COURT FILE NO.: CV-18-600431 DATE: 2020 06 03
SUPERIOR COURT OF JUSTICE - ONTARIO
IN THE MATTER OF the Construction Act, RSO 1990, c. C.30, as amended
RE: O’NEIL DAVIS, Lien claimant - and - UNDER CONSTRUCTION INCORPORATED, Contractor
BEFORE: Master Todd Robinson
COUNSEL: C. Alexiou and R. Kalanda, counsel for the contractor
HEARD: In writing; ex parte
E N D O R S E M E N T
[1] Under Construction Incorporated (“UCI”) moves ex parte for a declaration that the lien of O’Neil Davis (“Davis”) preserved against the premises at 272 Wright Avenue, Toronto has expired and related orders discharging the lien and directing the Accountant of the Superior Court of Justice to pay out funds previously posted by UCI to vacate the lien. Davis’ claim for lien states that Davis supplied interior painting services to UCI at the subject premises.
[2] In Davis’ claim for lien, the period of supply is identified as being from March 23, 2018 to May 5, 2018, which pre-dates the July 1, 2018 amendments to the now-former Construction Lien Act (the “CLA”). I am accordingly satisfied that the provisions of the CLA remain applicable to the subject improvement by operation of section 87.3 of the Construction Act, hence I refer to the CLA in the balance of this endorsement.
[3] UCI moves pursuant to sections 45 and 47 of the CLA on the basis that Davis’ lien has not been perfected and has thereby expired pursuant to subsection 36(2) of the CLA. The sole evidence from UCI is a brief affidavit from one of its lawyers confirming that the claim for lien was registered on June 14, 2018, that the lien was vacated by order of Master Albert dated June 26, 2018 upon the posting of security, that the deadline to perfect the lien was August 1, 2018 (based on claimed last supply), that the lawyer has been advised by UCI that “they” are not aware of a lien action having been brought by Davis, and that the parcel register for the premises confirms no other claims for liens or certificates of action are registered on title. No other evidence has been tendered.
[4] In my view, the brief affidavit is insufficient to support an ex parte declaration that Davis’ lien has expired and related orders discharging the lien and returning security. I have the following concerns from UCI’s materials:
(a) The only evidence that Davis’ lien was not perfected is information from UCI that “they” are unaware of Davis having commenced a lien action. Despite the significance of that evidence to disposition of this motion, the lawyer’s affidavit does not identify the individual who advised him that “they” are not aware of an action being commenced.
(b) It is unclear if “they” refers to the person from whom the lawyer received the advice or UCI as a whole. The affidavit is also silent regarding the basis for the advice from UCI (or the individual advising the lawyer affiant). For example, there is no evidence of any communications with Davis or other reason for UCI to believe that the lien was not pursued.
(c) There is no evidence of any court file searches being performed or any other efforts being made to determine if a statement of claim was issued by Davis, even if not served. If the lien was perfected after being vacated, then registration of a certificate of action would not be required to complete perfection: see subsections 36(3)(b) and 44(6) of the CLA.
(d) The parcel abstract filed discloses that UCI registered its own claim for lien on September 28, 2018, which was subsequently deleted from title by application to delete construction lien registered on October 9, 2018. No evidence has been tendered regarding UCI’s lien. In particular, there is no evidence on whether UCI perfected its lien and the status of that lien action. There is also no evidence regarding the circumstances under which the claim for lien was deleted from title. The application to delete construction lien instrument is used to register a release of lien, vacating order, and discharge order. Evidence regarding whether UCI’s lien was perfected and the status of the lien is required before I am able to determine that Davis’ lien is not sheltering under UCI’s lien pursuant to subsection 36(4) of the CLA.
(e) I am unable to determine from the limited evidence filed whether or not Davis is a “contractor” under the CLA. No evidence has been tendered regarding the relationship between the owner identified in the claim for lien (the prior registered owner of the premises), UCI and Davis or regarding UCI’s relationship to and role in the subject improvement. UCI relies on Davis’ claimed date of last supply as being sufficient to find that the lien has expired. However, last supply bears on expiry of non-contractor liens, whereas expiry of a contractor’s lien under the CLA turns on the date of completion or abandonment of the contract: see subsections 31(2), 31(3) and 36(2) of the CLA (now expanded in the Construction Act to include termination of the contract). Before I am able to accept UCI’s position on expiry of the lien, I must first find that Davis is not a “contractor”.
[5] Declaring a lien expired is significant relief. When a motion for such a declaration is brought ex parte, the lien claimant has no opportunity to file responding materials or argue against the relief sought. It follows that the evidence filed by the moving party must support a clear finding that the subject lien has expired. That includes considering if there is any sheltering where other liens have been registered.
[6] Davis’ lien is nominal. Nevertheless, evidence on a motion to declare a lien expired must satisfy the court that no additional evidence or argument from the absent lien claimant would reasonably make a difference in disposition of the motion. I appreciate that current circumstances resulting from the spread of the 2019 novel coronavirus (COVID-19) may make obtaining necessary evidence for an ex parte motion more difficult, but a motion may also now be brought on notice in accordance with the procedure outlined in the Notice to the Profession – Toronto released by the Regional Senior Judge effective May 19, 2020.
[7] If UCI wishes to proceed ex parte, then supplementary materials addressing the above concerns may be filed electronically for my review within fourteen (14) days. If no supplementary materials are filed within that timeframe, then the motion will be deemed dismissed without prejudice to bringing it again on notice to Davis.
MASTER TODD ROBINSON DATE: June 3, 2020