The court dismissed a subcontractor's lien claim and alleged oral guarantee against homeowners due to expired timelines and lack of credible evidence.
This judgment arises from a summary trial converted from a motion brought by the Owners (defendants) seeking to declare the plaintiff's (Quality's) claim for lien expired and to dismiss the action against them.
The court addressed three issues: the applicable Construction Act, the existence and nature of a contract between the Owners and Quality, and Quality's last date of supply.
The court found that the old Construction Act applied.
It concluded that no oral guarantee agreement existed between Quality and the Owners, and even if it did, it was unenforceable under the Statute of Frauds.
Furthermore, the court found that Quality failed to prove its claim for lien was preserved in time, as its last lienable supply of services and materials occurred before the 45-day preservation period.
The judge made strong adverse credibility findings against Quality's witnesses and found the Owners' witness credible.
Costs fixed at $15,000 on partial indemnity scale; computerized legal research disbursement rejected as profit centre.
Following the dismissal of the appellant's appeal regarding an expired construction lien, the respondent sought costs of $30,470.28 on a substantial indemnity scale.
The court declined to award substantial indemnity costs, noting the respondent could have acted to mitigate prejudice from the appellant's delay.
The court also reduced the quantum, finding the time spent excessive for a narrow issue and rejecting a disbursement claim for computerized legal research that appeared to be a profit centre for counsel.
Costs were fixed at $15,000 on a partial indemnity scale.
Appeal dismissed; construction lien expired as no specific trial date was set within two years.
The appellant appealed an order of a master dismissing its construction lien claim but allowing the underlying action to continue.
The lien was perfected in 2011 and referred to the master for trial in 2013, but no further steps were taken until 2017.
The master found the lien had expired under s. 37(1) of the Construction Lien Act because no order fixing a specific trial date was made within two years of perfection.
The Divisional Court upheld the master's decision, confirming that a general order referring the matter to a master for trial under s. 58(1) does not satisfy the requirement of s. 37(1) to set a trial date under s. 60(1).
The appeal was dismissed.
Motion to strike pleadings adjourned; defendants given final deadline to pay costs and answer undertakings.
The plaintiff brought a motion to strike the statement of defence and dismiss the counterclaim of the subject defendants due to their failure to pay prior costs awards and answer undertakings from discoveries.
The court declined to strike the pleadings immediately, opting instead to give the defendants one final opportunity to comply.
The court ordered a stay of proceedings until the defendants pay the outstanding costs and answer the undertakings by specified deadlines, failing which their pleadings will be struck without further notice.
Default judgment set aside despite lack of acceptable explanation due to disproportionate prejudice to defendant.
The defendant moved to set aside a noting in default and default judgment in a construction lien action.
The court found that the defendant failed to provide an acceptable explanation for the default, as counsel deliberately chose not to file a defence despite clear warnings from the plaintiff.
However, applying the test for setting aside default judgments, the court weighed the prejudice to both parties.
Finding that the plaintiff's prejudice was compensable by costs, while the defendant would suffer considerable prejudice by being unable to present a viable defence and having its bank accounts frozen, the court granted the motion and set aside the default judgment.
