Cite as: Titan Construction Services Ltd. v. Wasson, 1987 NSCA 25 S.C.A. 01744 er- .. IN THE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION Jones, Macdonald and Pace, JJ.A. B E T W E E N: TITAN CONSTRUCTION SERVICES ) Raymond F. Wagner and LIMITED ) Anna Marie Butler ) for appellant appellant ) ) Respondents were unrepresented - and - ) ) Appedl Heard: ROBERT WASSON and BAACO PIZZA ) October 8, 1987 ATLANTIC LIMITED and ) LOUGHEAD ENTERPRISES LIMITED ) Judgment Delivered: ) November 6, 1987 respondent ) ) ) ) ) ) THE COURT: Appeal allowed and the order of the trial judge varied per reasons for judgment of Pace, J.A.; Jones and Macdonald, JJ.A., concurring.
• - 1 -PACE, J .A.: This is an appeal from judgment made pursuant thereto by the Honourable Judge Robert F. McLellan, a supernumera.t"y judge for the County Court for District Number Four, wherein claim for lien against the respondent, Limited, hereinafter referred brought under the Mechanics' Lien 178. The facts are briefly that on Pizza Systems Limited signed a Loughead to operate a Baaco approved by Baaco. On April 30, 1985 Robert Number 24 Inglis Street in the Town of Truro, in the County of Colchester, Nova Scotia, . entered aforesaid premises to Baaco for the purpose of establishing a Baaco Pizza restaurant. The the tenant could sublet to David remained a Baaco Franchi set::, and who was a Baaco Franchisee~. leasehold improvements in accordance with the_ specifications as set forth by Baaco and upon tenant was allowed 60 days to exert its option to purchase at fair market value less the improvements. This lease was duly registered in the Registry of Deeds in Truro on May 22, 1985. the decision and order for he dismissed the appellant's Baaco Pizza Atlantic to as "Baaco ", in an action Act, R.S.N.S., 1967, c. December 27, 1984 Baaco license agreement with David Pizza outlet in locations Wasson, the owner of Civic into a lease of the terms of the lease provided Loughead so long as he thereafter to any person The lease also provided for sale by the landlord the value of the leasehold
- 2 In or about the month of representing Baaco Pizza Atlantic appellant, who was in the business renovations, construction and materials, to tender on the of several Baaco Pizza outlets appellant, after a number of consultations with Mr. viewing the specifications supplied tender on the Inglis Street job. 1985 addressed to Baaco Pizza for the attention of Mr. the appellant tendered a proposal to carry out certain work at the Baaco Pizza outlet in Truro. $70,805.00. The tender was accept•:d by the appellant that the con·t:ract for the work Street property should be drafted in the Enterprises Limited. This, evidently, that David Loughead or his company transaction. However, on June 17, 1985 a contract was signed by the appellant and Loughe:ad Enterprises Limited to carry out the work at the Inglis Street property. The work went forward under appellant and Mr. Cox. However, invoices, payment was not forthcoming for Registration was filed -April 1985 Mr. Reid Cox, Limited, invited the of general interior the supplier of goods and construction and renovations in Nova Scotia. The Cox and by Baaco, decided to By letter dated April 24, Cox, The price quoted was Mr. Cox, who then advised on the Inglis name of Loughead was the first time was brought into the the direction of the upon submitting appropriate and a Claim of Lien on September 12, 1985 and
- 3 subsequently the action proceeded to trial. The trial judge found there the workmanship and that it workmanlike manner. He found claim against Loughead Enterprises of $62,042.09, and awarded the appellant this interest at the rate of 10.01 per cent 1985 to the date of judgment. claim against the respondemt Baaco on the grounds that Baa co did not of "owner" as set forth in s. Act. Although the appellant has appeal, I have concluded that the sole issue in this appeal is whether the trial judge erred in law in his interpretation of the definition of "owner" as contained in s. l(d) of the Act. The trial judge found Enterprises Limited both hc:~d an estate or interest in the lands sought to be charged. However, made no request to have the work performed by the appellant. In arriving at this conclusion, the trial judge stated: "There are numerous references to Cox' activities during the negotiations leading contract above referred to Cox was an agent of Baaco Pizza. consider these in further following direct testimony of particularly in cro:::;s-examination were no complaints as to was carried out in good the appellant had proved its Limited in the amount amount with from September 12, He dismissed the appellant's Pizza Atlantic Limited come within the meaning l(d) of the Mechanics' Lien set forth three grounds of that Baa co and Loughead he found that Baaco up to the signing of the which might indicate that I do not propose to detail because of the Pomeroy (p. 12) and more (p. 22). He
- identified exhibit # 7 as the contract which he prepared "for our signatures for standard form of construction contract. by David Loughead on behalf Limited as owner and by Gerald It is dated June 17, 1985. Pomeroy the following appears: 'Q. So to the best of your company is concerned Loughead Enterprises Limited? A. Our contract was work for them and they were to pay us.' "Opposite the word 'project' in the contract, the words 'Baaco Pizza Outlet Truro, in but the name of this elsewhere in the document. I find that there was a request by Loughead Enterprises Limited to the plaintiff to perform the work but there was no request made by Atlantic Limited for the am not prepared to infer any circumstances summarize:d above. It is clear from this statement no_ finding as to the agency status of solely on the contract to determine request the work was to be performed. In determining "with whose privity or consent" the work was performed the learned trial judge said: " There were no direct dealings and Baa co unless it can finding that Cox was an Pomeroy was justified in his belief that Coxw as sort of agent of Baaco' s the construction contract the work was to be done for Loughead Enterprises Limited and whatever role Cox played, · it was of Baaco with authority renovation costs." 4 this project." This is the It was signed of Loughead Enterprises Pomeroy as contractor. In cross-examination of your knowledge so far as we are dealing with with them, yes, we did the Nova Scotia' are typed defendant does not appear Based upon this evidence the defendant, Baaco Pizza performance of that work. I request by Baaco in the the trial judge made Mr. Cox, but relied the party upon whose between the claimant be found upon a preliminary agent of Baaco. In limine, some but the fact is that before was prepared, he knew that not as an agent to legally bind Baaco for
- 5 -I turn now to the law applicable in the present appeal. Section l(d) of the Mechanics' ~~~~~--~~~~~~ follows: "1 In this Act, (d) "owner" extends to or politic, including a railway company, having any estate or interest in the land upon or in respect of is done, or materials are placed or furnished, at whose request and (i) upon whose credit; or (ii) on whose behalf; or (iii) with whose privity and consent; or (lv) for whose direct benefit; work, or service is p•:rforrned or materials are placed or furnished, and all persons them whose rights are acquired after the work or service in respect of which the lien is or the materials furn:.shed furnished;" A mechanics' lien is purely a creation of our provincial statute and in derogation of statutory provisions creati::1g the right to strictly construed. However, upon the claimant establishing that he falls within the statute the enforcement is remedial in nature and should be given fair liberal interpretation. Clearly, the definition appears in the Act purports to enlarge the word in the ordinary· sense and Lien Act reads as any person, body corporate municipal corporation and a which the work or service claiming under him or claimed is commenced have been commenced to be the common law. Thus the a lien must be and beneficial of the word "owner" as it meaning of the envisages under certain
- 6 specific circumstances there may within the meaning of the statute. The Supreme Court of Canada in John Co. et al. , v. The York Farmers 54 S.C.R. 569, restricted the consent" by requiring some direct contractor and the person whose charged. Anglin, J., in c.elivering of the Court stated at p. 581: " While it is difficult, if not impossible, to assign to each of the three words 'consent' a meaning which overlap that of either of the others, after carefully reading all the authorities cited law the view enunciated in Graham v. 4 7 8; 9 0. R. 4 58, and approved in Gearing v. 27 Ont. App. R. 364, at consent' involves 'something in the natt.:.re the contractor and the persons whose interest is sought to be charged * * *· Mere knowledge of, or mere consent to, the work being done is not sufficient.' " There is no evidence here of any direct dealing by the respondent company with the purchaser's contractor such as is necessary to requisite to constitute 'owner' within the definition of Act.'" In City of Hamilton v. Cipriani et al., 169, Chief Justice Laskin in judgment of the Court stated at p. 173: " Schroeder J.A. in the looking to the substance the City, the Commission and interrelationship as o:1.e be more than one owner A. Marshall Brick Colonization Co. ( 1917) , meaning of "privity and dealing between the interest is sought to be the majority judgment 'request, ' 'privity' and will not to some extent I accept as settled Williams, 8 0. R. Robinson, page 371, that 'privity and of a direct dealing between establish the 'privity' the respondent company an the 'Mechanics' Lien [1977] 1 S.C.R. delivering the unanimous Ontario Court of Appeal, of the transactions between McDougall, construed the where the Commission became
- the general contractor for proceeded to carry out its general contractor. In my analysis, recognizing the fact that the Commission was being the City's ban:<er. the 'owner' within s. 1 (d) lienable under s.S, and it is idle formalism to contend that the work was not done at its request. regard Marshall Brick Co. Co. (1917), 54 S.C.R. 569, this conclusion. That case turned largely on the words 'privity and consent' which were then conjunctive under the statute and they are submission is that direct a request can be found, I limitation under the present Mechanics' Lien Act.~ In Northern Electric Company Manufacturers Life Insurance Company, Chief Justice Laskin in delivering of the Court stated at p. 720: ~ I would go further than· the Appeal and further than my brother Martland in assessing whether the respondent is an my opinion, the work herein have been done also on the respondent's behalf, if not also for its direct be:nef it. was also done on behalf direct benefit, but, if so, similar finding in respect regard to the arrangement between it and Metropolitan.~ I glean from the aforementioned must not only look to the contract, but also the substance of the transaction between the parties. clear that it is no longer necessary to have direct dealings between the parties before a Northern Electric extends the 7 the City and, as such, contract through another opinion, this is a proper The City was and remained so as to make its land I do not v. York Farmers Colonization as standing in the way of now disjunctive. If the dealing is required before am unable to accept such a Limited et al. v. The [1977] 2 S.C.R. 762, the majority judgment Nova Scotia Court of 'owner' under s. l(d). In can properly be said to It may be said that it of Metropolitan and for its this does not preclude a of the respondent, having cases that the Court Cipriani makes it request can be found and definition of ~owner~ as
- 8 contained in s. l(d) to include more than one party for whose direct benefit the work has been performed. In the present appeal the trial judge refused or failed to make a finding that Mr. Cox although it was clear on the unrefuted Pomeroy, president of the appellant relationship existed. Mr. Cox with Mr. Pomeroy which led to the appellant submitting the tender to Baaco Pizza. The Baaco provided for leasehold improvements and specifications, and the work appellant under the supervision with Baaco's recommendations. It must not be forgotten that the end result of this ent:ire exercise a shell building a Baaco Pizza restaurant. The fact that a contract was made between the appellant and Loughead Enterprises Li.mi ted preclude a review of all the evidence to determine the real relationship between the parties definition of "owner" as con~ained in s. l(d) of the Act. There can be no doubt on Mr. Cox requested the appellant behalf of Baaco and it was only after the tender was accepted by Baa co instructions were given contract out in the name of Loughead a franchisee of Baaco. By the ·terms was the agent for Baaco, evidence of Gerald company, that such a conducted the negotiations lease with Mr. Wasson according to its plans was carried out by the of Mr. Cox in accordance was to build from does not, in my opinion, in the light of the the evidence before us that to tender on the job on by Mr. Cox to make the Enterprises Limited, of the iicense to
- 9 Loughead and by the provisions in the lease to reasonably clear that before any leasehold improvements could be undertaken approval and consent from Baaco. Although direct Loughead if all went well :.n the business, the in my opinion, apply to Ba.3.co. license was to receive six per derived from the business and continuing advertising fee. Under Baaco was to provide leasehold landlord decided to sell the premises, to exert its option to purchase and the costs of leasehold improvements was to be deducted from the purchase price. Upon a review of all the evidence and for the reasons I have already stated, it is appellant is entitled to a lien against Baaco Pizza Atlantic Limited in the sum of $62,042.09 for the work and material supplied by the appellant at Baaco's request and within the conditions as contained in ~. l(d) of the Act. In the result, the appeal should be allowed with costs to the appellant both in tl-1is and the order of the t.:-ial judge varied to include against Baaco Pizza Atlantic Limited and conditions as those set forth in the order of the trial judge against Loughead Enterprises (_./ ........._ Concurred in: Jones, J. A. ~J· Macdonald, J .'i:.ZJ)n.._,. Baa co it is had to be forthcoming benefits would accrue to same would, Baa co by the terms of its cent of the gross income was entitled to charge a the terms of the lease improvements and, if the Baaco had 60 days my respectful opinion the court and the court below, a lien upon the same ter~s - . . ... . L.J..~m.~l. .e_a. ./)c ft t1
CANADA PROVINCE OF NOVA SCOTIA 1987, S.C.A. 01744 IN TEE SUPREME COURT OF NOVA SCOTIA APPEAL DIVISION on appeal from the COUNTY COORT OF DISTRICT NUMBER FOOR IN THE MATTER OF: The Mechanic's Lien Act BETWEEN: TITAN CONSTRUCTION SERVICES LIMITED, a body corporate Plaintiff - and -ROBERT WASSON and BACCO PIZZA ATLANTIC LIMITED, a body corporate and LOUGBEAD ENTERPRISES LIMIT~, a body corporate Defendants Heard Before: The Honourable Judge R.F. McLellan, J.C.C. Place Heard: Truro, Nova Scotia Date Heard: July 28, 1986 Counsel: Raymond F. Wagner, Esq. , for t:he Plaintiff; Peter Markus, Esq., for Bacco Pizza Atlantic Limited and Loughead Enterprises Limited; Thomas E. Hart, ESq., for Continental Bank C A S E 0 N A P P E A L
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.