Thursday, November 27, 2008



The filing of a lien under the Mechanics Lien Act is an extraordinary remedy, akin to obtaining an Ex Parte Court Order, or more so. There must be a strict adherence to the process as well as to the legislated requirements which must be met before a valid lien is filed. Because the property owner does not have an opportunity to be heard prior to the filing of a Lien, the creditor’s affidavit must be exact, in all aspects. The legislation must be given a strict interpretation. (See Wabco Standard Frame Inc v. Sobeys Inc., 1997 CanLII 9565 (NB C.A.), 1997 CanLii 9565 (N.B.C.A.) per Hoyt, C.J.N.B.)

[13] The Respondent has compared this application to the procedures set out in the N.B. Rules of Court for summary judgment. The New Brunswick Court of Appeal has been clear in repeating the criteria which must be established before granting summary judgment. (See Shoreline Systems Ltd. V. New Brunswick, 2001 N.B.C.A. 29 (CanLii) per Drapeau, J.A. for a useful review of New Brunswick decisions on point.)

[14] As well, the issue of proper affidavit evidence was discussed in Richard A. Harris and HAR Construction Limited v. W.H. Goodwin & Co. Ltd. And W. Harrison Goodwin, 2008 N.B.C.A. 14 at paragraph 6.

[15] It is clear in both types of applications, the affidavit evidence must be clear, unequivocal, and accurate.

[16] The court agrees that defective, false, misleading or incomplete affidavits will invalidate a claim and will lead to dismissal.

[17] As counsel for the Applicant pointed out, the Respondent has a right to pursue his claim by proceeding with an action. That right will not be affected by this order. If there are facts in dispute, which both counsel have acknowledged there are, that evidence and those facts can be more properly decided at a hearing.

[18] The court accepts the Applicant’s submission that the Respondent’s affidavit contained misleading or false statements of fact. The court finds that the affidavit is defective. It is the affidavit which forms the foundation of the lien.

[19] As well, it is to be noted that the affidavit of the Respondent is not consistent with the wording of the lien. The affidavit deposes that there was a supply of $59,520.97 worth of materials to the property, yet, the lien as filed in the Registry Office states that the claim is for a LGS Floor system, LGS Wall system and wages. The two documents are not consistent.

[20] Given the above, the lien must fail and is not valid. The Respondent is ordered to vacate the Lien and to file same with Service New Brunswick forthwith.


[21] The Applicant seeks costs. The Applicant prepared, filed and served a detailed and lengthy Notice of Application with supporting affidavits and exhibits. The Applicant filed a brief. These documents involved time and an expenditure of funds.

[22] Costs are awarded to the Applicant in the amount of $1,000.00 plus HST. The following disbursements are

assessed in addition: court filing fees, process service fee, and reasonable photocopies plus HST. Costs are payable forthwith.


Barbara L. Baird, J.C.Q.B.

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