Joining Ontario Breach of Trust and Lien Claims in the Same Action – An Evolving Landscape

  • May 16, 2022
  • Joshua Strub, John Margie, and Simren Sihota, Margie Strub Construction Law LLP


It was undisputed law under the Construction Lien Act (the “Old Lien Act”) that a trust claim could not be joined with a lien claim. After all, there was an explicit prohibition in section 50(2) of the Old Lien Act.1

However, when the Ontario Legislature updated the Old Lien Act to the Construction Act (the “New Act”) in 2017, section 50(2) was removed. Therefore, the question that was bound to arise before the courts in Ontario was whether, under the New Act, trust claims and lien claims can be brought together in the same action.

That question first came before the courts in the case of Damasio Drywall Inc. v. 2444825 Ontario Limited (“Damasio Drywall”)2 in December 2021 when Associate Justice Wiebe released his decision and made statements in obiter dicta that the prohibition still applied.

The question came before Associate Justice Wiebe again in January 2022, in the case of 6628842 Canada Inc. v. Topyurek (“Topyurek”),3 where he adopted his obiter dicta statements from Domasio Drywall.

But this was not the end. In February 2022, Justice Harper rendered a decision in SRK Woodworking Inc. v. Devlan Construction Ltd. et al. (“SRK Woodworking”)4 which disagreed with Associate Justice Wiebe.

Therefore, the question is, what is the current state of the law on this issue and might it evolve further as more cases on this issue are decided by the courts.