B. Kuchar

The defendants in a construction lien action sought leave under section 67(2) of the Construction Lien Act to bring a motion for partial summary judgment.

The proposed motion would determine whether the Consumer Protection Act applies to the cost-plus construction contract and whether the plaintiff overbilled by exceeding statutory estimates.

The plaintiff opposed, arguing the motion was premature pending discovery.

The court granted leave, finding that determining the applicability of the Consumer Protection Act would likely expedite the resolution of the issues in dispute, even if some factual issues ultimately require a trial.

The plaintiff brought a motion for a status hearing to extend the deadline to set the action down for trial.

Shortly after the motion was filed, the Registrar mistakenly issued an Order Dismissing Action for Delay.

The court set aside the dismissal order because the motion was brought before the five-year deadline.

Applying the test for extending the trial deadline, the court found the plaintiff provided an acceptable explanation for the delay, citing the principal's mistaken belief that the action was settled alongside related actions, and the inadvertence of counsel.

The court also found the defendant would suffer no non-compensable prejudice, as documentary evidence was preserved and key witnesses were available.

The motion was granted and a timetable was set.

The plaintiff sub-subcontractor moved for summary judgment on its construction lien claim against the defendant subcontractor.

The defendant cross-moved to withdraw a prior admission regarding the quantum of the lien and to amend its defence to claim set-offs for deficiencies alleged by the general contractor, as well as relying on a 'pay-when-paid' clause.

The court granted the defendant leave to withdraw the admission and amend its defence.

The court granted partial summary judgment to the plaintiff, fixing the quantum of the lien at $414,049.99, but directed a trial on the issue of whether the 'pay-when-paid' clause was agreed to and enforceable.