377726 Ontario Ltd. v. Simcoe County Board of Education, Bondfield Construction Ltd. and Omni Mechel Ltd., (1984) 2 O.A.C. 344 (DC)

• Judge: Osler, Steele and Sirois, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: November 17, 1983
• Jurisdiction: Ontario
• Citations: (1984), 2 O.A.C. 344 (DC)

377726 Ont. Ltd. v. Simcoe School Bd. (1984), 2 O.A.C. 344 (DC)

MLB headnote and full text

377726 Ontario Limited under the firm name and style of King Air Systems v. Simcoe County Board Of Education, Bondfield Construction Limited and Omni Mechel Limited

Indexed As: 377726 Ontario Ltd. v. Simcoe County Board of Education, Bondfield Construction Ltd. and Omni Mechel Ltd.

Ontario Divisional Court

Osler, Steele and Sirois, JJ.

January 30, 1984.

Summary:

The plaintiff, a subcontractor of Omni Mechel Ltd. (the mechanical subcontractor), brought a mechanics' lien action against Omni Mechel Ltd., the owner and the general contractor.

The Ontario Supreme Court, in a decision unreported in this series of reports, granted the plaintiff judgment against Omni Mechel Ltd., but dismissed the action against the owner and the general contractor on the ground that there was no valid mechanics' lien because the claim for lien was not registered within the time limits. The plaintiff appealed.

The Ontario Divisional Court, Steele, J., dissenting in part, allowed the appeal and held that the plaintiff was entitled to a valid mechanics' lien.

Mechanics' Liens - Topic 5019

Obtaining a lien - Claim for lien - Filing of - Time for filing - Substantial completion - S. 22(1) of the Mechanics' Lien Act provided that a claim for lien may be registered within 37 days after the completion of the contract - After an architect certified that substantial completion occurred the plaintiff, at the general contractor's request, performed work which was a necessary part of its contract - The Ontario Divisional Court held that, despite the certificate, the plaintiff's contract had not been substantially completed within the meaning of s. 1(3), because, inter alia, the work was not ready for use - Therefore the plaintiff's lien was filed on time - See paragraphs 3 to 5, 16 to 21.

Mechanics' Liens - Topic 5243

Obtaining a lien - Notice of lien - When required - The Ontario Divisional Court upheld a subcontractor's mechanics' lien against the general contractor and the owner, regardless that no notice of the lien was given to the owner and all monies were paid by the owner to the general contractor pursuant to an architect's completion certificate, where the lien was registered within the time limits - See paragraphs 6 to 13, 21 to 29.

Cases Noticed:

S.I. Guttman Ltd. v. James D. Mokry Ltd. et al., [1969] 1 O.R. 7, refd to. [para. 22].

Vaillancourt Lumber Co. Ltd. v. Trustees of Separate School Section No. 2, Township of Balfour et al., [1964] 1 O.R. 418, refd to. [para. 22].

Freedom v. Guaranty Trust Co. (1929), 64 O.L.R. 200, refd to. [para. 23].

Canadian Cutting & Coring (Toronto) Ltd. v. Howson et al., [1968] 2 O.R. 449, refd to. [para. 26].

Statutes Noticed:

Mechanics' Lien Act, R.S.O. 1980, c. 261, sect. 1(3)(b)(i) [para. 3]; sect. 1(4) [para. 4]; sect. 6(1) [para. 22]; sect. 10 [para. 22]; sect. 11 [paras. 6, 22]; sect. 12(2) [paras. 6 to 8, 10, 22 to 23, 27]; sect. 12(3) [paras. 7, 11, 23]; sect. 12(7) [paras. 7, 23]; sect. 12(8) [paras. 7, 10, 27]; sect. 12(10), sect. 12(11) [para. 27]; sect. 22 [paras. 9, 11]; sect. 24, sect. 25, sect. 26, sect. 27 [para. 10].

Counsel:

D.J. Plaxton, Q.C., for the appellant;

E. Meyers, for the respondent, Simcoe County Board of Education;

Altor Shields, for the respondent, Bondfield Construction Limited.

This appeal was heard before Osler, Steele and Sirois, JJ., of the Ontario Divisional Court on November 17, 1983. The decision of the Divisional Court was released on January 30, 1984, when the following opinions were filed:

Sirois, J. - see paragraphs 1 to 13;

Steele, J., dissenting in part - see paragraphs 14 to 29.

Osler, J., concurred with Sirois, J.