When Is A 'Bridge' Not A 'Road'?: The Application Of The Builders' Lien Act To Overpass Projects

The Saskatchewan Court of Appeal recently upheld1 the decision of the Queen's Bench ("QB") in PCL Construction Management Inc. v Saskatoon (City).2 This case is instructive on when The Builders' Lien Act ("BLA") will apply to road construction projects - especially those involving overpasses.

In 2018, a dispute arose involving two overpass projects (the "Project") in the City of Saskatoon (the "City") when subcontractors served Written Notices of Lien on the City for materials and/or services provided to the Projects. The General Contractor, PCL Construction Management Inc. ("PCL") applied to the Saskatchewan Queen's Bench ("QB") to have some of the liens declared invalid. PCL's central argument was that the BLA did not apply to these Projects as they were for the construction of overpasses; i.e. "bridges". The Court disagreed and found that the BLA did apply and declared all liens to be valid. PCL appealed.

The Court of Appeal agreed with the QB and confirmed the BLA applied and the liens were valid. The central question at issue was the interpretation of section 5 of the BLA, which reads:

Application of Act to Crown

5(1) Except as otherwise provided, the Crown is bound by this Act.

(2) This Act does not apply where services or materials are provided:

(a) in connection with a contract entered into under or pursuant to The Highways and Transportation Act; or

(b) in connection with the construction or improvement of a street or highway owned by the Crown.

(3) Notwithstanding subsection (2), this Act applies where services or materials are provided in connection with the construction or improvement of a bridge owned by the Crown other than a bridge constructed or improved under or pursuant to The Highways and Transportation Act.

The Court found the determination of whether the BLA applies to a street or a highway is a three-stage test.

1. Is the road owned by a government entity, including a municipality? (In this case, there was no contest on this point)

2. Is the project being performed under or pursuant to The Highways and Transportation Act ("HTA")?

   If the answer is "yes", the BLA does not apply. End of inquiry.

   If the answer is "no", move on to question #3:

3. Does the project include a bridge?

   If the answer is "yes", the BLA applies.

   If the answer is "no", the BLA does not apply.

   The first question at issue was whether the Project was performed under or pursuant to the HTA. In this case, partial Project funding came from the Province and...