- An affidavit’s attention to detail, backed by thorough documentary evidence in its accompanying exhibits, provides courts with the confidence to settle lien claims summarily. Choosing not to do the same with one’s own affidavit when defending a lien claim is to live dangerously.
- Favourable evidence reviewed by the court may prove persuasive even if it’s not formally found to be necessary to resolve the matter – or even ruled admissible.
- It never hurts for your expert to have the opportunity to critique the opposing expert’s work in your expert’s own report. If it’s your expert’s work that’s been savaged by their counterpart, leaving the documentary record in that condition is a risk, to put it mildly.
The owner of a historical Edmonton building hired Clark Builders to renovate it into the Redleaf Canada Presentation Centre, which involved an envelope replacement, a new roof structure, and new cladding. In other words, the building “was basically demolished and replaced.” Major mechanical and electrical elements were added to the scope of the work during the course of construction.
In accordance with the terms of the contract, Clark Builders issued monthly invoices from August 2009 to June 2011 for its services as construction manager. The building’s owner, 1352986 Alberta Ltd. (“135 Alberta Ltd.”), paid for all amounts invoiced until October 31, 2010. However, invoices from November 2010 to June 2011 totalling $475,350.80 went unpaid – 135 Alberta Ltd. alleged delay, unnecessary expense, and poor construction quality.
Clark Builders registered a builders’ lien in March 2011 against both the fee simple estate of 135 Alberta Ltd. and the leasehold interests of three corporations who had filed a caveat against the lands in question – Clark Builders claimed that those three lessees and the owner, 135 Alberta Ltd., had collectively either requested or benefited from the services of Clark Builders.
Procedural skirmishing consumed the next nine years, eventually culminating in an application in November 2020 by Clark Builders pursuant to s. 53 of the Builders Lien Act for a judgment declaring its liens valid in the amount of the outstanding invoices.
As that application ground through the system, the Builders Lien Act became obsolete with the entering into force of the Prompt Payment and Construction Lien Act in August 2022 – the Court observed that this case is likely to be one of a decreasing number settled using the old legislation.
The Court’s canvas of the applicable law began by noting that Section 49(6) of the Builders Lien Act provides that “[t]he procedure in adjudicating on the claims shall be of a summary character, so far as is possible, having regard to the amount and nature of the liens in question and the enforcement of them at the least expense.”
Regarding the affidavit obliged to be filed in support of the application, the Court observed that while it was often referred to by parties as “an affidavit proving lien”, the legislation does not suggest the lienholder must “prove” the lien, but rather must provide detailed particulars of it, which precedent suggests will require “at the very least”:
- A statement that the lien claimant did the work or supplied the materials;
- Disclosure of who requested the work and materials (which would be especially important if the owner did not make the request directly);
- Sufficient particulars about the work or materials to allow the owner to make a reasoned judgment about payment;
- Finally, if there are pleadings, the affidavit should, ideally, address the issues raised in the defence.
The Court’s reflections on the case law to date emphasized the summary, expeditious nature of builders’ lien actions, which existed “[l]ong before case management was the practice in Alberta, long before the Alberta [Rules] of Court contained a provision for summary trial,” and which implied that while Rule 7.3 of the Rules of Court does not apply, the modern principles of summary judgment certainly do, foremost that:
[t]here will be no genuine issue requiring the trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
The Court further cautioned against using outdated language about summary judgment to describe the suitability of a lien claim for expeditious resolution:
Observations made in earlier decades such as “[…that a] lien claim will not be dismissed or adjudicated before a proper trial of the action except in the clearest of cases [or that this] court cannot weigh the evidence and make final determinations…” are no longer the proper approach to summary dispositions.
The Court found that the affidavit sworn by Greg Asselin, the project manager of Clark Builders, which was not challenged via questioning, was comprehensive and sufficient to satisfy the onus of proof on Clark Builders as lienholder to establish that its liens were valid in the amount of the outstanding invoices.
In doing so, it considered and dismissed the competing affidavit evidence provided by Ming Ying, the representative of 135 Alberta Ltd., which the Court criticized for not putting its best foot forward. Specifically, the Court found that it contained insufficient evidence to challenge the Clark Builders affidavit, e.g. this unfavourable comparison between the two:
Ming Ying deposes in paragraph 6 regarding completion of the interior office space: “Significant costs to complete that work were incurred ($55,268.00) which 1352986 Alberta Ltd regards as improper since these were to be included in the original budget amount.” Notwithstanding the exact number stated, no records are provided to show what those costs were for. On the other hand, Mr. Asselin’s evidence on the updated scope of work and budget set out in his June 14, 2011 letter attached as exhibit J to his affidavit confirms that the Owner “would supply flooring, interior doors, frames and hardware, PVC windows, millwork …”.
After the filing of the application, the parties also exchanged expert reports regarding the value of the work performed by Clark Builders, and the experts were questioned on their reports. The Court noted that in the context of a Builders Lien Act summary procedure, which is intended to be carried out expeditiously and at the least expense, the use of expert reports to determine the validity of the liens was unusual and their admissibility was not automatic.
Ultimately, the Court concluded that in this instance the expert reports were helpful, but not necessary, to come to a satisfactory summary conclusion on the matter: the non-expert affidavits were sufficiently dispositive for the Court to declare the existence of a debt owed by the 135 Alberta Ltd. to Clark Builders in the amount of the outstanding invoices, being $475,350.80 plus GST, plus interest as defined in the construction management contract, plus costs of the application and action.
The lessees, by virtue of their caveat registered with respect to a leasehold interest in the lands owned by 135 Alberta Ltd., were not a party to the construction management contract but found to have liability for the lien registered against their leasehold interest in the amount of the outstanding invoices plus GST and interest.
Whether the Court’s remarks reflect the complete reality of the persuasive value of the duelling expert reports is questionable. The Court’s written decision describes the conclusions of the expert reports at length, including passages in which the expert for Clark Builders, writing with the benefit of the expert report for 135 Alberta Ltd., appears to have demolished the latter on several key points, e.g. the failure of 135 Alberta Ltd.’s expert to account for the difference in the cost environment between 2009 and 2011. Although the Court may not have formally taken that into account in the course of coming to its conclusion, it nonetheless seems to have made a substantial impression, and perhaps assisted the Court in confidently concluding that the matter was fit for summary resolution.