Executive Summary: Key Legal and Evidentiary Issues

• Determination of whether Alugard’s construction lien was preserved within the strict 60-day period under s. 31 of the Construction Act, based on the true “last lienable supply” date.
• Characterization of March 14, 2025 attendance as non-lienable remedial/repair work versus substantive subcontract work capable of extending the lien preservation deadline.
• Reliance on contemporaneous invoices, deficiency correspondence, and commissioning evidence to show that substantive window and door installation was completed before February 12, 2025.
• Weighing conflicting affidavit evidence on whether work occurred on March 12 or March 14, 2025, and assessing whether any factual dispute rose to the level of a genuine triable issue.
• Application of settled jurisprudence that minor, post-completion remedial or deficiency work does not restart or extend lien preservation periods.
• Use of s. 47 of the Construction Act to discharge and vacate an out-of-time lien and certificate of action, while awarding fixed costs to the successful owner-defendant.

Background and contractual relationships

Alugard Ltd. was a glazing subcontractor on a mixed-use condominium project at 57 Carlisle Street in Ontario (the Property). The registered owner and developer, Nickel Developments Ltd. (Nickel), entered into a prime contract dated July 29, 2021 with View, Inc. (View) for improvements to the Property, including window installation work for the project. View in turn retained Alugard by way of a Master Subcontractor Agreement and a Subcontract Work Order both dated October 14, 2021, under which Alugard agreed to manufacture, supply and install all window wall systems, sliding balcony doors, swing doors, entrance doors, awning windows, vision glass, spandrel, and related storefront glazing on the ground floor. The scope expressly included supply of frames, specified Low-E and View glass, integration of the glass systems, shop drawings and engineering, as well as sill, caulking, flashing, deliveries and transportation.

A further Subcontract Agreement specific to the project was executed between Alugard and View on April 12, 2022. Under these arrangements, Alugard was a subcontractor to View, the prime contractor, while Nickel remained the owner of the Property. Bank of Montreal was also named as a defendant, but did not participate in the motion.

Performance of the project and invoicing history

Alugard supplied services and materials to the project over several years. Commencing April 1, 2022 through to February 12, 2025, it issued twenty invoices to View for work done and materials supplied in relation to its glazing scope. A holdback invoice was then issued on April 1, 2025, seeking payment of the 10% statutory holdback retained on each of the earlier invoices. The nineteenth invoice, dated December 4, 2024, was the last invoice containing substantive installation and change order charges. By the sixteenth invoice onward, Alugard had begun itemizing deficiency-related charges; the later invoices increasingly reflected deficiency and storage items rather than fresh installation work. The twentieth invoice, dated February 12, 2025, was limited to deficiencies and storage containers and retained the 10% holdback. A final holdback invoice dated April 1, 2025 sought only release of accrued holdback amounts and did not bill for any further labour or materials.

In parallel, the project moved into the commissioning phase. View’s Project Engineer, Ryan Walsh, and an independent glazier foreman began commissioning activities on December 1, 2024 and continued through late March 2025. Their evidence established that all windows and sliding glazed doors had been installed by Alugard before commissioning began, which necessarily meant completion of the primary glazing installation by December 1, 2024.

Events leading to the construction lien

On May 13, 2025, Alugard registered a construction lien against the Property in the amount of $250,748.07, and on June 12, 2025 it registered a certificate of action. Its statement of claim issued June 4, 2025 alleged that the lien related to work performed from May 29, 2023 to March 14, 2025. Nickel, in its defence served June 12, 2025, denied liability and pled that the lien was statute-barred under s. 31(1) of the Construction Act because it was not preserved within 60 days of the last lienable supply of services or materials to the improvement.

Nickel then moved, under s. 47 of the Construction Act, for an order discharging and vacating the lien and vacating the certificate of action. The motion was based on the assertion that Alugard’s lien had expired because it was preserved out of time and that the March 2025 work was merely remedial repair work, not fresh lienable supply.

Competing evidence on the last date of supply

The owner, Nickel, relied on two affidavits from its principal, Nicholas Atalick. He deposed that Alugard’s substantial window installation work had been completed by December 23, 2024. He pointed to the pattern of invoicing—particularly the December 4, 2024 invoice as representing billing for substantial completion of the contracted work, and the February 12, 2025 invoice as reflecting completion-type and deficiency charges rather than ongoing installation. He also emphasized the cessation of regular construction activity by Alugard personnel after December 23, 2024, hotel receipts for installers only up to December 2024, and contemporaneous communications in December 2024 that focused on deficiencies and repairs rather than ongoing installation. On Nickel’s account, the only work in March 2025 was a brief attendance on March 12, 2025 to repair damage to a front door lock and glass that had occurred during insulation removal.

Alugard’s project supervisor, Andi Pengili, swore the principal affidavit on behalf of the lien claimant. He confirmed that some earlier references to March 2024 were typographical errors and should have read March 2025. His evidence was that on March 14, 2025, Alugard’s worker, Reza Nikfar, attended the Property to address glass that had been broken during rockwool insulation removal at the back of a window. The work required a swing stage to gain access to the affected exterior area. An email he sent on March 14, 2025 to Mr. Atalick attached photographs of the delivered glass stored inside the unit and the opening where the broken pane needed to be replaced, and explained that Nickel’s team had broken the glass during their insulation work and that a swing stage was needed for installation.

View’s evidence, through affidavits from Ryan Walsh and Director of Project Management, Ben Albin, supported the conclusion that Alugard’s installation work was completed before December 2024. They described commissioning activities commencing on December 1, 2024, which could only start after all windows and sliding glass doors had been installed. They also referred to a February 5, 2025 email from View’s former project manager to Mr. Pengili identifying as of that date only minor outstanding items for Alugard—two pieces of spandrel that would be completed within a week, certain screens to be coordinated on specific future dates, and some cosmetic “beauty cap” issues Nickel had itself addressed.

Statutory framework under the Construction Act

The court reviewed the lien regime in Ontario’s Construction Act. Section 14(1) creates a lien in favour of a person who supplies services or materials to an “improvement” for the price of those services or materials. Section 31(1) and (3) govern expiry and preservation of liens, requiring that, for subcontractors in circumstances such as these, a lien be preserved by registration within 60 days of the earlier of several dates, including the date on which the person last supplied services or materials to the improvement, the date the contract is completed, abandoned or terminated, or the date the subcontract is certified complete.

The concept of “improvement” is broadly defined to include construction, erection or installation on land that is essential to the intended use of the land, building or structure. Section 45(1) requires the court to declare a lien expired and vacate its registration when it has not been preserved or perfected within the statutory time. Section 47 authorizes the court to discharge a lien that is frivolous, vexatious, an abuse of process, or otherwise invalid “on any other proper ground.”

Ontario case law has consistently treated lien preservation periods as statutory, mandatory and not subject to judicial discretion. The onus lies on the lien claimant to prove both that the work relied on was lienable and that the lien was preserved in time. Courts have also distinguished between lienable “last supply” and various forms of work that do not extend the time to preserve a lien. In particular, minor repair work, deficiency correction, or work not directly incorporated into the improvement, especially when not invoiced, does not restart the 60-day clock. Once a contract is substantially performed and the work has shifted to addressing deficiencies and remedial items, minor later attendances will typically not prolong lien rights.

Court’s findings on the March 2025 work

On the narrow factual dispute whether Alugard’s March work occurred on March 12 or March 14, 2025, the judge preferred the evidence of Mr. Pengili over that of Mr. Atalick. The latter’s assertion that Mr. Nikfar completed repairs on March 12 was a bare statement lacking detail as to when, how or why that information had been conveyed. By contrast, Mr. Pengili’s evidence was corroborated by contemporaneous email and photographs sent on March 14, 2025, documenting the delivered glass and explaining the need for a swing stage. There was no reply email from Mr. Atalick suggesting that the work had already been completed on March 12. On a balance of probabilities, the court found that Alugard was on site on March 14, 2025 to deal with the damaged glass.

However, the judge then turned to the nature of that work. Both sides agreed that the March attendance related to replacing a glass pane that had been broken during rockwool insulation removal performed by Nickel’s team to accommodate slab movement. The court accepted that evidence and concluded that the March 14 activity was remedial in nature, addressing damage that occurred after installation, rather than completing an outstanding item of work contemplated by the subcontract. This aligned with Toronto Zenith and other authorities, which hold that repair and post-completion deficiency work does not amount to a fresh lienable supply capable of extending the limitation period for registering a lien, especially where no invoice is issued and no price for that specific remedial work is proven.

There was no evidence that Alugard invoiced for the March 14, 2025 work or that it formed part of its contract price. Review of the full invoicing history showed no charges for services or materials supplied to the Property after February 12, 2025. By that time, the only items being billed were deficiencies and storage containers; the earlier invoices, including Invoice 19 dated December 4, 2024, contained the final line-item charges for materials and installation. Viewed in context with View’s commissioning evidence and the February 5 “outstanding items and final billing” correspondence, the court was satisfied that Alugard’s substantive contract work had been completed prior to February 12, 2025 and that the later work was in the nature of deficiencies and remedial repairs.

No genuine issue for trial and the validity of the lien

Because Alugard bore the burden to show that its last lienable supply occurred on March 14, 2025, the failure to establish that this work was substantive contract work rather than repair proved fatal. The judge emphasized that on a s. 47 motion the lien claimant must put its best foot forward; Alugard had done so and yet presented no invoice or valuation for the March repair, nor any persuasive basis to treat that work as an incomplete contractual item. The evidentiary record allowed the court to make the necessary factual findings without resorting to a trial, and there was no genuine issue requiring full adjudication. The March 14 repair could not be used to extend the lien preservation period.

Given that the lien was registered on May 13, 2025, more than 60 days after February 12, 2025—the last date of lienable supply as found by the court—the lien had expired and was registered out of time. The judge therefore held that the lien was not preserved in accordance with the Construction Act and was invalid.

Disposition, outcome, and monetary consequences

Having found that the lien was not preserved in time, the court exercised its authority under s. 47 of the Construction Act to discharge the lien and vacate both the lien and the certificate of action registered against the Property. Nickel’s motion was granted in full. The court declared that the lien had expired, ordered that the lien registered as Instrument No. NR690573 be discharged and vacated, and ordered that the certificate of action, Instrument No. NR692882, be vacated.

On costs, Nickel and Alugard had agreed that costs should follow the event in a fixed, all-inclusive amount. Nickel, as the successful party on the motion, was awarded costs of $4,000 payable by Alugard within 30 days of the release of the reasons. There was no award of damages or any other monetary relief beyond this agreed costs order, and no costs were sought by or against View.