Lien Actions vs. Regular Civil Actions….they are not the same.

Date: June 2023

As a construction lawyer, I always make sure that my client or prospective client understands the significance of registering a lien on title (and eventually commencing a lien action). The decision to do so should not be taken lightly, and once registered a lien claimant has an obligation to act with expediency and move its matter forward summarily. This is because once a lien is registered, a property becomes “encumbered by virtue of what is really a pre-judgment remedy”.

A recent motions decision demonstrates the heightened level of responsibility on a plaintiff in a lien action relative to a plaintiff in a civil action.

In this case, a lien claimant who was also the plaintiff in a civil counterclaim, continuously failed to, among other things, produce documents to substantiate its claims, despite being given several opportunities. As a result, the motions judge found that the plaintiff had failed to move its lien claim forward with expediency or summarily and, pursuant to s. 47(1.1) of the Construction Act, made an order discharging the lien, vacating the certificate of action, and dismissing the plaintiff’s lien claim.

However, although the lien claim and related civil counterclaim had been ordered to be heard together, the analysis for whether to dismiss the civil counterclaim was a lot different.

The moving party relied on Rule 60.12 which, in part, allows the court to dismiss an action based on persistent non-compliance with production orders. Regular civil actions are not summary in nature like a lien action. After going through the test for Rule 60.12 motions, the motions judge opted to give the plaintiff in the civil counterclaim one last chance to fulfill undertakings. The civil counterclaim was not dismissed

.Click here for a link to the decision.

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