A. Heal

The applicant First Nation sought an interpleader order to pay a construction holdback fund into court due to multiple adverse claims from subcontractors, a garnishee, and the Canada Revenue Agency (CRA).

The court granted the interpleader, finding that the fund was neither the property of the general contractor (Razar) nor a debt payable to Razar, based on the contract terms and the Construction Act's trust provisions.

Consequently, the priority claims of the garnishee and CRA were dismissed as premature, as their claims depended on the fund being the general contractor's property.

The moving party sought leave to bring a motion to discharge a construction lien and dismiss or stay the action based on the plaintiff's delayed disclosure of an assignment agreement, arguing it constituted an abuse of process.

The court held that leave is not required to bring a motion under s. 47 of the Construction Lien Act, as the merits of whether the ground is 'proper' should be determined on the motion itself.

However, the court found that seeking relief under Rule 21.01(3)(d) of the Rules of Civil Procedure and s. 106 of the Courts of Justice Act constitutes an 'interlocutory step' requiring leave under s. 67(2) of the CLA, even if the relief sought is final.

The court granted leave, concluding that the proposed motion would expedite the resolution of the issues in dispute in the lien action.