land to which the contract or sub-contract relates, subject to section 16, the lien created under section 13 attaches to the land or structure.

Where estate attached is leasehold

18(1)       Where the estate or interest of the owner upon which the lien attaches is a leasehold estate or interest, the estate or interest of that owner's landlord and, where the estate or interest of the owner's landlord is leasehold, the estate in fee simple, as well are subject to the lien if

(a) the person entitled to the estate in fee simple or the owner's landlord, or both, consented to the work, services or materials giving rise to the lien being done, provided or supplied, and the work, services or materials giving rise to the lien were done, provided or supplied for the direct benefit of the person entitled to the estate in fee simple or the owner's landlord; or

(b) the owner is required, by his lease or other agreement with his landlord, or other person entitled to the estate in fee simple to do the work, provide the services, or supply the materials giving rise to the lien.

Limit of lien

18(2)       A lien created under subsection (1) on the estate or interest of an owner's landlord, or on an estate in fee simple is limited to, and does not attach so as to make the owner's landlord or the holder of the estate in fee simple liable for more than the value of the holdbacks that the owner was required to make.

Forfeiture of lease

19          Where the estate or interest of the owner upon which a lien attaches is leasehold, no forfeiture or cancellation, or attempted forfeiture or cancellation, of the lease on the part of the owner's landlord, except for non-payment of rent, deprives the person entitled to the lien of the benefit of the lien and the person entitled to the lien may pay any rent accruing after he becomes entitled to the lien and the amount so paid may be added to his claim for lien but that part of the claim for lien represented by moneys paid by him for rent accruing is limited to the leasehold estate or interest of the owner and does not create any addition to the claim for lien against the estate or interest of the owner's landlord or against the estate in fee simple.

Prior encumbrances, etc.

20(1)       If the land upon or in respect of which work is done, services are provided or materials are supplied, is encumbered by an encumbrance existing or created before the commencement of the construction or improvement in respect of which the work is done, the services are provided or the materials are supplied, the enbumbrance has priority over a lien under this Act to the extent of the actual value of the land at the time of the commencement of the construction or improvement in respect of which the work is done, the services are provided or the materials are supplied.

Future advances

20(2)       A mortgage or charge against land which existed or was created before work, services or material giving rise to a lien upon the land were begun or begun to be supplied, may, subject to section 31, secure future advances.

Insurance moneys when lien attaches

21          Where a structure upon which a lien has been created is wholly or partly destroyed by fire or other peril, any money received, by reason of any insurance on the structure, by the owner or prior encumbrancer takes the place of the structure so destroyed and is, after satisfying any prior encumbrance to the extent necessary to give effect to the priority established under section 20, subject to the claims of all persons for liens to the same extent as if the moneys were realized by the sale of the land in an action to enforce the liens.

Limit of owner's liability

22(1)       Subject to subsection 27(2), a lien does not attach so as to make an owner liable for a greater amount than the amount payable by the owner to the contractor.

Liability of municipality with respect to certain roads, etc.

22(2)       Notwithstanding subsection (1), where land is dedicated as a public road, roadbed, lane or sidewalk, and an improvement is made to the public road, roadbed, lane or sidewalk at the request of, or under agreement with, a municipality, and

(a) to the specifications of the municipality; or

(b) under the supervision of the municipality; but not at the expense of the municipality, the municipality is, nevertheless,on default of payment by the proper payor, liable to the value of the holdbacks required under section 24 that would have been required if the improvement had been made at the expense of the municipality.

Limit of lien claimed by person other than contractor

23          Subject to subsection 27(2), where a lien is claimed by a person other than a contractor, the amount that may be claimed in respect thereof is limited to the amount payable to the contractor or sub-contractor or other person for whom the lienholder did work, provided services or supplied the materials.

Holdback

24(1)       The person primarily liable for payment under a contract under or by virtue of which a lien may arise shall, as the work is done or the services are provided or the materials are supplied under the contract, deduct 7.5% of each payment to be made by him in respect of the contract, and retain that amount for at least 40 days after

(a) a certificate of substantial performance is given under section 46; or

(b) the work to be done under the contract has been completed, the services to be provided under the contract have been completely provided and the materials to be supplied under the contract have been completely supplied; or

(c) the work to be done under the contract, the services to be provided under the contract and the supplying of materials to be supplied under the contract have been abandoned;

whichever first occurs, so that the total holdback shall be equal to 7.5% of the contract price for the whole contract, or if there is no specific contract price, 7.5% of the total value of the work, services and materials done, provided or supplied in the performance of the contract.

Holdback after substantial performance

24(2)       Upon substantial performance of a contract, the person primarily liable for payment under the contract under which there remains work or services to be done or materials to be supplied and under or by virtue of which a lien may arise, shall, as the remaining work is done or the remaining services are provided or the remaining materials are supplied under the contract, deduct 7.5% of each payment to be made by him in respect of the remaining work, services or materials, and retain that amount for at least 40 days after

(a) the work to be done under the contract has been completed, the services to be provided under the contract have been completely provided and the materials to be supplied under the contract have been completely supplied; or

(b) the work to be done under the contract, the services to be provided under the contract and the supplying of materials to be supplied under the contract have been abandoned;

whichever first occurs, so that the total holdback for the work, services and materials remaining to be done, provided or supplied, as the same are actually done, provided or supplied shall be 7.5% of the value thereof calculated,

(c) as the amount that bears the same proportion to the total contract price for the contract that the work, services and materials remaining to be done, provided or supplied bears to the total work, services and materials to be done, provided or supplied under the contract; or

(d) if there is no specific contract price, on the basis of the actual value of the work, services and materials remaining to be done, provided or supplied.

Payment into holdback account

24(3)       Where the total price of work to be done, services to be provided and materials to be supplied under a contract exceeds the amount prescribed in the regulations for the purpose of this section, or, if there is no specific contract price, the actual value of the work to be done, the services to be provided and the materials to be supplied under a contract exceeds the amount prescribed in the regulations for the purpose of this section the owner shall, as the work is done, the services provided and the materials supplied under the contract, pay the holdback into a holdback account.

Payments into holdback account on order of judge

24(4)       Where the price of the work to be done, the services to be provided and the materials to be supplied under a contract is the amount prescribed in the regulations for the purpose of this section or less, or if there is no specific contract price, the actual value of the work to be done, services to be provided and materials to be supplied under a contract is the amount prescribed in the regulations for the purpose of this section or less, a judge may, upon application of the contractor or any person who has a right of lien derived under the contract, order the owner to pay the holdback into a holdback account.

Order to pay into holdback account

24(5)       Where an owner fails to pay money into a holdback account as required under subsection (3), a judge shall, upon the application of the contractor or any person who has a right of lien derived under the contract, order the owner to pay into a holdback account the holdback, together with interest thereon at the rate prescribed for the purposes of subsection (6) calculated from the date the owner should have paid the holdback into a holdback account in compliance with subsection (3).

Holdback under Crown contracts etc.

24(6)       Where the owner of the land or structure upon or in respect of which the work is done, the services are provided or the materials are supplied, is the Crown, a Crown agency or a municipality, subsections (3), (4) and (5) do not apply but, where the total price of the work to be done, services to be provided and materials to be supplied under the contract exceeds the amount prescribed in the regulations for the purposes of this section, or, if there is no specific contract price, the actual value of the work to be done, the services to be provided and the materials to be supplied under the contract exceeds the amount prescribed in the regulations for the purposes of this section, the Crown, the Crown agency or the municipality, as the case may be, shall pay interest on the holdback required under subsection (1) or (2) calculated from the day on which the payment was made of the amount from which the holdback was required to be held back to the date the holdback is actually paid at a rate, and compounded, as prescribed in the regulations.

When holdback may be reduced

25(1)       Where the person primarily liable for payment under a contract has deducted and retained the holdback required under subsection 24(1) and 40 days have expired after

(a) a certificate of substantial performance of the contract has been given under section 46; or

(b) the work to be done under the contract has been completed, the services to be provided under the contract have been completely provided and the materials to be supplied under the contract have been completely supplied; or

(c) the work to be done under the contract, the services to be provided under the contract and the supplying of materials to be supplied under the contract have been abandoned;

whichever first occurs, the holdback under subsection 24(1) shall be reduced

(d) by 7.5% of the contract price for the contract less the amount of the holdback required under subsection 24(2) and less the aggregate of payments made under subsection (2); or

(e) if there is no specific contract price for the contract, by 7.5% of the value of the work done, the services provided and the materials supplied under the contract, less the amount of the holdback required under subsection 24(2) and less the amount of the aggregate of payments made under subsection (2);

plus the pro rata share of any accrued interest in the holdback account applicable to the amount by which the holdback is reduced but this subsection does not apply while the registration of a lien arising under the contract continues in effect under section 49.

Reduction of holdback on substantial performance of sub-contract

25(2)       Where the person primarily liable for payment under a contract has deducted and retained the holdback required under subsection 24(1) and 40 days have expired after

(a) a certificate of substantial performance of a sub-contract under the contract has been given under subsection (5), (6) or (7); or

(b) the work to be done under the sub-contract has been completed, the services to be provided under the sub-contract have been completely provided and the materials to be supplied under the sub-contract have been completely supplied; or

(c) the work to be done under the sub-contract, the services to be provided under the sub-contract and the supplying of materials to be supplied under the sub-contract have been abandoned;

whichever first occurs, the holdback under subsection 24(1) shall be reduced

(d) by 7.5% of the contract price for the sub-contract, less the amount of the holdback required under subsection 24(2) applicable to the sub-contract; or

(e) if there is no specific contract price for the sub-contract by 7.5% of the value of the work done, the services provided and the materials supplied under the sub-contract, less the amount of the holdback required under subsection 24(2);

plus the pro rata share of any accrued interest in the holdback account applicable to the amount by which the holdback is being reduced, but this subsection does not apply while the registration of any lien arising under the sub-contract continues in effect under section 49.

Payment of holdback under subsection 24(2)

25(3)       Where the person primarily liable for payment under a contract has deducted and retained the holdback required under subsection 24(2) and 40 days have expired after

(a) the work to be done under the contract has been completed, the services to be provided under the contract have been completely provided and the materials to be supplied under the contract have been completely supplied; or

(b) the work to be done under the contract, the services to be provided under the contract and the supplying of materials to be supplied under the contract have been abandoned;

whichever first occurs, the holdback plus any accrued interest in the holdback account, remaining after any payments made under subsection (4), may be paid out in accordance with the contract, but this subsection does not apply while the registration of a lien arising out of the contract continues in effect under section 49.

Payment of holdback under subsection 24(2) respecting sub-contract

25(4)       Where the person primarily liable for payment under a contract has deducted and retained the holdback required under subsection 24(2) and 40 days have expired after

(a) the work to be done under a sub-contract under the contract has been completed, the services to be provided under the sub-contract have been completely provided and the materials to be supplied under the sub-contract have been completely supplied; or

(b) the work to be done under the sub-contract, the services to be provided under the sub-contract and the supplying of materials to be supplied under the sub-contract have been abandoned;

whichever first occurs, the holdback may be reduced

(c) by 7.5% of the contract price for the sub-contract; or

(d) if there is no specific contract price for the sub-contract, by 7.5% of the value of the work done, the services provided and the materials supplied under the sub-contract;

plus the pro rata share of any accrued interest in the holdback account applicable to the sub-contract, but this subsection does not apply while the registration of a lien arising under the sub-contract continues in effect under section 49.

Payment certifiers certificate as to sub-contract

25(5)       Where a contract requires a payment to be made upon a certificate of a payment certifier, the payment certifier, upon application by a sub-contractor with respect to a sub-contract and upon being satisfied that the sub-contract has been substantially performed, shall, within seven days after he receives the application or after the sub-contract has, in his opinion, been substantially performed, whichever is the later, give or cause to be given a certificate of substantial performance of the sub-contract in Form 8 of the Schedule to the sub-contractor, the contractor and the owner.

Certificate where no payment certifier

25(6)       Where a contract does not provide for payment to be made upon a certificate of a payment certifier, the contractor, upon application by a sub-contractor with respect to a sub-contract and upon being satisfied that the sub-contract has been substantially performed, shall, within seven days after he receives the application or after the sub-contract has, in his opinion, been substantially performed, whichever is the later, give or cause to be given a certificate of substantial performance of the sub-contract in Form 8 of the Schedule to the sub-contractor and the owner.

Certificate of substantial performance by sub-contractor

25(7)       Where a contract does not provide for payment to be made upon a certificate of a payment certifier, any sub-contractor under that contract on request of any of his sub-contractors shall, within seven days after he receives the application or after the sub-contract has, in his opinion, been substantially performed, whichever is the later, give or cause to be given a certificate of substantial performance of the sub-contract in Form 8 in the Schedule to the contractor and the owner.

Judge's order for certificate

25(8)       Where a person required to give a certificate of substantial performance under subsection (5), (6) or (7) fails or refuses to do so, the sub-contractor who has applied for the certificate or any person entitled to a lien in respect of work done, services provided or materials supplied under the sub-contract of the sub-contractor may apply to a judge who, upon being satisfied that the sub-contract has been substantially performed and that the certificate of substantial performance of the sub-contract should have been given, may, upon such terms and conditions as to costs and otherwise as he deems just, make an order that the sub-contract has been substantially performed, and the order has the same force and effect as if a certificate of substantial performance of the sub-contract had been issued under subsection (5), (6) or (7) as the case may be.

Interest payable to sub-contractor

25(9)       Where, under subsection (1), (2), (3) or (4), a holdback under a contract is reduced or paid out and the reduction or payment out includes accrued interest in the holdback account or pro rata share thereof, any sub-contractors who are entitled under sub-contracts to payment from the holdback or from the amount by which the holdback is reduced are entitled also to a pro rata share of the accrued interest in the holdback account.

Lienholders charge on holdback

26          Each lienholder who has a lien arising under a contract or sub-contract has a charge upon that part of the holdback to which the person through whom the lien is derived is entitled.

Effect of payments made with holdback

27(1)       Where the person primarily liable for payment under a contract has deducted and retained the holdback in accordance with this Act, all payments under the contract in excess of the holdback, made in good faith by the person primarily liable for the payment, before the registration of a lien by a person claiming a lien as against the owner, and payments permitted under section 25, operate as a discharge, pro tanto of the lien.

Effect of payments without holdback

27(2)       Where the person primarily liable for payment under a contract has not deducted and retained the holdback in accordance with this Act, all payments under the contract made in good faith by the person primarily liable for the payment, before the registration of a lien by a person claiming a lien as against the owner, operate as a discharge, pro tanto of the lien, but only to the extent of the amount of the payment in excess of the holdback which should have been deducted and retained, and the person primarily liable for the payment continues to be liable to the lienholder for the amount which should have been deducted and retained as holdback in respect of the contract.

Payment of holdback where no liens

27(3)       Payment of the holdback retained under this Act in respect of a contract may be validly made after the expiration of 40 days mentioned in subsection 24(1) or (2), as the case may be if, at the time the holdback is paid, there are no liens registered against the land to which the contract relates.

Payment of holdback where liens are registered

27(4)       Where, on the expiration of the 40 days mentioned in subsection 24(1) or (2), as the case may be, there are liens registered against the land to which a contract relates, the holdback retained under this Act in respect of the contract may be validly paid for the purpose of obtaining discharges of all those registered liens unless before the payment of the holdback an action has been commenced under this Act to enforce one or more of those liens.

Liability of corporation directors

27(5)       Where the person primarily liable for payment under a contract is a corporation, and that person makes payment under the contract without deducting and retaining the holdback in accordance with this Act, if the corporation is unable to satisfy the liability under subsection (2), the directors and officers of the corporation who knowingly assented or acquiesced in the failure to deduct or retain the holdback are jointly and severally liable for the amount for which the corporation is liable under subsection (2) and which the corporation fails to satisfy.

Where holdback not to be applied

27(6)       Where the contractor or sub-contractor defaults in performing his contract or sub-contract, the holdback shall not, as against the lien claimant who by virtue of section 26 has a charge thereon, be applied by the owner or contractor

(a) to complete the contract or sub-contract; or

(b) in payment of damages for non completion of the contract or sub-contract by the contractor or sub-contractor; or

(c) in payment or satisfaction of any claim against the contractor or sub-contractor; or

(d) for any other purpose to remedy the default.

Charge on further amounts payable by Crown or municipality

27(7)       Where a lien does not attach to land by reason of section 16, and a person claiming the lien gives to the owner or the contractor or a sub-contractor notice in writing of the lien, the owner, contractor or sub-contractor so notified shall retain out of amounts payable to the contractor or sub-contractor under whom the lien is derived an amount equal to the amount claimed in the notice.

Interest on holdback account

28          Nothing in this Act obliges an owner or a contractor to obtain a higher interest rate for sums deposited in a holdback account than the rates prevailing and offered by the bank, trust company or credit union in which the holdback account is opened.

Amendment of contracts

29          Every contract and sub-contract under which a lien may arise shall be conclusively deemed to be amended in so far as is necessary to bring it into conformity with this Act.

Payments in good faith without notice of lien

30          Where an owner or a contractor chooses to make payments to a person referred to in section 13 for or on account of a debt justly due to the person for work done, services provided or materials supplied to be used as mentioned in section 13, and within three days afterwards gives, by letter or otherwise, to the contractor or his agent, or to the sub-contractor or his agent, as the case may be, written notice of the payments, the payments shall, as between the owner and the contractor or as between the contractor and the sub-contractor, as the case may be, be conclusively deemed to be payments to the contractor or sub-contractor, as the case may be, on his contract or sub-contract generally, but not so as to reduce the amount required to be retained by the owner under section 24.

Priority of lien

31          A lien has priority over all judgments, executions, assignments, attachments, garnishments and receiving orders, recovered, issued or made or registered in the registry office after the lien arises, and over all payments or advances made on account of any conveyance or mortgage after registration of a claim for the lien in accordance with this Act but all payments made, before registration of a claim for lien, on account of a conveyance or mortgage, have priority over the lien.

Agreements for purchase

32          Where the purchase money under an agreement for the purchase of land, or part thereof, is unpaid and no conveyance has been made to the purchaser, the purchaser shall, for the purposes of this Act, be conclusively deemed to be a mortgagor and the seller to be a mortgagee of the land to the extent of the unpaid portion of the purchase money.

Priority among lienholders

33          Subject to section 34 and subsections 35(3) and 56(1),

(a) no person entitled to a lien on land or to a charge on moneys under this Act is entitled to any priority or preference over another person entitled to a lien on that land or to a charge on those moneys under this Act;

(b) all lienholders rank pari passu for the amounts of their several liens; and

(c) the proceeds of any sale shall be distributed as may be directed by the court.

Liens for wages

34(1)       Every worker who has a lien for wages for work done or services provided under a contract or sub-contract has, to the extent of 40 days wages, priority over all liens that are not for wages and that are derived through the same contractor or sub-contractor to the extent of, and on, the holdback and to which the contractor or sub-contractor through whom the lien is derived is entitled and all workers whose liens have priority under this section rank pari passu for the amounts of their several liens.

Enforcing lien for wages when contract not fulfilled

34(2)       Every worker is entitled to enforce a lien in respect of a contract or sub-contract not completely fulfilled and, notwithstanding anything in this Act to the contrary, may serve a notice of motion on the proper persons, returnable in four days after service before a judge asking for judgment on his claim or lien, particulars of which shall accompany the notice of motion, duly verified by affidavit.

Calculating percentage in certain cases

34(3)       Where the contract or sub-contract has not been completely fulfilled when a lien is claimed by a worker, the holdback shall be calculated on the work done, the services provided or the materials supplied by the contractor or sub-contractor by whom the worker was employed.

Devices to defeat priority

34(4)       Every device adopted by an owner, contractor or sub-contractor to defeat or which, if valid, would defeat the priority given under this section to workers for their wages is, as against those workers, void.

Removal of materials during lien

35(1)       During the continuance of a lien, no portion of the materials affected by it shall be removed to the prejudice of the lien and any attempts at such removal may be restrained on application to a judge.

Costs

35(2)       A judge to whom an application is made under subsection (1) may make such order as to costs of, and incidental to, the application and order as he deems just.

Certain materials not subject to execution

35(3)       Where any materials are actually placed and furnished to be used in the performance of a contract or sub-contract the materials are subject to a lien in favour of the person supplying them until incorporated in the structure or land under the contract.

Architects and engineers to have no lien

36          Notwithstanding any other provision of this Act, an architect or engineer retained by an owner, contractor or sub-contractor under an agreement, which does not create the relationship of employer and employee, to provide architectural or engineering services in respect of construction or improving land

(a) does not have a lien or a claim for lien against or in respect of the structure or land or the land on which the structure is constructed for his professional fees and charges; and

(b) is not a contractor, sub-contractor or worker for the purposes of this Act;

and this Act does not apply to the agreement under which the architect or engineer is retained or to the recovery of his professional fees and charges.

REGISTRATION OF LIEN

Registration

37(1)       Upon presentation of a claim for lien at a registry office for the land titles district in which the land against which the lien is claimed is situated, and upon payment of the fee prescribed for registration, the registrar shall, if the claim for lien conforms with the appropriate form and with section 38, register the claim for lien so that it appears as an encumbrance against the land described in the claim for lien.

Registration of two copies of claim

37(2)       Where a part of the land subject to a lien is under The Real Property Act and a part is under The Registry Act, two copies of the claim for lien may be registered but if only one copy is registered, the person claiming the lien shall cause to be endorsed on the copy a notation showing whether it is to be registered under The Real Property Act, or The Registry Act, and it shall be registered accordingly.

Registration under both systems

37(3)       Where two copies of a claim for lien are registered in a land titles office, one shall be registered under The Real Property Act and one under The Registry Act, and that part of the land described in each copy which falls either under The Real Property Act or under The Registry Act shall be affected by the claim for lien.

Lien on mineral location for mining

37(4)       Where a claim for a lien is made upon a mineral location as defined in The Mines and Minerals Act, in respect of which the Crown has given to any person a disposition of mineral rights other than oil and natural gas rights, and for which no certificate of title has been issued under The Real Property Act and no grant has been registered under The Registry Act, the claim for lien and any pending litigation order, judgment, order or other document issued from the court in respect thereof, and any other document relating thereto, shall be registered in the office of the recorder of the mining district in which the land is situated.

Registration of claim document re disposition

37(5)       Where a claim for lien is made upon a disposition under The Oil and Gas Act of oil, gas, helium or oil shale rights owned by the Crown, the claim for lien, any judgment, pending litigation order or other order or document issued from the court in respect of the claim, and any other document relating to the claim, shall be registered in the office of the registrar under The Oil and Gas Act.

Registration in respect of Crown lands

37(6)       Where a claim for lien is made upon an interest or estate in Crown land that is not a mineral location, if no grant of the land has been made by the Crown, the claim for lien and any pending litigation order, judgment, order or other document issued from a court in respect thereof, and any other document relating thereto shall be registered in the office of the director of Crown lands.

S.M. 1991-92, c. 9, s. 250; S.M. 1993, c. 8, s. 2; S.M. 1993, c. 4, s. 225.

Contents of claim for lien

38(1)       A claim for lien shall state

(a) the name and residence of the person claiming the lien and of the owner of the land to be charged (or of the person whom the person claiming the lien, or his agent, believes to be the owner of the land to be charged) and of the person for whom and upon whose credit the work was or is to be done, the services were or are to be provided or the materials were or are to be supplied;

(b) the time or period within which the work was or is to be done, the services were or are to be provided or the materials were or are to be supplied;

(c) a short description of the work done or to be done or the services provided or to be provided or the materials supplied or to be supplied;

(d) the sum claimed as due or to become due;

(e) a description of the land to be charged, sufficient for the purpose of registration; and

(f) where credit has been given by the lien claimant for payment for his work or services of materials, the date of expiry of the period of credit.

Form of claim

38(2)       The claim for lien may be in Form 1, 2 or 3 in the Schedule, and shall be verified by the affidavit in Form 4 in the Schedule, of the person claiming the lien or his agent or assignee.

Address for service to be shown on claim

38(3)       Every claim for lien shall show, below the signature thereon of the person claiming the lien, or his agent or assignee, an address for service upon the lien claimant, which address shall, after the registration of the lien be the place at or to which service may be made or notice may be sent under this Act, upon or to the lien claimant.

What may be included in claim

39          A claim for lien may include claims against any number of parcels of land and any number of persons claiming liens upon the same land may unite in a claim for lien, but where more than one lien is included in one claim for lien, each lien shall be verified by affidavit as provided by subsection 38(2).

Liability for grossly exaggerated claims

40          In addition to any other ground on which he may be liable, any person who registers a claim for lien

(a) for an amount grossly in excess of the amount due to him or which he expects to become due to him; or

(b) where he knows or ought to know that he does not have a lien;

is liable to any person who suffers damage as a result unless he satisfies the court that the registration of the claim for lien was made, and the amount for which the lien was claimed was calculated, in good faith and without negligence.

Claims not invalidated for informality

41(1)       Substantial compliance only with sections 38 and 39 is sufficient and no lien is invalidated by reason of failure to comply with any of the requirements of those sections unless, in the opinion of a judge, the owner, contractor, sub-contractor, mortgagee or other person is prejudiced by the failure and then only to the extent to which he is prejudiced by the failure.

Liens must be registered

41(2)       Nothing in this section dispenses with the registration of the lien required by this Act.

Action must be based on registered lien

41(3)       No action may be commenced under this Act to enforce a lien unless a claim for lien with respect to the lien is registered under this Act.

S.M. 1993, c. 8, s. 3.

Lienholder a purchaser pro tanto

42          Where a claim for lien is registered, the person entitled to the lien shall be deemed a purchaser pro tanto, and within the provisions of The Registry Act but, except as otherwise provided in this Act, The Registry Act does not apply to a lien.

Time within which claim may be registered by contractor

43(1)       Except as provided in section 44, a claim for lien by a contractor may be registered before or during the performance of the contract or within 40 days after the substantial performance or abandonment of the contract, as the case may be.

Time within which claim may be registered by sub-contractor

43(2)       Except as provided in section 44, a claim for lien by a sub-contractor may be registered before or during the performance of the sub-contract or,

(a) within 40 days after the substantial performance or abandonment of the contract; or

(b) within 40 days after the substantial performance or abandonment of the sub-contract;

whichever first occurs.

Time within which claim for materials may be registered

43(3)       Except as provided in section 44, a claim for lien for materials may be registered before or during the supplying of the materials or

(a) within 40 days after substantial performance or abandonment of the contract; or

(b) within 40 days after the supplying of the last materials so supplied;

whichever first occurs.

Time within which claim for services may be registered

43(4)       Except as provided in section 44, a claim for lien for services may be registered at any time before or during the provision of the services or

(a) within 40 days after the substantial performance or abandonment of the contract; or

(b) within 40 days after the completion of the provision of the services;

whichever first occurs.

Time within which claim for wages may be registered

43(5)       Except as provided in section 44, a claim for lien for wages may be registered at any time before or during the doing of the work or the provision of the services for which the wages are claimed or

(a) within 40 days after the substantial performance or abandonment of the contract; or

(b) within 40 days after the last work was done or the last services were provided;

whichever first occurs.

Meaning of substantial performance

43(6)       For the purposes of this section, substantial performance of a contract or a sub-contract means the date on which a certificate of substantial performance thereof is given to the owner under section 25 or 46, as the case may be.

Registration of liens for work after substantial performance

44          Where a contract or sub-contract has been substantially performed and the owner, contractor or sub-contractor proceeds to complete it,

(a) a claim for lien by a contractor with respect to any work, services or materials remaining to be done, provided or supplied to complete the contract may be registered before or during the doing of the work, the provision of the services or the supplying of the materials, or within 40 days after the completion or abandonment of the contract;

(b) a claim for lien by a sub-contractor with respect to any work, services or materials remaining to be done, provided or supplied to complete the sub-contract may be registered before or during the doing of the work, the provision of the services or the supplying of the materials, or within 40 days after the completion or abandonment of the sub-contract;

(c) a claim for lien for materials remaining to be supplied to complete the contract may be registered before or during the supplying of the materials or within 40 days after the supplying of the last materials so supplied to complete the contract;

(d) a claim for lien for services remaining to be provided to complete the contract may be registered before or during the provision of the services or within 40 days after the completion or abandonment of the services;

(e) a claim for lien for wages with respect to any work or services remaining to be done or provided to complete the contract may be registered before or during the doing of the work or the provision of the services or within 40 days after the last work was done or the last services were provided; and

(f) the provisions of this Act apply with respect to the lien wherever applicable.

Where lien does not attach to land

45(1)       Where a lien does not attach to land by reason of section 16, sections 37, 38 and 39 do not apply.

Notice of claim to holdback

45(2)       Where a lien does not attach to land by reason of section 16, a person who is claiming the lien shall give notice thereof in writing to the owner in the manner provided by this Act and, subject to subsection (1), the notice shall, for the purposes of this Act be the equivalent of registration of a lien under this Act and this Act applies to the lien, the lienholder and the owner, with such modifications as the circumstances require as though the giving of the notice were registration of the lien under this Act.

Giving notice of claim on Crown, etc.

45(3)       The notice required under subsection (2) shall be given

(a) where the owner of the land or structure is the Crown, to the office prescribed by regulations;

(b) where the owner of the land or structure is a Crown agency, to an officer of the Crown agency; and

(c) where the owner of the land or structure is a municipality, to the clerk of the municipality.

Time for giving notice

45(4)       A notice given under subsection (2) shall be given within the times allowed for registration of claim for lien under sections 43 and 44.

Contents of notice

45(5)       Every notice given under subsection (2) shall set out

(a) the name and residence of the person making the claim and of the person for whom and upon whose credit the work was or is to be done, the services were or are to be provided or the materials were or are to be supplied;

(b) the time or period within which the work was or is to be done, or the services were or are to be provided, or the materials were or are to be supplied;

(c) a short description of the work done or to be done or the services provided or to be provided or the materials supplied or to be supplied;

(d) the sum claimed as due or to become due;

(e) the address or description of the land or location on or in respect of which the work was or is to be done, the services were or are to be provided or the materials were or are to be supplied; and

(f) where credit has been given, by the lien claimant for payment for his work or services or material, the date of expiry of the period of credit.

Verification

45(6)       A notice given under subsection (2) may be in Form 5, 6 or 7 in the Schedule and shall be verified by an affidavit, in Form 4 in the Schedule, of the person claiming the lien, or his agent or assignee.

Address for service to be shown on notice

45(7)       Every notice given under subsection (2) shall show below the signature thereon of the person claiming the lien, or his agent or assignee, an address for service upon the lien claimant, which address shall, after the notice is given, be the place at or to which service may be made or notice may be sent under this Act upon or to the lien claimant.

Claims not invalidated for informality

45(8)       Subject to subsection (9) substantial compliance with this section is sufficient and no lien is invalidated by reason of failure to comply with any requirement of this section unless, in the opinion of a judge, the owner, contractor, sub-contractor or other person is prejudiced by the failure and then only to the extent to which he is prejudiced by the failure.

Notice must be given

45(9)       Nothing in subsection (8) dispenses with the giving of notice required under subsection (2).

SUBSTANTIAL PERFORMANCE

Certificate of substantial performance by payment certifier

46(1)       Where a contract requires a payment to be made upon a certificate of a payment certifier, the payment certifier, upon application by the contractor and upon being satisfied that the contract has been substantially performed, shall, within seven days after he receives the application or after the contract has, in his opinion, been substantially performed, whichever is the later, give or cause to be given a certificate of substantial performance of the contract in Form 8 of the Schedule to the contractor and the owner.

Certificate of substantial performance by owner

46(2)       Where a contract does not provide for payment to be made upon a certificate of a payment certifier, the contractor may, and on request of any of his sub-contractors shall apply to the owner for a certificate of substantial performance and the owner shall, within seven days after he receives the application or after the contract has, in his opinion, been substantially performed, whichever is the later, give or cause to be given a certificate of substantial performance of the contract in Form 8 in the Schedule to the contractor.

Judge's order for substantial performance

46(3)       Where a person required to give a certificate of substantial performance under subsection (1) or (2) fails or refuses to do so, the owner or the contractor or any sub-contractor under the contractor or any person entitled to a lien in respect of the work under the contract may apply to a judge who, upon being satisfied that the contract has been substantially performed and that the certificate of substantial performance of the contract should have been given, may, upon such terms and conditions as to costs and otherwise as he deems just, make an order that the contract has been substantially performed, and the order has the same force and effect as if a certificate of substantial performance had been issued in respect thereof under subsection (1) or (2), as the case may be.

No appeal

46(4)       No appeal lies from an order made by a judge under subsection (3) or under subsection 25(8).

Offence to give certificate of substantial performance fraudulently

46(5)       Every person who is required under subsection (1) or (2) or under subsection 25(5), (6) or (7) to give a certificate of substantial performance and who wilfully gives or causes to be given a certificate of substantial performance that is fraudulent is guilty of an offence and liable, on summary conviction, to a fine of not more than $10,000. or to imprisonment for a term of not more than two years or to both and every director or officer of a corporation who knowingly assents to or acquiesces in an offence by a corporation under this section is, in addition to the corporation, guilty of the same offence and liable, on summary conviction to a fine of not more than $5,000. or to imprisonment for a term of not more than two years, or to both.

Contents of certificate of substantial performance

46(6)       A certificate of substantial performance shall set out

(a) the name and residence of the owner, the contractor, and where applicable the sub-contractor;

(b) a short description of the work done or to be done, the services provided or to be provided and the materials supplied or to be supplied under the contract or sub-contract;

(c) the date of substantial performance of the contract or sub-contract;

(d) a brief description of the land on or in respect of which the contract or sub-contract was to be performed;

(e) the name and residence of the person giving the certificate of substantial performance; and

(f) a statement certifying that the person giving the certificate of substantial performance is a person required or authorized to do so under this Act.

Manner of giving certificate of substantial performance

47          A certificate of substantial performance is not effective unless it is given to the contractor and the owner and, where it relates to a sub-contract, to the sub-contractor, but where the certificate of substantial performance is given by an owner, a contractor, or a sub-contrator, if shall be deemed to have been given to him.

Certificate not invalidated for informality

48          Substantial compliance with section 46 is sufficient and no certificate of substantial performance is invalidated by reason of failure to comply with any of the requirements of that section unless, in the opinion of a judge, the owner, contractor, sub-contractor, encumbrancer or other person, as the case may be, is prejudiced by the failure and then only to the extent to which he is prejudiced by the failure but nothing in this section dispenses with the requirement of giving the certificate of substantial performance as required under section 47.

EXPIRY AND DISCHARGE

Lien expires if not registered within time

49(1)       Every lien that is not duly registered under this Act ceases to exist on the expiration of the time allowed for registration under sections 43 and 44.

Lien expires if registered and not proceeded upon

49(2)       Every lien that has been duly registered under this Act ceases to exist after the expiration of two years after the date of registration unless in the meantime an action is commenced to realize the claim under this Act or an action is commenced in which the claim may be realized under this Act, and a pending litigation order in Form 9 in the Schedule, in respect of the action, issued from the court in which the action is brought, is registered in the proper land titles office.

Liens not attaching to land cease if no notice given

49(3)       Every lien which does not attach to land by reason of section 16 and for which no notice is given as required by section 45, ceases to exist on the expiration of the time allowed for giving notice under section 45.

Expiry of lien not attaching to land and not proceeded with

49(4)       Every lien which does not attach to land by reason of section 16 and for which notice has been given as required under section 45, ceases to exist on the expiration of two years after the date the notice was given as required under section 45, unless in the meantime an action is commenced to realize the claim under this Act or an action is commenced in which the claim may be realized under this Act.

Application of subsecs. (1) and (2) to liens not attaching to land

49(5)       Subsections (1) and (2) do not apply to liens which, by reason of section 16, do not attach to land.

S.M. 1993, c. 8, s. 4.

Notice to lienholder to commence action

50(1)       Any person having or claiming a mortgage or charge upon, or claiming any right, title or interest in or to any land in respect of which a claim for lien is registered under this Act may at any time after the registration of the lien, require the registrar to give the lienholder a notice in writing in Form 10 in the Schedule, that the lien shall cease to exist 30 days after the mailing of the notice unless, within that period,

(a) an action to realize the claim for lien, or in which the claim for lien may be realized, is commenced; and

(b) a pending litigation order in Form 9 in the Schedule in respect of the action, signed by the clerk of the court in which the action is commenced, is registered in the proper registry office.

Loss of lien

50(2)       Where an action is not commenced and a pending litigation order registered within 30 days after the date of mailing of the notice under subsection (1), the lien ceases to exist and the registrar shall vacate the registration of the lien unless, prior to the expiration of the 30 days, there is registered in the registry office an order of a judge extending the time for commencing the action.

S.M. 1993, c. 8, s. 4.

Effect of order to vacate under section 55

51          Notwithstanding sections 49 and 50, if the court orders that a lien be vacated under subsection 55(2) or (3),

(a) the lien, as a charge against the money paid into court or against any security given, does not cease to exist because a pending litigation order is not registered; but

(b) the lien ceases to exist if no action is commenced within the time allowed for bringing an action under section 49 or 50.

S.M. 1993, c. 8, s. 4.

Application of sections 50 and 51 to liens not attaching to land

52          Sections 50 and 51 do not apply to liens which, by reason of section 16, do not attach to land.

TRANSMISSION OF LIEN

Death of lienholder

53          Where a lienholder dies, his right of lien survives in his personal representative.

Assignment of lien

54(1)       The rights of a lienholder may be assigned by an instrument in writing.

Assignee registering lien

54(2)       Where a lien is assigned before registration, the assignee may register the claim for lien.

Assignee registering assignment

54(3)       Where a lien is assigned after registration, the assignee may register the assignment thereof in the registry office in which the claim for lien was registered.

DISCHARGE OF LIEN

Registration of discharge

55(1)       A lien may be discharged by the registration in the proper registry office of a discharge of the lien signed by the lienholder or his agent duly authorized in writing and the payment of the prescribed fee for the registration.

Vacating lien on payment into court, etc.

55(2)       Upon application, a judge may order security or payment into court in an amount equal to the holdback required under this Act as it applies to a particular contract and any additional money payable with respect to that contract but not yet paid but not exceeding the total amount of the claims for liens then registered against a parcel of land and may then order that the registration of those liens be vacated.

Vacating registration on other grounds

55(3)       Upon application, a judge may order that the registration of a lien be vacated upon any grounds other than those mentioned in subsection (2).

Vacating registration of pending litigation order

55(4)       Upon application, a judge may, upon proper grounds, order that the registration of a pending litigation order registered under this Act be vacated.

Registration of order

55(5)       Upon registration in the proper registry office of an order made under subsection (2), (3) or (4), the claim for lien or the pending litigation order to which the order relates shall be discharged.

Vacating pending litigation order

55(6)       Where an action to realize a lien has been discontinued or dismissed, a certificate of the registrar of the court or any deputy registrar of the court may be registered, and where registered, the certificate discharges and vacates the pending litigation order relating to the action.

S.M. 1993, c. 8, s. 5.

Money paid into court, etc., in place of land

56(1)       Any money paid into court or any security given under subsection 55(2) stands in place of the land against which the lien was registered and is subject to the claims of

(a) the persons whose liens have been vacated; and

(b) every person who

(i) both at the time of filing the application under subsection 55(2) and at the time of filing application for payment out under subsection (3), has a subsisting claim for lien, and

(ii) has registered a claim for lien prior to the time of filing the application for payment out under subsection (3);

but the persons whose liens have been ordered vacated have a first charge on the money or security to the extent of any amount, including costs, found by the judge to be owing to them.

No reduction of holdback

56(2)       Money paid into court or security given under subsection 55(2) does not reduce the amount required to be retained by the owner under section 24.

Order for payment out of court

56(3)       Where money has been paid into court or security has been given under subsection 55(2), the court may, upon application and upon notice to every person affected, order the money to be paid out or the security to be delivered, as the case may be, to the person entitled thereto.

Certain acts not prejudicial to lien

57(1)       A registered claim for lien or a notice of lien is not merged, discharged, paid, satisfied, prejudiced or destroyed by

(a) the taking of any security for the claim; or

(b) the acceptance of any promissory note for the claim; or

(c) the taking of any other acknowledgement of the claim; or

(d) the giving or extending of time for payment of the claim; or

(e) the taking of any proceedings for recovery of the claim; or

(f) the recovery of any personal judgment for the claim;

unless the lienholder agrees in writing that it shall have that effect.

Dealing with promissory note

57(2)       Subject to subsections (3) and (4), the discounting or negotiation of a promissory note or other security taken or accepted for a claim for lien does not waive, pay, satisfy, prejudice or destroy the lien but the lienholder taking or accepting the promissory note or other security shall retain his lien for the benefit of the holder of the promissory note or other security.

Action to be begun

57(3)       A person who has given or extended time for payment of any claim for which he has a lien shall, in order to obtain the benefit of this section, commence an action to enforce the lien within the time limited by this Act, and register a pending litigation order as required by this Act but no further proceedings shall be taken in the action until the expiration of time for payment of the claim.

Proving claim in another action

57(4)       Notwithstanding that a person has given or extended time for payment of any claim for which he has a lien, he may, where an action is commenced by another person to enforce a lien against the same land, prove and obtain payment of his claim in the action as if no time had been given for payment of the claim.

S.M. 1993, c. 8, s. 6.

RIGHTS TO INFORMATION

Particulars of contract, etc.

58(1)       Any person entitled to a lien in respect of work done or to be done, services provided or to be provided, or materials supplied or to be supplied in the performance of a contract may, in writing, at any time demand from the owner or his agent and the contractor or his agent

(a) a copy of the contract between the owner and the contractor if the contract is in writing and if the contract is not in writing, a statement of the terms of the contract;

(b) a statement of the state of accounts between the owner and the contractor;

(c) the name and address of the bank, trust company or credit union in which a hold back account has been opened where required in accordance with this Act and the account number thereof; and

(d) a statement as to the particulars of credits to and payments from the hold back account required in accordance with this Act including the dates of the credits and payments, the accrued interest and the present balance.

Particulars of sub-contract, etc.

58(2)       Any person entitled to a lien in respect of work done or to be done, services provided or to be provided, or materials supplied or to be supplied in the performance of a sub-contract may, in writing, at any time, demand of the contractor or his agent and the sub-contractor and his agent

(a) a copy of the sub-contract between the contractor and the sub-contractor or between the sub-contractor and another sub-contractor, if the sub-contract is in writing and, if the sub-contract is not in writing, a statement of the terms of the sub-contract; and

(b) a statement of the state of accounts between the contractor and the sub-contractor or between the sub-contractor and the other sub-contractor, as the case may be.

Information from mortgagee or unpaid vendor

58(3)       Any person entitled to a lien in respect of work done or to be done, services provided or to be provided, or materials supplied or to be supplied in the performance of a contract or sub-contract in respect of any land may, in writing, at any time, demand of any mortgagee or any unpaid vendor of the land or his agent,

(a) the terms of the mortgage on the land or the agreement for the purchase of the land; and

(b) a statement showing the amount advanced under the mortgage or the amount owing on the agreement, as the case may be.

Costs of copies etc.

58(4)       Where, under this section, a demand is made of an owner, contractor, sub-contractor, mortgagee or unpaid vendor, or an agent of any of them, for a copy of any document or a statement of any accounts, he may require the person making the demand to pay the reasonable costs of making the copies or of preparing the statement before producing the copy of the document or the statement.

Failure to respond to demand

58(5)       Where, under this section, a demand is made of an owner, contractor, sub-contractor, mortgagee or unpaid vendor, or an agent of any of them, and he

(a) does not, within a reasonable time after receiving the demand and after payment of any reasonable costs required to be paid under subsection (4), if any, produce or deliver the copy of the document or the statement or information demanded; or

(b) knowingly, falsely states the terms of any documents; or

(c) knowingly gives any false statement or false information;

to the person making the demand and the person making the demand sustains any loss by reason of the failure, false statement, or false information, he is liable to the person making the demand for the amount of the loss in any action therefor, or in any action under this Act for the realization of the lien.

Order to produce

58(6)       On application at any time before or after an action is commenced for the realization of a lien, a judge may make an order requiring the owner or the contractor, or a mortgagee, or an unpaid vendor, or a sub-contractor or the agent of any of them, as the case may be, to produce to any person who may be entitled to a lien in respect of work done or to be done, or services provided or to be provided, or materials supplied or to be supplied in the performance of a contract or sub-contract in respect of land, and permit that person to inspect the contract or sub-contract or the mortgage or agreement for sale of the land, or the accounts, or the hold back account pass book, or any other relevant documents and he may make such order as to costs of the application and order as he deems just.

Giving certificate of substantial performance

59(1)       Except as provided in subsection (3), within 10 days after the date that a certificate of substantial performance of a contract is given to the owner, the owner shall give a true copy of the certificate to all persons doing work, providing services or supplying materials in the performance of the contract who have requested the owner, in writing by personal service with a return address, to give them a copy of the certificate.

False certificate of substantial performance

59(2)       Where a person is entitled to be given a copy of a certificate of substantial performance under subsection (1), if the owner fails to give a copy of the certificate within the time therein set out or gives a copy of a certificate of substantial performance which he knows to be false, and the person requesting the certificate sustains loss because of the failure or because of the false certificate, the owner is liable to the person requesting the certificate for the amount of the loss in an action therefor or in an action under this Act for the realization of a lien.

Exceptions to subsection (1)

59(3)       Subsection (1) does not apply to an individual who orders work, services or materials for construction of a structure or for improving land owned and occupied by the individual or his or her spouse or common-law partner for single family residential purposes if the contract price for the work, services and materials does not exceed the amount prescribed in the regulations for the purpose of this section or, where there is no specific contract price, where the value of the work, services and materials does not exceed the amount prescribed in the regulations for the purpose of this section.

S.M. 2002, c. 24, s. 5.

ENFORCEMENT OF LIEN

Action to realize lien

60          A lien for any amount may be realized by an action in the court and the ordinary procedure of the court, except where varied by this Act, applies to the action.

Action for benefit of all lienholders

61(1)       It is not necessary for a lienholder commencing an action to realize his lien to make other lienholders parties to the action but all lienholders required to be served with a notice of trial under section 63 shall, for all purposes, be treated as if they were parties to the action.

Lienholders may join in actions

61(2)       Any number of lienholders claiming liens on the same land may join in an action, and any action brought by a lienholder or person claiming a lien shall be taken to be brought on behalf of all other lienholders claiming liens on the land.

Discontinuance of action

61(3)       An action to realize a lien shall not be discontinued except on the order of a judge after such notice to lienholders affected as the judge may direct and, where a lienholder who has commenced an action to realize his lien wishes to withdraw from the action but other lienholders who, under subsection (1), are treated as though they were parties to the action, wish to continue the action to realize their liens, the judge may give directions respecting the continuation of the action.

Failure to file defence

62          Where a defendant fails to file a defence to an action to realize a lien within the time allowed under the Rules of Court for the filing of a defence, he is, unless allowed to defend by order by a judge upon such terms and conditions as the judge thinks just, precluded from disputing the plaintiff's claim and his right to a lien and the defendant may be noted in default and the plaintiff may proceed to trial in accordance with this Act.

S.M. 2008, c. 42, s. 5.

Service of notice of trial

63          A party obtaining an appointment for trial for an action to realize a lien shall, in accordance with the rules of the court, serve a notice of trial in Form 11 in the Schedule

(a) upon the solicitors for the parties who appear by solicitors;

(b) upon all lienholders known to him who have registered liens upon the land as provided herein and whose solicitors are not served under clause (a); and

(c) upon all other persons having any registered charges, encumbrances or claims on the land affected by the lien, who are not parties or who, being parties, appear personally in the action.

Lienholders who are not parties to file statement

64          Every lienholder who is not already a plaintiff in an action to realize a lien shall, within six days after being served with the notice of trial of the action, file in the office of the court a statement showing the grounds and particulars of his claim and, if he fails to do so, he shall, unless otherwise ordered by the judge, be precluded from asserting his lien.

Trial of action

65(1)       Subject to subsection (3), on the trial of an action the judge shall try all questions that arise therein or that are necessary to be tried in order to dispose of the action finally and completely and to adjust the rights and liabilities of, and to give all necessary relief to, the persons appearing before him or upon whom a notice of trial has been served, including all questions of set-off and counterclaim arising under the contract or out of the work done, services provided or materials supplied in respect of the land against which the claim of lien is registered.

Disposal of questions and judgment

65(2)       On the trial of an action the judge shall take all accounts, make all inquiries, give all directions, and do all things, necessary to try and to dispose finally and completely of the action and of all matters, questions and accounts arising therein or at the trial as provided in subsection (1) and he shall embody all the results in the judgment.

Order for separate trial of certain issues

65(3)       A party to an action to realize a lien, or any other interested persons, may apply to a judge for an order that a certain issue be tried separately and, if the judge is satisfied that the issue cannot be conveniently tried with the action, or if tried with the action would likely cause undue prejudice to other lien claimants or other parties, he may order that the issue be not heard in that trial but be tried separately on terms which he deems just.

No appeal

65(4)       No appeal lies from an order made by a judge under subsection (3).

Joining other claims

66          Subject to subsection 65(3), any claim arising from or related to construction or improving land, including a claim related to a trust fund referred to in section 4 or 5, may be brought or joined with an action to realize a lien arising from the construction or improving the land

(a) in the statement of claim of a person claiming lien;

(b) by way of counterclaim or set-off by the defendant;

(c) by way of third party procedure by any party to the action against whom any claim is made;

and a defendant may raise any legal or equitable defence available to him.

Consolidation of actions

67(1)       Where more than one action is brought to realize liens in respect of the same land, a judge may, on application of any party to any of the actions or on application of any other interested person, consolidate the actions into one action.

Carriage of proceedings

67(2)       A judge, on application of a lienholder entitled to the benefit of an action, or on an application made under subsection (1), may make an order giving a lienholder the carriage of the proceedings of an action and the lienholder shall thereafter, for all purposes, be deemed to be the plaintiff in the action.

Application for directions

67(3)       Any party to an action, or any interested party, may at any time apply to a judge for, and the judge may give, directions as to pleadings, discovery, production or any other matter relating to the action.

No appeal from order respecting third parties

67(4)       No appeal lies from an order made by a judge allowing or refusing to allow third party proceedings in an action to realize a lien.

Order for sale of land

68(1)       In an action to realize a lien, the judge may order that the estate or interest charged with the lien be sold, and may direct the sale to take place at any time after judgment, but allowing a reasonable time for advertising the sale.

Sale of materials

68(2)       In an action to realize a lien, the judge may order the sale and authorize the removal of any material situated on the land against which the lien attaches.

Appointment of receiver of rents and profits

69(1)       In an action to realize a lien, the judge may, on application of any lienholder, mortgagee or other interested person, either before or after judgment, and upon such terms, including the giving of security, as the judge deems just, appoint a receiver of the rents and profits of the land against which the lien is registered.

Appointment of trustee

69(2)       In an action to realize a lien, the judge may, on the application of any lienholder, mortgagee or other interested person, either before or after judgment, upon such terms, including the giving of security, as the judge deems just, appoint a trustee with power to manage, mortgage, lease or sell, or any or all of those things, the land and materials against which the claim for lien is registered and in the exercise of those powers the trustee shall be under the supervision and direction of the court and may, when so directed by the court, complete or partially complete any work on the land and, in the event that moneys are advanced to the trustee as the result of any of the powers conferred upon him under this subsection, the rights of the person advancing the moneys to the trustee take priority to the extent of the amount advanced over every claim for lien existing as of the date of the appointment.

Orders for completion of sale, etc.

70(1)       Where the sale of land or materials is ordered or authorized under section 68 or 69, or the lease or mortgage of land is authorized under section 69, the judge shall make all necessary orders for the completion of the sale, mortgage or lease.

Sale subject to encumbrances

70(2)       Where the sale of land is ordered or authorized under section 68 or 69, it may, if the judge so directs, be offered for sale subject to any encumbrance registered against the land.

Report on sale

71(1)       Where the sale of land is ordered or authorized under section 68 or 69, the proceeds of the sale shall be paid into court to the credit of the action and the judge shall make a report on the sale and direct to whom the moneys in court shall be paid and may add to the claim of the person conducting the sale, his reasonable legal fees and actual disbursements incurred in connection therewith and, where sufficient money to satisfy the judgment and costs is not realized from the sale, the judge shall certify the total amount of the deficiency and the proportion thereof falling upon each person entitled to recover under the judgment and the persons required by the judgment to pay the same.

Vesting of title

71(2)       Where land is sold pursuant to an order made under section 68 or authority granted under section 69, the judge shall make an order vesting the land in the purchaser and, except where the sale is made subject to a mortgage, charge or encumbrance on the direction of the judge, the order vests the title of the land free from all claims for liens, encumbrances and interests of any kind.

S.M. 1992, c. 46, s. 52.

Deficiency recoverable by usual process

72          All judgments in favour of lienholders shall adjudge that the person personally liable for the amount of the judgment shall pay any deficiency that may remain after sale of the land ordered to be sold and where on such a sale, sufficient money to satisfy the judgment and costs is not realized therefrom, the deficiency may be recovered against the property of that person by the usual process of the court.

Personal judgment when lien fails

73          Where a person claiming a lien fails for any reason to establish a valid lien, he may nevertheless recover in the action a personal judgment against any party to the action for such sum as may appear to be due to the claimant and which he might recover in an action against the party.

Allowing claim to be proved after trial

74          Where a lienholder does not prove his claim at the trial, the judge who tried the action may, on application of the lienholder, and upon such terms as to costs and otherwise as the judge deems just, permit the lienholder to prove his claim at any time before the amount realized in the action has been distributed and where the claim is proved and allowed, the judge shall amend the judgment to include the claim therein.

Costs at discretion of judge

75(1)       Notwithstanding anything in The Queen's Bench Act or the rules of the court, the costs of and incidental to all actions, applications and orders commenced or made under this Act are in the discretion of the trial judge and shall be apportioned and borne as the judge may direct.

Costs for least expensive course

75(2)       Where the least expensive course is not taken by a party under this Act, the costs allowed to him shall not exceed what would have been incurred if the least expensive course had been taken by him.

Costs of vacating lien

75(3)       Where the registration of a lien or a pending litigation order is ordered to be vacated under section 55 or where in an action to realize a lien judgment is given in favour of or against a claim for a lien, the judge may allow a reasonable amount for costs of drawing and registering the lien or for vacating the registration.

S.M. 1993, c. 8, s. 7.

No fees on payments out of court

76          No fees are payable on any cheques or proceedings to pay money into court or to pay money out of court in respect of a claim for lien.

Where no appeal lies

77          Where the total amount of the claims of the plaintiff in an action to realize a lien, and all other persons claiming liens in the action, does not exceed $1,500., the judgment at the trial is final and binding and no appeal lies from the judgment of the judge in the action but, upon application within 14 days after judgment is pronounced, the judge who tried the action may grant a new trial of the action.

Reference of lien action to master

78(1)       Where an action to realize a lien is commenced in a centre where a master of the court is available, a judge of the court may refer the action to the master, and thereupon the master shall

(a) make all necessary inquiries with respect thereto;

(b) take all accounts relating thereto; and

(c) inquire as to all matters relevant thereto, as fully as if they had been specifically referred;

and the master shall make his report to a judge of the court as to the inquiries made and accounts taken, and the report shall include a statement of his findings and recommendations with respect thereto.

Action of court when report made

78(2)       On receipt of the report of a master under subsection (1), the judge may adopt it, or refer it back to the master for further inquiries to be made, or accounts to be taken, or for further consideration, and for further report.

Judgment

78(3)       Where a report of a master has been made under subsection (1) and has been adopted under subsection (2), the judge shall give judgment in the action with respect to all matters and questions involved therein and may include as part of the judgment the whole or part of the findings and recommendations set out in the report but he is not bound to adopt, act upon or give judgment in accordance with, any or all of the findings stated or the recommendations made in the report.

S.M. 1991-92, c. 41, s. 1; S.M. 1993, c. 8, s. 8.

How documents etc. given or sent

79(1)       Subject to subsection (3) and except as otherwise ordered by the court, a notice or document required to be given or sent under this Act is sufficiently given or sent if given personally to the intended recipient or if sent by registered mail addressed to the intended recipient

(a) at his address for service, if there is one; or

(b) at the last known mailing address of the intended recipient according to the records of the person giving or sending the notice or document, where there is no address for service.

Where document etc. sent by reg. mail

79(2)       A notice or document sent to an intended recipient by registered mail shall, in the absence of evidence to the contrary, be deemed to have been given on the third day, excluding Saturdays and holidays, after the date on which it was mailed.

Where mailing service not permitted

79(3)       Except where otherwise ordered by the court,

(a) notice of lien required under section 45;

(b) statement of claim;

(c) notice of trial; and

(d) requests to receive copies of notices of substantial performance;

shall not be given or sent by registered mail.

Evidence of date of mailing

79(4)       Where a notice or document is sent by registered mail, the date appearing on the postal registration receipt shall be deemed conclusively to be the date of mailing.

Regulations

80          For the purpose of carrying out the provisions of this Act according to their intent, the Lieutenant Governor in Council may make regulations ancillary thereto and not inconsistent therewith and every regulation made under, and in accordance with the authority granted by, this section, has the force of law; and without limiting the generality of the foregoing, the Lieutenant Governor in Council may make regulations

(a) prescribing fees for registrations made under this Act in registry offices;

(b) prescribing offices to which a notice of claim for lien may be given under clause 45(3)(a);

(c) prescribing the rate of interest, and the method of compounding interest, for the purposes of subsection 24(6);

(d) prescribing an amount for the purpose of section 24 and an amount for the purpose of section 59.

Old liens and actions

81(1)       Where, prior to May 26, 1981 an action was commenced in a court to realize a lien under The Mechanics' Liens Act, being chapter M80 of the Revised Statutes, all proceedings, procedures and actions to realize the lien or in relation to the action shall be taken, commenced, carried on and continued under and be subject to The Mechanics' Liens Act, aforesaid, as though it had continued in force and effect.

Trusts under Builders and Workers Act

81(2)       Where, on May 26, 1981, a person held moneys as a trustee under The Builders and Workers Act, he continues as a trustee under this Act as though he had received the moneys after the Act came into force.

References to Mechanics' Liens Act, etc.

82          In any Act of the Legislature or in any regulation or order under an Act of the Legislature or in any contract

(a) a reference to The Mechanics' Liens Act or to The Builders and Workers Act shall be conclusively deemed to be a reference to this Act;

(b) a reference to a particular provision of The Mechanics' Liens Act or to a particular provision of The Builders and Workers Act shall be conclusively deemed to be a reference to the provision, if any, of this Act dealing with the same subject matter;

(c) a reference to a mechanics' lien or a lien under The Mechanics' Liens Act shall be conclusively deemed to be a reference to a lien under this Act; and

(d) a reference to a trust or trust fund created or required to be established under The Builders and Workers Act shall be conclusively deemed to be a reference to a trust or a trust fund created or required to be established under this Act.

SCHEDULE

Form 1

(Section 38)

CLAIM FOR LIEN

A. B. (name of claimant) of (here state residence of claimant), (if claiming as assignee add: - as assignee of - stating name and residence of assignor) claims a lien under The Builders' Liens Act upon the estate of (here state the name and residence of owner of land upon which lien is claimed) in the undermentioned land in respect of the following work (services or materials) that is to say (here give a short description of the nature of the work done or to be done, services provided or to be provided or materials supplied or to be supplied, and for which the lien is claimed) which work was (or is to be) done (or services were or are to be provided or materials were or are to be supplied) for (here state the name and residence of the person upon whose credit the work was or is to be done, the services were or are to be provided or the materials were or are to be supplied) on or before the       day of           , 19  .

The amount claimed as due (or to become due) is the sum of $          .

The following is a description of the land to be charged (here set out a concise description of the land to be charged sufficient for the purpose of registration).

(When credit has been given, insert the following:)

The said work was done (or is to be done) (or services were or are to be provided or materials were or are to be supplied) on credit and the period of credit agreed to expired (or will expire) on the       day of           , 19  .

Dated at           , this       day of           , 19  .

(Signature of claimant)

The address of the claimant for the purpose of service is

Form 2

(Section 38)

CLAIM FOR LIEN FOR WAGES

A. B. (name of claimant) of (here state residence of claimant), (if claiming as assignee add: - as assignee of - stating name and residence of an assignor) claims a lien under The Builders' Liens Act upon the estate of (here state the name and residence of the owner of the land upon which the lien is claimed) in the undermentioned land in respect of wages for work done (or services performed) on it while in the employment of (here state the name and residence of the employer of the person claiming the lien) on or before the       day of           , 19  .

The amount claimed as due (or to become due) is the sum of $          .

The following is the description of the land to be charged (here set out a concise description of the land to be charged sufficient for the purpose of registration).

Dated at           , this       day of           , 19  .

(Signature of claimant)

The address of the claimant for the purpose of service is

Form 3

(Section 38)

CLAIM FOR LIEN FOR WAGES BY SEVERAL CLAIMANTS

The following persons claim a lien under The Builders' Liens Act upon the estate of (here state the name and residence of the owner of the land upon which the liens are claimed) in the undermentioned land in respect of wages for work done (or services performed) on it while in the employment of (here state names and residences of employers of the several persons claiming the liens).

A. B. (name of claimant) of (here state residence of claimant) claims $           for work done (or services performed) on or before the       day of           , 19  .

C. D. (name of claimant) of (here state residence of claimant) claims $           for work done (or services performed) on or before the       day of           , 19  .

E. F. (name of claimant) of (here state residence of claimant) claims $           for work done (or services performed) on or before the       day of           , 19  .

etc.

The following is a description of land to be charged (here set out a concise description of the land to be charged sufficient for the purpose of registration).

Dated at           , this       day of           , 19  .

(Signatures of the several claimants)

The address of the claimants for the purpose of service is or The addresses of the claimants for the purpose of service are as follows:

Claimant Address for service

A. B.

C. D.

E. F.

Form 4

(Sections 38 and 45)

AFFIDAVIT VERIFYING CLAIM

I, A.           B.            named (or agent of the lien claimant named) in the above (or annexed) claim for lien, make oath that I believe the facts set forth in the above (or annexed) claim for lien are true.

Or

We, A.            B.            and C.            and D.           , named in the above (or annexed) claim for lien, severally make oath and say the I believe the facts set forth in the above (or annexed) claim for lien are true in so far as they relate to me.

Sworn before me at            in the   of           , this       day of           , 19  .

Commissioner for Oaths.

Form 5

(Section 45)

NOTICE OF CLAIM FOR LIEN

To (here insert name of owner - minister, Crown agency or municipality).

A. B. (name of claimant) of (here state residence of claimant) (if claiming as assignee add - as assignee of - stating name and residence of assignor) give notice of a claim for lien under The Builders' Liens Act in respect of the following work (service or material) that is to say (here give a short description of the nature of the work done or to be done, services provided or to be provided, or materials supplied or to be supplied, and for which the lien is claimed) which work was (or is to be) done (or services were or are to be provided or materials were or are to be supplied) for (here state the name and address of the person upon whose credit the work was or is to be done, the services were or are to be provided or the materials were or are to be supplied) on or before the       day of            19  , in respect of land or a structure of which (here state name of owner - Crown, Crown agency or municipality) is the owner.

The amount claimed as due (or to become due) is the sum of $          .

The following is a description (or the address) of the land on or in respect of which the work was or is to be done, the services were or are to be provided or the materials were or are to be supplied: (Here set out the address or description of the land or location.)

(When credit has been given, insert the following:)

Said work was done (or is to be done) (or services were or are to be provided or materials were or are to be supplied) on credit and the period of credit agreed to expired (or will expire) on the       day of           , 19  .

Dated at          , this       day of           , 19  .

(Signature of claimant)

The address of the claimant for the purpose of service is

Form 6

(Section 45)

NOTICE OF CLAIM FOR LIEN FOR WAGES

To (here insert name of owner - minister, Crown agency or municipality).

A. B. (name of claimant) of (here state residence of claimant) (if claiming as assignee add - as assignee of                      stating name and residence of assignor) give notice of a claim for lien under The Builders' Liens Act in respect of wages for work done (or services performed) on the land hereinafter described while in the employment of (here state the name and residence of the employer of the person claiming the lien) on or before the       day of              ,

19  .

The amount claimed as due (or to become due) is the sum of $          .

The following is a description (or the address) of the land on or in respect of which the work was done or the services were provided: (Here set out the address or description of the land or location.)

Dated at           , this       day of          , 19  .

(Signature of claimant)

The address of the claimant for the purpose of service is

Form 7

(Section 45)

NOTICE OF CLAIM FOR LIEN FOR WAGES BY SEVERAL CLAIMANTS

To (here insert name of owner - minister, Crown agency or municipality).

The following persons give notice of claims for liens under The Builders' Liens Act in respect of wages for work done (or services performed) on the land hereinafter described while in the employment of (here state the names and residences of the employers of the several persons claiming the liens).

A. B. (name of claimant) of (here state residence of claimant) claims $           for work done (or services performed) on or before the       day of           , 19 .

C. D. (name of claimant) of (here state residence of claimant) claims $           for work done (or services performed) on or before the       day of          , 19  .

E. F. (name of claimant) of (here state residence of claimant) claims $           for work done (or services performed) on or before the       day of           , 19  .

etc.

The following is a description (or the address) of the land on or in respect of which the work was done or the services were provided: (Here set out the address or the description of the land or location.)

Dated at           , this       day of           , 19  .

(Signatures of the several claimants)

The address of the claimants for the purpose of service is or The addresses of the claimants for the purpose of service are as follows:

Claimant Address for service

A. B.

C. D.

E. F.

Form 8

(Sections 25 and 46)

CERTIFICATE OF SUBSTANTIAL PERFORMANCE

I certify that the contract (or sub-contract) made between

(here insert name and residence)

as owner (or contractor) and

(here insert name and residence)

as contractor (or sub-contractor) and dated the       day of           , 19   in respect of the undermentioned land and work has been substantially performed within the meaning of The Builders' Liens Act on the       day of           , 19  .

The following is a short description of the work:

The following is a description of the land:

The following is the name and residence of the person upon whose certificate payment is to be made (delete if not applicable).

The following is the name and residence of the person giving the certificate.

This certificate of substantial performance within the meaning of The Builders' Liens Act was given on the       day of           , 19  .

The undersigned hereby certifies the above information is correct and that he is the person required or authorized under The Builders' Liens Act to give this certificate.

(Signature and Title of Person Giving Certificate)

Form 9

(Section 49)

PENDING LITIGATION ORDER

(Style of court and cause)

I certify that the above named plaintiff has commenced an action in the above court to enforce, against the following land (here set out a concise description of the land to be charged sufficient for the purpose of registration) a claim for lien under The Builders' Liens Act for $          .

Dated at          , this       day of           , 19  .

Seal.

(Signature of Registrar of the court or deputy registrar of the court)

Form 10

(Section 50)

NOTICE TO LIENHOLDER

To (here insert name of lienholder).

Under The Builders' Liens Act, I hereby notify you that the claim for lien filed by you on the       day of           , 19  , against the following lands, namely (here set out description of land) shall cease to exist unless an action to realize that claim for lien, or in which that claim may be realized, is commenced and a certificate to that effect (which certificate shall be Form 9 in the Schedule to the Act, signed by the Registrar of the court or a deputy registrar of the court) is registered in this office within 30 days from the date of the mailing of this notice, or unless within those 30 days you leave with me an order of a judge of the court extending the time for commencing the action.

Dated at          , this      day of           , 19  .

District Registrar

S.M. 1993, c. 8, s. 9.

Form 11

(Section 63)

NOTICE OF TRIAL

(Style of court and cause)

Take notice that this action shall be tried at the Court House in the          of           , on the       day of           , 19  , at the hour of     o'clock in the       noon by a judge of this court and, at that time and place, the judge will proceed to try this action and all questions which arise in, or which are necessary to be tried to completely dispose of the same and to adjust the rights and liabilities of the persons appearing before him or upon whom this notice of trial has been served, and at the trial he will take all accounts, make all inquiries and give all directions and do all things necessary to try and otherwise finally dispose of this action and of all matters, questions and accounts arising within this action and will give all necessary relief to the parties.

And further take notice that, if you do not appear at the trial and prove your claim, if any, or prove your defence, if any, to the action, the proceedings will be taken in your absence and you may be deprived of all benefit of the proceedings and your rights disposed of in your absence.

This is an action to enforce a claim for lien under The Builders' Liens Act brought by the above named plaintiff against the above named defendants and affects the following lands: (Here set out the description of the land charged.)

This notice is served by - (here set out name of party serving notice, and if represented by solicitor, the name and address of the solicitor).

 

 


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