Ontario Superior Court of Justice
Court File No.: CV-23-0423-00
Date: 2025-04-14
IN THE MATTER OF the Construction Act, R.S.O. c. C. 30 as amended
B E T W E E N:
Skyway Canada Limited
J.D.E.S. Baker, for the Plaintiff
Plaintiff (Lien Claimant)
- and -
Sobeys Capital Incorporated aka Sobeys Capital Incorporated/Sobeys Capital Incorporee and Crombie Property Holdings Limited
N. Kuehn, for Defendants
Defendant (Contractor and Owner)
Heard: April 10, 2025, via Zoom at Thunder Bay, Ontario
Regional Senior Justice W. D. Newton
Decision On Motion
Overview
[1] The defendants seek an order discharging the construction lien registered by the plaintiff because the plaintiff/lien claimant has refused to attend and participate in cross-examination on the claim for lien pursuant to s. 40 of the Construction Act.
[2] The plaintiff asks that the motion be adjourned.
[3] For the reasons that follow, the request for an adjournment is denied and the defendants’ motion is granted with costs.
The Facts
[4] The lien was registered on September 7, 2023, and the statement of claim was issued on November 3, 2023. A statement of defence was delivered on behalf of all defendants on June 14, 2024.
[5] The defendants advised counsel for the plaintiff by email on November 4, 2024, that they intended to proceed with cross-examination of the plaintiff in accordance with s. 40(1) of the Act, provided five dates in January 2025, and asked counsel for the plaintiff to provide his availability for those dates. Counsel for the defendants advised that those dates would be held “until the end of the week” and asked for a response before then. Counsel for the plaintiff did not respond and, on November 15, 2024, counsel for the defendants advised that the cross-examination would proceed on January 23, 2025, and then served a notice of cross-examination.
[6] Two months later, and two days before the scheduled cross-examination, counsel for the plaintiff sent an email to counsel for the defendants and indicated the following: “The plaintiff will not be participating.” Nothing else was stated. No reason for not participating was given. Counsel for the defendants responded and advised that the defendants would be bringing a motion to discharge the lien and seeking all legal costs should the plaintiff not appear. The plaintiff did not appear, and a certificate of non-attendance was obtained.
[7] On March 12, 2025, counsel wrote to counsel for the plaintiff giving the plaintiff “one further opportunity to comply with s. 40 of the Construction Act before bringing a motion to discharge the lien.” Counsel for the defendants proposed three dates in March and indicated that unless she heard from counsel for the plaintiff by the next day, she would serve a Notice of Examination. A Notice of Examination was served for March 26, 2025. Counsel for the plaintiff did not respond and the plaintiff did not attend for the cross-examination. A certificate of non-attendance was obtained. Counsel for the plaintiff did not contact counsel for the defendant except for the email on January 21, 2025.
[8] On April 1, 2025, the defendants brought this motion, returnable on April 10, 2025. In addition to an affidavit reciting the facts above relating to the attempts to cross-examine the plaintiff, the defendants also filed an affidavit from Fred Naclerio, the president of Apollo General Contracting. Apollo was the Construction Manager for Sobeys and hired all subcontractors, including the plaintiff Skyway. Mr. Naclerio deposed that he has knowledge of the issues in this lien action and disputes the plaintiff’s claims.
[9] The plaintiff delivered a responding motion record on April 7, 2025, containing the affidavit of Nicola Ranieri. She deposed that the plaintiff wishes to amend the claim. The proposed amendment is to add Apollo as a party. Attached as an exhibit to this affidavit was an email sent by counsel for the plaintiff, Mr. Baker, to counsel for the defendant. The email states as follows: that the proper motion confirmation form was not used; that he attempted to contact counsel for the defendants; that he was not consulted on his availability for the examination dates or the motion; that the defendants did not deliver an affidavit of documents; and, that he would be bringing a cross motion to amend the statement of claim.
[10] A supplementary affidavit was delivered by the defendants setting out the details of attempts to communicate between the parties about the motion confirmation.
The Adjournment Request
[11] When questioned about what purpose would be served by an adjournment, counsel for the plaintiff advised that he wished to amend the statement of claim. No other purpose was identified. It was not suggested that further evidence was necessary to fairly decide this motion. Therefore, the request for an adjournment was denied.
This Motion
The Law
[12] The following sections of the Act are relevant:
Cross-examination on claim for lien
40 (1) Any of the following persons is liable to be cross-examined without an order on a claim for lien at any time, regardless of whether an action has been commenced:
- The lien claimant.
- An agent or assignee of the lien claimant.
- A trustee of the workers’ trust fund, where subsection 81 (2) applies. 2010, c. 16, Sched. 2, s. 2 (11); 2017, c. 24, s. 63.
Who may participate
(2) There shall be only one examination under subsection (1), but the contractor, the payer of the lien claimant, and every person named in the claim for lien who has an interest in the premises are entitled to participate therein. R.S.O. 1990, c. C.30, s. 40 (2); 2017, c. 24, s. 63, 70.
Notice
(3) Any person intending to examine a person under subsection (1) shall give at least seven days notice of the examination specifying the time and place for the examination to,
(a) the person to be examined or the person’s solicitor; (b) every other person named in the claim for lien as having an interest in the premises; (c) the contractor; and (d) the payer of the lien claimant. R.S.O. 1990, c. C.30, s. 40 (3); 2017, c. 24, s. 63, 70.
Application of rules of court
(4) The rules of court pertaining to examinations apply, with necessary modifications, to cross-examinations under this section. R.S.O. 1990, c. C.30, s. 40 (4).
Power to discharge
47 (1) The court may, on motion, order the discharge of a lien,
(a) on the basis that the claim for the lien is frivolous, vexatious or an abuse of process; or (b) on any other proper ground.
Lien claims and procedures
50 (1) A lien claim is enforceable in an action in the Superior Court of Justice. 2017, c. 24, s. 39 (2).
(2) Except to the extent that they are inconsistent with this Act and the procedures prescribed for the purposes of this Part, the Courts of Justice Act and the rules of court apply to actions under this Part. 2017, c. 24, s. 39 (2).
(3) The procedure in an action shall be as far as possible of a summary character, having regard to the amount and nature of the liens in question. 2017, c. 24, s. 39 (2).
[13] While the Rules are applicable, section 13 of Procedures for Actions under Part VIII of the Act (Ontario Regulation 302/18) provides that “Interlocutory steps, other than those provided for under the Act, shall not be taken without the consent of the court on proof that the steps are necessary or would expedite the resolution of the issues in dispute.”
Positions of the Parties
[14] The defendants submit that the lien should be discharged, given the clear failure to co-operate in the cross-examination mandated by the Act.
[15] The defendants acknowledge that the claim will remain, but that the security granted by the lien should be discharged because of the failure of the plaintiff to follow the procedure that it selected.
[16] The defendants note that the plaintiff has not sought leave for examinations or documentary production, and, therefore, submit that the plaintiff’s statement that the defendants have not delivered an affidavit of documents is not relevant to the issue before me.
[17] Similarly, the defendants submit that the plaintiff’s assertion that they will be seeking leave to amend the statement of claim is irrelevant to the issue of whether the lien should be discharged.
[18] The plaintiff requests that I grant leave to amend the statement of claim even though no motion for that relief has been brought.
[19] The plaintiff makes no other argument in opposition to this motion other than that counsel for the defendants have failed to communicate with him. The plaintiff makes no argument that Sobeys is insolvent or otherwise unable to honour any judgement in favour of the plaintiff.
Disposition
[20] I find that there was no failure by counsel for the defendants to communicate with counsel for the plaintiff. The record indicates the opposite.
[21] No reason was advanced in the reply affidavit, nor in submissions before me, to justify either the failure to respond to counsel for the defendant when attempting to arrange cross-examinations or the position that the plaintiff would not “participate” in the process stipulated by the Act.
[22] The plaintiff was given two opportunities to comply with the Act but failed to do so and, in fact, save for one email indicating that the plaintiff “will not be participating” on the eve of the first examination, ignored counsel for the defendants for five months. This conduct by the plaintiff has delayed the resolution of this lien claim. I find that this conduct is a proper ground justifying the discharge of the lien.
[23] Therefore, I grant the following Orders:
(a) An Order discharging the Construction Lien registered as instrument number TY337793 on September 7, 2023, in the Land Registry Office for Land Titles No. 55 at Thunder Bay, Ontario (the "Construction Lien") against the properties described in Schedule "A" hereto (the "Liened Properties");
(b) An Order vacating any Certificate of Action registered in the Land Registry Office for Thunder Bay (No. 55) in respect of the Construction Lien against the properties referred to in Schedule "A" hereto;
(c) An Order compelling the land registrar to accept the registration of the above Order as an Application to Delete Construction Lien.
Costs
[24] The defendants seek substantial indemnity costs for the costs “thrown away” for the aborted cross-examinations and the costs of this motion. I note that no costs are claimed for the defence of the action which is still before the court. These costs were incurred as a result of the conduct of the plaintiff.
[25] I fix the costs payable by the plaintiff to the defendants in the amount of $6,000 plus HST plus $827.75 for disbursements inclusive of HST. These costs are payable forthwith.
“Original signed by”
W. D. Newton
Released: April 14, 2025
Cited Legislation
Cited Case Law
None.