The appellant appealed an order setting aside the noting in default of the respondent and permanently staying a third party claim brought under the Construction Act.
The appellant had commenced the third party claim without seeking the required leave and sought to convert it to an ordinary civil proceeding more than five years after the limitation period expired.
The Divisional Court dismissed the appeal, holding that a motion for leave to convert a construction lien third party claim must be brought before the expiry of the limitation period, and the motion judge made no error in refusing to grant leave nunc pro tunc.
