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An Ordinance respecting Liens in favour of Me
chanics and others. HE Lieutenant Governor by and with the advice and con
sent of the Legislative Assembly of the Territories enacts as follows:
1. This Ordinance may be cited as “The Mechanics' Lien
' Ordinance.” R.O. c. 48, s. 1.
2. In this Ordinance
1. The expression “contractor" means a person contracting with or employed directly by the owner for the doing of work or placing or furnishing of machinery or materials for any of the purposes mentioned in this Ordinance :
2. The expression “sub-contractor” means a person not contracting with or employed directly by the owner for the purposes aforesaid but contracting with or employed by the contractor or under him by another subcontractor ;
3. The expression “owner” shall extend to and include a person having any estate or interest in the lands upon or in respect of which the work is done or materials or machinery are placed or furnished at whose request and upon whose credit or on whose behalf or consent or for whose direct benefit any such work is done, or materials or machinery placed or furnished, and all persons claiming under him whose rights are acquired after the work in respect of which the lien is claimed is commenced or the materials or machinery furnished have been commenced to be furnished. R.O. c. 48, s. 2.
LIEN FOR WORK ON MATERIALS.
Agreement as to liens
Nature of lien
3. No agreement shall be held to deprive any one otherwise
entitled to a lien under this Ordinance and not a party to the Third party's agreement of the benefit of the lien but the lien shall attach rights
notwithstanding such agreement. R.O. c. 48, s. 3.
4. Unless he signs an express agreement to the contrary, every mechanic, machinist, builder, miner, labourer, contractor, or other person doing work upon or furnishing materials to be used in the construction, alteration or repair of any building or erection, or erecting, furnishing or placing machinery of any kind in, upon or in connection with any building, erection or mine, shall, by virtue of being so employed or furnishing, have a lien for the price of the work, machinery or materials, upon the building, erection or mine, and the lands occupied thereby or enjoyed therewith, limited in amount to the sum justly due to the person entitled to the lien. R.O. c. 48, s. 4.
5. The lien shall attach upon the estate and interest of the Property upon owner, as detined by this Ordinance, in the building, erection which lien or mine, in respect of which the work is done or the materials or machinery placed or furnished and the land occupied therehy or enjoyed therewith.
(2) In cases where the estate or interest charged by the lien Where estate is leasehold the land itself may also with the consent of the charged is owner, thereof be subject to said lien provided such consent is testified by the signature of such owner upon the claim of lien at the time of the registering thereof and duly verified.
(3) In case the land upon or in respect of which any work Prior as aforesaid is executed or labour performed or upon which mortgage materials or machinery are placed is encumbered by a prior mortgage or other charge and the selling value of the land is increased by the construction, alteration or materials or machinery, the lien under this Ordinance shall be entitled to rank upon the increased value in priority to the mortgage or other charge. R.O. c. 48, s. 5; No. 24 of 1898, s. 1.
6. Without prejudice to any lien which he may have under Claim for the preceding sections every mechanic, labourer or other person who performs labour for wages upon the construction, alteration or repairs of any building or erection or in erecting or placing machinery of any kind in, upon or in connection with any building, erection or mine shall to the extent of the interest of the owner have upon the building, erection or mine and the land occupied therehy or enjoyed therewith a lien for such wages, not exceeding the wages of thirty days or a balance equal to his wages for thirty days.
(2) The lien for wages given by this section shall attach when the labour is in respect of a building, erection or mine on property belonging to the wife of the person at whose instance the work is done, upon the estate or interest of the wife in such property as well as upon that of her husband. R.O. c. 48, s. 6.
7. In all cases the owner shall in the absence of a stipulation Owner to to the contrary be entitled to retain for a period of thirty days remain di ori
contract price after the completion of the contract ten per centum of the price for 30 days to be paid to the contractor. R.O. c. 48, s. 7.
8. In case the lien is claimed by a subcontractor the amount Lien claimed which may be claimed in respect thereof shall be limited to contrato the amount payable to the contractor or subcontractor (as the case may be) for whom the work has been done or the materials or machinery have been furnished or placed. R.O. c. 48, s. 8.
9. All payments up to ninety per centum of the price to be Payments paid for the work, machinery or materials as defined by section Tide in good
faith without 4 of this Ordinance, made in good faith by the owner to the
contractor, or by the contractor to the subcontractor, or by one sub-contractor to another subcontractor, before notice in writing by the person claiming the lien has been given to such owner, contractor or subcontractor (as the case may be) of the claim of such person, shall operate as a discharge pro tanto of the lien created by this Ordinance, but this section shall not apply to any paynient made for the purpose of defeating or impairing a claim to a lien existing or arising under this Ordinance.
(2) A lien shall in addition to all other rights or remedies given by this Ordinance also operate as a charge to the extent of ten per centum of the price to be paid by the owner for the work, machinery or materials, as defined by section 4 of this Ordinance, up to ten days after the completion of the work or of the delivery of the materials in respect of which such lien exists and no longer, unless notice in writing be given as herein provided.
(3) A lien for wages for thirty days, or for a balance equal to the wages for thirty days, shall, to the extent of the said ten per cent. of the price to be paid to the contractor, have priority over all other liens under this Ordinance and over any claim by the owner against the contractor for or in consequence of the failure of the latter to complete his contract. 48, s. 9.
Lien not to increase liability of owner
10. Save as herein provided, the lien shall not attach so as to make the owner liable to a greater sum than the sum payable by the owner to the contractor. R.O. c. 48, s. 10.
11. All persons furnishing material to or doing labour for haxing claims the person having a lien under this Ordinance in respect of the lien holders
subject of such lien, who notify the owner of the premises sought to be affected thereby, within thirty days after such material is furnished or labour perforined, of an unpaid account or demand against such lienholder for such material or labour, shall be entitled, subject to the provisions of sections 6 and 9 of this Ordinance, to a charge therefor pro rata upon any amount payable by such owner under said lien; and if the owner thereupon pays the amount of such charge to the person furnishing material and doing labour as aforesaid, such payment shall be deemed a satisfaction pro tanto of such lien. R O. c. 48, s. 11.
12. In case of a dispute as to the validity or amount of an be settled by unpaid account or demand, of which notice is given to the
or arbitration owner under the preceding section, the same shall be first de
termined by action in the Supreme Court in that behalf, or by arbitration in manner mentioned in section 14 of this Ordinance, at the option of the person having the unpaid account or demand against the lienholder; and pending the proceedings to determine the dispute, so much of the amount of the lien as is in question therein may be withheld from the person claiming the lien. R.O. c. 48, s. 12.
13. In case the person primarily liable to the person giving Failure to pay such notice as mentioned in section 11 of this Ordinance, fails to pay the amount awarded within ten days after the award is made or judgment given, the owner, contractor, or subcontractor may pay the same out of any moneys due by him to the
person primarily liable as aforesaid, on account of the work done or materials or machinery furnished or placed in respect of which the debt arose ; and such payment, if made after an award or judgment, or if made without any arbitration or suit having been previously had or dispute existing, then, if the debt in fact existed, and to the extent thereof shall operate as a discharge pro tanto of the moneys so due as aforesaid to the person primarily liable. R.O. c. 48, s. 13.
14. In case a claim is made by a sub-contractor in respect Arbitration of a lien on which he is entitled, and a dispute arises as to the contractor's amount due or payable in respect thereof, the same shall be claim settled by arbitration.
(2) One arbitrator shall be appointed by the person making the claiin, one by the person by whom he was employed, and the third arbitrator by the two so chosen.
(3) The decision of the arbitrators or a majority of them shall be final and conclusive.
(4) In case either of the parties interested in any such dispute refuses or neglects within three days after notice in writing requiring him to de so, to appoint an arbitrator, or if the arbitrators appointed fail to agree upon a third, the appointment may be made by a judge of the Supreme Court. R.O. c. 48, s. 14; No. 24 of 1898, s. 2.
15. During the continuance of a lien no portion of the pro- Material perty or machinery affected thereby shall be removed to the fien not to be prejudlice of the lien; and any attempt at such removal may be removed restrained by application to the Supreme Court or a judge thereof. R.O. c. 48, s. 15.
REGISTRATION OF LIEN.
16. A claim of lien applicable to the case may be deposited Registration in the land titles office of the land registration district in
owner of the property to be charged and of the person
or furnished ;
by the lienholder for payment for his work, materials
(2) Such claim shall be verified by the affidavit of the claimant or his agent. R.O. c. 48, s. 16 ; No. 24 of 1898, s. 3.
17. A claim for wages may include the claims of any numwages Uniting ber of mechanics, labourers or other persons aforesaid who may several claims
choose to unite them, in such case each claimant shall verify his claim by his affidavit but need not repeat the facts set out in the claim and an affidavit substantially in accordance with form D in the schedule to this Ordinance shall be sufficient. R. 0. c. 48, s. 17.
Claims to be
18. The registrar upon payment of the proper fee shall enter incumbrance and register the claim as an encumbrance against the land or
the estate or interest in land therein described as provided in The Land Titles Act 1894. The said claim of lien may be described as a mechanics' lien. No. 24 of 1898, s. 4.
Lien holder a purchaser pro tanto
19. Where a claim is so deposited the person entitled to the lien shall be deemed a purchaser pro tanto. R.O. c. 48, s. 19.
Time for registration
20. Where the lien is for wages under sections 6 or I of this Ordinance the claims may be registered : (a) At any time within thirty days after the last day's
labour for which the wages are payable; or (6) At any time within thirty days after the completion of
the construction, alteration or repair of the building or erection or after the erecting or placing of the machinery in or towards which, respectively, the labour was performed and the wages earned but so that the whole period shall not exceed sixty days
from the last day's labour aforesaid. (2) Such lien shall not be entitled to the benefit of the provisions of sections 6 and 9 of this Ordinance after the said respective periods unless the same is duly registered before the expiration of the said periods so limited.
(3) Such lien shall have the same priority for all purposes after as before registration. R.O. c. 48, s. 20.
Time for registration
21. In other cases the claim of lien may be deposited before or during the progress of the work or within thirty days from the completion thereof or from the supplying or placing the inachinery. R.O. c. 48, s. 21.
PROCEEDINGS TO REALISE LIEN.
lien Time for
Actions to 22. Every lien which has not been duly deposited under the unregistered provisions of this Ordinance shall al solutely cease to exit on
the expiration of the time herein before limited for the registration thereof unless in the meantime proceedings are instituted to realise the claim under the provisions of this Ordinance and a certitic:te thereof (which may be granted by the court in which or judge before whom the proceedings are instituted) is duly filed in the land titles office of the land regis