A construction lien is a “charge” registered to the title of the property where a contractor either provided services or materials (or both) to an improvement of the property, and the contractor has not been paid for same.
The Construction Act in Ontario allows matters that are within the monetary jurisdiction of the Small Claims Court, currently at $35,000.00, to be tried in Small Claims Court, rather than Superior Court.
However, the Action still commences in Superior Court.
A contractor has 60 days from the last day of work, date of substantial completion of the contract or termination of the Contract to “preserve” their lien. This is done by registering their lien with the Land Registry Office to the title of the property. The contractor must then “perfect” their lien within 90 days of registering their lien by commencing an Action in Superior Court.
Once the Statement of Claim is served on defendants, a Statement of Defence (and Counterclaim, if applicable) must then be served and filed with the Court.
Upon the closing of pleadings (ten days after the time to defend and/or reply has expired) , either the Plaintiff(s) or Defendant(s) brings a Motion with the Superior Court to transfer the Action to the Small Claims Court of the jurisdiction where the property is located.
Once the Motion is filed (usually in writing and on consent), the Judge will Order that the file be transferred to the appropriate Small Claims Court. A Requisition to Transfer is then submitted to the Clerk of the Superior Court to starts the process of transferring the file.
Once the Small Claims Court receives the file, the usual Small Claims Court process commences.
Transferring construction lien matters that are within the monetary jurisdiction of the Small Claims Court gives a little relief to the already heavy docket in Superior Court.
The great thing about our firm, is once the file is transferred to Small Claims Court, our Flat-Fee rates apply which can reduce your legal fees but not the quality of representation, because I’m pretty great!
Murray Brown, Licensed Paralegal
mbrown@andriessen