COURT FILE NO.: CV-15-495 DATE: 20160719 ONTARIO SUPERIOR COURT OF JUSTICE

IN THE MATTER OF THE CONSTRUCTION LIEN ACT , R.S.O. 1990, c.C.30 , AS AMENDED

BETWEEN:

TORONTO ZENITH CONTRACTING LIMITED Plaintiff – and – FERMAR PAVING LIMITED, THE CORPORATION OF THE CITY OF BARRIE and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS REPRESENTED BY THE MINISTER OF TRANSPORTATION Defendants

Counsel: Michael A. Handler, for the Plaintiff Charles C. Chang, for the Defendant Fermar Paving Limited

HEARD: April 29, 2016

REASONS FOR DECISION DiTOMASO J.

THE MOTION

[1] The defendant Fermar Paving Limited (“Fermar”) brings this motion for, among other things, a declaration pursuant to s. 45 of the Construction Lien Act , R.S.O. 1990, c.C.30 , as amended, (the “ Construction Lien Act ”) that the lien of the plaintiff Toronto Zenith Contracting Limited (“Toronto Zenith”) has expired.

[2] This action has been discontinued against the defendants the Corporation of the City of Barrie and Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation.

OVERVIEW

[3] The issues in the action relate to a construction project (the “Project”) involving improvements to certain sections of Highway 400, Cundles Road East and Duckworth Street in Barrie, Ontario. Fermar was the general contractor for the Project and Toronto Zenith was Fermar’s structural subcontractor.

[4] Toronto Zenith entered into the subcontract agreement with Fermar dated September 18, 2013. However, this subcontract agreement was not signed by the parties on that date. Nevertheless, the subcontract agreement provided for the supply of labour, materials and equipment for interchange improvements on the highways, ramps and bridges for the Project.

[5] While the work on the subcontract agreement began in 2013, the signed subcontract agreement was returned to Toronto Zenith on December 8, 2014. The subcontract agreement breaks down the subcontract price in the amount of $9,952,665 (exclusive of taxes) into unit prices.

[6] Toronto Zenith and Fermar were involved in a dispute regarding Toronto Zenith’s work, delays and payment. Toronto Zenith ultimately terminated its subcontract with Fermar by Notice of Termination dated February 6, 2015.

[7] Following that termination, Toronto Zenith served a claim for lien dated March 18, 2015, which Fermar received on March 20, 2015. In its claim for lien, Toronto Zenith alleges that it last supplied services and/or materials to the Project on February 6, 2015.

[8] Notwithstanding the February 6, 2015 date, the parties agree that the latest date that Toronto Zenith’s forces were physically on site at the Project was December 19, 2014 prior to a scheduled Winter shutdown.

[9] Fermar alleges that the claim for lien is dated 90 days after the latest date of last supply.

[10] After being served with Toronto Zenith’s claim for lien, but prior to commencement of this action, Fermar obtained the order of Master Albert dated May 26, 2015, which “bonded off” Toronto Zenith’s claim for lien upon posting a lien bond security into court. Fermar’s annual cost for the applicable lien bond is $43,428.

[11] This action was subsequently discontinued against the Corporation of the City of Barrie and Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation.

POSITIONS OF THE PARTIES

Position of the Moving Party, Fermar

[12] Fermar submits that Toronto Zenith preserved its lien well beyond the 45 day limitation period prescribed by the Construction Lien Act , and as such, Toronto Zenith’s lien expired before such preservation. Based on the applicable undisputed facts, Fermar submits that Toronto Zenith’s lien expired as it was not preserved within the strict 45 day limitation period mandated by the Construction Lien Act . Fermar seeks a declaration that Toronto Zenith’s lien has expired pursuant to subsection 45(2) of the Construction Lien Act . Further, Fermar seeks an order that the lien bond security posted by Fermar be delivered up to Fermar for cancellation pursuant to subsection 45(3) of the Construction Lien Act . Fermar also seeks payment from Toronto Zenith for the cost of the lien bond security.

Position of the Toronto Zenith

[13] Toronto Zenith submits that its claim for lien is timely in that it was served within 45 days of the date of the alleged termination of the subcontract agreement and while it continued to perform its ongoing subcontract responsibilities in relation to the improvement at the Project. Toronto Zenith submits that between December 19, 2014 and February 6, 2015, Toronto Zenith was performing ongoing, preparatory work off-site in anticipation of the scheduled Spring start up for the Project in April 2015, as weather permitted.

[14] Toronto Zenith submits that the scheduled Winter shutdown does not require a claim for lien to be registered within 45 days of the beginning of that Winter shutdown. In any event, the off-site work performed by Toronto Zenith during the Winter shutdown period added value to the improvement and also extended the time within which the claim for lien could be registered.

[15] Toronto Zenith submits that both Fermar and Toronto Zenith anticipated at the time of 2014/2015 Winter shutdown that Toronto Zenith would return to the Project in the Spring 2015 to continue its subcontract work. The intervening contentious issues lead to the alleged termination of the subcontract agreement in early February 2015.

[16] Toronto Zenith submits that its claim for lien is timely in that it was served within 45 days of the alleged termination of the subcontract agreement and while it continued to perform its ongoing subcontract responsibilities in relation to the improvement at the Project.

[17] Toronto Zenith, therefore, submits that its claim for lien was timely and that Fermar’s motion be dismissed.

ISSUES

[18] Fermar submits that the sole issue in this motion is whether or not Toronto Zenith’s lien has expired pursuant to the Construction Lien Act . Fermar further submits that Toronto Zenith’s lien has expired as same was not preserved within the strict 45 day limitation period mandated by the Construction Lien Act .

ANALYSIS

[19] With respect to this motion, in addition to the materials delivered by Fermar and Toronto Zenith, the following examinations were conducted:

a) Cross-examination of Toronto Zenith’s Senior Vice-President (Tim Follwell) on Toronto Zenith’s claim for lien pursuant to s. 40 of the Construction Lien Act ; b) Cross-examination of Fermar’s Senior Project Manager (Charles Ezomo) on his affidavit sworn October 8, 2015 and his supplementary affidavit sworn November 30, 2015; c) Cross-examination of Toronto Zenith’s Vice-President of Construction (Brian Morris) on his affidavit sworn November 6, 2015; and d) Examination of Michael Pannozzo (General Manager of Shor-Cais Consulting Ltd.) pursuant to Rule 39.03.

[20] Counsel have referred me to the relevant portions of this evidence both in their factums and in their oral submissions.

Legal Principles

[21] A person who supplies services or materials to an improvement for an owner, contractor or subcontractor has a lien upon the i n terest of the ow n er in the premises improved for the price of those services or materials. W h e re the premises is Crown land or a public street or h i ghway owned by a municipality, the lien does not attach to the premises, but co n s tit u tes a charge under the Construction Lien Act t h a t is effective without the registration of a claim for lien ag a in s t the premises. [1]

[22] A sub c ontractor's lien arises and takes effect when the subcontractor first supplies services or mat e ria l s to the improvement and expires:

a) for services or materials supplied to an improvement on or before the cer t ified or d e cla r ed date of substantial performance of the contract, 45 da y s following the earliest of: (i) the d ate on which a copy of the certificate or declaration of the substantial performance of the contract is published, as provided in section 32, and (ii) the da t e on which the person last s upplies services or materials to the improvement, and (iii) the date a subcontract is certified to be completed under section 33, where the services or materials were supplied under or in respect of that subcontract; and b) for services or materials supplied to the improvement where there is no certification or declaration of the substantial performance of the contract, or for services or materials supplied to the improvement after the certified or declared date of substantial performance of the contract, 45 days following the earlier of: (i) the date on w h ich t he person last supplied services or materials to the improvement, and (ii) the date a subcontract is certified to be completed under section 33, where the services or materials were supplied under or in respect of that subcontract. [2]

[23] The Construction Lien Act is to be strictly interpreted in respect of, among other things, whether or not a person h a s a valid and subsisting lien. [3]

[24] In addition, with respect to the deadline to p r e serve a lien, the language of the Construct i on L i en Act and con s i s t ent appellate authority are clear: the requirement is "statutor y ... mandatory ... [and] the court has no discretion to re l i eve from them " . [4]

[25] The onus is on the lien claimant to prove the proper preservation of its lien - both as t o lienable supply and to timeliness. [5]

[26] In order to constitute a lienable supply of services or material s , a person's work must be directly related to the construction of the subject improvement. [6]

[27] The following, among others, do not constitute liena b le supply of serv i ces or materials and to not extend t he 45-day limitation p e riod in which a lien must be preserved:

a) repair work; b) deficiency work; c) off-site an d /or project management work; d) work th a t is not dir e ctly incorporated into the improvement; and e) work that is not invoiced for. [7]

[28] Where the court is satisfied that a lien has not been preserved within the prescribed time, it shall, on motion of any person, declare that the lien has expired. In addition, the court also has a general power to declare a lien expired on “any proper ground and subject to any terms and conditions” that it considers appropriate in the circumstances. [8]

[29] Wh en dealing with a motion to discharge an expired l i e n, the necessity of using the summary judgment regime under Rule 20 of the Rules of Civil Procedure is "questionable " . However, that regime is used on such motions. [9]

Timeliness

[30] Fermar submits that Toronto Zenith’s lien expired before Toronto Zenith purported to preserve it. Fermar submits that:

a) The latest that Toronto Zenith and/or any of its subtrades/supplies worked on site was December 19, 2014; b) Neither Toronto Zenith nor any of its subtrades/supplies worked on site after December 19, 2014; and c) Toronto Zenith only billed Fermar for work up to the December 2014 progress certificate.

[31] It is agreed that the latest date that Toronto Zenith or its subcontractors actually performed work on site was December 19, 2014. Toronto Zenith does not agree that December 19, 2014 was the last date on which it supplied services and/or materials to the Project. This is a very important distinction when considering the issue of timeliness and also the issue of lienable work.

The 2014 – 2105 Winter Shutdown

[32] I find the Project was weather dependant. This was the second of three scheduled Winter shutdowns. The Project’s schedule contemplated three Winter shutdowns during the Project because of the duration, nature and complexity of the work which was required to be performed. As stated, the labour material and equipment was supplied for interchange improvements on Highway 400, its roadways, ramps and bridges. Toronto Zenith had already invoiced Fermar between $3,000,000 - $4,000,000 on the subcontract between the parties in the amount of almost $10,000,000. Both the evidence of Mr. Morris and Mr. Ezomo on their cross-examinations confirmed that both parties anticipated a Winter shutdown in accordance with the Project Shutdown and confirmed by Minutes from a December 5, 2014 coordination meeting involving representatives of Toronto Zenith and Fermar. Construction on the Project was not performed during Winter months and the last day on which Toronto Zenith’s forces were at the Project before the scheduled Winter shutdown was December 19, 2014.

[33] However, the fact that the Project was shutdown in late December, 2014 does not mean that Toronto Zenith’s work, pursuant to its subcontract obligations, stopped at that time. I find the Project shutdown for the winter did not end Toronto Zenith’s ongoing subcontract obligations. Further, I accept Mr. Morris’ evidence that ongoing work was performed by Toronto Zenith in January and February of 2015 so that Toronto Zenith would be in a position to continue its onsite subcontract work without delay, when weather permitted.

[34] Toronto Zenith asserts that Fermar’s submission regarding the timeliness of Toronto Zenith’s lien makes no practical or commercial sense. It would require parties to register claims for liens within 45 days of the date of their last supply of material or labour whenever a construction project was shutdown for a significant period of time (whether it by weather, stop work order, scheduling issues or coordination requirements) even though the contractor, subcontractor or material supplier knew that there was ongoing progressive work or substantial quantities of material to be supplied or delivered as required at a later date. I agree with Toronto Zenith’s assertion.

[35] On this issue, Master Polika in Applewood Glass & Mirror Inc. v. Baun Construction Inc. :

.. . For example if a subcontract called for material and/or services to be provided over a the span of a year and material and services co u l d not be supplied for a sixty day period during the year because intervening work had to be performed by the contractor the subcontractor in my opinion would still have a claim for lien for material and services supplied b e fore and after the sixty day period providing the claim for lien was registered within the forty-five day next following the "last supplied services or materials" pursuant to the subcontract. Each lapse of time during the currency of a subcontract in my opinion does not cause the forty-five day period to run rather it is the last legitimate supply of services or materials under the contract that does. [10]

[36] I agree with Master Polika’s reasoning and concur that what triggers the 45 day period to run is the last legitimate supply of services or materials under the contract . (emphasis mine)

[37] In the case at bar, the “last legitimate supply of services or materials under the contract” was many months or even years away.

[38] Counsel for Fermar relied upon this court’s decision in Blockwall Masonry Ltd. v. Arcaio Design (2007), 66 C.L.R. (3d) 155 ; aff’d (2008), 2008 CarswellOnt 1434 (Ont. Div. Ct.) . I find the Blockwall case is distinguishable from the present case. Again, this is not a case of “last supply”. I find Toronto Zenith as a subcontractor, was not taking a hiatus or holiday from work. Rather, Toronto Zenith was carrying on work within the terms of the agreement between Toronto Zenith and Fermar. Toronto Zenith’s conduct was distinguishable from the conduct of Blockwall who was found to bootstrap lien rights which had already expired and was attempting to keep expired lien rights alive. Blockwall had billed its work as 100 percent complete including an invoice for its own holdback. There was no such invoicing by Toronto Zenith in the present case. This is not a case where Toronto Zenith remained silent and did nothing in respect of further offsite work which occurred in January and February 2015. Rather, the parties were engaged in that work as disclosed by the evidence. Again, I do not find Toronto Zenith’s conduct in any way consistent with an attempt to file a lien claim for the purpose of extending time for an otherwise expired lien.

[39] In late January/early February 2015, a dispute arose between Toronto Zenith and Fermar because of alleged non-payment of amounts due to Toronto Zenith by Fermar and other matters. According to Toronto Zenith, the subcontract agreement was declared to be terminated by Fermar on February 11, 2015. Service (rather than registration) of the Claim for Lien upon the defendants was made within 45 days of February 11, 2015. I agree this is earliest date upon which it could be argued that Toronto Zenith was no longer a subcontractor of Fermar.

[40] For these reasons, I find that Toronto Zenith’s claim for lien is timely.

[41] The contract between Toronto Zenith and Fermar provided for Winter shutdowns. The dispute between Toronto Zenith and Fermar occurred at the time of the second of three contemplated Winter shutdowns. The parties anticipated that work would have proceeded in the Spring 2015 weather permitting. Approximately one-third of the subcontracted work between Toronto Zenith and Fermar was completed before the subcontract was terminated. For these reasons, I find that Toronto Zenith’s lien did not expire. It conformed with s. 31(3)(b)(i) of the Construction Lien Act and that its Claim for Lien was served in a timely fashion.

Whether Toronto Zenith Supplied Lienable Work and Materials

[42] Toronto Zenith’s lien is also challenged on the basis that it performed alleged “work” that did not refresh Toronto Zenith’s lien rights. Fermar submits that the alleged “work” was not done in the timeframe initially alleged by Toronto Zenith and was not done as part of Toronto Zenith’s subcontract. Accordingly, it is submitted that the “work” that Toronto Zenith alleges to have performed after December 19, 2014 does not constitute lienable supply of services or materials.

[43] Fermar submits the work as identified in the affidavit of Brian Morris sworn November 6, 2015 was:

a) paragraph 9: "preparatory work . . .in anticipation of early spring start-up"- as outlined above, the plaintiff terminated its subcontract with Fermar on February 6, 20 15 and never returned to the Project; b) paragraph 10: email messages exchanged with Fermar respecting "anticipated costs for a change order" respecting work to be completed "likely toward the end of March 2015" - in accordance with established jurisprudence, this is not lienable; c) paragraph 12: concrete forms - these forms were all installed prior to De c e mber 18, 2014 and the plaintiff never provi d e d or poured any concrete into them; d) paragraph 13: overhang brackets - these brackets were installed no la t e r than December 1 9 , 2014; e) paragraph 1 4 : Shor-Cais - the Declaration of Last Supply exhibited to the p l aintiffs affidavit had an incorrect date of last supply, which was subsequently confirmed and corrected by Sho r - Cais (the correct date of last supply was December 18, 201 4 ); f) paragraph 15: Watson Bowman bearing pads- the bearing pads referenced in the Morris affidavit were replacement pads for no n -c o nforming/deficient pads previously supplied by the plaintiff and, in any event, the entirety of this supply was cancelled from the plaintiffs sub c ontract (including, without limitation, the Watson Bowman purchase order and all applicable invoices); and g) p a ragraph 1 6 : plaintiff’s site trailer- in accordance w i th established jurisprudence, the cost of m a i n t aining a site trailer is n ot lienable.

[44] Fermar submits that there is no genuine issue requiring a trial and that Toronto Zenith’s lien has expired again in accordance with s. 31(3)(b)(i) of the Construction Lien Act .

[45] To the contrary, Toronto Zenith submits that it provided lienable services or materials and relies upon provisions of the Construction Lien Act and the applicable authorities.

[46] Section 14(1) of the Construction Lien Act states that:

A person who supplies services or materials to an improvement for an owner, contractor or subcontractor, has a lien upon the interest of the owner in the premises improved for the price of those services or materials. [11]

[47] Section 1(1) of the Construction Lien Act defines an “improvement” as:

a) Any alteration, addition or repair to the land; b) Any construction, erection or installation on the land, including the installation of industrial, mechanical, electrical or other equipment on the land or on any building, structure or works on the land that is essential to the normal or intended use of the land, building, structure or works; or c) The complete or partial demolition or removal of any building, structure or works on the land. [12]

[48] Section 1(1) of the Construction Lien Act defines “materials” inter alia , as:

every kind of movable property that becomes, or is intended to become, part of the improvement, or that is used directly in the making of the improvement, or that is used to facilitate directly the making of the improvement. [13]

Section 1(1) of the Construction Lien Act defines “supply of services”, inter alia , as:

any work done or service performed upon or in respect of an improvement, and includes, where the making of the planned improvement is not commenced, the supply of a design, plan, drawing or specification that in itself enhances the value of the owner’s interest in the land. [14]

[49] I have already cited the provisions of s. 31(3)(b) of the Construction Lien Act .

[50] In B.I.L.D.O.N. Construction (601) Inc. v. Project 601 Inc. , Master Polika held that:

I find that any person, who performs any work or service, directly or indirectly, to the improvement…has a lien on the interest of the owner in the land… [15]

[51] In this case, Master Polika found that a project manager had a valid claim for lien. [16]

[52] In Benny Haulage Ltd. v. Corosi Construction Ltd. , the plaintiff appealed to the Divisional Court from an order discharging a lien. The Divisional Court stated that:

The Critical-Question in this case: is the phrase “in respect of” in the definition of “supply of services” [in the Construction Lien Act ] wide enough to encompass [the Plaintiff’s] “off-site” work. [17]

[53] The Divisional Court held that the trial judge erred in discharging the lien, and found that the levelling of dumped material “off-site” fell within the scope of the Construction Lien Act . [18]

[54] In support of this conclusion, the Divisional Court relied, in part, on the Ontario Court of Appeal’s decision in George Wimpy Canada Ltd. v. Peelton Hills Ltd. In that decision, the Court of Appeal held that the phrase “or in respect of” in the definition of “supply of services” broadened the scope of the Mechanics’ Lien Act (the predecessor to the Construction Lien Act ) and therefore held that a blacksmith who sharpened the tools used in a mine or the architect who prepared drawings or plans for a building could claim a lien for the work which was done, even if that work was done “off-site”. [19]

[55] The Divisional Court also relied , in par t , on the decision of the British Columbia Court of Appeal in Kettle Valley Contractors Ltd. v. Cariboo Paving Ltd ., which stated:

The real contest in this cas e , as I perceive i t , is between the contention that only work done on the site is capable of sustaining a lien interes t , and the contention that work done off the site may support a lien where it is part of a continuous process that physically contributes to the improvement on the sit e …I conclude that it is open to this court, on the authorities, to hold that it is not essential for a lien that a subcontractor's work have [sic] been done on the site, provided that the work is an integral and necessary part of the actual physical construction of the project…I see no reason in principle why the fact that the work was done on or off the site should be determinative of the right to claim a lie n , provided it physically contributed in a direct and essential way to the construction of an improvement on the site. [20]

[56] The Divisional Cour t ' s decision in Benny Haulage , supra, was thereafter upheld by the Ontario Court of Appeal. [21]

[57] The courts have also found, inter alia, that the following "persons" may have valid liens:

a. surveyor s ; and [22] b. electricians who attend a site and do no progressive wor k , but m er e ly unpack th e i r equipment. [23]

[58] I find that the evidence supports Toronto Zenith’s position that it was performing offsite work which was intended to become part of the improvement at the Project, in that:

a) Pasha Pashandi , Toronto Zenit h ' s on-site coordinator, as well as oth e r s at Toronto Zenit h , were involved in submitting documentation and shop drawings during the winter shu t - down period; b) the temporary shoring s y s tem which had been installed by Toronto Zenith's subcontracto r , Sho r - Cais, was being used during the winter shut-down period to shore and support Hi g hw a y 400 along Duckworth A venue ; c) throughout the winter shut-down period, representatives for Toronto Zenith and Shor-Cais communicated including for the purposes of preparing shop drawings for stage two of the shoring system, which was to be constructed at the Project in 2015; d) concrete forms which were installed by Toronto Zenith in the fall of 2014 were eventually used by Fermar after the winter shut-down period when concrete was poured at the Project. e) rubber bearings which were manufactured by Toronto Zenith's subcontractor, Watson Bowma n , were fabricated in January of 201 5 , and were thereafter picked up by Fermar in February of 2015. Some of the original bearings were not " d e ficient", as is alleged by F erma r , but mere l y did not conform with t h e Min i s try of Transportation's requirements. f) during his c r o ss-examinatio n , Charles Ezom o , agreed that when Toronto Zenith last worked on the sit e , it was expected that Toronto Zenith would return to the site in April of 2015. Ezomo also acknowledged that there was an ongoing need for Toronto Zenith to complete preparatory work during the winter shut-down. g) during the winter shut-down period, there were ongoing communications between representatives of F ermar and representatives of T oronto Zenith regarding Toronto Zenith ' s ongoing responsibilities at the Project; and h) during his cross-examinatio n , Charles Ezomo acknowledged that certain material s , which had been supplied and/or installed by Toronto Zenit h , remained on site at the Project until the summer of 201 5 ; and i) during his cross-examination, Charles Ezomo acknowledged that following its termination of the Agreement with Toronto Zenith, Fermar entered into a subcontract relationship with most, if not all, of Toronto Zenith's subcontractors to finish the progressive work at the Project.

[59] Counsel for Fermar also cited 1442968 Ontario Limited v. Houston Engineering & Drafting , 2008 16187 (ON SC) at para. 66 , for the proposition that work not invoiced does not constitute a lienable supply of services or materials. I find this decision is distinguishable because the work performed in 1442968 Ontario Limited did not add any value to the improvement. In the case at bar, I find there is uncontradicted evidence that Toronto Zenith undertook preparatory work throughout the Winter shutdown period, as required pursuant to its subcontract responsibilities which did add value to the improvement. I further reject Fermar’s argument that work done by Toronto Zenith after December 19, 2014 “refreshes” its lien rights. As I have stated, this case is entirely distinguishable from Blockwall and 1442968 Ontario Limited . There is no bootstrapping or extending expired lien rights on the part of Toronto Zenith.

[60] I find that Toronto Zenith has satisfied its onus to prove the proper preservation of its lien – both as to timelines and lienable supply.

CONCLUSION

[61] For these reasons, I have found Toronto Zenith’s lien has not expired pursuant to the Construction Lien Act . Further I have found that the lien is both timely and for lienable work and services provided by Toronto Zenith to Fermar within the meaning of the Construction Lien Act . Accordingly, Fermar’s motion is dismissed with costs.

Costs

[62] I heard submissions in respect of costs from counsel. Toronto Zenith is the successful party on this motion and it shall have its costs on a partial indemnity scale. The amount of costs claimed by Toronto Zenith is the sum of $17,564.40. Counsel for Fermar argued that counsel for Toronto Zenith’s hourly rate ought to be adjusted from $380 per hour to $300 per hour which would produce a discount of $2,500. I agree. Accordingly, Fermar Paving Limited shall pay Toronto Zenith Contracting Limited its costs for this motion on a partial indemnity basis in the amount of $15,064.40 within 30 days.

DiTOMASO J. Released: July 19, 2016

Footnotes

[1] Construction Lien Act, supra , ss. J4(1) & 16(3) [2] Construction Lien Ac t , supr a , ss.l5 & 31(3) [3] Clarkson Co. Lt d . v. Ace Lumber L t d . , [l963J S. C.R. 110, at p. 114 ; Wellington Plumbing & Heating Ltd. v. Villa Nicolini Incorporated , 2012 ONSC 5444 , at paras. 31-4 ; Deslaurier v. Le Groupe Brigi l , 2012 ONSC 3350 at para. 9 [4] K. H . Custom Homes Ltd. v. Smiley , 2015 ONSC 6037 , at para s . 3-5 [5] 3726843 Canada Inc. v . 879115 Ontario Limited et al., 2005 11205 (ON SC) , at paras. 26-7 [6] 697470 Ontario Ltd. v. Presidential Developments Ltd. , 1989 4336 (ON SC) , at p. 6 ; Hugomark v. Ontario , 2010 ONSC 7 033 , at para. 18 [7] Vaughan - Scape v. Watermark Developments , 2010 ONSC 1 365 , at paras. 9 -ll; MHA Contracting Inc. v. Christie Mechanical Contractors Limited, 2005 4579 (ON SC) at p. 11 ; Parma General Contractors Inc. v. Pulcini et al., 2014 ONSC 1948 at para. 114 ; 1442968 Ontario Limited v . Houston Engineering & Drafting, 2008 16187 (ON SC) at para. 67 [8] Construction Lien Act, supra , ss.45 & 47 [9] Dalcor Inc. v. Unimac Group Lt d . et al., 2016 ONSC 299 at para. 30 ; Beaver Materials Handling Co. v. Hejan , 2005 23127 (ON SC) , 2005 CarswellOnt 2803 , [2005] O.J. No. 2733 at para. 24 [10] Applewood & Mirror Inc. v. Baun Construction Inc. , 2009 CarswellOnt 7122, [2009] O.J. No. 4845, at para. 9 [11] Section 14(1) of the Construction Lien Act , R.S.O. 1990, c.C.30 [12] Section 1(1) of the Construction Lien Act , R.S.O. 1990, c.C.30 [13] Ibid. [14] Ibid. [15] B.I.L.D.O.N. Construction (601) Inc. v. Project 601 Inc. , 2011 ONSC 4169 , 2001 CarswellOnt 6581, [2011] O.J. No. 3177, at para. 25 [16] Ibid ., at para. 33 [17] Benny Haulage Ltd. v. Corosi Construction Ltd. , 1998 CarswellOnt 3063, [1998] O.J. No. 6563, at para. 1 and 58 [18] Ibid. , at para. 79 [19] Ibid ., at para. 65-66 [20] Ibid., at para. 69-72 [21] Benny Haulage Ltd. v. Carosi Construction Ltd ., 1998 CarswellOnt 2989 , [1998] O.J. No. 3003 [22] Smith & Smith Kingston Ltd., v. Kinalea Development Corp., 1993 CarswellOnt 1111 , ( 1994] O.J. No. 2263, at para. 3- 4 [23] I.B.E.W. Trust Fund, Local 353 v. 779857 Ontario Inc. , 2004 CarswellOnt 2528, [2004] O.J. No. 2620, at paras. 25 , 37 and 47