Legal Blog

Trial, Set Down

Cosmos Hardwood Floors Ltd. v. Singh 2016 Ont SCJ

Corporation served and filed a trial record to enforce a claim for lien. Then corporation was dissolved pursuant to the Business Corporations Act. The action was struck from the trial list at an unknown time – either before or after dissolution. Years later, the owner moved to discharge the lien. The judge noted that a perfected lien expires under section 37(1) of the Construction Lien Act unless an order is made for the trial of the action or the action is set down for trial in the normal course by way Rule 48.02. The judge noted that there is a different function and purpose to set down an action for trial compared to having an action placed on the trial list. A party sets down an action for trial; the registrar, as an administrator function, places the action on a trial list. Merely because an action is struck off the list does not mean that the action has not been properly set down for trial. Accordingly, regardless when the action was struck from the trial list, the lien remained valid once the action had been set down for trial. However, under section 18 of the Corporations Information Act, once the corporation was dissolved, it was incapable of maintaining a court proceeding. The judge therefore stayed the action until, and if, the corporation is properly revived or, upon motion, the corporation obtains leave of the court to continue the action.

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