COURT FILE NO.: CV-23-706895

DATE: 2023 10 17

SUPERIOR COURT OF JUSTICE - ONTARIO

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

RE: 2829785 ONTARIO INC., Owner/Moving Party

- and -

TOTAL HOME & YARD IMPROVEMENT INC., Lien Claimant/Respondent

BEFORE: Associate Justice Todd Robinson

HEARD: In writing (ex parte)

ENDORSEMENT

[1] The owner, 2829785 Ontario Inc., moves ex parte for an order declaring that the lien claimant’s lien has expired. The subject property is situate in Picton, but this motion has been brought in Toronto Region pursuant to Section H.3 of the Notice to Profession and Parties – Toronto Region, which permits ex parte, consent, and unopposed motions in non-Toronto lien actions or that deal with non-Toronto properties to be brought in Toronto, with leave.

[2] This motion was previously brought and heard by Wiebe A.J. The prior motion was dismissed without prejudice to moving again on evidence from the owner on the triggering events for a contractor’s lien. This further motion has been brought, without notice, relying on both a lawyer’s affidavit and an affidavit of Ali-Reza Malek, one of the directors of the owner.

[3] I am dismissing the motion without prejudice to moving again on prior notice to the lien claimant.

[4] A motion to declare a lien expired may be brought without notice to any other person, as expressly set out in s. 45(1)(a) of the Construction Act, RSO 1990, c C.30. In reliance on that statutory permission, motions to declare liens expired are commonly brought ex parte in Toronto Region. However, there is a chronic problem with these motions. They consistently overlook the express requirement in s. 45(1)(b) that the motion must be supported by “proof” that the lien has not been preserved or perfected within the time allowed.

[5] In Davis v. Under Construction Incorporated, 2020 ONSC 3466, I discussed the level of “proof” required on ex parte motions to declare a lien expired, as well as the reasons for it. There is a high evidentiary onus imposed on a moving party. I held, at paras. 5-6, as follows:

Declaring a lien expired is significant relief. When a motion for such a declaration is brought ex parte, the lien claimant has no opportunity to file responding materials or argue against the relief sought. It follows that the evidence filed by the moving party must support a clear finding that the subject lien has expired. That includes considering if there is any sheltering where other liens have been registered.

Davis’ lien is nominal. Nevertheless, evidence on a motion to declare a lien expired must satisfy the court that no additional evidence or argument from the absent lien claimant would reasonably make a difference in disposition of the motion. […]

[6] In this case, the lien claimant’s lien is similarly nominal. However, on an ex parte motion such as this one, the quantum of a lien is not a material factor in deciding whether there is sufficient evidence to support a declaration that the lien has clearly expired.

[7] The owner does not assert that the contract was terminated or abandoned. It asserts that the contract was completed. The only evidence tendered in support of the lien having expired is a copy of the parties’ contract, a statement by Mr. Malek that the lien claimant completed work in July 2022, and the fact that a certificate of action has not been registered. There are no other liens, so there is no issue of sheltering.

[8] The limited evidence tendered is not enough. The “contract” is a purchase order dated April 1, 2022. It appends an invoice dated March 31, 2022 and certain drawings that, together, the purchase order indicates comprise the scope of work. The purchase order appears to have been signed by Mr. Malek. His evidence is that “on or about July 22, 2022, the contractor completed the work.” No evidence has been tendered to substantiate that bare statement, such as emails, texts, or correspondence with the lien claimant, invoices, or photographs. There is also a notable discrepancy between the purchase order and the claim for lien that has not been addressed in the materials, which has given me particular pause for concern.

[9] Per the purchase order, the total contract price is $140,340.20, including HST. Per the claim for lien, the total contract price claimed is $169,182.47. The amount claimed in the claim for lien is less than the difference between those two amounts. That tends to support that total payments to the lien claimant were greater than the total contract price as set out in the purchase order, which implies that there may have been extras to the contract. The discrepancy in the claimed contract price between the purchase order and the claim for lien is a matter that ought to have been addressed in the materials, specifically whether there were any extras to the contract and the status of those extras.

[10] Bald and unsubstantiated statements that a contract been completed (or has been terminated or abandoned) are insufficient to support an ex parte motion to declare a lien expired. Providing “proof” that the lien has clearly expired requires more.

[11] In this case, the owner could have tendered evidence on whether the lien claimant agrees that the scope of work outlined in the purchase order is the entirety of the contractual scope of work or supporting that the lien claimant does not dispute that it had completed its work. There is a notable absence of any correspondence to or from the lien claimant about the work performed. The lien claimant’s invoices, if any, have not been tendered. Demands for payment, if any, are not in the record nor is any response to them. There is no evidence on what the lien claimant would or is likely to say comprises the contract scope of work and whether that scope was or was not complete.

[12] I am unable to accept the owner’s position that the contract has been completed. The record does not support clear findings on the lien claimant’s full contractual scope of work or that all work under the contract has been completed or deemed completed within the meaning of s. 2(3) of the Construction Act.

[13] Wiebe AJ afforded the owner a second chance to bring this motion, without notice, on further and better evidence. I will not be extending a third chance. After two “kicks at the can” the lien claimant is entitled to notice of any further motion to declare its lien expired.

[14] For the above reasons, the owner’s motion is dismissed without prejudice to moving again on notice to the lien claimant.

[15] Opposed motions in non-Toronto actions or, if no action has been commenced, dealing with non-Toronto properties cannot be brought in Toronto. I note that the claim for lien was registered on behalf of the lien claimant by a law firm in Belleville. There is no evidence of any communications with that firm, or the lien claimant directly, about expiry of the lien and the lien claimant’s position on voluntary discharge. The lien claimant’s position on the motion should be sought. If the lien claimant ultimately consents or is unopposed to the motion, then it may be brought again in Toronto, in writing and with leave. Otherwise, the motion must be brought on notice to the lien claimant in the jurisdiction where the property is situate or in the court where any action by the lien claimant has been commenced.

[16] A copy of this endorsement, together with all motion materials for this motion, shall be served on the lien claimant at the address for service in the claim for lien, with copy sent to the registering agent lawyers.

Date: October 17, 2023

ASSOCIATE JUSTICE TODD ROBINSON