COURT FILE NO.:.CV-19-20/CV-19-24
DATE: 20220420
SUPERIOR COURT OF JUSTICE – ONTARIO
BETWEEN: LOUIS JONES CONSTRUCTION LTD., Plaintiff
-and-
JONATHAN ROCQUE c.o.b. as J-ROCK CONSTRUCTION, ROXANNE ROCQUE and CAISSE POPULAIRE TRILLIUM INC., Defendants (Moving Party)
BEFORE: Madam Justice Heather J. Williams
COUNSEL: Nadia J. Authier, for the Plaintiff
Pierre Champagne and Ginger Warner for Roxanne Rocque
BETWEEN: SUNBELT RENTALS OF CANADA INC., Plaintiff
-and-
LOUIS JONES CONSTRUCTION LTD., ROXANNE ROCQUE and CAISSE POPULAIRE TRILLIUM INC., Defendants
BEFORE: Madam Justice Heather J. Williams
COUNSEL: Eric Gionet and Andrew Wood, for the Plaintiff
Pierre Champagne and Ginger Warner for Roxanne Rocque
HEARD: December 17, 2021-L’Orignal
endorsement
[1] The moving party, Roxanne Rocque, has brought motions in two actions to discharge liens registered against her property by Louis Jones Construction Ltd. (L’Orignal action # 19-20) and Sunbelt Rentals of Canada Inc. (L’Orignal action #19-24) and to vacate the associated claims for lien and/or certificates of action.
[2] The motions were brought under s. 47 of the Construction Lien Act, R.S.O. 1990, c. 30.[^1]
Factual background
[3] Ms. Rocque owns a residential property on an island in the Ottawa River in Rockland, Ontario.
[4] Ms. Rocque says she started a procurement process for some renovation work in November 2016.
[5] Ms. Rocque says that in mid-November she entered into an oral contract with Jonathan Rocque, who carries on business at J-Rock Construction. Jonathan Rocque is Ms. Rocque’s nephew.
[6] The work on Ms. Rocque’s property was to include winterizing the underside of the house, replacing the kitchen and living room ceilings, insulating the attic, remodeling the entrance, adding a storage room, redoing the kitchen, replacing some of the electrical work and installing doors and moldings.
[7] Ms. Rocque says J-Rock did the work from mid-November 2016 to mid-November 2018.
[8] Ms. Rocque’s property was flooded on May 7, 2017.
[9] In November 2018, J-Rock hired Louis Jones Construction Ltd. to do some excavation and foundation work. Louis Jones leased equipment from Sunbelt Rentals of Canada Inc., including a loader described as a “Bobcat track skidsteer.”
[10] The parties agree that Louis Jones stopped working on the property on December 19, 2018.
[11] Louis Jones says it left the Bobcat on the property so that J-Rock could continue to use it.
[12] The parties do not agree about when J-Rock asked Louis Jones to remove the Bobcat from Ms. Rocque’s property. J-Rock says it did so on December 21, 2018. Louis Jones says the request to pick up the Bobcat was not made until January 2, 2019. Louis Jones asked Sunbelt to pick up the Bobcat on January 2, 2019. Sunbelt picked up the Bobcat on January 3, 2019.
[13] Louis Jones registered a lien against Ms. Rocque’s property on February 15, 2019 for $97,635.59.
[14] Sunbelt registered a lien against the property on February 19, 2019 for $19,412.43.
The parties’ positions
Ms. Rocque
[15] Ms. Rocque argues that Louis Jones’ and Sunbelt’s liens were not preserved within the applicable statutory time limit.
[16] Ms. Rocque says that Louis Jones was hired as a subcontractor under a November 2016 oral contract she had entered into with J-Rock. Ms. Rocque says she and J-Rock entered into their contract following a procurement process she began in November 2016.
[17] The “old” Construction Lien Act, and not the “new” Construction Act, applies to contracts and procurement processes that pre-date July 1, 2018. Ms. Rocque argues that, consequently, Louis Jones and Sunbelt were required to preserve their liens within 45 days of the last day they provided services or materials to the improvement to her property. Ms. Rocque says the last day Louis Jones or Sunbelt provided services or materials was December 22, 2018 and that both liens are, therefore, out of time.
Louis Jones
[18] Louis Jones says the “new” Construction Act applies to its lien and that it had 60 days to preserve the lien, and not 45. Louis Jones says regardless of which statue applies, its lien was preserved in time. Louis Jones says its lien was registered within 44 days of January 2, 2019, the day it says J-Rock first asked it to pick up the Bobcat and, therefore, the last day it (Louis Jones) supplied services or materials to the project. Louis Jones also says its lien was registered within 60 days of December 22, 2018, the day Ms. Rocque argues Louis Jones last supplied materials to the project. Louis Jones says its lien could only be out of time if the “old” Construction Lien Act is found to apply and December 22, 2018 is found to be the day it last supplied materials to the improvement.
Sunbelt
[19] Sunbelt supports Louis Jones’ position on the motion.
[20] Sunbelt’s lien was registered 45 days after January 2, 2019. (Although Sunbelt’s lien was registered four days after Louis Jones’ lien, it is considered to have been registered only one day later, because of the Family Day holiday on February 18, 2019.)
[21] Sunbelt says it knew nothing about a request to pick up the Bobcat before January 2, 2019. It says on January 2, 2019, Louis Jones asked it to pick up the Bobcat and it did so the following day.
The test on motions under s. 47 of the Construction Lien Act
[22] A motion to discharge a lien under s. 47 of the Construction Lien Act and a summary judgment motion are analogous and the underlying test, whether there is “a triable issue in respect to any of the bases on which discharge of the lien is sought, is the correct test to apply.” (Maplequest (Vaughan) Developments. Inc. v. 2603774 Ontario Inc., 2020 ONSC 4308, at para. 25 (Div. Ct.)) However, the two motions are procedurally different. (Maplequest, supra.) The “enhanced powers” available to a judge on a summary judgment motion Rule 20.04(2.1) and (2.2) are not available on a motion under s. 47. (R&V Construction Management Inc. v. Baradaran, 2020 ONSC 3111, at para. 61 (Div. Ct.))
The issues
[23] The issue is whether Louis Jones’ and Sunbelt’s liens should be discharged on this motion on the basis that they were not preserved in time.
[24] To decide the issue, I must decide at least the first of the following issues:
Is there a triable issue in respect of whether the Construction Lien Act (with its 45-day preservation deadline) or the Construction Act (with its 60-day preservation deadline) applies to the lien claimants’ liens?
Is there a triable issue in respect of when Louis Jones and Sunbelt last supplied services and materials to the improvement to Ms. Rocque’s property?
Issue #1: Is there a triable issue in respect of whether the Construction Lien Act (with its 45-day preservation deadline) or the Construction Act (with its 60-day preservation deadline) applies?
[25] Section 87.3(1) of the Construction Act provides that the provisions of the Construction Lien Act apply to an improvement if a contract for the improvement was entered into before July 1, 2018, or a procurement process for the improvement was commenced before July 1, 2018 by the owner of the premises.
[26] Section 1(1) of the new act defines “improvement” as follows:
“improvement” means, in respect of any land,
(a) any alteration, addition or capital 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.
Was a contract for the improvement entered into before July 1, 2018?
[27] The parties agree that the relevant date for purposes of s. 87.3(1) is the date of the contract between Ms. Rocque and J-Rock and that the dates of the subcontracts between J-Rock and Louis Jones and between Louis Jones and Sunbelt are immaterial. (Construction Act, s. 87.3(2); Crosslinx Transit Solutions Constructors v. Form & Build Supply (Toronto) Inc., 2021 ONSC 3396, at paras. 4, 23 and 24.)
[28] Ms. Rocque argues that all work on her property, including Louis Jones’ excavation and foundation work in late 2018, was done under the umbrella of her November 2016 contact with J-Rock.
[29] For the following reasons, I am unable to determine, on this motion, whether the November 2016 contract was the contract between Ms. Rocque and J-Rock under which J-Rock subcontracted with Louis Jones for excavation and foundation work:
• The November 2016 contract was not in writing.
• The affidavits of Ms. Rocque and Jonathan Rocque listed the improvements Ms. Rocque expected J-Rock to complete under their contract, but these improvements did not obviously include any improvements to the foundation of the property.
• There was no evidence about when the improvements J-Rock undertook to complete under the November 2016 contract were completed.
• After May 23, 2017, Ms. Rocque made no further payments to J-Rock until October 2018. On October 9, 2018, Ms. Rocque gave J-Rock a $30,000 cheque, described in a J-Rock invoice to Ms. Rocque dated December 31, 2018 as a “deposit.” Ms. Rocque had given J-Rock a deposit of $15,000 on November 14, 2016, when they had entered into their oral contract at that time. Was the October 2018 deposit evidence of a new contract for improvements necessitated by the May 2017 flood?
• The scope of the work Louis Jones undertook to complete was not identified until A. Dagenais & Associates Inc. completed design drawings in August 2018.
[30] I cannot be satisfied, based on the record before me, that the excavation and foundation work Louis Jones was hired to complete was contemplated in November 2016 and did not only become necessary six months later, when the property was flooded. I cannot, therefore, be satisfied that Ms. Rocque’s November 2016 oral contract with J-Rock, or any contract that pre-dated July 1, 2018, included the improvement ultimately carried out by Louis Jones. This determination will require factual findings I am unable to make on the evidence before me. This is an issue requiring a trial, where a judge will have the benefit of oral testimony and cross-examination.
Was a procurement process commenced before July 1, 2018?
[31] Section 1(4) of the Construction Act provides that a procurement process is commenced on the earliest of the making of (a) a request for qualifications; (b) a request for quotation; (c) a request for proposals; or (d) a call for tenders.
[32] Ms. Rocque and Jonathan Rocque both state in their affidavits that Ms. Rocque began a procurement process in November 2016, that the first estimate was an oral estimate of approximately $40,000 and that Ms. Rocque and J-Rock entered into an oral contract in mid-November 2016.
[33] I am unable to find, on the record before me, that before July 1, 2018, Ms. Rocque initiated a procurement process for the improvement carried out by Louis Jones. There was no evidence of any requirement in this situation for the type of procurement process contemplated by the legislation. There were no documents in evidence relating to what Ms. Rocque and Jonathan Rocque described in their affidavits as a procurement process. There was no evidence to suggest that this procurement process involved anything other than an aunt asking her nephew for an estimate for work she hoped his business would do for her. Further, any estimate or quotation requested by Ms. Rocque in 2016 could not have included the improvement ultimately carried out by Louis Jones because the scope of work was not identified until A. Dagenais & Associates Inc. completed its design drawings in August 2018.
[34] Ms. Rocque has failed to satisfy me that there is no triable issue in respect of whether she began a procurement process before July 1, 2018; this too is an issue requiring a trial.
Conclusion with respect to Issue #1
[35] There is a triable issue in respect of whether the Construction Lien Act (with a 45-day lien preservation deadline) or the Construction Act (with a 60-day lien preservation deadline) applies to the improvement carried out by Louis Jones. In my view, whether a contract for the improvement was entered into before July 1, 2018 and whether a procurement process for the improvement was commenced before July 1, 2018 are both issues requiring a trial.
Issue #2: Is there an issue requiring a trial in respect of when Louis Jones and Sunbelt last supplied services and materials to the improvement to Ms. Rocque’s property?
[36] Even if I had found that the Construction Lien Act and its 45-day preservation deadline applied, I would not have been able to determine, on the record before me, when the lien claimants last supplied materials to the improvement to Ms. Rocque’s property. (As I indicated, above, it is agreed that Louis Jones last provided services on December 19, 2018.)
[37] The last piece of equipment that remained on Ms. Rocque’s property was a Bobcat. There was conflicting evidence in respect of when J-Rock asked Louis Jones to retrieve the Bobcat from the property, including the following:
• In his affidavit, Jonathan Rocque said he telephoned Louis Jones on December 21, 2018 to tell him to pick up the Bobcat before December 22, 2018 (“avant le 22 décembre 2018.”) In his affidavit, Jonathan Rocque did not specify whether he spoke to anyone directly on December 21, 2018, or whether he left a message.
• In her affidavit, Ms. Rocque said Jonathan Rocque told her that on December 21, 2018, he had called Louis Jones and told him to pick up the Bobcat no later than December 22, 2018 (“au plus tard le 22 décembre 2018.”)
• In a letter dated July 18, 2019 from Ms. Rocque’s counsel to Louis Jones’ counsel, Ms. Rocque’s lawyer said the skidsteer (the Bobcat) was last used on December 24, 2018 and that it was removed from the island on which Ms. Rocque’s property is located that same day. The letter said Louis Jones was contacted “on that day to advise him of same.” The letter also said that Ms. Rocque, Jonathan Rocque and J-Rock staff were onsite and witnessed this.
• A Bell telephone bill indicates that a call was made from Jonathan Rocque’s telephone number to Louis Jones’ telephone number on December 21, 2018.
• In his affidavit, Louis Jones said he does not recall receiving a telephone call from Jonathan Rocque on December 21, 2018.
• Louis Jones said the first and only time Jonathan Rocque asked to pick up the Bobcat was on January 2, 2018.
• In his affidavit, Jonathan Rocque said that on January 2, 2019, he telephoned Louis Jones again (“a nouveau”) to tell him to pick up the Bobcat.
• The Bell bill indicates that a call was made from Jonathan Rocque’s telephone number to Louis Jones’ telephone number on January 2, 2019 at 14h04 (2:04 p.m.)
[38] The issue of when J-Rock communicated to Louis Jones that the Bobcat was ready to be picked up is not an issue I could have decided on the conflicting evidence before me. Ms. Rocque did not satisfy me that it is an issue that does not require a trial. It is an issue that will require findings of fact and credibility properly made by a trial judge who will have the benefit of oral evidence and cross-examination.
Conclusion with respect to Issue #2
[39] I find there is a trial issue in respect of when Louis Jones and Sunbelt last provided materials to the improvement to Ms. Rocque’s property.
Disposition of motion
[40] As I have concluded that a trial is required both to determine whether the Construction Lien Act or the Construction Act applies to the lien claimants’ liens and when the lien claimants last provided materials to the improvement to Ms. Rocque’s property, Ms. Rocque’s motion to discharge the liens is dismissed.
Costs
[41] If the parties are unable to agree on costs, Louis Jones and Sunbelt may deliver brief written costs submissions within 10 days. Ms. Rocque may deliver brief responding submissions within a further 10 days. Louis Jones and Sunbelt may then deliver very brief submissions in reply within a further 10 days. These timelines may be adjusted on consent.
Date: April 20, 2022
COURT FILE NO.:.CV-19-20/CV-19-24
DATE: 20220420
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN: LOUIS JONES CONSTRUCTION LTD., Plaintiff
-and-
JONATHAN ROCQUE c.o.b. as J-ROCK CONSTRUCTION, ROXANNE ROCQUE and CAISSE POPULAIRE TRILLIUM INC., Defendants (Moving Party)
BEFORE: Madam Justice Heather J. Williams
COUNSEL: Anthony J. Imbesi, for the Plaintiff
Pierre Champagne and Ginger Warner for Roxanne Rocque
BETWEEN: SUNBELT RENTALS OF CANADA INC., Plaintiff
-and-
LOUIS JONES CONSTRUCTION LTD., ROXANNE ROCQUE and CAISSE POPULAIRE TRILLIUM INC., Defendants
BEFORE: Madam Justice Heather J. Williams
COUNSEL: Eric Gionet and Andrew Wood, for the Plaintiff
Pierre Champagne and Ginger Warner for Roxanne Rocque
endorsement
Justice Heather J. Williams
Released: April 20, 2022
[^1]: One of Ms. Rocque’s key arguments is that the “old” Construction Lien Act, and not the “new” Construction Act, R.S.O. 1990, c. C. 30 applies to the lien claimants’ liens.