With significant recent and ongoing expansion at the Calgary,
Edmonton and Fort McMurray airports, a number of trades have been
interested in the question whether airports are subject to
builders’ liens. In the recent Alberta decision Park Avenue Flooring Inc. v. EllisDon
Construction Services Inc., the judge states categorically
that the Alberta Builders’ Lien Act has no
application to the Calgary Airport because it is federal property.
This is the first time a court has made such a clear pronouncement
on this issue in Alberta.
The issue is actually more complex than the decision in Park Avenue
Flooring case might suggest. It is not every construction project
relating to an airport that is exempt from provincial lien
legislation. First, an interest in land owned by the federal
government is clearly exempt. But... not all airport lands are
owned by the federal government. Second, an operation or
“undertaking” that is within the jurisdiction of the
federal government may be exempt (whether or not the lands in
question are owned by the federal government) based on
constitutional principles. The federal government clearly has
jurisdiction over aeronautics. But this doesn’t mean that
airports are exempt from provincial legislation for all purposes
and in all cases; various case-specific considerations might come
into play, such as the degree of federal control over the operation
or undertaking… and not all airports are subject to the same
degree of federal control. Third, there may be multiple interests
in land at an airport; i.e. the federal government, the airport
authority, airlines, hotels, car rental agencies, concessions...
Different considerations may come into play depending which
interest in land is in issue; the cases referenced here do not
resolve the question whether subsidiary interests (e.g. leases) in
airport lands could sometimes be subject to liens at the same time
other interests are exempt.
Although it would be easy to suggest that airports are
categorically exempt from lien legislation based on the Park Avenue
Flooring case, it would be a mistake to interpret the court’s
comments in that case too broadly. It remains arguable that not all
interest in airport lands are exempt from provincial lien
legislation. But no doubt valid provincial lien rights at airports
would very much be the exception.
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.
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