By Dan W. Melnick and Satinder Sidhu

A recent decision from the BC Supreme Court emphasizes the necessity for strict compliance with the statutory timelines set out in the Builders Lien Act, SBC 1997, c 45 (the “Builders Lien Act”), and is of particular importance to owners, general contractors, and persons who act as “payment certifiers” for construction projects.

In Clough Pacific Joint Venture and PPM Civil Contractors, ULC v AECOM Canada Limited, 2025 BCSC 164, the BC Supreme Court dismissed an application to cancel builders liens for being filed beyond the 45-day deadline on the basis that a certificate of completion (the “Certificate of Completion”) and the related notice (the “Notice”) were not compliant with the required timelines under the Builders Lien Act.

Background

Section 7 of the Builders Lien Act requires that a certificate of completion be issued within 10 days after the date of the request by a contractor or subcontractor, if the contract or subcontract is complete. The same section stipulates that if a certificate of completion is issued, notice of the certificate must be posted on the project site within 7 days.

Section 20(1) of the Builders Lien Act requires that a lien claimant file a claim of lien no later than 45 days after a certificate of completion has been issued. Thus, the certificate of completion gives an owner certainty regarding when liens may still be validly registered against title to their lands.

Where no certificate of completion is issued, the lien claimant has 45 days to file a lien from the date that the “head contract” for the Project is completed, abandoned or terminated or the “improvement” is completed or abandoned.

In Clough Pacific, the petitioners, Clough Pacific Joint Venture and PPM Civil Contractors, ULC (the “Petitioners”), were subcontractors involved in constructing the loadout line trestle at a liquified natural gas facility in Kitimat, BC (the “Project”). The Petitioners subsequently hired the respondent, AECOM Canada Limited (the “Respondent”) as a sub-subcontractor to provide geotechnical analysis, engineering, design, and related services for the Project.

A payment dispute arose, prompting the Respondent to file two sets of builders liens against the Project lands for the amount of $1,123,014.13. The Petitioners sought to remove these liens, arguing that the Respondent failed to file the liens within the 45-day lien filing deadline triggered by the issuance of the Certificate of Completion.

The Respondent argued that the Certificate of Completion and Notice were invalid due to the Petitioners’ failure to comply with statutory timelines set out in section 7 of the Builders Lien Act. Specifically, on July 6, 2023 the Petitioners requested that the Certificate of Completion be issued, but the payment certifier did not issue the Certificate until July 26, which was 10 days late. Likewise, the Notice was not posted on site until August 19, 2023, which was 17 days late.

The Petitioners argued that while the Certificate of Completion and Notice were issued late, this only delayed the commencement of the 45-day deadline to file a lien. Since the Respondent’s lien was filed after this new deadline, the Petitioners argued it was invalid.

Decision

The Court found that the Certificate of Completion and the Notice were invalid because the Certificate of Completion was issued after the 10-day deadline set out in section 7 of the Builders Lien Act, and the Notice was posted after the 7-day statutory deadline. Therefore, the 45-day statutory deadline for filing a claim of lien had not been triggered by the Certificate of Completion. The liens were accordingly filed in time, and the Court dismissed the application to cancel the Respondent’s builders liens.

In making its decision the Court highlighted that the Builders Lien Act is a technical statute with a goal of providing certainty and fairness for all stakeholders in the construction industry. The Builders Lien Act imposes specific requirements and time limits on both lien claimants and owners and contractors who are subject to lien claims.

While the Court recognized that the Petitioners did not have control over issuing the Certificate of Completion or Notice (this was the responsibility of the payment certifier), this factor was ultimately irrelevant. The Court found that it could not treat the deadlines for issuing and giving notice of the Certificate of Completion merely as “suggestions”, especially considering the Petitioners’ request that the Respondent be held to the strict statutory deadline of 45-days for filing a lien.

In addition, the Court found the Petitioners’ evidence regarding the issuance of the Certificate of Completion and Notice to be insufficient. The affidavits filed by the Petitioners contained hearsay evidence without identifying the source of that evidence. This was contrary to the Supreme Court Civil Rules which require that a person swearing an affidavit state the basis of their information and belief when they are not speaking from personal knowledge (i.e. when they are relying on hearsay evidence). This issue of improper hearsay evidence in builders lien cases was highlighted for our readers in our previous article.

Takeaways

This case highlights the importance of strict compliance with the timelines set out in the Builders Lien Act, including for the issuance and posting of certificates of completion. A certificate of completion is issued to trigger the 45-day deadline to file a lien and provides certainty to an owner regarding the amount of valid liens that will be filed against title, if any. If owners and contractors do not ensure that a certificate of completion is issued in time, they may lose the certainty and rights afforded by the same.

The case is also significant for persons who act as payment certifiers for construction projects. Pursuant to section 7(9) of the Builders Lien Act, a payment certifier is liable to anyone who suffers loss or damage as a result of the certifier’s failure or refusal to comply with the timelines to issue a certificate of completion or post a notice of certification of completion.

Prescribed forms for the certificate and notice are set out at Form 2 and Form 3 of the Builders Lien Forms Regulation, BC Reg 1/98. For greater certainty, payment certifiers should use the forms prescribed as missing information could also invalidate the certificate or notice.

Our team has extensive experience with construction and builders lien matters, and are ready to assist with any questions you may have regarding filing, prosecuting, or defending claims of builder liens, or any other construction-related matters. You may contact Dan Melnick, Satinder Sidhu, or another member of our Construction group for assistance.