Janik v. Stillman., 2016 ONSC 1801 (Ont. S.C.J.)
RE: whether a lawyer was liable for failing to meet the timeframes set out under the Construction Lien Act to set a matter down for trial
In this case, the plaintiff had obtained a judgment against a another with whom he had constructed a house for sale. Unfortunately, he was unable to recover on the judgment. He had also previously liened the house property, however, that lien was lost when one of his lawyers at the time failed to set the lien action down for trial within 2 years as required by the Construction Lien Act, R.S.O. 1990, c.C30, as amended. We were retained to pursue recovery against the lawyers for the amount of the unrecovered judgment.
In an effort to bring about a timely and efficient resolution, and to keep costs down, we moved for summary judgment on the claim. A number of defences were raised to the motion, which included arguments that the plaintiff's lien had been invalid such that no damages for a loss of lien arose, that the plaintiff knew the lien was invalid and had agreed not to pursue it, that the lawyers had not been retained to set the matter down so as to avoid the lien's expiry, that the claim included for amounts that were not lienable, that the plaintiff had failed to mitigate by not taking further steps to pursue his judgment and that no lawyer could be found liable without testimony from an expert on the issue.
We were successful in obtaining judgment in the full amount of the plaintiffs claim, on the motion and without need for a trial.