The Builders Lien Act does not contain a curative provision

A “curative provision” is a type of legislative provision which states that certain non-compliance with the requirements of the legislation will be forgiven. Earlier builders lien legislation in British Columbia contained a curative provision, but the current Builders Lien Act does not contain a curative provision:
 
The predecessor to the current Builders Lien Act contained a curative provision in the form of ss. 21(1) and (4) which provided as follows:
 
21(1)   A claim of lien must be by affidavit sworn before any person authorized to take oaths, and may be in Form 1 of the Schedule.
(4)  A substantial compliance only with this section is required, and no lien is invalidated because of failure to comply with any of its requirements unless, in the opinion of the court hearing the claim of lien, the owner, contractor, subcontractor, mortgagee or other person is prejudiced by it, and then only to the extent to which that person is prejudiced.
 
No comparable provisions appear in the replacement legislation enacted in 1997.
 
(Nita Lake Lodge Corp. v. Conpact Systems (2004) Ltd., 2006 BCSC 885 at para. 10).
 
Similarly:
 
The remedies provided by the Act are purely statutory and are, in effect, supplemental to existing contractual remedies. As it is a statutory remedy, lien claimants must strictly comply with the time limit established. The legislation provides no mechanism for extending the time for filing a claim of lien or relieving a claimant for failing to do so. Under the statute the court has no power to do either.
(Marabella Pacific Construction Ltd. v. Fast Trac Bobcat & Excavating Service, 2002 BCSC 803 at para. 32).
 
Similarly:
 
Given land liens impair title holder’s use of the lands on which a project is situated; and that the right to file building liens against title to land is an extraordinary remedy, it is not surprising the Act details strict requirements, which the authorities say, as just mentioned, lien claimants must follow when they lien lands.
(Preview Builders International Inc. v. Forge Industries Ltd., 2013 BCSC 1532 at para. 88).
 
The absence of a curative provision means that failure to comply with the requirements of the legislation may be fatal to a lien claim:
 
It was open to the legislature to enact a curative provision, but it declined to do so.  Instead, the legislature chose to enact s. 15 and s. 22, which insist on strict compliance with the manner and form prescribed by the Act and regulations.  The result of any departure from that form is extinguishment. Certainty in relation to rights and obligations arising in the construction industry is a worthy objective.  That certainty is best provided by requiring strict adherence to a clearly stated legislative scheme…
(Nita Lake Lodge Corp. v. Conpact Systems (2004) Ltd., 2006 BCSC 885 at para. 14).
 
The above provision from Nita Lake Lodge Corp. v. Conpact Systems (2004) Ltd., 2006 BCSC 885 was cited in Bank of Montreal v. Peri Formwork Systems Inc., 2012 BCCA 4 at para. 61.
 
 

 

 

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