Nancy L. Dennison

The defendants moved for an order declaring the plaintiff's construction lien expired and vacating it, and dismissing the underlying action.

The court found the lien had expired due to the plaintiff's failure to advance the action within the statutory two-year period, making its dismissal mandatory under the Construction Lien Act.

Regarding the underlying contract claim, the court exercised its discretion, noting the plaintiff's inaction for over three years and failure to attend the motion.

However, the court granted the plaintiff one final opportunity to file an affidavit explaining why the action should not be dismissed, failing which the action would be dismissed.

The court also declined to dismiss the action based on outstanding costs from other proceedings, citing rules of civil procedure.

The plaintiff sought summary judgment for a defaulted second mortgage.

While the parties agreed on the mortgage's maturity and the principal amount owing, they disputed the exact date of default, the amount of interest owed, and other damage claims, including NSF cheque fees and alleged cash payments by the guarantor.

The court granted summary judgment on the core issues of mortgage default and the principal amount owing, entitling the plaintiff to an order for possession and to continue the sale process.

However, due to genuine issues requiring a trial regarding the specific amounts payable, a reference was directed under Rule 64.06 of the Rules of Civil Procedure to determine these disputed amounts.