Legal Blog

Trial, Set Down

K.H. Customs Homes Ltd v. Smiley 2015 Ont Div Ct

A general contractor registered a claim for lien against owner’s property and commenced an action to enforce the lien and for payment on contract. The general failed to set the action down for trial within 2 years of commencement of the action contrary to section 37 of the Construction Lien Act. Section 46(1) of the CLA mandates that, under those circumstances, a court, upon motion, must declare that a lien has expired and make an order dismissing the action to enforce the lien and vacate the registration of the claim for lien. Section 46(2) provides that the motion can be brought without notice, but no order of costs will be given in those circumstances. The owner brought the motion without notice and the motions judge dismissed the entire action. The owner appealed. It was willing to see its lien action dismissed, but not the contract portion of the action. The Divisional Court held that, if the contractual portion of the action is to be dismissed, the motion must be on notice.

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