The Court confirmed that minor remedial work or repairs performed after the substantial completion of a contract cannot be used to “restart the clock” on lien preservation deadlines. For subcontractors, this serves as a critical reminder that the deadline to register a lien is a strict, mandatory requirement that offers no room for judicial discretion. Relying on an isolated repair to extend your timeline could result in the lien being invalid for being registered out of time.
The Dispute
The case involved a mixed-use condominium project. Nickel Developments, as owner, hired View, Inc. as contractor to handle window installations. View hired Alugard as subcontractor to manufacture and install the windows.
Alugard performed the bulk of its work between April 2022 and early 2025. In May 2025, Alugard registered a construction lien for $250,748.07, claiming its last day of work was March 14, 2025. The core of the dispute centred on which date, factually, the work was completed.
Nickel brought a motion to vacate the lien, arguing it was registered out of time. Nickel asserted that Alugard’s substantial work was finished by December 23, 2024, and that the only activity in March 2025 was a minor repair to a single glass pane broken by other contractors on Nickel’s team.
What the Court Said: Defining “Last Supply”
The Court’s analysis centred on whether the work performed in March 2025 constituted a “lienable supply of services or materials” under the Ontario Construction Act.
Repair Work vs. Substantive Completion: The Court found that the attendance in March was strictly to replace a windowpane damaged during insulation removal, work that was remedial in nature. Citing established jurisprudence, the Court noted that minor remedial work or deficiency corrections performed after a contract has been substantially completed do not extend the statutory limitation period for preserving a lien.
The Evidence of Invoicing: The Court looked closely at Alugard’s billing history. Alugard’s final invoice for the materials and installation was dated February 2025. Crucially, Alugard never issued an invoice for the repair work done in March. The Court found that this pattern of invoicing was “fundamentally inconsistent” with the claim that substantive work continued through mid-March.
Strict Statutory Deadlines: The Court reiterated that lien preservation periods are “mandatory, strict, and jurisdictional.” Because the last lienable supply occurred no later than February, the 60-day window expired long before the lien was registered in May.
Takeaways
The Ontario Construction Act timelines for lien preservation, along with those of lien legislation in other provinces and territories, leave no room for error. If a deadline is missed, the lien rights are lost, regardless of the merits of the underlying payment dispute.
Contractors + Subcontractors: Do not assume that addressing a deficiency or fixing a broken item will extend your lien. Lien registration deadlines typically begin when a contract or subcontract is completed, terminated, or abandoned. Reattending a project to rectify a deficiency does not extend that lien period, as the work was already completed.
Owners: Detailed records of site attendance, hotel bookings for crews, and contemporaneous emails regarding deficiencies are invaluable. In this case, those records allowed the owner to successfully argue that the “last work” claimed by the subcontractor was not a lienable supply. In the event a contractor is terminated or abandons a project, clear written correspondence confirming this date is key.
The “Best Foot Forward” Rule: On a motion to vacate a lien, courts expect parties to provide their best evidence immediately. In Alugard, this rule was fatal to the subcontractor’s claim because it failed to produce an invoice for the work performed in March 2025. Because the documentary record, specifically the final “holdback-only invoice,” was inconsistent with the claim of ongoing substantive work, the Court concluded there was no genuine issue for trial and vacated the lien.
The legal requirements for preserving and perfecting a lien are technical and unforgiving. If you are a contractor concerned about payment or an owner facing a potentially expired lien, please contact Anthony Burden in Calgary, Ryan Krushelnitzky in Edmonton, or any member of Field Law’s Construction Group for guidance and assistance in this area.
