Jack Medland

The plaintiff, New Generation Woodworking Corp. (NGW), brought a construction lien action against Adam Arviv for $73,767.26 for unpaid millwork on a luxury condominium unit.

Arviv defended and counterclaimed for alleged overpayment and deficiencies, but his counterclaim was struck due to his persistent non-compliance with court orders and lack of engagement.

The court found that Arviv had repudiated the contract by ceasing payments and denying access, and that NGW had substantially completed its work.

The court ruled in favour of NGW, awarding the full amount claimed and confirming the validity and priority of its construction lien over Arviv's property and a second mortgage, with limited priority over the first mortgage to the extent of the basic holdback deficiency.

The plaintiff brought a motion to strike the defendant's statement of defence and counterclaim for failing to comply with trial directions to deliver affidavits for evidence in chief.

The defendant, who was self-represented after his counsel was removed, brought a motion to adjourn the trial to retain new counsel.

The court found the defendant's non-compliance was deliberate, part of a delay strategy, and showed a profound lack of interest in the proceedings.

Applying the test for striking pleadings, the court struck the defendant's set-off and counterclaim but allowed the defence to stand so the defendant could cross-examine the plaintiff's witnesses.

The motion to adjourn was dismissed.