COURT FILE NO.: 520/02

DATE: 20030204

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

BASE CONTROLS LIMITED

Plaintiff (Appellant)

• and -

BENNETT + WRIGHT GROUP INC.,

DE HAVILLAND LIMITED, BOMBARDIER INC., LARRY L. MYERS AND AL KRAMER

Defendants (Respondents)

Ronald S. Sleightholm, for the Plaintiff

Angela Assuras, for Amherst Crane Rentals Ltd.

Paul A. Ivanoff, for Bombardier Inc. and

De Havilland Limited

HEARD: February 4, 2003

LANE J.: (Orally)

1This is a motion by the proposed appellant to extend the time for perfecting its appeal. The appeal is from an order of Master MacLeod which was heard in July, 2002 and decided by him on August 6, 2002, with a further order as to costs dated October 7, 2002.

2In October, counsel for the appellant sent a draft order for approval and return and there was thereafter a considerable period of exchange of correspondence including revisions to the draft order. It became apparent in November, approximately, that there was a dispute as to a substantive aspect of the order. Master MacLeod, having decided the issue before him on one ground, remarked that it perhaps was not necessary to deal with the second ground but that he would do so. He then did so and the dispute was over whether there should be a reference in the order to the second ground. Ultimately in January, 2003, Master MacLeod approved a form of the order which did contain the wording as to the second ground.

3In the meantime however, the motion had been brought before the Registrar to dismiss the appeal for delay which she did. She has no discretion in this matter even though a motion had been launched prior to her order to extend the time. Nevertheless, there was no order outstanding extending the time and so the order was made by the Registrar.

4Today's motion to extend the time requires the appellant to show an intention to appeal; that there is some merit in the appeal; to explain the delay; and to meet any allegations of prejudice. I will deal with each of these points.

5I am satisfied that the appellant had formed an intention to appeal and had actually launched the appeal within the time limited for so doing and that that intention continued throughout the period.

6As to the merits of the appeal, there is not much evidence before me, however it is an appeal from the refusal to allow an amendment to a statement of claim. Pursuant to Rule 26, prima facie such amendments are to be allowed, so there is certainly some burden to demonstrate that the Master was not in error in refusing to follow the direction of Rule 26. The reason why that direction was not followed is that the Master held a hearing at which he considered the legal basis for the amendment. He found that there was no legal basis for the amendment. His reasons refer to a case in Nova Scotia in the Court of Appeal. However, this morning Mr. Sleightholm has demonstrated there were factual differences between this situation and that before the Nova Scotia Court of Appeal which make it dubious that it is a firm judicial guide that there is no possible action of the sort contemplated by the amendment. I think there is sufficient merit in the appeal that this requirement has been satisfied.

7The delay was certainly considerable and I am a bit puzzled why it took a couple of months to get in front of Master MacLeod to settle his own order. Nevertheless, in the nature of litigation in this province at this time, a delay of one or two months from November when the scope of the difference of opinion became apparent, until January when it was resolved, is not a sufficient delay to mean that the Court should not exercise its discretion to extend the time.

8I was informed today that the appellant is entirely ready to proceed with the appeal except for one final approval of the order of Master MacLeod from one of the parties and that the appeal will be perfected very quickly.

9Finally, dealing with prejudice. The prejudice which is urged on me is somewhat unusual. It is that the longer the appeal is outstanding and therefore the monies held under the Construction Lien Act are kept from the parties, the more likely it is or the more opportunity is given to the CCRA to exercise its "super priority", as it has been described, to come in and take the monies owing by the bankrupt for the Revenue. This is a prejudice that hasn't yet happened. It's possible of course that CCRA may do this. It is possible they may never do it. It is a somewhat speculative kind of prejudice.

10In the circumstances of this case, there has not been such a prejudice as ought to deter me from exercising a discretion to set aside the order of the Registrar and to permit the appellant to proceed with its appeal. I so order.

11In view of the potential prejudice that has been put forward and the disastrous results for the lien claimants of the exercise of its rights by CCRA, I direct that the appeal should be expedited.

12It appears that there is still, despite the Master's settling of his order, a draft being circulated for approval. In my view, no further approval is appropriate. The Master has settled the order and it will be signed and any further approvals by any counsel for any party are hereby dispensed with.

13The appeal will be perfected by the close of business, Friday, 7^th February, 2003 or this order will not take effect and the appeal will stand dismissed.

14Costs of this motion reserved to the panel hearing the appeal.

LANE J.

Date of Reasons for Judgment: February 4, 2003

Date of Release: February 6, 2003

COURT FILE NO.: 520/02

DATE: 20030204

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

BASE CONTROLS LIMITED

Plaintiff (Appellant)

• and -

BENNETT + WRIGHT GROUP INC.,