COURT FILE NO.: CV-19-5098 & CV-19-5417

DATE: 2021 04 20

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Surinder Kumar, Plaintiff

AND:

Mohan Singh, Defendant/Moving Party

BEFORE: Conlan J.

COUNSEL: Mr. R. Maki, for the Plaintiff

Mr. J. Macdonald, for the Defendant/Moving Party

HEARD: April 20, 2021

ENDORSEMENT

I. Introduction

The Motion

[1] This is an action under the former Construction Lien Act, R.S.O. 1990, chapter C.30, as amended (“legislation”).

[2] By Notice of Motion dated June 16, 2020, the Defendant, Mohan Singh (“Singh”), moves to discharge the Claim for Lien and the Certificate of Action registered by the Plaintiff, Surinder Kumar (“Kumar”), on September 4, 2019 and December 9, 2019, respectively.

[3] The property in question is a residential-townhouse condominium unit located in Mississauga, Ontario.

The History of the Motion

[4] The Motion materials were properly served on Kumar more than nine months ago, on July 10, 2020. To this date, besides a letter asking for an adjournment, Kumar has filed nothing in response thereto.

[5] The Motion was first in Court on December 21, 2020. At that time, Fitzpatrick J. reluctantly adjourned it, at, in His Honour’s words, “the very last moment request by the Plaintiff [Kumar] to adjourn this long outstanding motion”, with some costs ordered in favour of Singh.

[6] On January 6, 2021, Justice Fowler Byrne scheduled the Motion to be heard on April 20, 2021. Her Honour stated in the typed Endorsement, “[t]here shall be no adjournments of this motion”.

[7] On April 20, 2021, at 10:00 a.m., neither Kumar nor his counsel appeared at Court, via Zoom. Out of courtesy, the Court stood down until 10:40 a.m., when counsel for Kumar appeared and requested an adjournment. Apparently, Kumar suffered a flood at his house in December 2020 and is having trouble locating certain documents that may be relevant to the Motion.

[8] The adjournment request was denied. The alleged flood occurred before the Endorsement of Justice Fowler Byrne and, presumably, would have been known to Her Honour at Court on January 6, 2021. Further, having filed not a shred of materials in more than nine months, and then not appearing on time at Court on April 20th, this being a relatively simple Motion based on strict and unforgiving timelines provided for in the legislation itself, Kumar was in no position to ask this Court to depart from the express direction already mandated by my colleague, Justice Fowler Byrne.

II. Analysis and Conclusion

The Law of Summary Judgment

[9] The Court shall grant summary judgment if it is satisfied that there is no genuine issue requiring a trial: Rule 20.04(2)(a).

[10] Singh, as the moving party, has the burden of proof. The standard of proof is on a balance of probabilities.

[11] In determining whether there is a genuine issue requiring a trial, the Court shall consider the evidence adduced on the Motion and may weigh that evidence, evaluate credibility, and draw reasonable inferences: Rule 20.04(2.1). In addition, the Court may order a mini-trial, where oral evidence would be presented: Rule 20.04(2.2). Where the only genuine issue is one of law, the Court may decide the question and grant judgment accordingly: Rule 20.04(4).

[12] Of course, this Motion was effectively unopposed.

[13] The following principles may be gleaned from a careful review of the decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7.

[14] First, it is the principle of proportionality that ought to drive the Court’s decision on a request for summary judgment. There will be no genuine issue requiring a trial when the judge hearing the Motion is able to reach a fair and just determination on the merits.

[15] Second, what does that mean – a fair and just determination on the merits? It means (i) that the judge hearing the Motion is able to make the necessary findings of fact, (ii) is able to apply the law to the facts, and (iii) the process employed to do those things is a proportionate, more expeditious and less expensive means to achieve a just result (as compared to a trial). The judge must be able to have confidence in the conclusions reached on the Motion, otherwise, the case ought to proceed to trial.

[16] Third, the judge hearing the Motion should follow a two-stage procedure. Initially, consider only the evidence filed without regard to the expanded powers. Then, afterwards, if there appears to be a genuine issue requiring a trial, the judge may (but does not have to) weigh the evidence, evaluate credibility and draw reasonable inferences.

[17] Again, it must be repeated that this Motion proceeded in the absence of any materials filed on behalf of Kumar.

[18] Fourth, there is certainly a culture shift that was signalled by the decision of the Supreme Court of Canada referred to above. The Courts have been encouraged to, wherever possible, deal with matters expeditiously. Cases should proceed to trial only if they really have to. The summary judgment process can, where employed properly, increase access to affordable and timely justice. A trial should no longer be viewed as the default procedure.

The Law as Applied to Our Case

[19] There is good reason that this Motion is, effectively, unopposed.

[20] By Kumar’s own statements in his Claim for Lien and the Statement of Claim, the alleged contract was completed no later than August 5, 2019. The Claim for Lien was registered on September 4, 2019. The last day that the lien could have been preserved was September 19, 2019 (45 days after August 5th). Section 36(2) of the legislation provided that the lien had to be perfected within 45 days after September 19th, that is by November 3, 2019. It was not perfected by then; it was not perfected (through the registration of a Certificate of Action) until about five weeks later, on December 9, 2019.

[21] The lien not having been perfected on time, it expired. It cannot stand and must, therefore, be ordered discharged. This Court has no discretion to do otherwise. It is that simple.

[22] For these brief reasons, at Court on April 20, 2021, I granted the Motion. Paragraphs 1 and 2 contained in the prayer for relief are granted. As ordered by my colleague on January 6, 2021, the balance of the Motion shall be adjourned to the trial.

Costs

[23] Singh asks for $7000.00 in costs. Counsel for Kumar suggests that $2000.00 would be appropriate.

[24] Frankly, Kumar wasted the Court’s time today. The Motion, limited only to the validity of the lien and not full summary judgment on the action, as per Justice Fowler Byrne, should have been consented to.

[25] Costs in the amount of $5000.00, all-inclusive, are hereby ordered in favour of Singh, payable by Kumar forthwith. I would have ordered a greater sum, but for the straightforwardness of the Motion. Singh is free to pursue the remaining costs at trial.

(“Original signed by”)

Conlan J.

Date: April 20, 2021