THE ADVOCATE 397
VOL. 78 PART 3 MAY 2020
try, the Land Title and Survey Authority and several individual correspondents.
One industry association made its submissions by way of a conference
call.
Following the close of the consultation period on January 15, 2020, our
Builders Lien Act Reform Project Committee immediately embarked on a
detailed review of the submissions received and refinement of the recommendations
in light of that body of responses.
The reaction to the consultation paper was generally positive. The proposed
new form for a claim of lien, in particular, was well received. Respondents
thought it would be easier to use than the existing one and that it
would reduce or eliminate common sources of errors and confusion.
Respondents were also in favour of increasing the minimum amount for a
claim of lien, currently set at $200, although opinions varied regarding the
appropriate level. Support for restoration of a curative provision in the Act
to prevent claims of lien from failing because of minor defects, such as misnomers
that do not mislead, was not as strong.
The tentative recommendation to abolish the so-called Shimco lien won
favour with all respondents who commented on it. The Shimco lien is the
lien against the holdback that was held in Shimco Metal Erectors Ltd. v. North
Vancouver (District)1 to exist separately under the Act from the lien on land
and the improvement. No voices were raised in favour of preserving this
anomalous feature of the current Act that was likely unintended by its
drafters.
The tentative recommendations aimed at making it easier to determine
when time starts running under the 45-day countdown to the end of the lien
filing period met largely with approval, as did those designed to facilitate
the flow of construction funds down the contract chain. The latter group of
tentative recommendations included a proposal to address the build-up of
excessively large holdbacks in multi-year projects and the associated
financing cost. This would be done by allowing release of the holdback on
an annual or other periodic basis after the first year of the construction
schedule. A similar mechanism is found in the construction lien legislation
of Saskatchewan, Newfoundland and Labrador, and Ontario.
Under the other provincial regimes, however, the holdback can be
depleted entirely with each periodic release and must be built up again as
the construction schedule progresses. The Project Committee’s proposal
was intended to overcome this issue by permitting monthly release of the
holdback from the progress payment made 12 months earlier, so that 12
months’ worth of holdback funds would be maintained at any point during
the second and subsequent years of the schedule. While there were no