When Does The Saskatchewan Builders' Lien Act Apply In The Context Of A Government Street Or Highway Construction Project?

In PCL Construction Management Inc. v. Saskatoon, 2018 SKQB 119, Justice Currie confirmed that liens can be registered on government highway construction projects that (1) are not governed by The Highways and Transportation Act (the "HTA") and (2) include a bridge. The court also declined to separate a highway construction contract into bridge and non-bridge work for the purposes of the Builders' Lien Act (the "Act"). Rather, for the sake of workability and predictability, the Court found that unless the HTA applies, the Act would apply to the entirety of the contract if it includes the construction or improvement of a bridge.

Factual Background

This case arises out of the construction of two major interchanges in Saskatoon, Saskatchewan. The first interchange is located at the intersection of McOrmond Drive and Highway 5. The second interchange is located at the intersection of Boychuk Drive and Highway 16.

The prime contract for the interchanges was between the City of Saskatoon ("Saskatoon") as the owner and PCL Construction Management Inc. ("PCL") as the contractor. When disagreements arose between the parties, a number of sub-contractors served written notices of liens. In response to the notices of lien, PCL sought a declaration from the court that the Act did not apply to the constructions projects; or, at least, the subcontracts, which did not directly contribute labour or materials to the building of the bridges.

Section 5 of The Builder Lien Act

For context, it is important to remember that the Act as a whole applies differently to the government than it does to anyone else. It does not permit the registration of liens on crown land. It only provides for serving the government with a Written Notice of Lien, which essentially forces the government to set aside a fund for the entire satisfaction of the lien until the underlying dispute is settled or decided by the courts. The idea is that by tying up some of its funds, a Written Notice of Lien will put some pressure on the government to resolve its disputes with subcontractors.

Section 5 of the Act can appear confusing at first glance, and most will have to read it a few times to understand what it says. It carves out the principle that the Act will usually not apply to the construction of public streets or highways. However, it does apply to the construction or repair of bridges. It is not clear exactly why the Legislature saw fit to give special protections to bridge builders that...