310 Waste Ltd. v. Casboro Industries Ltd. et al. [Indexed as: 310 Waste Ltd. v. Casboro Industries Ltd.]

79 O.R. (3d) 75

[2005] O.J. No. 4831

Court File No. 381/04

Ontario Superior Court of Justice,

Divisional Court,

Matlow, E. Macdonald and Swinton JJ.

November 14, 2005

Construction liens -- Validity -- Ministry of the Environment designating used tires as environmental waste and ordering owner to remove hundreds of thousands of used tires from its property -- Removal of tires constituting "improvement" as defined in Construction Lien Act -- Company which removed tires having right to lien premises -- Construction Lien Act, R.S.O. 1990, c. C.30, s. 1(1).

The Ministry of the Environment designated used tires as "waste" and ordered C Ltd. to clean up its dumpsite by removing hundreds of thousands of used tires. [page76] C Ltd. retained 310 to do that job. Claiming that it was paid only part of what it was owed, 310 liened the premises. A motion by C Ltd. to discharge the lien was dismissed. C Ltd. appealed.

Held, the appeal should be dismissed.

Per E. Macdonald J. (Swinton J. concurring): The motion judge correctly found that the work of removing the tires constituted both an alteration and a repair to the land and as such constituted an "improvement" as that term is defined in the Construction Lien Act.

Per Matlow J. (dissenting): The removal of the tires did not constitute an "improvement". As the tires were never attached to and never became part of the land on which they were piled, the removal did not involve any alteration, addition or repair to any land, or any construction, erection or installation on any land, as the Act requires.

APPEAL from an order of Weekes J. (2004), 2004 8989 (ON SC), 71 O.R. (3d) 732, [2004] O.J. No. 2748 (S.C.J.) dismissing a motion to discharge a construction lien.

Cases referred to G. Newman Aluminum Sales Ltd. v. Snowking Enterprises Inc., [1980] O.J. No. 2811, 13 R.P.R. 275, 2 A.C.W.S. (2d) 307 (H.C.J.) Statutes referred to Construction Lien Act, R.S.O. 1990, c. C.30, s. 1(1) "improvement" Environmental Protection Act, R.S.O. 1990, c. E.19

Robert J. Kennaley, for respondent. Evan L. Tingley, for appellant.

[1] Endorsement of MACDONALD J. (SWINTON J. concurring):-- The question to be determined in this appeal is whether lien rights arise where environmental waste (hundreds of thousands of used tires) was removed following an order to do so issued by the Ministry of the Environment ("MOE").

[2] Used tires have been designated as "waste" by MOE legislation. One reason for this is that mosquito larvae flourish in still water standing in the tire wells, giving rise to the possible proliferation of West Nile virus.

[3] In June 2004, MOE ordered that the appellant Casboro Industries Ltd. ("Casboro") clean up the dumpsite by removing the tires. MOE further advised Casboro that if it failed to adhere to the order, MOE would perform the cleanup and add the costs to Casboro's tax bill for the premises. Casboro then retained 310 Waste Ltd. ("310 Waste") to remove the tires on its behalf. 310 Waste performed the cleanup, but claims to have been paid only $20,000 for its services. 310 Waste then liened the premises, claiming over $1.6 million. [page77]

[4] This appeal is from the disposition of a motion to discharge the lien. The motion to discharge the lien was heard by Weekes J. sitting at Newmarket. The motion was brought before Weekes J. on the basis that the work performed by 310 Waste did not amount to an "improvement" as that term is defined in the Construction Lien Act, R.S.O. 1990, c. C.30 (the "Act"). Improvement is defined in s. 1(1) of the Act:

"improvement" means,

(a) any alteration, addition or repair to, or

(b) any construction, erection or installation on,

any land, and includes the demolition or removal of any building, structure or works or part thereof, and "improved" has a corresponding meaning.

[5] Key to the disposition of the matter by Weekes J. is his analysis wherein he distinguished G. Newman Aluminum Sales Ltd. v. Snowking Enterprises Inc., [1980] O.J. No. 2811, 13 R.P.R. 275 (H.C.J.) from the case before him. Weekes J. noted, at para. 10:

I am not persuaded that Snowking is dispositive of the issue before me. At para. 11, Borins J. held that the removal of the snow was not done to improve the land. The removal of snow is a very different thing from the removal of hundreds of thousands of tires which had been declared a contaminant within the meaning of the Environmental Protection Act. Snow would take care of itself in due course. Its presence is transitory. The tires in the present case cannot be considered transitory.

[6] We agree with the rationalization that the removal of snow is clearly distinguishable from the removal of hundreds of thousands of tires, which were declared a contaminant within the meaning of the Environmental Protection Act, R.S.O. 1990, c. E.19.

[7] Weekes J. concluded that the work performed in removing the tires constituted both an alteration and a repair to the land. As such it constituted an improvement and not maintenance. Maintenance does not give rise to a construction lien. Weekes J. found the removal of the contaminated tires to have clearly enhanced the value of the land. It was not argued otherwise before him.

[8] We agree with this analysis. Accordingly, we would dismiss this appeal. The parties may make written submissions on costs within 30 days from the date of release of these reasons.

[9] MATLOW J. (dissenting):-- With respect, I am unable to agree with the disposition of the majority. I would allow the appeal and set aside the order in appeal and order that the claim for lien be discharged. As well, as the majority have provided, I would invite submissions from counsel regarding any issue of costs. [page78]

[10] In my view, the removal of a very large quantity of tires from the land, in the circumstances described by the evidence, does not constitute an "improvement" as defined in the Act. Although there is no doubt that the removal of the tires enhanced the usefulness and the value of the lands, the removal did not involve "any alteration, addition or repair to" any land or "any construction, erection or installation on" any land (emphasis added) as the Act requires.

[11] The tires were never attached to or became part of the land on which they were piled. They remained separate from the land and retained their character as chattels. Nor does the evidence establish that anyone ever intended that they should become attached to or part of the land.

[12] As well, the removal of the tires was not done as part of a more comprehensive project to "improve" the land.

[13] Park Contractors Inc., the case relied on by the learned motion judge, should be distinguished and does not, in my view, support the order in appeal. In that case, contaminant was removed from the land and that would qualify as an "improvement" as being a "repair" to the land. In the case in appeal, no work, other than minor incidental levelling of the land, was done to the land. The work was done with respect to the tires which were quite distinct from the land on which they were piled.

Appeal dismissed.