The Plaintiff applied under s. 48 of the Builder’s Lien Act, RSA 2000, c B-7 (BLA) for the removal of the Defendant’s liens filed on two properties located in Calgary. By Consent Order, Master Mason directed the discharge of the liens upon payment into Court. The Order also provided directions regarding the deadlines to file an Affidavit proving lien and commencement of the Action to enforce the lien claim. The Plaintiff subsequently applied for the return of its security because of the Defendant’s failure to comply with the terms of the Consent Order and the 15 day deadline in the BLA.

The Defendant filed an Application for an extension of time to file an Affidavit proving the lien. The Plaintiff argued that the Defendant lost its lien as a result of failing to file and serve an Affidavit providing particulars of the lien claim. The Defendant argued that, upon granting the Consent Order, all procedural steps thereafter were governed by the Rules of Court and not by the BLA. The Defendant argued further that the Court had the authority to extend time limits set out in procedural Orders, relying upon Rule 13.5(2).

Master Laycock agreed with the Defendant’s submission that, if the Court orders the filing of an Affidavit proving lien, it would be a procedural Order to which the Rules of Court would apply. If the Order was silent as to a Notice to Prove Lien and the Applicant served a Notice to Prove Lien, the BLA would apply and the consequences of not filing an Affidavit would be determined by the BLA.

Master Laycock considered the effect of the particular wording of the Consent Order with respect to the late filing of the Affidavit proving lien and held that, in this case, the Plaintiff and Defendant consented to this matter continuing to be governed by the provisions of the BLA. The Defendant stated that he was not informed by his lawyer about the time limit. When it came to his attention, the Affidavit was filed immediately. The Defendant further deposed that the Plaintiff would not suffer prejudice by an extension of time. The Plaintiff provided no evidence with respect to prejudice. Master Laycock was satisfied with the Defendant’s explanation and the lack of evidence of prejudice suffered by the Plaintiff. An extension of time for filing an Affidavit proving lien was granted.