Leave to bring a summary judgment motion can be granted under s. 67(1) of the Ontario Act in a construction lien action;
6007325 Canada Inc. v. LPQ 18 Yorkville Avenue Inc. and Great Gulf (Yorkville) Ltd., 2010 ONSC 2844
Lien by Related Company
Construction Lien Act – Lien by related company:
If the lien is filed by a related company to the owner such that it would be unjust to allow the same group to lien their own property, the lien may be discharged:
Federated Contractors v. Ann-Maura Developments, 2010 ONSC 346
Date of last supply of services and materials-Consultant
Construction Lien Act-Date of last supply of services and materials-Consultant: The supplier returned to site to install materials due to error in instructions from owner. The time for filing lien ran from the date of that attendance. Certificate of completion issued by the owner, instead of a consultant, was ineffective to cut off the date of last supply of services and materials: 570 South Service Road Inc. v. Lawrence-Paine & Associates Limited, 2010 ONSC 6978. See CBC, Chapter 8, part 2(b)
Construction Lien Act-Date of last supply
Construction Lien Act – Date of last supply of services and materials: The attendance by a paving reinforcement subcontractor at an off-site meeting to deal with the claim of that subcontractor and the main contractor does not amount to the supply of services and does not extend the lien period: Hugormark v. HMTQ, 2010 ONSC 7033. See CBC, Chapter 11, part 2(c).
Date of last supply of services or material
Construction Lien Act- Date of last supply of services or material: Repair or deficiency work will not extend the 45 day period under s. 31 of the Ontario Act for the registration of the lien, even if the repair work arises from external forces such as weather: Vaughan-Scape v. Watermark Developments, 2010 ONSC 1365. See
Trust Fund Claim by Supplier
Construction Lien Action- Trust Fund Claim by Supplier: In order for a trust fund claim to arise under s. 8 of the Ontario Act in favour of a supplier, it is not necessary that the supplier intended that the material be used for the purposes of a known and identified improvement. It is sufficient if: the purchaser of the materials from the supplier was a contractor or subcontractor; the supplier supplied materials to projects on which the purchaser was a contractor; the purchaser received or was owed monies on account of its contract price for those projects; and the purchaser owed the supplier money for those materials. Once that proof is made, the onus shifts to the contractor, and if the contractor fails or refuses to produce its ledgers and thus precludes the Court from tracing the supplies to a particular site, the supplier’s claim is satisfied. [Central Supply Co. 1972 Ltd. v. Modern Tile Supply Co. (2001), 55 O.R. (3d) 783 (Div. Ct.) over-ruled]:
Sunview Doors Limited v. Pappas, 2010 ONCA 198. See CBC, Chapter 11, part 3.
Name of Lien Claimant-Strict Construction
Construction Lien Claim – Name of lien claimant-Strict Construction: When the owner consented to the amendment of the lien claimant to the name of the corporate plaintiffs and pleaded to that claim admitting that the contract was with the corporation, it could not later rely on strict compliance with the Act and insist that the contract was with the individual: 3925308 Manitoba Inc. v. Hoffer, 2010 ONSC 5098. See CBC, Chap. 11, part 2.
Building Contract-Novation
Building Contract-Novation: Novation of a construction contract may occur if: the new debtor assumes complete liability; the creditor accepts the new debtor as principal debtor and not merely as an agent or guarantor; and the creditor accepts the new contract in full satisfaction and substitution for the old contract. On the proper reading of a Tripartite Agreement between the City of Edmonton, Trans Alta and the subcontractor to Trans Alta, novation had occurred, the City stepped into the shoes of Trans Alta and was therby precluded from bringing a negligence claim against the subcontractor: Edmonton (City) v. Trans Alta Energy Marketing Corporation, 2009 ABQB 709
Unjust Enrichment-Construction lien action
Unjust Enrichment-Construction lien action: If a construction lien claim is struck down because the claim does not meet the technical requirements of the Construction Lien Act, a personal claim in unjust enrichment may be made if it arises out of the same circumstances as the lien: Juddav Designs Inc. v. Cosgriffe, 2010 ONSC 6597
Unjust Enrichment
Unjust Enrichment–Construction lien action: A supplier cannot assert an unjust enrichment claim against an owner, particularly if the contractor has asserted a construction lien claim. The contract between the owner and the contractor is a juristic reason for the unjust enrichment claim being disallowed, and the absence of any dealings between the owner and the supplier and the purposeful decision by the supplier not to participate in the lien action contradict the assertion of any reasonable expectation that the supplier would have a claim in unjust enrichment: Barrie Trim v. Heath et al, 2010 ONSC 2107. See CBC, Chapter 4, part 4.
Unjust Enrichment-Construction lien action: If a construction lien claim is struck down because the claim does not meet the technical requirements of the Construction Lien Act, a personal claim in unjust enrichment may be made if it arises out of the same circumstances as the lien: Juddav Designs Inc. v. Cosgriffe, 2010 ONSC 6597 https://bit.ly/ibs1TD