SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: CV-13-3590-00
DATE: 2014 12 24
Parties
RE: CITY STAR ROOFING INC.
Plaintiff
And
MIREILLE ABEWE and JACQUELINE KAWEESA
Defendants
BEFORE: LEMON J.
COUNSEL:
Mr. A. Sidhu, for the Plaintiffs
Mr. J. Oladejo, for the Defendant Kaweesa
No one appearing for the Defendant Abewe
HEARD: December 23, 2014
ENDORSEMENT
THE ISSUE
[1] The defendant, Jacqueline Kaweesa, moves to pay into court the sum of $65,248.46 to discharge a construction lien placed upon her premises by the plaintiff, City Star Roofing Inc.
THE FACTS
[2] On October 10, 2014, the plaintiff registered a lien against the premises in dispute. That lien was for the total amount of $65,248.46. A Statement of Claim and Statement of Defence were filed thereafter.
[3] In her supporting affidavit, Ms. Kaweesa denies that she had a contract with the plaintiff. She denies any part of the claim.
[4] The plaintiff has been examined but the transcript was not provided to me. Although counsel for Ms. Kaweesa referred me to a number of items that would suggest that there will be difficulty with the plaintiff’s evidence, ultimately the plaintiff’s representative has sworn that the work was carried out. He may still be believed at trial. I cannot make that determination on these materials.
[5] Counsel for Ms. Kaweesa submits that the plaintiff’s case is so deficient that I should exercise my discretion under s. 44(2) of the Ontario Construction Lien Act to reduce the amount of the funds to be paid into court.
[6] In response, the plaintiff submits that those issues should be left for trial. He refers to an earlier motion brought by Ms. Kaweesa to discharge the lien. That motion was dismissed and costs were ordered to be paid in the amount of $6,233.41 forthwith. That order has not yet been paid. Accordingly, the plaintiff submits that there should be a concern about the defendants’ ability to pay costs and the usual rules with respect to a payment into court should be followed; the defendant should be required to pay $81,506.57 into court.
Analysis
[7] I agree with the plaintiff.
[8] On the materials before me, I can make no determination as to the strength of either case. In order to obtain a reduction in the payment, the evidence must clearly and unequivocally prove that the lien as registered is excessive or improper. See Kamali Design Home Inc. v. Bondarenko, 2013 ONSC 5506. That degree of proof is not present in this motion.
[9] Accordingly, the motion is dismissed. If Ms. Kaweesa wishes, she may, of course, apply pursuant to s. 44(1) of the Ontario Construction Lien Act to discharge the lien in the normal course.
Costs
[10] If the parties cannot otherwise agree upon costs, written submissions may be made. The plaintiff shall make its submission within the next 15 days and the defendant shall respond within 15 days thereafter. Both submissions shall be no more than three pages in length, not including any offers to settle or Bills of Costs.
Lemon J
DATE: December 24, 2014
COURT FILE NO.: CV-13-3590-00
DATE: 2014 12 24
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CITY STAR ROOFING INC.
And
MIREILLE ABEWE and JACQUELINE KAWEESA
BEFORE: LEMON J.
COUNSEL: Mr. A. Sidhu, for the Plaintiffs
Mr. J. Oladejo, for the Defendant Kaweesa
No one appearing for the Defendant Abewe
ENDORSEMENT
LEMON J
DATE: December 24, 2014