Ontario Superior Court of Justice – Divisional Court

Rentshop Inc. v. Tekke Thermal Inc.

Date: 2000-09-19

Counsel: W. Sirdevan, for the plaintiff/appellant; S. Morrison, for the defendant/respondent.

File No.: (45412/97)

Reasons for Decision

[1] Southey, J. [orally]: We agree with the conclusion reached by Madam Justice Eberhard and with the reasons expressed by her in her endorsement.

[2] There was one additional point raised in the able argument of Mr. Sirdevan as to the effect of s. 54(4) of the Construction Lien Act relating to the noting of a party in default. Section 54(4) provides that the party noted in default is not entitled to participate in the trial of the action or any step in the action. This section must be read in conjunction with s. 46 which reads as follows:

"Where a perfected lien that attaches to the premises has expired under section 37, the court, upon the motion of any person, shall declare that the lien has expired and shall make an order dismissing the action to enforce that lien and vacating the registration of a claim for lien and the certificate of action in respect of that action." (Emphasis added.)

[3] This provision is one of the aspects of the Construction Lien Act designed to preserve the integrity of the lien system by providing the "knowability" to which Madam Justice Eberhard referred in her endorsement. We are all of the view that the general provision in s. 54(4) does not take away the power of an owner, which is the status of Hollanding Inc. in this action, from moving for a declaration and the other relief provided for in s. 46(1) of the Act. As Mr. Morrison pointed out, the status to move under s. 46 is given to any person, so that it would be open to a party in the position of Hollanding Inc. to arrange for another person to bring the motion to achieve the same result. We do not wish to give to the provisions of the statute an interpretation which makes such arrangement necessary.

[4] Accordingly, the appeal is dismissed and the judgment below is affirmed.

[5] The appellant will pay to the respondent its costs of the appeal to this court, which we fix at $2,500

Appeal dismissed.