DATE: 20061110

DOCKET: C45202

COURT OF APPEAL FOR ONTARIO

RE:

940691 ONTARIO INC. c.o.b. as KENWILL CARRIERS (Plaintiff (Appellant)) – and – PHILIP SERVICES INC. (Defendant (Respondent))

BEFORE:

FELDMAN, CRONK and BLAIR JJ.A.

COUNSEL:

Steven W. Pettipiere

for the appellant

Roger J. Gillott

for the respondent

HEARD & ENDORSED:

November 8, 2006

On appeal from the judgment of Justice Ground of the Superior Court of Justice dated March 15, 2006.

A P P E A L B O O K E N D O R S E M E N T

[1] The appellant’s trucks transported contaminated soil from a number of sites to the respondent’s transfer station. The soil was dug from the ground and loaded onto the trucks by other contractors. The court below concluded, based on existing case law in Ontario, that the services provided by the appellant being stand-alone transportation services, were not lienable under the Construction Lien Act. In our view, the motion judge made no error in his conclusion. See Slack Transport Ltd. v. General Concrete Ltd. (1984), 1983 1643 (ON CA), 9 D.L.R. (4^th) 640 (O.C.A.) and the cases that follow and apply it.

[2] The appeal is therefore dismissed with costs of the appeal fixed at $7,500 inclusive of disbursements and G.S.T.