Executive Summary: Key Legal and Evidentiary Issues

• Graham Construction applied to strike Intercon's BCSC claim as an abuse of process due to parallel Small Claims litigation over the same contract dispute.

• Intercon had abandoned amounts above $35,000 in Small Claims Court, then later filed a BCSC action claiming $65,257.25 plus additional damages.

• The one-year limitation period under s. 33 of the Builders Lien Act expired on April 4, 2025, without a BCSC action being commenced.

• Duplicative proceedings raising the same breach of contract and unjust enrichment claims were found to risk violating principles of judicial economy, consistency, and finality.

• A Shimco lien against the 10% statutory holdback survives independently and cannot be pursued in Small Claims Court, requiring BCSC jurisdiction.

• Release of the Lien Bond was ordered since the builders lien itself was extinguished by the missed statutory deadline.

Background and facts of the case

The plaintiff, 1866noentry.com Systems Ltd. (formerly Intercon Security Ltd.), alleged it was not fully paid for the security services and equipment it performed under a contract with Graham Construction and Engineering Limited Partnership. The work was performed at the Cloverdale Sports and Ice Centre, which is owned by the City of Surrey. On April 3, 2024, Intercon filed a lien claim under the Builders Lien Act in the New Westminster Land Title Office under number BB5007034, claiming $139,646.00 was due and owing from Graham and the City. The lien was cancelled under s. 24 of the BLA pursuant to a November 15, 2024 consent order, which provided for cancellation upon a Lien Bond in the amount of the lien being deposited in trust. Under s. 33(1) and (5) of the BLA, Intercon was required to commence an action in the Supreme Court of British Columbia within one year of the lien filing (i.e. by April 4, 2025) to avoid having the Lien or its replacement Lien Bond extinguished.

The parallel proceedings

On March 31, 2025, Intercon commenced a Small Claims proceeding in the Provincial Court of British Columbia under file number 2577684, by filing a notice of claim prepared and executed by its legal counsel at the time. On the Notice of Claim, Intercon selected the box confirming that "the claimant is abandoning the amount of their claim that is over $35,000, not including interest and expenses". No BCSC action was commenced before the April 4, 2025 deadline. Between April and November 2025, Graham sought Intercon's consent to the return of the Lien Bond given the missed deadline, but Intercon refused despite numerous requests. On November 17, 2025, Intercon commenced the BCSC Action by filing a notice of civil claim, by which point it was represented by new counsel. The BCSC Action raised the same contract breach advanced in the Small Claims Action, claimed $65,257.25 in amounts owing (well in excess of the capped amount in Small Claims), and also advanced an unjust enrichment/quantum meruit claim. On November 20, 2025, Graham learned that Intercon had terminated its retainer with its counsel, and Intercon has been self-represented since. On November 21, 2025, Intercon told Graham that its demand for release of the Lien Bond was "premature and legally incorrect" and insisted the Lien Bond "must remain in place until the Shimco lien claim is fully resolved or adjudicated". On December 8, 2025, Intercon purported to amend its Small Claims claim by appending "Amended Particulars of Claim" stating that the Small Claims Action was "strictly limited to a personal debt claim for unpaid invoices totaling $35,000", and that the BCSC Action advanced additional damages including contractual interest at 2% per month or interest under the Court Order Interest Act, administrative and internal processing costs, reasonable collection costs, financing and working capital costs, equipment storage and carrying costs, inspection and compliance-related expenses, operational disruption and labour rescheduling costs, and reasonable pre-litigation expenses. The Amended Particulars also stated the BCSC Action "concerns" builders lien enforcement, claims against lien security, claims against the City of Surrey, and higher-value contractual and equitable damages beyond the Small Claims Court's jurisdiction. The City of Surrey retains $75,045.84 as a Shimco lien-eligible holdback.

Legal analysis and abuse of process

Graham brought its application to strike under the Supreme Court Civil Rules, Rule 9-5, on the basis that Intercon's approach is an abuse of process. Justice Branch relied on the Supreme Court of Canada's reasoning in Saskatchewan (Environment) v. Métis Nation – Saskatchewan, 2025 SCC 4, which recognizes that a multiplicity of proceedings engaging the same issues can amount to an abuse of process, with the analysis focused on whether allowing the litigation to proceed would violate principles such as judicial economy, consistency, finality and the integrity of the administration of justice. The Court found the core claim in both proceedings was the same — breach of contract — and that adding an unjust enrichment claim did not justify the BCSC Action, since the weight of authority suggests unjust enrichment claims can be advanced in Small Claims Court. Intercon had made a clear, unequivocal choice, with counsel assistance, to abandon its claim for damages above the Small Claims Court limit, and it would be unfair and inequitable to allow it to resile from that abandonment, particularly after the one-year period had expired. Intercon had also been notified by the defendants that the one-year period had expired yet chose to proceed in any event. The Court noted that any prejudice to Intercon was mitigated because it retained the right to pursue its initial contractual claim in Small Claims Court, could apply to amend its Small Claims claim to add further causes of action under the Small Claims Rules, and, to the extent it was not properly advised about the effect of filing a capped Small Claims Action, might have a remedy against its former solicitor.

The Shimco lien issue

A residual issue was whether the Shimco lien claim against the Holdback prevented striking the BCSC Action in its entirety. A Shimco lien is a lien against the 10% statutory holdback that owners, contractors, and subcontractors must retain under the BLA, and exists separately and independently from any other lien registered against the land. In Kingdom Langley Project Limited Partnership v. WQC Mechanical Ltd., 2025 BCCA 169, a five-member division of the Court of Appeal was invited to overturn Shimco Metal Erectors Ltd. v. North Vancouver (District), 2003 BCCA 193, but while accepting that Shimco liens have created certain practical difficulties for owners and contractors, the Court reaffirmed the dual-lien structure and confirmed that posting security under s. 24 of the BLA does not cancel or extinguish a Shimco lien against any holdback. Justice Branch noted a practical difficulty facing Intercon: it appears that a Shimco lien cannot be advanced in Small Claims Court, as research yielded no reported Small Claims Court decision enforcing such a lien, which is consistent with the fact that proceedings for a statutory lien under the BLA must also be commenced in this Court per s. 1 (definition of "court"). The Court therefore found that those aspects of the BCSC Action seeking the protection of a Shimco lien against the Holdback were not an abuse of process, since they could not have been pursued in Small Claims Court.

Ruling and outcome

Justice Branch granted Graham's motion to strike in part. All claims, except those seeking the security of the Shimco lien against the Holdback, were struck. The claim of Builders Lien registered by Intercon in the New Westminster Land Title Office on April 3, 2025, under registration number BB5007034, was declared extinguished, and the Lien Bond was ordered released to Graham. The BCSC Action was stayed until the resolution of the Small Claims Action, as Justice Branch found this to be the most reasonable and efficient approach given the jurisdictional difficulties — the remaining Shimco claim serves as protection for any amount payable, while the amount payable itself will be determined by the Small Claims Court. Graham was the largely successful party on the application, obtaining the striking of the monetary and builders lien claims, the extinguishment of the registered lien (originally claiming $139,646.00), and the release of the Lien Bond. However, because Graham was only partially successful and the case raised novel issues regarding the interaction of Shimco liens with Small Claims Court proceedings, each party was directed to bear their own costs, with either party entitled to make further submissions on costs within 30 days, the opposing party having 15 days to respond, and the original party having a further seven days to reply. No specific monetary amount was granted or awarded in this decision, as the quantum of the underlying contractual claim remains to be determined in the Small Claims Court proceeding.