Executive Summary: Key Legal and Evidentiary Issues

• Both construction liens filed by Louis Jones Construction Ltd. were registered after the 45-day preservation deadline under the Construction Lien Act (Old Act), rendering them untimely.
• Central to the timeliness dispute is identifying the correct date of last supply of services or materials — specifically, whether the skid steer or other items left on site extended that date beyond December 22, 2017.
• Determining whether the Old Act or the New Act applies turns on when the relevant contract for the improvement was entered into relative to July 1, 2018.
• Louis Jones' alternative claim in quantum meruit fails because a contract existed between the parties and no evidence of improved property value was led.
• Jonathan Rocque's counterclaim for breach of contract is dismissed, as he failed to establish on a balance of probabilities that Louis Jones breached or abandoned the contract.
• Evidentiary deficiencies — including hearsay timesheets prepared by a foreman who did not testify — precluded Louis Jones from proving the value of services rendered.

Facts of the case

In November 2016, Roxanne Rocque engaged her nephew, Jonathan Rocque, operating as J-Rock Construction, as a general contractor to renovate her cottage located on an island in the Ottawa River. Rocque began work in January 2017. The initial renovations did not involve the foundation. In May 2017, while those renovations were underway, the cottage was flooded and its foundation was damaged. Ms. Rocque subsequently decided to raise the cottage above water level and have a new foundation built.

In the fall of 2018, Jonathan Rocque engaged Louis Jones Construction Ltd. — a contractor specializing in concrete formwork — to lay the new foundation. The parties concluded a verbal contract on a time and material basis, though they disputed whether the contract value was capped at $60,000. When Louis Jones arrived on site on November 5, 2018, the cottage had been raised but the ground beneath was not ready. With Mr. Rocque's agreement, Louis Jones rented a skid steer from Sunbelt, which was transported to the island on Mr. Rocque's barge. The skid steer sank into the soil and disturbed the ground, prompting geotechnical engineers to require remediation — a costly process involving excavation, the addition of crushed stone, and compaction — before the foundation could be built.

Louis Jones' employees laid the foundation and were present on site until December 19, 2017. At Mr. Rocque's request, the skid steer was left on site for J-Rock's use, including for backfilling around the cottage. The skid steer was removed from the island on December 22, 2017. In December 2017 and early January 2018, Louis Jones issued three invoices totalling $144,929.18. Mr. Rocque paid a total of $47,000. On February 15, 2019, Louis Jones registered a lien against the property for $97,635.59. On February 19, 2019, Sunbelt registered a lien for $19,412.43, which was later assigned to Louis Jones. At trial, Louis Jones acknowledged that the correct combined value of both liens was $91,350.59, following adjustments for an incorrect application of HST and duplicated amounts.

Statutory framework and contractual terms at issue

The key statutory question was whether the Construction Lien Act, R.S.O. 1990, c. C.30 (Old Act) or the Construction Act, R.S.O. 1990, c. 30 (New Act) applied. Under the Old Act, a lien expires unless preserved within 45 days of the last date of supply of services or materials. Under the New Act, that deadline is 60 days. The transition provision, s. 87.3 of the New Act, provides that the New Act applies unless the contract for the improvement was entered into before July 1, 2018, or a procurement process was commenced before July 1, 2018. Section 1(1) of both statutes defines "materials" to include "equipment rented without an operator for use in the making of the improvement," which was directly relevant to whether the skid steer extended the lien deadline. The verbal contract between Louis Jones and Mr. Rocque was on a time and materials basis, with the parties disputing whether a $60,000 cap applied.

Reasoning and analysis

Justice Flaherty first addressed which version of the Act applied. The Rocque Defendants argued that the foundation work fell under the original 2016 contract, relying on Crosslinx Transit Solutions Constructors v. Form & Build Supply (Toronto) Inc., 2021 ONSC 3396, for the proposition that the same legislative scheme should apply consistently to all persons involved in the same improvement. The court accepted that reasoning but found, on the facts, that the flood gave rise to a fundamentally different scope of work from what was contemplated in 2016. Justice Flaherty found that there were two distinct contracts: the first, concluded in 2016, concerned the initial interior renovations; the second arose from the 2017 flood and involved raising the cottage and laying a new foundation. Regardless, both contracts were entered into before July 1, 2018 — the second because Mr. Rocque had commenced work on the flood repairs by May 2017, and Ms. Rocque had paid him $7,000 for that work by May 23, 2017. Accordingly, the Old Act applied, and the 45-day preservation deadline governed.

On the date of last supply, the court found that the relevant date was December 22, 2017 — the day the skid steer was physically removed from the island — not January 2, 2018, the date stated in the liens. The skid steer qualified as "materials" under the statute, and its removal marked the end of its deployment in furtherance of the improvement. Other items left on site — jacks, tarps, a wagon, and a ramp — were found to be minor, were not left at Mr. Rocque's request, and did not add meaningful value to the improvement. Louis Jones had not billed for them and did not expect to return to site. The court found that their continued presence did not extend the lien period. Louis Jones' lien was registered on February 15, 2019, which was 55 days after December 22, 2017; Sunbelt's was registered on February 19, 2019, which was 56 days after that date. Both exceeded the 45-day limit and were therefore untimely.

On quantum meruit, the court held that the claim must fail. There was no dispute that a contract existed between the parties, and Louis Jones led no evidence of any improved value to the property. The court cited Urban Mechanical Contracting Ltd. v. Zurich, 2022 ONCA 589, and MGL Construction Inc. v. Boutet and Folk, 2015 ONSC 4477, for the established principle that the Construction Lien Act ousts equitable claims in quantum meruit where a contract exists. On Jonathan Rocque's counterclaim, the court found he had not established on a balance of probabilities that Louis Jones breached or abandoned the contract. The foundation was laid, the contract was verbal and on a time and materials basis, and Mr. Rocque never advised Louis Jones of any alleged deficiencies or gave him an opportunity to rectify them.

Ruling and overall outcome

Justice M. Flaherty dismissed the plaintiff's claim in its entirety. Both liens were found to have expired before they were registered, as neither was preserved within the 45-day period required under the Old Act from the December 22, 2017 date of last supply. The claims for lien and related certificates of action were vacated. Louis Jones' alternative quantum meruit claim was dismissed, as was Jonathan Rocque's counterclaim for damages for breach of contract. The Rocque Defendants were the successful parties. The decision does not specify any monetary award or damages in their favour; costs were reserved, with the parties directed to either agree on costs or provide written submissions of no more than three pages.