Canada: This Bridge Is Not For (Lien) Sale: N.S. Court Decides Macdonald Bridge Cannot Be Liened In Certification Coating Specialists. v. Cherubini Et.Al.

Last Updated: November 23 2016
Article by John Kulik

There is an old expression about "selling the Brooklyn Bridge". Recently, a bankrupt subcontractor attempted to register a lien against the MacDonald Bridge spanning Halifax Harbour. If it succeeded and the lien were not then paid out, the subcontractor's ultimate remedy would be to sell the Bridge to satisfy its lien. Fortunately (and not too surprisingly) the N.S. Supreme Court decided the MacDonald Bridge cannot be liened nor sold to satisfy a lien. McInnes Cooper's Douglas Tupper QC represented the successful contractor.

The decision is a good reminder of against what and whom a lien can be registered and how it can quickly be challenged.


The Angus L. MacDonald Bridge between Halifax and Dartmouth, N.S. is being renovated in "The Big Lift" project. The Halifax Dartmouth Bridge Commission owns and operates the Bridge and is the registered owner of various properties at both ends of its span. The Bridge Commission hired American Bridge to perform the renovations. American Bridge hired Cherubini Metal Works to fabricate replacement deck panels for the Bridge, and Cherubini in turn hired Certified Coating Specialists to put certain coatings on the panels. Certified Coating performed all its work at Cherubini's workshop, then transported, raised and inserted the panels into the Bridge's span. Certified Coating did not perform any work on any properties the Bridge Commission owned, excepting the Bridge span itself. After it performed its work, Certified Coating Specialists declared bankruptcy. Its receiver and trustee, The Bowra Group Inc., registered a lien against various properties that the Bridge Commission owned to secure a claim for approximately $400,000.00 against Cherubini. Cherubini denied it had any obligation to pay the claim and applied to the N.S. Supreme Court under the summary procedures available under Section 29(4) of the N.S. Builders' Lien Act to vacate the lien on the basis the lien was legally invalid.


On September 22, 2016, the Nova Scotia Supreme Court in Certification Coating Specialists v. Cherubini decided that while Bowra is entitled to pursue its claim against Cherubini (which claim Cherubini is entitled to defend), it is not entitled to register a lien against the Bridge or any related properties as security for its claim.


The court's decision offers a good reminder of against what and whom a lien can be registered, and how it can quickly be challenged. Construction industry participants in other Canadian provinces and territories, however, should check their own lien legislation since if could differ from that of N.S.

  1. Public Streets and Highways Cannot be Liened. Section 3(1) of the N.S. Builders' Lien Act says it does not apply to work performed with respect to public streets or highways. However, the Act does not define a public street or highway. There are other statutes that define those terms, but since the Act does not specifically refer to them, their definitions do not apply. The court decided it was entitled to look at the common usage of the words "public streets or highways" as well as dictionary definitions to determine the meanings of those words, and concluded the MacDonald Bridge is indeed a public street or highway:

    • Traffic enters directly into the street systems of Halifax and Dartmouth from the Bridge.
    • Both private and public vehicles, including scheduled transit buses, use the Bridge.
    • There are posted speed limits and traffic signals on the Bridge.
    • Although a toll is required, it is automated and the Bridge is available to all drivers.
    Since Certified Coatings' work was done solely on the deck panels, the Bridge itself was the only property owned by the Bridge Commission that Certified Coatings could possibly have the right to lien. But since the Bridge span itself was a public street or highway, the lien was invalid. Bowra Group (as Certified Coatings' Trustee) could still advance a claim against Cherubini, but it could not be secured by a builders' lien against any of the Bridge Commission's properties.
  2. There is a quick way to challenge liens. Under Section 29(4) of the Act, the N.S. Supreme Court has jurisdiction to vacate a lien upon the posting of security or "upon any other proper ground". Frequently a party that is subject to a lien but disputes the amount owed wants to have the lien vacated as quickly as possible so project funding can flow. This involves the posting of security with the court in the form of a bond, a letter of credit or even cash, usually in the amount of 1.25 times the face value of the lien claim. This security takes the place of the land subject to the lien and the court then vacates the lien from the land. But if the validity of the lien itself is questionable (for example, it was filed out of time or the Act does not cover the work in question), a party can apply to the court for a quick ruling whether the lien is valid in law. There is a heavy onus on the applicant because the court will not lightly dispose of the security the Act grants a contractor, but it will vacate an improper lien where the facts and the law are clear. This process can be of great benefit to the party subject to a lien as they can avoid either paying bond premiums or interest on a letter of credit, or tying up cash.
  3. Provincial Crown property cannot be liened. Section 3(2) of the Act specifically says liens cannot be registered against Provincial Crown property. However, under section 3(4) an unpaid contractor can give notice of a potential claim to the Provincial Crown and thus is entitled to a secured claim against the lien holdback that the Act requires the Provincial Crown to maintain. Although the contractor has no security against the project on which it was working, it at least has security against that holdback fund. The Provincial Government sought leave to intervene and argue the Bridge Commission is part of the Provincial Crown, so the Bridge cannot be subject to a lien. Although the issue was argued in full, the court declined to rule on the point since it already decided the Bridge is a public street or highway and not subject to the Act. So the question of whether the Bridge Commission is a Provincial Crown entity, such that its property is Crown property and cannot be liened, remains to be answered another day.

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.

In association with
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
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.