This motion, part of a larger reference concerning the Nobu Residences condominium complex, addressed the application of the transition provisions in section 87.3 of the Construction Act.
The core issue was whether the former Construction Lien Act (CLA) or the current Construction Act applied to the improvement and associated liens, which directly impacted lien timeliness.
The owner, 35 Mercer Limited, the contractor, Urban Integrated Group Inc., and a lien claimant, Brunco Insulation Ltd., argued for the application of the CLA, while Desco Plumbing and Heating Supply Inc. contended the current Construction Act should apply.
The court found that the CLA continues to apply to the improvement and all liens arising from it, based on evidence that a procurement process for the improvement commenced before July 1, 2018.
The court rejected arguments that the owner's affidavit was deficient, that ex parte vacating orders were binding, that the onus to provide transition dates was "murky," or that project delays like the COVID-19 pandemic should influence the application of section 87.3.
