Court File and Parties

COURT FILE NO.: CV-21-644794 DATE: January 10, 2022

Superior Court of Justice - Ontario

RE: 6628842 Canada Inc. o/a Custom Home Foam v. Devran Topyurek, Forest Hill Home Build Inc., Hilton Stucco Contracting Inc., The Spicy Construction and Stucco Inc., Ali Topyurek also known as Alex Topyurek, Satesh Gandhi and Aman Gandhi;

Before

ASSOCIATE JUSTICE C. WIEBE

Counsel

Amrita Mann for 6628842 Canada Inc. o/a Custom Home Foam (“662”);

Heard

January 10, 2022.

Endorsement

[1] This is a lien action that includes claims for breach of contract and breach of trust. The lien claimant, 662, moves for default judgment against the defendants. The evidence shows that Devran Topyrurek, is the registered owner of the land, that Forest Hill Home Build Inc., Hilton Stucco Contracting Inc., The Spicy Construction and Stucco Inc. together were the contractor for the subject project on the land, that Alex Topyurek is the principal of those companies, and that the two Gandhi defendants are mortgagees.

[2] I advised Ms. Mann that I had to dismiss the motion for the following reasons:

a) Improper joinder of trust claim: I advised that I adopt the obiter comments I made in Damasio Drywall Inc. v. 2444825 Ontario Limited, 2021 ONSC 8398 wherein I stated that by reinstating the joinder limitation of old Construction Act, R.S.O. 1990, c. C. 30 (“CA”) section 55(1) as O. Reg. 302/18, section 3(2) in the spring of 2019, the Legislature changed its mind and decided to continue to prohibit the joinder of trust claims with lien claims. Therefore, I find that the joinder of the trust claim (including any claim associated with the trust claim such as the accounting) to the lien claim in this case improper.

b) No jurisdiction to declare lien claim: There is no judgment of reference. Therefore, as I am not a judge, I do not have the authority under Rule 19.04(1) to declare the validity of a lien claim on a motion for default judgment; see Strada Aggregates Inc. v. YSL Residences Inc., 2020 ONSC 7034 at paragraph 21. This limitation of jurisdiction would apply as well to any lien related relief such as the claimed declaration of priority over the mortgagees.

c) Insufficient evidence for the personal judgment: While I have the authority to grant a personal default judgment on the breach of contract claim against the companies by operation of O. Reg. 302/18 section 5(5) and CA section 63 (see Strada, op. cit., paragraph 21), there is insufficient evidence on this motion to support such a judgment. The statement of claim does not contain sufficient particularity as to how the claim was derived. It pleads an oral contract with a fixed price, the work, and the non-payment. There is a reference in paragraph 8 to extra work that is not accounted for. Therefore, I cannot find that it contains a “debt or liquidated demand in money,” under Rule 19.04(1)(a). As for the filed evidence, there is the affidavit of Glen Lyons, the president of 662. This affidavit states that the contract was oral and refers to text messages. But it gives no explanation of the texts or how they prove the contract. The affidavit also has no corroboration for the bald statements that 662 performed the contract, is owed the amount claimed, has demanded payment and has not been paid.

[3] I, therefore, dismiss this motion, but without prejudice to it being brought back either before a judge or before an associate justice with further and better evidence.

DATE: January 10, 2022 ASSOCIATE JUSTICE C. WIEBE