SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-13-114574

DATE: 20130605

RE: Ashland Paving Ltd., Plaintiff

AND:

Alto Construction Inc.

1751188 Ontario Inc.,

Business Development Bank of Canada, Defendants

BEFORE: The Honourable Madam Justice A. Mullins

COUNSEL: Adam Grossi, Counsel for the Plaintiff

Doug LaFramboise, Counsel for the Defendants

HEARD: May 31, 2013

ENDORSEMENT

[1] The defendant, Allto Construction Ltd., seeks an order determining that the lien was registered outside of the events prescribed by Section 2 of the Construction Lien Act, i.e. substantial completion or work to be done is less than $1,000.00. In the time elapsed since the motion was brought the lien has been bonded off. In essence, therefore, this is a motion for summary judgment.

[2] In response to the evidence tendered by the moving party, which establishes that the one invoice for the work performed was delivered on December 31, 2012, more than 45 days before the lien was registered, the defendant has tendered time cards purporting to show attendances at the work site by the plaintiff’s forces on February 15 (two men, six hours), April 4 (two men, four hours), April 22 (two men, twelve hours) and March 18, 2013 (three men, eleven hours). This work was done within 45 days of the lien registration.

[3] There is scant evidence upon which to make a determination as to whether the work done truly falls within the lien period. There is no evidence as to when or whether the contract as defined in the act was substantially complete. The plaintiff’s affidavit refers only to the “contract” and does not specify whether these parties are subcontracted or not.

[4] The plaintiff’s sought to late-file a further affidavit; the defendant opposes.

[5] The lien here has been bonded off. Wherefore, aside from the bond costs, there is on a go-forward basis no prejudice to the lien issue remaining live. The timelines of the lien can be litigated as part of the other issues. The procedure in an action under the C.L.A. is to be, as far as possible, of a “summary character”. The amount in dispute is approximately $47,000.00

[6] I am not satisfied that the moving party has met the criteria set out in Section 67(2) of the C.L.A. As well, there are facts in dispute as to when the date of last work was performed. Under Rule 20 there remains a genuine issue requiring a trial as to the timelines of the lien.

[7] Motion is dismissed. Costs may be addressed in writing within 15 days.

Justice A. Mullins

Date: June 5, 2013