Court File and Parties
COURT FILE NO.: 5785/15
DATE: 20180910
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAMES LATHEM EXCAVATING LIMITED
Plaintiff
– and –
MANSTEEL NEW LISKEARD INC., CANADA CAPITAL CORPORATION INC., WORLD DEVELOPMENTS CORPORATION, WORLD DEVELOPMENT COMPANY LTD., and SECURITAS CANADA LIMITED
Defendants
Counsel:
T. Tichinoff, for the Plaintiff
S. Sheikh, for the Defendants, Mansteel New Liskeard Inc. & World Developments Corporation Inc.
R. Mehta, for the Defendant, Canada Capital Corporation Inc.
D. R. Chohan, for the Defendant, Securitas Canada Limited
HEARD: August 17th, 2018
REASONS FOR JUDGMENT
WILCOX, J
[1] This is a Construction Lien Act matter.
[2] The defendant, Mansteel New Liskeard Inc. (Mansteel) is the registered owner of five properties in the District of Timiskaming (the subject properties).
[3] The plaintiff supplied goods and services to the subject properties. The plaintiff registered against these properties a claim for lien for $229,289.73 on February 6, 2015 and a certificate of action on March 20, 2015.
[4] The defendant, Canada Capital Corporation Inc. (CCC), had registered a charge, instrument number DT42169, against the subject properties for $300,000.00 on September 13, 2013.
[5] The defendant, Securitas Canada Limited (Securitas), had obtained a writ of execution against the defendant, Mansteel on September 20, 2013.
[6] The plaintiff’s Statement of Claim was issued on March 18, 2015. In it, the plaintiff claimed:
a) payment of the sum of $229,289.73 by the defendants or any of them;
b) prejudgment and post judgment interest in accordance with the provisions of the Courts of Justice Act, RSO 1990, c C43, as amended.;
c) a declaration that the plaintiff is entitled to a lien of the lands and premises described in Schedule "A" hereto or alternatively, as against the funds paid into court to the credit of this action by the defendants;
d) a declaration that the plaintiff’s claim for lien described below has priority over the mortgages registered on the Lands;
e) a declaration that the plaintiff’s claim for lien described below has priority over the Execution registered against the defendant, Mansteel New Liskeard Inc.;
f) that in default of payment of the sum of $229,289.73 and interest and costs by the defendants or any of them that the estate and interest of any of the defendants having an interest in the property described in Schedule "A" hereto may be sold and proceeds applied in and put towards payment of the plaintiff’s claim for a lien and interest and costs pursuant to the provisions of the Construction Lien Act, RSO 1990, as amended (the "Act");
g) alternatively, damage (sic) as against the defendants in the amount of $229,289.73 on the basis of unjust enrichment;
h) for the purposes aforesaid and for other purposes, that all proper directions are given, inquiries made, and accounts taken;
i) costs of this action on a substantial indemnity basis together with Harmonized Sales Tax and disbursements;
j) such further and other relief as this Honourable Court may deem just.
[7] However, at trial, the plaintiff sought judgment against Mansteel as the land owner and contractor, and with respect to the priorities of the claims of the defendants, CCC and Securitas.
[8] All of the defendants but for World Developments Company Limited served statements of defence. However, only the defendant Securitas participated in the proceedings after that. The plaintiff’s issue with Securitas was over the priorities of their respective claims on the property. That issue was reported to be settled.
[9] The case went to trial on August 17, 2018. The only party that was represented or otherwise present was the plaintiff.
[10] Jennifer Jenkins testified for the plaintiff. Her evidence, in summary, is as follows. She and her husband are the plaintiff company’s principals. He is the president. She is the secretary treasurer and bookkeeper. Various exhibits were filed, which she used to support the plaintiff’s claim. The plaintiff had entered into agreements with Mansteel starting in 2013 to construct initially one and later a total of four aeration ponds on the subject properties. The bulk of the work involved was completed and invoiced for by December 31, 2014. The plaintiff had provided the defendant Mansteel with a series of interim invoices and had received some payments as the project proceeded. Ultimately, the defendant, Mansteel, owed the plaintiff $229,289.73 more than it had paid. The plaintiff is entitled to a lien and to judgment in that amount registered against the subject properties.
[11] The plaintiff claims priority of its lien over the mortgage that the defendant CCC registered against the subject properties as instrument DT42169 on September 13, 2013, relying on section 78 of the Construction Lien Act (now the Construction Act). CCC, in its statement of defence, denied the validity of the plaintiff’s lien claim. In the alternative, if the lien was found to be valid, CCC pleaded that it maintains its priority over the lien pursuant to section 78. Section 78(1) provides:
78(1) Except as provided in this section, the liens arising from an improvement have priority over all conveyances, mortgages or other agreements affecting the owner’s interest in the premises. R.S.O. 1990, c. C.30, s. 78 (1); 2017, c. 24, s. 70.
CCC did not provide any evidence that its mortgage fell within any exceptions such that the plaintiff’s lien would not have priority over the mortgage.
[12] The plaintiff indicates that it had agreed with the defendant Securitas that the latter’s judgment against the defendant Mansteel would have priority over the plaintiff’s lien.
[13] At the request of the plaintiff, the action shall be dismissed as against the defendants Canada Capital Corporation Inc., World Developments Corporation, World Company Development Company Ltd. and Securitas Canada Limited, without costs.
[14] The plaintiff submitted its bill of costs and calculation of pre-judgment interest. The defendant Mansteel shall pay to the plaintiff costs plus HST totaling $17,616.00 plus disbursements of $1,451.92, together with pre-judgment interest of $9,946.33.
J. A. S. WILCOX
Released: September 10th, 2018
COURT FILE NO.: 5785/15
DATE: 20180910
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAMES LATHEM EXCAVATING LIMITED
Plaintiff
– and –
MANSTEEL NEW LISKEARD INC., CANADA CAPITAL CORPORATION INC., WORLD DEVELOPMENTS CORPORATION, WORLD DEVELOPMENT COMPANY LTD., and SECURITAS CANADA LIMITED
Defendants
REASONS FOR JUDGMENT
WILCOX, J
Released: September 10th, 2018