1.2: Purpose and intention of these rules
3.8: Originating applications and associated evidence
13.18: Types of affidavit

Case Summary

The Applicant, 1693737 Alberta Inc. (“169”), was the owner and developer of a commercial condominium project, which entered into a construction contract with JDS Projects Ltd. (“JDS”). Before the construction was complete, JDS defaulted, and a number of builders’ liens were registered. An Application was brought under the Builders’ Lien Act, RSA, c B-7, to set the lien fund.

The evidence regarding the extent of completion of the project was not clear, but Master Robertson considered the evidence before the Court in order to avoid the costs of a further hearing. Master Robertson observed that, because the Application was brought by 169, it had the burden of proof, pursuant to Rule 3.8(2), and hearsay evidence was inadmissible, in accordance with Rule 13.18(3). 169 did not present any evidence to challenge JDS’ statement regarding completion of the project, except for a progress inspection report that was not under oath and inadmissible. The only evidence before the Court on the extent of completion was the last invoice, which suggested 85%, and this was the number used to determine the value of the work done. Given that the minimum lien fund was less than the amount left owing on the contract, Master Robertson set the lien fun at the sum left owing on the contract.

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