Construction Lien matters are on the rise with the downturn of the economy, so I’m taking my turn on the Blog to get super legal about how we can deal with liens quickly at times.
Under s. 47 of the Construction Act, a claim for a lien can be discharged by way of a motion. On its surface, a s. 47 motion to discharge a lien is similar to a Rule 20 summary judgment motion under the Rules of Civil Procedure because the test for both is whether there is a triable issue with respect to any of the bases on which the relief claimed is sought. However, there are some important procedural differences which the court recently clarified in the case of Built By Engineers v Coronation Medical Plaza, 2023 ONSC 2969 (CanLII).
In a motion for summary judgment, Rule 20.04(2.1) and (2.2) of the Rules of Civil Procedure, permit a judge to exercise “enhanced” fact-finding powers including weighing evidence, evaluating the credibility of deponents and drawing reasonable inferences based on the evidence. A judge hearing a S. 47 motion has no equivalent powers.
In the above case, Coronation and BBE entered into the contract in 2015, so the provisions of the former Construction Lien Act (“CLA”) still applied. Coronation brought a motion seeking to discharge BBE’s lien on the basis that they were out of time to do so. Under the CLA, a construction lien expires 45 days after the contract was completed. A contract is deemed to be completed when the price of completion, correction of a known defect or last supply is not more than the lesser of (a) 1% of the contract price; or (b) $1,000.
At the hearing, the motion judge found that the disputed factual issues could not be determined without making findings of credibility. Because a judge hearing a s. 47 motion does not have the enhanced fact-finding powers that motion judges hearing summary judgment do, a trial was required, and Coronation’s motion was accordingly dismissed.
The lien judge’s jurisdiction and the procedural tools and powers available to the court are important considerations to the type and nature of the motion being sought and heard. This case serves as a reminder that a s. 47 motion under the Act is not a suitable avenue of relief for cases where the trial judge has to make findings of fact and credibility.
Max H. Shin, Associate Lawyer