Limen Group Ltd. v. Allform Group Ltd., 2016 ONSC 4344 (Ont. S.C.J.)

  • RE: whether a subcontractor liened the wrong lands  

In this case, a subcontractor intended to lien a condominium improvement, which included a main tower and several townhouses.  The subcontractor which had retained him then brought a motion to discharge the lien on the basis that it had been registered against the wrong lands.  We were retained to defend that motion on behalf of the lien claimant.

We successfully called evidence to show that the liened lands were, along with the other project lands, collectively surrounded by hoarding, without distinction.  We then argued that the contract documents which were before the Court gave no indication that only a portion of the hoarded lands formed the improvement or that the liened lands had a different municipal address.  We argued that other contract documents which might better identify the lands, including site plan approvals, construction contracts, engineering drawings, architectural plans and foundation drawings had not been put into evidence by the moving party.   We also argued that the lien lands would have to have been accessed in the performance of the lien claimant's work, such that they should be treated as "lands enjoyed therewith" for the purposes of the Construction Lien Act, R.S.O. 1990 c.C30. 

At issue in the motion was the onus of proof on a motion to discharge a lien as being against the wrong lands and the extent to which lands associated with an improvement are none-the-less lienable as "lands enjoyed therewith".