On March 26th, 2020, the Province of BC declared a health emergency as a result of the Covid -19 virus. As far as the operation of law was concerned, that meant the total closure of courthouses and civil court registries until at least May 29st, 2020, except for emergency matters.

Of course with no court registries in which to file new claims, that same day the government issued Ministerial Order number 086 “suspending all limitation periods and mandatory time limits to commence civil claims”. This was an important step, as one of the few hard and fast rules still left is the time limitation to start a lawsuit-usually 2 years. The order took pains to clarify that if your time limitation to sue expired before March 26th, 2020, your rights were still dead.

But land registries still accepted title transfers, mortgages and anything else that could be filed online. Speculation among lawyers focused on builders liens, which must be filed in the land registry within 45 days of the posting on site of a Certificate of Completion (of the project, or distinct part thereof) or a worker, supplier or contractor’s right to share a holdback or tie up title disappeared. We thought the 45 day time limit would also be suspended, along with the 1 year time limit from filing a builders lien within which to sue the head contractor and the owner of the land.

We were wrong, on both counts.

On April 6th, 2020 a new ministerial order; number 098, effective April 15th, 2020 made it clear that builders liens must be filed within 45 of the completion of the work; and a lawsuit must be filed within a year after that. The “shutdown” has no effect!

I suspect that two factors came into play: the court registries were able to accept online filings of new lawsuits without difficulty, and the construction industry has kept going without disruption. The uncertainty among banks whether to advance funds to owners and general contractors during a building project could cause havoc. Typically, a bank requires that all liens be removed from title after each stage of construction, or no further draws will be allowed against a construction mortgage. That is because a builders lien would otherwise take priority over the security for the next draw. A big lien could put the bank in the red at the end of the project. And banks don’t like the colour red. So banks probably pressured the government to exempt liens and lien actions from the shutdown freeze, to make sure the lien rights of workers, suppliers and subcontractors would be subordinated to the rights of owners and banks.

This only becomes a problem if those with lien rights think their time limits are frozen. There should be no problem filing liens and lien actions online. Just beware, you in the construction trades: none of the time limits on your rights to file are suspended.

If you have any questions about builder’s liens, collecting on unpaid invoices, or other construction related claims, please call Chris Bacon at Drysdale Bacon McStravick.