CITATION: Roe, Operating as Superior Painting v. Elgaard Developments Inc. et al, 2016 ONSC 7831

COURT FILE NO.: CV-13-000687-00

DATE: 20161213

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GREGORY ROE, OPERATING AS SUPERIOR PAINTING

Plaintiff

– and –

ELGAARD DEVELOPMENTS INC., SHERYL OSAK and THE TORONTO-DOMINION BANK

Defendants

Douglas Snider, for the Plaintiff

Michael Cassone, for the Defendant, Sheryl Osak

HEARD: November 28, 29 and 30, 2016

REASONS FOR JUDGMENT

Di Luca J.:

Overview

[1] The plaintiff, Gregory Roe, commenced an action against the three named defendants seeking various forms of relief relating to the provision of painting services at the defendant Sheryl Osak’s cottage (“Osak cottage”) in Orillia in late 2012 and early 2013.

[2] The statement of claim was not served on either Elgaard Developments Inc. (“Elgaard”) or The Toronto-Dominion Bank. That leaves the claim against Sheryl Osak as the only claim to be determined.

[3] The claim against Ms Osak is for $12,500, the amount of the holdback required to be maintained by the defendant pursuant to the provisions of the Construction Lien Act (“CLA”) and in default of payment of this amount an order that the Osak cottage be sold and the proceeds applied towards the payment of the claim.

[4] In brief, Mr. and Ms. Osak (collectively, “the Osaks”) hired a general contractor, Elgaard, to renovate the kitchen of their cottage. The renovation project extended beyond the kitchen and eventually grew to a modest renovation of the entire premise. The total amount paid by the Osaks to Elgaard for the renovation was $125,000. The renovation was paid in full. The Osaks did not appreciate that they were obligated to holdback 10% of the agreed upon price.

[5] Elgaard hired a number of trades to assist in completing the renovation including Greg Roe, who was hired to provide painting services at the Osak cottage. Mr. Roe performed a number of painting tasks and billed Elgaard $21,339.95 for his services. Elgaard paid only a portion of this amount, leaving $14,839.95 unpaid. While there is some disagreement regarding the amount and timing of the work done by Mr. Roe, there is no suggestion that he did anything other than an acceptable and competent job.

[6] Elgaard is insolvent and it appears that Mr. Elgaard, the principal, has left Canada.

[7] Mr. Roe is aggrieved because, in his view, he completed the painting job and should have been paid by Elgaard or at least, by the Osaks through the statutory holdback mechanism. The Osaks are also aggrieved because they paid the full amount of the agreed upon price to Elgaard and do not feel compelled to effectively pay twice for the painting services even though they failed to retain the required holdback.

[8] In order to ground a claim against Ms. Osak, Mr. Roe resorts to the provisions of the CLA. If he can demonstrate on a balance of probabilities that he has validly preserved and perfected a lien claim against the property, he will be entitled to $12,500 from Ms. Osak, which is the amount she was required to, but did not, hold back pending completion of the renovation.

[9] Mr. Roe maintains that his lien claim was preserved and perfected within the timeframes and procedures mandated by the CLA. Ms. Osak argues that the lien claim fails on the basis that the date of last service provided by Mr. Roe falls outside the 45 day time frame for validly preserving a lien. In the alternative, Ms. Osak argues that if the lien has been validly preserved and perfected, the holdback required should be calculated on the basis of the piecemeal or “phased” basis of the verbal contracts in this matter. In effect, Ms. Osak argues that the holdback required in this case was not 10% of the price for the entire renovation but rather 10% of the price of the particular phase of the renovation involving the subject painting services.

Legal Framework

[10] The CLA is remedial legislation which provides a means of security for payment to contractors and subcontractors who provide services and/or materials for an improvement to land: see Dalcor Inc. v. Unimac Group Ltd., 2016 ONSC 299 at para. 23. The timelines imposed by the CLA are strictly construed and there is no room for judicial discretion. This strict construction seeks to ensure that parties in the construction pyramid “know where they stand”: see Delview Construction Ltd. v. Meringolo, 2004 CanLII 11188 (ON CA), [2004] O.J. No. 2317 (C.A.).

[11] Section 1.1 of the CLA defines a number of terms relevant to these proceedings. There is no issue in the these proceedings that Sheryl Osak is an “Owner”, Elgaard Developments Inc. is a “Contractor” and Greg Roe is a “Subcontractor” within the meaning of the CLA.

[12] In accordance with s.14(1) of the CLA, a person who supplies services and/or materials for an owner or contractor has a lien upon the interest of the owner in the premise improved for the price of the service and/or materials supplied. Unless preserved under s.34 of the CLA, such a lien will expire in accordance with s.31 of the CLA which provides a rigid calendar for subcontractor liens.

[13] According to s.31(3)(b)(i) of the CLA, a subcontractor’s lien will expire at the conclusion of the forty-five day period next following the date on which the person last supplied services or materials to the improvement. In determining the date on which the person last supplied services or materials to the improvement, the courts have drawn a distinction between substantive worked performed under the terms of the contract and remedial or trivial work. Work will be remedial or trivial where it relates to a minor deficiency or rectification of work already completed or where the service performed does not add to the value of the improvement. While the distinction between the two is at times fine, the courts are on guard against permitting the performance of a minor or trivial amount of work to artificially extend the time for filing a lien. In making this determination, the court is asked to determine whether the service provided is an attempt to “boot-strap” lien rights: see Blockwall Masonry Ltd. v. Arcio Design, [2007] O.J. No. 3266 (S.C.J.).

[14] Section 22(1) of the CLA requires that an owner hold back 10% of the price of the services and/or materials until all liens that may be claimed against the holdback have expired, or have been satisfied, discharged or provided for. In accordance with s.23(1) of the CLA, an owner is personally responsible to valid lien claimants up to the amount of the holdback.

The Issue to Be Determined

[15] The central issue to be determined in this case is the date of the last service provided by Mr. Roe. He claims that this date is March 26, 2013. It is agreed that if I find that this is the date of the last service provided, Mr. Roe has a validly preserved and perfected lien claim as the lien was registered on May 8, 2013.

[16] Ms. Osak submits that the last date of service provided is likely March 8, 2013 and that if that is the case, the lien is out of time. She also submits, in the alternative, that if there is a finding that services were provided on March 26, 2013, those services were either minor or trivial and/or an attempt to bootstrap lien rights.

[17] Mr. Roe has the onus of proving his claim on a balance of probabilities.

Summary and Assessment of the Relevant Evidence

The Plaintiff’s Evidence

[18] Mr. Roe testified that he had a working relationship with Mr. Elgaard, having completed a number of projects for his company in the past. He was contacted by Mr. Elgaard who initially asked him to spray kitchen cabinets for the Osak cottage. This work was to be done off-site at Mr. Roe’s shop. Mr. Elgaard thereafter asked Mr. Roe to provide an estimate for painting services on site and a proposal was tendered and accepted. The terms of the proposal are set out at Exhibit 4, Tab 2. The estimate is dated October 23, 2012 and work at the site commenced soon thereafter.

[19] According to Mr. Roe, the project evolved beyond the initial proposal and he was asked to provide additional services on a rolling basis without a new or revised project estimate. Invoices were submitted by Mr. Roe to Elgaard at various stages including interim draws on October 30, 2012 and December 20, 2012 and a final invoice on March 27, 2013 which listed a balance owing of $14,839.95.

[20] Mr. Roe identified Exhibit 5, Tab 22 as a printout from his Blackberry which he explained was a running log of the services provided for the project. The log lists the various painting services provided by Mr. Roe as well as the rough costs. Under a heading “Deficiencies” there are four entries dated February 6, February 25, March 8 and March 26, respectively. The entry for March 26 states “repair paint trim new blinds in master/paint cc 820 whole room from damages – 5 hrs”. Mr. Roe indicated that to him, “deficiencies” meant work that needed to be completed as a result of other trades as well as additional changes to the project added on a rolling basis.

[21] Mr. Roe testified that by February 6, 2013, the project was 70-75% complete and he reviewed in detail the many tasks that he completed in February and March 2013. Notes of these tasks were tendered into evidence as Exhibit 4, Tab 3 and 5. According to Mr. Roe, he was required to repair damage done by other trades and could not complete his tasks until the other trades first finished their tasks. As well, since the project evolved over time, new tasks were regularly added to the list.

[22] Mr. Roe testified that on February 6, 2013, he attended at the Osak cottage alone to assess the work that needed to be done in order to complete the project. He returned on February 25, 2013 to continue repairs relating to other contractors. On March 8, 2013, he attended with his employee Mike Walker and did some further repairs and paint touch ups. He indicated that the touch ups had been marked by Mr. Osak using sticky notes.

[23] In relation to the date of last service provided, Mr. Roe maintained that it was on March 26, 2013. He explained that on this date, he purchased paint supplies from Robinson’s Paint and Wallpaper and attended at the property where he spent 5 hours completing painting tasks. In his view, the tasks done on this last date were substantial and not minor touch ups. The tasks included repairing paint and trim where new blinds had been installed in the master bedroom as well as repairing some holes in one of the walls of the master bedroom and repainting the room. A copy of an invoice from Robinson’s Paint and Wallpaper was tendered as Exhibit 4, Tab 9.

[24] Mr. Roe testified that he was accompanied on March 26, 2013, by his employee Mike Walker. An invoice from Mr. Walker to Mr. Roe, dated March 27, 2013, listing 3 hours of unspecified work on the Osak project on March 26, 2013, was tendered as Exhibit 4, Tab 12.

[25] Mr. Walker testified that he accompanied Mr. Roe to the Osak cottage on two occasions, March 8 and March 26, 2013. In relation to March 8, Mr. Walker recalled that they did many touch ups that had been marked by the property owner using sticky notes. While his memory was “shady”, he claimed that the second date he attended was on March 26, 2013, “as invoiced”. On this date, he explained that he and Mr. Roe continued to do touch ups.

[26] The evidence of both Mr. Roe and Mr. Walker was forcefully challenged in cross-examination. The theme of the cross-examination was that the March 26 date was a fiction created to “bootstrap” the lien claim. In my view, the cross-examination raised significant concerns regarding the credibility and reliability of the claim that the last date of service was in fact March 26, 2013. Below, I set out the most relevant areas of cross-examination.

(a) The Alarm

[27] Mr. Roe’s initial position, maintained at discovery, was that on March 26, 2013 he attended at the Osak cottage and used a key he had obtained from Elgaard to enter the premise. Upon entering the premise, the alarm was set off. He indicated that while the alarm was sounding, he stepped outside the premise and called Mr. Elgaard to obtain the alarm code so he could turn off the alarm and get to work. According to Mr. Roe, Mr. Elgaard provided the alarm code, which he then entered and the alarm stopped ringing. In his discovery evidence, which was read in at trial and also put to Mr. Roe in cross-examination, he was very clear that the alarm was set off on this last date.

[28] Following the completion of discoveries, the Osaks obtained a report from the alarm company indicating that no alarm was triggered on March 26, 2013 and that the only alarm event during the relevant time period occurred on March 14, 2013. A copy of the report from the alarm company was tendered as Exhibit 5, Tab 13 and admitted on consent for the truth of its contents. The report notes that the alarm was resolved with the provision of a code. The report also notes “customer on premise” presumably an indication that the code was provided by either Mr. or Ms. Osak. As well, it was agreed that on basis of an undertaking provided during discovery, Mr. Roe’s phone records were obtained and no call to Mr. Elgaard was recorded on March 26, 2013.

[29] In the face of this evidence, Mr. Roe’s testimony at trial changed tack. He indicated that he first learned of the existence of the alarm report during the opening statement by counsel for Ms. Osak. He denied knowing of the report prior to trial, though there seems to be no issue that the report was obtained and disclosed in the ordinary course well in advance of trial.

[30] Mr. Roe testified that he now recalled that the alarm was not set off on March 26, but rather on March 14, 2013. He indicated that he actually attended on March 14 to do some minor work and set off the alarm at 3:00 in the afternoon. He maintained, nonetheless, that he also attended on March 26 to complete the work, though that was no longer the date he believed he had set off the alarm. In cross-examination, Mr. Roe proffered a third version of events wherein he attended on March 26, used the key to unlock the door, set off the alarm, but then disarmed it using the code that he had obtained from Mr. Elgaard on March 14, 2013. Mr. Roe was then cross-examined on the alarm report and asked to explain why he would have needed to obtain the alarm code from Mr. Elgaard on March 14, if as the report suggests, the customer was on scene and provided the code directly.

[31] Mr. Roe was taken to his Blackberry entries and it was noted that there was no entry for March 14. Mr. Roe explained that he believed the Blackberry entries were complete until he heard the opening statement of the defendant, after which he presumably first learned of the discrepancy.

(b) The March 27 Invoice and the Missing Cheque

[32] In support of the claim that the last date of service was March 26, 2013, Mr. Roe relied on an invoice from Mike Walker dated March 27, 2013. The invoice has an entry for 3 hours for “Osak” on March 26, 2013. There are a number of concerns about this invoice. First, the original invoice books were never produced. The original books would contain carbon copies of all the invoices prepared by Mr. Walker and would presumably show the order in which they were prepared and whether they were visibly modified. During a recess in Mr. Walker’s testimony, Mr. Roe produced the original invoice top copies that had been provided to him by Mr. Walker, and in further evidence, Mr Walker explained that he discarded the invoice books once the amounts owing were paid. Second, unlike the earlier invoices, the March 27 invoice contains no description of the work done on March 26. I note by way of telling example, the invoice that relates to work done on March 8, 2013, notes “touch ups” as the service provided. When cross-examined on this issue, Mr. Roe explained that he did not included details of the work done on March 26 because that was the last date he worked for Mr. Roe and he didn’t need to spend time detailing the invoice as he no longer needed work from Mr. Roe.

[33] I also note that the March 27, 2013 invoice from Mike Walker was accompanied by a document titled “Timesheet” ostensibly printed on April 9, 2013. Neither Mr. Roe nor Mr. Walker could explain how this document came into existence, though Mr. Roe opined that it may have been created by his bookkeeper. Interestingly, the document notes that the 3 hours of work for March 26, 2013 are “Not-Billable.” Mr. Roe testified that he was not familiar with the “Not-Billable” notation in the accounting software used for his business. Along the same lines, two copies of a document titled “Time By Job Detail” relating to the Osak project were tendered in evidence (Exhibt 5, Tab 23 and 24). The first version was printed on March 25, 2014 and notes 3 hours of non-billable work done by a subcontractor on March 26, 2013. All of the entries on this time listing except this last one are marked “unbilled.” On the second version, printed on April 15, 2015 after the discoveries were completed, the final entry has been modified from “non-billable” to “unbilled”. Mr. Roe could offer no explanation as why this entry was changed. I note as well, that the entry for March 26, 2013 relates to an unnamed “subcontractor” and not Mike Walker as some of the previous entries do, including the entry for March 8, 2013.

[34] Returning to the invoice dated March 27, 2013, at the top left hand corner of the page, the word “PAID” is stamped along with a handwritten notation “April 5/13 cheq#1708 $161.00”. Banking records with a super-imposed cheque stub were tendered into evidence (Exhibit 4, Tab 15). The cheque stub, which appears to have been simply placed on top of the bank record and copied as one document, purports to show a cheque issued to Mike Walker on April 5, 2013 for $885.50 and lists two invoice numbers in the “re” line. One of the invoice numbers is the same as the invoice tendered into evidence. The bank record shows that on April 8, 2013, the cheque was negotiated. A copy of cheque #1708 as negotiated was never produced, neither was a copy of the second referenced invoice.

[35] A copy of the cheque as negotiated would readily have demonstrated that the money was actually paid to and received by Mike Walker. A copy of the second invoice would presumably have shown work in the amount of $885.50 less $161. The absence of the cheque and in particular the absence of any explanation as to why a copy of the cheque could not be produced raises significant concerns. In combination with the absence of the second invoice listed on the cheque stub, I am left with serious concerns about the reliability of the paper trail and related testimony.

(c) The Robinson’s Paint and Wallpaper Invoice

[36] A number of invoices for paint and related supplies from Robinson’s Paint and Wallpaper to Mr. Roe for the Osak project were tendered into evidence (Exhibit 4, Tab 9). On all of the invoices, except the invoice dated March 26, 2013, the box titled “PO Number” is blank. On many of these invoices, the word “Osak” appears in the description of the items purchased. On the March 26, 2013 invoice, the box titled “PO Number” is filled in with the word “OSAK”. The word “Osak” does not appear in the body of the invoice, though the phrase “edit your comment” appears along with the description of the items purchased.

[37] Counsel for Ms. Osak points to these discrepancies as further support for his overarching theme that the purported work done on March 26, 2013 is a fiction, likely created to bootstrap the lien rights. Standing alone, I find that the discrepancies on the Robinson’s Paint and Wallpaper Invoice are not significantly concerning. However, when viewed in combination with the testimony about the alarm, the invoices prepared by Mike Walker and the banking records as provided, my concerns about the credibility and reliability of the paper trail and related testimony are increased.

(d) The Email Communications

[38] A central plank of Mr. Roe’s evidence was that by February 2013, only 70-75% of the project was complete. In cross-examination, Mr. Roe was confronted with a number of emails that suggest the project was mainly completed between December 2012 and January 2103. Mr. Roe was not a party to most of these emails and therefore could not, in fairness, comment on them apart from generally noting his disagreement with the stated degree of completion of the project. That said, on January 18, 2013, Mr. Roe sent an email to Mr. Elgaard indicating “I am also preparing a final invoice for osak – I have yet to receive a deficiency list from Adam for osak”. In cross-examination, Mr. Roe was asked why he would be sending an email in January suggesting that he was preparing a final invoice when his evidence at trial was that by February 2013, the project was only 70-75% complete. He was also asked to explain why he was looking for a deficiency list if the work was only partially complete. Mr. Roe explained that he believed at the time he wrote the email that the project was nearing completion, but that after the email was sent he learned of the extent of the remaining work. The remaining work consisted not only of repair work following other trades but additional work added to the project, Mr. Roe was also asked about a deficiency list that was prepared by Elgaard and emailed to him on January 15, 2013. His response was that the list was accurate as of the date that it was created but that additional work arose after the fact. Mr. Roe maintained that notwithstanding the email communication, a significant amount of work remained to be completed in February and March of 2013.

[39] I am not satisfied with the Mr. Roe’s evidence. I find that there are both credibility and reliability concerns with his evidence. I am particularly troubled by his evidence in relation to the alarm. I find that his evidence on this issue changed and evolved from discovery to trial when he was presented with the alarm report contradicting his claims. Most troubling was the fact that when confronted with the contradictory evidence regarding the alarm, Mr. Roe maintained that he must have mistaken the date when the alarm went off and not the date of last service. In the face of the alarm report, Mr. Roe readily adopted March 14, 2013 as one of the dates he went to the Osak cottage to perform services. However, his purportedly contemporaneous Blackberry notes make no reference to March 14, only noting March 8 and March 26. Notwithstanding these problems, Mr. Roe was steadfast in insisting that March 26 was the last date of service. In the circumstances, this strikes me as all too convenient. Mr. Roe could not adopt March 14 as the last date of service as it falls outside the 45 day time frame provided for in the CLA.

[40] I am also troubled by the documentary evidence tendered, in particular the invoice and banking records relating to Mike Walker’s purported services on March 26, 2013. I find it most troubling that the cheque purporting to pay Mike Walker for services rendered on March 26, 2013 was not tendered into evidence nor was a suitable explanation given for why a copy of the negotiated cheque was not available from the bank.

[41] Mike Walker’s testimony was not of great assistance to the plaintiff. While Mr. Walker had a recollection of attending with Mr. Roe on two occasions to do touch ups, his evidence about what work was done on March 26 did not accord with Mr. Roe’s evidence. More importantly, Mr. Walker’s testimony that he attended on March 26 “as invoiced” seemed to suggest that at best he was basing his recollection on what was reflected in the invoice rather than on his own memory. Viewed in the context of the evidence as a whole, I have concerns that Mr. Walker may be trying to assist his former boss, Mr. Roe, in advancing this lien claim.

The Defendant’s Evidence

[42] The defendant called one witness, her husband, Warren Osak. Mr. Osak testified regarding the nature and extent of the cottage renovation project. He agreed that the project started out with a kitchen renovation but soon grew into a modest renovation of the entire cottage. Mr. Osak further agreed that as the project evolved, new tasks were added to the project as agreed upon verbally between himself and Mr. Elgaard. Mr. Osak never dealt personally with Mr. Roe. There appears to be no issue that the painting was done professionally and competently by Mr. Roe and his employees.

[43] The thrust of Mr. Osak’s evidence was that the majority of the renovation work was completed before the holiday season in December 2012. Mr. Osak testified that he wanted the work done by then so he and his family could move back in and enjoy the holiday at the cottage property. Mr. Osak was clear in his testimony that to the extent that work remained to be done in early 2013, it was relatively minor in nature. Mr. Osak was also clear in his testimony that in January of 2013, he changed the locks on the doors and activated a security alarm on the property as he didn’t want tradespeople having unrestricted access. He indicated that he made it clear to Elgaard that any trades attending to complete remaining tasks at the residence would need approval before attending.

[44] Mr. Osak’s evidence regarding the completion of the project and the restricted access to the property is largely supported by the email communications with Elgaard. The following emails, all found in Exhibit 5, are the most relevant:

(a) Email dated November 14, 2012 from Elgaard to Osak – this email notes that the project is “more than half way through” and that most of the work will be completed by month’s end.

(b) Email dated December 12, 2012, from Tyler Gardner at Elgaard to Osak – this email notes that “as of next Friday we will have everything done but a couple very small things.”

(c) Email dated December 18, 2012 from Elgaard to Osak – this email notes “we are very close to completion.”

(d) Email dated January 17, 2013 from Adam at Elgaard to Osak noting “I am also attempting to schedule for small painting deficiencies for Monday as well.”

(e) Email dated February 12, 2013 from Adam at Elgaard to Osak asking whether it would be acceptable for Mr. Roe to attend that day instead of the next.

(f) Email dated March 8, 2013 from Mira at Elgaard to Osak advising that Greg Roe would be attending to “finish all the paint touch ups.”

[45] The most telling aspect of Mr. Osak’s evidence is found in Exhibit 5 at Tab 29. According to Mr. Osak, this is a document he created to reconcile the amounts paid to Mr. Elgaard and all the work approved of and completed during the course of the project. The document contains notations made by both Mr. Osak and Mr. Elagaard. Of note, the document indicates that as of February 26, 2013, $125,000 was paid to Elgaard by the Osaks, with a payment of $5,000 on that date. According to Mr. Osak, this document was used when he and Mr. Elgaard sat down to hammer out the final financial details of the renovation. Mr. Osak testified that he would not have paid the final payment of $5,000 if he believed that significant work remained to be done. Stated differently, Mr. Osak was satisfied as of February 26, 2013 that the renovation work was essentially complete except for some minor touch ups.

[46] Mr. Osak testified that he was at the cottage property on March 8, 2013 when Mr. Roe attended to do touch ups. He indicated that he had placed a couple dozen sticky notes on the various spots that needed touch ups. In his view, the painting was done as of that date and no further attendance was required. In particular, Mr. Osak denied that the master bedroom needed to be repaired and repainted in March of 2013. In his recollection, the master bedroom was done in 2012, subject perhaps to some minor touch ups.

[47] Mr. Osak was not at the property on March 26, 2013 and therefore had no personal knowledge as to whether Mr. Roe was there. That said, there was no reason for Mr. Roe to be there on that date. As well, Mr. Osak had no recollection of the alarm being set off on the March 14, 2013.

[48] I find that Mr. Osak is a believable witness. His evidence was given in a clear and forthright manner. He was not impeached, contradicted or shaken in cross-examination. His evidence is internally consistent and externally consistent with the contemporaneous email communications.

[49] Mr. Osak is a sophisticated business owner and I accept his evidence that he would not have paid the final installment to Mr. Elgaard unless he was satisfied that the project was essentially complete.

[50] I accept his evidence that the work done on March 8, 2013 was in the nature of minor remedial touch ups and that there was no further painting work required after that date.

Conclusion

[51] I am not satisfied on a balance of probabilities that the date of final service was March 26, 2013. I find that the date of final service was likely March 8, 2013 when Mr. Roe and Mr. Walker attended at the Osak cottage with Mr. Osak and did a number of minor paint touch ups. This is the date that is best supported by the evidence, particularly the evidence of Mr. Osak, which I accept without reservation.

[52] I have concerns that Mr. Roe, with Mr. Walker’s assistance, may have engaged in an ex-post bootstrapping exercise to artificially extend the time frames for preserving his lien. An objective view of the documentary evidence, the unanswered questions relating to the banking records, and the malleability of Mr. Roe’s testimony in relation to the alarm, leave me concerned that the March 26, 2013 events are indeed a fabrication. That said, and in view of the fact that the onus lies entirely on Mr. Roe, I do not need to go any further than finding that I am simply not satisfied that the date of the final service is March 26, 2013.

[53] Accordingly, I find that the plaintiff’s lien claim was not preserved and perfected within the time limits set out in sections 31 and 36 of the CLA. The action against the defendant Sheryl Osak is dismissed.

Costs

[54] If the parties cannot agree on costs, the defendant Sheryl Osak is to serve and file her submissions on costs within fifteen days of the date of this decision, and the plaintiff will have fifteen days thereafter to serve and file his submissions. The submission are to be no more than three pages, double spaced, exclusive of any cost outline, case law and offers to settle. Submissions are to be filed with the court. If no submissions are received within the time period set out herein, an order will be made that there will be no costs.

Di Luca J.

Released: December 13, 2016

CITATION: Roe, Operating as Superior Painting v. Elgaard Developments Inc. et al, 2016 ONSC 7831

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

GREGORY ROE, OPERATING AS SUPERIOR PAINTING

Plaintiff

– and –

ELGAARD DEVELOPMENTS INC., SHERYL OSAK and THE TORONTO-DOMINION BANK

Defendants

REASONS FOR JUDGMENT

Di Luca J.

Released: December 13, 2016