Supreme Court of Canada
C. Beckett & Co. (Edm.) Ltd. et al. v. J.H.
Ashdown Hardware Co. Ltd., [1967] S.C.R. 610
Date: 1967-10-27
C. Beckett &
co. (Edm.) Ltd., Underwood Transit Mixed (1961) Ltd., Dominion Bronze Ltd.,
Freeze Maxwell Co.) Ltd., Holm’s Masonry (Northern) Ltd., and Western
Electrical Constructors Ltd. Appellants;
and
J.H. Ashdown
Hardware Co. Ltd. Respondent.
1967: October 27.
Present: Cartwright C.J. and Martland,
Judson, Ritchie and Pigeon JJ.
ON APPEAL FROM THE SUPREME COURT OF ALBERTA,
APPELLATE DIVISION
Mechanics’ liens—Waiver of lien rights by
subcontractors—Effect—The Mechanics’ Lien Act, 1960 (Alta.), c. 64.
The registered owners of certain lands
employed a construction company as general contractor to erect a building on
their property. The construction company fell into financial difficulties and
was unable to complete the building and the appellants, who were unpaid
subcontractors on the project, filed mechanics’ liens against the property. A
form of waiver of lien had been signed by each of the appellants and contained,
inter alia, the words “waive and renounce any lien or right of lien
which we have or may have upon the… land and… building… and do waive and
renounce any and all right to register or to hold a claim of lien against the
said land, building or chattels.” This waiver was given by the appellants at
the request of the owners of the property in order that a first mortgage might
be arranged and for the benefit of any subsequent purchaser and also for the
benefit of any subsequent mortgagee.
Applications having been filed to have
declared invalid the appellants’ liens, an order was made directing the
determination of two questions: (1) Did the execution of a waiver of lien
rights by any party preclude it from filing a valid lien? (2) A lien having in
fact been filed by such party, could those lienholders not being parties to the
said waiver of lien rights, take advantage of the provisions contained therein
to exclude those parties who executed such waiver from sharing in funds paid
into Court by the owners of the lands in question in satisfaction of all liens?
In the. judgment of the Chambers Judge both
of these questions were answered in the negative. On appeal from this judgment
to the Appellate Division of the Supreme Court of Alberta it was held that
[Page 611]
the appeal should be allowed and that the
questions should be answered in the affirmative. An appeal from the judgment of
the Appellate Division was brought to this Court.
Held: The
appeal should be dismissed.
APPEAL from a judgment of the Supreme Court
of Alberta, Appellate Division,
allowing an appeal from a judgment of Greschuk J. Appeal dismissed.
J.C. Cavanagh, Q.C., and R.J. Biamonte,
for the appellants.
D. Spitz and G.A. Lucas, for the
respondent.
At the conclusion of the argument of counsel for
the appellants, the following judgment was delivered:
CARTWRIGHT C.J. (Orally for the Court):—-We
find ourselves in complete agreement with the reasons of Mr. Justice Allen
who gave the unanimous judgment of the Appellate Division. It follows that the
appeal is dismissed.
We find ourselves unable to act upon the
arrangement as to costs made between the parties and our order is that the
appeal be dismissed with costs.
Appeal dismissed with costs.
Solicitors for the appellants: Cavanagh,
Henning, Buchanan, Kerr & Witten, Edmonton.
Solicitors for the respondent: Macdonald,
Spitz & Lavallée, Edmonton.
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