Maynard Holdings Limited v. Optimo Group Inc., 2023 NSSC 66

SUPREME COURT OF Nova Scotia Citation: Maynard Holdings Limited v. Optimo Group Inc. , 2023 NSSC 66 Date: 20230222 Docket: Halifax , No. 514532 Registry: Halifax Between: Maynard Holding Limited Applicant v. Optimo Group Inc. Respondent DECISION Judge: The Honourable Justice John P.

Bodurtha Heard: June 21, 2022, in Halifax, Nova Scotia Written Decision: February 22, 2023 Counsel: Gavin Giles, K.C., Counsel for the Applicant Derek Brett, Counsel for the Respondent By the Court: Overview [ 1 ] Maynard Holdings Ltd. [1] (“Maynard”) seeks an Order vacating multiple Claims of Lien for Registration which Optimo Group Inc. (“Optimo”) had recorded sequentially against certain lands and premises owned by Maynard at 5665 Roberts Street, Halifax, Nova Scotia (PID No. 00170050) (the “Property”). [ 2 ] Maynard is involved in constructing a multi-unit residential structure on the Property (the “MR Project”). [ 3 ] On April 8, 2022, Optimo filed a lien on the Property (the “Lien”) for $1,875,489.00.

Since that time, due to a professional error, the Lien amount has been recalculated to $745,604.66. The Amended Lien Claim was filed on May 17, 2022. [ 4 ] Maynard challenges the validity of the Lien, arguing that it was not registered in time under the Builders' Lien Act , RSNS 1989, c 277 , (the “ BLA ”) based on Optimo abandoning its written agreement (the “Agreement”) with Maynard to perform work on the MR Project. [ 5 ] I find there are no genuine issues of fact in dispute regarding whether the Agreement between Maynard and Optimo was abandoned.

I find the Agreement was abandoned when Optimo unilaterally attempted to change the terms of the Agreement on December 21, 2021, or, alternatively, when Optimo entered into an Agreement of Purchase and Sale in relation to all its equipment and employees and conveyed them to a third party, iForm Works Inc. (“iForm”), by a General Conveyance Agreement dated February 1, 2022. As a result of the General Conveyance Agreement, Optimo could no longer perform the work on the MR Project. [ 6 ] Maynard had no knowledge that Optimo had conveyed all its equipment and employees to iForm.

At no time did Maynard contract with iForm with respect to the MR Project. [ 7 ] Maynard’s application to vacate the lien pursuant to section 29(4) of the BLA is granted with costs. Facts [ 8 ] Maynard carries on business as a property developer, owner, manager, and general construction contractor. [ 9 ] Optimo is a construction company operating in and around Halifax, Nova Scotia. Optimo focuses on building foundations and “super-structure” work, i.e., formwork for footings, vertical elements and concrete slabs.

As part of Optimo’s work, it also supplies and uses construction cranes, concrete formwork, and ancillary materials to construct concrete structures for multi-unit residential buildings.

[ 10 ] At all material times, Hamid Nikkhah was the President, Director and sole Shareholder of Optimo and Civil Tech Construction Ltd. The companies shared common employees, sub-contractors, and construction equipment. [ 11 ] Maynard hired Optimo to perform construction services on the MR Project for Optimo’s stated and agreed lump-sum price of $1,425,000.00, plus HST.

The terms and conditions were outlined in a written Agreement executed on or about August 27, 2020. [ 12 ] These construction services were further defined in the Agreement by way of included specific terms and conditions: Scope of Work, Scope of Supply, Bill of Quantity, and a Final Price, and pertained to the construction of the MR Project. These construction services included shuttering the concrete foundation and concrete structure, and placement of concrete for footings and vertical elements.

The scope of the work included the supply and use of a tower crane, forms, tools and associated equipment, and all associated labour to construct the concrete structure. [ 13 ] Near the end of 2021, Optimo advised Maynard that it was financially challenged and that, without financial assistance, Optimo was not capable of completing its work on the MR Project. [ 14 ] Specifically, Optimo wrote to Maynard on December 21, 2021 presenting two options for the MR Project (see Daniel affidavit of May 3, 2022, at Exhibit “D”). The options read as follows: Option No – 1 .

Consent to the assignment and amendment of the existing contract in place with Optimo Group inc, namely Maynard Holdings dated August 27 th , 2020. With the assignment and amendment being in favour of Iform Works inc, and the revised price being an additional amount of $335,000.00 to be paid in addition to the initial contract price of $1,425,000.00.

If this option is chosen, the assignment and amendment will provide that iForm Works inc. shall commence work on the job upon assignment being signed and delivered and will proceed with in a good and workmanlike manner to finish the job by end of February 2022, weather permitting and further provided all the prerequisite work is completed. … Option No – 2 . Optimo group Inc will continue to work at Maynard st Job site till the commencement of December 2021 Holidays.

Thereafter work will proceed based on the existing contract amount of $1,425,000.00 subject to temporary or longer work stoppages until Optimo Group Inc is able to outsource fundraising and obtain funds or financing in the amount of $ 335,000.00, which funds will be able required to enable Optimo Group Inc to finish job. … In the event the Option 1 is chosen on or after December 24 th , 2021, then iForm Works inc reserves the right to increase the additional amount to be charged to reflect increases in the cost of labour and materials required to finish the job. [ Errors in Original ] [ 15 ] It should be noted that, at the same time these options were presented, Optimo purported to reserve to iForm the right to increase the agreed upon $1,425,000.00 (plus HST) plus the additional amount of $335,000.00 (plus HST, presumably) to some other non-disclosed figure to reflect increases in the cost of labour and materials required to finish the job should Option 1 be chosen on or after December 24, 2021. [ 16 ] At the time of receipt of the letter, Maynard had little knowledge of iForm, its capabilities or workload.

Maynard had not heard anything from iForm regarding the purchased assets of Optimo and knew nothing about any assignment. There was no provision in the Agreement permitting Optimo to assign the Agreement, let alone unilaterally assign it without notifying Maynard. [ 17 ] Maynard responded to Optimo’s “proposal”, in writing, on January 4, 2022 advising that Optimo’s return to the MR Project was expected. Only a few workers returned to get their tools and they advised Maynard that they had been assigned to another site.

It was clear to Maynard that Optimo had no intention of completing the Agreement and, therefore, Maynard would treat the Agreement as terminated (see Nikkhah affidavit of May 16, 2022, at Exhibit 4). [ 18 ] Optimo responded to Maynard on January 5, 2022 (see Daniel affidavit of May 3, 2022 at Exhibit “E”).

The essence of that correspondence was: • To ensure Optimo’s full commitment in completing the work. • Optimo was facing additional costs related to COVID-19. • Optimo did not have a contract with Maynard in any event. • Maynard had agreed to pay for Optimo’s unbudgeted additional costs. • Because of additional costs concerns, Optimo could not commit to any kind of schedule. • Optimo had never raised the price of the proposal but would be “requiring additional $335,000.00 CAD to complete the project …” • Optimo did not have “the formal written contract” with Maynard and as such has “the right to claim holding charges, rental charges, loss of business opportunity and like wise [ sic ] towards your end.” [ 19 ] Optimo’s suggestion that there was not a contract between itself and Maynard contradicts its pleading herein that: “[Optimo] was contracted with [Maynard] to perform work on the lands being subject to the Lien ...” (see Daniel supplementary affidavit of June

13, 2022, Exhibit “E”, at para. 3) [ 20 ] On January 5, 2022 Maynard sent correspondence objecting to Optimo’s proposal. [ 21 ] Optimo again wrote to Maynard on January 10, 2022 (see Daniel affidavit of May 3, 2022, at Exhibit “F”) advising that: • Maynard’s required work would not be undertaken by Optimo, and the new contract will be with iForm Works Inc. • iForm Works Inc.’s price to complete the MR Project would be $1,760,000.00 (plus HST, presumably) “based on the time

schedule to be provided.” It would not be the agreed-upon price with Optimo of $1,425,000.00 (plus HST). • Notwithstanding its references to iForm Works Inc., “Optimo Group is committed to complete the project ...”. • Optimo had significant invoices with respect to its work on the MR Project related to rented construction equipment (Doka and Sancton), Workers’ Compensation Board premiums, and union dues. [ 22 ] Maynard advised Optimo that it was neither interested in the assignment of its required work on its MR Project to iForm, nor paying $335,000.00 more for this required work pursuant to the original Agreement. [ 23 ] Optimo never supplied work materials and equipment to Maynard on the MR Project following the departure of its workers on December 23, 2021 (see Daniel affidavit of May 3, 2022, at Exhibit “D” and at para. 45).

Maynard has retained and utilised the materials and equipment owned by Optimo and subsequently conveyed to iForm. [ 24 ] As of its departure from the MR Project, Optimo had completed only 57% of the work (or the deliverables) it had agreed to provide. Maynard paid Optimo a total of $938,500.55 as of December 10, 2021. Issue 1. Did Optimo abandon the Agreement and, if so, was the Lien registered in time?

Applicable Legislation Builders' Lien Act , RSNS 1989, c 277 Time for registering claim for lien 24(1) A claim for lien by a contractor or subcontractor, in cases not otherwise provided for, may be registered before or during the performance of the contract, or within sixty days after the completion or abandonment thereof. Expiry of lien 25 Every lien for which a claim is not registered shall absolutely cease to exist on the expiration of the time hereinbefore limited for the registration thereof.

Expiry of registered lien 26(1) Every lien for which a claim has been registered shall absolutely cease to exist on the expiration of one hundred and five days after the work or service has been completed or materials have been furnished or placed, or after the expiry of the period of credit, where such period is mentioned in the claim for lien registered, or in the cases provided for in subsection (5) of

Section 24, on the expiration of thirty days from the registration of claim, unless in the meantime an action is commenced to realize the claim and a certificate thereof (Form

E) is registered in the registry of deeds in which the claim for lien was registered. (1A) Where the certificate referred to in subsection (1) relates to land that is a parcel registered pursuant to the Land Registration Act , the form of the certificate to be registered is the certificate of lis pendens prescribed under that Act.

(2) Where the period of credit mentioned in the claim for lien registered has not expired it shall nevertheless cease to have any effect on the expiration of six months from the registration or any re-registration thereof if the claim is not again registered within that period, unless in the meantime an action is commenced, and a certificate thereof has been registered as provided by this Section.

Discharge of lien 29(4) Upon application, the court or judge having jurisdiction to try an action to realize a lien, may allow security for or payment into court of the amount of the claim, and may thereupon order that the registration of the lien be vacated or may vacate the registration upon any other proper ground and a certificate of the order may be registered. Analysis Lien Discharge Test [ 25 ] In King (Hand Construction) v. Dileno , 2020 NSSC 39 , Smith, J. set out useful parameters on when and how a builders’ lien can be vacated prior to trial.

Her analysis begins with the applicable legislation for the discharge of a lien at para. 27:

27 …

Section 29 deals generally with the discharge of a lien. Subsection (4) states:

(4) Upon application, the court or judge having jurisdiction to try an action to realize a lien, may allow security for or payment into courtof the amount of the claim, and may thereupon order that the registration of the lien be vacated or may vacate the registration upon anyother proper ground and a certificate of the order may be registered. [Emphasis added in the original] [26] In describing the test to discharge a lien she stated at para. 28: 28 The test on a motion to vacate a builder’s lien (under the then Mechanics’ Lien Act) was described by O’Hearn Co. Ct. J. inMcLanders Contractors Ltd. v.

Eastern Flying Services Ltd. (1982), (NS SC), 55 N.S.R. (2d) 449, 1982 CarswellNS36 (N.S. Co. Ct.): 2. The applicant is seeking to have the lien vacated not on the basis of payment into court, but on the ground that no lien exists. In suchan application there is a heavy burden on the applicant to show that this is clearly the case and that the claim can safely be disposed of ona

summary application, whether original or interlocutory, of this nature. The application is in some respects analogous to an applicationfor

summary judgment. The policy of the Mechanics’ Lien Act is to provide mechanics and builders and other people in the constructionindustry with an important security, which should not be taken away except on the clearest grounds. [Emphasis added in original] [27] Smith, J. properly noted that McLanders was decided pursuant to the provisions of the old Mechanics’ Lien Act, and held thatthe principles remain applicable today. In McLanders, Judge O’Hearn vacated the lien on the basis of affidavit evidence and cross-examination. [28] Smith, J. referred additionally to the decisions of W.M.

Fares & Associates Inc. v. 3035606 Nova Scotia Ltd., 2006 NSCA 120,and Think Kitchen Cabinets Ltd. v. Harbourvista Apartments Ltd., 2014 NSSC 28 where both the Nova Scotia Court of Appeal and theNova Scotia Supreme Court discuss the

summary nature and high standard to be met for vacating a lien. In W.M. Fares, Saunders, J.A.stated at para. 10: [10] And so it is plain to see that the party seeking to vacate a lien faces a significant evidentiary hurdle. There is a “heavy burden” onthe applicant to demonstrate that the remedy is “clearly” deserved. Those who seek the effective and immediate protection which a lienaffords, must not be deprived of that important security “except on the clearest” of grounds. Those prerequisites — as Judge O’Hearnexplained — must inform a judge’s determination as to whether or not the claim can be “safely...disposed of on a

summaryapplication.”... [29] Saunders, J.A. went on to discuss how the Chambers judge erred in dealing with the application “in the face of a seriousdispute as to material facts”: [25] Second, the Chambers judge erred in concluding that she could legitimately deal with this application in the face of a serious disputeas to material facts. The completely different factual positions asserted by counsel in their post-appeal written submissions stand as starkproof that this case is entirely unsuited to resolution in a Chambers setting.

Such diametrically opposed positions supported solely on thebasis of affidavit evidence and upon which the affiants were not cross-examined, ought not to have been disposed of summarily. Thepositions of these parties deserved to be proved and challenged at a trial on the merits. See, for example Guarantee Co. of North Americav. Gordon Capital Corp., (SCC), [1999] 3 S.C.R. 423 at 27; United Gulf Developments Ltd. v. Iskandar (2004), 2004NSCA 35, 222 N.S.R. (2d) 137 at 9 and 15; and Oceanus Marine Inc. v.

Saunders (1996), 1996 NSCA 139 , 153 N.S.R. (2d)267 at 7, 11 and 20. . . . [28] In light of the diametrically opposed positions and the contradictory evidence contained in the record before the Chambers judge itcannot be said the respondents satisfied their heavy burden of demonstrating that the appellant should be deprived of its importantsecurity on the clearest of grounds.

On the contrary, this is a case that can only be resolved after a full trial on the merits. [30] Smith, J., at para. 31 of her decision, next quoted, Moir, J. for further support for the high standard to vacate a lien: 31 More recently, in Think Kitchen Cabinets Ltd. v. Harbourvista Apartments Ltd., 2014 NSSC 28 (N.S.S.C.) Moir J. emphasized thatthe motion to vacate a lien is a

summary one, and “may only be granted if Harbourvista has clearly established that there is no genuineissue requiring a trial” (paras. 32 - 33). [31] Smith, J. concluded at para. 32: 32 In

summary, in order to vacate the lien this Court must be satisfied that Mr. Dileno has met the heavy burden of demonstrating thatthe clearest of grounds exist to vacate the lien. Put another way, I must be satisfied that there is no genuine issue requiring a trial. [32] The provisions of the BLA are specific as to the limitation period for the registration of a valid builders’ lien.

They arecontained within sections 24(1) to 24(3) and can be summarised as follows, for a lien to be valid, it must be registered within either of thefollowing deadlines: (a) “within sixty days after the completion or abandonment” of the contract to which it applies; or (b) “within sixtydays after the furnishing or placing of the last material so furnished or placed” to which the lien applies; or (c) “within sixty days after thecompletion of the service to which the lien applies”. [33] Maynard says that Optimo had effectively abandoned the Agreement on December 23, 2021 and that there was no work ormaterials supplied after that date.

Optimo registered its Lien on April 8, 2022. Thus, Maynard argues that the Lien was registeredoutside the applicable limitation period and the Court should vacate the Lien pursuant to section 29(4) of BLA.

Abandonment [34] In King, Smith, J. considered the meaning of “abandonment” and quotes from Saunders, J.A. in W.M. Fares & Associates Inc.,and Moir, J. in Think Kitchen Cabinets Ltd.: [35] … Justice Saunders considered the meaning of “abandonment”. He said: [23] In my respectful opinion the chambers judge erred in two respects. First, she erred in concluding “that the contract was abandoned”in the absence of any evidence of any such intention to abandon the project. The law is clear. The question of abandonment or not is oneof intention. In Dieleman Planer Co. Ltd. v.

Elizabeth Townhouses Ltd. (1974), (SCC), 3 N.R. 376, 48 D.L.R. (3d) 635(S.C.C.), a decision of the Supreme Court of Canada, Judson, J., speaking for the court quoted with approval the following statement ofSeaton, J.A., in British Columbia Court of Appeal (1973, (BC CA), 38 D.L.R. (3d) 595): It is clear that work ceased, but in my view cessation of work and abandonment are not necessarily co-existent.

In order to constituteabandonment a cessation of work would have to be permanent in the sense that it was not intended to carry the project to completion.Work on this project ceased before 10th December but the evidence is clear that it was intended that work be resumed when the financialproblems had been overcome. It was likely that those problems would be overcome because the cost of completion was more than offsetby the funds remaining to be advanced on the mortgage. . . . Those principles were followed by this court in Freeman & Sons Ltd. v. Neu, (1986) (NS CA), 73 N.S.R. (2d) 275.See as well R. F.

Moote & Associates v. Arrowhead Resort Ltd., (2002) 2002 NSSC 199, 207 N.S.R. (2d) 376. [24] I can find nothing in the record from which an intention on the part of the applicant to abandon the contract can be shown, orinferred. With respect, the references from the affidavit evidence to which Mr. MacNeil referred on behalf of the respondents inargument do not amount to such proof. On the contrary, they only serve to reiterate the respondents’ assertion as to the approximate timeof year they say the appellants stopped work. That is not at all the same as proving that the contract was abandoned.

In order to establishabandonment there must be clear evidence of intention, which is utterly lacking in the record before the Chambers judge. [Emphasis of Saunders J.A.] 37 The meaning of “abandonment” under s. 24(1) of the BLA was also considered in Think Kitchen Cabinets Ltd. v. HarbourvistaApartments Ltd. (supra) where Moir J. stated: [38] At para. 23 of W.M. Fares, Justice Saunders said, “The law is clear. The question of abandonment or not is one of intention”. Hereferred to Dieleman Planer Co. Ltd. v.

Elizabeth Townhouses Ltd. (1974), (SCC), 48 D.L.R. (3d) 635 (S.C.C.) inwhich Justice Judson approved of the following from the decision that was under appeal, (1973), (BC CA), 38 D.L.R.(3d) 595: It is clear that work ceased, but in my view cessation of work and abandonment are not necessarily co-existent. In order to constituteabandonment a cessation of work would have to be permanent in the sense that it was not intended to carry the project to completion. [39] The authorities do not suggest that the question of intention is entirely subjective.

Otherwise, a builder who repudiates theconstruction contract, but privately intends to continue with it, has not abandoned it within the meaning of s. 24(1). This can happen. Forexample, a contractor who wishes to extract an amendment to the construction contract, or to settle a dispute about what is owing underit, might, at a sensitive moment, threaten to quit, might even stop working, in the hopes that the owner will agree to the amendment, orsettle the dispute, rather than live with the calamity of the contractor’s withdrawal at a sensitive moment.

In such a case, the contractortakes a great risk because repudiation turns on communicated intention in the law of contracts, not the contractor’s private intent. [40] Abandonment under s. 24(1) and repudiation are not the same thing. However, they can be closely related. A contractor’srepudiation and the owner’s acceptance of the repudiation “terminates further performance by either side”: G.H.L. Fridman, Q.C., TheLaw of Contract in Canada, 5th ed. (Toronto: Thomson Carswell, 2006) at p. 621.

A repudiated contract is abandoned in the sense thatfuture further performance is terminated. [35] Smith, J. was faced with two factual and legal issues in King: the timing of the registration of the subject lien vis-a-vis the lastday of Mr. King’s work, and the issue of the abandonment, by Mr. King, of his responsibilities to the subject project. [36] Addressing the second issue first, Smith, J. held that an abandonment of the subject project by Mr. King had not beenestablished by the project's owner to the

summary standard. In that regard, Smith, J. found that equipment belonging to Mr. King hadbeen onsite and was being used in early December (the date of the registration of the subject lien had been at the end of January), andthat there was some evidence that Mr. King had also been working on the subject site. [37] As such, Smith, J. held that an abandonment of the subject project had not been established to the

summary standard. Accordingly, the issue of the timing of the registration of the subject lien vis-a-vis the timing of the last day of Mr. King’s work couldnot be summarily established, and a trial on that issue would be required. She concluded that “Mr. Dileno has not discharged the heavyburden which falls to him to summarily vacate the lien.” (see para. 42) [38] Optimo states that it has never abandoned its work or its equipment and materials. I disagree. The facts before me are quitedifferent when it comes to abandonment and this permits the ready distinction of King.

I find there is ample evidence of Optimo’sabandonment of its responsibilities to Maynard’s MR Project. The most telling piece of evidence is Optimo’s correspondence ofDecember 21, 2021, indicating that Maynard would be required to consent to the assignment of their Agreement to iForm and payanother $335,000.00 over and above the agreed upon lump sum contract price.

[ 39 ] “Option 2” set out in Optimo’s December 21, 2021 correspondence offered nothing more than, as of December 24, 2021, it was “pulling the plug” on its work on the MR Project and that, depending on financing, it might return and it might not.

I find that is not a position consistent with the finding of Smith, J. in King . [ 40 ] In support of the finding that Optimo had abandoned its work on the MR Project is Optimo’s correspondence of January 10, 2021 wherein it indicated that: Moving forward the new contract will be signed with iForm Works inc [sic] to the amount of $1.76 million CAD... [ 41 ] I conclude that Optimo abandoned its responsibilities to Maynard’s MR Project, not only in favour of iForm, but on the basis of a new contract price which was $335,000.00 greater than that previously agreed to by the parties.

As a result, I find there is no genuine issue for trial. General Conveyance Agreement [ 42 ] Alternatively, I find that if Optimo did not abandon its Agreement with Maynard by its correspondence of December 21, 2021, it did so by an Agreement of Purchase and Sale dated November 22, 2021, where Optimo agreed to convey all of its construction equipment at Maynard’s MR Project to iForm. This conveyance was completed by Optimo as of February 1, 2022 ( see Nikkhah affidavit of May 16, 2022 at Exhibit 7 and at paras. 14 and 15 ).

The General Conveyance Agreement (see Exhibit 7) makes reference to an Agreement of Purchase and Sale (between Optimo and iForm) dated November 22, 2021. [ 43 ] All interests in Optimo’s equipment were agreed to be sold to a third-party company, iForm, via signed documents on February 1, 2022.

This deal included the equipment currently at the Property including, but not limited to: a Potain MD-365 serial number: 410563 year: 2008 (the “Tower Crane”); certain formworks and tools. [ 44 ] In its correspondence of December 21, 2021, Optimo did not advise Maynard that it had, by way of an Agreement of Purchase and Sale dated November 22, 2021, committed to the sale of its equipment and employees being used on Maynard’s MR Project to iForm.

At Exhibit 7 of the Nikkhah affidavit, sworn May 16, 2022, is the General Conveyance Agreement dated February 1, 2022 between Optimo and iForm which lists the equipment being conveyed at

Schedule “A”. This included the equipment located on the Property which is listed at Exhibit 6. With Optimo’s assistance, iForm has been seeking the recovery of that equipment since early 2022 (see Hfx No. 514986 (2022): iForm Works Inc. v.

Maynard Holdings Limited ). [ 45 ] On February 1, 2022, Civil Tech executed a General Conveyance Agreement whereby Civil Tech conveyed the balance of the equipment to iForm (see Daniel supplementary affidavit, sworn June 13, 2022, Exhibit “J”, at para. 20, and the attached Exhibit “E”). [ 46 ] In further support of February 1, 2022 being the date that the equipment was conveyed to iForm, I note that iForm’s Statement of Claim (in its action against Maynard) indicates its intention to seek a rental fee from February 1, 2022 for its equipment still on the Property that had been conveyed by Optimo (see Daniel supplementary affidavit sworn June 13, 2022, Exhibit “G”, at paras. 32(

d) and (e)). I also note that Hamid Nikkhah filed an affidavit in support of iForm’s claim (see Daniel supplementary affidavit sworn June 13, 2022, Exhibit “I”). [ 47 ] Collateral to the sale of equipment by Optimo to iForm, Optimo agreed to transfer all of its employees, including its owner, Hamid Nikkhah, to iForm (see Daniel supplementary affidavit, sworn June 13, 2022, Exhibit “J”, at paras. 16(

a) and 16(b)). [ 48 ] In King , Smith, J., conducted a lengthy and comprehensive analysis drawing on a number of well-worn authorities that focussed on the establishment of the lien claimants’ intentions with respect to the continuation of their responsibilities to the subject projects. She concluded that the question of intention is not purely subjective. In the case before me, Optimo’s intentions are clear.

Optimo informed Maynard that it was abandoning the MR Project. [ 49 ] For whatever reason - even if it was simply to attempt to attract a higher price from Maynard than that to which it had agreed - Optimo was very clear in its communication of its intention in its letter of December 21, 2021 providing two options for Maynard. [ 50 ] First, it was assigning its project responsibilities to iForm. Second, iForm would require an additional $335,000.00 from Maynard to complete the work Optimo had agreed to complete for $1,425,000.00. Third, Optimo had divested itself of its project equipment and employees.

How could Optimo have completed any work for Maynard after its General Conveyance Agreement of February 1, 2022 conveying all its equipment and employees to iForm, on the basis of its Agreement of Purchase and Sale dated November 22, 2021. I find there could not be a clearer indication of abandonment. [ 51 ] As discussed in W.M. Fares , a contractor takes a great risk in abandoning a project because the contractor’s private intent does not supersede its communicated intention. The authorities do not suggest that “the question of intention is entirely subjective” (see para. 23).

In this case, Optimo’s communicated intention is clear. Last Day of Work [ 52 ] Determining the question of abandonment fully disposes of the issue in this Application. Nevertheless, I would like to comment on Optimo’s argument at the hearing that it had not abandoned the Agreement based on its last day of work. [ 53 ] Optimo provided a number of dates regarding its last day of work at Maynard’s MR Project through the Nikkhah affidavit of May 16, 2022: • At para. 36, Optimo deposes to its work at MR’s Project until January 12, 2022: “Optimo worked continuously at the MR Project

worksite through January 12 [2022].” • At para. 41, Optimo deposes to its work at MR’s Project until January 12, 2022: “the final [ sic ] Optimo was permitted to perform the Agreement at the MR worksite was January 12, 2022.” • At Exhibit 9, pp. 2-4, Optimo contends that it was operating at MR’s Project up until February 28, 2022. • At Exhibit 9, pp. 5-6, Optimo contends that it was operating at Maynard’s site up until February 9, 2022. [ 54 ] Maynard claims that Optimo abandoned the Agreement on December 23, 2021, which would effectively be Optimo’s last day of work.

As described above, Optimo offers three versions of its last day of work: January 12, 2022, February 9, 2022 and February 28, 2022. [ 55 ] It would be an absurdity for this Court to allow Optimo’s Lien to stand after it has clearly abandoned the Agreement based on a variety of dates Optimo has put forward as being its last day of work on the MR Project.

Optimo has not provided the Court with the usual documentation one would expect in support of its “various” assertions for its last day of work (such as job cost records, employee productivity records, equipment and concrete delivery records, employee time and related payroll records, and daily construction journal entries). Optimo should have these or similar records in its possession; however, none of these records were produced for the Court. Conclusion [ 56 ] A lien is an encumbrance on real property.

It is a charge which stands in the way of an owner’s traditional right to do with their property as they wish. It is an important security to ensure payment of outstanding construction claims – subject to a holdback amount. There is a heavy burden on applicants to deprive lienholders of that security. The authorities are clear that a lien should only be removed in the clearest of cases on a

summary application. In my opinion, it is on that basis that the validity of a lien deserves a significant level of scrutiny. [ 57 ] I find that Maynard has met that heavy burden to deprive Optimo of its security. Optimo has not led any credible evidence to rebut Maynard’s evidence that Optimo’s abandonment of the Agreement on the MR Project was not within the 60 days prior to April 8, 2022.

The various dates provided by Optimo without evidentiary support give no comfort to the Court that Optimo’s Lien was registered in time. [ 58 ] I find that Optimo abandoned the Agreement with Maynard on the MR Project on December 23, 2021, when it advised Maynard it was no longer working on the project until one of the two options it presented to Maynard was chosen: • pay an extra $335,000.00 (plus HST, presumably) and agree to the unilateral assignment of the Agreement with Optimo to iForm; or • Optimo will continue to work until the start of the December 2021 holidays.

After the holidays, work will continue at the agreed- upon price subject to temporary or longer work stoppages until Optimo is able to obtain funds in the amount of $335,000.00. [ 59 ] Alternatively, Optimo abandoned the Agreement with Maynard on the MR Project on February 1, 2022. On this date all of Optimo’s equipment and employees were conveyed to iForm by a General Conveyance Agreement in accordance with an Agreement of Purchase and Sale dated November 22, 2021.

As of this date, Optimo had neither any employees nor equipment to complete the Agreement with Maynard. [ 60 ] Whether Optimo abandoned the Agreement with Maynard on the MR Project on December 23, 2021 or February 1, 2022, neither date is within the 60 days prior to the Lien being registered on April 8, 2022. There is no genuine issue for trial.

I find the Lien is not valid and the Court vacates it pursuant to section 29(4) of the BLA . [ 61 ] Maynard’s Application is granted with costs. [ 62 ] Should the parties be unable to agree on the issue of costs, I will accept submissions, in writing, within 30 days of the date of this decision. Bodurtha, J.