Section 47 Motions Under Ontario's Lien Legislation

A recent Ontario Superior Court decision from April 2022, Louis Jones Construction Ltd. v. Rocque, 2022 ONSC 2362, adds to the line of cases dealing with motions brought under Section 47 of Ontario's construction lien legislation to discharge an expired lien. In dispute in this case was the operation of the transition provisions in Section 87.3 of Ontario's Construction Act,  RSO 1990, c C.30 (“Act”).

Despite procedural differences, motions under Section 47 of Ontario's lien legislation are similar to motions for summary judgment under Ontario's Rules of Civil Procedure (the “Rules”) from the perspective of the underlying test. Both involve consideration of whether or not a “triable issue” exists in respect of an issue in dispute. In the case of Section 47 motions to discharge a lien (which are defensive in nature, because they do not provide a means for the plaintiff to obtain judgment), the court needs to determine whether there is “a triable issue in respect to