In Clough Pacific Joint Venture and PPM Civil Contractors, ULC v. AECOM Canada Limited, a subcontractor (the “head contractor”) for the construction of a loadout line trestle attached to a liquefied natural gas facility in Kitimat, British Columbia, commenced a petition to have its subcontractor’s lien cancelled for having been filed outside the legislated 45-day lien period. They failed. The subcontractor, a geotechnical firm, successfully argued that the head contractor’s failure to comply strictly with the notice provisions under the Builders Lien Act, SBC 1997, c. 45 (“B.L.A.”), meant that the applicable lien period was never triggered.
The parties’ dispute began during a meeting on July 6, 2023, where they discussed the head contractor’s project as being substantially complete. The following day, the subcontractor filed a claim of lien against the project lands for $1,123,014.13 (the “First Lien”). The head contractor secured this lien with a payment into court. However, the subcontractor subsequently became uncertain whether the First Lien encumbered the correct lands. On August 2, 2024, the subcontractor filed three additional liens against 14 parcels related to the project, each for the same amount (the “Second Liens”). The head contractor sought to cancel the Second Liens by asserting that the applicable lien period expired on September 9, 2023, because of its Certificate of Completion dated July 26, 2023.
Under section 7 of the B.L.A., a contractor or subcontractor may make a written request for a certificate of completion from, respectively, the owner or a head contractor. Within 10 days, the responding party, via its payment certifier, must determine whether the contract is substantially complete. If it is, the responding party must issue a Certificate of Completion, which triggers the 45-day lien period under the Act. Within 7 days thereafter, the responding party must post notice of the certificate’s issuance at the construction site.
In this case, the head contractor failed to meet these deadlines in three respects. First, the supporting affidavit failed to specify the source and nature of the subcontractor’s alleged request during the July 6, 2023, meeting. Because cancellation of a lien is akin to a final determination, the court held that the head contractor’s affiant, a paralegal, could not rely on hearsay evidence to establish that the subcontractor had requested a Certificate of Completion, in writing or otherwise. Second, and irrespective of the foregoing, the head contractor did not issue the impugned certificate until July 26, 2023, being 10 days after the statutory deadline. Third, the corresponding construction-site notices were not posted until August 19, 2023, being 17 days after this notice’s statutory deadline. At the petition’s hearing, the head contractor admitted these delays but argued that it had sufficiently drafted and publicized these records to negate any prejudice to the subcontractor. It therefore requested that the Court treat the notice posting date as the operative date for triggering the lien period. The Court rejected this argument.
The B.L.A.’s language regarding the timelines for issuing and posting notice of a Certificate of Completion is clear. In the absence of ambiguity, the modern principle of statutory interpretation, favouring a contextual and purposive reading, does not permit the Court to override explicit deadlines. In short, the Court held that the B.L.A.’s timelines are not suggestions. In any event, the head contractor failed to establish that a valid request for the certificate was ever made. For these reasons, the head contractor’s petition was dismissed with costs. For the construction industry, Clough Pacific Joint Venture and PPM Civil Contractors, ULC v. AECOM Canada Limited provides an important reminder that the Court will strictly enforce the B.L.A.’s deadlines. For subcontractors, it is essential to issue a clear, written request for a certificate of completion to ensure the lien period is properly triggered. For head contractors, it is equally critical to adhere to the timelines in section 7 of the B.L.A., including issuing the certificate within 10 days of a valid request and posting notice within 7 days thereafter. Otherwise, the lien period may never commence.