John Margie

Two third party defendants sought security for costs against a defendant/third party claimant under Rule 56.01 of the Rules of Civil Procedure.

The court found the defendant corporation was impecunious but concluded it would be unjust to require security for costs because the third party claims were intertwined with the main action and could effectively prevent the defendant from defending the action.

In relation to the second third party, the court also refused security due to the advanced stage of the litigation and delay in bringing the motion.

Both motions for security for costs were dismissed and costs were awarded to the defendant.

The defendant developer brought a motion under s. 46 of the Construction Lien Act to declare that the plaintiff's construction lien had expired under s. 37 because the plaintiff's specific action was not set down for trial within two years.

The court dismissed the motion, finding that another lien claimant's action, which arose from the same improvement, had been set down for trial within the two-year period.

Under the Act, an action commenced by one lien claimant is an action in which all other liens may be enforced, thus protecting the plaintiff's lien from expiry.