Just another manic Monday for filing claims of lien in British Columbia: What happens when the filing deadline falls on the weekend?

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It is commonly known that the BC Builders Lien Act allows contractors, subcontractors, workers, and material suppliers 45 days from a triggering event to file a claim of lien.1 Failure to file a claim of lien within the 45-day timeline is fatal to a claimant’s lien rights. But what happens when the 45-day deadline falls on a Saturday or Sunday?

The Decision

On May 25, 2022, in Frontier Kemper Constructors, Inc. v Rio Tinto Alcan Inc., 2022 BCSC 868, British Columbia Supreme Court Justice Lamb held that, when a lien filing deadline falls on a weekend, the deadline to file is extended to the following Monday. This is true even though it is possible to file a claim of lien electronically through myLTSA – an online database that provides access to the BC Land Title and Survey Authority’s search, filing, and other services – on Saturdays.

Analysis

S. 15(1) of the Builders Lien Act provides that a claim of lien is made by filing the proper form “in the land title office.”2

In November 2020, the Director of Land Titles directed that a builders lien must be filed electronically via myLTSA, subject to several exemptions.3 The British Columbia Builders Liens Practice Manual further clarifies that a claim of lien filed by a lawyer must be submitted electronically through myLTSA, and that only a lien claimant not represented by legal counsel may file a lien in-person or by mail.4

myLTSA accepts applications for lien claims Monday to Saturday between 6 am and 11 pm, whereas the Land Title Office (LTO) accepts submissions in person during its business hours, Monday to Friday between 9 am and 3 pm.

The BC Interpretation Act, a statute commonly relied on to assist in calculating timelines and deadlines, provides that where a deadline for doing an act in a “business office” falls on a day which the office is not open, that deadline is determined to be the next day that the office is open during its regular business hours.

In Frontier Kemper Constructors, Inc. v Rio Tinto Alcan Inc., Justice Lamb concluded that despite the fact that myLTSA is open and accepts applications on Saturdays, the “office” contemplated in the Builders Lien Act, including in s. 15(1), is the physical LTO, not myLTSA. She explained that if the office was interpreted to mean myLTSA, the result would be different lien filing deadlines for those who file claims of lien electronically with a lawyer versus those who file in person or by mail, stating “this inconsistency would be contrary to the commercial certainty objective that underlies the BLA.5

Takeaway

Where a lien filing deadline falls on a day that the BC LTO is closed, the deadline to file is extended to the next regular business day. This is true despite the normal practice of relying on myLTSA for filing claims of lien.

The law applicable to builders liens is constantly changing. A party considering filing a lien or one defending the filing of a lien against their land would be prudent to pay close attention to the developing case law and seek professional legal advice.

1 BC Builders Lien Act, SBC 1997, c 45, s 20.
2 BLA, s 15(1), Frontier Kemper Constructors, Inc. v Rio Tinto Alcan Inc., 2022 BCSC 868 at para 73.
3 Land Title and Survey Authority of British Columbia, Director of Land Titles Directions, “E-filing Directions”) Version 1.3, effective November 24, 2020.
Frontier Kemper Constructors, Inc. v Rio Tinto Alcan Inc., 2022 BCSC 868 at para 75, citing Dirk H. Laudan, J. Marc MacEwing & David T. Mckenzie, eds British Columbia Builders Liens Practice Manual, (Vancouver: CLEBC, 2000) (loose-leaf updated 2021) at s.2.8.
Frontier Kemper Constructors, Inc. v Rio Tinto Alcan Inc., 2022 BCSC 868 at para 85.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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