Qp Date

Woodworker Lien Act

[RSBC 1996] CHAPTER 491

Contents
 1 Definitions
 2 Lien on logs or timber
 3 Statement of lien must be filed in court registry
 4 Enforcing lien
 5 Procedure
 6 Sale under execution
 7 Proceeding may be by summary hearing
 8 If attachment issues
 9 Seizure, when allowed
 10 Concurrent writs
 11 Writ of attachment as summons
 12 Logs or timber in transit or held for delivery
 13 Logs or timber to be released if bond given
 14 Time for filing dispute of claim after service of writ of attachment
 15 Default judgment
 16 Payment into court
 17 Appointment and notice of hearing
 18 Hearing of claims
 19 Duties of court on hearing
 20 Sale of logs
 21 Balance remaining due after distribution
 22 Order discharging liens if nothing found due
 23 Costs
 24 Excess money paid into court
 25 Application to dismiss for want of prosecution
 26 Adding parties
 27 Alternate remedies
 28 Lien holders may join in proceedings
 29 Consolidation of actions
 30 Procedure of Supreme Court to apply
 31 Who may take affidavits
 32 Liability to workers if payroll of wages not requested
Schedule A
Schedule B

Definitions

1  In this Act:

"labour or services" includes cutting, skidding, felling, hauling, scaling, banking, driving, running, rafting or booming logs or timber, and any work done by cooks, blacksmiths, artisans and others usually employed in connection with it, and any work done by engineers and all other persons employed in any capacity in or about a mill or factory where lumber of any description is manufactured;

"logs or timber" includes logs, timber, piles, posts, telegraph and telephone poles, ties, mining props, tan bark, shingle bolts and staves, or lumber of any description manufactured from them.

Lien on logs or timber

2  (1) In this section, "person performing labour or services" includes cooks, blacksmiths, artisans and all others usually employed in connection with labour or services, and physicians, surgeons and others entitled to receive payments from or out of any fund made up from deductions by an employer from the wages of those cooks, blacksmiths, artisans and others, arising from the labour or services, and set apart for payment of medical or surgical attendance and service on those employees.

(2) A person performing labour or services in connection with logs or timber in British Columbia, or his or her assignee, has a lien on them for the amount due for the labour or services.

(3) A lien under subsection (2) is a first lien or charge on the logs or timber, and has precedence over all other claims or liens on them, except a lien or claim that

(a) the government may have on the logs or timber for or in respect of any dues or charges, or

(b) a timber slide company, or an owner of slides and booms, may have on the logs or timber, for or in respect of tolls.

(4) If, under the Employment Standards Act or otherwise, an employer deducts from the wages of his or her employees, being persons performing labour or services in connection with logs or timber in British Columbia, a sum for the payment of or for medical or surgical attendance and services on and for the employees, a physician, surgeon or other person entitled to receive the sum or a part of it or to payment from it has a lien on the logs or timber for the amount due that person from the fund.

(5) A lien under subsection (4) is a first lien or charge on the logs or timber and has precedence over all other claims or liens on them, except the liens or claims provided for in subsection (2).

Statement of lien must be filed in court registry

3  (1) A lien arising under section 2 is void unless a statement of it is filed in the office of a registrar of the Supreme Court within 30 days after the last day the labour or services were performed.

(2) The statement filed under subsection (1) must be accompanied by the fee prescribed by the Lieutenant Governor in Council.

(3) The statement must be in writing, verified on oath by the person claiming the lien, or some person duly authorized on that person's behalf and must set out briefly

(a) the nature of the debt, demand or claim,

(b) the amount due to the claimant, as near as may be, over and above all legal set-offs or counterclaims, and

(c) a description of the logs or timber on or against which the lien is claimed.

(4) The statement may be in the form in Schedule A, or to a similar effect.

(5) Despite subsection (1), a sale or transfer of the logs or timber on which a lien is claimed under this Act during the time limited for the filing of the notice of civil claim, and previous to the filing of it, or after the filing of it and during the time limited for the enforcement of it, does not in any way affect the lien, which remains in force against the logs or timber in whose possession they are found, except sawn timber sold in the ordinary course of business.

Enforcing lien

4  (1) A person who has a lien on or against logs or timber may enforce it by an action in the registry of the Supreme Court where the statement of lien is filed.

(2) The lien claim ceases to be a lien on the property named in the statement unless the proceedings to enforce it are commenced within 30 days after the filing of the statement, or after the expiry of the period of credit.

(3) The person liable for payment of the debt or claim must be made the defendant in the action.

(4) There must be attached to or endorsed on the notice of civil claim in the action a copy of the statement of lien filed under section 3, and no other statement of particulars is necessary unless ordered by the court.

(5) If no defence or dispute note is filed, judgment may be signed and execution issued according to the practice of the court.

Procedure

5  (1) The court may do one or more of the following on the terms that the court considers proper:

(a) order particulars to be given, or proper or necessary amendments to be made;

(b) add or strike out the names of parties at any time;

(c) set aside any judgment;

(d) permit a defence or dispute note to be entered or filed.

(2) The notice of civil claim in the action must be in the form, as nearly as may be, in use in the court in which it is issued, and the practice must follow, as nearly as may be, the practice of the court.

(3) A notice of civil claim may be served anywhere in British Columbia in the same manner as in other cases.

(4) The judgment must declare that it is for wages, the amount of them and costs, and that the plaintiff has a lien for them on the property described when that is the case.

Sale under execution

6  (1) If an execution has issued and has been placed in the sheriff's hands for execution, and no attachment has been issued, the proceedings for the enforcement of the lien must be by sale under the execution.

(2) The proceedings relating to proof of other claims, the payment of money into court, the distribution of the money, and otherwise, must, as far as practicable, be the same as is provided in this Act for proceedings on and subsequent to an attachment.

Proceeding may be by summary hearing

7  (1) Whether commenced by notice of civil claim or attachment, the court may direct that any proceeding must be disposed of summarily without waiting for the regular sittings of the court, on the terms as to notice and otherwise that the order provides.

(2) The court may also summarily dispose of an application to set aside an attachment or seizure, or to release logs or timber that have been seized.

If attachment issues

8  (1) If an attachment issues in the first instance, the notice of civil claim and response to civil claim or dispute note, and proceedings to judgment, may be the same as provided in sections 3 to 7.

(2) If an action has been commenced by notice of civil claim, and if an attachment issues after proceedings have been begun by notice of civil claim, the proceedings must continue and be carried to judgment under the notice of civil claim, except those that must be taken under the attachment.

Seizure, when allowed

9  (1) On the production and filing of the statement mentioned in section 3 or a copy of it, and an affidavit made and sworn by the claimant of the amount of the claim due and owing, and showing that it has been duly filed, and stating that

(a) the claimant has good reason to and does believe that the logs or timber are about to be removed from British Columbia,

(b) he has good reason to and does believe that the logs or timber are about to be removed from the district or locality in which they then lie,

(c) the person indebted for the amount of the lien has absconded from British Columbia with intent to defraud or defeat his creditors, or

(d) the logs or timber are about to be cut into lumber or other timber so that they cannot be identified, and

(e) the claimant is in danger of losing his or her claim if an attachment does not issue,

and if affidavits corroborating the affidavit of the plaintiff in respect of paragraph (a), (b), (c) or (d) are also filed, the registrar of the court who has jurisdiction in the matter must issue a writ of attachment directed to the sheriff, commanding the sheriff to attach, seize and take and safely keep the logs or timber, or the portion of them that may be necessary to satisfy the amount claimed and the costs of the action, and of the proceedings to enforce the lien.

(2) If additional claims are made, or the amount of claim is increased, or a sufficient seizure has not been made, a second or subsequent seizure may be made either under execution or attachment.

Concurrent writs

10  (1) At any time within 6 months from the date of the original writ of attachment, the plaintiff may issue from the office from which the original writ issued one or more concurrent writs of attachment, to bear test on the same day as the original writ, and to be marked by the officer issuing them with the word "concurrent" in the margin.

(2) The concurrent writs of attachment

(a) may be directed to any sheriff other than the sheriff to whom the original writ was issued, and

(b) need not be sued out in duplicate or be served on the defendant, but operate merely for the attachment of the logs or timber in aid of the original writ.

Writ of attachment as summons

11  (1) The writ of attachment must also, if no notice of civil claim has issued, summon the defendant to appear before the court out of which the attachment has issued.

(2) A copy of the writ of attachment must be served on the defendant.

(3) If the defendant is not the owner of the logs or timber described in the writ, then a copy of the writ must also be served on the owner of the logs or timber, or on the person or agent in whose possession, custody or control they may be found, for the owner.

(4) If the defendant or owner of the logs or timber cannot be found within the jurisdiction of the court, and there is no one in possession of the logs or timber, then a copy of the writ of attachment must be forwarded to any sheriff or other constable or other competent person in British Columbia within whose jurisdiction the defendant and owner, or either of them, as the case may be, resides or may be found.

(5) The copy of the writ of attachment may be served by that sheriff, constable or person on the defendant or owner of the logs or timber.

(6) The owner may, on his or her own application or by discretion of a court, be made a defendant at the trial.

(7) If the defendant or owner cannot be found in British Columbia, or the owner cannot be ascertained, and no agent or person is in possession for the owner, the writ may be served in the manner the court directs.

(8) If the writ is to be served on an agent or other person in possession of the logs or timber, an order of the court allowing the service is necessary.

(9) If the service has not been personal on either the defendant or owner, and a proper defence has not been made, the court may, in its discretion, admit them, or either of them, to make full defence, and may make any order that is reasonable and just to all parties.

(10) The sheriff, constable or person is, before making service, entitled to demand payment of a sum sufficient to cover the amount of the necessary disbursements in effecting it.

Logs or timber in transit or held for delivery

12  (1) A sheriff or bailiff must not seize or detain logs or timber under this Act when in transit from the place where cut to the place of destination when the place of destination is within any of the districts in which proceedings have been commenced.

(2) Despite subsection (1), if the logs or timber are in transit, or are in the possession of a booming company or other person for the purpose of being driven or sorted and delivered to the owners, or to satisfy a statutory lien, then attachment of the logs or timber may be made by serving a copy of the attachment on the company or other person driving or holding them, who, from the time of service, is deemed to hold them, both on the person's own behalf and for the sheriff to the extent of the lien, until the logs or timber can be driven and sorted out.

(3) When the logs or timber have been driven or sorted out, the sheriff may receive the logs or timber from the company or other person, and the statutory lien of the company or person is not released by the holding of the sheriff or other officer.

Logs or timber to be released if bond given

13  (1) In case of an attachment, the registrar must issue an order to the sheriff having in charge the logs or timber directing their release if the owner of the logs or timber, or a person in the owner's behalf, executes and files with the registrar of the court out of which the attachment has issued a good and sufficient bond to the person claiming the lien, executed by 2 sureties and approved by the registrar, and conditioned for the payment of all claims, damages, costs, charges, disbursements and expenses that may be recovered by the claimant in the proceedings, together with the amount for which a lien is claimed in any other proceeding.

(2) On service of an order under subsection (1), the sheriff must release the logs or timber.

Time for filing dispute of claim after service of writ of attachment

14  A person who has been served with a copy of a writ of attachment under sections 8 to 12, and who desires to dispute it, must within 14 days after the service enter in the court in which proceedings are pending a notice that the person disputes all or part of the claim on the lien.

Default judgment

15  If a notice of dispute is not entered under section 14, judgment may be entered as in the case of default, and the practice or procedure may be the same as in an action.

Payment into court

16  (1) At any time after service of the writ of attachment and before the sale of the logs or timber, the defendant may pay into court the amount for which a lien is claimed in the proceeding, together with

(a) the amount for which a lien is claimed in any other proceeding, and

(b) the costs of the proceedings on them to the date of payment, taxed by the registrar of the court if required.

(2) The person making a payment under subsection (1) is then entitled to a certificate vacating the lien, and on the certificate being filed with the registrar of the court in which the original statement was filed,

(a) the lien is vacated and all further proceedings on it must cease, and

(b) the person making the payment is entitled to an order directing the delivery up of the logs or timber seized under the attachment, or the cancellation of any bond given under section 13.

Appointment and notice of hearing

17  (1) After the expiration of the time for entry of a notice of dispute, on the application of the claimant, the court must issue an appointment naming a day on which all persons claiming a lien on the logs or timber must appear in person, or by their solicitor or agent, before the court for the adjustment of their claims and the settlement of accounts.

(2) If the court directs, the appointment must

(a) be served on the defendants and on the owner, and

(b) be published once a week for 2 weeks before the day named in the appointment in a newspaper published in the judicial district in which proceedings are pending, if a newspaper is published there, and if not, then in a newspaper circulating in that district.

(3) A copy of the appointment must be mailed by registered letter to every holder of a claim known to the plaintiff as a holder at least 2 weeks before the day named in the appointment, directed to the post office address of the claimant if it is known, and if not known, then to the claimant's last known address.

Hearing of claims

18  (1) On the day named in the appointment and advertisement, the persons served with a copy of it, and all other persons claiming a lien on the logs or timber who have before that date filed with the registrar of the proper court a notice claiming a lien on the logs or timber and stating the nature and amount of the claim, must attend before the court named in the appointment and advertisement.

(2) If claims are brought in under a notice under subsection (1), they may be established by affidavit.

(3) Any interested party

(a) is at liberty to cross examine the deponents, and

(b) may require that the claim be established in open court as in other cases.

Duties of court on hearing

19  (1) The court must

(a) hear all parties and take all accounts necessary to determine any amounts due to them, or any other holders of liens who may be called on by the court to prove their lien,

(b) review their costs and determine who is to pay them and settle their priorities, and

(c) generally determine all matters necessary to adjust the rights of the parties.

(2) At the conclusion of the inquiry, the court must make its report and order, which must state its findings and direct the payment into the court in which proceedings are pending of any amounts found due and the costs, within 10 days, and in default of payment, that the logs or timber are to be sold by the sheriff for satisfaction of the amounts found due to the several parties on the inquiry and costs.

(3) If the court is satisfied, having regard to the saving of costs or necessity of expedition of a sale, that the interests of all parties before the court as well as of all the creditors will be better served, the court may order that the logs or timber be sold without delay by order of the court to the purchaser and at the price agreed to by the parties before the court.

Sale of logs

20  (1) In default of payment into court under section 19 within the time named in the order, the logs or timber must, within 20 days after that, be sold by the sheriff holding them, in the same manner and subject to the same law as goods seized or taken in execution, unless the court directs that additional publicity be given to the sale.

(2) The amount realized by the sale must, after deducting the expenses of it payable to the sheriff, be paid into the court in which the proceedings are pending, and must, on the application of the parties found to be entitled to it under the order of the court, be paid out to them by the registrar of the court.

(3) If the amount realized on the sale is not sufficient to pay the claims in full and costs, the court must apportion the amounts realized proportionately among the different claimants.

Balance remaining due after distribution

21  (1) If after the sale and distribution of proceeds under section 20 an amount remains due to a person under the order of the court, the registrar of the court must, on application of that person, give the person a certificate that the amount remains due.

(2) A certificate under subsection (1) may be entered as a judgment in any court having jurisdiction against the person by whom the claim was directed to be paid.

(3) Execution may be issued on the certificate as in the case of other judgments in the court.

Order discharging liens if nothing found due

22  (1) If nothing is found due on the claims filed as mentioned in section 18, or on the liens with respect to which proceedings have been taken, the court may order that

(a) the liens be discharged and the logs or timber released, or

(b) the security given for them be delivered up and cancelled.

(2) The court may order immediate payment of any costs which may be found due to the defendant or the owner of the logs or timber.

Costs

23  The costs to be taxed to a party must, as far as possible, be according to the tariff of costs in force for other proceedings in the court in which proceedings under this Act have been taken.

Excess money paid into court

24  If more money is paid into court as the proceeds of the sale of logs or timber than is required to satisfy the liens that are proved, and interest and costs, the court may order payment out of the remaining money to the party entitled to it.

Application to dismiss for want of prosecution

25  A person affected by proceedings taken under this Act may apply to the court to dismiss them for want of prosecution, and the court may make the order on the application as to costs or otherwise that is just.

Adding parties

26  (1) The court may at any stage of proceedings under this Act, on the application of a party or as it sees fit, order that a person who is a necessary party to the proceedings be added as a party to them or be served with a process or notice provided for by this Act.

(2) The court may make an order as to the costs of adding the person or as to service that is just.

Alternate remedies

27  (1) This Act does not disentitle a person to another remedy than that afforded by this Act for the recovery of an amount due in respect of labour or services performed on or in connection with logs or timber.

(2) If a proceeding is brought to enforce a lien but no lien is found due, judgment may be directed for the amount found due as in an ordinary case.

Lien holders may join in proceedings

28  (1) Any number of lien holders may join in proceedings under this Act, or may assign their claims to any person, but the statement to be filed under section 3 must include particular statements of the separate claims of persons joining.

(2) One attachment may be issued on behalf of all the persons joining if

(a) the claims are verified by their affidavits or those of a person duly authorized on their behalf, or

(b) separate statements are filed and verified as provided by this Act.

Consolidation of actions

29  If more than one action is commenced under this Act in respect of the same logs or timber, the defendants, or any of them, must apply to have the actions consolidated, and a person who fails to do so must pay the costs of the additional actions.

Procedure of Supreme Court to apply

30  So far as it is not inconsistent with this Act, the procedure regulating the practice in actions brought in the Supreme Court is to regulate proceedings under this Act.

Who may take affidavits

31  Affidavits and affirmations under this Act may be sworn before a commissioner for taking affidavits.

Liability to workers if payroll of wages not requested

32  (1) A person entering a contract, engagement or agreement with another person to furnish, supply or obtain logs or timber by which it is necessary to engage and employ workers and labourers for those purposes must, before making any payment for, or on behalf of, or under the contract, engagement or agreement of a sum of money or in kind, require the person to whom payment is to be made to produce and furnish a payroll or sheet of the wages and amount due and owing and of the payment of them or, if not paid, the amount of wages or pay due and owing to all the workers or labourers employed or engaged on or under the contract, engagement or agreement at the time when the logs or timber are delivered or taken in charge for, or by or on behalf of, the person making the payment and receiving the timber or logs.

(2) For the purposes of subsection (1), the payroll or sheet may be in the form in Schedule B.

(3) A person who makes a payment under the contract, engagement or agreement without requiring production of a receipted payroll or sheet as mentioned in subsection (1) is liable, in an action taken by a worker or labourer engaged under the contract, engagement or agreement, for the amount of pay due and owing to that worker or labourer.

(4) The person to whom the payroll or sheet is given must retain, for the use of the workers or labourers whose names are set out in the payroll or sheet, the sums set opposite their respective names which have not been paid.

(5) The receipts of the workers or labourers are a sufficient discharge for the sums referred to in subsection (4).

(6) Subsections (1) to (5) do not apply to the purchase of manufactured lumber purchased in the ordinary course of business.

Schedule A

Statement of Claim of Lien

A.B. [name of claimant], of [here state residence of claimant] (if so, as assignee of) [here state name and address of assignor], under the Woodworker Lien Act, claims a lien on certain logs or timber of [here state the name and residence of the owner of logs or timber on which the lien is claimed, if known], composed of [state the kinds of logs and timber, such as fir, sawlogs, cedar or other posts or railway ties, shingle bolts or staves, etc., also where located at time of filing of statement], in respect of the following work, that is to say [here give a short description of the work done for which lien is claimed], which work was done for [here state the name and residence of the person on whose credit the work was done], between the .................................... [month, day, year], and the .................................... [month, day, year], [per month or day, as the case may be]. The amount claimed as due [or to become due] is the sum of ......................... [when credit has been given] (the work was done on credit, and the period of credit will expire on .................................... [month, day, year]).

Dated at.................................... [month, day, year].

(Signature of claimant) ....................................

Affidavit to be Attached to Statement of Claim

I, .................................... , swear [or affirm] that I have read [or have heard read] this statement, and that the facts set out in it are, to the best of my knowledge and belief, true, and the amount claimed to be due to me in respect of my lien is the just and true amount due and owing to me in giving credit for all sums of money for goods or merchandise to which the debtor [naming the debtor] is entitled to credit as against me.

Sworn before me at .................................... on

.................................... [month, day, year].

.................................................

A Commissioner, etc

Schedule B

Payroll

Name Description From January 5, 19..........,

to January 10, 19.......... (Inclusive)
Amount

Paid
Date of

Payment
Received

Payment

in Full
Number of

Days

Employed
Rate

Per

Day
Total

Amount

Earned
R. Roe .......... 6 days $3.50 $21.00 $21.00 Jan. 12  19........ R. Roe

I certify that this statement is correct to the best of my knowledge and belief, and is made by me in compliance and accordance with section 32 of the Woodworker Lien Act on account of [my contract to, or employment by, as the case may be], [here insert brief description of the work] for [owner's name] up to the .................................... [month, day, year].

(Signed) .............................................

                Contractor

Dated ......................... [month, day, year].