Executive Summary: Key Legal and Evidentiary Issues

• A construction lien registered under Ontario's Construction Act was challenged on the basis that the plaintiff's work constituted mere maintenance rather than lienable remediation work.
• Jurisdiction was a central issue, as the defendants argued the matter belonged in Small Claims Court rather than the Superior Court of Justice.
• Donohue J. determined that the plaintiff's work constituted remediation falling within the scope of the Construction Act, confirming the Superior Court's jurisdiction; that decision is currently under appeal before the Divisional Court.
• The defendants moved to dismiss the plaintiff's action for delay under r. 24.01(1)(c) of the Rules of Civil Procedure, arguing the plaintiff failed to set the matter down for trial within six months after close of pleadings.
• Rule 24.01(1)(c) was found to be inconsistent with the statutory timelines prescribed by the Construction Act, rendering it inapplicable to lien actions.
• Partial responsibility for procedural delay was attributed to the defendants' avoidance of service, as found by Latimer J. on a prior motion.

Facts of the case

Elena Attin is the registered owner of the property municipally known as 5 Firelane 14B, Niagara-on-the-Lake, Ontario. She and her daughter, co-defendant Alisa Chaly, reside at the property. The plaintiff, Structured Restoration Inc., performed work on the property, which was completed on February 10, 2024. A construction lien was subsequently registered on the property on March 20, 2024. A Statement of Claim and Certificate of Action were issued on July 10, 2024.

Prior proceedings and jurisdictional dispute

On March 28, 2024, before this proceeding commenced, the defendants filed an Application in court file CV-24-00062169-0000, seeking to vacate the lien on the grounds that the Superior Court of Justice lacked jurisdiction. The defendants argued that the work performed did not fall within the scope of the Construction Act, R.S.O. 1990, c. C.30, and that any claim should have been pursued in Small Claims Court rather than through a lien action. Donohue J. heard that application on March 19, 2025, and on March 21, 2025, released her decision concluding that the plaintiff's work constituted remediation work within the scope of the Construction Act — not mere maintenance — and that the Superior Court held proper jurisdiction. The defendants filed a notice of appeal of that decision on April 15, 2024, with the Court of Appeal for Ontario. On December 18, 2025, the appeal was transferred to the Divisional Court, and a hearing date had not yet been scheduled at the time of this motion.

Statutory and procedural provisions at issue

The defendants brought the present motion under r. 24.01(1)(c) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which permits dismissal of an action where a plaintiff has failed to set the matter down for trial within six months after the close of pleadings. The defendants also relied on the Construction Act's requirement that lien matters proceed summarily. In response, the plaintiff relied on s. 37(1) of the Construction Act, which provides that a lien expires on the second anniversary of the commencement of the action that perfected the lien, unless an order for trial has been obtained or the action has been set down for trial. The plaintiff further relied on s. 50(2) of the Construction Act, which provides that the rules of court apply to proceedings under the Act except where they are inconsistent.

Court's reasoning and analysis

Justice Standryk applied the principle established in Smith v. Hudson's Bay Company, 2019 ONSC 2348, which held that r. 24.01(1)(c) is inconsistent with the statutory scheme governing construction liens, making dismissal for failure to set a lien action down for trial unavailable under that rule. That reasoning has since been cited and applied in Rosswill Pools 1995 Ltd. v. Mandarino, 2025 ONSC 7212; Constantinidis v. Lumar Design Group Inc., 2025 ONSC 1109; and Bernach v. Makepeace, 2021 ONSC 1289. The court found that accepting the defendants' position would truncate the legislatively mandated period within which a lien claimant may advance its action before the lien expires — an outcome incompatible with the statutory protections afforded to lien claimants. The court was also bound by the findings of fact and jurisdiction determination made by Donohue J.

The court further found that the plaintiff's decision not to set the matter down for trial was neither unreasonable nor indicative of dilatory conduct. Given that the pending Divisional Court appeal directly concerns the Superior Court's jurisdiction, proceeding to trial before that appeal is resolved could result in the court acting without jurisdiction. The amount in issue, noted by the court, is $16,273.65. Additionally, Justice Standryk noted that part of the delay was attributable to the defendants' own conduct: Latimer J., on a prior motion to validate service, found that the motion materials "amply justif[ied] the relief sought" and described the defendants' behaviour as depicting "silliness on the part of the defendants to evade service and avoid engagement with the civil court process."

Ruling and outcome

The motion to dismiss for delay was dismissed. The court directed that the pending appeal does not relieve the plaintiff of its obligation to set the matter down for trial within the timelines mandated by the Construction Act, and that the parties are expected to cooperate in addressing any procedural consequences if the appeal is decided before the trial date. Structured Restoration Inc. was the successful party on this motion and was awarded partial indemnity costs fixed at $7,022.36, inclusive of fees, disbursements, and H.S.T., payable by the defendants within 60 days.