Can a contractor sue in the BC Supreme Court to enforce a builders lien worth $35,000 or less and still recover costs? Claims of that size would normally belong in Small Claims Court, and a plaintiff who recovers an amount within that jurisdiction is typically limited to disbursements. However, in Rather Be Plumbing Ltd. v Kimber, 2026 BCSC 1984 [Rather Be], the BC Supreme Court (the “Court”) nevertheless awarded the contractor costs at Scale B, even though its lien was extinguished and its judgment was under $20,000 before interest.[1]

The key was timing. When the contractor started its action, it had a reasonable basis for seeking relief under the Builders Lien Act, which is available only in the Supreme Court. The decision also offers practical lessons on unwritten contracts, time-and-materials claims, and proving deficiencies.

What was the dispute in Rather Be?

Rather Be Plumbing Ltd. (“RBP”) did plumbing and gas fitting work on a time and materials basis for a property near Shawnigan Lake, British Columbia. The parties did not reduce the scope of work to writing, and a dispute emerged over what, if anything, was owed. RBP ultimately stopped work and filed a claim of lien.[2]

What did the Court find?

The Court found:

  1. The lien was out of time. The Court found that, under the Builders Lien Act, RBP’s work was deemed abandoned after 30 days without work and the 45-day filing period had expired. RBP filed more than six weeks late, extinguishing the lien.[3]
  2. RBP’s contract claim succeeded, in part. The Court granted judgment of $19,525.60 plus prejudgment interest. It deducted $10,000 for invoiced work the owner said was never done, because RBP offered no evidence addressing that work.[4]
  3. The owner’s counterclaim failed. He tendered no admissible expert evidence that RBP’s work fell below the standard. He also offered no admissible evidence that RBP caused the defects or of the repair costs.[5]
  4. The claim against the other homeowner was dismissed. She was a registered owner but had not contracted with RBP, so there was no basis to hold her personally liable for the debt.[6]
  5. RBP was awarded costs. Despite the small judgment and the failed lien, the Court awarded costs at Scale B, the standard scale for cases of ordinary difficulty.[7][8]

Why did RBP get its costs?

Under Rule 14-1(10) of the Supreme Court Civil Rules (the “Rules”), a plaintiff who recovers an amount within the Small Claims jurisdiction is normally entitled only to disbursements, unless there was sufficient reason to sue in the Supreme Court. [9]RBP’s judgment was well below the $35,000 Small Claims limit.[10] However, when RBP commenced its action, it had a reasonable basis for seeking lien remedies available only in the Supreme Court. The Court held that bringing the builders lien claim was not unreasonable at the time it was commenced, and it did not rely on hindsight, including the fact that the claim ultimately failed, in deciding the costs award.[11]

What should industry stakeholders take from this?

  • Put the contract in writing and keep records that prove every charge. The Court enforced RBP’s unwritten contract, but the missing terms caused a dispute over scope and price. A clear building contract needs:
    • agreement on the parties;
    • the scope of work;
    • the time for performance;
    • and the price. [12]
  • Be mindful of the burden on time-and-materials claims. A contractor or subcontractor bears a heavy burden to prove unpaid charges under a cost-plus contract. Once someone higher up the chain raises a credible challenge to specific charges, the contractor must be able to substantiate those charges as the party making the claim.[13]
  • Follow the Rules. Rule 7-1 of the Rules requires each party to list and produce the documents it will rely on. The owner did not, and the Court excluded his documents at trial. Even after an adjournment, his disclosure came too late for RBP to respond fairly.[14]
  • Prove deficiencies with an expert. Courts generally require expert evidence on whether a trade’s work met the required standard, unless the defect is obvious.[15]
  • Weigh the costs of litigation. Costs awarded in Supreme Court are generally assessed under the Supreme Court tariff and are typically considerably less than the fees actually incurred. Contractors and subcontractors should therefore seek legal advice and weigh the costs of enforcing a builders lien in Supreme Court against the amount at stake, particularly where a breach of contract claim in Small Claims Court would be simpler and less costly.

If you have questions about preserving or enforcing a builders lien, or about where to bring your claim, please do not hesitate to contact a lawyer from Miller Thomson’s Construction Litigation Team.

This case comment is for general information only and is not legal advice.

[1]Rather Be Plumbing Ltd. v Kimber, 2026 BCSC 1984 at paras 91–94, 96 [Rather Be].

[2]Ibid at paras 24–44, 60, 65.

[3]Rather Be, supra note 1 at paras 33–36, 43 and 56–62.

[4]Ibid at paras 39–41, 63–72, 84 and 86–87.

[5]Ibid at paras 11, 16, 42, 73–77 and 88.

[6]Ibid at paras 7–8, 78 and 89.

[7]Ibid at para 96.

[8]The award excluded costs associated with the July 20, 2026, continuation of trial.

[9]Supreme Court Civil Rules, BC Reg 168/2009 [Rules], r 14-1(10).

[10]Small Claims Act, RSBC 1996, c 430, s 3(1); Small Claims Court Monetary Limit Regulation, BC Reg 179/2005, s 1.

[11]Rather Be, supra note 1 at paras 92–94, citing Grenier v Williams, 2020 BCSC 1827 at paras 12–19.

[12]Fame Construction Ltd v 430863 BC Ltd, 1997 CanLII 4342 (BC SC) at para 47, aff’d 1998 CanLII 4674 (BC CA).

[13]G.T. Parmenter Construction Ltd v Sanders, [1947] OWN 539 (Ont HC) at para 10; Rather Be, supra note 1 at paras 39–41 and 71–72.

[14]Rules, supra note 9,r 7-1(1); Rather Be, supra note 1 at paras 11, 14, 16 and 42.

[15]Zettl v Roger Garside Construction Ltd, 2016 BCSC 2307 at paras 122–127.