Page: 20
[127] The Master concluded that the court did not have the jurisdiction, under s. 65 of the CLA
(now s. 63), to grant personal judgment because the lien had not been properly perfected. He
distinguished between cases where a preserved and perfected lien was not proven at trial and cases
where a lien has been declared invalid prior to trial. In the latter case, the court, he said, did not
have the discretion to award a personal judgment.
[128] In at least two cases, subsequent courts have declined to follow the reasoning in Tilar,
preferring a more generous interpretation of s. 63.
[129] In 612354 Ontario Ltd. v. Tonecraft Corp., [1991] O.J. No. 1958 (Ont. Ct. Gen. Div.), the
plaintiff failed to set its lien action down for trial within two years of the commencement of the
action, as required by s. 37(1) of the CLA. The defendant moved to dismiss the action. The plaintiff
moved to amend its claim to add a claim for a personal judgment.
[130] Kozak J. disagreed with Master Sischy’s view, expressed in Tilar, that the court has no
discretion to grant a personal judgment where a lien claim has expired in advance of trial. He held
that to dismiss an action just because the lien expired prior to trial would force the plaintiff to
commence a fresh proceeding for similar relief. This would result in unfairness and a multiplicity
of proceedings. It would not adhere to the overarching purpose of the Rules of Civil Procedure
which is to promote the just, most expeditious and least expensive determination of every civil
proceeding on its merits. In the result, he dismissed the plaintiff’s claim to enforce its lien but
permitted the action to otherwise continue as a personal action for breach of contract.
[131] In Emco Supply a division of Emco Ltd. v. Anduhyaun Inc., [1998] O.J. No. 121 (Ont. Ct.
Gen. Div.), Master Sandler similarly took a more generous approach to the interpretation of s. 63.
He offered the opinion that the term “lien claimant” only requires the plaintiff to have what
purports to be a preserved lien. To require otherwise would be inconsistent with the phrase
“whether the claimant proves the claim or not” as found towards the end of s. 63. Master Sandler
concluded that a party with an improperly preserved lien may still proceed under s. 63 to try to
obtain a personal judgment on its contract claim. This conclusion, in Master Sandler’s expressed
view, enables the court to do what s. 58(4) of the CLA directs it to do, namely, “try and completely
dispose of the action and all matters and questions arising in connection with the action.”
[132] The common theme in Tonecraft and Emco is that a multiplicity of proceedings is to be
avoided. Where the pleadings allow for the just and efficient determination of all issues between
the parties – including personal claims for breach of contract – those issues and claims should be
permitted to proceed, even if the index lien is found to be invalid for one reason or another. In
other words, s. 63 should not be interpreted in such a way as to impede doing justice between the
parties. The modern approach to civil litigation, in a climate where there are profound concerns
about access to justice, demands that a broad and generous approach be taken to the interpretation
of s. 63.
[133] In my view, the Claim for Lien filed by Prasher on October 3, 2012 purported to preserve
its lien rights arising from both the structural steel and miscellaneous metals contracts. The fact
that it may have failed to do so in one respect or another does not, in my view, undermine the