Janik v. Szyszka (2013), 46 C.L.R. (4th) 54 (Ont. S.C.J.), Brantford, Dec. 20, 2013, Lococo, J.
RE: whether a joint venture owner can become a contractor for the purposes of the Construction Lien Act, R.S.O. 1990, c.C30
RE: whether a lien action should be allowed to proceed as an ordinary action where a lien has expired
In this case we successfully defended a motion to dismiss our client's action after his lien had expired when his prior lawyer had failed to set his lien action down for trial within two years as required by section 37 of the Construction Lien Act, R.S.O 1990 c. C30. Although it is well established that a lien action may continue as an action in contract if a lien is discharged or found invalid, the defendants argued that the plaintiff’s action had been an abuse of process as he had been a joint-venture partner in the construction of the project, that he was accordingly an ‘owner’, and not a ‘contractor’ and because one cannot simultaneously be both for the purposes of the Act.
The decision is important as it dealt with when, and if, a joint-venure owner or property could be, or become, a contractor with lien rights. We led evidence that the defendants had denied the plaintiff’s joint-venture role in relation to the project such that, at the time that he registered his lien, he was reasonably within his rights to consider himself a ‘contractor’. The plaintiff was allowed, on the motion, to amend his claim to include claims in contract and for breach of trust in relation to the proceeds of the sale of the project.