Delview Constr. Ltd. v. Meringolo, (2004) 187 O.A.C. 316 (CA)

• Judge: Goudge, Simmons and Juriansz, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 03, 2004
• Jurisdiction: Ontario
• Citations: (2004), 187 O.A.C. 316 (CA)

Delview Constr. Ltd. v. Meringolo (2004), 187 O.A.C. 316 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. JN.033

Delview Construction Limited (plaintiff/appellant) v. Claudio Meringolo (defendant/respondent)

(C40726)

Indexed As: Delview Construction Ltd. v. Meringolo

Ontario Court of Appeal

Goudge, Simmons and Juriansz, JJ.A.

June 3, 2004.

Summary:

In 1998, the plaintiff Delview Construction Limited registered a construction lien against the defendant's property. The plaintiff then sued the defendant claiming enforcement of its claim for lien and payment of the balance owing under a construction contract. Following completion of examinations for discovery, the defendant moved for an order dismissing the plaintiff's action and vacating the plaintiff's claim for lien on the grounds that the plaintiff was not an existing corporation at the time the lien was registered and the action commenced. The plaintiff then requested an order permitting it to amend its statement of claim and claim for lien and substitute the name "826744 Ontario Limited carrying on business as Delview Construction" for the name "Delview Construction Limited". The plaintiff filed evidence that 826744, which had been dissolved in 1995, had been revived in 2002.

A motions judge allowed the defendant's motion for dismissal with respect to the claim for lien. The judge dismissed the motion with respect to the contract claim. The judge made no ruling on the plaintiff's request for a corporate name substitution. The plaintiff appealed. The defendant cross-appealed.

The Ontario Divisional Court, in a decision unreported in this series, dismissed the appeal, allowed the cross-appeal and dismissed the action. The plaintiff appealed.

The Ontario Court of Appeal allowed the appeal in part. The plaintiff's contract action was allowed to continue. The court allowed the request for a corporate name substitution. The court's order was subject to a term that it was without prejudice to the defences which could be raised with respect to rights acquired during the period in which 826744 was dissolved and which version, 1990 or 2000, of s. 241(5) the Ontario Business Corporations Act should be applied in determining such issues.

Company Law - Topic 9266

Dissolution or surrender or forfeiture of charter - Effect of restoration (after dissolution) of corporate status - Re court proceedings - The Ontario Court of Appeal ruled that a revived corporation could not proceed with a construction lien action where the time limits under the Construction Lien Act (Ont.) for preserving and perfecting the lien expired while the corporation was dissolved - However, the court allowed the revived corporation to continue its action for the balance payable under a construction contract where the limitation period had not yet expired but subject to defences which could be raised respecting rights acquired by the defendant during the time the corporation was dissolved.

Cases Noticed:

602533 Ontario Inc. v. Shell Canada Ltd. (1998), 106 O.A.C. 183; 37 O.R.(3d) 504 (C.A.), refd to. [para. 11].

Schultz (Benjamin) & Associates Ltd. v. Samet (1991), 52 O.A.C. 180; 4 O.R.(3d) 771 (Div. Ct.), refd to. [para. 11].

Basarsky v. Quinlan, [1972] S.C.R. 380, refd to. [para. 11].

Statutes Noticed:

Business Corporations Act, R.S.O. 1990, c. B-16, sect. 241(5) [para. 10].

Counsel:

A.J. Esterbauer, for the appellant;

Gary A. Beaulne, for the respondent.

This appeal was heard on April 28, 2004, by Goudge, Simmons and Juriansz, JJ.A., of the Ontario Court of Appeal.

The decision of the Court of Appeal was delivered by Simmons, J.A., and released on June 3, 2004.