ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 23-2011
DATE: 2014-09-22
IN THE MATTER OF the Construction Lien Act, R.S.O. 1990, c. C.30
BETWEEN:
LAVIS CONTRACTING CO. LIMITED
Plaintiff
– and –
COORES CONSTRUCTION INC. and MUNICIPALITY OF CENTRAL HURON
Defendants
David A. Reid, for the Plaintiff
Matthew R. Todd, for the Defendant Coores Construction Inc.
HEARD: September 4, 2014 at Goderich
HEENEY R.S.J.:
[1] In this motion, the defendant Coores Construction Inc. (“Coores”) seeks a declaration that the lien claim of the plaintiff is invalid because the plaintiff failed to preserve its lien in accordance with the provisions of the Construction Lien Act, R.S.O. 1990, c. C-30 (“the Act”). It also seeks an order for the return of the bond which was posted as security to vacate the lien.
[2] The relevant facts are simple and uncontested. Coores was hired by the Municipality of Central Huron to complete road, water and sewer main reconstruction. The plaintiff was a sub-contractor of Coores, and supplied top coat paving and related services. It completed its work on November 12, 2010.
[3] Coores experienced difficulties obtaining payment from the Municipality due to delay issues, and as a result the plaintiff was not paid in full for its work. The plaintiff therefore took steps to prepare a Claim for Lien under the Act.
[4] Since the work in question was performed on a public highway, a lien is not preserved by registration against the land but instead by personal service of the Claim for Lien. Section 34(2) of the Act provides as follows:
(2) Where a claim for lien is in respect of a public street or highway owned by a municipality, the copy of the claim for lien shall be given to the clerk of the municipality.
[5] On December 24, 2010, Gord Lavis, the principal of the plaintiff company, attended at the municipal office of the Municipality of Central Huron and asked to speak with the Clerk. He was told that she was not present, and so he asked to speak with Kevin McLlwain, who was the Chief Administrative Officer as well as the Deputy Clerk. Mr. Lavis delivered the Claim for Lien to Mr. McLlwain. There is no question that this delivery took place within the period prescribed under the Act for preservation of a lien.
[6] Mr. McLlwain wrote a letter that was filed in evidence, confirming that he received the Claim for Lien. He also stated that he delivered the document to the Clerk, Brenda MacIsaac, the same day he received it.
[7] Coores submits that service of the Claim for Lien was not made in accordance with s. 34(2) of the Act, because it was not delivered to the Clerk. Accordingly, it submits that the lien was not preserved within the time prescribed by the Act, and asks that an order issue under s. 45(2) declaring that the lien has expired.
[8] The simple answer to this submission is that the Claim for Lien was, in fact, delivered to the Clerk within the prescribed time. Mr. Lavis gave it to the Deputy Clerk, and he, in turn, delivered it to the Clerk the same day. Section 34(2) of the Act has been complied with. There is nothing in that section requiring that delivery to the Clerk be made by the lien claimant himself.
[9] In Arvanitelis v. Gorchynski, [1997] O.J. No. 211 (C.A.), the Court of Appeal considered a case involving a slip and fall accident, where s. 284(5) of the Municipal Act required notice to be given to the Clerk or head of the municipality by registered mail or service, within seven days. Counsel for the plaintiff faxed notice of the accident to the Clerk’s Department of the Borough of East York as well as to the Clerk of the Municipality of Metropolitan Toronto. Since the accident happened in the City of Toronto, notice should have been sent to the Clerk of the City of Toronto.
[10] The Court carefully tracked the path that the fax took en route to the office of the Clerk of the City of Toronto. The accident happened on Friday, February 11, 1994. The faxes were sent to and received by the wrong entities on Thursday, February 17, 1994. Metro’s fax was forwarded on to the City of Toronto’s mailroom by the next day, but the date stamp applied by the office of the Clerk of the City of Toronto indicated that it was not received by that office until Monday, February 21, 1994, ten days after the accident. The Court held that the seven-day limitation period had not been complied with.
[11] One may infer from the Court’s analysis that had the Clerk of the City of Toronto actually received the forwarded fax within the seven-day limitation period, service would have been proper, even though it had been indirect.
[12] I am satisfied that s. 34(2) of the Act has been complied with because a copy of the Claim for Lien was, in fact, delivered to the Clerk within the prescribed period. The fact that it was delivered by the Deputy Clerk and not by the lien claimant is, in my view, irrelevant. The purpose of service is to provide actual notice of the Claim for Lien to the Clerk, and that was clearly accomplished.
[13] There is, however, an alternative basis upon which the motion should be dismissed. Section 228(2) of the Municipal Act, 2001, S.O. 2001, c. 25, provides as follows:
(2) A municipality may appoint deputy clerks who have all the powers and duties of the clerk under this and any other Act.
[14] It is undisputed that Mr. McLlwain was duly appointed by the Municipality of Central Huron as Deputy Clerk, and that he held that status at the time the Claim for Lien was delivered to him.
[15] Mr. Reid, for the plaintiff, submits that s. 228(2) serves to delegate all of the powers and duties of the Clerk of a municipality to the Deputy Clerk, under the Municipal Act and “any other Act”. This includes delegation of the power and duty to receive notices of Claims for Lien under s. 34(2) of the Act. I agree with this submission.
[16] In Wicken (Litigation Guardian of) v. Harssar, 2004 18856 (ON SCDC), [2004] O.J. No. 1935 (Div. Ct.), the Court reviewed certain basic principles of statutory interpretation. At paras. 27 and 28, the Court said this:
If a statute is susceptible of two interpretations, the interpretation that avoids absurdity is to be preferred (Datacalc Research Corp. v. Canada, [2002] T.C.J. NO. 99, 2002 D.T.C. 1479 (Tax Ct.), at para. 54).
According to F. Bennion, Statutory Interpretation, 4th ed., (London: Butterworths, 2002), the concept of “absurdity” actually encompasses several components. The presumption against an “absurd” interpretation means the avoidance of (1) an unworkable or impractical result, (2) an inconvenient result, (3) an anomalous or illogical result, (4) a futile or pointless result, (5) an artificial result, or (6) disproportionate counter-mischief.
[17] At para. 32, the Divisional Court also quoted with approval from R. Sullivan, Driedger on the Construction of Statutes, (3rd ed., 1994), where the author described the principles of coherence and consistency at pg. 288 of his text:
The meaning of words in legislation depends not only on their immediate context but also on a larger context which includes the Act as a whole and the statute book as a whole. The presumptions of coherence and consistency apply not only to Acts dealing with the same subject but also, albeit with lesser force, to the entire body of statue law produced by a legislature.
Therefore, other things being equal, interpretations that minimize the possibility of conflict or incoherence among different enactments are preferred.
[18] The question here is whether s. 34(2) of the Act should be interpreted literally such that only the Clerk, and no-one else, is to be served with a Claim for Lien under the Act; or, whether s. 34(2) should be interpreted in light of s. 228(2) of the Municipal Act, such that service may also be effected on the Deputy Clerk, to whom is delegated all of the powers and duties of the Clerk.
[19] A literal interpretation leads, in my view, to an absurdity. Both counsel agree that time is usually of the essence in construction lien matters. Liens are often registered, or in the case of municipalities served, at the eleventh hour. If service could be effected only on the Clerk and no-one else, it would be impossible to preserve a lien if the Clerk happened to be on vacation, or on sick leave, or otherwise unavailable. Such a result is unworkable and impractical, since a Clerk could well be away from the office for several weeks at a time.
[20] Interpreting s. 34(2) to permit service on the Deputy Clerk avoids this absurdity, and renders both statutes coherent and consistent.
[21] For all of these reasons, I am satisfied that service was properly effected under s. 34(2) of the Act. Accordingly, the motion is dismissed.
[22] With respect to costs, Mr. Reid is seeking partial indemnity costs of $5,000. Mr. Todd indicated that his partial indemnity costs would have been $3,300 had he been successful. I am satisfied, however, that the materials filed and time spent by the responding party exceeded that of the moving party.
[23] Costs are awarded to the plaintiff, payable by the defendant Coores, fixed at $4,500 all inclusive.
“T. A. Heeney R.S.J.”
T. A. Heeney R.S.J.
Released: September 22, 2014
COURT FILE NO.: 23-2011
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF the Construction Lien Act, R.S.O. 1990, c. C.30
BETWEEN:
LAVIS CONTRACTING CO. LIMITED
Plaintiff
– and –
COORES CONSTRUCTION INC. and THE CORPORATION OF THE MUNICIPALITY OF CENTRAL HURON
Defendants
REASONS FOR JUDGMENT ON A MOTION
T. A. Heeney R.S.J.
Released: September 22, 2014