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Construction - Summary Proceedings. 1995636 Ontario v. 5010729 Ontario 2026
In 1995636 Ontario v. 5010729 Ontario 2026 (Ont Div Ct, 2026) the Ontario Divisional Court dismissed an appeal, here brought against a trial decision which dismissed the plaintiff's action and "granted the respondent’s counterclaim and awarded damages ..." and discharged a lien.
The court consider the summary nature of construction lien proceedings under Part VIII ['Jurisdiction and Procedures'], here in a leave to amend pleadings context:[21] The appellant submits that in construction lien matters, which are of a summary character, no interlocutory step, including pleading amendments, can be taken without leave of the court. In this case, it is submitted that the trial judge erred in allowing the respondent to amend its counterclaim to plead fraud against the appellant on March 21, 2024, during oral submissions at the commencement of the trial. Although the parties consented to the addition of the fraud counterclaim, it is argued that the trial judge erred by failing to consider the test for leave under s. 13 of O. Reg. 302/18: “Procedures for Actions Under Part VIII” of the Construction Act, R.S.O. 1990, c. C 30, contrary to the regulation’s express requirements.
[22] After the appellant retained new counsel when the trial was nearly completed, they advanced a motion to strike the fraud amendments. This motion was not allowed. It is further submitted that the trial judge compounded his initial error violating s. 13, by allowing the amendments nunc pro tunc. The appellant also argues that the trial judge was procedurally unfair by denying the appellant their request to conduct further examinations for discovery on the fraud amendments and failed to consider whether the amendments were statute-barred.
[23] I would not give effect to this ground of appeal.
[24] In my opinion, the trial judge’s decision with respect to s. 13 of the regulation gave effect to and did not ignore the summary nature of construction lien actions.[1] The trial judge considered whether the interlocutory step of amending the pleadings was necessary or would expedite the resolution of the issues in dispute in the action. Moreover, it is plain based upon the whole record that the trial judge addressed the issue of the leave requirement.
[25] Section 13 provides that interlocutory steps such as the amendment of pleadings, cannot be taken without leave of the court and only where such steps are necessary or would lead to an expedited resolution:13. Interlocutory steps, other than those provided for under the Act, shall not be taken without the consent of the court on proof that the steps are necessary or would expedite the resolution of the issues in dispute.
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