Royal Windsor Mechanical v. Devlan Construction, 2014 ONSC 3 (Ont. S.C.J.)

  • RE: onus of proof on a motion for security for costs in a Construction Lien Action                                            

In this action we successfully brought a motion for security for costs on behalf of a defendant contractor in a lien action.  The motion is important as it was an interlocutory step requiring the leave, or consent, of the Court to hear the motion as required under s. 67(1) of the Construction Lien Act.  It is also important as the Court held that the plaintiff's failure to explain its ability to post a bond to vacate one of its subtrade’s liens from title to the subject premises was a factor to consider in finding that the plaintiff had not met its onus of showing that it could not raise the funds required to post security for costs.  The success on the motion ultimately led to the discharge of the lien and the dismissal of the plaintiff’s action.