Sub-sub contractor misses Eglinton Crosstown lien filing deadline by not realizing old rules apply


Ontario Construction News staff writer

A materials supplier for stations in Toronto’s Eglinton Crosstown construction project has discovered that old construction lien rules can have a long shelf life.

Ontario Superior Court Master Todd Robinson ruled on May 6 that Form & Build Supply had registered its lien 56 days “after the stated date of last supply”, well within the 60 days allowed under the current Ontario Construction Act.

However, Crosslinx Transit Solutions Contractors won its bid to start work on the multi-billion dollar project before the new Construction Act went into effect on July 1, 2018. And the old Construction Lien Act allowed just 45 days following the conclusion of service delivery to make the lien claim.

Leaside Station rendering
Leaside Station rendering

“The sole issue in dispute is the operation of the transition provisions in S. 87.3 of the Construction Act in circumstances where a contract for the improvement is entered into before July 1, 2018, but a lien claimant’s subcontract is entered into after July 1, 2018,” the judgement says.

Robinson “determined that the intended effect of the language used in S 87.3 is that the same legislative scheme for rights, obligations and remedies provided in the Construction Act applies consistently to all parties involved in the same improvement.”

He pointed out that, if exceptions were allowed – and a sub-sub-contractor could claim different lien rights because its contract started after July 1, 2018, there would be great confusion and administrative burdens for owners, general contractors and subcontractors.

“I do not agree with Form & Build that there is greater unfairness to trades lower down in the construction pyramid, who may not know when a prime contract was entered into,” he wrote. “On the facts of this case, Form & Build supplied services or materials to a high-profile P3 infrastructure project. There is no evidence supporting that Form & Build did not know, or could not reasonably have known, the identity of the owner or contractor or the dates of the project agreement and construction contract. In any event, I am not swayed in my determination by the potential for a subcontractor on a different, hypothetical project possibly being unaware of when a prime contract was entered.”

Robinson declared that the Form & Build’s liens against the Leaside Station and Avenue Station are declared expired.

As well, he ordered that lien bonds for $23,551.83 for the Leaside Station and $5,275.69 for the Avenue Station should be cancelled.

Avenue Station rendering
Avenue Station rendering


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