Importance of Compliance with Court Orders

• Jenna
  Chamberlain

  Jenna
  Chamberlain

  view bio

In a recent decision of the Court of King’s Bench of Alberta, Lesenko v Wild Rose Ready Mix Ltd., 2023 ABKB 148, a party failed to comply with a Court Order which set out the deadline to enforce its lien. The Court considered whether to amend the Court Order or discharge the lien.

Wild Rose Ready Mix Ltd. (the “Subcontractor”) was the subcontractor hired to supply concrete for Lesenkos’ (the “Owner”) building. The Owner failed to pay the Subcontractor for the work supplied and the Subcontractor filed a lien against Lesenkos’ land.

The Subcontractor and the Owner entered a consent order in which the Owner paid security for the liens into court and the liens were discharged from title (the “Consent Order”). The Consent Order required the Subcontractor to take steps to enforce the lien within 180 days and, if it failed to do so, the lien would cease to exist.

The Subcontractor failed to enforce its lien within 180 days.

The Owner applied to have the liens declared invalid and, in response, the Subcontractor requested that the Consent Order be amended to extend the timeline to enforce.

The Court held the “extraordinary statutory remedy that permits a lien holder to sue an owner requires speedy action and, to the extent possible, summary determination”.

The Court found that it had the general power to vary the timeline in the Consent Order. However, this use of discretion requires a balancing of harm, prejudice and sanction, and a consideration of the merits.

The Court failed to exercise its discretion to amend the Consent Order because there was no compelling reason to extend the time.

The Owner’s application was allowed and the liens were declared invalid.

Takeaway

The timelines in court orders should be followed. Any failure to do so requires a compelling reason, but it is best to ensure compliance.

_{This post is meant to provide information only and is not intended to provide legal advice. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this post to be outdated.}