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Sheltering

Dalcor v. Unimac Group Ltd. 2016 Ont SCJ

Sub issued 9 invoices to general, the last of which on December 15, 2011. The invoices totalled to $186,000. In subsequent notices and affidavits, sub claimed that $186,000 was the total amount due to it. The sub registered its lien on March 19, 2012, relying on alleged work that it performed on the project on February 12, 2012. The judge found as a fact that the sub did not perform any work on that date, mainly because the sub had no documentary evidence to support its allegation. Accordingly, the lien was discharged because it was not preserved in time. The sub had not commenced its action to enforce its claim for lien until January 31, 2014; until then, it had sheltered under the general’s action against the owner issued on May 4, 2012. The judge noted that the sub was not able to shelter under the general’s action for two reasons: (a) with a December 15 start date for the lien’s registration, the lien had already not been perfected in time before the general commenced its action; the lien had already expired; and (b) the general’s action had been dismissed on consent, including the sub’s consent. Accordingly, for each reason, the action was proscribed by the Limitations Act. Warning – never shelter; always commence a timely action.

Written by Jonathan Speigel Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.