Chris Hacio

The plaintiff brought a motion under Rule 36 of the Rules of Civil Procedure seeking leave to examine a former defendant and corporate executive before trial.

The witness had relocated outside Canada and the plaintiff argued the examination was necessary to preserve potentially crucial evidence regarding the hiring of a defendant.

The defendants opposed the motion, arguing that witnesses should generally testify at trial, particularly before a jury, and that alternative mechanisms such as letters rogatory were available.

The court held that Rule 36 was designed for circumstances where a witness may be outside the jurisdiction and could possess important evidence.

Leave was granted to conduct a pre‑trial examination of the witness, with the examination to be videotaped and undertakings completed beforehand.

A mortgage lender brought a motion for summary judgment dismissing a contractor’s claim seeking a declaration that holdback funds from mortgage advances were held in trust for the contractor under the Construction Lien Act.

The court held that although the mortgagee was not obligated under the Act to maintain a statutory holdback because it was not a “payer,” the retained funds constituted trust funds for the contractor’s benefit.

The funds were deemed “received” by the property owner for the purposes of s. 7(1) even though they were held in trust by the lender’s solicitor.

The court also rejected limitation and res judicata defences, finding the claim was discovered only when the lender refused payment and that the earlier lien action involved different parties and causes of action.

The motion for summary judgment was dismissed.