Executive Summary: Key Legal and Evidentiary Issues

• Motion sought to vacate construction liens and certificates of action under section 44 of the Construction Act.

• The court criticized the moving parties for filing excessively lengthy materials lacking hyperlinks or bookmarks.

• The urgency claim was rejected due to long-standing knowledge of the lien claims and refinancing plans.

• The court emphasized that delay caused by counsel or clients does not constitute legal urgency.

• Judicial resources must not be diverted to accommodate improperly labeled urgent motions.

• Leave to bring urgent motions was denied, but the court allowed a conditional written hearing to avoid harm to a refinancing transaction.

Background and parties involved

Magil Construction Ontario Inc. is the plaintiff in ongoing construction lien litigation against JBelli Holdings Inc., Freshouse Foods Ltd., and other defendants. The dispute relates to claims for lien under the Ontario Construction Act, with Magil Construction asserting significant unpaid amounts—over $5 million and nearly $2 million in two separate claims. The defendants, JBelli and Freshouse, are seeking to vacate these claims and the corresponding certificates of action by posting security, as they are attempting to refinance a property and need to clear title before a deadline of July 17, 2025.

Request for urgent motion and court response

On July 4, 2025, counsel for JBelli and Freshouse submitted a request to bring an urgent motion under section 44 of the Construction Act to vacate the lien claims and allow the refinancing to proceed. The court, through Justice C. Chang, strongly criticized the manner and substance of the request. The motion materials were described as excessive—over 200 pages each—without hyperlinks or bookmarks, which the court found unacceptable and burdensome.

Most significantly, the court found that the request did not meet the threshold for legal urgency as set out in the Notice to the Profession and Parties. The liens had been registered in 2020, and the issue of vacating them was already discussed in a case management conference in December 2024. The court held that the refinancing timeline did not suddenly arise and that the delay was due to the moving parties' failure to act promptly. It rejected the notion that parties could create urgency through their own inaction and then demand priority access to judicial resources.

Limited accommodation by the court

Although the request for leave to bring an urgent motion was denied, the court exercised discretion to prevent the refinancing from collapsing. Justice Chang permitted the motion to proceed in writing, subject to strict conditions. These included resubmission of properly formatted materials, an affidavit from a lawyer explaining the delay, and full disclosure of the refinancing details, including the amount, closing date, and any extension terms. The moving parties were also prohibited from seeking costs in connection with the motion.

Outcome and implications

The court’s ruling sends a clear message about the misuse of the urgent motion process in civil litigation. It reinforced that urgency must be genuine and not self-created through delay. While the court was willing to grant a one-time procedural indulgence to avoid material harm, it warned that such accommodations should not be expected in the future. The decision underscores the importance of procedural discipline, responsible litigation conduct, and efficient use of scarce judicial resources in construction law and broader civil practice.