Anthony Potestio

The court provided additional reasons for its decision on two motions regarding a construction dispute.

On the discharge motion, the court discharged the plaintiff's construction lien, finding that the work performed was an extraction operation rather than an improvement to the land, meaning no right to a lien existed.

On the preservation motion, the court granted the plaintiff's request to preserve the extracted rock and wood, finding that the material was central to the dispute and the balance of convenience favoured preservation to ensure fair adjudication.

The parties, two closely held private companies owned by brothers, disputed an unwritten agreement allowing the plaintiff to extract aggregate and timber from the defendants' land.

The defendants brought a motion to discharge a construction lien registered by the plaintiff, while the plaintiff brought a motion to preserve harvested wood and blasted rock on the property.

The court granted the defendants' motion to discharge the lien, finding no lienable services were provided and the lien was not preserved in time.

The court also granted the plaintiff's motion for an interim preservation order, finding the test under Rule 45.01 was met.