Motion for declaration that lien expired was denied

Procedure

Motion for declaration that lien expired was denied

In September 2013, defendant general contractor retained plaintiff subcontractor to supply labour, materials and equipment for interchange improvements on highway construction project. Although plaintiff began work in 2013, signed subcontract for $9,952.665 plus taxes not returned to it until December 2014. Following dispute in regard to work, delays and payment, plaintiff terminated contract in February 2015. On March 20, 2015, plaintiff served claim for lien (dated March 18, 2015) stating it had last supplied services and/or materials to project on February 6, 2015. Parties agreed, however, plaintiff had not physically been on site of project since prior to winter shut-down scheduled for December 19, 2014. Defendant alleged plaintiff had, therefore, failed to preserve its lien within strict 45-day limitation period prescribed by Construction Lien Act (Ont.) and brought motion for declaration lien expired. Plaintiff claimed it had, between December 19, 2014 and February 6, 2015, been performing off-site work in preparation for spring start-up of project scheduled for April 2015 with result lien preserved within time. Motion denied. Scheduled winter shut-down did not put an end to plaintiff’s ongoing obligations under contract. It had been reasonable for plaintiff to continue to perform off-site work in order to be ready for spring start-up without delay. It would not make any practical or commercial sense to require all subcontractors to register liens with 45 days of last on-site work or supply in event of any extended shut-down (whether for weather, labour dispute, scheduling issues or other reason). On evidence, plaintiff’s off-site preparatory work, including communications with regard to and submission of documentation and shop drawings, and provision of shoring system and concrete forms, constituted lienable supply of services or materials within Act with result claim of lien valid.
Toronto Zenith Contracting Ltd. v. Fermar Paving Ltd. (July 19, 2016, Ont. S.C.J., DiTomaso J., CV-15-495) 268 A.C.W.S. (3d) 724.