Mention “construction lien”
and most lawyers cringe. They
complain that it is too complicated. The long-awaited third
edition of A Guide to Construction Liens in Ontario is a “must
have” reference book for them
and for everyone whose work
includes construction liens in
Ontario. For this edition, Harvey
Kirsh collaborates with Matthew
Alter, with whom he has teamed
on a number of publications.
Both are well-respected lawyers
with a long history of publishing definitive works in their specialty fields. Together, Kirsh and
Alter, with a combined
experience of more than 60
years at the Bar, are an information powerhouse. They generously share their expertise and
experience with you, the reader,
without holdback.
The book provides a thorough
examination of the topic, combining practical information with
easy-to-follow examples, useful
precedents and academic analysis. Whether you are arguing a
construction lien case in court,
negotiating with the other players in a construction project
where liens have been registered
or threatened, or managing a
large construction project, this
text will be a helpful resource to
add to your library.
The third edition arrives 16
years after the second edition. It
provides important legislative
updates, judicial interpretation
through extensive case law, the
authors’ commentary and up-to-date precedents. The historical perspective at the beginning of the work provides
valuable insight into how the
industry achieved the present
form of construction lien legislation. It also describes recent
legislative amendments and the
resulting changes to construction practice, effective in 2010
and 2011, including electronic
registration and eliminating the
affidavit of verification. Aside
from interesting reading, the
legislative background can be
MASTER
CAROL
ALBERT
TITLE:
Kirsh and Alter:
A Guide to Construction
Liens in Ontario, 3rd edition
AUTHOR:
Harvey J. Kirsh
and Matthew R. Alter
PUBLISHER:
LexisNexis Canada Inc.
helpful as an aid to interpreta-
tion in the face of ambiguity.
The book is written in an academic, digest style with concepts
explained in paragraph form and
frequent footnotes citing cases,
examples and other relevant
authorities. A detailed table of
contents, index and table of cases
will help the reader find what he
or she is looking for.
Kirsh and Alter tackle some of
the more confusing construction
lien concepts with the use of
helpful examples, such as at pp.
110 and 113 where the authors
use diagrams to illustrate important timelines. Another helpful
example is found at p. 118 where
the authors discuss the complex-ities of sheltering lien claims.
Readers who take the time to
work through these examples will
be rewarded with clarity.
At p. 153 Kirsh and Alter
explain clearly the difference
between “discharging” and
“vacating” a lien, a concept that
mysteriously continues to baffle
many practitioners. A lawyer who
incorrectly registers a discharge
of lien, when the court has
ordered it vacated, improperly
extinguishes a lien claimant’s
rights. In the book reviewer’s
opinion, this amounts to professional negligence. Lawyers
should read this section of the
Kirsh and Alter book carefully.
I urge all lawyers who work in
this practice area to read and
absorb Ch. 12 (e-registration). It
explains proper procedure and
steps to take in a paperless
registry system, including
how to protect yourself from
your client, both critical to a
successful practice.
In Ch. 9 the authors provide a
step-by-step guide if you are taking a lien claim to court or
defending such a claim, including identifying the proper court
to go to, who must be named as
parties to the action, what to do
about a bankrupt defendant,
when and how to issue a counterclaim or cross-claim, circumstances in which third party proceedings are permitted, court
procedure, motions (including
when a motion may be brought
“as of right” and when leave is
required) and the conduct of a
lien trial. This chapter is very
useful for lawyers and non-law-yers alike. For the latter group it
provides insight into what happens if the conflict cannot be
resolved short of trial.
In addition to the text, the
authors provide precedents of
forms, pleadings and other
materials that are required to
practice in this area. Whether
you are newly involved in construction lien practice or a seasoned advocate, or even if you
have only the occasional construction lien file, these preced-
Directors can be on hook
Bankruptcy
Continued From Page 16
account for what happened to
moneys received to show that
moneys were expended properly,
which amounted to a breach of
trust that attracted s. 178(1) (d) of
the BIA. The court further held
that the discharge from bank-
ruptcy did not release the trustee
from his fiduciary obligations.
The conclusion to be drawn
from these decisions is that dis-
honest contractors and those
who breach their fiduciary obli-
gations under the CLA cannot
escape personal liability by
assigning themselves into bank-
ruptcy. Unpaid suppliers and
subcontractors may continue to
pursue their CLA trust claims in
the face of bankruptcy of a cor-
poration’s directing minds. Pro-
vided that they can establish
wrongdoing on the part of the
directors of the type described in
Simone, they may be able to
trace the trust funds into prop-
erty purchased by the directors
and recover something at the
end of the day. n
Samuel Marr is the President of
the Toronto Lawyers Association,
a senior partner at Landy Marr
Kats LLP and is certified as a
specialist in civil litigation by
the Law Society of Upper
Canada. Anna Wong practises
civil litigation at Landy Marr
Kats LLP in Toronto. Prior to
joining Landy Marr Kats LLP
she clerked at the Ontario
Superior Court of Justice.
The only caution I have for
this book is if the intended audience includes self-represented
litigants, then much of the text
will be too technical and too
detailed to meet their needs. On
the other hand, self-represented
litigants should find the
precedents useful, if for no other
purpose than to illustrate the
need for competent counsel
experienced in this complex
practice area.
In conclusion, if the goal of
Kirsh and Alter in publishing a
third edition of A Guide to Con-
struction Liens in Ontario is to
provide an authoritative and
definitive, up-to-date guide on
construction law in Ontario, the
authors have succeeded. I recom-
mend the book to lawyers (gener-
alists and specialists alike) who
encounter construction lien
issues as any component of
their practice as well as to
those who work in the construc-
tion industry. n
Master Carol Albert: JD 1980
(Osgoode); LL.M. in ADR 1998
(Osgoode); 16 years with Gardiner,
Roberts; appointed case manage-
ment Master of the Superior Court
of Justice in 1998; construction
lien Master since 2001.
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Butterworths®
Kirsh and Alter: A Guide to Construction
Liens in Ontario, 3rd Edition
Harvey J. Kirsh, B. A., LL.B., LL.M., C.S. &
Matthew R. Alter, B. A., LL.B., C.S.
New Edition!
$150 + tax
Approx. 500 Pages
ISBN: 9780433442752
Top Construction Lien Guide is now Fully Updated
Originally published in 1984 and updated in 1995, this book remains
the definitive guide to construction lien law in Ontario. Now revised
and updated by the authors, two of the most highly respected
names in construction law, this new edition is more indispensable
than ever… a must-have legal reference tool for anyone dealing with
construction lien law.
Features & Benefits
• Provides step-by-step guidance on the practice and procedures
involved in a typical lien action
• Many hundreds of case law references and citations provide an
excellent starting point for legal research
• Current precedents help practitioners save time and money
in preparing construction lien pleadings and related legal
documents
• Supplies the solid information, illustrated examples and sound
advice you need all in a comprehensive, easy-to-follow format
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