We have previously reported on the decision of JVD Installations Inc. v Skookum Creek Power Partnership, 2020 BCSC 374, where the BC Supreme Court upheld the validity of builders liens filed by a subcontractor lien claimant over certain parcels of land that over which a transmission line ran. The lien claimant had performed concrete work and mechanical work to a hydroelectric facility connected to a transmission line. The hydroelectric facility was located on unregistered Crown lands and was not, itself, lienable – causing the lien claimant to file its claim of lien over the land parcels over which a transmission line connected to the hydroelectric facility ran. None of the work performed by the subcontractors was performed in connection with the transmission line. This decision was appealed by the defendants to the claim, which were comprised of the owner and contractor parties. The BC Court of Appeal overturned the decision of the BC Supreme Court.. See our article summarizing the findings of the BC Court of Appeal
The lien claimant, JVD Installations Inc., and its subcontractor, IDL Projects Inc., sought leave to appeal the decision of the BC Court of Appeal to the Supreme Court of Canada. On February 9, 2023, the Supreme Court of Canada denied the leave to appeal. This means that the decision of the BC Court of Appeal's findings regarding the availability of liens in connection with improvements over multiple parcels should be carefully considered and followed by lien claimants. As a reminder, these findings include:
- if an improvement extends across multiple parcels of land, the entire improvement may be the subject of a lien against any one of the parcels of land on which the improvement is located, if the improvement's function is to enhance the value of the liened parcel; and
- the correct test for considering if a single improvement extends over multiple parcels of land is not "interdependence", rather, there must be a close, case by case consideration as to the scope of the improvement, its components, and whether the work of the lien claimant was performed in connection with the improvement (or any of its components).
It is clear that potential lien claimants that have performed work to an improvement spanning multiple parcels of land need to carefully consider the scope of the work performed and the structure and function of the improvement and its component parts before filing any claim of lien.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.