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In This Volume

  • 33 (1) If a claim of lien has been filed, an action to enforce the claim of lien must be commenced and, unless the claim of lien has been removed or cancelled under section 23 or 24, a certificate of pending litigation in respect of the action must be registered, not later than one year from the date of its filing, in the land title office or gold commissioner’s office in which the claim has been filed.
  • (2) Despite subsection (1),
  • (a) an owner, or
  • (b) a lien claimant who has commenced an action
  • may serve on a lien claimant, or other lien claimants, as the case may be, a notice to commence an action to enforce the claim of lien and to register in the land title office or in the gold commissioner’s office, as the case may be, a certificate of pending litigation within 21 days after service of the notice.
  • (3) The notice served under subsection (2) must be in the prescribed form, and service is validly effected if the notice is
  • (a) served personally on the lien claimant, or
  • (b) mailed or delivered to the address for service given in the claim of lien.
  • (4) If service is by mail the notice is conclusively deemed to have been served on the eighth day after deposit of the notice in the Canada Post Office at any place in Canada.
  • (5) Unless an action to enforce a claim of lien is commenced and a certificate of pending litigation is registered within the time provided in this section, the lien is extinguished.

1997-45-33, effective February 1, 1998 (B.C. Reg. 1/98).

REGULATIONS AND FORMS

Notice to Commence an Action

The form of notice prescribed by B.C. Reg. 1/98 is Form 6.

PRACTICE

Discharge of Lien Extinguished under Section 33

See s. 25 of the Act at “25 Powers of court, registrar or gold commissioner to remove claim of lien” in this chapter for practice with respect to the discharge of a claim of lien where the lien is extinguished under s. 33 of the Act.

CASE LAW

The appellant filed a claim of builders lien after an owner failed to pay for flooring installed by the appellant on the owner’s property. The owner then made an assignment in bankruptcy. The trustee ordered the sale of the property and disallowed the lien claim because the appellant had not filed a certificate of pending litigation within the time required in s. 33 of the Act. In allowing the appeal, the court held that the trustee was required to assess the validity of claims against the bankrupt estate as of the date of the bankruptcy and that the trustee was not entitled to take into account the running of time following the bankruptcy. The lapse of a limitation period following a bankruptcy does not affect the trustee’s assessment of a claim valid at the date of the bankruptcy (Re Forsyth, 2011 BCSC 1203).

In the case of service by mail, whether regular or registered, the date to file a notice of civil claim and to file and register a certificate of pending litigation is calculated based upon the deemed date of service under s. 33(4) of the Act (that is, eight days after notice is deposited in the Canada Post Office), regardless of when, or indeed whether, the notice is actually received. Earlier actual receipt does not cause the 21-day limitation period in s. 33(2) to run sooner. Accordingly, the plaintiff’s certificate of pending litigation was filed in time (Amplified Electric Inc. v. Husch, 2018 BCSC 969 (Master)).

In Alan Jones Construction Ltd. v. Hicks, 2019 BCSC 568 (Chambers), the appellate court overturned a Master’s decision it considered “plainly wrong” in law and ordered a rehearing. The proceeding concerned s. 33(5), which extinguishes a builder’s lien if an action to enforce the lien and a certificate of pending litigation are not filed within the 21-day period required by s. 33(2). The plaintiff had commenced its action within the required 21 days but had not filed the certificate of pending litigation until several months later. In dismissing the defendant’s application to discharge the lien and CPL, the Master found two lines of authority that she considered irreconcilable: the first a strict line, and the second a more liberal line giving the court discretion to waive the time limit. The Master took a discretionary approach based on a theory that the defendant had had notice of the plaintiff’s intention to enforce the lien. The appellate judge rejected that there were two lines of authority as to the time limit itself, saying there is only one, and it is a strict requirement—as supported by various authorities, including the British Columbia Court of Appeal. He said the discretionary or remedial cases concerned the substance or content of the lien itself and not the issue of time.