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March 7, 2005

Legal Corner

By David Bristow

Q.C., LSM, C.Arb

Who is entitled to a valid claim for lien?

Very recently an Ontario Court ruled that the work performed in removing hundreds of thousands of tires from a tire dump was an improvement to the land that qualified for a lien under the Construction Lien Act.

The cry went out: Where will this end if a tire remover is given a lien against the owners property?

To see how this matter unfolds we must go back to the Construction Lien Act itself. The Act says “a person who supplies services or materials to an improvement” has a lien for that improvement.

Improvement is defined as “any alteration, addition or repair to any land”.

The court held that removal of tires constituted both alteration and repair of the land.

Had the evidence ended there I would have concluded that the work was not lienable.

The court, however, heard evidence that the tires had been declared a contaminant within the meaning of the environmental protection act of Ontario, and the judge followed a 1998 case where contaminated soil was removed from the land, which work was found lienable.

Therefore contamination resting on the surface and that below the surface of the land were lumped into the same category.

This case may be pushing the envelope of lienability and therefore the motto for lien claimants lawyers should be: If in doubt register a lien. This would appear to be a good course to follow.

I was just advised by counsel on this case that the owner is appealing the judge’s verdict. Another article on this topic is likely to follow.

David I. Bristow is a partner with Team Resolution in Toronto. www.teamresolution.ca.

E-mail: bristow@gsnh.com. (416) 597-6585.

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