The Plaintiff filed a Builders’ Lien against the Defendant’s lands due to a dispute relating to payment. The Plaintiff subsequently filed a Statement of Claim, and a Certificate of Lis Pendens was registered on title. The Defendant applied for Summary Judgment, arguing that the Action was bound to fail because the Statement of Claim was deficient and did not claim Builders’ Lien relief in the customary manner. The Master held that because the Claim was drafted as a debt action and not as a Builders’ Lien action, the Certificate of Lis Pendens and the Lien should be struck from title, but the Claim should not be summarily dismissed. The Plaintiff appealed, arguing that the Statement of Claim adequately pleaded a Builders’ Lien Action.

Germain J. held that the purpose and intention of the Rules, including Rule 1.2, prioritizes resolving the real issues between the Parties. This is reflected in the drafting of the Rules, in that many defects are capable of rectification, provided it occurs without prejudice. Indeed, the Court is less formalistic with respect to the specific form and wording of documents than was the case historically, as demonstrated by Rule 1.2(4), which provides that a remedy or sanction granted by the Court will be proportional to the reason for granting or imposing it.

Germain J. further held that most lawyers have always understood the requirement that some causes of action, such as fraud, must be specifically pleaded. However, in 581257 Alberta Ltd v Augla, 2013 ABCA 16, the Court of Appeal held that it was not absolutely necessary that fraud be pleaded specifically and particularly, provided the Statement of Claim asserted fraudulent conduct which was sufficient to advance a cause of action in fraud.

The Plaintiff’s reluctance to apply to amend the Statement of Claim to incorporate a more traditional Lien drafting approach was puzzling, particularly given that disputes regarding the wording of a Statement of Claim are costly, inefficient, and do not aid in resolving the real issues between the Parties, as required by Rule 1.2(3)(a). However, Germain J. held that it was not strictly necessary that a Statement of Claim include words to indicate that it was brought pursuant to the Builders’ Lien Act, provided that was otherwise clear from the facts pleaded. Although the Statement of Claim was poorly drafted, sufficient facts were pleaded to ground a Builders’ Lien action. In this context, Germain J. allowed the Appeal and directed that the Certificate of Lis Pendens would remain on the title.