November 7 @ 8:00 amNovember 8 @ 4:00 pm
BMO Centre, 20 Roundup Way SW
Calgary, AB T2G 2W1 Canada
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Transforming business to business interaction: BUILDEX is Western Canada’s event for the Construction, Architecture, Design and Real Estate industries. With engaging presentations on matters at the forefront of our industry, BUILDEX is a platform to hear from Change Agents and Thought Leaders on future challenges and opportunities. 2018 won’t disappoint – revamping the traditional conference and tradeshow this year’s event will be a highly relevant, high value, high energy experience! You won’t want to miss this — Registration opens September 5th.

Attention Members

We have arranged for the GRACO sales rep to put on several classes for the APCA membership on paint sprayers, including airless, air assisted airless and HVLP systems. 

Seats are limited so we are reserving spots in advance.  Classes are approximately 1.5 hours long each and will be held at Cloverdale Paint 4884 – 104 Avenue SE, Calgary, AB 

Legal Issues: Dismissal for delay

By David I. Bristow, QC, LSM, C.Arb

In July 2016, the Ontario Court of Appeal delivered judgment in a bizarre case of dismissal of six construction lien actions, and one trust action, for a 15-year delay (Southwestern Sales Corporation Limited v. Spurr Bros. Ltd. et al., p. 132 OR [3D] 794). This was an appeal from an order of Justice Pamela Hebner, from the dismissal of a motion to set aside a master’s order dismissing the action.

The plaintiff, Southwestern, supplied aggregate building materials. It registered six claims for lien against the land of the defendants, Spurr Bros., in December 2000. Action was commenced in January 2001. Spurr Bros. paid approximately $330,000 into court and the liens were lifted. In January 2003, the plaintiff filed its trial record. It then commenced a breach of trust action. A very lengthy period of inactivity followed.

Status hearings were scheduled, but were adjourned. The trial was set for September 2009, but did not proceed—it was eventually struck from the trial list. More status hearings were scheduled and adjourned at the defendants’ request. A status hearing set for October 6, 2014 was pre-emptory. No one appeared for the plaintiff, and the actions were dismissed by Case Management Master Lou Ann Pope.

The defendant obtained its money out of court, after it had been paid into court years before. It then tried to garnish the plaintiff’s bank account to satisfy its unpaid costs order.

The plaintiff obtained new counsel, who moved right away to set aside the dismissal of the plaintiff’s actions. The previous lawyer, Mr. I, had been representing the plaintiff until he surrendered his license to the Law Society of Upper Canada about two months before the status hearing, unbeknownst to his client.

The plaintiff advanced three grounds of appeal to the Court of Appeal:

The motion judge applied the wrong legal test in dismissing the actions.
She erred in failing to accept the appellant’s explanation for its delay.
She erred in finding the defendant had suffered prejudice.

The legal test

The Court of Appeal found the correct legal test had been met. It stated:

a decision to dismiss an action for delay at a status hearing is discretionary and entitled to deference on appeal unless the decision was made on an erroneous legal principle or is infected by a palpable and overriding error of fact.

It then stated:

the timeliness of the adjudication is one measure of the health of a justice system. In respect of the criminal justice system, the Supreme Court of Canada has stressed the need to change a ‘culture of delay and complacency towards it (R. v. Jordan 2016 S.C.J. No. 27).’ The same can be said of the Ontario Civil Justice System …

the Rules of Civil Procedure contain general and specific provisions to create a culture of timely civil justice. At the general level, rule 1.04(1) requires courts to construe the rules ‘to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.’ At the specific level, rule 48.14 establishes a presumptive timeframe for the listing of a civil action for trial which, if not met, requires the Plaintiff to show cause why the action should not be dismissed. Rule 48.14 provides the court with a tool by which to assume an active role in controlling the pace of litigation.

The court summed up the issue by finding the plaintiff wanting to set aside the dismissal order made at the status hearing must demonstrate two things:

There was an acceptable explanation for the plaintiff’s delay.
If the action were allowed to proceed, the defendant would suffer no non-compensable prejudice.

Explanation for delay

The plaintiff explained its delay of 13 years was due to having been misled by its counsel about the progress of the action. It said it was not told a status hearing had been scheduled for October 2014. It also said it was unaware its counsel had been delaying the action or had surrendered his license.

The motions judge found the plaintiff did not have an adequate explanation for the delay. She stated:

When years had passed without any substantive steps being taken towards a resolution, why did the plaintiff not investigate and demand that steps be taken? Why did the plaintiff not retain another counsel to move the action forward? There was no answer offered to answer these questions.

The Court of Appeal found the plaintiff bore primary responsibility for its progress. Retaining a lawyer in the action did not lessen that obligation. The court stated:

as part of its obligation to move its construction lien actions along, the appellant was required to take reasonable steps to supervise its counsel’s work to ensure there would be an expeditious determination of the actions on their merits. On a motion to set aside a dismissal order, one would expect a commercial plaintiff like the appellant to file concrete evidence describing the steps it had taken to supervise its counsel’s handling of its actions.

Therefore, there was no acceptable explanation for the 13-year delay.

Prejudice to the defendants

Since there was no acceptable explanation for the delay, the court held it was not necessary to deal with the issue of non-compensable prejudice to the plaintiff. The Appeal Court did review the prejudice matter without making a decision. It agreed with Justice Hebner’s reasons for judgment when she stated:

A lien claim can be an onerous thing for a defendant. A defendant is faced with the prospect of either having its land tied up as a result of the registration of a claim for lien or, alternatively, having to finance sometimes substantial payments into court in order to free up title to the land. Similarly, a breach of trust claim can also be an onerous thing for defendants. They are faced with the possibility of being personally responsible for a corporate debt. For these reasons, it seems to me that a lengthy delay in a claim for lien case (and a breach of trust case) constitutes prejudice to the defendants of the kind described above. If the lien claimant wants to take advantage of the provisions of the Construction Lien Act and tie up title to a defendant’s property, it ought to proceed expeditiously to have its claim determined. Similarly, if a lien claimant wants to take advantage of the trust provisions of the Construction Lien Act it ought to be prepared to proceed expeditiously to have its claim determined. A lien claimant ought not to be entitled to sit back and allow years to pass while the defendant’s property (or, as in this case, the defendant’s money) is held hostage.


Judges have an uncanny instinct to find cases where the facts are so clear a new concept can be enunciated and take hold, greatly assisting our beleaguered judicial system. Master Pope, Justice Hebner, and the Court of Appeal were all correct, and they gave reasons in very clear and certain terms.

With this case in mind, plaintiffs will now be under increasing pressure to move their cases along as quickly as possible, and clients will share that responsibility with their lawyers.


David I. BristowDavid I. Bristow, QC, LSM, C.Arb., is a Toronto-based provider of alternative dispute resolution (ADR) services consisting of mediations, arbitrations, and early neutral evaluations. He is co-author of Construction Builders’ and Mechanics’ Liens in Canada. Bristow is a member of the American Arbitration Association’s (AAA’s) panel of arbitrators, a mediation and arbitration panel member of both the International Chamber of Commerce and the Centre for Public Resources Institute of Dispute Resolution, and a charter member of Mediators Beyond Borders. He can be reached at




2017 Annual General Meeting

Pursuant to Section 9.2 of the Alberta Painting Contractors Association bylaws and Section 1 (d) of the Societies Act, notice is hereby given that the Annual General Meeting of the Alberta Painting Contractors Association will be held:

Tuesday, March 21, 2017 at 2:00 pm

Calgary Construction Association
2725 12 Street NE, Calgary, Alberta


  • Alberta Construction Association
    The ACA leads Alberta’s construction industry in government advocacy, public relations, industry practices and partnerships and promotion of a skilled workforce.
  • Calgary Construction Association
    CALGARY CONSTRUCTION ASSOCIATION (CCA) is a non-profit voluntary membership association which is involved in the fostering and advancement of the interests of those who are engaged in, or who are directly or indirectly connected with the construction industry in the Calgary area.
  • Canada Green Building Council
    The Canada Green Building Council is a not-for-profit, national organization that has been working since 2002 to advance green building and sustainable community development practices in Canada.
  • Construction Specification Canada
    CSC is a national multi-disciplinary, non-profit association with chapters across Canada. CSC is committed to ongoing development and delivery of quality education programs, publications and services for the betterment of the construction community
  • Edmonton Construction Association
    ECA provides up-to-date information on construction procurement opportunities and industry activities for a membership of 1098 General Contractors, Trade Contractors, Manufacturers and Suppliers of Goods and Services to the Construction Industry.
  • Painting & Decorating Contractors of America
    The Painting and Decorating Contractors of America (PDCA) is the only trade association dedicated to the success of painting and decorating contractors.

Industry Links

  • AB Architects Association
    The Alberta Association of Architects (AAA) is a self-governing professional association charged under the Architects Act with the registration of Architects and the licensing of Licensed Interior Designers in the province of Alberta.
  • Alberta Construction Magazine
    Here, you’ll get a sampling of ACM’s in-depth coverage of Alberta’s construction industry. From the infrastructure sector to the commercial, from industrial to institutional, ACM captures the projects from planning to execution.
  • Alberta Recycling Management Authority
    Alberta has a new paint recycling program, under Alberta Environment’s strategy “Too Good to Waste”. The new program will help reduce costs and improve the Environment. Learn more about this initiative and other environmental programs on this site.
  • Canadian Federation of Independent Business
    CFIB has been a big voice for small business for 35 years with 105,000+ members nationwide in every sector. Taking our direction from CFIB Members, through regular surveys, we lobby for small- and medium-sized businesses at the federal, provincial and local levels of government.
    A job search website focused on the employment needs of Coatings Industry companies and professionals.
  • Construction Links
    Construction Links’ objective is to quickly direct you to the websites that have the products or services you are interested in. You’ll find information on Canadian construction products and services faster than any other way.
    View The LINK Online Newsletter
  • Contractor Power / Subscribe to Newsletter
    The premier search directory for the North American Trades Contractor.
  • Custom House Plans
    Description: Custom house plans, home plans, home plan designers, custom house plans designed by architects, custom home plans,house plan drafting service, cad drafting service, cad conversions.
  • Interior Design Association
    The Interior Designers of Alberta (Registered Interior Designers Institute of Alberta) was incorporated under a private act of the Alberta Legislature in 1960. Acting as a regulatory body, IDA’s mandate is to regulate the interior design profession in Alberta for the betterment of the profession and in the best interests of the public.
  • Master Painters Institute
    The Master House Painters Association of the U.S. and Canada was formed in 1885 with the purpose being “…to solve problems created by unsatisfactory materials, and to devise a means for assuring the public of the skill, honorable reputation and probity of master painters.” The Master Painters Institute (MPI) was formed in 1996 to further these aims through the revision and publication of the Architectural Painting Specification Manual and the Maintenance Repainting Manual.
  • NAIT
  • PDC Canada Council
    The Western Canada Council PDCA and our affiliated chapters strive to provide educational, business and networking evenings to cultivate a profitable situation for our member’s businesses.
  • SAIT
  • Service Canada
    Canadian education and training services; includes information on obtaining grants and bursaries for educational support.
  • Skills Canada
    Skills Canada is a national, not-for-profit organization that actively promotes careers in skilled trades and technologies to Canadian youth.