Remote construction lien vacating motion protocol

  • March 31, 2020

Please find below correspondence sent from Masters Wiebe and Robinson to the OBA Construction & Infrastructure Section:

As you know, since March 17, 2020, regular operations of the Superior Court have been suspended due to the COVID-19 pandemic.  Only urgent matters are currently being heard.  The scope of events that may be heard will be expanded effective April 6, 2020, and may include additional civil matters.

Because all hearings are currently remote, there have been challenges in addressing urgent vacating motions in Toronto, where our ordinary procedure involves originally signed fiats and originally endorsed bonds (or letters of credit) being submitted to the Accountant, following which the vacating order is obtained upon the security being posted and the Accountant’s account number being added to the draft order.  That process has not been practical given current remote operations.  As a result, an interim process is now being employed that has been accepted by the Accountant. 

In order to assist the construction bar in expediting the hearing of vacating motions, which will continue to be heard remotely until return to regular operations, the below outlines our current interim process, including the general form of order currently being used.  You may wish to distribute the below to your respective GTA-based membership.

The current process for bringing motions remains as set out in the Notice to the Profession, the Public and the Media Regarding Civil and Family Proceedings (  A further notice or modified notice may be issued by the Chief Justice, in which any expansion of civil events to be heard effective April 6, 2020 may be identified.  In order to assist in vacating motions being dealt with expeditiously, in addition to evidence required to satisfy the conditions in the Notice to the Profession, motion materials for vacating motions should also include the following:

  • where possible, a consent from the lien claimant (and, if applicable, any other affected lien claimants);
  • a copy of the security to be posted (for lien bonds or letters of credit, this includes all schedules with visible signatures, identification of authorized signing officers, and any corporate seals) – high quality colour scan of the original security is preferred;
  • a completed fiat in the usual form, a copy of which can be found here; and
  • a draft order taking into account currently necessary directions to the Accountant, current pre-conditions to the vacating order taking effect (i.e., the posting of security), and service of the Accountant’s receipt (see a link to the general form of draft order).

Upon approval of security, the fiat will be signed and, in the case of a bond or LC, the security will be endorsed in the usual way.  The signed order, endorsed bond or LC, and signed fiat will be emailed to the lawyer for the moving party.  The order is then issued and entered using a printed version of the electronic order BEFORE going to the Accountant.  The original security, a copy of the endorsed copy of the security (for a bond or LC), a copy of the signed fiat, and the issued/entered order are then taken to the Accountant, who will post the original and approved copy of the security, and will issue a receipt in the usual way.  The vacating order is then served with Accountant’s receipt and may be registered where the subject lien attaches to the premises.