Requirement to perform or provide “work” to the improvement

Section 2 of the Builders Lien Act defines who is entitled to a lien and requires that the lien claimant perform or provide work (or supply material). This section considers what is required by the words “perform or provide work”. The alternative of supplying material is considered in the next section.

 

Section 1 of the Builders Lien Act includes the following definition for work:

 

"work" means work, labour or services, skilled or unskilled, on an improvement;

(Builders Lien Act, s. 1(1)).

 

Thus the definition of “work” includes “services”, which are defined as follows:

 

"services" includes

(a) services as an architect or engineer whether provided before or after the construction of an improvement has begun, and

(b) the rental of equipment, with an operator, for use in making an improvement;

(Builders Lien Act, s. 1(1)).

 

It has been held that the word “includes” in s. 1(1) is not intended to open up a wide category of activities to be considered services:

 

It is not my opinion the word “includes” is intended to give the court discretion to broaden the category of services beyond those stated professions.  In this use, it is intended only to bring each specifically within the meaning of “work” as defined in s. (1): “’Work’ means work, labour or services, skilled or unskilled on an improvement”.

(“E.C.R.A.” Elderly Citizens Recreation Assn. v. Loeppky Consulting Ltd. (1999), 45 C.L.R. (2d) 122 (B.C.S.C.))

 

The cost of providing rental equipment can only be the subject of a lien on the grounds of it being “services” if an operator is included with the equipment. “Operator” is defined as:

 

"operator" means an individual who operates equipment at an improvement site but does not include an individual who temporarily or periodically is present at the improvement site to install, inspect, service, empty or remove equipment;

(Builders Lien Act, s. 1(1))

 

If equipment is rented without an operator it may not qualify as “services”, but may be supply of materials, see below.