COURT FILE NO.: CV-14-4247

DATE: 2019 01 18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: J.D. STRACHAN CONSTRUCTION LIMITED v. EGAN HOLDINGS INC. and EGAN FUNERAL HOME

BEFORE: Doi J.

COUNSEL: James R. Smith, for the Plaintiff

James S.G. Macdonald, for the Defendants

HEARD: December 19, 2018

ENDORSEMENT

Overview

[1] This is a motion by the Defendants, Egan Holdings Inc. and Egan Funeral Home (collectively the “Defendants”), to discharge and vacate the Plaintiff’s construction lien and certificate of action registered against title to their properties.[^1]

[2] The Defendants seek to discharge the Plaintiff’s lien for services and materials supplied before its certificate of substantial performance was published, and argue that its lien for this work expired as it was not perfected within the statutory period for doing so. They also seek to vacate the remaining lien (i.e., for the work that the Plaintiff supplied after the publication date) by making a payment into court.

[3] The Plaintiff opposes this motion. It relies on promissory estoppel to argue that the Defendants are estopped from asserting the limitation argument.

[4] The Defendants’ motion is granted. For the reasons that follow, I find that the Plaintiff’s pre-publication lien was not perfected in timely fashion and expired. I also find that promissory estoppel is not engaged on the facts of this case.

Facts

[5] On December 6, 2011, the Plaintiff contracted with the Defendants to provide certain additions and renovations to the Defendants’ property in Bolton.

[6] On May 13, 2014, the Plaintiff published its certificate of substantial performance. It then continued to supply services and materials until June 24, 2014. It claims to be owed at least $505,208.68 under its contract with the Defendants.

[7] After publishing its certificate on May 13, 2014, the Plaintiff issued only one invoice (#2994) for the post-publication work it performed. The invoice for this post-publication work, completed as of July 31, 2014, was $43,025.07 plus HST.

[8] On June 26, 2014, the Defendants’ law firm advised the Plaintiff that $289,545.15 in holdback funds would be released and paid to the Plaintiff that day. However, the funds were not paid. Later that day, the Plaintiff registered its claim for lien for $505,208.68 against title to the Defendants’ property. The parties agree that the lien was registered and validly preserved on this date.

[9] On June 30, 2014, the Defendants’ law firm again advised the Plaintiff that $289,545.15 in holdback funds would be paid. Again, the funds were not paid.

[10] On August 1, 2014, Don Scott, the Defendants’ architect and payment certifier for the project, spoke with Don Hutchinson, President of the corporate Plaintiff, J.D. Strachan Construction Limited. Mr. Scott advised that Paul Egan, principal of the moving party Defendants, had agreed to pay the Plaintiff what it was owed. All that remained was to meet in person to finalize the details. Mr. Hutchinson agreed to meet on August 12, 2014 with Mr. Scott and Mr. Egan.

[11] Mr. Scott also told Mr. Hutchinson that the “only reason” the Defendants did not pay the $289,545.15 holdback in June 2014 was because of the Plaintiff’s lien.

[12] Relying on Mr. Scott’s promise and representations made on behalf of the Defendants, Mr. Hutchinson formed the view that the payment dispute between the parties had resolved. Accordingly, after agreeing to meet to finalize the details, Mr. Hutchinson decided not to take further steps to perfect the Plaintiff’s lien.

[13] On August 12, 2014, Mr. Hutchinson met with Mr. Scott and Mr. Egan to discuss the payment terms. During the meeting, Mr. Egan agreed that the Defendants would pay the Plaintiff on the unpaid certificates of payment (totaling $380,272.43), and also provide the Plaintiff with a promissory note ($115,350.40) payable in equal instalments over 24 months. At Mr. Egan’s request, the Plaintiff’s solicitor drafted minutes of settlement to memorialize the terms. The minutes expressly provide for the Plaintiff to discharge its lien once payment is made on the outstanding certificates. The Plaintiff delivered the minutes to the Defendants for execution.

[14] During the August 12, 2014 meeting, Mr. Egan advised Mr. Hutchinson that a property in Orangeville belonging to the Defendants would be listed for sale, from which the proceeds would be used to pay the Plaintiff. This representation was not included in the minutes of settlement.

[15] Thereafter, the Defendants did not execute the minutes of settlement and did not make the promised payment after selling the Orangeville property.

[16] On September 17, 2014, the Plaintiff issued a statement of claim and registered a certificate of action on title to the property.

[17] The parties agree that the Plaintiff validly perfected its lien for services and materials that were supplied after the certificate of substantial performance was published, and agree that its lien for post-publication work, valued at $43,025.07 plus HST, has not expired; Mill & Lumer v. JJ’s Hospitality, 1993 8584 (ON SC), [1993] O.J. No. 359 (Gen.Div.) at paras. 26- 27.[^2]

Motion to Discharge Pre-Publication Lien and Vacate Post-Publication Lien

[18] The parties agree that this proceeding is governed by the former Construction Lien Act, R.S.O. 1990, c.C.30, as amended (the “Act”).[^3] The relevant provisions of the Act that apply are mentioned below and reproduced in the Appendix to this Endorsement.

[19] The Defendants seek an order under s. 47 of the Act to discharge the Plaintiff’s lien for work completed prior to the publication of the certificate of substantial completion.[^4] They also seek an order under s. 44 of the Act to vacate the Plaintiff’s lien for post-publication work upon paying into court the amount of $60,772.91 representing the value of the remaining claim, inclusive of HST and costs. Under s. 67(1) of the Act, the court is required to adopt procedures that are “as far as possible of a summary character, having regard to the amount and nature of the liens in question.”

[20] In Hyrniuk v. Mauldin, 2014 SCC 7, the Supreme Court of Canada supported (at para. 49) the use of summary proceedings in cases where the trier of facts is able to reach a fair and just determination on the merits of the motion by:

(a) making the necessary findings of fact,

(b) applying the law to the facts, and

(c) applying a more proportionate, more expeditious and less expensive means to achieve a just result.

[21] The test on a summary proceeding under s. 47 is whether the issues raised require a trial or whether the court is able to make findings of fact necessary to reach a fair and just determination of the motion; Diamond Drywall Contracting Inc. v. Ikram, 2016 ONSC 5411 (Master) at paras. 4-9, citing Beaver Materials Handling Co. v. Hejna, 2005 23127 (ON SC), [2005] O.J. No. 2733 (S.C.J.) and Dominion Bridge Inc. v. Noell Stahl, 1999 CarswellOnt 5067 (S.C.J.).

[22] A summary proceeding is appropriate if the evidence gives the motion judge confidence that she/he can find the necessary facts and apply the relevant legal principles to resolve the dispute; Hryniak at para. 50. If the moving party produces evidence on which the court could conclude that there is no genuine issue of material fact requiring a trial, the responding party must either refute or counter the moving party’s evidence or risk a summary judgment; Crawford v. Toronto (City), 2018 ONSC 1729 at para. 38. Parties on a summary judgment motion must put their best evidence forward. A summary proceeding is not defeated by vague references as to what may be adduced if the matter goes to trial. A court hearing a summary proceeding is entitled to assume that the record contains all of the evidence that would be introduced by both parties at trial. A summary proceeding will be in the interests of justice if it will lead to a fair and just result and serve the goals of timeliness, affordability and proportionality, in light of the litigation as a whole; Hryniak at para. 66.

[23] From the evidentiary record, I find that there is no genuine issue requiring a trial. I am satisfied that there is more than sufficient evidence to fairly and justly adjudicate the lien dispute. I also find that the summary process provides a timely, affordable and proportionate procedure for the parties given the nature of this litigation matter.

The Period to Perfect the Plaintiff’s Pre-Publication Lien

[24] Under s. 31(2)(a)(i) of the Act, the time to perfect a claim for lien is 45 days from the last date that it could have been preserved. In this case, the period to perfect ended on August 11, 2014 (i.e., 45 days from June 27, 2014, being the last day when the Plaintiff could have preserved the lien, which was 45 days from May 13, 2014 when the certificate of substantial performance was published).

[25] On September 17, 2014, the Plaintiff sought to perfect the lien by registering its certificate of action. This was after the period prescribed under s. 31(2)(a)(i), which ended on August 11, 2014. As such, the Defendants argue that the Plaintiff did not perfect its lien in timely fashion. It is settled that a lien arises when the statutory conditions are met and the procedure for creating and preserving a lien is strictly construed; Clarkson v. Ace Lumber, 1963 4 (SCC) at p. 114; Ken Gordon Excavating v. Edstan Construction, 1984 80 (SCC), [1984] 2 S.C.R. 280 at 296. The periods under the Act to preserve and perfect liens are strictly construed; Prekas v. Patrikakis, 2004 43917 (ONSC) at para 16; Michelin Group Inc. v. Forsan Construction Ltd., 1994 7268 (ONSC) at para 10.

[26] Based on the foregoing, I have no hesitation in finding that the Plaintiff did not perfect its lien within the period prescribed under s. 31(2)(a)(i) of the Act. As such, the lien for work completed prior to the publication of its certificate of substantial performance expired.

Promissory Estoppel

[27] Relying on promissory estoppel, the Plaintiff argues that the Defendants are estopped from relying on the limitation period under s. 31(2)(a)(i) of the Act.

[28] The doctrine of promissory estoppel is well established. Its application is highly fact specific. Writing for the Supreme Court in Maracle v. Travellers Indemnity Co. of Canada, 1991 58 (SCC), [1991] 2 S.C.R. 50, Sopinka J. explained (at p. 57):

The party relying on the doctrine must establish that the other party has, by words or conduct, made a promise or assurance which was intended to affect their legal relationship and to be acted on. Furthermore, the representee must establish that, in reliance on the representation, he acted on it or in some way changed his position. In John Burrows Ltd. v. Subsurface Surveys Ltd., 1968 81 (SCC), [1968] S.C.R. 607, Ritchie J. stated, at p. 615:

It seems clear to me that this type of equitable defence cannot be invoked unless there is some evidence that one of the parties entered into a course of negotiation which had the effect of leading the other to suppose that the strict rights under the contract would not be enforced, and I think that this implies that there must be evidence from which it can be inferred that the first party intended that the legal relations created by the contract would be altered as a result of the negotiations.

This passage was cited with approval by McIntyre J. in Engineered Homes Ltd. v. Mason, 1983 142 (SCC), [1983] 1 S.C.R. 641, at p. 647. McIntyre J. stated that the promise must be unambiguous but could be inferred from circumstances.

[29] Maracle involved an insurance claim dispute. In that case, Sopinka J. accepted (at pp. 58-59) that promissory estoppel could prevent an insurer from relying on a limitation period where there has been a promise to not rely on it. An insurer’s admission of liability and promise to pay is a factor from which a court may infer such a promise. However, for such an admission or promise to extend to a limitation period, Sopinka J. held (at p. 58) that something more than the admission itself is needed:

An admission of liability is frequently made in the course of settlement negotiations. This is often a preliminary step in order to clear the way to enter into a discussion as to quantum. Indeed, when an offer to pay a stated amount is made by one party to the other, an admission of liability is usually implicit. In this type of situation, the admission of liability is simply an acknowledgment that, for the purpose of settlement discussions, the admitting party is taking no issue that he or she was negligent, liable for breach of contract, etc. There must be something more for an admission of liability to extend to a limitation period. The principles of promissory estoppel require that the promissor, by words or conduct, intend to affect legal relations. Accordingly, an admission of liability which is to be taken as a promise not to rely on the limitation period must be such that the trier of fact can infer from it that it was so intended. There must be words or conduct from which it can be inferred that the admission was to apply whether the case was settled or not, and that the only issue between the parties, should litigation ensue, is the issue of quantum. Whether this inference can be drawn is an issue of fact. If this finding is in favour of the plaintiff and the effect of the admission in the circumstances led the plaintiff to miss the limitation period, the elements of promissory estoppel have been established. [emphasis added]

See also Nasr Hospitality Services Inc. v. Intact Insurance, 2018 ONCA 725 per Brown J.A. at paras 53 to 56.

[30] Promissory estoppel has been applied in construction lien actions to preclude a party from relying on a limitation period. While some of these cases pre-date Maracle, they all are consistent with the principles set out in that case. Specifically, they require something beyond an admission of liability or an agreement to pay for the purpose of engaging promissory estoppel to estop a party from asserting a limitation period.

[31] In Valo v. 430327 Ontario Inc. (1982), 1982 1857 (ON SC), 36 O.R. (2d) 439 (Master), the court found that a defendant’s conduct may cause him to be estopped from asserting that a claim for lien was registered out of time.[^5] Referring to Odgers on Pleadings and Practice (12th ed., 1939), p. 207, Master Peppiatt noted (at p. 441):

If A by words or conduct induces B to believe that a certain state of things exists, and B in that belief acts in a way in which he would not have acted unless he so believed and is thereby prejudiced, then A cannot in any subsequent proceeding between himself and B or anyone claiming under B be heard to deny that that state of things existed.

[32] The defendant in Valo had asked for more time to pay the moneys owing. When the claimant expressed concern that his lien rights were about to expire, the lawyer acting as the defendant’s agent said that the parties could mutually agree to extend the time for payment without affecting the time to register the lien. His statement was wrong in law as the statutory time for payment could not be mutually extended. However, believing it to be true, the claimant did not register its claim for lien until after the statutory period for doing so had expired. Accordingly, the learned master applied the doctrine of estoppel as the defendant’s statement gave an assurance regarding the limitation period which the claimant detrimentally relied upon in altering his legal position.

[33] Estoppel also was applied in Soo Mill & Lumber Co. v. 499812 Ontario Ltd., [1984] O.J. No. 2418 (H.C.) to estop a defendant from arguing that a claim for lien was untimely.[^6] During settlement talks in that case, the defendants expressly told the claimant “not to lien the job” in exchange for receiving a series of cheques payable over a period of time. The first cheque was deposited and honoured. But after the period to register a lien claim had expired, the defendants stopped payment on its second cheque and halted further payments. The claimant then registered its lien claim after the period to do so had expired. Adopting the reasoning in Valo (at paras. 55-56), Stortini L.J.S.C. held that the defendants in Soo Mill were estopped by their conduct from arguing that the lien was untimely after they expressly told the plaintiff to not register its lien in exchange for the promised payments. By making this request and giving the post-dated cheques, the defendants had induced the plaintiff to not register its claim until the time to do so had lapsed.

[34] Relying on Valo and Soo Mill, Plaintiff’s counsel urged me to find that the Defendants are estopped from relying on the limitation period under s. 31(2)(a)(i) based on their promise to pay made on August 1, 2014 as well as their subsequent representations made during their August 12, 2014 meeting.

[35] The Defendants state that promissory estoppel does not apply as they did not make promises or assurances intended to cause the Plaintiff to change its legal position for perfecting the lien. They did not ask the Plaintiff to not perfect its lien, or promise to waive or not rely upon the limitation period to do so.

[36] Mr. Hutchinson made inquiries after the Defendants failed to pay the promised holdback amount to the Plaintiff. In response, Mr. Scott advised him on August 1, 2014 that Mr. Egan had agreed to pay the Plaintiff what it was owed. During this conversation, Mr. Scott also advised that Mr. Egan wanted to meet in person to finalize the details before making payment. Mr. Hutchinson responded by agreeing to meet with Mr. Egan and Mr. Scott on August 12, 2014. Mr. Scott further advised Mr. Hutchinson that the lien was the reason why the Defendants did not pay the holdback earlier in June 2014.

[37] Based on this, Plaintiff’s counsel urged me to find that the parties contemplated the lien when Mr. Scott advised of the Defendants’ promise to pay on August 1, 2014. While this may be true, there is simply no evidence that the Defendants indicated that they would not enforce or waive the limitation period for perfecting the lien, or that they otherwise asked the Plaintiff to not perfect the lien. For promissory estoppel to apply, there must be an intent by the promisor, as objectively determined, to affect legal relations by giving the promise or assurance. From this evidence, I am unable to find that the Defendants’ words or conduct were sufficient to engage promissory estoppel.

[38] It is clear that Mr. Hutchinson was influenced by the promise to pay that Mr. Scott conveyed on August 1, 2014 for the Defendants. It caused Mr. Hutchinson to believe, perhaps overenthusiastically, that payment would be forthcoming after the August 12, 2014 meeting to sort out the details. It also led Mr. Hutchinson to decide not to perfect the Plaintiff’s lien at that time. However, as it stood on August 1, 2014, the Defendants’ promise to pay was unclear. The parties still needed to agree on the terms for payment, which they did during their meeting on August 12, 2014 (i.e., after the period to perfect the lien had lapsed). Given this uncertainty, I have difficulty finding that the promise to pay made on August 1, 2014 was capable of objectively giving rise to an expectation of a binding nature that engages promissory estoppel in respect of the limitation period at issue.

[39] Even if the Defendants had admitted liability on their debt to the Plaintiff and promised to pay it at some future time, this alone would not be sufficient to engage promissory estoppel. As explained in Maracle, more is needed. There is some evidence that Mr. Scott and Mr. Hutchinson generally discussed the lien. However, there is no evidence that the parties addressed the statutory period to perfect the lien, or agreed for the lien to not be perfected, or understood that the Defendants would not rely on the limitation period. There is no evidence that the Defendants knew or expected that the Plaintiff would not proceed to perfect its lien based on their conversations. At most, the evidence shows only that the parties knew that the Plaintiff had preserved its lien. Having carefully considered the evidence, I find that the Defendants did not make any representations, either by words or conduct, that would have led the Plaintiff to expect that strict legal rights and obligations under s. 31(2)(a)(i) of the Act would not be enforced.

[40] Based on the above, it is clear that the facts in Valo and Soo Mill are distinguishable from those in the immediate case. Here, the Defendants made a promise to pay without any further requests or representations regarding the limitation period, which was not discussed or addressed. Valo and Soo Mill both involved promises to pay that were accompanied by explicit representations that directly contemplated the subject liens and, therefore, do not support the Plaintiff’s position on estoppel based solely on the Defendants’ promise to pay.

[41] At their meeting on August 12, 2014 (i.e., after the period to perfect had expired), the parties agreed to remove the lien once the Defendants made payment to the Plaintiff. Relying on the discussion at this meeting, Plaintiff’s counsel invited me to find a course of negotiations by the parties which contemplated the lien and amounted to a waiver of the limitation period by the Defendants. However, there is no evidence that the parties ever discussed or addressed the limitation period to perfect the lien during these negotiations. More importantly, the limitation period had expired by the August 12, 2014 meeting. To apply promissory estoppel so that a party is estopped from relying on a limitation period, the promise must be made before the limitation period has expired when the parties still have an enforceable legal relationship; B. MacDougall, Estoppel (2012) at p. 358 and Law Society v. Sephton, [2004] EWCA Civ 1627 at para. 130, upheld on other grounds, [2006] UKHL 22.

[42] I further observe that the parties in this case are sophisticated business entities who are able to look after their own interests. The Plaintiff also had been well aware of its earlier challenges in obtaining payment from the Defendants that originally led it to preserve its lien. It had ample time and opportunity to perfect its lien within the prescribed period. It made a business decision not to do so.

[43] Based on the foregoing, I am satisfied that promissory estoppel is not engaged and the Defendants are not estopped from arguing that the Plaintiff’s lien for pre-publication services and materials expired under s. 31(2)(a)(i) of the Act.

Conclusion

[44] For the reasons set out above, there is no genuine issue for trial. The motion is granted.

[45] From the evidence on this motion, I have no hesitation in finding that the Plaintiff’s lien for pre-publication work expired on August 11, 2014 and the Defendants are not estopped from relying on the limitation period.

[46] The Plaintiff’s claim for lien is discharged in respect of work completed prior to the publication of the Certificate of Substantial Performance on May 13, 2014. The lien claim is reduced from $505,208.68 to $43,025.07 plus HST.

[47] Upon the Defendants paying into court $60,772.91 (i.e., $43,025.07 as the post-publication lien claim amount, $5,593.26 as HST, and $12,154.58 as 25% to security for costs), the lien claim and certificate of action may be vacated from title to the Properties.

[48] The Plaintiff’s claim of $505,208.68 may continue as a claim in contract.

[49] If the parties are unable to agree on costs for this motion, the Defendants may deliver cost submissions of not more than two pages (excluding their costs outline and any offer to settle) within 15 days from the release of this endorsement. The Plaintiff may deliver its cost submissions on the same terms within 15 days thereafter.

Doi J.

DATE: January 18, 2019

Appendix

Applicable Legislative Provisions

Construction Lien Act, R.S.O. 1990, c.C.30, as amended

Expiry of liens

31 (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.

Contractor’s liens

(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 60-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 or terminated.

Separate liens when ongoing supply

(4) Where a person has supplied services or materials to an improvement on or before the date certified or declared to be the date of the substantial performance of the contract and has also supplied, or is to supply, services or materials after that date, the person’s lien in respect of the services or materials supplied on or before the date of substantial performance expires without affecting any lien that the person may have for the supply of services or materials after that date.

What liens may be perfected

36 (1) A lien may not be perfected unless it is preserved.

Expiry of preserved lien

(2) A lien that has been preserved expires unless it is perfected prior to the end of the forty-five-day period next following the last day, under section 31, on which the lien could have been preserved.

How lien perfected

(3) A lien claimant perfects the lien claimant’s preserved lien,

(a) where the lien attaches to the premises, when the lien claimant commences an action to enforce the lien and, except where an order to vacate the registration of the lien is made, the lien claimant registers a certificate of action in the prescribed form on the title of the premises; or

(b) where the lien does not attach to the premises, when the lien claimant commences an action to enforce the lien.

Vacating lien by payment into court Without notice

44 (1) Upon the motion of any person, without notice to any other person, the court shall make an order vacating,

(a) where the lien attaches to the premises, the registration of a claim for lien and any certificate of action in respect of that lien; or

(b) where the lien does not attach to the premises, the claim for lien, where the person bringing the motion pays into court, or posts security in an amount equal to, the total of,

(c) the full amount claimed as owing in the claim for lien; and

(d) the lesser of $50,000 or 25 per cent of the amount described in clause (c), as security for costs.

On payment in of reasonable amount

(2) Upon the motion of any person, the court may make an order vacating the registration of a claim for lien, and any certificate of action in respect of that lien, upon the payment into court or the posting of security of an amount that the court determines to be reasonable in the circumstances to satisfy the lien.

General power to discharge lien

47. (1) Upon motion, the court may,

(a) order the discharge of a lien;

(b) order that the registration of,

(i) a claim for lien, or

(ii) a certificate of action,

or both, be vacated;

(c) declare, where written notice of a lien has been given, that the lien has expired, or that the written notice of the lien shall no longer bind the person to whom it was given; or

(d) dismiss an action, upon any proper ground and subject to any terms and conditions that the court considers appropriate in the circumstances.

Procedure generally

Summary procedure

67. (1) The procedure in an action shall be as far as possible of a summary character, having regard to the amount and nature of the liens in question.

Interlocutory steps

(2) Interlocutory steps, other than those provided for in this Act, shall not be taken without the consent of the court obtained upon proof that the steps are necessary or would expedite the resolution of the issues in dispute.

Application of rules of court

(3) Except where inconsistent with this Act, and subject to subsection (2), the Courts of Justice Act and the rules of court apply to pleadings and proceedings under this Act.

COURT FILE NO.: CV-14-4247

DATE: 2019 01 18

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: .D. STRACHAN CONSTRUCTION LIMITED v. EGAN HOLDINGS INC. and EGAN FUNERAL HOME

COUNSEL: James R. Smith, for the Plaintiff

James S.G. Macdonald, for the Defendants

ENDORSEMENT

Doi J.

DATE: January 18, 2019

[^1]: The properties are described as follows: (i) BLK G PL 987 BOLTON; LT 7 CON 7 ALBION; CALEDON, municipally known as 203 Queen Street South, Caledon, Ontario, PIN 14355-0184 LT; and (ii) PT LT F BLK 1 PL BOL7 BOLTON PT 1, 43R14866; CALEDON, municipally known as 191 Queen Street South, Caledon, Ontario, PIN 14355-0182 LT.

[^2]: Subsection 31(4) of the Act provides that a person who supplies materials and services both before and after the certificate publication date may have their lien for pre-publication work expire without affecting any lien that person may have for the supply of materials and services after that date; see also Carosi Construction Limited and the Barrie & District Association for People with Special Needs, 1997 CarswellOnt 2063 at para 5.

[^3]: On July 1, 2018, the former Construction Lien Act, R.S.O. 1990, c.C. 30, was amended by the Construction Lien Amendment Act, 2017, S.O. 2017, c.24 (Bill 142), by which the Construction Lien Act was re-named to become the Construction Act, R.S.O., 1990, c. C.30. Subsection 87.3(1) (Transition) of the current Construction Act provides: Transition, Construction Lien Amendment Act, 2017 87.3 (1) This Act, as it read immediately before the day subsection 2 (2) of the Construction Lien Amendment Act, 2017 came into force, continues to apply with respect to an improvement if, (a) a contract for the improvement was entered into before that day, regardless of when any subcontract under the contract was entered into; (b) a procurement process, if any, for the improvement was commenced before that day by the owner of the premises; or (c) the premises is subject to a leasehold interest, and the lease was first entered into before that day. [emphasis added] The parties entered into their contract on December 6, 2011. As they did so before the amendments to the Construction Act came into force on July 1, 2018, the provisions of the former Construction Lien Act apply to this matter.

[^4]: On a motion under s.47 of the Act, the court may discharge a lien, vacate the registration of a claim for lien and/or a certificate of action, declare that a lien has expired or shall no longer be binding, and dismiss an action upon any proper ground.

[^5]: The reasoning in Valo was applied more recently in TRG Developments Corp. v. Kee Installations Ltd., 2014 ABQB 287 by Master Schlosser (in Chambers) at para. 24, and cited with approval by Hurley L.J.S.C. in Irving Oil Ltd. v. M.D.G. Holdings (Bay) Ltd., 1985 CarswellOnt 956 (H.C.J.) at para. 12.

[^6]: See also TRG Developments, supra, in which Master Schlosser adopted (at paras. 25 and 35) the estoppel reasoning by Stortini L.J.S.C. in Soo Mill.