IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Frontier Kemper Constructors, Inc. v. Rio  
Tinto Alcan Inc.,  
2022 BCSC 868  
Date: 20220525  
Docket: S214865  
Registry: Vancouver  
Between:  
Frontier Kemper Constructors, Inc.  
and Aecon Constructors, a Division of Aecon Group Inc.  
and Frontier Kemper – Aecon Joint Venture  
Plaintiffs  
And  
Rio Tinto Alcan Inc., formerly known as  
Alcan Aluminum Limited/Alcan Aluminum Limitee formerly known as  
Aluminum Company of Canada, Limited/Aluminum du Canada, Limitee,  
and Aluminum Company of Canada Limited/Aluminum du Canada Limitée  
Defendants  
Before: The Honourable Justice Lamb  
Reasons for Judgment  
Counsel for the Plaintiffs:  
S.J. Hammel, Q.C.  
T. Green  
Counsel for the Defendants:  
S. Coyle  
G. Trahan  
Place and Dates of Hearing:  
Supplemental Written Submissions:  
Place and Date of Judgment:  
New Westminster, B.C.  
January 12, 13, 2022  
March 17, 31, 2022  
April 5, 2022  
Vancouver, B.C.  
May 25, 2022  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 2  
Introduction  
[1]  
This is an application by the defendants (“Rio Tinto”) for an order to cancel a  
claim of lien (the “Lien”) in the amount of $96,941,540.96 (the “Lien Amount”). The  
Lien was filed by the plaintiffs (“FKA”) for alleged unpaid fees in respect of a  
tunneling project for the Kemano power generating station owned by Rio Tinto.  
[2]  
Although the Lien is sizeable and the tunneling project complex, the issues on  
this application are clearly defined.  
[3]  
The first issue is whether the Lien should be cancelled because it is  
extinguished for being filed out of time.  
[4]  
Rio Tinto says the running of time for filing a lien was triggered when it  
purported to terminate the head contract with FKA, even though Rio Tinto  
acknowledges that the validity of the termination remains a live issue that cannot  
and should not be decided on this interlocutory application.  
[5]  
If the time limit for filing a lien was triggered, then Rio Tinto says the Lien was  
filed out of time because FKA failed to file it electronically on the Saturday on which  
the 45-day deadline fell. To decide this issue, I must determine whether the land title  
office is “open” if a lien can be filed electronically on a Saturday.  
[6]  
If the Lien is not cancelled for being filed out of time, Rio Tinto argues that the  
Lien should be cancelled on the basis that it does not relate to the Terminal B lands,  
one of the parcels of land against which it is filed. Rio Tinto concedes that FKA  
worked on an improvement on the Terminal B lands; however, it says the  
improvement was not “necessary and integral” to the project as a whole and does  
not entitle FKA to lien the Terminal B lands.  
[7]  
If the Lien is not cancelled, then Rio Tinto seeks an order for the discharge of  
the Lien upon the posting of security. Rio Tinto asks the court to order security for  
less than the Lien Amount. Alternatively, it seeks to apportion the Lien Amount  
among the various properties subject to the Lien and to order the posting of a  
proportionate amount as security to remove the Lien from the Terminal B lands.  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 3  
[8] This matter was heard on January 12 and 13, 2022. On March 1, 2022,  
before this application was decided, the Court of Appeal issued reasons in JVD  
Installations Inc. v. Skookum Creek Power Partnership, 2022 BCCA 81 [JVD  
Appeal], an appeal overturning a trial decision that found a valid claim of lien by a  
subcontractor against land on which it had performed no work. The parties in the  
case at bar had referred to the trial decision in their submissions. Consequently, I  
invited and received supplementary written submissions regarding the significance  
of JVD Appeal.  
Background  
[9]  
Rio Tinto is the owner, developer and operator of the Kemano power  
generating station, a hydropower facility located approximately 75 km southeast of  
Kitimat, B.C. (the “Primary Project Site”). The Kemano power generating station was  
developed to generate power for the Rio Tinto aluminum smelter in Kitimat, B.C. The  
water used to power the Kemano power generating station is supplied from the  
Nechako reservoir through a 16 km water transportation tunnel constructed in the  
1950s.  
[10] The Kemano T2 Project involves the construction of a second 16 km tunnel  
from the Nechako reservoir to the Kemano power generating station. Phase 1 of the  
T2 Project involved construction of interconnects between the existing penstocks of  
the T1 tunnel. Phase 2 of the T2 Project, at issue in this action, involves the  
excavation of approximately 7.6 km of new tunnel at the Primary Project Site and the  
refurbishment of approximately 8.4 km of existing tunnel that was partially  
constructed in the 1990s (the “Project”).  
[11] On or about August 8, 2017, FKA and Rio Tinto entered into Main  
Construction Work Contract No. CC0003 (the “Contract”) for the construction of the  
Project. The Contract included excavation of the new tunnel and refurbishment of  
the existing tunnel, associated tie-in works, and associated infrastructure  
(collectively, the “Work”).  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 4  
[12] The Primary Project Site is located in an isolated part of the province, not  
accessible by vehicle. Most of the labour, equipment and materials for the Project  
were transported more than 100 km by barge or boat from Kitimat, B.C. to the  
Primary Project Site. The infrastructure part of the Work included the development  
and rehabilitation of laydown areas and loading docks at Terminal B, a Rio Tinto-  
owned facility in south Kitimat, B.C. The laydown areas and loading docks were  
used to load and unload equipment and materials for the Project. Rio Tinto  
acknowledges that the laydown areas and loading docks constitute an  
“improvement” on the Terminal B lands for purposes of s. 1 of the Builders Lien Act,  
S.B.C. 1997, c. 45 [BLA].  
[13] On April 2, 2020, Rio Tinto’s representative sent notice to FKA that its  
“cessation of production and workforce reduction” was a breach of a general  
condition of the Contract (the “Default Notice”). Rio Tinto advised FKA that it was  
“required to remedy this breach”.  
[14] On April 21, 2020, Rio Tinto sent notice to FKA that it was terminating the  
Contract effective immediately (the “Termination Notice”). As the Termination Notice  
was delivered after 5:00 p.m., it was deemed to have been received the following  
day according to the Contract.  
[15] On April 22, 2020, FKA acknowledged receipt of the Termination Notice but  
disputed that the Contract was validly terminated. As noted, Rio Tinto concedes that  
the validity of the termination cannot be resolved on this interlocutory application and  
must be tried at a later date.  
[16] On Monday, June 8, 2020, FKA filed the Lien against 14 properties owned by  
Rio Tinto, including the Terminal B lands. The Lien Amount includes a claim for work  
and materials and at least a small amount in respect of improvements on the  
Terminal B lands.  
[17] On September 21, 2020, FKA filed a notice of civil claim to enforce the Lien,  
recover amounts allegedly owing under the Contract, and obtain damages for Rio  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 5  
Tinto’s alleged breaches of the Contract and its obligations of good faith and fair  
dealing.  
[18] On January 8, 2021, Rio Tinto filed a response to civil claim denying FKA’s  
claims and denying the validity of the Lien. Rio Tinto brought a counterclaim on the  
same date seeking damages for additional costs allegedly incurred as a result of  
FKA’s breaches of the Contract, duty of care, and obligations of good faith and fair  
dealing.  
[19] At the time of this application, the parties have not exchanged documents nor  
conducted examinations for discovery. No trial date is scheduled.  
Issues  
[20] To summarize, the following are the issues to be decided on this application:  
1) Should the Lien be cancelled because it was filed out of time?  
a. Was the running of time triggered when Rio Tinto sent the  
Termination Notice on April 21, 2020?  
b. If so, did the time for filing the Lien expire on Saturday, June 6,  
2020?  
2) Should the Lien be cancelled because it does not relate to the Terminal B  
lands?  
3) If the Lien is not cancelled, then what security should be posted to  
discharge it?  
Legislative framework  
[21] Builders liens are creatures of statute. The BLA is the source of the rights and  
remedies available to the parties in these circumstances.  
[22] Section 2(1) of the BLA prescribes a contractor’s entitlement to a lien:  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 6  
2 (1) Subject to this Act, a contractor, subcontractor or worker who, in  
relation to an improvement,  
(a) performs or provides work,  
(b) supplies material, or  
(c) does any combination of those things referred to in  
paragraphs (a) and (b)  
has a lien for the price of the work and material, to the extent that the price  
remains unpaid, on all of the following:  
(d) the interest of the owner in the improvement;  
(e) the improvement itself;  
(f) the land in, on or under which the improvement is located;  
(g) the material delivered to or placed on the land.  
[23] An “improvement” is defined in s. 1 of the BLA to include “anything made,  
constructed, erected, built, altered, repaired or added to, in, on or under land, and  
attached to it or intended to become a part of it, and also includes any clearing,  
excavating, digging, drilling, tunnelling, filling, grading or ditching of, in, on or under  
land”.  
[24] Rio Tinto applies on a summary basis to remove the Lien pursuant to s. 25 of  
the BLA or to cancel it pursuant to s. 24 of the BLA.  
[25] Section 25 of the BLA prescribes the court’s authority to remove a claim of  
lien to certain limited circumstances:  
25 (1) An owner, contractor, subcontractor, lien claimant or agent of any of  
them may at any time apply to the court, registrar or gold commissioner and  
the court, registrar or gold commissioner may cancel a claim of lien if satisfied  
that  
(a) a lien is extinguished under section 22 or 33,  
(b) an action to enforce the claim of lien has been dismissed  
and no appeal from the dismissal has been taken within the  
time limited for the appeal,  
(c) an action to enforce the claim of lien has been  
discontinued, or  
(d) the claim of lien has been satisfied.  
(2) An owner, contractor, subcontractor, lien claimant or agent of any of them  
may at any time apply to the court and the court may cancel a claim of lien if  
satisfied that  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 7  
(a) the claim of lien does not relate to the land against which it  
is filed, or  
(b) the claim of lien is vexatious, frivolous or an abuse of  
process.  
…
[26] Rio Tinto relies on s. 25(1)(a) or alternatively s. 25(2)(a) as a basis to remove  
the Lien. Rio Tinto abandoned its application pursuant to s. 25(2)(b).  
[27] At para. 3 of West Fraser Mills Ltd. v. BKB Construction Inc., 2012 BCCA 89  
[West Fraser], the Court of Appeal emphasized that s. 25 provides limited scope for  
the summary disposition of liens. In particular, the validity of the Lien itself is not in  
issue on an application pursuant to s. 25 of the BLA: West Fraser, para. 18. The  
question under s. 25 is whether a lien is defective (or has lapsed) for any of the  
reasons specified in s. 25(1) or s. 25(2)(a): West Fraser at para. 19.  
[28] A lien is extinguished and may be cancelled under s. 25(1)(a) of the BLA if it  
is not filed in time pursuant to s. 22 of the BLA, which reads as follows:  
22 A lien in respect of which a claim of lien is not filed in the manner and  
within the time provided in this Act is extinguished.  
[29] Section 20 of the BLA prescribes the time limit for filing a claim of lien. Rio  
Tinto relies on s. 20(2) of the BLA to argue that the running of time was triggered by  
delivery of the Termination Notice on April 22, 2020:  
20 (2) A claim of lien that is not governed by subsection (1) may be filed no  
later than 45 days after  
(a) the head contract has been completed, abandoned or  
terminated, if the owner engaged a head contractor, or  
(b) the improvement has been completed or abandoned, if  
paragraph (a) does not apply.  
[Emphasis added.]  
[30] If the Lien is not removed pursuant to s. 25, then Rio Tinto seeks an order  
pursuant to s. 24 to cancel the Lien by posting security:  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 8  
24 (1) A person against whose land a claim of lien has been filed, and a  
contractor, subcontractor or any other person liable on a contract or  
subcontract in connection with an improvement on the land, may apply to a  
court to have the claim of lien cancelled on giving sufficient security for the  
payment of the claim.  
(2) The court hearing the application under subsection (1) may, after  
considering all relevant circumstances, order the cancellation of the claim of  
lien on the giving of security satisfactory to the court.  
(3) The value of the security required under an order under subsection (2)  
may be less than the amount of the claim of lien.  
(4) The registrar or gold commissioner in whose office a claim of lien is filed  
must, on receiving an order or certified copy of the order made under  
subsection (2), file it and cancel the claim of lien as to the property affected  
by the order.  
(5) The giving of security for the payment of a claim of lien under  
subsection (1) does not make the owner liable for a greater sum than  
provided for in section 34.  
[31] Rio Tinto relies upon s. 16(2) to say that the Lien Amount should be  
apportioned across the 14 parcels of land against which the Lien is filed:  
16 (1)If an owner enters into a single contract for improvements on more  
than one parcel of land, a lien claimant providing work or material under that  
contract, or under a subcontract under that contract, may choose to have the  
lien follow the form of the contract and be a lien against each parcel for the  
price of all work and material provided to all of the parcels of land.  
(2)If a lien is claimed under subsection (1) against several parcels of land, on  
application to the court by any person with an interest in or charge on the  
land, the court may apportion the lien among the parcels for the purpose of  
determining the lien claimant's rights as against persons having rights in  
particular parcels.  
Issue 1: Should the Lien be cancelled because it was filed out of time?  
a.  
Was the running of time triggered when Rio Tinto purportedly  
terminated the Contract on April 21, 2020?  
[32] A lien may be cancelled under s. 25(1)(a) of the BLA if it is extinguished for  
being filed out of time.  
[33] The first question is whether the time limit for filing a lien was triggered in this  
case.  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 9  
[34] Rio Tinto relies only on the trigger found in s. 20(2)(a) of the BLA, which  
provides that a lien must be filed no later than 45 days after “the head contract has  
been … terminated”. The parties agree that the Contract between Rio Tinto and FKA  
is a “head contract” for the purposes of s. 20(2)(a). The key issue is whether the  
Contract has been “terminated” pursuant to s. 20(2)(a) of the BLA.  
[35] Rio Tinto says that the Contract was “terminated” for the purposes of  
s. 20(2)(a) when it followed the steps outlined in the termination provisions of the  
Contract. It relies on its delivery of the Default Notice and Termination Notice.  
However, it concedes that the question of whether it validly terminated the Contract  
remains a live issue to be tried at a later date.  
[36] FKA says that Rio Tinto’s concession (that the validity of the Contract  
termination cannot be decided on this interlocutory application) means that Rio Tinto  
cannot clearly establish that the time limit for filing a claim of lien started to run with  
delivery of the Termination Notice.  
[37] In essence, I must decide whether, on a proper interpretation of s. 20(2), the  
Contract may be “terminated” for purposes of triggering the time limit for filing a lien  
even if the validity of the purported termination remains a disputed issue in the  
litigation.  
[38] “Terminated” is not defined in the BLA, and the parties did not identify any  
case authorities considering its meaning.  
[39] The principles of statutory interpretation are well-established and have been  
applied to the BLA. The Court of Appeal confirmed at para. 28 to 34 of Iberdrola  
Energy Projects Canada Corporation v. Factory Sales & Engineering Inc., d.b.a.  
FSE Energy, 2018 BCCA 272 [Iberdrola] that the BLA must be interpreted using  
Elmer Driedger’s modern rule of statutory interpretation and quoted from Rizzo &  
Rizzo Shoes Ltd. (Re) (1998), [1998] 1 S.C.R. 27, 1998 CanLII 837 (SCC), at  
para. 21:  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 10  
Today there is only one principle or approach, namely, the words of an Act  
are to be read in their entire context and in their grammatical and ordinary  
sense harmoniously with the scheme of the Act, the object of the Act, and the  
intention of Parliament.  
[40] Section 8 of British Columbia’s Interpretation Act, R.S.B.C. 1996, c. 238  
[Interpretation Act], mirrors this wording: “Every enactment must be construed as  
being remedial, and must be given such fair, large, and liberal construction and  
interpretation as best ensures the attainment of its objects”.  
[41] At para. 34 of the JVD Appeal, with reference to Iberdrola, the Court of  
Appeal confirmed that the “modern rule of purposive construction is to be used in  
interpreting the Builders Lien Act”.  
[42] At paras. 60 and 61 of Bank of Montreal v. Peri Formwork Systems Inc., 2012  
BCCA 4 [Peri], the Court of Appeal identified the following purposes of the BLA:  
1) To ensure that contractors and workers are paid for materials provided and  
services rendered; and  
2) To bring commercial certainty to construction projects affected by the  
legislation.  
[43] In Peri, the Court of Appeal also identified fairness to all stakeholders in the  
construction industry as a factor to consider (para. 62).  
[44] At para. 40 of JVD Appeal, the Court of Appeal identified the purposes of the  
BLA as “providing security for contractors, subcontractors, workers and material  
suppliers who contribute to improvements to land”. When interpreting the BLA, the  
Court must consider how the Act balances the interests of various players in the  
construction industry, recognizing that security by way of a lien is given at the  
expense of the landowner: JVD Appeal, para. 40.  
[45] In Centura Building Systems (2013) Ltd. v. 601 Main Partnership, 2018 BCCA  
172 [Centura], the Court of Appeal commented on the objective of the BLA:  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
[19] In general, the objective of builders lien legislation is to prevent the  
Page 11  
owners of land from obtaining the benefit of improvements and work done on  
their land without paying for them by giving security to lien claimants.  
The Act balances this policy against the rights of owners by providing a  
mechanism to discharge a lien upon the payment of sufficient security (s. 24),  
or to cancel a claim of lien where the claim is defective, vexatious, frivolous or  
an abuse of process (s. 25).  
[46] In order to determine whether the time limit is triggered in this case, I must  
apply these principles of statutory interpretation to the word “terminated” in  
s. 20(2)(a) by giving the term its ordinary meaning while considering the context and  
purpose of the BLA.  
[47] On this application, Rio Tinto argues that the Default Notice and Termination  
Notice were delivered in accordance with the termination provisions of the Contract,  
resulting in “termination” for the purposes of the BLA. However, FKA specifically  
pleads in para. 96 of the notice of civil claim that Rio Tinto’s purported termination  
failed to comply with Contract requirements—in essence, that Rio Tinto did not  
effectively “terminate” the Contract by delivering the Termination Notice.  
[48] While s. 20(2)(a) does not include “validly” before “terminated”, giving the  
words their ordinary meaning, it seems to me that either the Contract has been  
terminated or it has not. On a plain reading of s. 20(2)(a), a purported termination by  
Rio Tinto that FKA has not accepted would not meet the “has been … terminated”  
standard required to trigger the time limit for filing a lien. It would be inconsistent with  
the BLA’s objective of bringing certainty to the construction industry if a head  
contract could be “terminated” for the purpose of deciding whether a lien was filed in  
time when a court might later decide that it was not in fact terminated for other  
purposes.  
[49] Rio Tinto acknowledged that there is no judicial precedent for finding  
termination for the purposes of s. 20(2)(a) of the BLA when one party does not agree  
that the head contract has been validly terminated. However, in support of its  
position, Rio Tinto relies upon Alexander Construction Ltd. v. Al-Zaibak, 2011 BCSC  
590 [Alexander], the only case in which the court applied s. 20(2)(a) to find the time  
limit for filing a lien triggered because the contract had been terminated. Rio Tinto  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 12  
relies on Alexander for the proposition that the Contract is “terminated” for the  
purposes of s. 20(2)(a) as long as Rio Tinto followed the termination provisions in  
the Contract. In my view, Alexander is distinguishable from the case at bar.  
[50] In Alexander, the defendant homeowner applied to strike the general  
contractor’s lien on the basis that it was filed out of time. The parties agreed that the  
contract between them had been terminated, but they disagreed on the date of  
termination.  
[51] At para. 28 of Alexander, Justice Morrison framed the issue to be decided in  
that case:  
The Builders Lien Act does not provide statutory definitions for either  
termination or contract. Therefore, in order to determine when the contract  
was terminated it is necessary to determine, whether, for the purposes of  
the Builders Lien Act, the contract may only be terminated through the formal  
procedure envisioned by the provisions of the written contract or whether it  
may be terminated in a more informal manner.  
[52] In Alexander, the contract included provisions that allowed the homeowner to  
give written notice to the general contractor that the latter was in default and needed  
to correct the default within five working days. If the general contractor failed to  
correct the default, then the homeowner was entitled to terminate the contract. The  
homeowner had not provided written notice in accordance with the contract on either  
of the dates he asserted the contract had been terminated. As a result, Morrison J.  
found that the contract was not terminated until the general contractor satisfied the  
contractual terms that allowed him to terminate the contract.  
[53] In Alexander, Morrison J. found as a fact that the general contractor had  
validly terminated the contract in accordance with the terms of the contract on a  
certain date, which in turn triggered the start of the time limit for filing a claim of lien.  
On this interlocutory application, I am not asked, nor am I in a position to decide, the  
validity of Rio Tinto’s purported termination of the Contract.  
[54] As part of her analysis, Morrison J. rejected one of the termination dates  
proposed by the homeowner on the basis that the general contractor had, similarly  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 13  
to FKA in the case at bar, explicitly rejected the homeowner’s purported termination  
at that time. This analysis supports FKA’s position that purported termination by one  
party does not constitute “termination” for purposes of s. 20(2)(a).  
[55] In Alexander, both parties acknowledged that the contract had been  
terminated, but they disagreed on the effective date of termination. To determine  
when the time limit for filing a lien was triggered, the court determined when the  
contract was validly terminated in accordance with its terms. That issue is not before  
me on this application.  
[56] I am cautious about relying on Alexander because it was decided prior to  
West Fraser. Following West Fraser, there is some doubt as to whether it would be  
appropriate on a s. 25 application to make such extensive findings of fact based on  
untested affidavits: West Fraser at paras. 24-30.  
[57] Even if it were possible for Rio Tinto to terminate the Contract for purposes of  
s. 20(2)(a) of the BLA when the validity of the termination remains undetermined, a  
brief review of the “facts” relied upon by Rio Tinto to establish that it met the  
s. 20(2)(a) standard for termination demonstrates the flaws in its position.  
[58] On April 2, 2020, Rio Tinto issued the Default Notice pursuant to GC  
20.1(a)(i) of the Contract, which provides that if FKA breaches the Contract then Rio  
Tinto may issue a default notice requiring FKA to remedy the breach. In other words,  
Rio Tinto’s reliance on GC 20.1(a)(i) is predicated upon FKA’s breach of the  
Contract.  
[59] Rio Tinto then issued the Termination Notice on April 22, 2020, in reliance on  
GC 20.1(b), which allows Rio Tinto to terminate the Contract if FKA fails to remedy  
its breach, fails to provide assurance within ten working days that the breach would  
be remedied within a reasonable period of time, or fails to remedy the breach within  
a reasonable time after providing such assurances. GC 20.1(b) allows Rio Tinto to  
terminate if FKA fails to remedy or take steps to remedy FKA’s breach of the  
Contract.  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 14  
[60] Rio Tinto could only deliver the Default Notice and Termination Notice in  
accordance with the termination provisions of the Contract if FKA breached the  
Contract prior to April 2, 2020. Whether or not FKA breached the Contract and then  
failed to adequately remediate such a breach goes to the heart of the dispute  
between the parties and would require findings of fact that go far beyond the “limited  
scope” afforded under s. 25 of the BLA: West Fraser, para. 3.  
[61] In other words, even if Rio Tinto could trigger the time limit for filing a lien  
prescribed by s. 20(2)(a) of the BLA by complying with the termination provisions of  
the Contract, I am not able to find that Rio Tinto’s delivery of the Default Notice and  
Termination Notice met that threshold.  
[62] Rio Tinto asserts that if FKA’s position on termination is accepted, then this  
will render “termination” under s. 20(2)(a) of the BLA meaningless and result in  
uncertainty. This assertion overstates the case. The time for filing a lien may be  
triggered by termination of the head contract:  
(a) where the parties agree that the contract between them was terminated,  
as in Alexander;  
(b) in circumstances where one party expressly accepts the other party’s  
election to terminate, as in R.N. Tanner Const. Ltd. v. K-west Estates Ltd.  
(1986), 1 B.C.L.R. (2d) 59, 1986 CanLII 993 (BCCA); or  
(c) the head contract allows one party to terminate unilaterally on written  
notice, which has been provided.  
[63] There may be other circumstances where termination of the head contract  
can be decided on a summary basis. In any event, I am satisfied that the outcome in  
this case does not render meaningless the “termination” branch of s. 20(2)(a).  
[64] Even in the case at bar, Contract term GC 20.3 gave Rio Tinto absolute  
discretion to terminate the Contract by giving 15 working days notice to FKA. Had  
Rio Tinto chosen to terminate the Contract pursuant to GC 20.3, then the time limit  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 15  
prescribed by s. 20(2)(a) of the BLA would have been triggered. However,  
termination pursuant to GC 20.3 would have imposed certain financial obligations on  
Rio Tinto, which may explain why it chose to rely on GC 20.1 instead.  
[65] In this case, I find that the time limit under s. 20(2)(a) was not triggered by Rio  
Tinto’s purported termination of the Contract through delivery of the Termination  
Notice on April 22, 2020.  
[66] In the event that I am wrong on this point and the running of time was  
triggered by the Default Notice, I will consider whether the Lien was filed no later  
than 45 days after April 22, 2020 as required by the BLA.  
b. If the time limit for filing the Lien was triggered, was the Lien  
filed out of time?  
[67] The court may cancel a lien if it is extinguished under s. 22 of the BLA,  
pursuant to s. 25(1)(a). A lien is extinguished if it is not filed in the manner and within  
the time prescribed by the BLA, which is 45 days after the head contract has been  
terminated: BLA, ss. 22, 20(2)(a).  
[68] If the Contract was terminated on April 22, 2020 for purposes of the BLA, then  
the parties agree that the 45-day time limit prescribed by s. 20(2)(a) would have  
ended on Saturday, June 6, 2020. The Lien was filed electronically by FKA through  
myLTSA, the Land Title and Survey Authority’s online database and electronic filing  
system, on Monday, June 8, 2020. The question is whether the Lien was filed in the  
manner and within the time prescribed by the BLA.  
[69] Rio Tinto says that the Lien ought to have been filed on Saturday, June 6,  
2020: All counsel were required to file liens electronically through myLTSA, and  
myLTSA accepted electronic filings on Saturdays. Rio Tinto notes that the Lien was  
actually filed by FKA’s counsel through myLTSA on Monday, June 8, 2020.  
[70] Rio Tinto says that the time limits prescribed by the BLA are strictly enforced  
to provide certainty within the construction industry, and the court has no authority to  
extend the filing deadline.  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 16  
[71] FKA relies on s. 25(4) of the Interpretation Act, to interpret the time limit  
prescribed by s. 20(2)(a) of the BLA, resulting in a deadline of Monday, June 8, 2020  
for filing the Lien. Rio Tinto says that FKA cannot use the Interpretation Act to  
extend the time for filing.  
[72] In order to determine whether the Lien was filed in time, it is necessary to  
consider the filing provisions in the BLA and other relevant procedural and  
substantive legislative provisions.  
[73] A claim of lien is made by filing the proper form in the land title office: BLA,  
s. 15(1).  
[74] Pursuant to the authority granted in s. 168.22 of the Land Title Act, R.S.B.C.  
1996, c. 250, the Director of Land Titles has directed that a builders lien must be  
filed electronically subject to certain exemptions: see Land Title and Survey  
Authority of British Columbia, Director of Land Titles Directions, “E-filing Directions”  
(Version 1.3, effective November 24, 2020) (the “E-filing Directions”). One exemption  
is that a lien claimant may file a Claim of Builders Lien Form in person or by mail at  
the land title office: E-filing Directions, s. 6.2.1 (“Exemptions from requirement to  
submit electronically”).  
[75] A claim of lien filed by a lawyer must be submitted electronically through  
myLTSA: Dirk H. Laudan, J. Marc MacEwing & David T. Mckenzie, eds, British  
Columbia Builders Liens Practice Manual, (Vancouver: CLEBC, 2000) (loose-leaf  
updated 2021) at s. 2.8. In other words, a lawyer must file a lien electronically, but a  
lien claimant may file a lien in-person or by mail.  
[76] Rio Tinto raised an issue about whether in-person filings were available as of  
June 2020 based on evidence that the land title office restricted access to staff only  
starting March 19, 2020, due to the COVID-19 pandemic. However, there was no  
evidence that this restriction on in-person attendance continued until June 2020.  
Other evidence suggested that land title offices remained open to registry agents  
who could deliver builders lien applications for filing. I am not able to conclude that  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 17  
the exemption for in-person filings by lien claimants was unavailable as of June  
2020.  
[77] As a reminder, section 20(2)(a) of the BLA provides as follows:  
20 (2) A claim of lien that is not governed by subsection (1) may be filed no  
later than 45 days after  
(a) the head contract has been completed, abandoned or  
terminated, if the owner engaged a head contractor…  
[Emphasis added.]  
[78] Rio Tinto submits that FKA cannot rely on the Interpretation Act to extend the  
clear 45-day deadline prescribed by the BLA. However, it is the Interpretation Act  
that prescribes the proper method for determining when the filing deadline expires.  
Both parties agree that the 45-day filing deadline falls on June 6, 2020. That date is  
derived by applying s. 25.2 and s. 25 of the Interpretation Act:  
25.2 (2) Subject to subsection (3), the beginning or end of a period of one day  
or consecutive days or of one week or consecutive weeks, expressed in  
relation to a reference day, is to be determined as follows:  
(a) if the reference day is before the period, by counting  
forward from and including the day after the reference day;  
(b) if the reference day is after the period, by counting  
backward from and including the day before the reference day.  
[79] Section 25 of the Interpretation Act sets out the general rules for determining  
beginning or end of periods of time:  
25 (1) In sections 25.2 to 25.4, "reference day" means any of the following by  
reference to which the beginning or end of a period of time must be  
determined:  
(a) a specified or implied day;  
(b) a day on which a specified or implied event or act occurs;  
(c) a day on which a different period begins or ends.  
[80] In this case, if the contract was terminated on April 22, 2020 (the reference  
day for purposes of calculating time), then the 45-day period for filing a claim of lien  
would have started on and included April 23, 2020 and ended on Saturday, June 6,  
2020: Interpretation Act, ss. 25.2(2)(a), 25(1).  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 18  
[81] Section 25(4)(a) of the Interpretation Act extends the filing deadline to the  
next day the office is open during regular business hours if the period for filing a  
claim of lien “in a business office” ends on a day when “the office is not open during  
regular business hours”:  
(4) A period for doing an act in a business office that is determined under  
section 25.2, 25.3 or 25.4 to begin or end on a day on which the office is not  
open during regular business hours begins or ends, as the case may be, as  
follows:  
(a) on the next day the office is open during its regular  
business hours, unless paragraph (b) applies;  
(b) on the previous day the office is open during its regular  
business hours if  
(i) the office is regularly closed on the day the  
period is determined under the applicable  
section to begin or end, and  
(ii) the reference day is after the period.  
[82] The key question for determining the deadline for filing in this case is whether  
the “business office” referenced in the Interpretation Act is the land title office or  
myLTSA. The deadline would be extended to Monday, June 8, 2020 if the “business  
office” was the land title office, which was closed on Saturday, June 6, 2020. On the  
other hand, myLTSA was accessible and accepted applications for lien claims  
between 6:00 a.m. and 11:00 p.m. from Monday to Saturday; it was in essence  
“open” on Saturday, June 6, 2020.  
[83] Clearly it would have been possible for FKA’s counsel to submit a claim of  
lien electronically on its behalf on Saturday, June 6, 2020. The key question,  
however, was whether FKA was required to do so in order to meet the 45-day  
deadline prescribed by s. 20(2)(a) of the BLA.  
[84] I am satisfied that the answer to that question is found in s. 15 of BLA, which  
says that a claim of lien “is made by filing in the land title office”. While the Director  
of Land Titles prescribed a process for filing the claim of lien (i.e. electronically  
unless filed in person or by mail by the lien applicant), the “business office” where  
the claim of lien is filed is the land title office. The regular business hours of the land  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 19  
title office are from Monday to Friday. The land title office itself is closed on  
Saturdays, even though it is possible to submit a claim of lien electronically.  
[85] If the “business office” is interpreted to mean myLTSA, there would potentially  
be a different deadline for those who file lien claims electronically with the assistance  
of counsel and lien claimants who file by mail or in person. In this case, for example,  
if myLTSA was the “business office” for purposes of s. 25(4) of the Interpretation Act,  
then the deadline would be Saturday, June 6, 2020 if FKA filed their claim through  
counsel and Monday, June 8, 2020 if FKA filed in person. This inconsistency would  
be contrary to the commercial certainty objective that underlies the BLA.  
[86] In summary, I find that even if the time period for filing the Lien was triggered  
by termination of the Contract on April 22, 2020, the Lien was filed in time.  
Issue 2: Should the Lien be cancelled on the basis that it does not relate  
to the Terminal B lands?  
[87] Section 25(2)(a) of the BLA allows the Court to cancel a claim of lien if the  
claim of lien does not relate to the land against which it is filed.  
[88] Section 2 of the BLA allows:  
2 (1) Subject to this Act, a contractor, subcontractor or worker who, in relation  
to an improvement,  
(a) performs or provides work,  
(b) supplies material, or  
(c) does any combination of those things referred to in  
paragraphs (a) and (b)  
has a lien for the price of the work and material, to the extent that the  
price remains unpaid, on all of the following:  
(d) the interest of the owner in the improvement;  
(e) the improvement itself;  
(f) the land in, on or under which the improvement is located;  
(g) the material delivered to or placed on the land.  
[Emphasis added.]  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 20  
[89] Rio Tinto acknowledges that the infrastructure part of the Work, including the  
development and rehabilitation of laydown areas and loading docks at Terminal B,  
constituted an “improvement” as defined in s. 1 of the BLA. As a consequence, in  
accordance with s. 2(1)(f) of the BLA, FKA is entitled to a lien on the Terminal B  
lands for the price of work and material to the extent that the price remains unpaid.  
Rio Tinto acknowledges that there may be some small amount owing for the  
improvement made to the Terminal B lands. In my view, that ends the limited scope  
of review afforded under s. 25(2)(a): West Fraser, para. 3. I am not prepared to  
strike the Lien as against the Terminal B lands pursuant to s. 25(2)(a).  
[90] In its original submissions, Rio Tinto argued that the Lien against the Terminal  
B lands must be struck on the basis that infrastructure work at the Terminal B lands  
was not “integral and necessary” to the tunnelling work done at the Primary Project  
Site, nor are the improvements at the two locations wholly interdependent. Rio Tinto  
relied on JVD Installations Inc. v. Skookum Creek Power Partnership, 2020 BCSC  
374 [JVD Trial]; Northern Thunderbird Air v. Royal Oak & Kemess Mines, 2002  
BCCA 58; and Boomars Plumbing & Heating Ltd. v. Marogna Bros. Ent. Ltd. (1988),  
27 B.C.L.R. (2d) 305, 1988 CanLII 2870 (BCCA) [Boomars] in support of its position.  
In its further written submissions, Rio Tinto relies on JVD Appeal and two trial  
decisions cited in JVD Trial: Prairie Roadbuilders Ltd. v. Stettler (County No. 23)  
(1983), 1983 CanLII 1085, 2 C.L.R. 164 (ABQB) [Prairie Roadbuilders] and Pedre  
Contractors Ltd. v. 2725312 Canada Inc. and 360 Fibre Ltd., 2004 BCSC 1112  
[Pedre].  
[91] The cases cited by Rio Tinto do not apply as they do not involve situations  
where the lienholder was owed money for work performed on an improvement on  
the liened land.  
[92] For example, in JVD Trial, the lienholder worked on the part of the  
hydroelectric project located on unlienable Crown land but did not work on the land  
against which the lien was filed. The trial judge determined the lien was validly filed  
against lands improved by other contractors, even though the lienholder did not work  
directly on those lands, because the lienholder’s work was “integral and necessary”  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 21  
to a single integrated improvement that touched the liened land. In JVD Appeal, the  
Court of Appeal found that the lienholder’s lien was not valid for two reasons:  
(a) The lienholder did not work on the improvement on the liened land;  
(b) There was no suggestion that the project’s owners failed to pay for work  
on the liened land.  
[93] Unlike the situation in JVD Appeal, in this case, FKA worked on an  
improvement on the Terminal B lands and Rio Tinto failed to pay for work on the  
Terminal B lands. JVD Appeal does not assist Rio Tinto.  
[94] In Prairie Roadbuilders and Pedre, the courts recognized that liens were valid  
in circumstances where the lienholder provided no work on the liened land but the  
project was considered a “single improvement” as the work done by the lienholder  
on unlienable land was integral to the entire project. Again, these cases are not  
relevant to the issue I must decide, as FKA worked on the Terminal B lands.  
[95] In Boomars, the lienholder filed a claim of lien against lands on which it  
constructed a motel and sought to include the value of work done to install a sewage  
pump on unlienable municipal lands. The trial judge concluded that the lienholder  
was not entitled to include in its claim of lien the value of work done and materials  
delivered to municipal lands because the sewage pump was not part of the  
improvement to the motel land, and the sewage pump and motel were not “wholly  
interdependent”: Boomars at 28 (cited in JVD Appeal). The Court of Appeal agreed  
with the trial judge’s finding that the lien claim could not include the cost of work and  
materials supplied for an improvement off the liened lands; however, the Court of  
Appeal did not rely on the concept of “interdependence”: Boomars at 28; JVD  
Appeal at para. 48.  
[96] In my view, Boomars did not establish a requirement for interdependence  
between work done on different parcels of land before a lien could attach to more  
than one parcel. Section 16(1) of the BLA specifically authorizes the filing of one lien  
pertaining to multiple parcels of land in certain circumstances. In this case, the  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 22  
Contract was a single contract for improvements on 14 parcels of land. As a result,  
section 16(1) authorizes FKA to file a single lien against the 14 parcels “for the price  
of all work and material provided to all of the parcels of land”. There is no need to  
establish “interdependence” when s. 16(1) authorizes one lien.  
[97] Rio Tinto seeks to impose an additional requirement to the threshold clearly  
prescribed by s. 2 of the BLA, and by doing so ignores s. 16(1). I am not convinced  
that it would be appropriate to consider the degree of interdependence and whether  
the improvement on the Terminal B lands is “necessary and integral” to the Primary  
Project Site when the Lien meets the requirements of s. 2 and s. 16(1).  
Issue 3: what amount of security should be posted to cancel the claim  
of lien?  
[98] Rio Tinto relies on s. 24 of the BLA in support of its application to reduce the  
amount of security to be posted. Alternatively, Rio Tinto relies on s. 16(2) of the BLA  
in support of its position that the amount of security should be apportioned among  
the 14 properties liened. I will address the arguments in turn.  
Security pursuant to s. 24  
[99] Rio Tinto says that I ought to exercise my discretion found in s. 24 of the BLA  
to order security less than the full Lien Amount. Rio Tinto points to evidence that the  
value of the improvements on the Terminal B lands is small compared to the Lien  
Amount, that any amount owing in respect of work done on Terminal B lands is  
minimal, and that the value of the other liened lands is adequate to satisfy FKA’s lien  
claim.  
[100] FKA says that Rio Tinto fails to meet the heavy onus on it to justify reduction  
of the security to be posted. According to FKA, Rio Tinto has not argued, let alone  
established, that FKA’s lien claim or any part of it is bound to fail. Rio Tinto has not  
demonstrated what amount of security would be appropriate but instead focused on  
the value of the other lands liened – an irrelevant factor in setting the amount of  
security to be posted.  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 23  
[101] Section 24 of the BLA provides a mechanism for cancelling a lien upon  
posting sufficient security. Section 24(2) and (3) authorize the court to order  
cancellation of the lien upon posting less than the full value of the lien. In fixing the  
amount of security, the court must exercise its discretion judicially based on the  
available evidence and the context and purpose of the BLA: Q West Van Homes Inc.  
v. Fran-Car Aluminum Inc., 2008 BCCA 366 at para. 39 [Q West].  
[102] At para. 56 of Q West, the Court of Appeal articulated a two-prong test for  
s. 24 inquiries:  
1) an examination of the claims that should be taken into account; and  
2) a determination of the appropriate amount of security.  
[103] The focus under the first prong is whether it is plain and obvious that a lien  
claim or component of a lien claim is bound to fail: Q West at para. 56; Centura at  
para. 28. The onus on the first prong is on the party seeking to reduce the amount of  
security: Centura, para. 33.  
[104] If the lien is not bound to fail, then the court must review the evidence to  
determine whether security should be reduced: Centura, para. 34. The Court “cannot  
make a determination on the merits with the material at hand and should be cautious  
in ordering a reduced amount of security”: Q West at para. 40; Centura, para. 34.  
The caution under the second prong operates in favour of the lien claimant: Centura,  
para. 34.  
[105] The inquiry under s. 24 should be approached cautiously in order to “avoid  
injustice to lien claimants who, generally speaking, have the right to have their  
claims fully adjudicated at trial”: West Fraser Mills at para. 40; see also Centura,  
para. 23.  
[106] Applying the two-prong test to the case at bar, Rio Tinto does not argue that  
FKA’s lien claim or any subset of its lien claim is bound to fail. Rio Tinto did not  
suggest that FKA’s lien claim was exaggerated or inflated or that it includes amounts  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 24  
of damage claims that do not, as a matter of law, properly form part of a claim of  
lien. Instead, Rio Tinto points to the small value of the work done on the Terminal B  
lands as a basis for reducing the security to be posted to cancel the lien against the  
Terminal B lands. Even if true, this would not satisfy the first prong of the test for  
reducing security pursuant to s. 24 of the BLA.  
[107] Further, Rio Tinto’s argument seems to ignore the fact that FKA has filed one  
lien against 14 properties. The issue under s. 24 is determination of the amount of  
security that must be posted to cancel the Lien, not how much security ought to be  
posted to cancel the portion of the lien against the Terminal B lands.  
[108] As for the second prong of s. 24, I am not inclined to exercise my discretion to  
reduce the amount of security to be posted, keeping in mind that one of the key  
objectives of the BLA is to protect those who supply work and materials to a  
construction project and the caution that applies to a determination of the  
appropriate amount of security.  
[109] Rio Tinto’s submission focuses on the value of the work at Terminal B as  
compared to the Lien Amount and the value of other properties. I was not referred to  
any authorities where these factors provided a basis for the judicial exercise of  
discretion under s. 24 of the BLA. I am not inclined to rely on such factors in this  
case as a basis for reducing the amount of security to be posted. Caution is  
appropriate, because as the Court of Appeal said, “[r]educing the amount of security  
in some circumstances would effectively decide the case against the lien claimant  
before there was an adjudication on the merits”: Centura, para. 25.  
[110] I am not satisfied on the evidence provided on this s. 24 application that it  
would be appropriate to reduce the amount of security to be posted on an  
interlocutory application. Rio Tinto fails to meet its onus on a s. 24 application for an  
order for security in an amount less than the lien amount.  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 25  
Section 16(2)  
[111] As a final alternative, Rio Tinto asks the Court to apportion the FKA lien  
amount as between the Terminal B lands and the remaining properties against  
which the Lien is filed. Rio Tinto relies on s. 16(2) of the BLA as authority for making  
such an order. Rio Tinto suggests that security in the amount of $6,924,395.78 (one-  
fourteenth of the Lien Amount) would be adequate security to cancel the Lien  
against the Terminal B lands.  
[112] FKA points to the paucity of judicial consideration of s. 16(2) and says that  
such an order would not be appropriate in the circumstances of this case.  
[113] When interpreting s. 16(2), it is necessary to consider the principles of  
statutory interpretation outlined earlier in these reasons.  
[114] Section 16 of the BLA reads as follows:  
General lien  
16 (1) If an owner enters into a single contract for improvements on more  
than one parcel of land, a lien claimant providing work or material under that  
contract, or under a subcontract under that contract, may choose to have the  
lien follow the form of the contract and be a lien against each parcel for the  
price of all work and material provided to all of the parcels of land.  
(2) If a lien is claimed under subsection (1) against several parcels of land, on  
application to the court by any person with an interest in or charge on the  
land, the court may apportion the lien among the parcels for the purpose of  
determining the lien claimant's rights as against persons having rights in  
particular parcels.  
[115] In this case, FKA has filed a general lien in accordance with s. 16(1):  
Rio Tinto entered into the Contract with FKA for improvements on 14 parcels  
of land;  
FKA provided work and materials pursuant to the Contract; and  
FKA filed the Lien against each of the 14 parcels of land for the total amount  
claimed for all work and materials provided by FKA pursuant to the Contract.  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 26  
[116] In other words, FKA filed one lien for the full amount owing instead of  
separate liens against each of the 14 parcels for the work undertaken on each  
individual parcel.  
[117] Section 16(1) simplifies the lien-filing process for a project that involves more  
than one parcel of land. The lien claimant is not required to allocate the value of the  
work and materials for each parcel of land, which might be challenging for a  
complicated project and could lead to additional litigation over whether the work  
done and materials supplied were liened against the appropriate parcel. Further, a  
general lien over all improved parcels protects the lien claimant from the risk that the  
highest value of work and materials happens to be carried out on the least valuable  
or most encumbered parcel of land. Section 16(1) is consistent with the BLA  
objective of ensuring that contractors are paid for the work provided and material  
supplied.  
[118] Section 16(2), on the other hand, offers a method for a “person with an  
interest in or charge on the land” to seek an apportionment of the lien “for the  
purpose of determining the lien claimant's rights as against persons having rights in  
particular parcels”.  
[119] While s. 16(1) refers to filing a general lien where an “owner” has entered into  
single contract for improvements, section 16(2) authorizes a “person with an interest  
in or charge on the land” to bring an application. Giving the words their ordinary  
meaning, an owner of the land would have an interest in the land and be included in  
the category of potential applicants under s. 16(2). However, a 16(2) application  
could be brought by a person with an interest in or a charge on the land who is not  
an owner. I note that the term “owner” is defined in the BLA as follows:  
"owner" includes a person who has, at the time a claim of lien is filed under  
this Act, an estate or interest, whether legal or equitable, in the land on which  
the improvement is located, at whose request and  
(a)on whose credit,  
(b)on whose behalf,  
(c)with whose knowledge or consent, or  
(d)for whose direct benefit  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 27  
work is done or material is supplied, and includes all persons claiming under  
the owner, but does not include a mortgagee unless the mortgagee is in  
possession of the land;  
[120] Section 16(2) allows the court to “apportion the lien among the parcels”  
subject to the general lien. Giving these words their ordinary meaning, as considered  
in the context of the BLA as a whole, s. 16(2) gives the court authority to allocate the  
amount claimed under the general lien among the parcels subject to the general lien.  
In other words, s. 16(2) allows the court to convert a general lien that applies to a  
number of parcels into separate liens that apply to individual parcels.  
[121] However, this apportionment may only be done for the reason identified in  
s. 16(2), that is, “for the purpose of determining the lien claimant's rights as against  
persons having rights in particular parcels”.  
[122] The parties were only able to identify one case in which an order was made  
pursuant to s. 16(2). In Cannex Contracting 2000 Inc. v. Eagle Ridge Land Sales  
Corp, 2019 BCSC 626 [Cannex], the lien claimant performed work and supplied  
materials required to develop and subdivide a parcel of land owned by the defendant  
property developer. In addition to site grading, the lien claimant designed and  
installed sanitary sewers, storm sewers, the water main, the sewer line, asphalt for  
the roadway and concrete for the driveway. The original parcel was divided into 13  
residential lots, two of which had been sold to bona fide purchasers for value. The  
lien claimant filed a general lien against the 13 lots for the entire amount said to be  
owing, that is, $435,515.96. The defendant property developer brought an  
application to cancel the lien on the basis that it was filed out of time. As part of the  
background, the court referred to a previous order made by Master McDiarmid  
pursuant to s. 16(2) apportioning the lien equally among the 13 properties. Master  
McDiarmid also ordered that the sum of $260,000 was sufficient security for  
cancellation of the lien against all 13 of the properties or the sum of $20,000 was  
sufficient security for cancellation of the lien against any individual property.  
[123] In Cannex, there was no explanation of the reasoning underlying the s. 16(2)  
order.  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 28  
[124] FKA argues that it may be appropriate to apportion a lien claim among  
various properties where the parcels are nearly identical in size and the work is  
consistent across the parcels. However, this cannot be said about the lands against  
which the Lien is filed in this case.  
[125] Section 16(2) does not require equal apportionment, and Rio Tinto does not  
say that the Lien amount should necessarily be allocated equally across all 14  
parcels against which it is registered. However, there remains a threshold question  
of whether s. 16(2) allows apportionment at the behest of Rio Tinto, the owner of all  
the parcels against which the Lien is filed. In particular, would apportionment of the  
Lien determine FKA's rights against Rio Tinto?  
[126] In my view, apportionment of the Lien amongst the various parcels would not  
“determine” FKA’s rights as against Rio Tinto. FKA’s rights against Rio Tinto are  
determinable by the Lien and the claims advanced in this action. In other words, I  
am not satisfied that s. 16(2) provides authority for the apportionment of the Lien on  
an application by the owner of all the properties subject to the Lien.  
[127] Section 16(2) must be interpreted in the context of the BLA as a whole.  
Keeping in mind the remedial purpose of the BLA, I am not satisfied that it would be  
appropriate to allocate the Lien Amount between the 14 parcels in this case.  
[128] As a result, the Lien may be cancelled by payment of the Lien Amount as  
security.  
Conclusion  
[129] In summary, I find as follows:  
1) The Lien was not filed out of time.  
a. The running of time was not triggered when Rio Tinto sent the  
Termination Notice on April 21, 2020.  
b. Even if the running of time was triggered, the time for filing the lien  
would have expired on Monday, June 8, 2020.  
Frontier Kemper Constructors, Inc. v. Rio Tinto Alcan Inc.  
Page 29  
2) The Lien relates to the Terminal B lands and should not be cancelled  
pursuant to section 25(2)(a).  
3) The Lien may be cancelled upon the posting of the Lien Amount as  
security.  
[130] FKA is entitled to its costs for this application in any event of the cause.  
“Lamb J.”  


© 2022 IncJournal is not affiliated with or endorsed by the U.S. Securities and Exchange Commission