Construction liens remain one of the most powerful tools available to contractors and subcontractors in Ontario. However, as a recent decision of the Ontario Superior Court of Justice demonstrates, lien rights are also highly technical and unforgiving when it comes to timing.
In Alugard Ltd. v. View, Inc. et al., the Court reaffirmed a critical principle under the Construction Act: missing the statutory deadline to preserve a lien—even by relying on seemingly recent work—can be fatal to a claim.
Dispute Involved Window Installation in Condo Development
The dispute arose from a mixed-use condominium development project involving window installation work. The owner retained a general contractor, who in turn subcontracted the window work to the plaintiff subcontractor.
The subcontractor supplied and installed window wall systems, including doors, glass, framing, and related components. Over the course of the project, it issued multiple invoices spanning nearly three years.
After completing its work, the subcontractor registered a construction lien in May 2025 for approximately $250,000. It also registered a certificate of action shortly thereafter.
The owner brought a motion to discharge the lien, arguing that it had not been preserved within the mandatory 60-day period required under the Construction Act.
When Was the “Last Supply”?
At the heart of the case was a single, decisive question: When did the subcontractor last supply services or materials to the project? This date determines when the 60-day lien preservation period begins to run under section 31 of the Construction Act.
The parties took sharply different positions:
- The subcontractor argued that its last supply occurred on March 14, 2025, when it attended the site to address a broken window.
- The owner argued that the subcontractor’s work had been substantially completed months earlier, and that any later activity was merely minor repair or deficiency work.
The outcome of the motion depended entirely on which characterization the Court accepted.
The Strict Nature of Lien Preservation Deadlines
Before turning to the facts, the Court emphasized a foundational principle of Ontario construction law: lien preservation deadlines are strict, mandatory, and not subject to judicial discretion.
If a lien is not preserved within the prescribed time, it automatically expires, and the Court must vacate it. This rigidity reflects the balance the Construction Act strikes between protecting contractors and ensuring certainty for owners and lenders.
Distinguishing Between Substantive Work and Repair Work
A key issue in the case was whether the March 2025 work constituted “last supply” or merely non-lienable activity. Ontario courts have consistently held that certain types of work do not extend lien deadlines, including:
- Repair work
- Deficiency correction
- Minor remedial work
- Work not directly tied to completing the original contract
The rationale is that allowing trivial or corrective work to reset lien timelines would undermine the certainty that the statute is intended to provide.
What Happened in March 2025?
The subcontractor relied heavily on its attendance at the project in March 2025. The evidence showed that a worker attended the site to replace a pane of glass that had been broken during insulation work performed by another party.
The subcontractor argued that this work was part of its ongoing contractual obligations and, therefore, constituted its “last supply” for lien purposes. However, the owner characterized the work as limited in scope, reactive in nature, and unrelated to completing the original subcontract.
The Court’s Findings on the March Work
The Court ultimately accepted that the subcontractor did attend the site on March 14, 2025. However, that did not resolve the issue. The critical question was not whether work occurred, but whether that work was lienable.
The Court concluded that the March activity was repair work addressing damage caused after installation and was not part of completing the original subcontract scope. Additionally, it was not invoiced as part of substantive contract work.
As a result, it did not qualify as “last supply” under the Construction Act.
Importance of Invoicing and Project Records
A significant factor in the Court’s analysis was the subcontractor’s invoicing history.
The evidence showed that:
- The last invoice for installation and change order work was issued in December 2024
- Later invoices primarily addressed deficiencies
- No invoice was issued for the March 2025 repair work
- A final invoice in April 2025 sought only holdback payments
The Court found this pattern inconsistent with the claim that substantive work continued into March 2025. This highlights a key practical point: billing records can be decisive in determining lien rights.
When Was the True “Last Supply”?
After reviewing the evidence, the Court concluded that the subcontractor’s substantive work had been completed prior to February 12, 2025. By that time, only deficiency-related work remained. The March repair work did not extend the lien preservation period.
Because the lien was registered on May 13, 2025—more than 60 days after February 12—it was out of time.
No Triable Issue: Lien Discharged on Motion
The Court also considered whether there was a genuine issue requiring a trial. Under section 47 of the Construction Act, a lien can be discharged on a motion if there is no triable issue.
Here, the Court held that the subcontractor had the obligation to “put its best foot forward”. The available evidence was sufficient to determine the issue, and there was no genuine dispute requiring a trial.
Accordingly, the Court:
- Declared the lien expired
- Ordered it discharged
- Vacated the certificate of action
- Awarded costs to the owner
Takeaways for Contractors and Subcontractors
This decision reinforces several critical lessons for construction industry participants.
1. Timing Is Everything
The 60-day lien preservation period is strictly enforced. Even a short delay can invalidate a lien entirely.
Contractors should track last supply dates carefully, diarize deadlines immediately, and avoid relying on later site visits to extend timelines.
2. Not All Work Counts as “Last Supply”
Courts will closely scrutinize the nature of the work performed. Work that does not extend lien rights includes:
- Minor repairs
- Deficiency corrections
- Work performed after substantial completion
Only work that contributes to completing the improvement will qualify.
3. Documentation Matters
Invoices, emails, and project records can determine the outcome of a lien dispute.
Clear documentation helps establish when substantive work ended, whether later work was part of the contract, and whether the work was lienable.
4. Deficiency Work Is Not a Safety Net
A common misconception is that returning to the site for deficiency work can extend lien deadlines.
This case confirms that deficient work generally does not reset the clock, and courts will look at the overall context of the project.
5. Owners Can Act Quickly to Clear Title
Owners are not required to wait for trial to challenge invalid liens. Under section 47, they can bring a motion to discharge expired liens, remove “clouds” on title, and/or protect financing and transactions.
Contact Tierney Stauffer LLP for Comprehensive Construction Law Services in Ottawa
Construction lien disputes move quickly, and missing a deadline can mean losing your claim entirely. Whether you are a contractor, subcontractor, developer, or property owner, timely legal advice is critical.
The construction law team at Tierney Stauffer LLP provides strategic, practical guidance on construction liens, discharge motions, payment disputes, and holdbacks. If you are facing a lien issue or want to ensure your rights are protected, contact us online or call 1-888-799-8057 for experienced, results-driven advice tailored to Ontario’s construction industry.
