Court File and Parties
CITATION: 2607634 Ontario Ltd. v. Thareja, 2025 ONSC 7103
DIVISIONAL COURT FILE NO.: 234/25
DATE: 2025-12-18
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
R. Charney, S. Nakatsuru, S. O’Brien JJ.
BETWEEN:
2607634 ONTARIO LTD. c.o.b DOLPHIN HOMES Appellant
- and -
VINOD KUMAR THAREJA Respondent
Counsel: Granville N. Cadogan, Counsel for the Appellant Christophe Shammas, Lauren Tzogas, Counsel for the Respondent
HEARD at Toronto: December 17, 2025
REASONS FOR DECISION
S. Nakatsuru J.
[1] The respondent, Vinod Kumar Thareja, hired the appellant, Dolphin Homes, to perform renovations to a property the appellant owned in Mississauga, Ontario. On July 11, 2022, Dolphin Homes registered a construction lien against title to the property. Dolphin Homes commenced an action to enforce the lien on August 30, 2022.
[2] The respondent brought a motion to have the lien declared expired and vacated, which was heard by Justice Stewart on December 20th, 2024. In an endorsement dated March 13, 2025, Justice Stewart granted the motion and found that the lien claimant failed to perfect the lien under s. 36(2) of the Construction Act, R.S.O. 1990, c. C. 30 (Act) in that it did not register the certificate of action in a timely fashion. Further, the lien expired because the appellant failed to observe the requirement under s. 37(1) of the Act, which provides that a lien expires immediately after the second anniversary of the commencement of the action unless it is set down for trial, or an order is made for the trial of an action in which the lien may be enforced.
[3] The appellant appeals the motions justice’s decision.
[4] For the following reasons, the appeal is dismissed.
[5] Subsection 45(1) of the Act requires the court to declare a lien expired and to vacate it, if it is not perfected in accordance with s. 36. Subsection 46(1) of the Act requires the court to declare a lien expired and to vacate the lien where it expires under s. 37. These provisions are mandatory statutory requirements, and the court has no discretion to relieve from them: K.H. Custom Homes Ltd. v. Smiley, 2015 ONSC 6037 (Div. Ct.), at paras. 3-4. The motions justice committed no error in following this well-established law.
[6] The appellant’s submission that the respondent did not plead that the lien was not perfected is inaccurate and even it was true, it does not absolve a lien claimant of its statutory obligations. Moreover, failure to perfect under s. 36(3) is not a mere procedural irregularity and it expressly does not fall within the remedial provision of s. 6 of the Act, which applies only to minor errors or irregularities in relation to subsections 32(2), 33(1) and 34(5). Thus, the appellant’s reliance on Gillies Lumber Inc. v. Kubassek Holdings Inc., 1999 3757 (ON CA), at para. 39, is misplaced.
[7] Other provisions relied upon by the appellant also have no application. Subsection 51(b) of the Act does not allow the court to cure irregularities. Rules 2.01(1) and 3.02 of the Rules of Civil Procedure do not apply since missing the deadlines is a statutory breach not a Rules breach.
[8] On this basis alone, Justice Stewart was correct in declaring the lien expired and vacating it.
[9] Although not required, I would also find that Justice Stewart’s decision regarding s. 37 did not fall into error. At a pre-trial hearing under Rule 50 in the case at bar, on July 19, 2023, Associate Justice Graham simply made a timetable order for discovery procedures and the scheduling of a further pre-trial conference. I agree with Justice Stewart’s conclusion that this order does not fall within the ambit of s. 37(1).
[10] Furthermore, given that these provisions are mandatory, it is irrelevant that the parties agreed that the matter was not ready for trial, or that an order was made setting a timetable. Contrary to the appellant’s position, neither the doctrine of estoppel nor s. 142 of the Courts of Justice Act, R.S.O. 1990, c C.43 operates to relieve the appellant from complying with the statutory deadlines.
[11] Lastly, the appellant appeals the substantial indemnity costs order though he made no oral submissions regarding this at the hearing of the appeal. Before Justice Stewart, the appellant also did not submit cost submissions.
[12] There is a discretion to award costs on a substantial indemnity basis under s. 86 of the Act. An appellate court will only interfere where the justice made an error in principle in their costs decision, or if the award is plainly wrong. Justice Stewart determined there was misconduct in the appellant’s delay and awarded substantial indemnity costs. I have not been persuaded she made an error in principle or that the award was plainly wrong.
[13] After reviewing the bill of costs and hearing the submissions of the parties, I conclude that a reasonable and proportionate award of costs for this appeal is the fixed sum of $8,500 all-inclusive to be paid to the respondent.
Nakatsuru J. I agree:
R. Charney J.
I agree:
S. O’Brien J.
Released: December 18, 2025
CITATION: 2607634 Ontario Ltd. v. Thareja, 2025 ONSC 7103
DIVISIONAL COURT FILE NO.: 234/25
DATE: 2025-12-18
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
R. Charney, S. Nakatsuru, S. O’Brien JJ.
BETWEEN:
2607634 ONTARIO LTD. c.o.b DOLPHIN HOMES Appellant
- and -
VINOD KUMAR THAREJA Respondent
REASONS FOR JUDGMENT
NAKATSURU J.
Released: December 18, 2025