310 Waste Ltd. et al. v. Casboro Industries Ltd. et al.
[Indexed as: 310 Waste Ltd. v. Casboro Industries Ltd.]
83 O.R. (3d) 314
Court of Appeal for Ontario,
O'Connor A.C.J.O., Cronk and Lang JJ.A.
September 26, 2006
Construction liens -- Time limits -- Defendant appealing decision on issue of lienability to Divisional Court -- Second anniversary of issuance of statement of claim in lien action passing while decision was under reserve -- Plaintiff not setting action down for trial within those two years as required by s. 37 of Construction Lien Act -- Lien expiring -- Provisions of ss. 37 and 46 of Act mandatory -- Provisions not suspended by reserve judgment on issue of lienability -- Setting action down for trial not impossible for plaintiff -- Construction Lien Act, R.S.O. 1990, c. C.30, ss. 37, 46.
The defendant moved to discharge the plaintiff's lien on the basis that the work performed was not lienable. The motion was dismissed, and the defendant appealed to the Divisional Court. While the decision was under reserve, the second anniversary of the issuance of the statement of claim in the lien action passed without the plaintiff setting the action down for trial. The defendant moved successfully to have the lien declared to have expired, by reason of the lapse of the two-year period stipulated in s. 37(1) of the Construction Lien Act. The Divisional Court upheld that order. The plaintiff appealed.
Held, the appeal should be dismissed.
The provisions of ss. 37 and 46 of the Act are mandatory. A reserve judgment on the issue of lienability does not suspend the operation of those sections. It would not have been impossible, and it would not have been contemptuous, for the plaintiff to have taken steps to set the matter down for trial within the two-year period.
APPEAL from the judgment of Cunningham A.C.J.J., Chapnik and Thomson JJ., 2006 ONSCDC 23920, [2006] O.J. No. 2189, 213 O.A.C. 150 (Div. Ct.), in a construction lien action.
Statutes referred to Construction Lien Act, R.S.O. 1990, c. C.30, ss. 37 [as am.], 46
Duncan W. Glaholt, for appellant. Evan L. Tingley, for respondent. [page315]
Endorsement
[1] Endorsement BY THE COURT: -- The appellants appeal on the basis that the Divisional Court erred in failing to recognize an authority in the courts to extend the mandatory time requirement of ss. 37 and 46 of the Construction Lien Act, R.S.O. 1990, c. C.30, which provide:
37(1) A perfected lien expires immediately after the second anniversary of the commencement of the action that perfected the lien, unless one of the following occurs on or before that anniversary:
An order is made for the trial of an action in which the lien may be enforced.
An action in which the lien may be enforced is set down for trial. . . . . .
46(1) Where a perfected lien that attaches to the premises has expired under section 37, the court, upon a motion of any person, shall declare that the lien has expired and shall make an order dismissing the action to enforce that lien and vacating the registration of a claim for lien and the certificate of action in respect of that action.
[2] On October 10, 2003, 310 Waste Ltd. and Waste Excellence Corp. perfected their lien. The owner of the land, Casboro, brought a motion to discharge the lien on the basis that the work done was not lienable. The motion judge held that it was. Casboro appealed and the Divisional Court reserved. While the decision remained under reserve, the lien expired.
[3] The provisions of ss. 37 and 46 are mandatory. There is no indication of legislative intent that a reserve judgment on the issue of lienability would suspend the operation of these sections.
[4] This action would have had to be set down for trial no matter what the result of the appeal relating to lienability. We do not find it necessary to decide whether there ever could be circumstances warranting a judicial relaxation of the mandatory expiration period in s. 37. In our view, the circumstances of this case would not warrant the exercise of such a discretion.
[5] This was not a case of impossibility, either legal or practical. On the record before this court, no intervening events over which the appellants lacked control precipitated the expiration of the lien. It was possible for the appellants to attempt to comply with s. 37 by setting the action down. They failed to do so.
[6] In the circumstances discussed above, we are of the view that the maxim actus curiae neminem grabavit relied upon by the appellants has no application. Given the mandatory language of s. 37, we do not think that it would have been the least [page316] bit contemptuous for the appellants to have taken steps to set the matter down for trial within the two-year period.
[7] Accordingly, the appeal is dismissed. The appellants shall pay the respondent's costs fixed in the amount of $5,570.61, inclusive of disbursements and GST.
Appeal dismissed.