IN THE SUPREME COURT OF BRITISH COLUMBIA  
Citation:  
Darwin Construction (BC) Ltd. v. PC Urban  
Glenaire Holdings Ltd.,  
2022 BCSC 1121  
Date: 20220705  
Docket: S207688  
Registry: Vancouver  
Between:  
And:  
Darwin Construction (BC) Ltd.  
Plaintiff  
PC Urban Glenaire Holdings Ltd. and  
PC Urban Glenaire 2 Holdings Ltd.  
Defendants  
Plaintiffs by Counterclaim  
And:  
Darwin Construction (BC) Ltd.  
David Webbe  
Defendants by way of Counterclaim  
Before: The Honourable Chief Justice Hinkson  
Reasons for Judgment  
Counsel for the Plaintiff and  
Defendants by Counterclaim:  
W.E. Stransky  
A. Cameron  
Counsel for the Defendants  
and Plaintiffs by Counterclaim:  
Place and Date of Hearing:  
Place and Date of Judgment:  
Vancouver, B.C.  
May 17, 2022  
Vancouver, B.C.  
July 5, 2022  
Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd.  
Page 2  
Overview  
[1]  
This is an application brought by PC Urban (Glenaire) Limited Partnership  
(“the Partnership”) to cancel the claim of lien of Darwin Construction (BC) Ltd.  
(“Darwin”).  
[2]  
The plaintiff, Darwin, is a general construction contractor, and David Webbe is  
its principal.  
[3]  
The Partnership is a group of real estate development companies that include  
the defendants PC Urban Glenaire Holdings Ltd. (“Glenaire”) and PC Urban  
Glenaire 2 Holdings Ltd (“Glenaire 2”).  
[4]  
Glenaire is the registered owner of the property described below as Lot 1, as  
the nominee, agent, and bare trustee for the Partnership. Glenaire 2 is the registered  
owner of the property described below as Lot A, as the nominee, agent, and bare  
trustee for the Partnership. The two properties are adjacent to one another.  
Background  
[5]  
In 2018, the Partnership commenced a three-phase, multi-million-dollar  
residential development project, known as Holland Row, overlooking the Capilano  
River in North Vancouver.  
[6]  
Phase one of Holland Row is the development of townhomes on Lot 1, the  
property located at 1946–1998 Glenaire Dr., North Vancouver, BC. Phase two is a  
separate project from phase one and involves the development on Lot A.  
[7]  
On September 10, 2018, Darwin entered into a stipulated price contract with  
the Partnership for the development of Lot 1 (“the Contract”). Pursuant to the  
Contract, Darwin was to be paid the stipulated price of $14,758,947.00, exclusive of  
taxes, for construction of the first phase of development, subject to approved change  
orders. All defective work was to be corrected at the plaintiff's sole expense.  
[8]  
The Contract expressly stated that time was of the essence and that the  
commencement date would be August 7, 2018 and the substantial completion date  
Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd.  
Page 3  
would be February 28, 2020. The substantial completion date was subsequently  
extended to March 13, 2020 by an approved change order.  
[9]  
In October 2018, during the first phase, the Partnership issued purchase  
orders to Darwin for tree removal on Lot A and for a traffic management plan for  
phase two. Since this was an entirely separate project from phase one, the  
Partnership instructed Darwin to establish a new billing code and account for the  
requested second phase work.  
[10] On February 21, 2019, Darwin invoiced the Partnership $17,173.11 for the  
tree removal and traffic management plan and indicated that the limited work  
undertaken on the second phase was 100% complete. On March 5, 2019, the  
Partnership paid the invoice in full, together with GST, without deduction for any  
holdback.  
[11] On June 8, 2020, almost three months after the mutually agreed extended  
completion date in March 2020, the Partnership sent Darwin a Notice of Default. In  
the Notice of Default, the Partnership specified Darwin’s breaches and defaults  
under the Contract, including Darwin’s alleged failures to deliver phase one of the  
project on time, correct extensive deficiencies, adequately supervise the work,  
adequately supervise subcontractors and suppliers, and take ownership for issues.  
In accordance with the terms of the Contract, the Partnership demanded that Darwin  
rectify its alleged defaults within five days. Darwin did not do so.  
[12] On June 23, 2020, the Partnership purported to accept Darwin’s alleged  
repudiation and terminated the Contract effective immediately. Darwin did not turn  
back phase one of the project to the Partnership. Instead, Darwin advised the  
subcontractors and suppliers of the termination, requesting them to stop working and  
demobilize from the site. Darwin further advised the subcontractors and suppliers  
that it would be filing a claim of lien and encouraged them to seek legal advice about  
their own ability to file a claim of lien.  
Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd.  
Page 4  
[13] On July 24, 2020, Darwin filed a builder’s lien in the amount of $3,085,612.93  
against Lot 1 and Lot A.  
[14] On July 31, 2020, the plaintiff filed a lien enforcement action against Glenaire  
and Glenaire 2. This action reiterated the plaintiff’s claim to the full amount of its lien  
but provided no breakdown or accounting of that amount.  
[15] In support of the application before me is correspondence from Darwin’s  
counsel dated March 22, 2022. It contains a summary of the amounts included in  
Darwin’s lien claim as follows:  
Category  
Amount Claimed  
14,758,947.00  
439,417.56  
Contract Sum  
Change Orders (1 to 118)  
Contemplated Change Orders  
Request for Change Orders  
Change Directives  
10,011.10  
169,102.69  
129,506.89  
Additional Costs  
631,450.51  
Potential Subtrade Delay Claims  
Delay Claim  
50,000.00  
247,267.00  
Less: Paid to Date  
(13,337,261.78)  
(159,761.99)  
Less: Balance of Incomplete-Work  
2,938,678.98  
146,933.95  
GST 5%  
3,085,612.93  
[16] On August 4, 2020, Darwin filed Certificates of Pending Litigation (“CPLs”)  
against Lot 1 and Lot A, bearing registration numbers CA8341848 and CA8341849  
respectively. The Partnership, Glenaire, and Glenaire 2 then commenced a petition  
(Action No. S-207720) pursuant to section 24 of the Builders Lien Act, S.B.C. 1997,  
c. 45 [BLA] to discharge Darwin’s lien and CPLs from title upon the deposit of  
security into court.  
Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd.  
Page 5  
[17] On August 19, 2020, the Partnership deposited a lien bond of $3,085,612.93,  
after which the lien and CPLs were discharged from title. The cost of the lien bond  
and its renewal to date has been $92,568.  
[18] To date, Darwin has invoiced the Partnership for $14,875,963.42 exclusive of  
tax, or, after accounting for GST, $15,619,761.59, and the Partnership asserts that  
inclusive of GST, only $338,521.20 of the Contract price has not been invoiced.  
[19] On account of Darwin’s invoices, supporting progress claims, and statutory  
declarations, the Partnership has paid the plaintiff $13,859,178.85, inclusive of tax.  
[20] In addition to securing the $3,085,612.93 lien in full, the Partnership made the  
following payments and arrangements:  
(a)  
(b)  
(c)  
$242,642.76 directly to subcontractors and suppliers on account of  
amounts invoiced by those subcontractors and suppliers;  
$680,054.60 directly to subcontractors and suppliers on account of  
Holdback in order to obtain releases of the subcontractor liens;  
$277,267.19 into court on account of the lien filed by subcontractor  
System One Floor Solutions Inc., which was replaced by a letter of  
credit and reduced to $223,684.62; and  
(d)  
$333,371.23 into court on account of a lien by Synergy Plumbing &  
Heating Ltd. (“Synergy”) and Airstream Heating & Air Conditioning Inc.,  
which was replaced by a letter of credit and reduced to $309,082.00.  
The Builders Lien Act  
[21] Section 2 of the BLA provides:  
2(1) Subject to this Act, a contractor, subcontractor or worker who, in  
relation to an improvement,  
(a)  
(b)  
performs or provides work,  
supplies material, or  
Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd.  
(c) does any combination of those things referred to in  
Page 6  
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)  
(e)  
(f)  
the interest of the owner in the improvement;  
the improvement itself;  
the land in, on or under which the improvement is  
located;  
(g)  
the material delivered to or placed on the land.  
[22] Section 16 of BLA provides:  
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.  
[23] Section 19 of the BLA provides:  
19A person who files a claim of lien against an estate or interest in land to  
which the lien claimed does not attach is liable for costs and damages  
incurred by an owner of any estate or interest in the land as a result of the  
wrongful filing of the claim of lien.  
[24] Section 20 of the BLA provides, in part, that:  
20(1) If a certificate of completion has been issued with respect to a  
contract or subcontract, the claims of lien of  
(a)  
(b)  
the contractor or subcontractor, and  
any persons engaged by or under the contractor or  
subcontractor  
may be filed no later than 45 days after the date on which the certificate of  
completion was issued.  
(2)  
A claim of lien that is not governed by subsection (1) may be filed no  
later than 45 days after  
(a)  
(b)  
the head contract has been completed, abandoned or  
terminated, if the owner engaged a head contractor, or  
the improvement has been completed or abandoned, if  
paragraph (a) does not apply.  
Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd.  
Page 7  
(3)  
Subsection (1) does not operate to extend or renew the time for filing  
of a claim of lien if  
(a)  
that time would otherwise be determined with reference  
to the time an earlier certificate of completion was  
issued, or  
(b)  
time had started to run under subsection (2).  
[25] Section 25 of the BLA provides, in part, that:  
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  
…
(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  
(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.  
Relief Sought  
[26] The application before me was filed and served on the plaintiffs on November  
10, 2021. The defendants seek an order, pursuant to s. 25(2)(a) of the BLA,  
cancelling the claim of lien filed by Darwin on July 24, 2020 against title to Lot 1 and  
Lot A. Alternatively, the defendants seek an order cancelling Darwin’s claim of lien  
pursuant to s. 25(2)(b) of the BLA.  
[27] In the further alternative, the defendants seek a declaration that $1.00 is  
sufficient security paid into Court in respect of Darwin’s claim of lien.  
[28] The defendants also seek costs of this application and the costs incurred in  
depositing a lien bond as security for Darwin’s claim of lien.  
Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd.  
Page 8  
Plaintiff’s Standing at the Application Hearing  
[29] After the Partnership made a number and variety of demands for the  
production of documents, Master Muir granted an order, consented to by both  
parties, dated April 7, 2022 that included terms that:  
1.  
Any application response or other document to be relied upon by the  
Plaintiff or Defendants by Counterclaim in response to the Notice of  
Application of the Defendants and Plaintiffs by Counterclaim filed  
November 10, 2021 (the “Notice of Application”) shall be filed by no  
later than Friday, April 15, 2022, and  
2.  
The adjournment of the hearing of the Notice of Application on  
Tuesday, March 29, 2022 by consent is without prejudice to the  
Defendants and Plaintiffs by way of Counterclaim seeking an order for  
their costs thrown away when the Notice of Application is heard.  
[30] Darwin failed to produce any application response as they had agreed to do,  
and before me, their counsel applied to adjourn the Partnership’s application so that  
they could prepare a response to the application. I declined to adjourn the matter  
further.  
[31] Rule 8-1(9) of the Supreme Court Civil Rules, B.C. Reg. 168/2009 [Rules]  
provides the requirements for an application response. Master Muir’s order provided  
a further opportunity for the plaintiff to file a response to the defendants’ application,  
which it ultimately did not do. Under R. 22-7(6) of the Rules, “If a person, without  
lawful excuse, refuses or neglects to comply with a direction of the court, the court  
may make an order under subrule (5)(f) or (g).”  
[32] Rules 22-7(5)(f) and (g) provide:  
(f)  
if the person is the plaintiff or petitioner, a present officer of a  
corporate plaintiff or petitioner or a partner in or manager of a partnership  
plaintiff or petitioner, the court may dismiss the proceeding, and  
(g)  
if the person is a defendant, respondent or third party, a present  
officer of a corporate defendant, respondent or third party or a partner in or  
manager of a partnership defendant, respondent or third party, the court may  
order the proceeding to continue as if no response to civil claim or response  
to petition had been filed.  
Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd.  
Page 9  
[33] Counsel for the Partnership contended that Darwin had no right to make  
submissions on the application, which should proceed unopposed.  
[34] In Vancouver (City) v. Maurice, 2005 BCCA 37, the Court of Appeal dealt with  
an appeal by Mr. Maurice and other protesters from an order granting the City of  
Vancouver an interlocutory injunction restraining protesters from erecting tents and  
shelters on city sidewalks as part of their demonstration against an alleged lack of  
adequate social housing. At paras. 51–55, Justice Rowles discussed Rules 44 and  
51A of the then existing Rules commenting that:  
[51]  
Generally speaking, there is no unqualified right to participate in a  
hearing of an interlocutory application. The Rules of Court, which are aimed  
at ensuring fairness to both sides, prescribe the procedures that must be  
followed by all persons before the court.  
[52]  
An interlocutory application is governed by Rules 44 and 51A of the  
Rules of Court. Under Rule 44(5), the applicant is required to serve all parties  
of record and all persons affected by the order sought with the Notice of  
Motion and supporting materials. Any person who wishes to respond to the  
application must deliver to the applicant a Response and materials he or she  
intends to rely on within the prescribed time limits. Rule 51A, which sets out  
the procedure for interlocutory applications, specifically defines "respondent",  
at subsection (2), as the person who has delivered a Response.  
[53]  
Under Rules 44 and 51A, only those who have delivered a Response  
have the right to oppose the application. Therefore, neither the four  
unrepresented persons who were allowed to speak, nor the four unknown  
persons who were not, were entitled under the Rules of Court to participate in  
the hearing as of right. To hold otherwise would negate the clear  
requirements of Rule 44(6) and would tend to invite hearings by ambush.  
Nonetheless, no one would suggest that the chambers judge was wrong in  
agreeing to hear from those who had filed Appearances and who said they  
wished to make submissions.  
[54]  
The chambers judge had inherent jurisdiction to control the process  
and to maintain order within the courtroom. It was pursuant to that authority  
that the chambers judge exercised his discretion to allow persons who had  
not filed Responses to speak: R. v. Hothi, [1985] 3 W.W.R. 256 (Man. Q.B.),  
aff'd [1986] 3 W.W.R. 671, leave to appeal to S.C.C. refused [1986] 5 W.W.R.  
lxviii.  
[35] More recently, in British Columbia (Director of Civil Forfeiture) v. Crowley,  
2013 BCCA 89 [Crowley] at para. 72, Justice Chiasson held that:  
[72]  
The appellant was in breach of Rule 8-1(9), which meant he had no  
right to participate in the proceedings. This was the position of the Director,  
Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd.  
Page 10  
which the judge accepted. Speaking to the appellant at the hearing, the judge  
stated:  
... Mr. Ameerali has pointed out that you've filed no materials  
in response to the Director's application. Mr. Ameerali says  
that because you haven't filed any materials, you have no  
standing. You're not—you're not someone I should listen to or  
hear from today, and I'd have to say he's right.  
[36] At para. 76–77 in Crowley, Chiasson J.A. affirmed that the Court retains  
discretion to allow the participation of a defendant with no response, citing Ngo v.  
South Pacific Development Ltd. et al, 2005 BCSC 1632, aff’d 2006 BCCA 182.  
[37] In order to control the process and complete the hearing of the application, I  
agreed to permit counsel for the plaintiff to address the application, on the basis that  
I might ultimately decide to ignore his submissions.  
[38] As I heard submissions from counsel for the plaintiff, I have decided to  
disabuse my mind of those submissions and, to the limited extent required, deal only  
with the material filed by the Partnership.  
Discussion  
The Defendants’ Position  
[39] The first phase of the Holland Row development was intended to encompass  
23 high-end townhomes on Lot 1. The second phase of the Holland Row  
development was intended to be constructed on Lot A.  
[40] The Partnership denies Darwin’s allegation that both Glenaire and Glenaire 2  
and their properties were involved in the first phase of the development. The  
Partnership asserts that the second phase of the Holland Row development was a  
separate project from the first phase from an accounting, construction timing, and  
contracting perspective. The Partnership contends that apart from the tree removal  
and traffic management plan completed by February 21, 2019, Darwin has not  
undertaken any work on the second phase lands, nor have the parties entered into  
any contract in relation to the second phase.  
Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd.  
Page 11  
[41] In his affidavit in support of the defendants’ application, Mr. Smith, the Chief  
Financial Officer for the Partnership stated at para. 34:  
Apart from the tree removal and traffic management plan completed by  
February 21, 2019 at the latest, no work has been undertaken on the Phase  
Two lands (Lot A) by Darwin nor has any contract been entered into between  
PC Urban and Darwin in relation to Phase Two.  
[42] The Partnership submits that the total contract price for the first phase of the  
project was $14,758,947.00, exclusive of tax. During construction, the Partnership  
also approved change orders totalling $439,417.56, bringing the total contract price  
to $15,198,364.56 exclusive of tax, and to $15,958,282.79 after accounting for GST.  
[43] The Partnership alleges that during construction of the first phase of the  
development, from August 2018 through to June 2020, Darwin repeatedly and  
fundamentally breached the Contract through widespread defective and dishonest  
performance.  
[44] The Partnership asserts that in addition to the subcontractor lien payments,  
the Partnership has incurred additional expenses totalling $1,212,935.39 as a result  
of the plaintiff's failures and the resulting six-month delay to the project, including, for  
example, additional utility fees, strata fees, property taxes, construction financing  
costs, insurance premiums, security and sanitation service fees, and costs incurred  
in order to rectify Darwin’s failures and the extensive defects and deficiencies  
requiring correction.  
[45] Apart from a disputed May 21, 2020 invoice in the amount of $210,165.70,  
the Partnership contends that it has fully paid Darwin’s invoiced amounts less the  
10% statutory holdback (the "Holdback") required by the BLA.  
[46] The Partnership asserts that it maintained the Holdback and intermittently  
released certain portions of it to the plaintiff, in the total amount of $144,945.99  
inclusive of tax, during construction as individual subcontracts were certified  
complete.  
Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd.  
Page 12  
[47] Together with Holdback payments, the Partnership has paid the plaintiff a  
total of $14,004,124.84, inclusive of tax, in relation to the project.  
Cancellation of the Lien pursuant to s. 25(2)(a) of the BLA  
[48] The Partnership argues that Darwin’s lien ought to be cancelled as it  
wrongfully asserts a claim of lien not only in relation to Lot 1 but also in relation to  
Lot A. The Partnership says that the Contract does not applying to Lot A, and no  
debt possibly arises in favour of the plaintiff in respect of Lot A.  
[49] The Partnership seeks a remedy under s. 25(2)(a) of the BLA:  
(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  
(a)  
the claim of lien does not relate to the land against which it is filed  
[50] Included in the material filed in support of the application before me is the  
change order invoice from Darwin with the subject stated as “Request for Change  
Order #022 (RI); Phase II Clearing & Grubbing”. This was included in what Mr. Smith  
described as a summary of all approved change orders relating to phase one of the  
development.  
[51] The Partnership argues that Darwin, through subcontractors, performed  
minimal work on Lot A, and that the only work that could be captured by the  
definition of "improvement" in the BLA was some minor tree removal. The  
Partnership agrees that there was no formal contract for the tree removal, and it  
says that this work was done informally, completed by no later than February 21,  
2019, and fully paid for.  
[52] Based on the material filed, it is clear that Darwin performed, billed, and  
received payment for some work for phase two of the development. In what is  
described as “Progress claim – Invoice #1” for “Holland Row Phase 2 – 1920-1932  
Glenaire Drive, North Vancouver B.C., Darwin submitted another account for  
$18,031.77.  
Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd.  
Page 13  
[53] The Partnership concedes that the authorities require that the BLA must be  
strictly interpreted and that the court has no discretion to depart from its statutory  
requirements. Lien claimants, in asserting a statutory remedy, are thus required to  
strictly comply with the BLA.  
[54] The Partnership contends that asserting a claim of lien over a property to  
which the lien does not attach is not only impermissible but also gives rise to liability  
by the lien claimant. They contend that pursuant to s. 19 of the BLA, the assertion of  
a claim of lien over a property to which the lien does not attach constitutes a  
"wrongful filing" and permits an owner to recover costs and losses incurred as a  
result of the wrongful filing.  
[55] The Partnership contends that Darwin's lien was wrongfully filed against Lot  
A.  
[56] In W. Redevelopment Group, Inc. v. Allan Window Technologies Inc., 2010  
BCSC 1601, Justice Pearlman did not discuss s. 25(2)(a) of the BLA. He declined to  
discharge a builder’s lien properly filed against some, but not all properties, after the  
incorrect properties were removed from the lien claim.  
[57] As set out above, s. 16(1) of the BLA permits a lien claimant to file a lien  
against all properties where improvements were performed.  
[58] Given that the plaintiff performed, billed, and received payment for some work  
for the second phase of the development that was described as “Progress claim –  
Invoice #1” for “Holland Row Phase 2 – 1920-1932 Glenaire Drive, North Vancouver  
B.C.” in its account for phase one, I am unable to find that the properties listed in the  
lien claims were wrongfully filed.  
[59] There was no application before me to apportion the work performed on Lot A  
from that performed on Lot 1, pursuant to s. 16(2) of the BLA.  
[60] The Partnership further contends that even to the extent that Darwin had a  
basis to file a lien against Lot A at any time, the period for doing so lapsed by no  
Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd.  
Page 14  
later than Monday, April 8, 2019, given the full completion of the plaintiff's work on  
Lot A by no later than February 21, 2019.  
[61] I am also unable to accede to this submission. While s. 20 of the BLA  
requires the filing of a lien within certain time limits, there was no certificate of  
completion issued with respect to the work performed on Lot A, and thus no basis for  
the imposition of those time limits with respect to the work done on Lot A.  
Cancellation of the Lien pursuant to s. 25(2)(b) of the BLA  
[62] In the alternative, the Partnership asserts that to the extent that Darwin’s lien  
is not cancelled due to non-compliance with the strict statutory requirements of s.  
25(2)(a) of the BLA, it ought to be cancelled as frivolous or an abuse of process.  
[63] Section 25(2)(b) of the BLA permits a court, on application by an owner, to  
cancel a claim of lien if satisfied that the claim of lien is vexatious, frivolous or an  
abuse of process.  
[64] The test for whether a claim of lien is frivolous is whether the lien claimant  
has an "arguable" claim or, in other words, whether it is plain and obvious that the  
lien claim cannot succeed.  
[65] In Brent v. Slegg Construction Materials Ltd., 2007 BCSC 661 at paras. 33–  
35, Justice Joyce determined:  
[33]  
According to Guilford Industries Ltd. v. Hankinson Management  
Services Ltd., [1974] 1 W.W.R. 141, 40 D.L.R. (3d) 398 (B.C.S.C.) [Guilford  
Industries], in which Anderson J. at para. 26 quoted Fleming on Torts, 4th ed.  
at page 547, in order to succeed in a claim based on abuse of process the  
plaintiff must prove two elements:  
a)  
collateral and improper purpose, such as extortion; and  
b)  
a definite act or threat, in furtherance of a purpose not  
legitimate in the use of the process.  
[34]  
Thus, for example, the filing of a lien completely devoid of any legal  
foundation in order to extract money by "legal blackmail" may constitute an  
abuse of civil process (Guildford Industries, supra).  
[35]  
I am not satisfied the lien in this case was "completely devoid of any  
legal foundation" or that it was filed as a form of "legal blackmail". It is not  
Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd.  
Page 15  
suggested that the lien was filed out of time or against the wrong property.  
There was money owing to the claimant in respect of material supplied to the  
property. I am not satisfied that the defendant is liable for an abuse of  
process simply because the amount of the lien included amounts that could  
not be proven. The defendant was aware of the provisions of the Builders  
Lien Act under which he could have sought a discharge of the lien upon the  
payment of security and in which case his right to challenge the amount of  
the lien would have been preserved. Instead he chose the quick route.  
[66] In West Fraser Mills v. BKB Construction Inc., 2012 BCCA 89 at paras. 18–  
19, 24–25 and 29 [West Fraser], Justice Low J.A. discussed the validity of a lien  
claim concluding:  
[18]  
It is my opinion that it was an error to pose and to answer the question  
"Are the liens valid?" The issue of validity does not arise under either s. 24 or  
s. 25. Neither section requires the lien claimant to prove the lien. Nor does an  
application under either section provide an opportunity for the owner (or a  
contractor) to disprove the lien. An application under either section should not  
be addressed as though it were a summary trial in an action commenced in  
compliance with s. 33.  
[19]  
The question under s. 25 is whether the lien is defective (or has  
lapsed) for any of the reasons specified in s. 25(1) or s. 25(2)(a), or whether it  
is vexatious, frivolous or an abuse of process under s. 25(2)(b).  
…
[24]  
The test for whether a claim is frivolous imposes a low threshold on  
the lien claimant. The wording of s. 25(2)(b) of the Act is similar to that of R.  
9-5(1) of the Supreme Court Civil Rules, which deals with scandalous,  
frivolous, or vexatious matters. The test for striking pleadings under that rule  
is whether it is "plain and obvious" that pleadings should be struck:  
MacKinnon v. Instaloans Financial Solution Centres (Kelowna) Ltd., 2004  
BCCA 472, 33 B.C.L.R. (4th) 21, at paras. 36–38. The only consideration  
under the practice rule is whether there is "a question fit to be tried": Kripps v.  
Touche Ross & Co. (1992), 69 B.C.L.R. (2d) 62 at p. 68, 94 D.L.R. (4th) 284  
(C.A.).  
[25]  
In G.A.P Contracting Ltd. v. 0790643 B.C. Ltd., 2011 BCSC 1059,  
Master Baker considered an application for cancellation of a lien under s.  
25(2)(b). After describing conflicting affidavit evidence, at para. 20 he  
expressed "misgivings" about the factual assertions of the lien claimant but  
said he was unable to conclude that the lien claim was vexatious, frivolous, or  
an abuse of process. He said: "I am satisfied that there are at least arguable  
claims (and counterclaims, for that matter) respecting the work done and that  
the lien should not be removed under [s. 25(2)(b)]". In other words, he found  
there was a question fit to be tried. In my opinion, he applied the correct test.  
…
[29]  
I do not say the appellants' position is correct, or that it will ultimately  
prevail. I say only that the liens are not frivolous and determination of their  
validity was premature. Their validity remains to be adjudicated in the context  
Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd.  
Page 16  
of an action under s. 33 of the Act. The argument of the appellants that their  
liens fit within the overall scheme of the Act is worthy of consideration. Their  
claims are arguable. No more is needed to defeat West Fraser's assertion  
that the liens are frivolous.  
[67] In consideration of the cases cited and especially the comments approved of  
and made by Low J.A. in West Fraser, I find that, insofar as Darwin’s entitlement to  
place a lien against Lot A, there are at least arguable claims respecting the work  
done and that the lien should not be removed under s. 25(2)(b). I do not find that  
Darwin’s lien is frivolous, vexatious, or an abuse of process, and I am satisfied that  
there is a question to be tried.  
Reduction of the Plaintiff’s Security  
[68] Finally, in the further alternative, the Partnership contends that to the extent  
that Darwin’s lien is not cancelled in its entirety pursuant to either ss. 25(2)(a) or  
25(2)(b) of the BLA, the security currently held in court on account of the lien ought  
to be reduced.  
[69] Section 24 of the BLA permits the court to cancel a claim of lien on the giving  
of security satisfactory to the court. The value of the security deemed to be sufficient  
by the court may be less than the amount asserted in the claim of lien.  
[70] In West Fraser at para. 20, Low J.A. held that:  
[20]  
The question under s. 24 is the amount of security that should be  
ordered (assuming, as would usually be the case, that the lien claimant does  
not argue that there should be no cancellation of the lien on the giving of  
security).  
[71] More recently, in Atlas Painting & Restorations Ltd. v. 501 Robson  
Residential Partnership, 2016 BCSC 2472 at paras. 12–13 [Atlas], Justice Macintosh  
wrote:  
[12]  
Nonetheless, the complexity of the underlying contractual dispute  
makes a court reluctant to come to a finding of abuse within the meaning of s.  
25 of the Act, as quoted above. Such a finding is tempting in light of the large  
gap between the initial lien claim and the amount Atlas now acknowledges to  
be a proper lien claim. I find, however, admittedly with some hesitation, that  
Atlas rescued itself from a finding of abusive conduct by its reduction of the  
lien amount to $638,000 in February 2016 and its offered further reduction to  
Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd.  
Page 17  
$452,000 when it prepared for this application in October of this year. My  
taking the rescue effort into account assumes that s. 25(2)(a) contemplates  
an assessment as of the hearing date, as opposed to when the lien was filed.  
I did not hear argument on that point, but it is an assumption I am prepared to  
make for the purposes of this application.  
[13]  
501 has demonstrated, from its review for the Court of the  
documentary evidence, that even the lien claim of $452,000 rested on a weak  
foundation. Our Court of Appeal established a two-part test for determining  
the security to be posted under s. 24. A court should examine what claims  
should be taken into account and then what amount of security is appropriate  
on those claims. See Q West Van Homes Inc. v. Fran-Car Aluminum Inc.,  
2008 BCCA 366, at paras. 56 and 57:  
Under s. 24 there is a two-prong test. The first is consideration  
of what claims should be taken into account when fixing  
security. The second is determining what amount of security is  
appropriate. In summary:  
the judge must look at the claims of the parties to determine  
whether it is plain and obvious they will not succeed; a prima facie  
case will suffice;  
any claims that are not sustainable will not be considered in fixing  
the appropriate quantum of security;  
looking at the evidence as a whole, the judge has discretion in  
fixing the amount that is appropriate security;  
that discretion must be exercised judicially based on the relevant  
evidence before the court and taking into account the objectives of  
the legislation: to protect those who supply work and materials to a  
construction project so long as the owner is not prejudiced;  
the amount of security may be less than the amount claimed  
under the lien.  
Counsel for the appellants asserts that the result of judges reducing security  
is effectively to eliminate a portion of a lien. That is so, but this always has  
been the case. If the quarrel is with the discretion afforded to judges by s.  
24(2) and (3), that is a matter for the Legislature.  
[72] As explained by Justice Macintosh in Atlas, the test for determining the  
amount of security required on account of any claim of lien is two-pronged. The court  
is first to consider what claims should be taken into account when fixing security  
and, second, what amount of security is appropriate.  
[73] The Partnership asserts that it is plain and obvious that the entirety of the  
plaintiff's lien is bound to fail or, alternatively, at the very least a significant portion of  
the plaintiff's lien is bound to fail. As set out above, they contend that the maximum  
Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd.  
Page 18  
possible lien that the plaintiff can prima facie assert is in the range of $1,615,636.76  
to $1,954,157.95.  
[74] The Partnership argues that the Court should take into account: (1) the  
$3,589,995.15 in subcontractor lien payments, defect and deficiency correction  
costs, and delay costs, as set out above, which far exceed Darwin's prima facie  
claim of lien, and (2) the Partnership’s claims as against Darwin, its principal Mr.  
Webbe, and Synergy. In the result, the Partnership argues that the Court should find  
it is plain and obvious that Darwin’s lien is not only grossly overstated but requires  
nominal, if any, security paid into Court. Therefore, the amount of security held in  
Court on account of the plaintiff's Lien ought to be reduced accordingly, with $1.00  
being paid into Court as sufficient security for the Lien.  
[75] At paras. 31–32 of West Fraser, Low J.A. discussed but rejected an argument  
for nominal security:  
[31]  
West Fraser says the chambers judge made all findings of fact  
necessary to support a conclusion that the liens could not be proven because  
they do not fit within the scheme of the Act. Therefore, the judge could have  
made an order under s. 24 for the liens to be replaced with security in the  
amount of one dollar. West Fraser pleaded this in its petition as an alternative  
basis for relief but, as I have said, the chambers judge did not rule upon it.  
[32]  
An order of the kind suggested by West Fraser would be tantamount  
to declaring the liens invalid. It would render them nugatory. This is because  
the provable amount of a lien is proscribed by the amount of security ordered  
under s. 24. If West Fraser's argument were to prevail, the amount of  
recovery in an action brought by either lien claimant in compliance with s. 33  
would be limited to one dollar.  
[76] In my view, security in the amount presently secured by the letter of credit in  
the amount of $3,085,612.93 is excessive.  
[77] As set out above, Darwin asserted the right to $3,085 612.93 in addition to  
the amounts already been paid. There was no evidence before me to support most  
of the claims that led to that total.  
Darwin Construction (BC) Ltd. v. PC Urban Glenaire Holdings Ltd.  
Page 19  
[78] In particular, there was no evidence to support the claims for change orders 1  
to 118, nor evidence to support the claims for contemplated change orders,  
requested change orders or change directives.  
[79] The net amount claimed by Darwin for additional costs, potential subtrade  
delay claims, and the delay claim amounts to $928,717.51.  
[80] For their part, the Partnership asserts that the subcontractor lien payments  
and additional expenses totalling $1,212,935.39 as a result of Darwin’s failures and  
the resulting six-month delay to the project must be set off against Darwin’s claims.  
[81] However, these claims have not been tested.  
[82] In these circumstances, where I can place limited confidence in the claims of  
the parties, I am prepared to reduce the lien bond security to the round sum of  
$500,000.  
[83] If the parties cannot agree to a form of order to achieve that reduction, I will  
hear further submissions from them to achieve that purpose.  
[84] I will not address the cost of the bond security at this stage of the  
proceedings, and I grant the defendants leave to renew a claim for some or all of  
that cost at a later time.  
Costs  
[85] The defendants have enjoyed some success on their application. However,  
they have not succeeded anywhere near the objectives that they had.  
[86] In the circumstances, I will award them costs of the preparation for and the  
hearing of their application at Scale B of Appendix B of the Rules.  
“The Honourable Chief Justice Hinkson”  


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