Executive Summary: Key Legal and Evidentiary Issues

• Dispute over whether the construction lien was preserved within the 60-day time limit under section 31 of Ontario’s Construction Act.
• Acceptance by both parties, via affidavit and pleadings, that October 6, 2024 was the last date of supply for the Northwood Project.
• Characterization of the October 6, 2024 work as mere cleanup and tool removal, raising the evidentiary issue of whether such work is “lienable” because it improves the property.
• Reliance on affidavit evidence and pleadings to establish the last supply date and to calculate the expiry of lien rights, leading to a finding that the lien was registered out of time on December 6, 2024.
• Exercise of the court’s powers under sections 45 and 47 of the Construction Act to declare the lien expired, vacate the claim for lien and certificate of action from title, and direct the land registrar accordingly.
• Continuation of the dispute as a simplified procedure civil action in contract, with the lien discharged but the contractor’s breach of contract claim expressly preserved.

Background and parties

This case arises from a construction dispute between a contractor and a property owner following flood damage to a lodge property in Manitouwadge, Ontario. The plaintiff/defendant by counterclaim, Zachary King-Beland (KB), operates a sole proprietorship that provides construction services. The defendant/plaintiff by counterclaim, Kevin Albert Turner (KAT), operates a bed and breakfast lodge business on the property municipally known as 371 Manitou Road in Manitouwadge, District of Thunder Bay. KB was retained by KAT in March 2024 as a completion general contractor for remediation work after an initial contractor, Service Master, failed to complete flood remediation to KAT’s satisfaction. The parties referred to this remedial construction engagement as the “Northwood Project.” Under their agreement, the total cost of labour and materials was $118,620.63 inclusive of taxes, plus any additional costs for work outside the scope of the original cleanup contract.

Flood damage, the Northwood Project, and breakdown of relations

The property had suffered flood damage in September 2023, giving rise to the need for extensive remediation and reconstruction work. By March 2024, KAT turned to KB to complete and remedy deficiencies left by the previous contractor. That engagement formed the basis of the Northwood Project, a construction undertaking intended to restore the property and enable KAT’s lodge business to continue operating. Over the following months, KB and his workers supplied labour and materials to the property. A dispute developed over the sufficiency and quality of KB’s work, as well as payment. On October 5, 2024, the parties met at the property, and KB demanded full payment for the services and materials supplied to date. KAT refused to pay, creating a clear breakdown in the contractual relationship. The next day, October 6, 2024, workers employed by KB attended at the property. The court later characterized this attendance, based on KB’s own affidavit, as involving cleanup and tool-removal work, including removal of tools and equipment and final organization of the work area, rather than substantive construction improvements.

Registration of the lien and commencement of the action

In response to the non-payment dispute, KB resorted to the lien remedies under Ontario’s Construction Act, R.S.O. 1990, c. C.30. On December 6, 2024, KB caused a claim for lien to be registered against title to KAT’s property. The lien was preserved by registration against the identified legal description of the property in the appropriate land registry office. KB later purported to perfect the lien by issuing a Certificate of Action and Statement of Claim on March 4, 2025. The Statement of Claim expressly pleaded that October 6, 2024 was the last date of supply of construction services to the property. Thus, KB’s own pleading aligned with KAT’s evidence as to the last day of work associated with the Northwood Project. The registration of the lien and the subsequent commencement of the action encumbered KAT’s title and led to this motion, in which KAT sought to vacate the lien and have the action proceed as an ordinary civil claim under the simplified procedure in the Rules of Civil Procedure.

Legal framework under the Construction Act

The court, per Fitzpatrick J., set out the governing provisions of the Construction Act regarding expiry, preservation, and perfection of liens. Section 31 establishes that, unless preserved under section 34, liens expire after specified 60-day periods, depending on whether there has been a certificate or declaration of substantial performance or completion, abandonment, or termination of the contract. In situations such as this, where the lien arises from the services or materials supplied and there is no reference to a certificate or declaration of substantial performance, the lien expires at the end of the 60-day period following the earlier of the contract’s completion, abandonment, or termination. Section 34 provides that a lien attaching to premises is preserved by registering a claim for lien in the proper land registry office before it expires. Section 36 stipulates that a lien cannot be perfected unless it has first been preserved in time. Section 38 clarifies that the expiration of a lien does not affect any other legal or equitable rights or remedies otherwise available to the lien claimant. Sections 45 and 47 give the court the power, on motion, to declare a lien expired, order that the registration be vacated, and discharge a lien or related registrations on any proper ground. Those provisions formed the statutory basis for KAT’s request that the lien and certificate of action be vacated from title.

Evidentiary issues on last supply and nature of the work

The critical issue on the motion was whether the time for registering the lien had already expired by December 6, 2024. The calculation depended on identifying the last date on which lienable services or materials were supplied to the improvement. At paragraph 9 of his affidavit, KAT deposed that the last date on which services were supplied to the project was October 6, 2024. The court allowed KAT’s affidavit to be filed late, after confirming its contents on the record, and directed that it be added to the electronic case bundle. Importantly, KB’s own Statement of Claim pleaded that October 6, 2024 was the last day of supply to the Northwood Project. The court treated these consistent sources—the defendant’s affidavit and the plaintiff’s pleadings—as conclusive evidence of the last date of supply. Determining whether the October 6 activities were capable of extending lien rights raised a secondary evidentiary and legal question. KB’s affidavit referred to potential evidence from workers who attended to do cleanup and tool-removal work on that date, but no such evidence was filed despite KB being given extended time to deliver materials. Fitzpatrick J. denied KB’s late request to file additional materials, concluding there was no need, because the work on October 6 was already properly described and characterized on the record.

Analysis of lien expiry and characterization of the October 6 work

Using October 6, 2024 as the last date of supply, the court held that the 60-day period for preserving the lien under section 31(1) expired on December 5, 2024. A lien registered on December 6, 2024 was therefore one day too late. The judge expressly found that the lien had expired pursuant to section 31(1) by the time it was registered. The court also accepted KAT’s submission that the October 6 work itself was not “lienable” in any event. It was described as minor, trivial, or cleanup work that did not improve the property so as to create or extend lien rights, referencing Demasi Contracting Inc. and AMT Group, 2023 ONSC 5555, where similar principles on non-improving cleanup work were applied. On that reasoning, even if one attempted to rely on October 6 as the last date, the nature of the work would not qualify as the supply of services or materials that improve the property for the purposes of lien preservation. There were no policy wordings or insurance clauses in issue in this decision. The Construction Act provisions themselves functioned as the governing statutory “terms,” and no insurance or other policy contracts were analyzed or interpreted by the court.

Orders vacating the lien, continuation of the action, and costs

Having found that the lien was registered out of time and that the October 6, 2024 work did not extend lien rights, the court exercised its powers under section 47 of the Construction Act. Fitzpatrick J. declared that the construction lien preserved by the claim for lien registered as Instrument Number TY357651 on title to the property had expired, and ordered that the registration of that claim for lien be vacated, together with the certificate of action bearing Instrument Number TY360747. The judge authorized KAT to prepare the necessary documentation to give effect to the order, dispensed with the need for KB’s approval of the order as to form and content, and directed that upon registration of a certified copy of the order, the land registrar was to vacate both the claim for lien and the certificate of action from title. Despite the expiry and discharge of the lien, the judge relied on section 38 of the Construction Act to confirm that KB’s underlying contractual rights remained intact. The court ordered that the action continue under the Simplified Rules of Civil Procedure as a breach of contract and related civil claim, and granted KB leave to serve and file a fresh as amended pleading removing references to the lien by January 30, 2026, with corresponding leave to KAT to file an amended defence and counterclaim by February 28, 2026. In terms of monetary consequences, the court fixed costs of the motion at $4,000, inclusive of disbursements and HST, payable in favour of KAT. The judge noted that fixing costs at that level was the most efficient and proportionate way to move the matter forward and reflected anticipated reasonable fees associated with vacating the lien and certificate of action from title. No damages on the underlying construction dispute were determined in this decision; only the costs award was quantified. Thus, the successful party on the motion was KAT, in whose favour the court ordered a total amount of $4,000 in costs, with any damages or further monetary awards on the merits of the contract dispute to be determined, if at all, in future proceedings.