THE ADVOCATE 867
VOL. 77 PART 6 NOVEMBER 2019
being filed are among the most important. They contemplate faster and less
costly procedures for clearing claims of lien from title. The ten-day gap
between the end of the lien filing period and the end of the holdback period
would be eliminated, as it is no longer required because most land title
office filings are now electronic. Provisions that are commonly misunderstood,
leading to payments being withheld unnecessarily when a claim of
lien appears on the owner’s title, would be clarified by appropriate amendments.
Those that are unnecessary would be repealed.
These tentative recommendations address the causes for delay in payment
of contractors and subcontractors that can be specifically attributed to
the Builders Lien Act. Prompt payment provisions like the ones recently
enacted in a few other provinces impose rigid deadlines and interest premiums
to counteract what their proponents claim is a culture of delayed payment
in the construction sector. As prompt payment provisions are framed
to operate within the scheme of existing builders’ lien legislation, however,
they do not directly address the features of the present Builders Lien Act that
can operate counterproductively to restrict the flow of construction funds.
If and when prompt payment legislation is introduced in British Columbia,
additional changes along the lines of the ones tentatively recommended in
the BCLI consultation paper will still be needed if security and promptness
of payment are to be maximized at the same time.
Changes are proposed to facilitate new financing to enable the completion
of construction after financial difficulty has stalled a project and liens
have been filed. They include an amendment to eliminate a problem with
circular priorities between the Builders Lien Act and s. 28 of the Property Law
Application of the Builders Lien Act can become complicated if the CRA
issues a requirement to pay (“RTP”) to someone who has holdback obligations
in order to collect a tax liability owed by a party to whom the recipient
of the RTP is indebted. There are tentative recommendations in the consultation
paper to remove duplicate liabilities that can arise in this scenario.
There is a set of tentative recommendations aimed at making it easier
and faster to secure and remove claims of liens from the owner’s title so
they do not impede the flow of construction funds while their merits are
being determined. This is accompanied by another set of tentative recommendations
that would expand the grounds on which improperly filed
claims of lien may be removed. The threshold for removing abusive claims
of lien, which at present is essentially the same high standard for striking
out pleadings, would be lowered. A curative provision that would preserve
claims of lien having minor formal defects would be restored.