Getting to trial on construction matters can be a long and arduous journey, but the ability to place a lien charge on a property can provide the claimant with security through that process – or can it? In 1951789 Alberta Ltd v Britannia Block General Partnership Inc (“Britannia Block”),[1] Applications Judge J.R. Farrington of the Alberta Court of King’s Bench (the “Court”) rendered a decision that could impact how secure a lien actually remains over time.

Background of Britannia Block

The plaintiff placed a lien on the defendant’s land and subsequently commenced an action and filed a certificate of lis pendens in June 2020.[2] In late July 2021, the defendant obtained a consent order to remove the lien and certificate of lis pendens in exchange for posting a bond as security in the amount of $1,595,842.50, as permitted by section 48 of the Prompt Payment and Construction Lien Act (the “PPCLA”).[3] The procedural record since the posting of the security is somewhat unclear, with the Court noting that a summary judgment application had been filed but not heard, and that there was some dispute regarding the answering of questions.[4] It is also unclear whether any document production or questioning for discovery had occurred.

This decision arose from the defendant’s application in July 2024 to release or reduce the amount of the security it had posted.[5] Applications Judge Farrington found two potential bases on which a release or reduction of the security might be available. [6]

The first basis: The merits of the case

First, the Court considered whether the facts justified a reduction in the amount based on the merits of the case. Because the decision to allow the bond to stand in place of the land was made by consent, the merits had not previously been adjudicated. A contentious aspect of the plaintiff’s claim was $801,576.27 pertaining to a significant delay claim.[7] Applications Judge Farrington noted that, while construction lien jurisprudence has occasionally allowed liens for delay claims, in this case, the delay claim was supported by expert evidence and may ultimately be found to be valid.[8] The Court also remarked that the inclusion of the delay claim in the lien was not specious.[9]

The Court noted that this was not the appropriate forum to decide the issue, and that the evidence at this stage did not support reducing or releasing the security on this basis alone.[10]

The second basis: Section 46(2) of the PPCLA

Second, the Court considered whether delays in enforcing the process, along with the alleged unfairness and expense to the defendant resulting from the continued posting of the security, justified its reduction or release. Section 46(1) of the PPCLA provides that where a certificate of lis pendens has been registered on a lien, the lien continues to exist until the later of: (a) the conclusion of the proceedings; or (b) the removal of the certificate of lis pendens.[11] Notably, section 46(2) states that, regardless of section 46(1), if a trial has not occurred within two years of the certificate’s registration, any interested party may apply to the Court to have it vacated and the lien discharged.[12] The Court found that security posted pursuant to section 48 engages section 46 of the PPCLA.[13]

The Court noted that while liens offer powerful security for otherwise unsecured claims, they impose a cost on the party defending the lien claim – whether through the loss of financial use of the land, the money paid into Court, or the premiums required to post a bond (in this case, approximately $100,000 at the time of the hearing).[14] The Court held that a party posting security cannot be expected to accrue such costs indefinitely.[15] The tradeoff for the benefit of security is an obligation to pursue lien claims promptly.[16]

The Court’s reasoning in Britannia Block

Ultimately, the Court found that, in the circumstances of this case, it was appropriate to apply section 46 to release the security for the lien and directed that the proceedings continue as an unsecured claim.[17]

The Court observed that the matter was “significantly past the two-year mark” and nowhere near trial.[18] Citing 1361556 Alberta Ltd v Ristorante Cosa Nostra Inc,[19] the Court noted that the two-year period in section 46(2), while not mandatory, serves as a target – one with potential consequences for failing to meet it, albeit on a discretionary basis.[20] The Court further noted that, as held in Ristorante, the lien claimant bears the burden of explaining the delay; while the explanation requirement is not onerous, it must still be satisfied.[21] Notably, Applications Judge Farrington did not provide reasons detailing any explanation from the plaintiff regarding the delay, suggesting that none was given.

Key takeaways for parties to a lien claim

This decision serves as a reminder to lien claimants to take active steps to advance their lien claims toward resolution in a timely manner. Practitioners should view this decision as a strong cautionary note when dealing with lien claims – an area already fraught with errors.

Practically speaking, liens typically occur in the context of complex construction disputes that warrant document discovery and questioning. It appears that these steps did not occur in this case, and in fact, the PPCLA does not expressly contemplate these steps in lien proceedings. Specifically, section 53(3)(f) of the PPCLA provides that questioning is not to occur without a court order. Nonetheless, it is not uncommon for parties to proceed with questioning without obtaining the necessary order. It is also common for liens to be filed while the dispute is determined through arbitration, in which case the court proceeding is either formally or informally stayed in favour of the arbitration. In the author’s view, lien claimants would be well advised to proactively seek these types of orders, and in doing so, ensure that any delay is clearly documented and explained to the court.

If you require support in navigating a construction lien dispute, whether you are bringing a claim or defending against one, Miller Thomson’s Construction and Infrastructure team can provide strategic, practical advice. Our professionals are ready to assist you in ensuring your rights are protected.

[1] 2025 ABKB 324 [Britannia Block],

[2] Ibid at para 17.

[3] RSA 2000, c P-26.4 [PPCLA].

[4] Britannia Block at para 17.

[5] Ibid at para 2.

[6] Ibid at para 3.

[7] Ibid at para 4.

[8] Ibid at para 7.

[9] Ibid at para 9.

[10] Ibid.

[11] PPCLA, s 46(1).

[12] Ibid, s 46(2).

[13] Britannia Block at para 15.

[14] Ibid at para 16.

[15] Ibid.

[16] Ibid.

[17] Ibid at para 22.

[18] Ibid at para 18.

[19] 2021 ABQB 157 [Ristorante],

[20] Ibid at para 19.

[21] Ibid at para 21, citing Ristorante at para 36.