Edward J. Dreyer

In two consolidated construction lien actions, both parties brought motions regarding procedural steps.

The plaintiff sought to amend a prior order to prevent the defendants from advancing new claims for deficiencies in their Scott schedules without leave, arguing the defendants failed to properly particularize their counterclaim.

The court granted the plaintiff's motion, finding the defendants had sufficient time to define their counterclaim.

The court also ordered the plaintiff to provide particulars of its damages claim within 30 days, but dismissed the defendants' request for further productions.

The plaintiffs brought a motion seeking extensive documentary discovery from the defendants in a consolidated construction lien action.

The defendants resisted, arguing proportionality and the summary nature of construction lien proceedings, claiming only a small amount was in dispute.

The court found that the defendants' pleadings, which raised issues of delay, extras, incomplete work, and lost profits, put virtually all requested documents in issue.

The court determined that proceeding to discovery without the requested documentation would be unfair, lead to protracted discoveries, and ultimately incur more expenses.

The motion for documentary production was largely granted, with minor exceptions and clarifications.

The TNS Defendants brought two motions seeking leave to add three engineering firms (Chung & Vander Doelen Engineering Ltd., M.A. Bryan Engineering Inc., and Tacoma Engineers Inc.) as defendants to their counterclaim, alleging negligence in the design and coordination of a septic and plumbing system.

The proposed defendants opposed, arguing the claims were statute-barred due to the expiry of the limitation period.

The court granted leave to add Chung & Vander Doelen Engineering Ltd. and M.A. Bryan Engineering Inc., allowing them to plead a limitations defence at trial, as there was a factual dispute regarding discoverability.

However, the motion to add Tacoma Engineers Inc. was dismissed, as the court found the material facts against Tacoma were known or ought to have been known by the TNS Defendants by spring 2015, making the claim against Tacoma statute-barred.

The defendants brought a motion to discharge the plaintiff's construction lien claim and certificate of action, arguing it was not registered in a timely manner and had expired.

The plaintiff, an architectural firm, contended its last supply of services was an attendance at the property to assess a potential roof-raising project, which would make the lien timely.

The court found that this attendance did not constitute a "supply of services to an improvement" under the Construction Lien Act, as it was unsolicited, did not enhance the property's value, and was outside the scope of the original contracts.

Consequently, the lien was found to have expired in early 2009, making its registration in March 2012 untimely.

The defendants' motion to discharge the lien was granted, and the security posted by a third party was ordered to be returned.

The plaintiff's underlying contractual claim was not dismissed.

Following the dismissal of a motion to add proposed defendants in a negligence action relating to a heating fuel oil spill, the proposed defendants sought costs of the motion.

They requested partial indemnity costs exceeding $17,000, while the plaintiff argued that $5,000 was reasonable.

The court reviewed comparable authorities and the principles governing costs under Rule 57, emphasizing that costs must be fair and reasonable rather than strictly reflective of actual expenditures.

Finding the hours claimed excessive but acknowledging the applicants’ success, the court fixed costs at $10,000 inclusive of disbursements and taxes.