The courts in Lesenko v Wild Rose Ready Mix Ltd, held that a lien will cease to exist if the statement of claim is not filed within the deadline set out in section 48 of the Prompt Payment and Construction Lien Act (the “PPCLA”).
Wildrose was a subcontractor hired by Lesenko’s residence and commercial building. Lesenko did not pay for the work and materials, which prompted Wild Rose to file two liens on October 4, 2019. On November 27, 2019, Lesenko and Wild Rose entered into a consent order under section 48 of the PPCLA. The liens were discharged from title with the order providing any party with the right to seek other applicable remedies under the then Builders’ Lien Act no later than 180 days following the date of the registration of the applicable lien with the Registrar of Land Titles.[1]
In early April 2020, the 180 days were up. Instead of bringing enforcement proceedings within 180 days of registration of the liens, as specified in the order, Wild Rose commenced an action by way of statement of claim just short of the two-year time limit under the Limitations Act.[2] The PPCLA sets out strict time limits where a subcontractor is required to register liens on title within the statutory period set by section 41.[3] While the Court has the power to vary an order, the respondent did not provide a compelling reason to extend the time limit.[4]
This decision cautions practitioners to carefully read acting statutes to ensure that limitation deadlines are not missed. For more information on the Court’s reasoning, read the full decision here.
For additional information on legislative changes in this area, you may be interested in LESA’s on-demand program, “Changes to the Builders’ Lien Regime in Alberta”. This program considers how these changes impact lawyers’ practice and discusses topics such as the creation of a lien, limitations of a lien, the lien fund, and more. Click here for additional details.
[1] Lesenko v Wild Rose Ready Mix Ltd, 2023 ABKB 148 at para 2-4.
[2] ibid at para 5.
[3] supra note 1 at para 9.
[4] ibid at para 16.
