“There is no excuse for inadvertence,” wrote Justice Kevin Feehan of the Alberta Court of Appeal in a recent ruling. “Parties to an appeal are expected to pay attention to the process, note filing deadlines, and comply with the rules of court.”
The case before Justice Feehan concerned two liens filed in 2013 by a homebuilder against the project owner for non-payment.
Those liens were removed in 2014 after payments by the owner were made into court. Further direct payments were made to subtrades working under the builder, which discharged their additional liens as well. Since no trial had been held within two years of the lien certificate registration, applications were made for release of the funds still held in court.
In October 2022, the full balance of funds remaining in court was paid to the owner. However, the builder brought an application for a stay of that order. The matter was returned to the applications judge, where it was settled in February 2023. Dissatisfied, the builder sought an immediate stay pending appeal. This was dismissed. Another appeal was made to a second chambers judge, which was again dismissed.
Under Alberta court rules, applications to restore appeals under Alberta’s Fast Track appeal process must be filed and served within three months of being struck, or the application will be deemed abandoned. Here, the builder failed to adhere to the timelines.
Several explanations and excuses were offered. First were “inadvertence” and a failure to understand that this was, in fact, a Fast Track appeal, despite reminders “on multiple occasions.”
The builder then claimed his office sublease had been unexpectedly terminated, causing a distraction. When informed that his appeal had been deemed “abandoned,” the builder indicated he still did not wish to abandon his appeal. He explained the notice of abandonment sent by the case management officer was “buried among 300 emails” and had not been fully reviewed.
In conclusion, Justice Feehan wrote, “There is no reasonable explanation for the delay which caused the appeal to be taken off the list or to be deemed abandoned,” adding that, “there is no arguable merit to this appeal.”
That case and ruling was in Alberta. Would similar reasoning be applied in Ontario?
“Despite apparent differences, the Alberta and Ontario governing construction legislation appear to be substantially similar with respect to setting down lien actions for trial, in so far as strict time periods will apply and, if missed, lien rights will be lost,” Edward Lynde, partner with Fasken Martineau DuMoulin LLP, told the Daily Commercial News.
As in Alberta, if no trial has been held within two years from the date of registration of a pending liens action, and in the absence of any order setting it down for enforcement or trial, any party may bring a motion to obtain an order declaring the lien expired and have it dismissed.
“In Ontario, there is almost zero flexibility with respect to adherence to the requirements stipulated in section 37 of the Construction Act,” said Lynde. “Once the two-year period has expired, the lien rights will almost assuredly be extinguished and there is nothing that the parties themselves or the court can do save the lien.”
Lynde references the Ontario 2017 Ticchiarelli v. Ticchiarelli dispute, which set out the test for the dismissal of an action if the delay is, “inordinate, inexcusable, and prejudicial to the defendants such that it will give rise to substantial risk that a fair trial of the issues will not be possible. The onus rests on the plaintiff to illustrate that such delay is not intentional.”
As a takeaway from the Alberta case, Lynde notes, “delay is to be avoided by litigants as such delay can have serious consequences for their rights, which may include dismissal of their actions and/or appeals.” While noting that substance typically trumps procedure, in the Alberta instance, “the underlying tenor of the decision was effectively ‘enough is enough.’”
John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to editor@dailycommercialnews.com.
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