Bruce R. Jaegar

The appellant contractor appealed a decision declaring its construction lien expired.

The motions judge had found that the respondent owner's notice of termination triggered the 45-day deadline for the appellant to file its claim for lien, equating termination with 'abandonment' under the Construction Lien Act.

The Divisional Court allowed the appeal, holding that abandonment requires the contractor to abandon the contract, and an owner's unilateral termination does not automatically constitute abandonment by the contractor.

The claim for lien was therefore registered in time.

The appellant contractor appealed a decision declaring its construction lien expired.

The motions judge had found that the owner's notice of termination constituted 'abandonment' of the contract under s. 31(2) of the Construction Lien Act, triggering the 45-day period to register a lien.

The Divisional Court allowed the appeal, holding that abandonment requires the contractor to abandon the contract, either subjectively or objectively.

A unilateral termination notice by the owner does not force abandonment by the contractor, especially where the contractor remains ready, willing, and able to complete the work and settlement discussions are ongoing.