2 total
Appeal dismissed; court cannot grant leave nunc pro tunc to convert a Construction Act third party claim after limitation period expires.
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.
Leave to appeal granted on whether a dispute resolution clause extinguished the right to sue.
The moving party sought leave to appeal an order denying summary judgment.
The Divisional Court granted leave to appeal on the question of whether the dispute resolution clause (GC8) in the contract between the parties extinguished the responding party's right to bring a court action.
Costs of the motion were fixed at $5,000 and reserved to the panel hearing the appeal.
