Citation and Court Information
CITATION: Pflanzer v. Laari Construction Ltd. et al., 2017 ONSC 4877
COURT FILE NO.: DC 16-2203
DATE: 2017/08/18
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
In the matter of the Construction Lien Act, R.S.O. 1990, c. C.30
BETWEEN:
Ziggy Pflanzer as Trustee of the Ontario Provincial Council of Carpenters Benefit Trust Funds and as Agent of all affected members of the United Brotherhood of Carpenters and Joiners of America and its locals Moving Party/Respondent
– and –
RES Canada Construction (Ontario ) L.P. and RES Canada Construction (Ontario) Inc., Laari Construction Ltd. and 2309360 Ontario Limited A/O Helios Developments Responding Party/Appellant
Counsel:
Michael Mazzuca for the Moving Party/Respondent
Marc Huneault for the Responding Party/Appellant
HEARD: in Ottawa on August 10, 2017
GOMERY J.
Overview
[1] Laari Construction Ltd. subcontracted work on a solar energy farm to 2309360 Ontario Ltd., a company operating as Helios Developments. Helios hired unionized workers but, due to financial difficulties, abandoned the project before it was finished. Some of the workers hired by Helios say that they are still owed wages and benefits for work done from May through July 2014.
[2] In his capacity as trustee of the workers’ union and their representative, Ziggy Pflanzer registered a $200,000 lien against the farm and sued Laari, Helios, and the others involved in the project for the unpaid amounts.
[3] Laari and another subcontractor on the project, SMS Construction and Mining Systems Inc., made a motion seeking the dismissal of Pflanzer’s lawsuit. They argued that the information in the lien registration documents did not comply with the requirements in the Construction Lien Act. Justice Trousdale dismissed the Laari/SMS motion. Laari and SMS are appealing the dismissal of their motion to the Divisional Court.
[4] In response, Pflanzer brings this motion before me, sitting as a single Judge of the Divisional Court, seeking an order dismissing the appeal. He argues that the decision on the motion was interlocutory rather than final and that, under s. 71(3) of the Construction Lien Act, R.S.O. 1990, c. C.30, (“CLA”), a party cannot appeal from an interlocutory order.
The Decision of the Motion Judge
[5] On the motion, Laari and SMS contended that Pflanzer’s lien did not comply with s. 34(5) of the CLA because, among other things, it did not list the names and addresses of the individuals who actually did the work on the project. Laari and SMS sought a declaration that the lien had expired, and an order dismissing Pflanzer’s lawsuit.
[6] In her order dated April 27, 2016, the motion judge dismissed the motion and directed the parties to make cost submissions if necessary. In her written reasons for the order, she held that the lien claim registered by Pflanzer sufficiently identified the workers claiming unpaid wages and the lien complied with s. 34(5) of the CLA.
CLA Prohibits Appeal from Interlocutory Orders
[7] Section. 71(3) of the CLA states that “no appeal lies from an interlocutory order made by the court”.
[8] In this motion, Pflanzer relies on two decisions from Ontario courts in which an order of the kind made by the motion judge were found to be interlocutory.
[9] In Teperman and Sons Inc. v. Alros Products Ltd., Justice Lane struck an appeal from an order dismissing a motion by the defendant for a declaration that the plaintiff’s lien had expired ([1994] O.J. No. 2349). He held that the order was interlocutory, and s. 71(3) of the CLA precludes an appeal from an interlocutory order. Section 17(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) usually permits a party to appeal an interlocutory order made by a master, but Justice Lane ruled that this provision does not apply in construction lien actions due to s. 71(3) of the CLA.
[10] In its 2011 decision in 570 South Service Road Inc. v. Lawrence-Paine & Associates Limited, the Divisional Court found that it did not have jurisdiction to hear an appeal from an order dismissing a motion to discharge a lien (2011 ONSC 3410). The defendant in the lien action in 570 South Service alleged that the lien was registered more than 45 days following the date of the last supply of services or materials, and as such had expired. The motion judge held that the lien claim had not expired and dismissed the motion. In its reasons for rejecting the appeal from that decision, the Divisional Court noted that “one appeals an order made by the court; one does not appeal the reasons” (para. 12). The dismissal order simply said (as does the order of the motion judge in the matter before me) that “the motion by 570 South Service Road is dismissed”.
[11] As a result, according to the Divisional Court, the motion judge’s order in 570 South Service did not settle the validity of the lien claim “for all time”. The plaintiff would still have to prove, at trial, that it had a “valid preserved and perfected lien and that it was owed money for services or materials it had supplied” (570 South Service, para. 13). It would not be able to argue otherwise just because it successfully resisted the defendant’s motion challenging the lien.
Is this case distinguishable from Teperman and 570 South Service?
[12] Laari and SMS argue that their matter is different from Teperman and 570 South Service because the motion judge made factual and legal findings that limit the defenses available to Laari at trial. They focus in particular on the motion judge’s statement in her reasons that Pflanzer complied with s. 34(5) of the CLA. Laari and SMS say that this statement binds the trial judge and that, as result, the order dismissing their motion is final rather than interlocutory.
[13] A decision on a motion is final if it “finally dispose[s] of the issue raised by [a] defence, and therefore deprive[s] the defendant of a substantive right which could be determinative of the entire action” (Ball v. Donais (1993), 1993 8613 (ON CA), 13 O.R. (3d) 322 (C.A.) at para. 3; Stoiantsis v. Spirou, 2008 ONCA 553; V. Gibbons Contracting Ltd. v. Losani Homes (1998) Ltd., [2008] O.J. No. 3841 (Div. Ct.); and Meisels v. Lawyers Professional Indemnity Co., 2015 ONCA 406).
[14] The motion judge did not make a final order that settles the validity of the lien claim “for all time”. In fact, it would not have been open to her to make such an order, given the court’s limited power under s. 47(1) of the CLA, which permits a court to order the discharge of a lien or the vacation of the registration of a lien, or declare that a lien has been expired, or dismiss the action.
[15] As noted in 570 South Service, and acknowledged by Pflanzer’s counsel in argument before me, at trial he will still have to prove the timeliness, validity, and quantum of the lien. Laari and SMS have accordingly not been deprived of a substantive right to defend this lawsuit.
Did the case management judge make an order that changes the situation?
[16] On November 18, 2015, a case management judge noted on the record that the Laari/SMS motion would determine “whether the Plaintiff’s lien has expired”. Laari and SMS say that this amounts to a court order and that, given the dismissal of their motion, the only remaining issues are holdback and quantum. I disagree.
[17] The case management endorsement records, in broad terms, how the parties expected the case to proceed. The endorsement did not predetermine the scope of the order to be made by the motion judge hearing or, for that matter, invest that judge with powers that she did not otherwise have under s. 47 of the CLA.
Did the judge exceed her jurisdiction?
[18] Laari and SMS argue that, as a result of her interpretation of s. 34(5) of the CLA, the motion judge exceeded her jurisdiction, and that applying s. 71(3) in this case risks undermining public confidence in the administration of justice. I disagree with their characterization of the motions judge’s decision. I furthermore reject their contention that following the principles established by the Divisional Court in Teperman and 570 South Service will undermine public confidence.
Conclusion
[19] The dismissal of the Laari/SMS motion allows Pflanzer’s action to survive. It does not relieve Pflanzer of having to prove the claim for lien. It does not preclude Laari and SMS from arguing at trial that the lien has expired.
[20] I find that the order of the motion judge is interlocutory rather than final and, pursuant to s. 71(3) of the CLA, no appeal from it lies to this Court. Pflanzer’s motion to quash the appeal is therefore allowed, and the appeal is dismissed for want of jurisdiction.
[21] If the parties are unable to agree on the issue of costs, they may make written submissions limited to no more than four typewritten pages, plus a bill of costs. Pflanzer shall deliver written submissions, if any, within 30 days of release of this decision, and Laari and SMS shall have 30 days from the date of service of Pflanzer’s written submissions to deliver any responding submissions with respect to costs.
GOMERY J.
Released: 2017/08/18
CITATION: Pflanzer v. Laari Construction Ltd. et al., 2017 ONSC 4877
COURT FILE NO.: DC 16-2203
DATE: 2017/08/18
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
In the matter of the Construction Lien Act, R.S.O. 1990, c. C.30
BETWEEN:
Ziggy Pflanzer as Trustee of the Ontario Provincial Council of Carpenters Benefit Trust Funds and as Agent of all affected members of the United Brotherhood of Carpenters and Joiners of America and its locals Moving Party/Respondent
– and –
RES Canada Construction (Ontario ) L.P. and RES Canada Construction (Ontario) Inc., Laari Construction Ltd. and 2309360 Ontario Limited A/O Helios Developments Responding Party/Appellant
Justice S.A. Gomery
Released: 2017/08/18