1475707 Ontario Inc. v. Foran, 2014 ONCA 830

• Judge: MacFarland, LaForme and Lauwers, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 09, 2014
• Jurisdiction: Ontario
• Citations: 2014 ONCA 830;(2014), 328 O.A.C. 201 (CA)

1475707 Ont. v. Foran (2014), 328 O.A.C. 201 (CA)

MLB headnote and full text

Temp. Cite: [2014] O.A.C. TBEd. DE.001

In The Matter Of the Construction Lien Act, R.S.O. 1990, c. C-30, as amended

1475707 Ontario Inc. operating as Action Electric Construction and Maintenance (plaintiff/respondent) v. David Foran (defendant/appellant)

(C58635; 2014 ONCA 830)

Indexed As: 1475707 Ontario Inc. v. Foran

Ontario Court of Appeal

MacFarland, LaForme and Lauwers, JJ.A.

November 24, 2014.

Summary:

The plaintiff's action under the Construction Lien Act was set down for trial before it had filed a defence to the defendant's counterclaim. A motions judge vacated the setting down for trial and held that the plaintiff's lien claim had expired as it had not been set down within two years from the commencement of the action as required by s. 37 of the Act. The plaintiff appealed, asserting that while there was no judicial discretion to relieve against the two year time limit, the court had discretion under Civil Procedure Rule 2.01 to relieve against the irregularity of a trial record which did not contain the statement of defence to the counterclaim.

The Ontario Divisional Court, Matlow, J., dissenting, in a decision reported at 316 OA.C. 153, allowed the appeal. The defendant appealed.

The Ontario Court of Appeal dismissed the appeal.

Mechanics' Liens - Topic 6983

Loss or discharge of lien - Loss by operation of statute - Expiration of time period - The plaintiff's action under the Construction Lien Act was set down for trial before it had filed a defence to the defendant's counterclaim - A motions judge vacated the setting down for trial and held that the plaintiff's lien claim had expired as it had not been set down within two years from the commencement of the action as required by s. 37 of the Act - The plaintiff appealed, asserting that while there was no judicial discretion to relieve against the two year time limit, the court had discretion under Civil Procedure Rule 2.01 to relieve against the irregularity of a trial record which did not contain the statement of defence to the counterclaim - The Divisional Court allowed the appeal - The Ontario Court of Appeal dismissed the defendant's appeal - The important fact was that the plaintiff did set the action down within the two years and the defendant knew it - The fact that the record was irregular for want of a pleading was curable by use of rule 2.01 - This did not, as the defendant claimed, "effectively extend the two-year limitation" under s. 37 - That deadline was met when the plaintiff set the matter down for trial, albeit imperfectly - To hold otherwise would be to ignore the clear language of rule 2.01 - See paragraphs 17 to 43.

Practice - Topic 2806

Curative provisions - For noncompliance with rules - [See Mechanics' Liens - Topic 6983 ].

Practice - Topic 5207

Trials - General - Trial list - [See Mechanic's Liens - Topic 6983 ].

Cases Noticed:

Ravenda Homes Ltd. v. 1372708 Ontario Inc. et al., [2010] O.T.C. Uned. 881 (Sup. Ct.), disagreed with [para. 8].

Pineau v. Kretschmar Inc. (2004), 37 C.L.R.(3d) 29 (Ont. C.J.), dist. [para. 32].

Beaver Engineering Ltd. v. Swedlove (1994), 111 D.L.R.(4th) 750 (Ont. Div. Ct.), refd to. [para. 33].

310 Waste Ltd. et al. v. Casboro Industries Ltd. et al. (2006), 213 O.A.C. 150; 83 O.R.(3d) 314 (Div. Ct.), consd. [para. 36].

Statutes Noticed:

Civil Procedure Rules (Ont.) - see Rules of Civil Procedure (Ont.).

Construction Lien Act, R.S.O. 1990, c. C-30, sect. 37 [para. 16].

Rules of Civil Procedure (Ont.), rule 2.01(1), rule 48.01 [para. 16].

Counsel:

Mark Abradjian and Renata Kis, for the appellant, David Foran;

David Thompson, for the respondent, 1475707 Ontario Inc.

This appeal was heard on October 9, 2014, by MacFarland, LaForme and Lauwers, JJ.A., of the Ontario Court of Appeal. MacFarland, J.A., released the following judgment for the court on November 24, 2014.