Executive Summary: Key Legal and Evidentiary Issues

• Two builders' liens were discharged after a one-day gap between delivery to a Land Titles P.O. Box and entry into the Pending Registration Queue.
   
• Alberta's Land Titles Act ties satisfaction of statutory registration deadlines to entry into the Pending Registration Queue, not to physical delivery or receipt.
   
• Section 42 of the Builders' Lien Act provides that a lien not registered within 45 days ceases to exist, with no judicial power to extend that period.
   
• Whether section 190 of the Land Titles Act can revive a lien that has already ceased to exist under section 42 was assumed, without being decided, for purposes of argument.
   
• Absence of prejudice to the respondents and absence of any recording error by the Registrar were both considered but found insufficient to justify equitable relief.
   
• Correctness was confirmed as the applicable standard of review on this appeal from an applications judge's decision.

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Facts of the case

The Micro Collective Inc. and Edward Wilson appealed a decision of Applications Judge Prowse discharging two builders' liens registered against land owned by the Hutterian Brethren Church of Tschetter. The liens stemmed from unwritten agreements made in 2019 and 2020 to design a greenhouse for commercial cannabis cultivation on the Church's property, a project that ultimately did not proceed. All parties agreed that April 17, 2023 was the last day on which the liens could be validly registered. The Appellants sent their lien documents to the Calgary Land Titles Office by Canada Post Xpresspost, and Canada Post delivered the package to the Land Titles P.O. Box on April 17. A government-contracted courier then moved the documents from the P.O. Box to the Land Titles Office, where they were entered into the Pending Registration Queue on April 18 — one day after the deadline. That single day separated the Appellants' position that the liens were timely from the Respondents' position that they had lapsed.

Policy and legislative provisions at issue

Two statutes governed the dispute. Because the underlying work agreements predated August 29, 2022, the applicable lien regime was the pre-amendment Builders' Lien Act [the decision cites this statute as "RSA 2000, c B-7" at one point and, elsewhere, as the "Prompt Payment and Construction Lien Act, RSA 2000, c P-26.4... as it read before" the amendment, "when it was titled the Builders' Lien Act" — the source uses both citations for what appears to be the same pre-amendment statute]. Sections 41 and 42 of that Act require registration within 45 days of the lien right arising, failing which the lien "ceases to exist." Section 37(3) separately provides that "[n]othing in this section dispenses with the requirement of registration of a lien," confirming that the Act's curative provision for defective lien content does not extend to missed deadlines. On the Land Titles Act side, section 14(2) requires the Registrar to examine an instrument for completeness and proper form before assigning it a serial number, while section 14.1(7) provides that a statutory registration deadline is deemed satisfied once the instrument or caveat has been entered into the Pending Registration Queue. The Appellants also invoked section 190 of the Land Titles Act, which allows a judge to direct the Registrar to "cancel, correct, substitute or issue any certificate of title or make any memorandum or entry on it," arguing this provision could support treating the liens as received on April 17 rather than April 18.

Reasoning and analysis

Justice Magnan held that section 14.1(7) explicitly ties satisfaction of a registration deadline to entry into the Pending Registration Queue, not to delivery at a P.O. Box or physical receipt by the Registrar. Citing Factors Western Inc v DCR Inc and Young EnergyServe Inc v LR Ltd, the Court applied a strict interpretation to the procedural requirements for establishing lien rights, distinguishing this from the liberal interpretation given to the scope of lien rights once established. Nothing in the Pending Registration Queue Regulation defined "received" or deemed an instrument entered upon delivery to a P.O. Box. On the second issue, the Court declined to extend the 45-day period under section 41, noting that a judge cannot lengthen a statutory time limit absent express legislative authority, per Kehewin Cree Nation v Mulvey. Turning to section 190, the Court assumed without deciding that residual jurisdiction to revive a lien that has ceased to exist under section 42 might exist, but found no correctable error in the register: the Registrar had accurately recorded the instruments as presented and entered them into the queue on April 18. Reviewing authorities including Alberta Drywall & Stucco Supply Inc v Tilt-Tech Construction Ltd, Patel v Cunningham High Performance Execution Team Corp, and TRG Developments Corp v Kee Installations Ltd, the Court found that any section 190 discretion in this context would be confined to exceptional cases involving equitable considerations such as fraud, estoppel, or Registrar error — none of which were present here. While the Court acknowledged there was no evidence of prejudice to the Church Respondent or third parties, it found this insufficient on its own, particularly given the Torrens system's reliance on objective, publicly ascertainable registration events, as recognized in Bank of Montreal v 1323606 Alberta Ltd.

Ruling and overall outcome

The Court dismissed the appeal, upholding the discharge of both builders' liens. Delivery to the Land Titles P.O. Box on April 17, 2023 did not satisfy the statutory registration deadline; the operative event was entry into the Pending Registration Queue on April 18, after the 45-day period had expired, causing the liens to cease to exist under section 42 of the Builders' Lien Act. The Court found no jurisdiction to extend the statutory deadline and, even assuming section 190 could otherwise permit relief, declined to exercise any such discretion given the absence of a recording error or exceptional equitable circumstances. The successful parties were the Respondents — the Hutterian Brethren Church of Tschetter, Tschetter Manufacturing Co. Ltd., Tschetter Farming Co. Ltd., and ATB Financial. The respondents were awarded costs of the appeal, though the amount was Not Specified; the decision notes that if the parties cannot agree on costs, they may submit brief written submissions within 30 days of release.