Superior Court of Justice – Ontario

Court File No.: CV-22-3536 (Brampton)
Date: 2025-05-09

In the Matter of the Construction Act

RSO 1990, c C.30, as amended

Re:
Abdallah Salman Samhadanah o/a ASA General Contractor and Renovations, Plaintiff

– and –

BOS Properties Holdings Corporation o/a Naija Jollof a.k.a. Naija Jollof Restaurant c/o Beauty Oziegbe,
Beauty Estates Inc. o/a Naija Jollof a.k.a. Naija Jollof Restaurant c/o Beauty Oziegbe,
Beauty Oziegbe a.k.a. Beauty De-Rosa a.k.a. Beauty Otenghabun Oziegbe,
Beauty Oziegbe a.k.a. Beauty De-Rosa a.k.a. Beauty Otenghabun Oziegbe o/a Naija Jollof Restaurant,
Naija Jollof Restaurant c/o Beauty Otenghabun Oziegbe,
Starbank Developments 285 Corp., and
Industrial Alliance Insurance and Financial Services Inc., Defendants

Before: Associate Justice Todd Robinson

Counsel: W.R. MacDougall, for the defendant, Starbank Developments 285 Corp.

Heard: In writing

Endorsement (Motion to Declare Lien Expired)

[1] Starbank Developments 285 Corp. (“Starbank”) moves ex parte and in writing for an order granting leave to bring this motion in Toronto, declaring the plaintiff’s lien expired, and vacating the certificate of action remaining on title. Dismissal of the action is sought in the notice of motion, but is not relief included in the draft order submitted.

[2] Although initially submitted as a non-urgent motion, moving counsel has now asked that it be dealt with urgently. Per the written submissions on urgency, Starbank is said to be constructing a building at the subject property for a major tenant and is required to file an easement. That is being prevented by the plaintiff’s certificate of action, which remains on title.

[3] Expiry is asserted based on non-compliance with the provisions of the Construction Act, RSO 1990, c C.30. No factum has been submitted.

[4] A person or party moving to declare a lien expired has a high evidentiary onus. 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. That is required because the lien claimant has no opportunity to file responding materials or argue against the relief sought. The evidence filed by the moving party must support a clear finding that the subject lien has expired: Davis v. Under Construction Incorporated, 2020 ONSC 3466 at paras. 5-6.

[5] In my view, Starbank has not met its high evidentiary onus on this motion. I say this for several key reasons:

[6] First, notwithstanding the law clerk affiant’s own views on operation of s. 31 (which is improper argument in an affidavit), Starbank and the tenant defendants are all alleged to be “owners” in the statement of claim. Starbank is identified as the owner in the claim for lien and “Naija Jollof Restaurant c/o Beauty Otenghabun Oziegbe” is identified as tenant, and the party to whom services and materials were supplied. Based on the allegations in the statement of claim, the tenant seems to meet the definition of “owner” under s. 1(1) of the Construction Act. The plaintiff would thereby appear to be a “contractor” under the act, with lien rights governed by s. 31(2), not s. 31(3) as asserted by the law clerk.

[7] Second, Starbank, through its prior lawyers, registered an Application (General) on November 29, 2022, which purported to delete the claim for lien from title to the subject property under s. 75 of the Land Titles Act, RSO 1990, c L.5. The registered application relies on non-compliance with s. 36 of the Construction Act, which deals with how and when a lien must be perfected. There is no evidence supporting a finding that the former Construction Lien Act continues to apply pursuant to s. 87.3 of the Construction Act. The contract as pleaded in the statement of claim was entered in June 2022. Since the current Construction Act appears to apply, even if the plaintiff was a subcontractor, the application was registered well prior to the deadline for the plaintiff to perfect the lien. It follows that Starbank’s application registration was improper. It also seems to have been done without notice to the plaintiff either prior to or following the registration. The law clerk affiant suggests that the application was registered based on a mistaken belief that the lien has expired. Nevertheless, Starbank has done nothing to redress its improper registration of the application, which invalidly deleted the claim for lien from title and appears to have been certified by the land registrar.

[8] I also question the propriety of even attempting to delete a lien under s. 75 of the Land Titles Act. The Construction Act contemplates removal of a lien only by the lien claimant itself or by the court on motion to declare the lien expired, discharge the lien, or vacate the claim for lien upon posting security: Construction Act, ss. 41-47. The moving materials do not direct me to any provision of the act permitting someone else to unilaterally delete a lien from title without either consent of the lien claimant or court order, and certainly not without notice to the lien claimant. I am unaware of any case law permitting s. 75 of the Land Titles Act to be validly used in such a manner and have serious doubts that it is proper to do so.

[9] Third, under s. 31(2) of the Construction Act, a contractor’s lien rights are tied to completion, abandonment, or termination. There is no evidence in the materials on any of those triggers to lien expiry and, in any event, the law clerk affiant would not be a proper witness to tender such evidence on an ex parte motion. On review of the statement of claim, I find no clear admission regarding completion, termination, or abandonment. Last supply is acknowledged at para. 10, but last supply is not itself relevant to expiry of a contractor’s lien.

[10] Fourth, with respect to Starbank’s position that the plaintiff has failed to comply with s. 37 of the Construction Act, the evidence tendered is insufficient. That section provides that a lien expires on the second anniversary of its perfection unless an action in which the lien may be enforced has been set down for trial or an order for trial has been made in an action in which the lien may be enforced. The parcel abstract submitted confirms that there are no other liens, so if this lien action has not been set down for trial or there has been no order for trial, then the plaintiff’s lien has expired.

[11] The law clerk affiant states, “This action has not been set down nor has an order for trial been obtained.” That statement is unsubstantiated. No source of information and belief is provided. There is no evidence on the status of the action, other than the statement of claim being issued and that, on April 25, 2024, Shaw J. granted an order removing the plaintiff’s lawyers. That order appears to have been properly served on the plaintiff shortly thereafter. There is no evidence in the materials of a court file search being performed other than printout of a court search summary, which only identifies the parties, the last filing, and that no dates are pending. It does not include the contents of the court file. It does not appear that anyone has attended the court or taken steps to confirm the contents of the court file. Based on the limited evidence before me, I am unable to confirm that the law clerk’s bald statement is accurate. I cannot confirm that there has been no set down and no order for trial.

[12] For these reasons, I am dismissing this motion without prejudice to Starbank moving again on further and better evidence. Given the impropriety of Starbank’s conduct in unilaterally registering an application to delete the plaintiff’s claim for lien on invalid grounds, without notice to the lien claimant, any further motion must be brought on notice to the plaintiff. Any such motion must be brought in Brampton, where this lien action was commenced. The exception to the foregoing is a vacating motion under s. 44(1) on the posting of full security for the lien. That may be brought ex parte as provided in that subsection.

[13] Starbank shall forthwith serve a copy of all motion materials and this endorsement on the plaintiff at the address in Shaw J.’s removal order and on all co-defendants.

Associate Justice Todd Robinson
Date: May 9, 2025