Court File and Parties

COURT FILE NO.: CV-22-681003

DATE: 2022 07 11

SUPERIOR COURT OF JUSTICE - ONTARIO

IN THE MATTER OF the Construction Act, RSO 1990, c C.30, as amended

RE: ONE OAK CONSTRUCTION INC., Plaintiff

- and -

1850168 ONTARIO INC. AND TSANG KWAI FUN, Defendants

BEFORE: Associate Justice Todd Robinson

COUNSEL: B. Bowles and L. Prolas, agent for counsel for the plaintiff

HEARD: July 11, 2022 (by videoconference)

ENDORSEMENT

[1] The plaintiff moves for an order correcting a misnomer of its name in the title of proceedings and directing the Land Registrar to certify one of the two certificates registered on title and withdraw the other. Mr. Bowles advises that 1850168 Ontario Inc. (the “Tenant”) has retained counsel, who has confirmed that the Tenant takes no position on the motion.

[2] I am not satisfied that Tsang Kwai Fun (the “Landlord”) has been validly served with this motion, but am satisfied that it is appropriate in all the circumstances to dispense with service. Reasonable efforts have been made to serve the Landlord, without success, including by registered mail to the leased premises and attempted service at the address stated on the most recently registered instrument identifying the Landlord as a person having an interest in the premises, namely a notice of lease from 2001. The registered mail has been returned undelivered and the Landlord was not located at the address in the notice of lease. I am advised that the Tenant has been asked for an address for service on the Landlord, but has not (yet) provided one.

[3] No skip trace or other searches have been made to locate the Landlord. However, given the nature of the relief sought, it is unlikely that the Landlord will legitimately oppose the relief. The claim for lien was registered with the correct plaintiff’s name and this motion has been brought reasonably promptly following the misnomer being identified. The Land Registrar will not certify the registration of the certificate of action without court order and if it is rejected the timeliness of the lien will become challengeable. That prejudice to the plaintiff is significant in my determination.

[4] In these circumstances, I am satisfied that it is in the interests of justice to dispense with service on the Landlord, but only of this motion. Further efforts will be required to locate and serve the Landlord with the statement of claim and a separate motion will be necessary if the plaintiff seeks substituted service or dispensing with service of the statement of claim.

[5] The form of draft order provided includes relief that, in my view, needs to be revised.

[6] In response to my query about why an order amending the certificate of action is not being sought, Mr. Bowles submitted that there is no clear authority for amending a certificate of action. The rules of court apply in lien actions except where inconsistent with the Construction Act: Construction Act, RSO 1990, c C.30, s. 50(2). In my view, if I have the authority and discretion to amend the statement of claim (which I do), then I also have the authority and discretion to amend the certificate of action, which is a document issued by the court evidencing the issuance of the statement of claim with the same title of proceedings. The statement of claim and certificate of action are intertwined.

[7] There is no requirement in the Construction Act that the certificate of action bear the correct party name: Stubbe’s Precast Commercial Ltd. v. King & Columbia Inc., 2018 ONSC 995 at para. 21. It follows that amendment of the certificate of action ought not to impact the validity of perfection, which turns on the timing of registration of the issued certificate of action in the correct form: Construction Act, s. 36. In my view, it is most appropriate to direct that the certificate of action (and statement of claim) be amended nunc pro tunc to correct the misnomer.

[8] I have considered whether the statement of claim and certificate of action should be formally amended, but the error is only in the title of proceedings. The plaintiff is identified as “One Oak Inc.” in the body of the statement of claim. In these circumstances, I am prepared to dispense with the need for any formal amendment pursuant to my authority under rule 2.03 of the Rules of Civil Procedure, RRO 1990, Reg 194, but will require that a copy of my order and this endorsement be served with the statement of claim.

[9] The plaintiff nevertheless seeks leave to amend its statement of claim to correct the title of proceedings and make a few minor corrections in the body of the claim. While that is not formally relief sought on the motion, the statement of claim has not yet been served and it is relief that I am prepared to grant on an ex parte basis in the circumstances. I see no prejudice to either defendant from the proposed amendments, which are essentially clerical in nature, and these are not circumstances where any formal notice of the amendments is necessary prior to granting leave to amend.

[10] My authority to give the Land Registrar directions is found in s. 25(1) of the Land Titles Act, RSO 1990, c L.5. I am satisfied that the requested direction should be given to certify the registration of the second certificate action and withdraw the first. If there are any issues with execution of my order, my ATC may be contacted for a case conference to deal with any concerns raised by the Land Registrar.

[11] Order to go in an amended form of the draft order submitted, as amended electronically prior to signing.

ASSOCIATE JUSTICE TODD ROBINSON

DATE: July 11, 2022