is but one of the costs of this provision. Nonetheless, however one might
assess the costs and benefits of this provision, it remains part of the scheme
of the Act and is no less mandatory for being less than essential to the efficient administration of the Act. The principle that underlies the provision —
which has clear analogues in the requirement to move expeditiously after
obtaining a certificate of pending litigation — is to require parties to proceed
diligently with their claims when they tie up title to property pending final
disposition of their lien claims.
Subsection 46( 1) is mandatory: where it applies, the court “shall” declare
that the lien has expired and dismiss the lien action.
 Like the present case, the statement of claim in K.H. Custom Homes asserted claims against the defendant both for a construction lien and for breach of contract. The plaintiff failed to set
the action down for trial or schedule a trial date within two years
of commencement of the proceeding, and its lien expired under
s. 37( 1) of the Act.
 The issue in K.H. Custom Homes was whether summary
dismissal of the lien claim under s. 46( 1) of the Act requires the
dismissal of the entire action — the lien claim and the breach of
contract claim — or just the lien claim. The Divisional Court concluded that s. 46( 1) requires the dismissal of only the lien claim,
and the contract (or other non-lien) claim may continue (subject
to the defendant’s right to bring a motion for delay under rule
24.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194).
 The question in the present case is when was “the commencement of the action that perfected the lien” — October 1,
2015, when the statement of claim was issued, or October 6, 2015,
when the statement of claim was amended to include reference to
the lien registered on the property?
 The defendants argue that “the commencement of the
action that perfected the lien” is the issuance of the statement of
claim, and that occurred on October 1, 2015.
 The plaintiff argues that a statement of claim that perfects
a lien must plead the actual lien in the legal description of the premises referenced in the claim in order to comply with the Act. The
October 1, 2015 claim could not perfect the lien because it did not
comply with the Act by pleading the legal description of the lien that
attached to the premises. The amended statement of claim that was
issued on October 6, 2015, was therefore the commencement of the
action that perfected the lien because it pleaded the legal description
of the lien. The claim for the lien in the amended statement of claim
was a new cause of action not pled in the original statement of claim.
Therefore, the second anniversary of the commencement of the
action which perfected the lien was October 6, 2017.