B. Westland

The defendants in three related construction lien and non-lien actions moved for security for costs against the plaintiff subcontractor.

The court found good reason to believe the corporate plaintiff had insufficient assets in Ontario, as it had ceased operations and its only assets were contingent claims.

The plaintiff failed to prove impecuniosity, having provided insufficient evidence of its inability to raise funds from shareholders or affiliates.

The court ordered the plaintiff to post security for costs in the aggregate amount of $215,000 on a staged basis, reducing the defendants' requested $500,000 to account for the significant counterclaims advanced by the defendants.

The moving party contractor sought to declare two construction liens preserved by the responding party sub-subcontractor as expired.

The central issue was the interpretation of the transition provisions in s. 87.3 of the Construction Act, specifically whether the former 45-day or current 60-day lien preservation period applied when the prime contract was entered into before July 1, 2018, but the subcontracts were entered into after.

The court held that the legislative scheme applies consistently to all persons involved in the same improvement based on the date of the prime contract.

Consequently, the former 45-day period applied, the liens were declared expired, and the posted security was ordered returned.