46( 1) Where a perfected lien that attaches to the premises has expired
under section 37, the court, upon the motion of any person, shall declare that
the lien has expired and shall make an order dismissing the action to enforce
that lien and vacating the registration of a claim for lien and the certificate of
action in respect of that action.
(3) A motion under subsection ( 1) or (2) may be brought without notice,
but no order as to costs in the action may be made upon the motion unless
notice of that motion was given to the person against whom the order for
costs is sought.
 Section 37 of the Act was considered by the Divisional
Court in K.H. Custom Homes Ltd. v. Smiley,  O.J. No. 5027,
2015 ONSC 6037 (Div. Ct.). Corbett J.’s analysis on behalf of the
court began with the consideration of the scheme of the Act,
which is very helpful, and I reproduce it here for context. Corbett
J. stated, at paras. 2-6 and 9:
The CLA creates substantive claims and security for claims that operate in
parallel with traditional contract claims. The CLA supplements, rather than
replaces, contract claims.
The CLA includes three statutory deadlines that must be met by a lien
(a) the lien must be “preserved” by registering a claim for lien within
45 days of substantial completion of the improvement or within
45 days of completion or abandonment of the contract or last sup-
ply of services or materials to the improvement;
(b) the lien must then be “perfected” within the next 45 days by commencement of an action to enforce the lien, and registration of
a certificate of action;
(c) the action must be set down for trial or scheduled for trial within
two years of commencement of the action.
These requirements are statutory. They are mandatory. The court has no
discretion to relieve from them. The language of the CLA is clear on this
point, as is consistent appellate authority.
This conclusion is consistent with the scheme of the CLA. The first two
requirements are essential to the timely flow of funds on construction sites: persons advancing money to pay for construction may rely upon the state of title
before making an advance. This reliance would be compromised if late liens could
be placed on title as a result of the court’s exercise of discretion after-the-fact.
The third statutory deadline — to set the action down for trial or schedule
a trial date — has turned out to be less fundamental to the scheme of the
CLA. It places responsibility firmly on the parties to ensure that actions proceed with reasonable promptness, but it also creates a potential liability for
unwary counsel, arguably without a commensurate benefit to the overall
administration of lien proceedings: the commonplace need to bring a motion
to set a trial date before completion of discoveries in complex lien proceedings