Summary Judgment in a Lien Action: Mystery Solved?

Builders’ liens are a powerful tool available to contractors, subcontractors and others to protect their rights when performing work or supplying materials on a construction project. The recent decision Uni Property Developers Ltd. v. 12740311 Canada Inc., 2025 NSSC 24 examined whether a party can obtain summary judgment in a lien action.

Summary Judgment and Builders’ Liens

Summary judgment allows a party to an action, whether a plaintiff or defendant, to obtain judgment before trial. As the name suggests, a summary judgment motion is determined on a “summary” basis – that is, without hearing all of the evidence that would be presented at trial.

Because it can allow a party to obtain judgment earlier in a proceeding, and without the cost and expense of trial, summary judgement can be an attractive option for litigants in appropriate cases. However, there is a clear legal test that parties must meet on a summary judgment motion, and the Court’s ability to grant summary judgment on evidence is set out in the Civil Procedure Rules (Rule 13.04).

A builders’ lien is a statutory lien created by the Builders’ Lien Act. The Act provides that contractors, subcontractors and suppliers who perform work or provide materials or equipment for construction projects can register a lien against the land for the value of the work, services or materials provided. To enforce the lien, the lien claimant – usually an unpaid contractor or subcontractor – must commence a legal action.

Conflicting Cases Prior to Uni Property Developers Ltd. v 12740311 Canada Inc.

Before the Court’s decision in Uni Property Developers, there was conflicting case law in Nova Scotia regarding the ability of a lien claimant to obtain summary judgment in a lien action.

In one decision from 2004, Doug Boehner Trucking and Excavating Ltd. v. United Gulf Developments, 2004 NSSC 34, the Court determined that summary judgment was available in a lien action. However, in a case three years later, Crane Canada Inc. v Tribeca Mechanical Ltd., 2007 NSSC 160, the Court determined that summary judgment was available in a lien action but only to determine the amount of a money judgment. The Court stated, “There is no power for a judge on the summary judgment application to make determination about the validity or amount of a lien. A separate trial is needed.”[1]

Although they came to different conclusions, both Boehner Trucking and Crane Canada grappled with the same central question about how the process for determining a lien action interacts with the Civil Procedure Rules. Lien actions are fundamentally different from other actions: liens are creatures of statute and, “the elements of the claim and the procedure for enforcement are found in the [Builders’ Lien Act].”[2]

However, it has not always been clear how the procedure in the Builders’ Lien Act meshes with the Civil Procedure Rules, including Rule 13.04 which governs summary judgment. For example, in Crane Canada, the Court found that the Section of the Builders’ Lien Act requiring a notice of trial to be served on all defendants meant that a trial was required for a lien action – thereby making summary judgment unavailable.

Can a Party Obtain Summary Judgment in a Lien Action?

In Uni Property Developers, the Court considered the conflicting jurisprudence directly and concluded that “summary judgment is available to parties on a claim under the Builder’s Lien Act.”[3]

The Court based its decision in part on the fact that Crane Canada did not refer to the earlier decision in Boehner Trucking (suggesting the Court may not have been made aware of it). However, it also based its decision on more recent developments in the law and the Civil Procedure Rules.

In 2009, after Doug Boehner and Crane Canada were decided, a new set of Civil Procedure Rules was released, which included the following new rule related to lien actions: “These Rules, except a Rule that is inconsistent with a provision of the Builders’ Lien Act, apply to an action started by filing a statement of claim under the Builders’ Lien Act.”[4] The Court in Uni Property Developers found this Rule indicated that other Rules – such as the Rule relating to summary judgment – continued to apply in lien actions.

The Court in Uni Property Developers also found that allowing for summary judgment was in keeping with the object of the Rules (to allow for the “just, speedy, and inexpensive determination of every proceeding”), and with the Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7, highlighting the need to “promote timely and affordable access to the civil justice system” through more proportional court processes such as summary judgment motions.[5]

Addendum: Court of Appeal Declined to Address the Issue

Notably, Uni Property Developers was released just before a Nova Scotia Court of Appeal decision, Queen’s Marque Developments Limited v. Guildfords Inc., 2025 NSCA 7, that appeared ready to address the same issue of whether summary judgment is available in a lien action.

That case involved an appeal from a summary judgment motion in which a subcontractor, Guildfords Inc., had obtained summary judgment against the owner, Queen’s Marque Developments Limited. Queen’s Marque appealed, and at the hearing the Court specifically asked the parties to address Crane Canada, and whether Guildfords could obtain summary judgment on its lien claim against the owner, Queen’s Marque.

However, while the Court of Appeal’s decision in Queen’s Marque referred to Crane Canada at some length, and appeared to implicitly endorse the reasoning in Crane Canada, in the end the Court did not decide the issue.[6]

Key Takeaway

Since the Court of Appeal did not rule on this issue in Queen’s Marque Developments Limited,  Uni Property Developers remains the leading case on the availability of summary judgment in lien actions. This decision appears to have  resolved a longstanding question, clarifying that  summary judgment is available in Nova Scotia in a Builders’ Lien Act action. While potentially only available in narrow circumstances, this should nevertheless be welcome news to contractors, subcontractors and others seeking to pursue lien claims in a more expeditious manner where appropriate.

The information provided here does not constitute legal advice and is based on details available at time of writing. Perspectives and interpretations around this information will vary depending on the individual circumstances to which they may apply. Consult legal counsel for information and advice relevant to your individual circumstances.