One of the interesting aspects of practicing in the area of Construction Law is finding a decision, from time to time, which, on its face, appears to be narrow and straightforward. If one scratches the surface a little further, however, one can often uncover interesting and esoteric issues which can help in practice to avoid a similar pitfall.
In the case of Rockhill Construction Ltd. v. Ottens1, the Court considered the application of the two-year deadline to set a lien action down for trial under section 37, in the circumstances of an amended statement of claim.
In Rockhill, the plaintiff registered a claim for lien in the amount of $73,897.56 on August 21, 2015. On October 1, 2015, Rockhill issued a statement of claim, claiming entitlement to a lien and asserting a breach of contract claim. Rockhill’s statement of claim did not specifically reference the lien it had registered on August 21, 2015.
Rockhill then amended its statement of claim on October 6, 2015. The key amendment to the statement of claim was the addition at paragraph 5 of the words “with lien registered as YR2343288”. That same day, Rockhill issued a certificate of action under s.36(3) of the Construction Lien Act. For reasons not explained in the decision, the Certificate of Action was not registered on title until October 29, 2015.
Thus, the only difference between the original statement of claim and the amended statement of claim is that the amended statement of claim specifically referenced the registration number of Rockhill’s claim for lien registered on title to the Ottens’ property.
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