File in registry in same judicial district as the land

All proceedings under the Builders Lien Act (including actions in support of liens against the holdback and actions for breach of trust) must be brought in the appropriate registry as specified by s. 27 of the Builders Lien Act. Section 27 of the Builders Lien Act states that lien actions must be commenced in the registry according to the venue rules specified in the Law and Equity Act for foreclosure proceedings:
 
Section 21 of the Law and Equity Act applies to a proceeding in respect of a claim of lien or other proceeding under this Act in the same way that section applies to a foreclosure proceeding on a mortgage.
(Builders Lien Act, s. 27).
 
s. 21 of the Law and Equity Act which specifies that proceedings should be filed in the municipality, or at least the judicial district, containing the land registries for foreclosure proceedings:
 
(2) Unless the court otherwise orders, every foreclosure proceeding on a mortgage must be commenced,
(a) if the land that is the subject of the foreclosure proceeding is located in a municipality and there is a registry of the Supreme Court located in that municipality, at that registry, or
(b) if the land that is the subject of the foreclosure proceeding is not located in a municipality or, if it is located in a municipality but there is no registry of the Supreme Court located in that municipality, at any registry located in the judicial district in which the land is located,
and all applications in the proceedings must, subject to the Rules of Court, be heard at the location of that registry.
(3) For the purposes of subsection (2), the Vancouver and New Westminster registries are deemed to be the same registry.
(Law and Equity Act, R.S.B.C. 1996, c. 253, s. 21).
 
Courts have confirmed that the rules in s. 21 of the Law and Equity Act apply to lien actions:
 
Dealing with the issue of the distinction between foreclosure actions and builders’ lien actions, I note that the legislature has made lien actions subject to the same rules that govern foreclosure actions.  It has specifically provided that those rules are to be applied in the same way in both proceedings.  Section 27 of the Builders Lien Act imports the entirety of s. 21 of the Law and Equity Act which says, in its closing provisions, that the rules in lien actions are to be applied "in the same way that the section applies to foreclosure proceedings on a mortgage".
(Keith Dahlen Construction Ltd. v. Zahara, 2004 BCSC 686 at para. 24).
 
Section 21 Law and Equity Act, mentioned above, refers to “judicial districts”. The Supreme Court Act, R.S.B.C. 1996, c. 443 defines 7 judicial districts covering the 8 counties in British Columbia (Vancouver and New Westminster are grouped together): 
 
8 (1) Judicial districts are constituted by counties, as defined by the County Boundary Act, such that:
(a) the County of Victoria is a judicial district under the name of the “Victoria Judicial District”;
(b) the County of Nanaimo is a judicial district under the name of the “Nanaimo Judicial District”;
(c) and (d) [Repealed 1997-28-17.]
(d.1) the County of Vancouver and the County of Westminster are collectively a judicial district under the name of the “Vancouver Westminster Judicial District”;
(e) the County of Yale is a judicial district under the name of the “Yale Judicial District”;
(f) the County of Cariboo is a judicial district under the name of the “Cariboo Judicial District;
(g) the County of Kootenay is a judicial district under the name of the “Kootenay Judicial District”;
(h) the County of Prince Rupert is a judicial district under the name of the “Prince Rupert Judicial District”.
(Supreme Court Act, R.S.B.C. 1996, c. 443, s. 8)
 
The County Boundary Act, R.S.B.C. 1996, c. 75 contains long descriptions that define each of the 8 counties in British Columbia.
 
Section 21 Law and Equity Act, mentioned above, also refers to “municipality” and so one should also keep in mind the definition of municipality in the Local Government Act:
 
“municipality” means, in relation to a regional district, a municipality in the regional district and, in the case of the Greater Vancouver Regional District, includes the City of Vancouver;
(Local Government Act, R.S.B.C. 1996, c. 323, s. 4).
 
Section 21(5) of the Law and Equity Act, R.S.B.C. 1996, c. 253 allows the parties to agree to the action to perfect the lien being filed in a different registry of the Supreme Court than the one otherwise specified by s. 21 of the Law and Equity Act:
 
This section does not apply if, after an allegation of a default under the mortgage, the person proposing to commence the foreclosure proceeding agrees with the registered owner of the land that is to be the subject of the proceeding, that the proceeding may be commenced at a registry other than the registry referred to in subsection (2) or (4).
(Law and Equity Act, R.S.B.C. 1996, c. 253, s. 21(5)).
 
Note the opening wording of s. 21(5) does not apply to lien actions, but since s. 27 of the Builders Lien Act states that s. 21 applies to lien actions, those opening words are ignored for the lien context.

 

 

 

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