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LIMITATION OF ACTIONS - Conflict between limitation periods

Thursday, February 07, 2019 @ 8:39 AM  

Lexis Advance® Quicklaw®
Action by the plaintiff for payment of the outstanding balance of $34,602 on construction work completed for the defendants. The plaintiff issued its last invoice in May 2016. It registered a claim for lien later the same month. The plaintiff sent all invoices to the defendant Riverside, who it believed was the owner of the property. It commenced its action against the defendant MVMB after it learned, by searching the title, that MVMB was the registered owner of the property. It added Riverside, the tenant of the property, as a defendant in 2018. Birnie was the sole director and officer of both corporate defendants. The defendants’ project manager did not dispute the hours or supplies claimed by the plaintiff.

HELD: Action allowed. The old Construction Lien Act prevailed, given the contract for improvement was entered into prior to 2018. There was nothing expressly stated in the new legislation that it was to be retroactive. There would be no prejudice to any defendant by adding Riverside as a party. Riverside was a proper party to the action and did not have the protection of the Limitations Act of a two-year limit that would have applied if the action was a simple claim based on contract rather than the unique provisions of the Construction Lien Act. Riverside was an owner as Birnie clearly was its representative. On behalf of MVMB, Birnie also had privity and consented to the improvements made to the property by the plaintiff. There was insufficient evidence of bad faith to pierce the corporate veil to find Birnie personally liable.

Pryers Construction Ltd. v. MVMB Holdings Inc., [2018] O.J. No. 6644, Ontario Superior Court of Justice, K.E. Pedlar J., December 18, 2018. Digest No. TLD-February42019008