TRS Components Ltd. v. Devlan Construction Ltd., 2015 ONCA 294 (Ont. C.A.)
RE: Motion to Quash an Appeal in a Construction Lien Action as being brought in the wrong Court
RE: whether a counterclaim in a lien action is governed by the Construction Lien Act, R.S.O. 1990, c.C30 when the plaintiff/lien claimaint's action was dismissed prior to trial
In this case, the plaintiff, TRS, had registered a construction lien. We acted for the defendant. We first obtained an Order discharging the plaintiff's lien and dismissing the plaintiff's action due to the plaintiff's failure to answer undertakings and refusals as part of the litigation. We then obtained judgment on our client's counterclaim for its costs of correcting and completing the plaintiff's work.
The plaintiff then appealed the judgment, before the Ontario Court of Appeal. We brought a motion for, among other things, a determination that the appeal should have been brought before the Divisional Court, in accordance with the Construction Lien Act, R.S.O. 1990, c.C30. The Court agreed with our submissions in this regard.
The case is significant as it confirms that the procedures of the Act continue to apply in a lien action, absent an expressed order to the contrary, even after the lien is discharged and even if the lien claimant's action is dismissed.