Wrong Registry, Lost Builders Lien: A Costly Procedural Misstep In A Recent British Columbia Supreme Court Decision

In a recent decision, MGC Contractors Ltd v 1417028 BC Ltd., 2026 BCSC 1438, the British Columbia Supreme Court reaffirmed the importance of compliance with all components of the Builders Lien Act, S.B.C. 1997, c. 45, including following the jurisdictional requirements.

Background

The respondent was a subcontractor on a mixed-use development project located in Kelowna, BC. On April 22, 2025, the respondent filed a builder’s lien claim against the project lands. The lien claim was registered in the Kamloops Land Title office, as properties in Kelowna fall under the Kamloops Land Title District.

Eight months later, in December 2025, the respondent purported to enforce its lien claim by filing a notice of civil claim; however, it incorrectly filed the action in the Kamloops Supreme Court Registry rather than the Kelowna Supreme Court Registry. The applicant, MGC Contractors Ltd. promptly advised the respondent that the action had been commenced in the wrong court registry, and suggested the respondent either transfer the action to Kelowna Supreme Court Registry or commence a new action there. Notwithstanding the applicant’s warnings, the respondent took no steps to transfer or refile the action in the proper court registry before the one-year deadline to commence an action had expired.

The law

Under s. 33(1) of the Builders Lien Act, an action to enforce a lien claim must be commenced within one year of the date the lien is filed. If not, the lien is extinguished under s. 33(5).

Section 27 of the Builders Lien Act, read together with s. 21 of the Law and Equity Act, R.S.B.C. 1996, c. 253, mandates that the action must be commenced in the registry of the Supreme Court in the municipality where the land is located, unless the court otherwise orders. In this case, since the project was located in Kelowna, BC, the action must be filed in Kelowna, BC, despite the lien claim being registered in the Kamloops Land Title Office.

The Court’s decision

The respondent presented two main arguments in support of dismissing the application to cancel the claim of lien. First, it argued that the one year limitation period should start running from the commencement of the Kamloops Action, not from the filing of the lien claim.¹ The Court rejected this submission, finding that it would effectively extend the mandatory one-year period prescribed by the Builders Lien Act.² The Court emphasized that a builder's lien is a statutory remedy that requires strict compliance with legislative requirements.³

Second, the respondent argued there was no intentional delay to the proceedings.⁴ It explained that upon receiving the applicant’s jurisdictional warning, its former counsel had prepared materials to transfer the action to the proper registry, but had not yet filed them.⁵ The Court found these efforts "not good enough," particularly given that the jurisdictional issue was identified early and an easy solution had been identified.⁶

Notably, the only application before the court was the petitioner’s application to extinguish the lien claim. The respondent did not file a cross application seeking to transfer the action to the correct registry. Despite this, the Court relied on Scandia Paving Ltd. v. Bengag, 2017 BCSC 1188 to confirm that even where a transfer application is brought, the Court retains discretion to refuse it.⁷ In this case, the respondent had not filed a transfer application. The Court granted the petitioner's application and ordered the cancellation of the builder's lien and the return of the petitioner’s security.⁸

Key takeaways

This case serves as a crucial reminder for anyone involved in builders liens in British Columbia: meticulous attention to jurisdictional requirements and statutory deadlines is paramount to protecting lien rights. Builders lien claim enforcement actions must be filed in the court registry closest to where the lands are located, regardless of which Land Title office is involved. Commencing an action in the wrong registry, and failing to correct your mistake within the statutory time period, may result in the cancellation of your claim of lien.

Footnotes