Mohiuddin v. Ahmadiyya Movement In Islam (Ontario) Inc., (1995) 85 O.A.C. 362 (CA)

• Judge: Finlayson, Weiler and Laskin, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: August 14, 1995
• Jurisdiction: Ontario
• Citations: (1995), 85 O.A.C. 362 (CA)

Mohiuddin v. Ahmadiyya Movement (1995), 85 O.A.C. 362 (CA)

MLB headnote and full text

Mohamad Mohiuddin carrying on business as Build-Rite Builders, Contractors and Developers (plaintiff/appellant) v. Ahmadiyya Movement In Islam (Ontario) Inc. (defendant/respondent)

(M14330)

Indexed As: Mohiuddin v. Ahmadiyya Movement In Islam (Ontario) Inc.

Ontario Court of Appeal

Finlayson, Weiler and Laskin, JJ.A.

September 8, 1995.

Summary:

In 1990, the appellant registered a claim for lien and a certificate of action against the respondent's title. After several attempts to cross-examine the appellant on his affidavit respecting the lien claim, the respondent successfully moved to dismiss the appellant's action. In 1991, the appellant filed a notice of appeal. In 1995, the respondent sought to have the appellant's appeal quashed, arguing that contrary to s. 37 of the Construction Lien Act, over two years had expired from the date that the action was commenced and no trial date had been set.

The Ontario Court of Appeal allowed the application and quashed the appeal.

Mechanics' Liens - Topic 6922

Loss or discharge of lien - Discontinuance of action - Expiry of limitation period - [See both Mechanics' Liens - Topic 6983 ].

Mechanics' Liens - Topic 6983

Loss or discharge of lien - Loss by oper­ation of statute - Expiration of time period - In 1990, the appellant registered a claim for lien and a certificate of action against the respondent's title - After several attempts to cross-examine the appellant on his affidavit respecting the lien claim, the respondent successfully moved to dismiss the appellant's action - In 1991, the appel­lant filed a notice of appeal - In 1995, the respondent sought to have the appellant's appeal quashed, arguing that contrary to s. 37 of the Construction Lien Act, over two years had expired from the date that the action was commenced and no trial date had been set - The Ontario Court of Appeal allowed the application and quashed the appeal.

Mechanics' Liens - Topic 6983

Loss or discharge of lien - Loss by oper­ation of statute - Expiration of time period - Section 37 of the Construction Lien Act (Ont.) provided that a perfected lien would expire if no trial date was fixed or if an action was not set down for trial within two years from the date the action was commenced - The Ontario Court of Appeal assumed, without deciding, that there was "some discretion in the court in dealing with s. 37 of the Construction Lien Act".

Cases Noticed:

Schultz (Benjamin) & Associates Ltd. v. Samet (1991), 52 O.A.C. 180; 4 O.R.(3d) 771 (Div. Ct.), refd to. [para. 5].

Forest Carpentry Ltd. v. Shoppers Trust Co. et al. (1994), 69 O.A.C. 53; 17 O.R.(3d) 47 (Div. Ct.), consd. [para. 7].

Statutes Noticed:

Construction Lien Act, R.S.O. 1990, c. C-30, sect. 37(1) [para. 5].

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 134 [para. 6].

Counsel:

R. Gosbee, for the appellant;

R. Barrett, for the respondent.

This appeal was heard on August 14, 1995, before Finlayson, Weiler and Laskin, JJ.A., of the Ontario Court of Appeal. The follow­ing judgment was endorsed on the appeal record by the Court of Appeal and released on September 8, 1995.