Date: October 2023
Our firm recently received a short and useful endorsement (in a very specific circumstances) where I appeared before Regional Senior Justice Ricchetti on a preliminary motion to determine whether my clients (homeowners), who had been noted in default over three years ago while unrepresented, had standing to bring a motion to discharge a lien as expired.
My two arguments were as follows:
1. A motion under section 46(1) of the Construction Act can be brought by “any person” and therefore a party is not precluded from doing so just because they have been noted in default.
2. In the alternative, if a party that is noted in default cannot bring a motion under section 46(1) without leave, leave should be granted pursuant to s. 5(2) of O/Reg 302/18 under the Construction Act, because there is evidence to support a defence.
Upon review of the evidence, Justice Ricchetti found that that there is little or no dispute that the trial record of the lien claimant was filed more than two years after the mandatory statutory two-year deadline.
As a result, Justice Ricchetti granted leave for the motion to be heard based on my alternative argument. Justice Ricchetti found it unnecessary to address my first argument.
The result represents a positive step in the right direction for my clients. The lien claimant is a subcontractor and without its lien action, it will likely not have any remaining valid cause of action in this matter against the homeowners.