ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 08-CV-351729
DATE: 20120110

In The Matter of the Construction Lien Act, R.S.O. 1990, c. C.30

BETWEE N:

PARMA GENERAL CONTRACTORS INC.

R. Lachmansingh, for the Plaintiff

Plaintiff

• and -

ROMINA PULCINI, M.J.R. CANADA ENTERPRISES INC. and THE TORONTO DOMINION BANK

J. Thomas, for the Defendant M.J.R. Enterprises Inc.

Defendants

HEARD: January 10, 2012

Master Polika

[ 1 ] The moving defendant by notices of motion seeks an order in this action and in two other related actions (court files 08-CV-351730 and 08-CV-351735), all of which actions are before me in a reference pursuant to the provisions of the Construction Lien Act , declaring that the plaintiff’s claims for lien were not preserved within time and that the amounts paid into court as security in lieu of the lands and premises be paid out and that the actions be dismissed or in the alternative that the posted security be reduced, together with costs on a substantial indemnity basis.

[ 2 ] The first ground of relief is based on the assertion that the claims for lien were not preserved within 45 days of the completion of the contract and the last day of work. The alternative relief sought for reduction of the posted security is based on the assertion that the amount claimed for site supervision cannot be the subject of a claim for lien. The plaintiff opposes the motion on the basis that the claims for lien were preserved within time and that the amount sought for site supervision is properly the subject of a claim for lien.

[ 3 ] On February 11, 2010 I heard similar motions brought by the moving defendant seeking to reduce the security posted. The plaintiff admitted that the claims for lien were exaggerated because of an improper allocation of amounts between the various lands and premises worked on. In the result at that time I reduced the amount of security for each of the three claims for lien and specifically held that “The determination to-day is not to be construed as a determination of what is owed on the contract.”

[ 4 ] The motions before me to-day are similar in object as those of February 11, 2010 and based on the same available evidence save that since February 11, 2010 on August 17, 2010 the parties conducted examinations for discovery pursuant to leave granted by me.

[ 5 ] On January 10, 2012 I heard argument of the motions. The affidavits before me consisted of the affidavits in support of the motion and the plaintiff’s responding affidavits. The moving defendant chose not to deliver any reply affidavits to the responding affidavits of the plaintiff. I considered the affidavit material relied upon by the parties as well as the argument advanced by counsel for the parties and reserved my decision endorsing one of the motion records as follows: “Motions (3) heard, decision reserved.”

Test On The Motions

[ 6 ] Both parties before me agreed that the motions were “akin” to a motion for summary judgment, such that the moving party must prove that there is no genuine issue for trial and that the onus is on both parties to “lead trump”.

Timeliness

[ 7 ] The parties are agreed that plaintiff’s claims for lien were registered on February 22, 2008 such that the last day of work and completion of the contract had to take place on or after January 8, 2008.

[ 8 ] The moving defendants’ argument on timeliness consisted of the following core submissions:

(a) The contract between the parties was completed and invoiced by December 31, 2007;

(b) The plaintiff’s invoice of February 4, 2008 represented a new and separate contract between the parties and as such could not extend the time for preservation of the claims for lien;

(c) That the work performed after January 8, 2008 in respect of the alleged new and separate contract amounted to rectification of prior work and was trivial in nature having regard to the amount billed for the work for each of the three improvements such that this work could not act to bootstrap the time within which the claims for lien had to be preserved; and

(d) That the claim respecting obtaining a quotation for driveway work to be carried out later that spring could not be the subject of a claim for lien as it did not meet the definition of “supply of services” in section 1(1) of the Construction Lien Act , R.S.O. 1990, c. C.30 as amended.

[ 9 ] The agreement between the parties was verbal such that the only documentary evidence bearing on the issue of timeliness before me were the invoices rendered by the moving defendant and underlying invoices from the plaintiff’s sub-contractor set out in the affidavit material. The plaintiff’s dealings were directly with the moving defendant, who also dealt directly with other trades people in relation to the improvements.

[ 10 ] I considered all the evidence adduced on the motions in the various affidavits and find that the following facts disclosed thereby to be particularly relevant to the timeliness issue:

(a) The agreement between the parties was verbal;

(b) Both parties agree that the initial agreement was for rough carpentry work;

(c) In addition to the plaintiff the moving defendant had other trades performing work and delivering services to the improvements;

(d) On November 30, 2007 the plaintiff billed as part of the original agreement for “extra expenses” dealing with tiles, specifically for truck rental to deliver tiles, pallet pump truck to deliver tiles and Home Depot products. The total billing for the three improvements was $964.24. On the basis of the evidence before me I conclude this was an “extra” to the initial agreement which did not involve rough carpentry;

(e) Also on November 30, 2007 the plaintiff billed as part of the original agreement for “Extra Work” at the three improvements relating to skylights, Tyvec, poly, glue and bay windows in the amount of $5,565.00. On the basis of the evidence before me I conclude that this was an “extra” to the initial agreement which did not involve rough carpentry;

(f) On December 31, 2007 the plaintiff billed for work completed at the three improvements in the amount of $135,302.11. The billing included various “extras” which did not involve rough carpentry;

(g) On February 4, 2008 the plaintiff billed for carpentry work to complete the interior trim of the three improvements in the amount of $2,510.00. This was work originally carried on by another supplier of the moving defendant which was deficient and which was not completed. This invoice consisted of work done by the plaintiff’s own forces and by a sub-contractor of the plaintiff, Gerry Kuckartz. The evidence indicates that the request for this work came from the moving defendant in January 2008 after the December 31, 2007 billing.

[ 11 ] This documentary evidence when coupled with the affidavit evidence raises an issue of whether the work reflected in the February 4, 2008 billing related to an extra to the parties original agreement or amounted to a separate contract. If it was an extra to the original agreement then it would serve to extend the completion date of the original agreement making the claim for lien timely.

[ 12 ] On its face the February 4, 2008 billing appears similar to the billing for the other extras to the original agreement billed up to and including December 31, 2007.

[ 13 ] This work was not of the usual type sometimes advanced to bootstrap a claim for lien, that is coming back to the job site to do minor remedial work contemplated by the original agreement. The work was additional work requested of the plaintiff in January 2008 and was carried out. The amount involved in the context of additional work allegedly requested of the plaintiff amounted to $2,510.00.

[ 14 ] Taking all of the evidence before me on these motions, I find that the issue of timeliness on the aforesaid basis amounts to a genuine issue requiring a trial. I further find that the moving defendant has not discharged its burden to demonstrate that no genuine issue for trial exists on this issue and that it chose not to rebut the documentary and affidavit evidence in that respect by reply evidence.

[ 15 ] In respect of the plaintiff’s position respecting the driveway work I find it completely devoid of merit. At best a request was made for a quote which never resulted in an agreement nor was there any invoice delivered for this service.

Site Supervision

[ 16 ] The moving defendant seeks a reduction in the security posted

[ 17 ] In order to succeed on this argument the onus is on the plaintiff to demonstrate that the “site supervision” claimed by the plaintiff did not fall within “supply of services” as defined in subsection 1 (1) of the Construction Lien Act , namely that it did not amount to “any work done or service performed upon or in respect of” the improvements.

[ 18 ] The material relied upon by the moving defendant was the same which was available at the time of the February 11, 2010 motion brought before me to reduce the security posted. The same relief is claimed for a second time on material which was available at the time of the February 11, 2010 motions.

[ 19 ] To allow the motion to be heard is to countenance multiplicity of proceedings seeking the same relief on grounds and materials originally available and which could have been advanced in the February 11, 2010 motions seeking to reduce security. Seeking a reduction of security for a second time on this basis is inconsistent with the policy of the Act to keep the proceedings as far as possible of a summary character.

[ 20 ] In addition the unchallenged evidence tendered by the plaintiff before me demonstrates that there is a genuine issue for trial relating to whether the site supervision claimed can be the subject of a claim for lien. The moving defendant has failed to discharge its burden to demonstrate that no genuine issue for trial exists as to site supervision.

Decision

[ 21 ] For the aforesaid reasons the moving defendant’s motions fail. If the parties cannot agree on costs plaintiff to serve and submit to me a costs outline as set out in Sub-Rule 57.01 (6) together with short written submissions by February 15, 2012 and the moving defendant to serve and submit to me short responding written submissions by February 29, 2012.

Master Polika

Released: January 20, 2012