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 

Construction Lien Act – Improvement

January 2011

Construction Lien Act – Improvement:  The Ontario Construction Lien Act has been recently amended to broaden the definition of “improvement”.  That definition now includes the installation of industrial, mechanical, electrical or other equipment on the land or any building, structure or works on the land that is essential to the normal or intended us of the land, structure or works.  The amendment also adds to the definition of improvement the complete or partial demolition or removal of any building, structure or works on land:  Open for Business Act, 2010, S.O. c. 16, Annex 2, s. 2.  This amendment is thought to have been enacted to over-rule the decision in Kennedy Electric Ltd. v. Rumble Automotive Inc. (2006), 64 C.L.R. (3d) 33 (Ont. C.A.):

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

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 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)

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

Intervention by Bonding Company

Bonds – Construction lien action – Intervention by bonding company:

A bonding company which has issued a Form 15.1 bond in lieu of the land and premises under s. 44 of the Ontario Construction Lien Act has no inherent right to intervene in the lien action. It will only be granted leave to intervene in appropriate cases and to assert the rights of the bonded party. If the bonding company is added, it is added not in its own right but rather to step into the shoes of the bonded defendant to continue with the defense and counter claim as if it was that defendant. Such addition will be on terms which limit the rights of the added party to those of the defendant and the party seeking to be added, depending on the stage of the action, must demonstrate that it can carry on with the action. For example, if the action is at the stage of discovery, the added party must provide discovery as if it were the defendant, that is, have access to the documents and to someone knowledgeable who can be examined for discovery. Lastly, the party seeking to be added must agree to be personally bound to pay the costs. In all instances, the party seeking to be added is put into the shoes of the defendant whatever state those shoes may be at the time of the addition. In the absence of the bonding company showing that those conditions could be met, its application to intervene was dismissed:

Royal Windsor Mechanical Inc. v. Toronto Catholic District School Board, 2010 ONSC 1849. See CBC, Chapter 9, part 3.

Construction Lien Action-Security for Costs

Construction Lien Action – Security for Costs

In a motion by the defendant to require the plaintiff in a lien action to post security for costs, bald assertions of impecuniosity by the plaintiff are insufficient.   The plaintiff must provide supporting documentation as to whether the sole shareholder can borrow against the remaining assets of the corporation, or its insurance claim, or insurance proceeds when received. In the absence of such proof, security for costs on a “pay-as-you-go” basis was ordered:

Sterling Electrical Contractors Inc. v. 20887585 Ontario Inc. 2010 ONSC 5346

Construction Lien Action – Summary Judgment

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

Construction Lien action – Discovery Planning

Discovery planning is not necessarily part of a lien action since s. 67(2) of the Ontario Act mandates that interlocutory proceedings are not to be undertaken unless needed and only with leave of the court:

Lecompte v. Doran, 2010 ONSC 6290