Yorkwest Plumbing Supply Inc. v. Nortown Plumbing (1998) Ltd. et al.

[Indexed as: Yorkwest Plumbing Supply Inc. v. Nortown Plumbing (1998) Ltd.]

Ontario Reports

Court of Appeal for Ontario,

K.N. Feldman, Juriansz and D.M. Brown JJ.A.

April 27, 2016

131 O.R. (3d) 149 | 2016 ONCA 305

Case Summary

Construction law — Liens — General lien — Section 20(2) of Construction Lien Act ("CLA") applying to subcontracts — Subcontractor not entitled to file general lien against home development projects for total amount owed for materials supplied to multiple lots as general contractor's contract with owners specifically provided that liens would arise and expire on lot-to-lot basis — Motion judge not erring in discharging general liens — Section 6 of CLA not applying to cure subcontractor's [page150] defective general liens — Treating improper general liens as proper excessive liens under s. 35 of CLA would fail to give effect to s. 20(2) — Construction Lien Act, R.S.O. 1990, c. C.30, ss. 6, 20(2), 35.

The plaintiff was a plumbing subcontractor on two home development projects. It filed a general lien against each project, in each case claiming a lien for the total amount owed for materials supplied to multiple lots in each subdivision. In both cases, the general contractor's contract with each development owner specifically provided that liens would arise and expire on a lot-by-lot basis. The plaintiff's liens were discharged on motions for summary judgment, and those decisions were affirmed by the Divisional Court. The plaintiff appealed.

Held, the appeal should be dismissed.

Section 20(2) of the Construction Lien Act, which provides that a general lien does not arise under or in respect of a contract that provides in writing that liens shall arise and expire on a lot-by-lot basis, applies to subcontracts. Since all subcontracts derive from the main contract, a general lien of a subcontractor can only arise "in respect of" the main contract. The plaintiff was not entitled to file the general liens in this case.

The plaintiff was not entitled to relief under s. 6 or s. 35 of the CLA. Section 6 of the CLA, which provides relief from a failure to comply strictly with ss. 32(2), 32(5), 33(1) or 34(5), could not be applied to cure the plaintiff's defective general liens. To treat the plaintiff's improper general liens as proper excessive liens under s. 35 of the CLA would fail to give effect to s. 20(2) of the CLA.

Gillies Lumber Inc. v. Kubassek Holdings Ltd., 1999 3757 (ON CA), [1999] O.J. No. 2692, 176 D.L.R. (4th) 334, 123 O.A.C. 206, 47 C.L.R. (2d) 1, 89 A.C.W.S. (3d) 871 (C.A.); Leo P. Abrams & Sons Ltd. v. MacDonald Homes Inc. (Trustee of), 1996 2970 (ON CA), [1996] O.J. No. 664, 38 C.B.R. (3d) 250, 61 A.C.W.S. (3d) 644 (C.A.) [Leave to appeal to S.C.C. refused [1996] S.C.C.A. No. 214], apld

Other cases referred to

B010 v. Canada (Citizenship and Immigration), [2015] 3 S.C.R. 704, [2015] S.C.J. No. 58, 2015 SCC 58, 92 Admin. L.R. (5th) 1, 390 D.L.R. (4th) 385, 36 Imm. L.R. (4th) 64, 2015EXP-3370, J.E. 2015-1856, EYB 2015-259071, 478 N.R. 57, 259 A.C.W.S. (3d) 729; Brian T. Fletcher Construction Co. v. 1707583 Ontario Inc., [2009] O.J. No. 2049, 80 C.L.R. (3d) 143 (S.C.J.)

Statutes referred to

Construction Lien Act, R.S.O. 1990, c. C.30, ss. 6, 14, 20, (1), (2), 22, 26, 31, 35, 39(1)1, 55

Mechanics' Lien Act, R.S.O. 1980, c. 261 [rep.]

APPEAL from the judgment of the Divisional Court (Marrocco A.C.J., Sachs and MacKinnon JJ.), [2014] O.J. No. 4769, 2014 ONSC 5655, 45 C.L.R. (4th) 275 (Div. Ct.) affirming the order of Snowie J. dated December 5, 2013 discharging liens.

John Lo Faso and W.A. McLauchlin, for appellant.

Theodore B. Rotenberg, for respondent Intracorp Projects (Milton on the Escarpment) Ltd. [page151]

Karey Dhirani, for respondents Burl 9 Developments Limited and Sundial Homes (Burl 7) Limited.

The judgment of the court was delivered by

K.N. FELDMAN J.A.: —

Overview

[1] The appellant, Yorkwest Plumbing Supply Inc., was a plumbing supply subcontractor of Nortown Plumbing (1988) Ltd. ("Nortown") on two home development projects, one owned by the respondent, Intracorp Projects (Milton on the Escarpment) Ltd. ("Intracorp"), and one by the respondent, Burl 9 Developments Limited ("Burl 9").

[2] Having heard that Nortown's owners had previously failed to pay suppliers and tradespeople, the appellant initially refused to extend credit to Nortown. However, when Nortown ultimately went bankrupt, the appellant was owed in excess of $490,000 on a number of projects, including these two, on which it claims to be owed $39,846.69 for plumbing materials supplied to the Intracorp development and $63,535.24 to the Burl 9 development.

[3] In both cases, Nortown's general contract with each development owner specifically provided that liens would arise and expire on a lot-by-lot basis.

[4] Following its last supply to the projects, the appellant filed a general lien against each project, in each case claiming a lien for the total amount owed for what it had supplied to multiple lots in each subdivision. Those liens were discharged on motions for summary judgment, upheld by the Divisional Court, on the basis that under s. 20(2) of the Construction Lien Act, R.S.O. 1990, c. C.30, (the "CLA"), a subcontractor cannot claim a general lien on a project where the contractor and the owner have agreed that liens will arise and expire on a lot-by-lot basis. The appellant appeals that result.

[5] Because the appellant's liens were invalidated, the appellant receives no payment for the plumbing materials it supplied to the two projects. The appellant also asks this court to accord it a remedy because of an unfair result: the appellant states that based on a settlement reached between Intracorp and the trustee and receiver for Nortown, the secured creditors of Nortown, including two family members of its owner, will receive proceeds of the security paid into court to vacate Yorkwest's general lien against the lots of the Intracorp subdivision. [page152]

Facts

[6] Nortown entered into a written contract with Burl 9, dated August 4, 2009, and one with Intracorp, dated February 3, 2011, to carry out plumbing work on the homes in their respective residential subdivisions. Each contract between Nortown and the owners provided in writing that liens under the CLA were to arise and expire on a lot-by-lot basis. The Burl 9 contract also provided that for the purposes of the Act, "each individual unit (lot or building) on which the Contractor performs Contract Work shall be considered as comprising a separate contract".

[7] Yorkwest was Nortown's subcontractor for the supply of plumbing materials to each of the projects. Nortown and Yorkwest had an oral agreement, which did not address whether Yorkwest was entitled to a general lien or lot-by-lot liens. Yorkwest never asked, and was not informed, that the Burl 9 and Intracorp contracts each had a term stating that liens were to arise and expire on a lot-by-lot basis.

[8] After Nortown failed to pay Yorkwest for its supply of materials to the two projects, Yorkwest registered a general lien against each subdivision on February 3, 2012, which was within 45 days of its last supply of materials to each project. The general lien against the 11 unsold lots of the Burl 9 subdivision was for $63,535.24, while the general lien against the 49 lots owned by Intracorp was for $39,846.69.

[9] Yorkwest did not allocate the amount of materials it had supplied to the individual lots in the subdivisions, but rather claimed the full amount owing to it by Nortown against the remaining, unsold lots of each project. According to the evidence filed on the motion, in respect of the Intracorp project, only $1,482.56 worth of material was delivered by the appellant within 45 days of the registration of the lien to three of the lots; in respect of the Burl 9 project, only $1,701.78 worth of material was delivered by the appellant to three of the lots within 45 days of the registration of the lien.

[10] Although Nortown was named as a defendant in both actions, because it made an assignment in favour of its creditors, the proceedings against it were stayed. On February 6, 2012, Burl 9 paid into court $79,419.05 as security to vacate Yorkwest's claim for lien, and on February 9, 2012, Intracorp also vacated Yorkwest's claim for lien by paying $49,808.36 into court.

[11] The respondents each then moved for summary judgment on the basis that Yorkwest was not entitled to register a general lien because their contracts with Nortown stated that all liens were to arise and expire on a lot-by-lot basis. [page153]

[12] On December 5, 2013, the motion judge granted summary judgment and discharged Yorkwest's general liens. She found that because the contracts both stipulated that liens were to arise and expire on a lot-by-lot basis, Yorkwest, as subcontractor, did not have the right to register general liens.

[13] The Divisional Court dismissed Yorkwest's appeal. It held that, under s. 20(1) of the CLA, a subcontractor's right to claim a general lien flows from the contractor's right. Where a contractor agrees in writing that all liens are to arise and expire on a lot-by-lot basis, a general lien is precluded under s. 20(2), including to a subcontractor.

[14] The Divisional Court also dismissed the appellant's claims for other relief.

Issues

[15] The issues to be resolved on this appeal are as follows:

(1) Did the Divisional Court err in interpreting s. 20(2) of the CLA to apply to "subcontracts", when that term is not used in the subsection?

(2) If the appellant was not precluded under s. 20(2) from filing a general lien, was it entitled to do so in this case?

(3) If the appellant was precluded from filing a general lien, is it entitled to any other relief?

Analysis

(1) The correct interpretation of [s. 20(2)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c30/latest/rso-1990-c-c30.html) of the [CLA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c30/latest/rso-1990-c-c30.html)

[16] The right to a construction lien is granted in s. 14 of the CLA, which provides:

14(1) A person who supplies services or materials to an improvement for an owner, contractor or subcontractor, has a lien upon the interest of the owner in the premises improved for the price of those services or materials.

[17] That section gives a supplier of services or materials to an improvement a lien on the interest of the owner of the improved premises for the price of what was supplied.

[18] Where an owner of more than one premises enters into a single contract to improve a number of premises, s. 20(1) of the Act creates the right to a general lien. It allows a supplier of services or materials under that contract, or under a subcontract of that contract, to choose to register a general lien against each of the premises for the price of all the services or materials it supplied to all of the premises. [page154]

[19] Section 20 of the CLA reads as follows:

20(1) Where an owner enters into a single contract for improvements on more than one premises of the owner, any person supplying services or materials under that contract, or under a subcontract under that contract, may choose to have the person's lien follow the form of the contract and be a general lien against each of those premises for the price of all services and materials the person supplied to all the premises.

(2) Subsection (1) does not apply and no general lien arises under or in respect of a contract that provides in writing that liens shall arise and expire on a lot-by-lot basis.

[20] The section is particularly applicable to a housing development involving multiple lots. The effect is that a contractor or subcontractor may file a general lien which does not have to set out what was supplied to any particular premises (lot), but instead covers whatever was supplied to any of the premises (lots) and grants the right to a lien for the total amount supplied, for which it remains unpaid, against each of the unsold premises (lots). That general lien is valid if it is registered prior to when the lien rights with respect to materials or services supplied to the last of the lots expire in accordance with s. 31 of the Act, so that it can have the effect of extending the lien expiry period for materials or services supplied to the first lots. See Brian T. Fletcher Construction Co. v. 1707583 Ontario Inc., [2009] O.J. No. 2049, 80 C.L.R. (3d) 143 (S.C.J.), at para. 16.

[21] However, s. 20(2) is a contracting out provision. Under s. 20(2), where a contract provides that liens will arise and expire on a lot-by-lot basis, then in that case, "no general lien arises under or in respect of" that contract.

[22] The appellant's argument is that because s. 20(2) does not refer to a subcontract, but only to a contract, then regardless of whether the owner and the contractor agreed in their written contracts that liens would arise and expire lot-by-lot, a subcontractor may still register a general lien under s. 20(1), as long as the subcontractor has not agreed in its subcontract that liens will arise and expire on a lot-by-lot basis. The appellant emphasizes the fact that the Act specifically defines the terms "contract" and "subcontract" separately, and refers to each specifically where applicable.

[23] Both the motion judge and the Divisional Court rejected the appellant's interpretation. I agree with their conclusion.

[24] Subsection 20(2) was added to the CLA shortly after the Act came into force because problems had arisen out of the operation of the general lien provision in s. 20(1). The problems were explained in a compendium of background material prepared for the Ontario legislature at the time the amendment was presented [page155] in late 1983, which contained the following explanation for the amendment:

Section 20 of the Act now provides for a general lien against each of the several properties involved where a single contract is entered into for improvements on more than one premises.

In the house-building sector of the construction industry, section 20 has had the effect of generating unnecessary paper work and associated costs. Lenders are not providing mortgages where there are general liens because the general lien results in a potential total loss of security on the last few houses of a group. As each house subject to a lien is sold, the value of the general lien must be realized from those remaining. Therefore, the holdback for the whole contract must be secured by the remaining houses. Where only a few houses remain to be sold, the potential deficiencies in the owner's holdbacks on the contract would exceed the value of the remaining properties. Legislation controlling lending limits would not permit institutional lenders to lend under these circumstances.

As a result, a number of legal devices have been used by builders to prevent general liens from arising, e.g. separate corporate existence for the owner and for the builder; separate contracts for each house. These legal devices generate unnecessary costs without benefit to the suppliers of services or materials. To avoid this waste, a new subsection has been added to section 20.

The subsection to be added provides that a general lien does not arise where the contract provides in writing that liens shall arise and expire on a lot-by-lot basis.

(Ontario, Legislative Assembly, "Compendium of background material re Bill 135, An Act to amend the Construction Lien Act" in Sessional Papers, No. 323/236 (1983), at pp. 3-4.)

[25] It is clear that the intent of amending s. 20 by adding s. 20(2) was to allow an owner and a contractor to contract out of the right to file a general lien, in order to prevent the problems that had been arising with mortgage financing. As the Divisional Court observed, to give effect to the appellant's interpretation would be to re-create the mischief that s. 20(2) was intended to address.

[26] That intent is clearly reflected in the language of the section, which is to be interpreted in accordance with the oft-cited principle of modern statutory interpretation, most recently stated by the Supreme Court of Canada in B010 v. Canada (Citizenship and Immigration), [2015] 3 S.C.R. 704, [2015] S.C.J. No. 58, 2015 SCC 58, at para. 29:

The modern rule of statutory interpretation requires us to read "the words of an Act . . . in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at p. 7; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26. [page156]

[27] Applying that approach to the interpretation of s. 20(2) gives effect both to the plain meaning of the section, as well as to its ameliorative purpose. Where an owner of multiple premises enters into a single contract to improve those premises, any supplier of materials or services either "under that contract" or "under a subcontract under that contract" may choose to have its lien "follow the form of the contract" by filing a general lien against each of the premises, in accordance with s. 20(1). As Master Albert stated in her explanation of the effect of s. 20 in Brian T. Fletcher, at para. 16: "A subcontractor's right to claim a lien flows from the general contractor's entitlement."

[28] Subsection 20(2) sets out the circumstances when s. 20(1) does not apply, and when no general lien arises: when a contract "provides in writing that liens shall arise and expire on a lot-by-lot basis", then no general lien arises "under or in respect of" that contract.

[29] The "contract" referred to in s. 20(2) must be the contract between the owner and the contractor. That is because it is only that contract that can be the "single contract" referred to in s. 20(1), which allows the general lien to arise and to be applicable to each of the premises for the price of all services and materials that the lien claimant provided to all of the premises. Because s. 20(2) provides that no general lien arises "under or in respect of" the "lot-by-lot" contract with the owner of the multiple lots, no one who claims a lien under that contract or in respect of that contract can claim a general lien.

[30] The appellant argues that the omission of the term "subcontract" from s. 20(2) means that it does not apply to subcontracts. I do not accept this submission. Since all subcontracts derive from the main contract, a general lien of a subcontractor can only arise "in respect of" the main contract. Stated another way, because the right to a general lien can only arise under s. 20(1) in the contract between the contractor and the owner, a subcontract cannot create that right. Therefore, the fact that a subcontract is silent on the issue cannot have any effect.

[31] This point is also made clear in the French version of s. 20(2), which states:

20(2) Le paragraphe (1) n'a pas d'incidence sur le contrat qui prévoit par écrit que des privilèges prennent naissance et s'éteignent relativement à chacun des lots en particulier. Dans ce cas aucun privilège général ne naît.

(Emphasis added)

[32] In support of its position, the appellant also points to the fact that subcontractors will not be aware of the terms of the main contract, and therefore will not know whether a general lien is available. However, s. 39(1)1 of the Act specifically [page157] provides that any person with a lien is entitled to information from the owner or contractor within 21 days of making a written request, including, under clause v., a statement as to whether the contract provides in writing that liens will arise and expire on a lot-by-lot basis. This gives a subcontractor ample notice to register a proper and available lien prior to its expiry.

[33] One of the reasons given by the Divisional Court for rejecting the appellant's interpretation was that it would prevent an owner who had contracted out of the general lien from releasing the holdback on each lot as it was completed, because a subcontractor could later register its general lien against any unsold, completed lots for the total, unpaid amount for materials or services it had supplied to all lots. The Divisional Court concluded that this would make the ability to contract out of s. 20(1) virtually meaningless.

[34] I believe this observation requires some clarification. The operation of the holdback provisions of the Act is not contained in s. 20 and is not automatically affected by contracting out of the right to file a general lien under s. 20(2). However, the owner and contractor may contract in such a way as to achieve the ability to release the holdback on a lot-by-lot basis, as part of contracting out under s. 20(2).

[35] The basic holdback is provided in s. 22 of the Act, which states:

22(1) Each payer upon a contract or subcontract under which a lien may arise shall retain a holdback equal to 10 per cent of the price of the services or materials as they are actually supplied under the contract or subcontract until all liens that may be claimed against the holdback have expired as provided in Part V, or have been satisfied, discharged or provided for under section 44 (payment into court).

[36] The time when the basic holdback may be released is governed by the expiry of the lien rights: see s. 26. Section 31 provides for when claims for lien expire. In the case of a claim for lien by a contractor, the expiry date is governed by the date when a copy of the certificate or declaration of the substantial performance of the contract is published, or the date on which the contract is completed or abandoned. Therefore, in the case of a single contract for the improvement of multiple lots, where s. 20(1) applies, the lien rights of the contractor will expire based on the substantial performance, completion or abandonment of the whole contract, and not of specific lots.

[37] However, where the contractor and the owner have a single contract for multiple lots, but contract out of the general lien right under s. 20(2) by providing that liens will arise and expire on a lot-by-lot basis, they may also provide that for the purposes [page158] of the Act, the agreement as it applies to each lot will be deemed to be a separate contract. Such a provision is found in the Burl 9 contract with Nortown.

[38] By making each lot a separate contract, the lien rights of the contractor will expire for each lot, pursuant to s. 31, based on the substantial performance, completion or abandonment of each separate contract.

[39] I agree with the Divisional Court that the appellant's interpretation would undermine the ability of contractors and owners to make provision in their contract to allow the owner to release the holdback on a lot-by-lot basis, and that would considerably undermine the benefit of contracting out under s. 20(2).

[40] In my view, there is no merit to the appellant's proposed interpretation of s. 20(2). I would dismiss the appeal on that issue.

(2) Whether the appellant was entitled to register a general lien in this case

[41] As I have concluded that the appellant was not entitled to register a general lien, this issue is now moot.

(3) Entitlement to other forms of relief

[42] The appellant suggests three alternative remedies. First, the appellant asks the court to cure its defective general liens by applying s. 6 of the Act, which provides:

6. No certificate, declaration or claim for lien is invalidated by reason only of a failure to comply strictly with subsection 32(2) or (5), subsection 33(1) or subsection 34(5), unless in the opinion of the court a person has been prejudiced thereby, and then only to the extent of the prejudice suffered.

[43] However, this court has already addressed the application of s. 6 to the improper registration of a general lien in two cases, Leo P. Abrams & Sons Ltd. v. MacDonald Homes Inc. (Trustee of), 1996 2970 (ON CA), [1996] O.J. No. 664, 38 C.B.R. (3d) 250 (C.A.), leave to appeal to S.C.C. refused [1996] S.C.C.A. No. 214; and Gillies Lumber Inc. v. Kubassek Holdings Ltd., 1999 3757 (ON CA), [1999] O.J. No. 2692, 176 D.L.R. (4th) 334 (C.A.).

[44] In Gillies, a general lien was improperly registered against four different projects where there was no single contract, but rather a separate contract for each project. The court gave three sets of reasons. Laskin J.A., in dissent, was of the view that s. 6 could apply in such a situation. In his view, while s. 6 could not be used to convert the general lien into four individual liens, it could be used as a shield against invalidation of the general lien. [page159]

[45] However, both Borins J.A. and McMurtry C.J.O. disagreed. Borins J.A. found that s. 6 could only be used to correct procedural errors. However, s. 20(1) is not procedural, as it gives a substantive right to a general lien in specifically defined circumstances. Section 6 therefore does not apply, he stated, to relieve against the registration of a general lien when there was no right to one under s. 20(1).

[46] McMurtry C.J.O. agreed that s. 6 could not be applied to avoid invalidation of the general lien in that case, but for the reason that the section could be used only to correct minor or technical defects. He also agreed that the focus of s. 6 was on procedural matters, applying where there would be invalidation "by reason only of a failure to comply strictly" with procedural provisions of the Act. He referred to the legislature's intent in changing the wording from the curative provision in the former Mechanics' Lien Act, R.S.O. 1980, c. 261, which had provided that "substantial compliance" was sufficient to save a lien. He observed that the intent of the change was to narrow the scope of the application of the section. In concluding that s. 6 could not be used in the circumstances in Gillies, he focused on the fact that the large amount of the lien that had been claimed greatly exceeded the actual amount that could be claimed for each project, and therefore, it could not be considered a minor or technical error.

[47] The facts in the Abrams decision were much closer to this case. There, an improper general lien was registered in the face of a contract with a lot-by-lot lien restriction. The majority of the court stated that there was no curative provision and did not refer to s. 6. It held that to allow the claimant to preserve its general lien "would be to ignore the scheme of s. 20 and would encourage the improper registration of liens": para. 5.

[48] In my view, in the face of these authorities, there is no basis to apply s. 6 in this case. First, the decision in Abrams provides a complete answer. The facts here are different from Abrams only in that the appellant is a subcontractor, and not the contractor with the lot-by-lot restriction in its contract. However, as explained above, the legal effect under s. 20(2) is the same. The appellant had the ability to learn of the restriction in the contracts between Nortown and the respondents by asking for information using s. 39, but it did not do so.

[49] Furthermore, applying the reasoning of either Borins J.A. or McMurtry C.J.O. in Gillies, s. 6 cannot be used to cure the improper liens in this case. Importantly, although he dissented [page160] in Gillies, Laskin J.A. distinguished Abrams, suggesting that he did not intend his dissent in Gillies to allow s. 6 to be used where a general lien claim is registered contrary to s. 20(2) of the Act.

[50] The second form of alternative relief requested by the appellant is to treat the claims for general liens as excessive liens under s. 35 of the CLA. This was the approach taken by Master Albert in the Brian T. Fletcher case, in which the supplier argued that he was entitled to general liens against two premises, despite the fact that the amounts of the claims for liens included services and materials supplied to subdivision lots owned by others. The master rejected the supplier's argument and found that he was not entitled to register general liens. However, she held that because the claims for liens did not describe the liens as general, and did not refer to the services provided to other lots, she could therefore view the liens as properly registered specific liens, but for excessive amounts, under s. 35 of the Act.

[51] That is not what occurred in this case. Here, to treat the improper general liens as proper specific liens, but registered for excessive amounts, would be to fail to give effect to s. 20(2) of the Act. It would have the effect of undermining the fair and efficient operation of the Act, which is provided for the benefit of all affected parties.

[52] The third requested alternative remedy, not granted by the Divisional Court, is to allow the appellant's claims for quantum meruit and unjust enrichment against the respondent owners to proceed.

[53] Section 55 of the CLA allows a plaintiff in a lien action to join in the action a claim for breach of contract or subcontract. In its statement of claim, the appellant pleaded that it was not paid pursuant to its agreement with Nortown, which was named as one of the defendants. However, the appellant did not plead breach of contract as against the respondent owners, Intracorp and Burl 9, as it had no contracts with them.

[54] The Divisional Court held that to allow claims not referred to in s. 55 to be joined in the action, such as claims for quantum meruit or unjust enrichment, would amount to a refusal to apply the plain wording of s. 55. I agree. The Act is intended to provide a summary procedure for dealing with lien claims. By including s. 55, the Act further defines the extent and intent of actions that can be brought to enforce it. [page161]

Conclusion

[55] The appellant supplied plumbing materials to the two projects of the respondents, Intracorp and Burl 9, under subcontracts with Nortown. Nortown went bankrupt and the appellant failed to properly protect itself under the provisions of the CLA. Although money has been paid into court to vacate the liens that the appellant registered, it has no legal claim to that money. There is no basis to provide a remedy to the appellant in the circumstances.

[56] I would dismiss the appeal with costs fixed at $10,000 to each respondent, inclusive of disbursements and HST.

Appeal dismissed.

End of Document