Lugano View Limited (owner) brought a motion to lift a consent stay order and dismiss a lien action by Bank-Strox Renovation Inc. (general contractor) for delay, under section 47 of the old Construction Act.
The parties had agreed to arbitrate the dispute after the lien action commenced, leading to a stay of the action, but the arbitration did not proceed for several years.
The court dismissed Lugano's motion, finding that in an arbitration agreed upon after a civil action, both parties bear responsibility for advancing the arbitration, especially the defendant who has not pleaded.
Lugano failed to explain its own inaction, including not seeking court intervention to appoint an arbitrator under section 10 of the Arbitration Act.
The court found no evidence of actual prejudice to Lugano or that a fair hearing could not take place, despite the delay.
The court also criticized Bank-Strox's conduct but maintained its decision.