{"id":1007,"date":"2020-04-16T14:34:46","date_gmt":"2020-04-16T18:34:46","guid":{"rendered":"http:\/\/limitations.ca\/?p=1007"},"modified":"2020-04-16T14:38:50","modified_gmt":"2020-04-16T18:38:50","slug":"ontario-special-circumstances-apply-to-construction-lien-actions","status":"publish","type":"post","link":"https:\/\/limitations.ca\/?p=1007","title":{"rendered":"Ontario: special circumstances apply to construction lien actions"},"content":{"rendered":"

In Pryers Construction Ltd. v. MVMB Holdings Inc<\/em>.<\/a>, the Divisional Court holds that the special circumstances doctrine is not available to a plaintiff in an action to enforce a construction lien.<\/p>\n

\n

[<\/a>14]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In the present case, Riverside was an \u201cowner\u201d within the meaning of s. 1 of the\u00a0CLA.<\/i>\u00a0As a result, Pryers was entitled to a lien on Riverside\u2019s interest in the premises. As that interest was leasehold, Pryers\u2019 ultimate remedy under the Act would have been a sale of the remaining term of the lease, if any. However, Pryers failed to preserve its lien against Riverside\u2019s interest, and as a result, it expired in July 2016.<\/p>\n

\u00a0[<\/a>15]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The trial judge held, and Pryers argues, that the \u201cspecial circumstances\u201d doctrine was available, that such circumstances existed, and that as a result, Pryers was entitled to enforce its lien against Riverside as an \u201cowner\u201d of the property. This was an error of law.<\/div>\n
\u00a0[<\/a>16]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Where the \u201cspecial circumstances\u201d doctrine is available, the court has discretion to add new parties or new causes of action, following the expiry of a limitation period. With respect to actions governed by the\u00a0LA2002,<\/i>\u00a0this doctrine was abolished by s. 21 of that statute:\u00a0Joseph v. Paramount Canada\u2019s Wonderland<\/i>\u00a0(2008),\u00a090 O.R. (3d) 301 (C.A.)<\/span>, at paras.\u00a016 and 25<\/span><\/span>. However, with respect to actions where the applicable limitation period is prescribed by a statute other than the\u00a0LA2002,<\/i>\u00a0the \u201cspecial circumstances\u201d doctrine may remain available:\u00a0Bikur Cholim Jewish Volunteer Services v. Langston\u00a0<\/i>(2009),\u00a02009 ONCA 196 (CanLII)<\/a>,\u00a094 O.R. (3d) 401 (C.A.)<\/span>, at para.\u00a051<\/a><\/span>.<\/div>\n
\u00a0[<\/a>17]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0Relying upon\u00a0Bikur Cholim,<\/i>\u00a0Pryers argues that the \u201cspecial circumstances\u201d doctrine is available to a plaintiff in a construction lien action, and that the trial judge was therefore correct in allowing Riverside to be added as a party defendant, for the purpose of enforcing a lien against it as an \u201cowner\u201d, notwithstanding that the lien was neither preserved nor perfected. I disagree for the following reasons.<\/div>\n
\u00a0[<\/a>18]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0It does not follow from the decision in\u00a0Bikur Cholim<\/i>\u00a0that all limitation or other time periods, contained in statutes other than the\u00a0LA2002,<\/i>\u00a0may be extended based upon the \u201cspecial circumstances\u201d doctrine. In that case, the court referred to its decision in\u00a0Swain Estate v. Lake of the Woods District Hospital<\/i>\u00a0(1992),\u00a01992 CanLII 7601 (ON CA)<\/a>,\u00a09 O.R. (3d) 74 (C.A.)<\/span><\/span>\u00a0where the doctrine was held to apply to an action governed by\u00a0s. 38(3)<\/a>\u00a0of the\u00a0Trustee Act,<\/i>\u00a0R.S.O. 1990, c. T.23<\/a>, and went on to say that the doctrine survived in relation to such actions, despite the fact that it had been abolished for cases governed by the\u00a0LA2002.<\/i>\u00a0However, the doctrine has never been held to apply in an action to enforce a construction lien.<\/div>\n
\u00a0[<\/a>19]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In\u00a0Delview Construction Ltd. v. Meringolo<\/i>\u00a0(2004),\u00a02004 CanLII 11188 (ON CA)<\/a>,\u00a071 O.R. (3d) 1 (C.A.)<\/span>, at para.\u00a011<\/a><\/span>, the court said the following:<\/div>\n
\u00a0[T]he courts have noted that unlike limitation periods where there is a discretion to extend under the\u00a0Basarsky v. Quinlan,<\/i>\u00a01971 CanLII 5 (SCC)<\/a>,\u00a0[1972] S.C.R. 380<\/span><\/span>\u00a0line of cases, the time limits set out in the CLA are prescribed by statute and \u201c[leave] no room for judicial discretion\u201d.<\/div>\n

Basarsky<\/i>\u00a0is one of the sources of the \u201cspecial circumstances\u201d doctrine.<\/p>\n

[<\/a>20]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In\u00a0K.H. Custom Homes Ltd. v. Smiley,<\/i>\u00a02015 ONSC 6037<\/span><\/a>\u00a0(Div. Ct.)<\/span>, at paras. 4f,\u00a0<\/i>this court said the following about the statutory deadlines in the\u00a0CLA:<\/i><\/p>\n

\u00a0These requirements are statutory. They are mandatory. The court has no discretion to relieve from them. The language of the\u00a0CLA<\/i>\u00a0is clear on this point, as is consistent appellate authority.<\/div>\n

This conclusion is consistent with the scheme of the CLA. The first two requirements [time limits for preservation and perfection of liens] are essential to the timely flow of funds on construction sites: persons advancing money to pay for construction may rely upon the state of title before making an advance. This reliance would be compromised if late liens could be placed on title as a result of the court\u2019s exercise of discretion after-the-fact. [Footnotes omitted.]<\/p>\n

[<\/a>21]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0The\u00a0CLA\u00a0<\/i>does not contain a limitation period applicable to claims for breach of contract joined with actions to enforce claims for lien, and there is no conflict between the provisions of the\u00a0CLA<\/i>\u00a0and the\u00a0LA2002\u00a0<\/i>in relation to such claims.\u00a0<\/i>Accordingly, the two-year limitation period under the\u00a0LA2002<\/i>\u00a0applies to contractual claims joined with lien claims: see\u00a0LA2002,<\/i>\u00a0s. 19. In the present case, that limitation period had expired in March of 2018, approximately eight months before the motion to add Riverside was made.<\/p>\n<\/blockquote>\n","protected":false},"excerpt":{"rendered":"

In Pryers Construction Ltd. v. MVMB Holdings Inc., the Divisional Court holds that the special circumstances doctrine is not available to a plaintiff in an action to enforce a construction lien. [14]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0In the present case, Riverside was an \u201cowner\u201d within the meaning of s. 1 of the\u00a0CLA.\u00a0As a result, Pryers was entitled … Continue reading Ontario: special circumstances apply to construction lien actions<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[124,521,581,454,350,559,558,121],"class_list":["post-1007","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-adding-a-party","tag-construction","tag-construction-lien","tag-less-than-special-circumstances","tag-liens","tag-ontario-construction-act-s-31","tag-ontario-construction-act-s-36","tag-special-circumstances"],"_links":{"self":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1007","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1007"}],"version-history":[{"count":4,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1007\/revisions"}],"predecessor-version":[{"id":1012,"href":"https:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/1007\/revisions\/1012"}],"wp:attachment":[{"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1007"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1007"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1007"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}