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In This Volume

  • 2 (1) Subject to this Act, a contractor, subcontractor or worker who, in relation to an improvement,
  • (a) performs or provides work,
  • (b) supplies material, or
  • (c) does any combination of those things referred to in paragraphs (a) and (b)
  • has a lien for the price of the work and material, to the extent that the price remains unpaid, on all of the following:
  • (d) the interest of the owner in the improvement;
  • (e) the improvement itself;
  • (f) the land in, on or under which the improvement is located;
  • (g) the material delivered to or placed on the land.
  • (2) Subsection (1) does not create a lien in favour of a person who performs or provides work or supplies material to an architect, engineer or material supplier.

1997-45-2, effective February 1, 1998 (B.C. Reg. 1/98).


Act Inapplicable to Airport Lands

The Vancouver International Airport Authority applied for a declaration that persons who supplied materials or labour for improvements undertaken by the authority were prohibited from filing builders’ liens against the authority’s leasehold interest in property that belonged to the federal Crown and was used for the purpose of operating the Vancouver International Airport. The court found that the operation of the airport goes to the core of a federal undertaking. As that undertaking was exclusively within the legislative competence of the federal Crown, ss. 2, 15, 16, 21, and 31 of the Act were constitutionally inapplicable or inoperative to the extent that they purported to apply to the leasehold interest of the authority in the airport lands (Vancouver International Airport v. Lafarge Canada Inc., 2009 BCSC 961, affirmed (sub nom. Vancouver International Airport v. British Columbia (Attorney General)) 2011 BCCA 89, leave to appeal refused 2011 CanLII 52133 (SCC)).

In Relation to an Improvement

The plaintiff installed three kilometres of conduit, inside and outside the boundaries of the defendant’s property, to carry fibre optic cables to the property. When the defendant defaulted on the contract, the plaintiff applied for a declaration of lien against the property for the value of the work performed and materials delivered both inside and outside the property boundaries. In granting a declaration of lien for the full amount claimed, the court found that all of the work performed and material supplied by the plaintiff was of direct benefit to the property and an integral and necessary part of the actual physical construction of the improvement. The conduit constituted a single improvement providing an extremely valuable direct and essential benefit to the defendant. Without the off-site conduit, the fibre optic system would not be functional. The phrase “in relation to an improvement” in s. 2 of the Act means “in direct relation to” or “in relation to an integral part of the improvement”. In this case, the work performed and the materials supplied by the plaintiff both on and off site were directed to, or done to advance, work that was being carried out on the very property the plaintiff sought to charge with the lien (Pedre Contractors Ltd. v. 2725312 Canada Inc., 2004 BCSC 1112).

For a further interpretation of the phrase “in relation to” as it is used in s. 2(1), see the annotations for Northern Thunderbird Air Ltd. v. Royal Oak Mines Inc., 2002 BCCA 58, under s. 1(1) of this Act.

Coal Leases

The respondents were mining contractors engaged in providing explosives for a coal mine located on untitled Crown land. In a proceeding under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36, the petitioners applied for a declaration that the respondents had no valid or enforceable lien against any of the petitioners’ assets, property, or interests at the coal mine. Section 18 of the Builders Lien Act permits the filing of a lien in relation to a mineral title held under the Mineral Tenure Act, R.S.B.C. 1996, c. 292. However, as the Mineral Tenure Act specifically excludes coal mines, the respondents contended they had a valid lien under s. 2 of the Builders Lien Act that could be enforced at common law. The court found that the registrar of land titles cannot accept a lien for filing where, as in this case, there is no title. Without a certificate, there is nothing to register a lien against. Further, in the absence of regulations about the registration of coal leases, the registrar had no power to create a title and thus no power to register liens against untitled Crown land. In dismissing the respondents’ argument that they were entitled to enforce a lien at common law, the court affirmed that, at common law, there were no builders’ liens, that it was unlikely the legislature intended to create a parallel system of liens outside the registration system under the Builders Lien Act, and that the Builders Lien Act constituted an entire statutory code. The court granted the petitioners’ application for the declaration (Re Pine Valley Mining Corp., 2007 BCSC 812).

The Meaning of “Improvement”

In May 2019, the parties entered into an agreement whereby the respondent would provide interior design and construction management services for the renovation of two office premises of the petitioner located in Vancouver and Richmond. The respondent performed some services under the contract such as site visits, design work, issuing tender documents to sub-trades, and ordering materials from sub-trades, but before any physical alterations were made to the premises, the COVID-19 shutdown occurred. As a result, the petitioner instructed the respondent that the project was on hold. The respondent issued two invoices for the project. It was paid a portion of the amount billed relating to interior design fees. Some of the fees were paid by the landlord of the Vancouver premises as part of the tenant improvement allowance, and the rest were paid by the petitioner directly. By July 2020, the petitioner elected not to proceed with the project due to a loss of revenue and the ongoing economic uncertainties in its business. In August 2020, the respondent filed claims of builders liens in the amounts of $46,332 and $47,180 against title to the lands in which the two office premises were located. The petitioner applied for an order removing the liens. Held, application allowed. Pursuant to s. 2 of the Builders Lien Act, a lien may be filed for the price of work and material supplied in respect of an improvement. An “improvement” is defined in s. 1(1) of the BLA as including “anything made, constructed, erected, built, altered, repaired or added to, in, on or under land, and attaches to it or intended to become a part of it, and also includes any clearing, excavating, digging, drilling, tunnelling, filling, grading or ditching of, in, on or under land”. The object of the BLA is to prevent owners of the land getting the benefit of buildings erected and work done at their instance on their land without paying for them. Here, the parties intended for there to be an improvement of the petitioners’ premises, but due to COVID-19, the improvement did not commence. The case authorities that have interpreted and applied the statutory definition of “improvement” did not support the respondent’s position that providing services and obtaining materials for planned renovations in the absence of physical alteration to the premises constituted an “improvement”. Although the petitioner might be liable under contract, it was plain and obvious that there was no improvement within the meaning of s. 2 of the BLA. The petitioner did not receive the benefit of an improvement because the improvement did not commence. There was no improvement and therefore there could be no lien (Shelly Morris Business Services Ltd. v. Syncor Solutions Ltd., 2020 BCSC 2038 (Master)).