Written by: Sara Bahadori
Two decisions of the Ontario Superior Court of Justice, Mobilinx v. Edge1 and 2829785 Ontario Inc. v. Total Home & Yard Improvement Inc., provide important guidance on the type and level of evidence required for a court to declare a construction lien expired on an ex parte motion under Section 45 of the Construction Act.
Ex parte motions are heard without notice to the lien claimant, therefore they carry significant consequences: if granted, the order permanently extinguishes the claimant’s lien rights. For that reason, the court applies a high evidentiary onus on the moving party.
1. The High Evidentiary Threshold
A party seeking to have a lien declared expired under Section 45 must present evidence so persuasive that “no additional evidence or argument from the absent lien claimant would reasonably make a difference in the disposition of the motion.” Mere reliance on earlier court endorsements from the same project will be insufficient.
Affidavit evidence from individuals who lack direct knowledge of the project will generally not meet the required evidentiary threshold. Courts have emphasized the importance of providing first-hand, direct evidence addressing the nature of the work performed, the specific improvement in question, and the details of the procurement process.
2. The Mobilinx v. Edge1 Decision
In Mobilinx, the contractor brought an ex parte motion under Section 45 to discharge a lien registered by Edge1, a rental equipment supplier, alleging that the lien was not preserved in time.
Mobilinx argued that the project was governed by the pre-2018 Construction Lien Act, which imposed shorter preservation deadlines, and relied primarily on a prior court endorsement made in connection with another lien on the same project.
The court dismissed the motion, without prejudice, emphasizing that:
- The motion record lacked supporting materials from the prior motion.
- The only affidavit was from a law clerk relying on Infrastructure Ontario’s website, which was characterized as unverifiable hearsay.
- Mobilinx failed to file direct evidence from anyone with actual knowledge of the project’s procurement process.
3. The Total Home & Yard Decision
Similarly, in 2829785 Ontario Inc. v. Total Home & Yard Improvement Inc., the owner brought a second motion under Section 45 of the Construction Act seeking to have the contractor’s lien declared expired.
The first motion had been dismissed, without prejudice to the owner returning with stronger evidence regarding when the work was completed. On the second motion, however, the owner provided no additional substantive evidence was tendered.
The court dismissed the second motion, stating that “after two ‘kicks at the can’, the lien claimant is entitled to notice of any further motion to declare its lien expired.” The motion was once again dismissed, without prejudice to a third attempt, provided that any subsequent motion would be brought on notice to the lien claimant.
The only evidence presented included a copy of the contract, an affiant’s general statement that work finished in July 2022, and proof that a certificate of action was not registered. The court found that the evidence was too limited and unsubstantiated to justify discharging the lien.
Additionally, the court identified a discrepancy between the contract price listed on the purchase order ($140,340.20) and the amount claimed under the lien ($169,182.47), which was not addressed in the materials.
The court suggested examples of evidence that should have been provided to meet the high onus:
- Correspondence from the lien claimant regarding the work performed;
- Copies of invoices or demands for payment; and
- Evidence confirming the scope and completion of the work.
4. Key Takeaways
- High Evidentiary Onus: Section 45 ex parte motions are final in nature and will only be granted where the court is satisfied that no contrary evidence from the lien claimant could alter the outcome.
- Direct Evidence Required: Affidavit evidence should come from individuals with first-hand project knowledge.
- Repeat Motions Risk: Courts are reluctant to permit multiple “kicks at the can.” After one or two failed attempts, further motions will generally need to be brought on notice to the lien claimant.
- Address Discrepancies: Any inconsistencies in contract amounts, payment timing, or project documentation must be explained in the moving party’s materials.
