Legal Blog

The Danger of Moving for Relief Based on a Technicality

In several of our newsletters, we have asserted that judges do not decide cases based on technical arguments. They want to do justice within the confines of the law and will often go out of their way to do so. An example of this proposition is set out in Lavis Contracting Co. v. Coores Construction Inc., a 2014 decision of the Ontario Superior Court of Justice.

Streets

A municipality retained a general to perform road work. The sub performed the paving work for the general. The general had not paid the sub everything the sub thought was due to it and the sub attempted to assert a claim for lien.

The sub could not just register its claim against title to land. The work was performed on a municipal street (i.e. a public highway) and a claim for lien is not preserved by way of registration; rather, it is preserved by serving a copy on the clerk of the municipality.

The sub attended at the municipal office of the (small town) municipality and asked to speak to the clerk. She was not present, so he gave the copy of the lien claim to the chief administrative officer, who was also the deputy clerk.

Later, the deputy wrote to the sub confirming that he delivered the claim to the clerk on the day he received it.

Objection

The general argued that the Construction Lien Act provided that the claim had to be delivered to the clerk of the municipality and, since the sub gave it only to the deputy clerk, the sub did not properly preserve its lien claim. Accordingly, the lien ought to be discharged.

The judge was not impressed with this technical argument.

First, he noted that there was a simple answer to the argument. The lien claim was “given” to the clerk. The deputy clerk confirmed this in his letter. There is nothing in the Act that requires the lien claimant personally to give the claim to the clerk, just that the clerk be given it.

Second, giving a technical response to a technical argument, the lien claimant did give the lien claim to the “clerk”. Under the Municipal Act, a municipality has the power to appoint deputy clerks “who have all the powers and duties of the clerk under this and any other Act.” Given that section, the judge interpreted the service provision of the Construction Lien Act to include not just a clerk, but also a deputy clerk.

Upshot

The judge dismissed the general’s motion and awarded the sub $4,500 in costs.

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