Court File and Parties

2017 ONSC 638 DIVISIONAL COURT FILE NO.: DC-14-752-00 DATE: 20170125

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Christian Chijindu and Nkiruka Ochei, Appellants AND: 2153801 Ontario c.o.b. The Loen Group, Shawn Paul Walker & Kevin Tetley, Respondents

BEFORE: Kiteley, Kruzick, Myers JJ.

COUNSEL: C. Chijindu, In person and as counsel for Ochei, for the Appellant A. Carnevale, for the Respondent

HEARD at Oshawa: January 25, 2017

Endorsement

Kruzick J (Orally):

[1] The appellants, Chijindu and Ochei appealed the judgment of Glass J., dated December 10, 2014 made after a six day trial.

[2] The appellants ask that the judgment be set aside and the resulting construction lien be discharged. It is argued that we substitute our view of the evidence and draw our own inferences of fact.

[3] The appellants argue correctness and error in the judgment. We are of the view that for findings of fact and law, as decided here, the standard is palpable and overriding error.

[4] The trial judge found that in dealing with The Loen Group the appellants knew that 2153801 operated as The Loen Group.

[5] The first question on this appeal is: Did the trial judge err on fact or law in determining that 2153801 Ontario Ltd. was a party to the contract between The Loen Group and the appellants.

[6] The appellants argue that they entered into a contract with The Loen Group. They submit they were not aware that 2153801 Ontario Ltd. was a party to the contract and that the agreement is unambiguous on that point. At paragraph 18 of the Reasons, the trial judge accepted the evidence of Walker, the principal of the numbered company and The Loen Group.

[7] In paragraph 34 the trial judge finds, and I quote: “I have no doubt that Shawn Walker clearly identified The Loen Group as a company owned and operated by him and Kevin Tetley.” In that same paragraph the trial judge finds that the appellants knew the numbered company and The Loen Group were one and the same. The Loen Group was the business trade name registered by the numbered company.

[8] While s.10(5) of the Business Corporations Act, R.S.O. [1990] c.B. 16 stipulates a corporation must set out its name in all contracts and invoices issued or made by and or on behalf of the corporation so that members of the public know who they are dealing with, s.7(3) of the Business Names Act, R.S.O. [1990] c.B. 17 states: “No contract is void or voidable by reason only that it was entered into by a person who was in contravention of this Act or the regulations at the time the contract was made.”

[9] In addressing a party’s failure to comply with these legislative provisions, “A Court will consider whether the contracting party’s failure to include its corporate name on the contract misled the other party in any way or cause him to take steps he would not otherwise have taken.” See; Chandaria Estates v. Stewart, [2011] ONSC 2486. As argued by the respondents and found by the trial judge, the appellants knew or ought to have known that The Loen Group operated as the numbered company. The trial judge therefore found that the appellants were not misled or prejudiced by the fact that 2153801 is not specifically referred to in the agreement.

[10] The appellants argued that 2153801 was not entitled to register a construction lien against their property.

[11] The second question on this appeal is: Did the trial judge err in fact or in law in determining that 2153801 was entitled to register a construction lien against the property.

[12] The appellants argue the trial judge should have construed the Construction Lien Act strictly and not extend it to 2153801. It is argued that the legislation creates a preference and security for certain creditors that did not exist in common law. However, s. 14 of the Construction Lien Act states a person who provides services or materials to an improvement for an owner contractor or subcontractor has a lien upon the interest of the owner in the premises provided for the price of those services or materials. As such, the appellants argue that as “a person” Walker alone is entitled to the lien, not the numbered company.

[13] Section 87 of the Legislation Act, S.O. 2006 c. 21 schedule F states, that unless the context otherwise requires ‘person’ includes a corporation. The respondents, more specifically 2153801 is therefore a person who provided such service and material. 2153801 properly preserved and perfected its construction lien pursuant to the requirements of the Construction Lien Act.

[14] Following the findings of fact by the trial judge, the appellants knew that the corporation was the contracting party, and therefore the proper lien holder and only it is liable on the contract.

[15] For these reasons, we find no palpable or overriding error in the decision.

[16] Accordingly the appeal is dismissed.

[17] Appellants shall pay partial indemnity costs to the Respondents in the amount of $17,000.

Kruzick J.

I agree _______________________________

Kiteley J.

I agree _______________________________

Myers J.

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