Although general timeliness is a must under the Construction Act (“CLA”), there are two specific time-periods that are, arguably, more important than preserving and perfecting one’s lien rights, especially for lawyers representing lien claimants.

Service

Once a lien has been preserved and subsequently perfected by commencement of an action, the plaintiff(s)/lien claimant(s) must serve the Statement of Claim, outlining the lien action, within ninety (90) days after the Statement of Claim is issued. This service-period is significantly shorter in contrast with the requirement under ordinary civil procedure. Under the Rules of Civil Procedure, a plaintiff must serve a Statement of Claim within six months after same is issued.[1]

Section 53(2) of the Old CLA and Section 1(2) and (3) of the Regulations under the New CLA state that, where a plaintiff/lien claimant fails to serve the Statement of Claim within ninety days, it can apply to the Court for an extension of the time for service of same.[2]

However, the Court is not always lenient in an extension of service. If a plaintiff/lien claimant fails to demonstrate that a) the length of the delay was not too significant, b) there were compelling reasons; and c) the defendant was not prejudiced by the delay in service, it could lose its lien rights and have its lien discharged.[3]

On the other hand, even though the time-period for service is more strict and shorter than with ordinary civil proceedings, the CLA permits for Statements of Claim to be served by means of registered mail.[4] This luxury that is not afforded in ordinary civil proceedings, where a plaintiff must serve its Statement of Claim by way of personal service, unless otherwise granted.[5]

Trial

Another condensed time period relates to when the action must be set down for Trial. Under the Rules, in ordinary civil proceedings, a plaintiff has five years from the commencement of the action to set the matter down for Trial.[6] In contrast, actions brought under the CLA must be set down within two years after commencement of the proceedings, otherwise lien claimants face a declaration by the court that their liens have expired.[7] The effect in both CLA and ordinary civil proceedings is the same – failing to abide by this rule may result in the entire action being dismissed for delay.[8]

Practice Points on Timelines

The past few weeks we discussed the various important timelines under the CLA. Although they may appear frightening and complex, the implementation of these timeliness requires mere diligence and organization on the part of the lien claimant and his or her lawyer.

A cautious individual might keep track of these dates as soon as lien rights arise. A prudent individual will go further to mark mile-stone points far in advance of actual deadlines, and never leave matters until the last day.

We look forward to you joining us next week for a look at exaggerated liens.

Until next week!

The foregoing is for informational purposes only, and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of Sutherland Law's lawyers by email or telephone.

[1] R.R.O. 1990, Reg. 194., r. 14.08(1) [Rules].

[2] CLA, s. 53(2); O. Reg. 302/18, s. 1(2) & (3).

[3] MGI Construction Corp. v. 2273865 Ontario Inc and Frank Bosso, 2015 ONSC 4716, 2015 CarswellOnt 1121 at paras 9 and 21.

[4] CLA, s. 87(1).

[5] Rules, r. 16.01.

[6] Ibid, r. 48.14(1).

[7] CLA, s. 37(1).

[8] CLA, s. 46(1); Rules, r. 48.14(1).