M. Shifman

Theriault Holdings Inc. moved to dismiss a lien action brought by NDF Financial Inc. and for payment out of lien security posted into court.

NDF did not appear or oppose the motion.

The court granted the motion, discharging NDF's lien, dismissing the action, and ordering payment of the lien security to Theriault.

The court found that NDF had breached multiple interlocutory orders and completely disengaged from the litigation.

The court rejected Theriault's reliance on subrule 24.01(2) of the Rules of Civil Procedure as inapplicable to lien actions, but granted dismissal under section 47 of the Construction Act on the basis of NDF's breach of court orders.

The court held that the lien security should be returned to the party who posted it, as contemplated by the Construction Act, and that Ms. Tomas's separate dispute with Theriault regarding the power of sale proceedings was not properly before the court in this lien action.

The offender, Nam Nguyen, pleaded guilty to aggravated assault.

The victim sustained severe injuries including a broken jaw requiring surgery and metal plates.

The Crown sought an 18-24 month custodial sentence, while the defence sought a conditional sentence.

The court considered the principles of sentencing, including denunciation, deterrence, rehabilitation, and restraint, particularly for a youthful first offender.

Despite the seriousness of the offence and the victim's injuries, the court found that a conditional sentence was appropriate given the offender's lack of prior record, employment, and low risk of re-offending, and that it could adequately meet sentencing objectives.