LIENS - Obtaining a lien - Registration - Procedure - Time limits

Law360 Canada (October 6, 2022, 6:04 AM EDT) -- Appeal by Grafton Developments from a trial decision awarding the respondent Allterrain money owing under a construction contract and dismissing the appellant’s counter-claim. Grafton retained Allterrain to provide site preparation, excavation and service installation for construction of an apartment building. The parties concluded a second agreement for the additional sloping work required to complete excavation of the site. A dispute later arose between the parties concerning Allterrain’s obligation to pave what had been excavated owing to the sloping. Under the first contract, Allterrain was required to reinstate the roadway as specified in four small, discrete sections. The second agreement said reinstatement of curbs and pavement was to be provided by others. Allterrain left the project and invoiced Grafton for the work completed. Grafton refused to pay, alleging Allterrain breached its contract by refusing to reinstate all the sloped area and counter-claimed for the costs of reinstatement paving, site grading and repairs which it said Allterrain should have performed. Allterrain argued the second agreement superseded any obligation it had to reinstate the small portions of pavement which the first agreement required it to restore. Because essentially all of the roadway adjacent to the site was torn up due to the sloping, Allterrain claimed the second agreement relieved Allterrain of any repaving obligations. The judge agreed with Allterrain, allowed its claim and ordered satisfaction of Allterrain’s judgment from the security paid into court by Grafton to discharge Allterrain’s lien. Although the judge was aware that Allterrain’s lien claim was filed outside the 60-day period in the Builders’ Lien Act, she found that it would be unequitable to remove the funds rightfully found owing to Allterrain, only to possibly delay its right to recover payment for a matter that arose in 2016. ...
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