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Construction lien expired because it was not set down for trial within two years; another claimant's timely action on different lands did not save it.
The appellant appealed a motion decision finding its claim for lien had expired for failing to set the action down for trial within two years as required by s. 37 of the Construction Act.
The appellant argued its lien was saved because another lien claimant on the same project had set its action down in time, asserting they were part of the same 'improvement'.
The Divisional Court dismissed the appeal, holding that an 'improvement' is tied to the specific lands described in the claim for lien.
Because the appellant and the other claimant registered liens against different lands, the appellant could not enforce its lien in the other claimant's action.
The court awarded the successful plaintiffs $12,000 in partial indemnity costs, significantly reducing the claimed amount for proportionality.
This costs endorsement addresses the appropriate scale and quantum of costs following the plaintiffs’ successful resistance to the Gamma defendants’ motion to quash a summons to witness.
The court declines to award substantial indemnity costs, finding no litigation conduct warranting sanction, and instead fixes partial indemnity costs at $12,000, inclusive of disbursements and HST, to be paid by the Gamma defendants to the plaintiffs within 30 days.
The court dismissed a motion to quash a summons to witness, finding the proposed examination relevant to a pending jurisdiction motion.
The Gamma defendants sought to quash a summons to witness served on Harry Wang in relation to a pending jurisdiction motion.
The court found that the plaintiffs were entitled to examine Mr. Wang under Rule 39.03 of the Rules of Civil Procedure, as he was in a position to provide relevant evidence regarding whether the Gamma foreign defendants do business in Ontario.
The court dismissed the motion to quash, finding that the plaintiffs had satisfied the relevancy and evidentiary screening and that the proposed examination was not an abuse of process.
