As noted above, s. 27 of the Builders Lien Act refers to the rules in s. 21 of the Law and Equity Act for determining which registry the court action to perfect the lien must be filed in.
This page provides information about rules that sometimes apply when the court action is filed in the wrong registry.
The court does have the power to “forgive” a lien claimant for filing the action in the wrong registry i.e. s. 21(2) of the Law and Equity Act, R.S.B.C. 1996, c. 253 says “Unless the court orders otherwise…” which confirms the authority of the court to relieve the parties from the obligations of s. 21.
In Keith Dahlen Construction Ltd. v. Zahara, 2004 BCSC 686 the action was filed in the wrong registry due to solicitor’s error and despite expiration of the limitation period the court corrected the error by moving the action to the correct registry:
There is ample room, in my view, to allow for improperly commenced actions to be transferred, whether before or after the expiration of the limitation period, while still protecting the interests that the local venue rule is intended to protect. I do not consider the expiration of the limitation period to be a matter of any consequence to the exercise of the discretion conferred by the Act.
As pointed out above, the rule is intended to reduce the costs to which a defendant may be put through actions commenced a long way from the location of the property and presumably from the location of the defendants. That goal can be preserved while still permitting a realistic exercise of the discretion granted by the rule.
(Keith Dahlen Construction Ltd. v. Zahara, 2004 BCSC 686 at para. 26 - 27).
Therefore, if lien action filed in wrong registry, secure the other parties consent to move the action, or consent to keep it in the “wrong” registry.
Lien claimants who initially filed in the incorrect registry and are considering simply discontinuing the first action and commencing a fresh action in the correct registry should exercise caution: under s. 25(1)(c) of the Builders Lien Act the court can order that a claim of lien be cancelled if “an action to enforce the claim of lien has been discontinued”.