Canada: Alberta Decision May Make Builders' Lien Filing Deadline Less Certain, More Litigated

In Boulevard Real Estate Equities Ltd. v. 1851514 Alberta Ltd. (Boulevard Real Estate Equities), a master of the Alberta Court of Queen's Bench held that if an owner makes a representation to a contractor that causes the contractor to file a builders' lien after the deadline set in the Builders' Lien Act (BLA), the owner may be estopped from having the builders' lien discharged on the basis that it was not filed in time. Boulevard has appealed Master Prowse's decision to a justice of the Alberta Court of Queen's Bench. We will monitor the appeal and report on its outcome.


The defendant contractor, 1851514 Alberta Ltd. (185), provided work and materials for two construction projects owned by the plaintiff, Boulevard Real Estate Equities Ltd. (Boulevard). 185 claimed that it was not paid for its work and filed builders' liens against the projects. A representative of Boulevard contacted a representative of 185 after the liens were filed. The representative of 185 summarized that conversation in his affidavit as follows:

After the liens were filed, I was then contacted by [representatives of Boulevard] who initially said to me words to the effect that they would ruin 185. However, shortly after that I was called again and they spoke in an apologetic tone and indicated that all they really needed to do was sit down and reconcile all of the accounts as to what work and materials 185 had supplied, to each of the projects, and that the company 185 would be paid. They requested that I remove the builder's liens because they were desperate to do financing on the projects. Accordingly, upon reliance on their representations that they were now going to pay for the materials supplied, and would reconcile in good faith what they owed to me, I discharged the builder's liens. [emphasis added]

Boulevard did not pay 185, however, so 185 registered new builders' liens against the projects. The new builders' liens were registered after the BLA's deadline for filing a builders' lien had elapsed. Boulevard applied to have the new builders' liens discharged on that basis.


Section 41 of the BLA provides that a builders' lien must be registered within 45 days (or in the case of oil or gas wells, 90 days) of the date on which the contractor last furnished materials for a project, last performed services for a project, completed its contract, or abandoned its contract, as applicable.

Contractors may file more than one lien in respect of the same work, as the Alberta Court of Appeal held in Tervita Corporation v. ConCreate USL (GP) Inc. In that case, however, the Alberta Court of Appeal found that the contractor filed its second lien before the deadline set by section 41 of the BLA elapsed. For more information, see our April 2015 Blakes Bulletin: Alberta Court Clarifies Builders' Lien Registration When Contract Abandoned.


Boulevard's application to have the builders' liens discharged was dismissed. The master held that the doctrine of promissory estoppel should be applied to prevent Boulevard from arguing that the builders' liens had been filed out of time, because of the conversation Boulevard's representative had with 185's representative after 185 filed the first builders' liens.

Under the doctrine of promissory estoppel, Party A may be barred from enforcing a legal right Party A would otherwise have against Party B if all of the following elements are present:

  • Party A made a clear promise or representation
  • Party A intended that Party B would rely on its promise or representation, and that its promise or representation would change the legal relationship between Party A and Party B
  • Party B relied on Party A's promise or representation to Party B's detriment.

The master did not provide a detailed analysis of the application of the doctrine of promissory estoppel to the facts in this case, instead he simply stated, "[I]t is my conclusion that, pursuant to the doctrine of promissory estoppel, Boulevard is prevented from asserting that the re-registered liens were filed out of time. . . ." Based on his conclusion, one can assume the master found that Boulevard had represented that it would pay 185, and intended that 185 would rely on that representation to discharge its builders' liens, and that 185 did in fact rely on that representation to discharge its liens.

Notably, the master stressed that it was appropriate to apply the doctrine of promissory estoppel in this situation because he found that this was a relatively simple two-party builders' lien case; there were no third parties who would be affected by his decision.



Owners must be wary when having discussions with contractors who have or may file builders' liens that if they make promises or representations that the contractor could rely on to discharge a builders' lien or delay filing a builders' lien. In such situations, owners may lose their right to later argue that the builders' lien was registered out of time. Owners wanting to negotiate business-minded solutions in good faith with unpaid contractors should be very cautious when doing so in the wake of this decision.


This case gives contractors a powerful argument to raise on an application to discharge builders' liens filed out of time. Contractors should however still adhere to the filing deadlines for builders' liens under the BLA and not make a strategic decision to delay filing a builders' lien or discharge a builders' lien. Promissory estoppel is an equitable remedy. Courts have broad discretion in granting equitable remedies, meaning that it is difficult to predict whether a court will invoke promissory estoppel in any particular situation. Further, a court will not grant an equitable remedy to a party who has "unclean hands" and therefore may refuse to apply the doctrine of promissory estoppel if it believes that a contractor acted strategically rather than in true reliance on an owner's representation.

Third Parties

The master invoked promissory estoppel in this case because he believed that it was a simple two-party case. As those involved in the construction industry know, however, even cases which appear to be simple two-party matters usually are not. For example, many construction projects are financed through construction loans secured against the land. In such cases, lenders depend on land title searches to ensure that their security is not impaired. If a contractor in an apparently simple two-party case is permitted to register a lien after the statutory deadline, its late-filed lien could take lenders — and other third parties who rely on land title searches to identify clouds on title — by surprise.


Courts have historically taken a strict approach to interpreting the provisions of the BLA that determine whether a contractor is entitled to register and maintain a builders' lien, because a builders' lien is an extraordinarily powerful remedy. A builders' lien can also have wide-ranging effects for not only the owner but other contractors, the owner's creditors, purchasers of the land, etc. It is important that there be predictability in terms of whether a contractor is entitled to register a builders' lien.

This case is not the first released this year in which an Alberta court adopted a less-than-strict approach to the question of whether a contractor was entitled to register or maintain a builders' lien. In TRG Developments Corp. v. Kee Installations Ltd. (TRG Developments), the contractor failed to file a certificate of lis pendens (CLP) within 180 days of filing its builders' lien as required by the BLA. Ordinarily a failure to comply with this requirement entitles an owner to write to the registrar of land titles and request that the builders' lien be discharged. The Alberta Court of Appeal held, however, that the owner in TRG Developments was not entitled to have the builders' lien discharged, as the owner had taken steps to challenge the validity of the lien and may therefore have misled the contractor into believing that it was not necessary to file a CLP. TRG Developments was, like Boulevard Real Estate Equities, supposedly a simple two-party case. For further information, see our July 2015 Blakes Bulletin: Alberta Court of Appeal Finds That Certificate of Lis Pendens to Perfect Builders' Lien May Not Be Required.


Boulevard Real Estate Equities, and cases like TRG Developments, may signal a trend among Alberta courts to take a more lenient approach to determining whether a contractor is entitled to register or maintain a builders' lien, at least in cases where the contractor works directly for the owner. Owners and other parties who may be affected by the registration of a builders' lien should therefore proceed with the knowledge that contractors may not be held to the letter of the BLA. This trend decreases the predictability that formerly existed in relation to when contractors were entitled to register and maintain builders' liens.

This trend of taking a lenient approach to the BLA's time limits is also likely to promote more interlocutory applications with respect to the validity of builders' liens and increase their complexity. Before TRG Developments, if a contractor failed to file a CLP within 180 days of filing its builders' lien, the builders' lien could be discharged with a simple letter to the registrar of land titles and the contractor had no grounds on which to challenge the discharge. A contractor may now apply to the court to reverse the discharge, arguing that the owner's conduct made the discharge unfair. An application to discharge a lien on the basis that it was filed out of time formerly centred around one simple question of fact: when the contractor last provided materials or services, or when the contract was completed or abandoned. If Boulevard Real Estate Equities is upheld, such applications may be complicated by extended enquiries into the owner's conduct and the contractor's state of mind.

As builders' lien matters become increasingly complex, it is now more important than ever that owners, contractors and others affected by builders' liens seek legal counsel proactively.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
26 Oct 2018, Other, Vancouver, Canada

Cybersecurity, including data privacy and security obligations, has become a critical chapter in every company’s risk management playbook.

30 Oct 2018, Other, Toronto, Canada

Please join us for discussions on recent updates and legal developments in pension and employee benefits as well as employment law issues.

12 Nov 2018, Other, Toronto, Canada

Stories aren’t falsehoods. Stories are the root of all effective human communications: they motivate, animate and clarify. If you aren’t telling stories, you probably aren’t getting your point across.

Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
McLennan Ross LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Borden Ladner Gervais LLP
McLennan Ross LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions