John Margie

The defendant developer brought a motion under s. 46 of the Construction Lien Act to declare that the plaintiff's construction lien had expired under s. 37 because the plaintiff's specific action was not set down for trial within two years.

The court dismissed the motion, finding that another lien claimant's action, which arose from the same improvement, had been set down for trial within the two-year period.

Under the Act, an action commenced by one lien claimant is an action in which all other liens may be enforced, thus protecting the plaintiff's lien from expiry.