Pollard Windows v. 1459855 Ontario Limited et al, 2018 ONSC 558
CITATION: Pollard Windows v.1459855 Ontario Limited et al, 2018 ONSC 558
DIVISIONAL COURT FILE NO.: DC-17-1032-00
DATE: 20180125
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Abrams, Matheson, Ryan Bell, JJ.
BETWEEN:
Pollard Windows Plaintiff/Appellant
– and –
1459855 Ontario Limited
-and-
1795510 Ontario Inc. cob as Muskoka Custom Cottages Defendants
COUNSEL:
D. Schmuck, for the Plaintiff/Appellant
B. Vermeersch, for the Respondent 1459855 Ontario Limited
No one appearing for 1795510 Ontario Inc.
HEARD at Oshawa: January 23, 2018
REASONS FOR DECISION
Abrams J: (Orally)
[1] This is an appeal from the decision of Wood J. dated June 15, 2017, granting 1459855 Ontario Limited’s (145) motion to remove a construction lien on the title of its property and in turn dismissing this action as against 145.
[2] The underlying motion was a motion under s. 47 of the Construction Lien Act, R.S.O. 1990, c. C.30, by the property owner, sued by the appellant subcontractor in relation to unpaid accounts arising from its supply of windows and doors for a building project.
[3] Justice Wood found that the lien was not filed within the time required under s. 31(3)(b)(i) of the Construction Lien Act.
[4] The standard of review is as set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. However, the parties disagree as to the nature of the issues under appeal.
[5] The appellant submits that the motions judge made a number of errors of law, which would be reviewed on the standard of correctness, or an extricable error of principle arising from a finding of mixed fact and law, also subject to the standard of correctness.
[6] We find no error of law. The motions judge applied the law as set out in the appellant’s own cases. More specifically, the appellant relies on Lampton (County) v. Canadian Comstock Co. Ltd et al, [1960] S.C.R. 86, a decision of the Supreme Court of Canada regarding the Mechanics Lien Act, where the court held that it was appropriate to consider whether the remaining work was trivial and whether it was done in good faith to complete the contract. Similarly, in the appellant’s case of Provincial Partitions Ltd. v. Toronto (City), 2015, CarswellOnt 6264, the court found it appropriate to consider whether the items left to be done were trivial or for the mere purpose of bootstrapping expired lien rights. The court further held that relevant considerations include the motivation for the delay and whether the work was trivial in nature.
[7] We do not agree that the motions judge’s reference to the need for the work done or material supplied to be “real and substantial rather than trivial or manufactured for the purpose of extending the lien period” changes the legal test. The use of the phrase “real and substantial” is merely the inverse of trivial.
[8] As noted in the appellant’s main authority, Provincial Partitions, at para. 30, and by the motions judge at para. 12, each case turns on its facts. In this case, the motions judge made a number of findings of fact, all of which were open to him on the evidentiary record and for which the appellant has not established a palpable and overriding error. Those findings of fact include the following:
Pollard delivered all of the windows and doors to the site on April 6, 2015, but did not deliver the screens, and invoiced for everything, including the screens, on the next day.
One hundred and eighty-two days after Pollard delivered the windows and doors, it delivered the screens, although they had not been requested.
Between May and October, 2015, Pollard took no steps to register a lien. Instead, the appellant continued to demand payment from Muskoka Custom Cottages.
As found by the motions judge, when the screens were delivered they did not add any value to the project. Further, there was no reason why they could not have been delivered sooner. They had been completed at the time of invoicing and the timing of delivery was within the discretion of the appellant.
As found by the motions judge, the “inescapable conclusion” from the evidence was that the appellant kept the screens as an insurance policy to be used in the event that the lien period needed to be extended.
[9] The motions judge properly considered whether the screens added value to the project, that the screens were not separately invoiced, that there was no valid reason why they could not have been delivered sooner, and that the appellant intentionally kept the screens to attempt to extend an otherwise expired lien.
[10] The motions judge made no reviewable error in concluding that the appellant failed to register its lien within the required time period.
[11] The appeal is dismissed with costs to the respondent in the agreed amount of $8,500.00 all inclusive.
Abrams J.
I agree
Matheson J.
I agree
Ryan Bell J.
Date of Reasons for Decision: January 23, 2018
Date of Release: January 25, 2018
CITATION: Pollard Windows v.1459855 Ontario Limited et al, 2018 ONSC 558
DIVISIONAL COURT FILE NO.: DC-17-1032-00
DATE: 20180125
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Abrams, Matheson, Ryan Bell, JJ
BETWEEN:
Pollard Windows Plaintiff/Appellant
– and –
1459855 Ontario Limited
-and-
1795510 Ontario Inc. cob as Muskoka Custom Cottages Defendant/Respondent
ORAL REASONS FOR DECISION
Abrams J.
Date of Reasons for Decision: January 23, 2018
Date of Release: January 25, 2018