Date: June 2024
I often get calls from contractors who want to register liens for unpaid work on projects. In many cases, contractors are of the view that lien rights expire 60-days from the last time they had been at the project working. Especially for contractors, as opposed to subcontractors, the analysis is not so simple.
One of the triggers with respect to the running of the 60-day period to lien can be the termination or abandonment of a contract.
A recent motions decision from Justice Nicholson discusses the analysis used by courts in determining when a contract was terminated or abandoned for the purpose of determining whether a lien was perfected in time.
In this case (involving a motion pursuant to s. 47 of the Construction Act) Justice Nicholson goes through the evidentiary record to determine if/when the contract was terminated or abandoned and concludes that the plaintiff’s lien was expired because it was not perfected in time.
Couple key principles:
1. The plaintiff bears the onus of demonstrating that the lien was perfected in time.
2. In these motions, the contractor will always be inclined to say that it did not intend to abandon the contract. However, that intention must be demonstrated by actions.
Well written decision applying these construction law fundamentals.
Click here for a link to the decision.