2018 ONSC 6628

Court File and Parties

COURT FILE NO.: 12-34794 MOTION HEARD: 2018-08-21 REASONS RELEASED: 2018-11-06 SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF the Construction Lien Act, R.S.O. 1990 c. C. 30

BETWEEN:

ROMANOV ROMANOV ARCHITECTS INCORPORATED Plaintiff

• and-

CARDILLO CAPITAL CORP., SPORTING VENTURES INTERNATIONAL LTD., 1554080 ONTARIO INC. and HAMILTON DOWNTOWN MOSQUE Defendants

BEFORE: MASTER M.P. McGRAW

COUNSEL: F.S. Turton -for the Defendants Cardillo Capital Corp., Sporting Ventures International Ltd. and 1554080 Ontario Inc. R. Mazar -for the Plaintiff, Romanov Romanov Architects Incorporated E. Dreyer -for Heffner Investments Limited

REASONS RELEASED: November 6, 2018

Reasons For Endorsement

I. Introduction

[1] There are two motions before the Court:

i.) a motion by the Defendants Cardillo Capital Corp. (now known as Medcap Real-Estate Holdings Inc.)(“CCC”), Sporting Ventures International Ltd. (“SVI”) and 1554080 (“155”, collectively, the “Cardillo Defendants”) to discharge the Plaintiff’s lien claim in the amount of $77,335 (the “Lien Claim”) and Certificate of Action (the “Certificate of Action”) pursuant to s. 47 of the Construction Lien Act (Ontario), R.S.O. 1990 c. C. 30 (the “Act”) on the basis that the Lien Claim was not registered in a timely manner and has expired (the “Discharge Motion”);

ii.) a motion by Heffner Investments Limited (“HIL”) for leave to, if the Discharge Motion is not granted, add HIL as a Defendant to this action and commence a Third Party Claim against John Cardillo pursuant to sections 57(2) and 56, respectively, of the Act (the “Third Party Motion”).

II. The Parties, the Projects, the Lien Claim and the Action

[2] The Defendant 1554080 Ontario Inc. (“155”) was the owner of the property known municipally as 221 York Boulevard in Hamilton (the “Property”). Mr. Cardillo is the principal of the Cardillo Defendants. This action relates to 4 proposed construction projects (the “Projects”), only 1 of which proceeded.

[3] In or about late 2004, 155 engaged the Plaintiff Romanov Romanov Architects Incorporated (“RRAI”) to provide architectural services with respect to the expansion of an existing fitness facility on the Property. The expanded fitness facility operated under the Premier Fitness Club brand.

[4] In or about late 2006 and early 2007, Mr. Cardillo changed course and requested that the Plaintiff work on a comprehensive development of the Property which included a condominium tower, fitness club, commercial rental units and parking (the “Condo Project”). The Plaintiff delivered a fee confirmation letter dated February 10, 2007 to CCC with respect to the Condo Project setting out, among other things, the scope of services and a fee of $50,000 (the “First Confirmation”). The Plaintiff provided design services and applied for site plan approval for the Condo Project. However, the application was never finalized and the Condo Project was not constructed.

[5] In August 2007, Mr. Cardillo changed course again and decided to construct a two-story addition and renovation to the Property for use as a fitness facility (the “Addition Project”). The Plaintiff delivered a second fee confirmation dated August 15, 2007 to SVI setting out, among other things, the scope of work and a fee of $20,000 for the work related to the Addition Project (the “Second Confirmation”, together with the First Confirmation, the “Confirmations” or the “Contracts”). By April 30, 2008, the Plaintiff had prepared an application for a building permit for the Addition Project, which he sent to Mr. Cardillo. However, Mr. Cardillo again decided not to proceed.

[6] In 2009, the Cardillo Defendants opened a mini-gym at the Property (the “Mini-Gym Project”). The services provided by the Plaintiff with respect the Mini-Gym Project were limited to choosing paint and designing a garbage enclosure and were completed around the beginning of 2009.

[7] This motion focusses largely on the attendance of John Romanov, the principal of RRAI, at the Property on February 17, 2012. It is not disputed that Mr. Romanov attended at the Property that day and that the building was locked and nobody was there. This was because earlier in February 2012, a secured creditor of Premier Fitness Clubs obtained a receivership order with respect to all Premier Fitness Clubs, including the one located at the Property (the “Receivership”). Mr. Romanov attended after a telephone conversation with Mario Trebucco, a construction manager for the Cardillo Defendants, in which they discussed the possible raising of the Property’s roof.

[8] The Plaintiff delivered 3 invoices totaling $77,335, representing the amount of the Lien Claim and the Contracts:

i.) Invoice #04168-03 issued on October 15, 2007 to SVI in the amount of $10,600 for the Addition Project (“Invoice #1”);

ii.) Invoice #04168-04 issued on March 1, 2012 to SVI in the amount of $10,735 for the Addition Project (Invoice #2”);

iii.) Invoice #07136-01 issued on March 1, 2012 to CCC in the amount of $56,000 for the Condo Project (“Invoice #3”, collectively, the “Invoices”).

[9] The Plaintiff registered the Lien Claim on March 9, 2012 and commenced this action and registered the Certificate on May 14, 2012.

[10] On February 28, 2014, the Defendant the Hamilton Downtown Mosque purchased the Property from 155 without discharging the Lien Claim and the Certificate. At or around the same time, the Hamilton Downtown Mosque granted a mortgage in favour of HIL pursuant to which HIL agreed to discharge the Lien Claim and the Certificate on or before December 31, 2017. In February 2014, Mr. Cardillo and CCC provided an undertaking to HIL that they would discharge the Lien Claim and the Certificate on or before December 31, 2017 (the “Undertaking”).

[11] The Discharge Motion was originally returnable March 26, 2014, however, it did not proceed given the sale of the Property to the Hamilton Downtown Mosque. Pursuant to the Order of Justice Reilly dated October 21, 2014, the Plaintiff was granted leave to amend its Statement of Claim to add the Hamilton Downtown Mosque as a Defendant.

[12] Notwithstanding the Undertaking, Mr. Cardillo and CCC did not cause the Lien Claim and the Certificate to be discharged. Therefore, HIL obtained the Order of Justice Glithero dated January 16, 2018 vacating the Lien Claim and the Certificate from title to the Property for payment into court by HIL of $96,668.75 as security pursuant to s. 44 of the Act (the “Security”). If the Discharge Motion is granted, HIL seeks the return of the Security. HIL’s proposed Third Party Claim against Mr. Cardillo arises from his alleged breach of the Undertaking.

[13] Pursuant to my Order and Endorsement dated May 22, 2018, this action was dismissed on consent as against the Hamilton Downtown Mosque and HIL was granted standing to bring the Third Party Motion.

The Law and Analysis

The Discharge Motion

[14] Pursuant to the transition provisions set out at section 87.3 of the Construction Act, R.S.O. 1990, c. 30, as the Contracts were entered into before July 1, 2018, the Act continues to apply to this action and these motions.

[15] Section 14 of the Act states:

(1) 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.”

[16] Section 1 of the Act defines “supply of services” as:

“…any work done or service performed upon or in respect of an improvement, and includes,

(a) the rental of equipment with an operator, and

(b) 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,

and a corresponding expression has a corresponding meaning;”

[17] Section 1 of the Act defines “improvement” as:

“….in respect of any land,

(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.”

[18] Section 31 of the Act states:

“(1) Unless preserved under section 34, the liens arising from the supply of services or materials to an improvement expire as provided in this section.

(2) Subject to subsection (4), the lien of a contractor,

(a) for services or materials supplied to an improvement on or before the date certified or declared to be the date of the substantial performance of the contract, expires at the conclusion of the forty-five--day period next following the occurrence of the earlier of,

(i) the date 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 date the contract is completed, abandoned or terminated; 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 date certified or declared to be the date of substantial performance, expires at the conclusion of the forty-five-day period next following the occurrence of the earlier of,

(i) the date the contract is completed, and

(ii) the date the contract is abandoned.”

[19] Section 34 of the Act states:

“(1) A lien may be preserved during the supplying of services or materials or at any time before it expires,

(a) where the lien attaches to the premises, by the registration in the proper land registry office of a claim for lien on the title of the premises in accordance with this Part;”

[20] Section 2(3) of the Act provides when a contract is deemed to be completed:

“For the purposes of this Act, a contract shall be deemed to be completed and services or materials shall be deemed to be last supplied to the improvement when the price of completion, correction of a known defect or last supply is not more than the lesser of,

(a) 1 per cent of the contract price; and

(b) $5,000.”

[21] In 1246798 Ontario Inc. v. Sterling, [2000] O.J. No. 4261 (Div. Ct.), the Divisional Court summarized the intention of the Act and considered the definition of “supply of services” generally and as it relates to architects:

[55] This conclusion was arrived at without considering whether the work done fell within the applicable definitions of the Mechanics' Lien Act, R.S.O. 1970, c. 267. However, it certainly accords with the fundamental purpose of the legislation, as described by Meredith C.J.C.P. in Read v. Whitney (1919), 45 O.L.R. 377 at p. 378, 48 D.L.R. 305 (C.A.) :

The general purpose of the Act, stated generally, is to give to those whose work or services or "materials" go, in the manner provided for in the Act, to the owner, in enhancement of the value of his land, security, as far as is just and practicable, upon the land and its improvements for payment for such work or services or materials. [ emphasis added ]

[56] Seen with this purpose in mind, the decision of Chartrand L.J.S.C. makes perfect sense. If the preparation and approval of the plans increased the value of the land, then the land has thereby been "improved" even though nothing physical was built on the land, rendering it fair and just to grant a lien to the supplier of that improvement.

[57] In our view, this reflects the intention of the legislature in enacting subsection (b) of the definition of "supply of services". It is intended to give a lien to a person supplying designs, plans, drawings or specifications where that work actually enhances the value of the land, even though an actual "improvement" as defined by the Act is never commenced. Effect can be given to this provision by presuming that the legislature intended that such work which enhances the value of the land is deemed to be an improvement, without the need to resort to the definition of that word in the Act. In other words, the subsection is self-contained, and effects an expansion of both definitions, but only in relation to the services specified therein.

[58] This more restrictive interpretation accords with the constraints imposed by Clarkson Co. v. Ace Lumber (supra). The general rule, therefore, is that services rendered in connection with a planned improvement which does not proceed are not lienable. An exception is created, however, for the preparation of designs, plans, drawings or specifications that, in themselves, enhance the value of the owner's interest in the land. Accordingly, it is only those specified services provided by the architects that can give rise to a lien.

[59] Applied to the facts of this case, this does not mean that services rendered in obtaining site plan approval would not give rise to a lien. Quite the contrary. Designs, plans, drawings and specifications are part and parcel of the site plan approval process, and constitute the supporting documentation for the application. If it is determined at trial that obtaining site plan approval enhanced the value of the owner's interest in the land, then all of the designs, plans, drawings and specifications that laid the groundwork for and supported the application would give rise to a lien.”

[22] Section 47(1) of the Act provides that the Court may, on motion, order the discharge of a lien and dismiss an action on any proper ground and subject to any terms and conditions that the court considers appropriate in the circumstances.

[23] Master Albert summarized the test on a motion under s. 47 of the Act in Butko v. Ratayeva, 2015 ONSC 1192 at paras 28-33:

28 It is well established that a motion brought under section 47 of the Act is akin to a summary judgment motion. The test that has been applied and that continues to apply is the test that applies to summary judgment motions brought in civil actions under rule 20.04. Prior to the rule amendment the test was whether there is a genuine issue for trial. Since the rule amendment the test is whether there is a genuine issue that requires a trial. The responding party is required to but his best foot forward and lead his best evidence in an effort to keep the lien claim (and in this case the action) alive. In effect the summary judgment test under rule 24.04 applies to motions brought pursuant to section 47 of the Act.

29 The issue is whether the restrictions on the powers available to a judge under rule 20.04(2.1) are available to the court (i.e. a master) exercising jurisdiction under section 47 of the Act. In my view they do. The Act does not incorporate rule 20.04 by reference. Rather the case law developed to provide that the test that is used to decide motions under rule 20.04 is the same test that should be applied on motions under rule 47 of the Act. Had the legislature sought to limit the discretion of the court under section 47 such that the powers used to exercise discretion are restricted to motions under section 47 of the Act heard by a judge but not by a master, then the Act would have so stated. Section 67 is clear: where the Act and the rules conflict, the Act prevails. I conclude that the powers available to the court to determine a motion under section 47 of the Act are not limited in their application to motions heard by a judge. A master may exercise the same powers on a motion under section 47 of the Act whether or not the master is presiding over a reference or a motion in an action that has not been referred.

30 Since the body of law in that regard developed the rule was amended in furtherance of the recent trend towards judicial efficiency, proportionality and the alternative and more expeditious resolution of disputes where appropriate. Rule 20.04 now reads:

20.04(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to the claim or defence ...

(2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

31 Cases decided since implementation of the amendments to rule 20.04 have reinforced the legislature's intention to allow for an expedited resolution of disputes where appropriate. In Combined Air Mechanical Services Inc. v Flesch the Court of Appeal considered the powers in rule 24.01(2.1) in explaining the full appreciation test on a summary judgment motion as follows:

"50 ... In deciding if these powers should be used to weed out a claim as having no chance of success or be used to resolve all or part of an action, the motion judge must ask the following question: can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of trial?

51. "We think this full appreciation test" provides a useful benchmark for deciding whether or not a trial is required in the interests of justice. In cases that call for multiple findings of fact on the basis of conflicting evidence emanating from a number of witnesses and found in a voluminous record, a summary judgment motion cannot serve as an adequate substitute for the trial process."

32 In the present case there is a relatively simple issue: did Mr. Butko supply services and materials to improve 10 Elderwood Drive from May 8, 2014 to June 16, 2014 for which he was not paid? The evidence, while contradictory, is not voluminous. Affidavits were filed by the main parties: Mr. Butko for the plaintiff and Mr. Radayev for the defendant. The defendant also filed a short affidavit from a real estate appraiser and a report from a handwriting expert. In my view a summary judgment motion is an adequate substitute for the trial process.

33 The Supreme Court of Canada opined on the revised summary judgment test in Hryniak v Mauldin, noting that the rules changed the test for summary judgment from whether the case presents a genuine issue for trial to whether there is a genuine issue that requires a trial. The court found that:

"43 ...The new rule, with its enhanced fact-finding powers, demonstrates that a trial is not the default procedure ...

"44. The new powers in rules 20.04(2.1) and (2.2) expand the number of cases in which there will be no genuine issue requiring a trial by permitting motion judges to weigh evidence, evaluate credibility and draw reasonable inferences.

"45 ...the amendments are designed to transform Rule 20 from a means to weed out unmeritorious claims to a significant alternative model of adjudication."

[24] Turning to a consideration of the relevant factors, it is not disputed that the Plaintiff is a “contractor” for the purposes of the Act, that the Confirmations constitute separate Contracts and that there was no certification or declaration of substantial performance. There is also no evidence or suggestion that the Contracts were abandoned. Therefore, pursuant to s. 31(2)(b) of the Act, in order for the Lien Claim to be valid, it must have been registered within 45 days of the completion of the Contract(s).

[25] It is also not disputed that the Plaintiff did not supply any services between early 2009 and February 17, 2012 or after February 12, 2012. Accordingly, in order to succeed on the Discharge Motion, the Cardillo Defendants must demonstrate that there is no genuine issue requiring a trial with respect to whether the Lien Claim was registered in a timely manner, specifically whether the Plaintiff completed a Contract(s) on February 17, 2012 such that the Lien Claim was registered within 45 days of February 17, 2012.

[26] The Cardillo Defendants and HIL submit that there is no evidence that the Plaintiff supplied any services after early 2009, including on February 12, 2012, further supported by the fact that the scope of work set out in the Contracts and covered by the Invoices and in turn the Lien Claim was completed by early 2009. The Plaintiff submits that its last supply of services was on February 12, 2012 when Mr. Romanov attended at the Property at the request of Mr. Trebucco with respect to raising the roof and that in any event, the factual background is sufficiently complex and requires a trial.

[27] The starting point for this analysis is Mr. Romanov’s evidence regarding his attendance at the Property on February 12, 2012. At paragraphs 9-11 of Mr. Romanov’s affidavit sworn December 20, 2013 (the “Romanov Affidavit”) he states:

“9. The plaintiff’s involvement in this project extended on and off continually over several years. Cardillo was constantly revising and re-examining the site potential, although he had no funds to proceed. The plaintiff was constantly requested by Cardillo to refrain from submitting invoices until funding could be secured. Attached hereto as Exhibit “C” are true copies of documentation showing the work was ongoing.

10. At the request of Mario Trebucco, a construction manager employed by Cardillo, the plaintiff attended the site on Friday, February 17, 2012, to ascertain the current exiting conditions of the site, as Cardillo wished to re-examine and proceed with the option of raising the roof of the existing building. Attached hereto as Exhibition “D” is a true copy of the page from my daytimer for the week of February 11, 2012 to February 17, 2012. Attached hereto as Exhibit “E” is a true of copy of Invoice No. 07136-01, dated March 1, 2012 and Invoice No. 04168-04, dated March 1, 2012, submitted to Cardillo.

11. At no time did Cardillo ever cancel any part of the overall project, nor ask for any close-out accounting. Cardillo advised that it was always his intent to move forward with the project, financing and marketing permitting, and we would be compensated as the project moved forward and funding became available.”

[28] There is an entry in Mr. Romanov’s calendar at 3:30-4:00 on February 17, 2012, for “Site review at York/Hess PF” (“PF” refers to Premier Fitness). A handwritten note beside this calendar entry reads as follows:

“requested info. from Mario Trebucco (PF Const. Manager re: raising of roof and move forward w Reno 905-746-1562 roof lifters “

[29] The following are excerpts from Mr. Romanov’s cross-examination on the Romanov Affidavit held on January 30, 2014 (the “Cross-Examination”):

251. …

A. …As I say, I believe the last actual contact was when I had Mario call me to, again, revisit this issue of raising the roof and asked me if I knew of, you know, some other way rather than doing a brand new structure on it.

And I discussed with him a company that we had worked with on other projects we had recently done, about working with a company called Roof Lifters, on City of Toronto, a couple of City of Toronto projects. And basically they would be able to jack up the existing structure, splice into the columns and this was a simpler, less expensive and more rapid way to raise the roof.

So, at that time he said, you know, John was looking still at doing this and if there was some way to move forward with it let, let him know and that’s when I went out to the site to check out the site. He had said that they were starting to proceed with something on the site, so I wanted to see what the situation was there before I called in the roof lifting company.

278. Q. So was this a meeting with somebody on the 17th of February at York Hess?

A. No. As I say, with the – because of the phone call that I received from Mario when he was requesting me to re-examine the file and look at raising the roof up with Roof Lifters and so on, he also stated that they were – had started doing some work there to get it prepared to, to go forward with this roof lifting exercise. So, in preparation of me talking to Roof Lifters and going – moving forward with examining this proposal to raise the roof I went out to the site to see what the conditions were at that point in time, to assess what, what could be done with the roof lifters and how we could expedite the situation.

279. Q. Did you….

A. So no, I didn’t meet with anybody, I went by myself.

280. Q. You went by yourself?

A. Yes.

281. Q. Okay. And so what exactly did you do when you were there?

A. Well, I went to the site. I mean, basically when I got to the site I looked to me pretty obvious that actually no work had been started. I just got out, inspected the building, looked around to refresh myself as to the structure of the building, the concerns – or the status of the building, and then I left.

282. Q. What – did you go up on the roof?

A. No, no.

283. Q. Did you go inside the building?

A. Building was locked.

284. Q. It wasn’t – the fitness club wasn’t open?

A. Well, the fitness club really had nothing to do with where we were raising the roof.

285. Q. That was in the single story area?

A. Well, it was in a two storey area, but was out at the far end. We were looking at raising the roof in the centre portion of the building.

286. Q. Yeah, which is where it’s one storey high?

A. Right.

287. Q. So you just looked at it from the exterior. And what – how was it that you were able to determine structural issues concerning the roof by exterior inspection?

A. Well, it wasn’t really that I wanted to see what the structural issues of the roof were. What I wanted to do was – Mario had said that they had started doing some work out there. I wanted to go out there and see what they were doing to see if there was any impact on how the roof lifting would occur and so on.

288. Q. Did Mario tell you tell you what this work was?

A. No. He just said that they had started work in preparation for moving forward on the concept of raising the roof.

289. Q. Did Mario ask you to go out and look at it?

A. No.

290. Q. This was your own initiative?

A. Correct.

291. Q. And how long in advance of the 17th of February attendance had Mario called you?

A. Well, according to my notations it would have been sometime in January of 2012….

309. Q. Well, did John Cardillo ask you to go there in February of 2012?

A. No. As I say, we spoke – I only spoke to Mario.

310. Q. And as you said, he didn’t ask you, it was your own initiative to go?

A. Correct.”

[30] Plaintiff’s counsel submits that Mr. Romanov did not attend the Property until February 17, 2012, because he is located in Toronto and therefore, planned his trip around other meetings in Hamilton.

[31] Mr. Romanov visited the Property again in late February 2012 to meet with Mr. Cardillo regarding the outstanding payments. Mr. Romanov states that Mr. Cardillo advised him that he would not be paying the outstanding amounts, therefore, the Plaintiff issued Invoice #2 and Invoice #3 on March 1, 2012 and registered the Lien Claim on March 9, 2012. There is no evidence that Mr. Romanov and Mr. Cardillo discussed the proposed roof raising or Mr. Romanov’s discussions with Mr. Trebucco. It is not clear from the record when Mr. Romanov learned of the Receivership, though it may have been through the media before February 17, 2012 or Mr. Cardillo may have advised him during their meeting in late February 2012.

[32] Mr. Trebucco called Mr. Romanov again on or about May 3, 2012 and left a voicemail message following up about Roof Lifters. Mr. Romanov presumed that Mr. Cardillo had not advised Mr. Trebucco that the Plaintiff had registered the Lien Claim, therefore, he did not return the call.

[33] Having considered the evidence and the relevant factors and circumstances, I cannot conclude that Mr. Romanov’s attendance and activities at the Property on February 17, 2012 constituted a supply of services to an improvement for the purposes of the Act.

[34] While Mr. Trebucco discussed the possibility of additional work with respect to raising the roof, he did not request the Plaintiff to do anything, including to commence any work or attend at the Property. There is also no evidence that Mr. Cardillo ever discussed raising the roof with Mr. Romanov. In any event, Mr. Romanov admits that nobody asked him to attend the Property and that he did so solely on his own initiative. When Mr. Romanov attended at the Property, the building was locked, nobody was there, he viewed it from outside and none of the work discussed by Mr. Trebucco appeared to have been started. In my view, there is no evidence that Mr. Romanov’s did anything with respect to his attendance on February 12, 2012 that would constitute a supply of services to an improvement with respect to the roof raising including anything which enhanced the value of the Property as required by s. 14 of the Act. At most, Mr. Trebucco and Mr. Romanov discussed potential work and the use of a third party, Roof Lifters and Mr. Romanov went to the Property on his initiative.

[35] Further, the terms of the Contracts do not support a conclusion that February 17, 2012 could be the date of completion. Specifically, the Lien Claim is for services supplied pursuant to the Contracts. Raising the roof at the Property is not part of the scope of work in the Contracts. Mr. Romanov admitted on cross-examination that: all work with respect to Invoice #2 (the Addition Project) was completed in 2007 and 2008; all work with respect to Invoice #3 (the Condo Project) was completed by early 2009; all work with respect to Invoice #1 had been completed previously; all of which encompasses all of the work under the Contracts (see Questions #406-#467 of the Cross-Examination). Therefore, when Mr. Romanov attended the Property on February 17, 2012, there was no remaining work left to be performed under the Contracts, and therefore, the Plaintiff cannot establish under s. 2(3) of the Act that the Contracts were completed on that date.

[36] Even if I had concluded that the Plaintiff supplied services to an improvement on February 17, 2012 with respect to raising the roof, any such services would have constituted a new contract. The Plaintiff did not issue an invoice or register a lien with respect to a new contract for services related to raising the roof. The Lien Claim is for the Contracts and the Invoices, the work which the Plaintiff admits was completed no later than January 2009, not the alleged work on February 17, 2012. Therefore, this leads to the conclusion that the Contracts were completed in early 2009 and as such, the Lien Claim expired in 2009 and was registered over 3 years too late.

[37] Having weighed the evidence and considered all of the relevant factors and circumstances, I further conclude that a trial is not required with respect to the timeliness of the Lien Claim such that summary judgment is appropriate. In my view, it is possible to gain a full appreciation of all issues on the Discharge Motion without a trial. The record is not voluminous and is comprised primarily of short affidavits and cross-examination transcripts from 2 witnesses. Further, most of the material facts are not in dispute, many admitted by the Plaintiff or confirmed and supported by undisputed documentary evidence.

[38] Therefore, I conclude that it is possible to weigh evidence, evaluate credibility and draw reasonable inferences. Having done so, and considering that the Plaintiff has put its best foot forward, for the reasons set out above, I am satisfied that the Lien Claim was not registered in a timely manner and expired prior to registration. Accordingly, it is appropriate that the Lien Claim and the Certificate be discharged and the Security be returned to HIL.

[39] With respect to the dismissal of this action, it is not apparent on the record before me whether it is appropriate in the circumstances to dismiss this action. Specifically, the Plaintiff may be advancing a contractual claim for payment of the outstanding amounts separate from the Lien Claim. While there may be issues with respect to how the action is pleaded or limitation periods, the parties did not address them and these issues are not presently before me. Accordingly, I decline to dismiss the action at this time. The parties may speak to these issues at a future attendance before me if necessary.

The Third Party Motion

[40] Given my conclusion on the Discharge Motion, it is not necessary for me to consider the Third Party Motion. However, I provide the following brief reasons.

[41] HIL seeks leave to be added as a Defendant to this action and to commence a Third Party Claim against Mr. Cardillo. Pursuant to s. 57(2) of the Act, subject to section 54, the court may at any time add or join any person as a party to the action. Under s. 57(1), persons who are served with notice of a trial are parties to an action. Section 55(2)(b) of the Act provides that a defendant may cross-claim against a co-defendant in respect of any claim that a defendant may be entitled to make against that person related to the making of the improvement.

[42] Section 56 of the Act states:

“The following rules govern third party claims:

1. Subject to paragraph 2, a person against whom a claim is made in a statement of claim, crossclaim, counterclaim or third party claim may join a person who is not a party to the action as a third party for the purpose of claiming contribution or indemnity from the third party in respect of that claim.

2. A person may only be joined as a third party with leave of the court upon a motion made with notice to the owner and all persons having subsisting preserved or perfected liens at the time of the motion, but such leave shall not be given unless the court is satisfied that the trial of the third party claim will not,

i. unduly prejudice the ability of the third party or of any lien claimant or defendant to prosecute a claim or conduct a defence, or

ii. unduly delay or complicate the resolution of the lien action.

3. The court may give such directions as it considers appropriate in the circumstances in respect of the conduct of third party claims.”

[43] Third party claims for amounts that may be payable to a lien claimant, such as HIL’s proposed Third Party Claim, are consistent with the kinds of claims contemplated by s. 56 of the Act (Domus Development Corp. v. York Condominium Corp. No. 82, 2001 CarswellOnt 1018 at paras. 10 and 19). It is also relevant to consider whether a party seeking leave to issue a third party claim will, if leave is denied, issue a separate claim that will in all likelihood be consolidated or joined to the main action (Art Nouveau Inc. v. Razumenko, 2011 ONSC 420 at para. 6).

[44] Having considered the relevant factors and circumstances, I am satisfied that, if necessary, it is reasonable and appropriate in the circumstances to grant leave for HIL to be added as a Defendant and to commence a Third Party Claim against Mr. Cardillo. Having posted the Security, HIL is a necessary and interested party which would be entitled to receive a trial notice. Further, the issues with respect to the Undertaking giving rise to the Third Party Claim are inextricably intertwined with the main action and are with respect to contribution and indemnity for any amounts HIL may be found liable to the Plaintiff.

[45] In my view, granting leave would not delay trial, particularly since HIL is prepared to go to trial without oral or documentary discovery nor would it complicate resolution of the lien action. In fact, it would avoid multiple proceedings and/or a motion by HIL for consolidation or joinder. In this regard, granting leave is also consistent with Rule 1.04 and represents the most efficient and cost effective way to proceed.

III. Order

[46] Order to go as follows:

i.) the Lien Claim and the Certificate are hereby discharged;

ii.) the Accountant of the Superior Court of Justice is authorized and directed to return the Security to HIL.

[47] If the parties cannot agree on the costs of these motions, they may file written submissions not to exceed 3 pages (excluding costs outlines). HIL and the Cardillo Defendants shall serve and file their submissions on or before December 7, 2018 and the Plaintiff on or before December 21, 2018. No reply submissions shall be filed without leave of the Court.

Released: November 6, 2018 Master M.P. McGraw