Lauren Tzogas

The appellant contractor registered a construction lien against the respondent's property but failed to perfect it by registering a certificate of action in a timely manner.

The motions judge declared the lien expired and vacated it pursuant to the mandatory provisions of the Construction Act, and awarded substantial indemnity costs against the appellant.

On appeal, the Divisional Court affirmed the decision, holding that the failure to perfect a lien is a statutory breach that cannot be cured by procedural rules or equitable doctrines.

The appeal was dismissed with costs awarded to the respondent.

This decision determines the costs of a successful motion brought by the defendant, 485 Logan Developments Inc., to declare the plaintiff's construction lien expired.

The court found that the plaintiff had engaged in 'bootstrapping' by performing minor work solely to fabricate a new lien period after the original had expired.

Under section 86(1) of the Construction Act, such abusive conduct justified an award of substantial indemnity costs.

Consequently, the court ordered the plaintiff to pay the defendant $45,000 in substantial indemnity costs within 45 days.

The court considered a motion by 485 Logan Developments Inc. to declare a construction lien registered by Accurate General Contracting Ltd. expired for failure to preserve and perfect the lien in time.

The court found that Accurate’s alleged post-completion work did not extend the lien period, characterizing it as “bootstrapping.” The lien was declared expired, the action dismissed, and damages for the lien bond premium were awarded to Logan.