Not All Work Will Extend the Lien Period

Contractors, subcontractors, suppliers and labourers in Alberta typically have only 60 days after completing the last work on a project to register a construction lien. This period is extended to 90 days for concrete work and work on an oil or gas well site.

The Alberta Court of King's Bench recently reaffirmed in Phoenix Treatment Systems Ltd v 1924613 Alberta Ltd, 2025 ABKB 714 (Phoenix Treatment Systems) that not all activities will qualify as lienable work capable of extending the 60- or 90-day deadline. As the plaintiff in Phoenix Treatment Systems discovered, misidentifying the last day when lienable work was performed can be fatal to an otherwise valid construction lien.

The Case

Phoenix Treatment Systems Ltd (Phoenix) completed plumbing work at the Grande Cache Mall on 22 May 2024, following a sewer backup. No written contract governed the engagement. On 3 June 2024, at the owner’s request, a Phoenix representative visited the site to explain the completed work to the owner’s insurance adjuster. On 1 August 2024, Phoenix registered a construction lien against the property—59 days after the meeting, but 70 days after it finished the plumbing work.

Phoenix argued that attending the meeting constituted “work on or in respect of an improvement” under Alberta’s Prompt Payment and Construction Lien Act (PPCLA) sufficient to reset the 60-day registration period. The Court found that the meeting occurred nearly two weeks after the physical work had been completed, no work was performed at the meeting, and attendance was not part of the original contract. The Court held that explaining completed work to an insurer does not constitute performance of services on an improvement and struck the lien.

The Legal Framework

The Alberta courts apply a bifurcated approach to the interpretation of the PPCLA. First, a strict interpretation is applied when determining whether a lien claimant has satisfied the requirements for registering a lien—because a lien is a new right unknown to the common law, lien claimants must bring themselves strictly within the statutory framework. Second, a liberal interpretation is applied after the lien claimant’s right is established to interpret other matters dealt with in the legislation.

Applying this bifurcated interpretive framework, the Court in Phoenix drew on a long line of decisions regarding what constitutes lienable work to reach its conclusion:

• Hett v Samoth Realty Projects Ltd, 1977 AltaSCAD 120: Services must be directly related to the process of construction. The development of concepts, logistics, zoning applications, legal and accounting services provided in connection with a development project did not qualify as lienable work.
• Leduc Estates Ltd v IBI Group, 1994 ABCA 5: Preliminary valuation, investigation and preparation of subdivision plans to convert farmland to residential real estate were not lienable work because they were not sufficiently connected to construction.
• Peter Hemingway Architect Ltd v Abacus Cities Ltd, 1980 ABCA 182: Architectural services performed in connection with a project that never proceeded to construction nonetheless supported a valid lien, as those services were sufficiently connected to the intended improvement.
• PTI Group Inc v ANG Gathering & Processing Ltd, 2002 ABCA 89: Catering and accommodation services provided at a camp adjacent to an active pipeline right-of-way were directly related to the construction process and supported valid lien claims.
• Young EnergyServe Inc v LR Ltd, 2021 ABQB 101: Cleaning, relining and repairing industrial equipment at a gas plant constituted maintenance rather than construction. Work that does not involve constructing, erecting, building, placing, digging or drilling does not meet the statutory definition of an “improvement.”
• Hugomark Services Inc v Ontario, 2010 ONSC 7033: Attendance at post-completion claim resolution meetings did not constitute supply of services to the site and could not extend lien rights. The Applications Judge held that this authority was directly applicable to the facts in Phoenix Treatment Systems.

Why This Matters

The principle emerging from these decisions is that lienable work must be connected to the physical construction process. While work directly connected to construction would typically qualify, in some circumstances tangential work or services, like catering, may still be lienable.

However, post-completion activities like attending meetings, responding to adjuster inquiries, and participating in dispute resolution will likely not extend the registration period regardless of how closely related they may be to the underlying contract.

Any contractor, subcontractor, supplier or labourer who anticipates a payment dispute should register a construction lien promptly upon completing work. Waiting for meetings or resolution efforts to proceed may forfeit the opportunity to register a construction lien.

To preserve your rights, seek legal advice as early as possible after completing work. If you have any detailed questions or require tailored advice on how construction lien matters can affect your project, please contact one of the authors or any member of our Construction Law practice group.