The OBA Construction & Infrastructure Section has recently had the benefit of RSJ Firestone and the Associate Judges generously granting their time to speak to members of the Executive regarding vacating motions and ex parte court. Their Honours have asked the Section Executive to make members aware of certain procedures regarding vacating motions, and to solicit input regarding the potential resumption of in-person court appearances (note the survey link at the bottom!).
Procedure for Time-Sensitive Vacating Motions
The Associate Judges wish to emphasize to the construction bar that motions to vacate claims for lien are properly considered to be and submitted as “urgent or time-sensitive motions” pursuant to subparagraph H.3.5 of the Notice to Profession and Parties – Toronto Region dated February 1, 2024. It is not necessary for a party seeking a vacating order to wait until urgency in the sense of “emergency” develops; the Associate Judges appreciate that vacating orders are typically time-sensitive and parties are strongly encouraged, as a matter of course, to submit vacating orders as “Urgent” or “Time-Sensitive” motions to the Construction Lien Associate Judges.
Pursuant to the Notice to Profession and Parties, once submitted through the Civil Submissions Online portal, a copy of all motion materials should be sent as attachments to an email marked “Urgent” or “Time-Sensitive” and sent to Toronto.AssociateJudges.ConstructionLienMatters@ontario.ca, together with the confirmation of submittal through the Civil Submissions Online portal. As a reminder, all time-sensitive motions must be submitted with an explanation of the nature of the time-sensitivity, including any pending date(s). The typical turnaround time for vacating orders thus submitted, assuming all motion materials are in order, is one business day.
The Associate Judges also wish to emphasize that rather than submit a vacating motion in writing, vacating motions may be booked for a 5-10 minute virtual attendance, and that such short motion dates are often available within a few days. Parties may use https://calendly.com/toronto-region to review the Court’s availability for a short vacating motion or, if there is no upcoming availability in Calendly, by following the process for an urgent motion in Section H.5.2.e of the Notice to Profession and Parties.
Finally, the Associate Judges noted that a common issue which causes motions for vacating orders to be rejected is the absence on lien bonds of a seal for the corporate principal, and, where there is no seal for the corporate principal, the absence under the signature for the principal of the printed name of the signatory, the printed position of the signatory and the printed statement, “I have authority to bind the corporation.” Also, with seals in general, it is critical that any scan be of sufficient quality to show the seal. Attention to these details will prevent motion materials from being returned, thereby prolonging the obtaining of the order. The requirements for lien bond and letter of credit security are set out in Section H.4.1 of the Notice to the Profession.
Resumption of In-Person Court Appearances
Their Honours also asked the Section Executive to solicit the Construction Bar’s input on the potential resumption of an in-person construction court one day per week for simple motions. Members of the bench acknowledge the need to ensure that young lawyer obtain in-court experience and are accordingly exploring the resumption of an in-person construction court one day per week for simple motions, including motions that may be brought ex parte under the Act, or which are on consent or unopposed.
Their Honours, however, would like to ensure that if the Court were to devote judicial resources to this in-person court, there would be sufficient demand from the profession to make it worthwhile. Members of this Section are accordingly asked to provide their feedback at the following link: Potential Resumption of In-Person Construction Court Survey
Please submit your feedback by May 30, 2025.