Zemelman et al. v. Feder et al. [Indexed as: Zemelman v. Feder]

54 O.R. (3d) 15

[2001] O.J. No. 1857

Docket No. 55708/00

Ontario Superior Court of Justice

Divisional Court

O'Leary, Then and C.L. Campbell JJ.

April 30, 2001

Construction liens--Validity--Affidavit of Verification missing signed jurat--Subsequent evidence establishing that affidavit properly completed--Lien valid--Construction Lien Act, R.S.O. 1990, c. C.30, s. 34(6).

A construction lien was registered against the property of MF and NF. They moved for an order pursuant to ss. 31 and 47 of the Construction Lien Act declaring the lien invalid and having its registration vacated because the Affidavit of Verification, which the Act requires be sworn before a commissioner, did not have a completed jurat. On the hearing, the lien claimant tendered an affidavit that confirmed that the Affidavit of Verification was sworn before a commissioner but that the jurat had not been completed because of an inadvertent slip by the commissioner. Archibald J. held that the jurat was a central element of the affidavit and granted the motion. The lien claimant appealed.

Held, the appeal should be allowed.

There is a distinction between the affidavit itself, as required under the Construction Lien Act, and the jurat, which provides the evidentiary proof of the proper completion of the affidavit. Proof of the requirements to complete a jurat may be made after the affidavit has been completed. The decision of the Supreme Court of Canada in R. v. Lachance confirmed the appropriateness of accepting proof of the contents of an affidavit by additional evidence, notwithstanding the absence of a signature from a jurat. Accordingly, the appeal should be allowed.

APPEAL from an order pursuant to ss. 31 and 47 of the Construction Lien Act declaring a lien invalid.

Cases referred to Banque d'Hochelaga v. Hayden, 1922 431 (AB SCAD), [1922] 1 W.W.R. 1054, 17 Alta. L.R. 277, 63 D.L.R. 514 (C.A.); Davis v. Wickson (1882), 1 O.R. 369 (H.C.); Hamilton v. Harrison (1881), 46 U.C.Q.B. 127 (Ont.); Lilley, Re (1975), 19 C.B.R. (N.S.) 292 (Ont. S.C.); Mowat v. Clement (1886), 1886 137 (MB CA), 3 Man. R. 585 (C.A.); Nisbet v. Cock (1879), 4 O.A.R. 200; R. v. Lachance, 1990 53 (SCC), [1990] 2 S.C.R. 1490, 43 O.A.C. 241, 116 N.R. 325, 50 C.R.R. 260, 60 C.C.C. (3d) 449, 80 C.R. (3d) 374; Sefri Construction International Ltd. v. Jaltas, [1990] O.J. No. 312; Talarico, Re (1969), 13 C.B.R. (N.S.) 330n (Ont. S.C.); Venditti v. Petriglia (1989), 33 C.L.R. 1, 33 O.A.C. 76 (C.A.) Statutes referred to Construction Lien Act, R.S.O. 1990, c. C.30, ss. 6, 31, 34(6), 47 Criminal Code, R.S.C. 1985, c. C-46, s. 185(1) Evidence Act, R.S.O. 1990, c. E.23, s. 4 Rules and regulations referred to General Regulation, R.R.O. 1990, Reg. 175 (made under the Construction Lien Act), Form 9 Authorities referred to Garner, B.A., ed., Black's Law Dictionary, 7th ed. (St. Paul, Minn.: West Group Co., 1999) Kirsch, H.K., The Construction Lien Act: Issues and Perspectives (Scarborough, Ont.: Carswell, 1989)

Darryl A. Cruz, for plaintiffs/appellants. Kenneth W. Movat, for defendants/respondents.

The judgment of the court was delivered by

[1] C.L. CAMPBELL J.:--The narrow issue on this appeal concerns whether or not the absence of a signed jurat to an Affidavit of Verification invalidates the registration of a claim for lien made under the Construction Lien Act, R.S.O. 1990, c. C.30, as amended.

[2] The position of the appellant is that the completed jurat is simply proof of the affidavit and subsequent evidence from the commissioner before whom the affidavit was sworn can be received to complete the proof.

[3] The position of the respondent is that a completed jurat is an integral and necessary part of an Affidavit of Verification, and that without its proper completion, the affidavit is null and void, at least for the purposes of validly registering a lien claim under the statute.

[4] The respondent moved before Archibald J. for an order pursuant to ss. 31 and 47 of the Construction Lien Act, declaring the lien registered against the property of the respondents invalid and for its vacation from title.

[5] The ground for the relief was that s. 34(6) of the Construction Lien Act requires "a claim for lien shall be verified by an affidavit of the person claiming the lien" and that the lien then be registered on title within the prescribed time period.

[6] On the hearing before Archibald J., a further affidavit was tendered, which confirmed that the Affidavit of Verification was sworn before a commissioner as required under the statute, but that the jurat had not been completed because of an inadvertent slip on the part of the commissioner.

[7] Archibald J. found that "the jurat is a central element of any affidavit" and went on to state that s. 4 of the Ontario Evidence Act, R.S.O. 1990, c. E.23 is consistent with that conclusion as it provides:

Where an oath, affirmation or declaration is directed to be made before a person, he or she has power and authority to administer it and to certify to its having been made.

[8] He went on to conclude:

The plain meaning of that section would suggest that if a commissioner is going to swear an affidavit, this commissioner must certify to its having been made. The certification is a pivotal part of the swearing of the affidavit. Without the certification, the document cannot be considered to be an affidavit. It is merely a statement. Without the certification, it is impossible to conclude, when reviewing the face of an affidavit, whether or not it has been sworn.

[9] In our view, there is a distinction to be made between the Affidavit of Verification itself, as required under the Construction Lien Act, the jurat which provides evidential proof of the proper completion of the affidavit and subsequent proof that may be made of the proper completion of the affidavit.

[10] Various courts have long held, in connection with a variety of statutes, that proof of the requirements to complete a jurat may be made after the affidavit was completed. The further evidence is simply proof of the affidavit itself. See Hamilton v. Harrison (1881), 46 U.C.Q.B. 127 (Ont.) and Banque d'Hochelaga v. Hayden, 1922 431 (AB SCAD), [1922] 1 W.W.R. 1054, 17 Alta. L.R. 277 (C.A.). The exception to a court accepting subsequent proof is where acceptance would invalidate the rights obtained by a subsequent creditor. In such cases, the instrument in question was held to be invalid against the subsequent creditor. See Nisbet v. Cock (1879), 4 O.A.R. 200 and Mowat v. Clement (1886), 1886 137 (MB CA), 3 Man. R. 585 (C.A.).

[11] The reason for this distinction is that the security instrument was regarded as still valid as between the immediate parties, even though invalid as against a later execution creditor (see Davis v. Wickson (1882), 1 O.R. 369 (H.C.) or a trustee in bankruptcy (see Re Talarico (1969), 13 C.B.R. (N.S.) 330n (Ont. S.C.).

[12] In Re Lilley (1975), 19 C.B.R. (N.S.) 292 (Ont. S.C.), the affidavit of execution on a chattel mortgage referred only to the execution of the instrument by the bankrupt and did not attest to the execution of the mortgage by the wife of the bankrupt. The mortgage had been made by both the bankrupt and the wife. Henry J. held the mortgage valid as against the Trustee of the bankrupt.

[13] In our view, there is a distinction to be made between the affidavit itself, as required under the Construction Lien Act and the jurat, which provides the evidential proof of the proper completion of the affidavit.

[14] This distinction is recognized in the definitions of "affidavit" and "jurat" as found in Black's Law Dictionary, 7th ed. (editor B.A. Garner, St. Paul, Minn.: West Group Co., 1999), where "affidavit" is defined as "a voluntary declaration of facts written down and sworn to by the declarant before an officer authorised to administer oaths" and a "jurat" as "a certification added to an affidavit or deposition, stating when and before what authority the affidavit or deposition was made."

[15] In this case, both sides, as well as the decision of Archibald J., refer to reasons of the Court of Appeal for Ontario in Venditti v. Petriglia (1989), 33 C.L.R. 1, 33 O.A.C. 76. The matter before the court in that case dealt with an Affidavit of Verification which merely set out that the plaintiff was a lien claimant and struck out all the other paragraphs of the form so that there was no attestation to the truth of the statements in the claim for lien. The issue was whether the affidavit complied with the terms of the Act.

Subsection 34(6) of the Construction Lien Act, S.O. 1983, c. 6, as amended, provides:

(6) A claim for lien shall be verified by an affidavit of the person claiming the lien, including a trustee of the workers' trust fund where subsection 83(2) applies, or of an agent or assignee of the claimant who has informed himself of the facts set out in the claim, and the affidavit of the agent or assignee shall state that he believes those facts to be true.

Ontario Reg. 159.83, the regulation passed pursuant to the Construction Lien Act, states in subs. 2(9):

(9) An Affidavit of Verification of a claim for lien under section 34 of the Act may be in Form 9.

[16] Form 9 given for the Affidavit of Verification includes a form of jurat. Houlden J.A. for the court held that:

Subsection 34(6) is mandatory, and where the lien claimant is the person claiming the lien, there must be an affidavit by the claimant swearing that the facts stated in the claim for lien are true. . . . It must, however, contain the essential averment that the facts stated in the claim for lien are true, regardless of the way in which that averment is expressed.

[17] What was at issue in Venditti, supra, was the substance of the contents of the affidavit. The appellant submits that, unlike Venditti, in this case there is no lack of averment; rather what was missing here was the proof that the averment was made as provided for in the statute and this proof was made before the motions judge in circumstances where there were no intervening rights of third parties.

[18] The respondent urges that, in this case, the jurat is part of the statutory form and asserts the effect of the decision in Venditti is that if there is not absolute compliance with all of the parts of the form, including the jurat, there is no affidavit.

[19] In this respect, the respondent relies on the decision of Master Sischy, which followed the Venditti decision in Sefri Construction International Ltd. v. Jaltas, [1990] O.J. No. 312. In that case, there was a missing signature in the jurat and the Master concluded that, being bound by the decision of the Court of Appeal in Venditti, which held that s. 34(6) did not provide the court with power to cure any slip or error, absence of the jurat was fatal.

[20] It is accepted that s. 34(6) of the Construction Lien Act does not extend to curing defects, slips or errors in the Affidavit of Verification. In our view, this is to be distinguished from accepting proof that the affidavit was completed under the statute as required.

[21] Harvey J. Kirsch in his text The Construction Lien Act: Issues and Perspectives (Scarborough, Ont: Carswell, 1989), has collected in c. 8 the cases concerning the curative section of the Construction Lien Act. The author notes that the report of the Attorney General's advisory committee on the draft Construction Lien Act (April 1982) recommended a curative provision which was not unlike the present s. 6, and did not contain specific relief from failure to comply with the section dealing with the Affidavit of Verification.

[22] Mr. Kirsch refers in his text to conflicting decisions on the jurisdiction of the court to remedy defects in the Affidavit of Verification, which preceded the Court of Appeal decision in Venditti. In none of the cases which preceded Venditti was there an attempt to provide evidence of the compliance with the requirements of the affidavit: rather, the slip or error was simply cured.

[23] We are of the view that the decision of the Supreme Court of Canada in the case of R. v. Lachance, 1990 53 (SCC), [1990] 2 S.C.R. 1490, 43 O.A.C. 241, confirms the appropriateness of accepting proof of the contents of an affidavit by additional evidence, notwithstanding the absence of a signature from a jurat.

[24] In Lachance, what was at issue was the validity of the authorization for a wiretap under what is now s. 185(1) of the Criminal Code [R.S.C. 1985, c. C-46]. Following his conviction, Mr. Lachance sought to quash the wiretap authorization on the basis that, among other things, the affidavit in support of the authorization, had not been sworn.

[25] When this matter came before the Court of Appeal for Ontario, the court heard the viva voce evidence of the affiant and confirmed that statements in the affidavit were made at the time and did support the authorization.

[26] In dealing with [the] argument that the authorization was invalid, having been based on an incomplete jurat, Mr. Justice Sopinka, at p. 1497 S.C.R. stated:

The jurat in the affidavit had not been completed by the Commissioner for Oaths, although the date had been inserted. The Court of Appeal, pursuant to s. 610 of the Criminal Code, R.S.C. 1970, c. C-34, called as witnesses Sergeant Lamont and the agent for the Attorney General who obtained the authorization. They were examined in chief by the Crown and cross-examined by counsel for Daniel Lachance. On this viva voce evidence, the Court concluded that the affiant had sworn the affidavit and the jurat had been left incomplete by oversight. Thus the authorization was not invalid.

[27] Counsel for the respondent submitted that the Lachance case is not applicable to the case at bar, and that Archibald J. correctly used his discretion in distinguishing it.

[28] The respondent suggested that Lachance stands for "the proposition that a jurat is not required as a necessary component of an affidavit and that the strictness of the wording of s. 34(6) of the Construction Lien Act clearly distinguishes the situation." Counsel also sought to distinguish R. v. Lachance on the basis that the authorization for a wiretap under the Criminal Code is one made to a judge. Section 185(1)(b) of the Criminal Code provides:

(b) the Attorney General of a province personally or the Deputy Attorney General of a province personally, in any other case

and shall be accompanied by an affidavit, which may be sworn on the information and belief of a peace officer or a public officer . . .

[29] We are of the view that the Lachance decision clearly distinguishes between the body of an affidavit and the jurat, the latter being proof or evidence that the affidavit is true and sworn by the declarant. Counsel for the respondent urges that the phrase which appears at p. 1501 S.C.R. of the decision of the Supreme Court of Canada is sufficient to distinguish the factual circumstances of that case from what is before us. It is obvious from reading the phrase "the affidavits relied on in support of the authorization are sufficient on their face" dealt with the proposition advanced, commencing at p. 1499 S.C.R., alleging that the wiretap authorization was over-broad. The court had previously, in its decision at p. 1497 S.C.R., upheld the process undertaken in the Court of Appeal by which it was concluded that the affiant had sworn the affidavit.

[30] In our view, there is nothing inconsistent with the judgment of the Supreme Court of Canada in Lachance and the decision of the Court of Appeal for Ontario in the Venditti case. In Venditti, clearly what was at issue was the substance of the affidavit itself, its contents, not the proof of the swearing. In our view, the requirements of s. 34(6) are met when it is proved that the person claiming the lien verified the claim by an affidavit containing the language set out in Form 9 of the Act.

[31] For the above reasons, the appeal from the decision of Archibald J. is granted and the motion by the respondents to vacate the lien on their residential property located at 175 Rodale Drive in the City of Vaughan, dated April 28, 2000, is dismissed.

[32] If the parties cannot agree, written submissions may be made within 14 days on the issue of costs.

Order accordingly.