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Construction - Minor Errors [s.6]. Gandhi v. Mayfield Arcadeium Holdings Ltd.
In Gandhi v. Mayfield Arcadeium Holdings Ltd. (Div Court, 2024) the Divisional Court considered Construction Act, s.6 ['Minor errors, irregularities'], here while considering the evidentiary admission use of 'claim for lien' pleadings:[43] This point is supported by s. 6 (1) of the Construction Act that says:6 (1) No certificate, declaration or claim for lien is invalidated by reason only of a failure to comply strictly with subsection 32 (2), 33 (1) or 34 (5) unless, in the opinion of the court, a person has been prejudiced as a result, and then only to the extent of the prejudice suffered. [44] Subsection 34 (5) of the statute is expressly referred to in s. 6 (1). It lists the details which are required to be disclosed in a Claim for Lien form. These include, “the time within which the services or materials were supplied”.
[45] As a result of s. 6 (1) therefore, in the absence of prejudice, a claim for lien is not defeated by reason only that there has not been strict compliance with the requirement to disclose in the Claim for Lien form the dates of supply of services.
[46] In 9585800 Canada Inc. v. JP Gravel Construction Inc., 2019 ONSC 7022, Swinton J., writing for a panel of this court, considered the scope of s. 6 (1). In that case, a claim for lien had the wrong date. It was off by a year. To try to correct the typo, the applicant discharged the claim for lien and then tried to file a new one containing the correct date.
[47] The motion judge held that the second lien was valid. She was apparently concerned that the lien claimant not be deprived of an otherwise valid lien.
[48] The Divisional Court overruled because s. 48 of the Construction Act provides that when a lien is discharged, it cannot be revived. In discussing her reasoning, Swinton J. noted that she was not leaving a lien claimant without a way to fix a mistaken date in a Claim for Lien form. She held that s. 6 of the statute provided a simpler mechanism to fix the errant date in the first lien claim. She wrote:
[20] Moreover, had the appellant been given the opportunity to make submissions, counsel would have been able to raise the significance of s. 6 of the Act. I have quoted s. 6 above. It allows a court to refuse to find a claim for lien to be invalid because of minor irregularities (see Gillies Lumber Inc. v. Kubassek Holdings Ltd., 1999 CanLII 3757 (Ont. C.A.).) Notably, s. 6 states that a claim for lien is not invalidated because of a failure to comply with certain subsections, including s. 34(5). Subsection 34(5) specifies the content of a claim for lien. Along with such information as the name and address of the person claiming the lien, paragraph (a.2) refers to “the time within which the services or materials were supplied.” Reading s. 34(5) with s. 6, it appears that an error made with respect to the time within which the services or materials were supplied is a minor irregularity within the meaning of s. 6, and a court can refuse to declare the claim for lien invalid or vacate the lien after the court determines the issue of prejudice to the other parties. Gravel concedes that it would not have suffered any prejudice had the Respondent sought an order to correct its error with respect to the timing of the services. [Emphasis added.]
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