Nicole Adina Abergil

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.

The appellants appealed from a motion judge's order dismissing their motion seeking a declaration that a default judgment against the respondent Chris Mace survived his bankruptcy under sections 178(1)(d) and 178(1)(h) of the Bankruptcy and Insolvency Act.

The appellants obtained a default judgment by having the Registrar sign it under Rule 19.04 of the Rules of Civil Procedure, which is limited to claims for "a debt or liquidated demand in money." The Court of Appeal upheld the motion judge's decision, finding that the generic pleadings in the statement of claim were insufficient to establish the type of misconduct required for exemption under section 178(1)(d), and that the motion judge was not required to go beyond the pleadings to make fresh findings of fact.