Canadian Lawyer

this month eXClusiVely on RegionAl wRAp-up mag.com Get information on the latest legal trends, practice management, careers, insights into practice areas, and more. . . The Immigration Line Jennifer Nees lets us know what's on the mind of the immigration bar. November 25 The Future Files toronto lawyer and legal tech evengelist Ben Hanuka brings you the latest tech news for your practice. November 25, December 30 The Accidental Mentor Lee Akazaki's column offers useful mentorship advice for young lawyers. December 9 David Paul's Field Notes Class Acts Kirk Baert's column takes a critical look at class action litigation across the country. November 25, December 16 Human Rights . . . Here & There university of ottawa law school's Sonya Nigam's column on human rights and international law. December 9 Trials & Tribulations Margaret Waddell ruminates on issues of import and interest to litigators. December 9 The IT Girl tips for the solo and small firm from B.C.'s David Paul. December 16 Definitely Mabey Stephen Mabey examines the thorny issues facing law firm management. December 16 Danielle Lemon looks at the intersection of law and technology. December 16 Trial by Fire Associate Lindsay Scott shares the ups and downs of learning on the job. December 16 webTV TV Letter from Law Law Land Wit and wisdom from Vancouver's Tony Wilson. December 30 Making Rain executive coach Debra Forman's video column on career and business development. November 25, December 30 6 November/December 2013 www.CANADIAN L a w ye r m a g . c o m AtLANtIC lien on me – with ProPer notice F or only the second time in its more than 200-year history, the New Brunswick Court of Queen's Bench handed down a decision regarding the notice required under the province's Mechanics' Lien Act for leasehold improvements. "It does clarify the law at least in New Brunswick," says Eric LeDrew, a partner with McInnes Cooper in Moncton who represented the defendant owner. That clarification may benefit lawyers across the country, he added. "There may be an impact outside New Brunswick. All the provinces have similar legislation, and this legislation lines up with Ontario. There should be less disputes about owners getting notice." In Penniac Construction Ltd. v. Cominar Real Estate Investment Trust, the plaintiff levelled a two-pronged claim against the respondent. First, Penniac alleged it was introduced by Cominar to the tenant and the company was both knowledgeable about the work being done and on-site for much of this work. Penniac argued this and other factors amounted to the equivalent Eric LeDrew says the ruling of providing notice as defined under the clarifies the law. Mechanics' Lien Act. It was an argument Justice Stephen McNally found lacking. Section 12 of the act requires "distinct and memorable" notification before a lien can be attached to a leasehold interest and the underlying property ownership. Two forms of notification are accepted: personal service or a registered letter. "The judge found Penniac really didn't give notice, and after the horse was out of the barn tried to characterize what [it] had done as notice," says Hugh Murphy, a Moncton lawyer who represented the plaintiff. McNally also determined strict adherence to the letter of the legislation was required in mechanics' lien cases. "It is often stated throughout the jurisprudence that the mechanics' lien remedy attaching to interests in real property was not known at common law and is purely a creation of statute. Accordingly, the Courts have held that the provisions of the Act must be strictly interpreted in determining whether a lien has been created." In this case, the court did something more as well. "This decision also did a sleight of hand," notes LeDrew. "The original case was not clear on how notice was provided. The court inferred there was personal service of notice. "The new judge," he adds, "wanted to find a way to explain that case." — DoNALee mouLtoN donalee@quantumcommunications.ca

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