Court of Appeal for Ontario

Date: 2017-05-23 Docket: C61864

Judges: LaForme, van Rensburg and Huscroft JJ.A.

Parties

Between

Michael Steven Bentivoglio O/A Mike's Heating, Air Conditioning & General Contracting Plaintiff

and

Le Groupe Brigil Construction, a Division of 6095186 Canada Inc., and 3223701 Canada Inc., and Caisse Desjardins de Hull Defendants (Respondents)

and

Genivar Inc. Third Party (Respondent/Appellant on Cross-Appeal)

and

Mastron Mechanical Contracting Limited, Mastron Mechanical Contracting (1988) Limited, SJDM Holdings Ltd., and Michael Steven Bentivoglio O/A Mike's Heating, Air Conditioning & General Contracting Fourth Parties (Appellants)

Counsel

Craig O'Brien, for the appellants, Mastron Mechanical Contracting Limited, Mastron Mechanical Contracting (1988) Limited and SJDM Holdings Ltd.

Howard Borlack and James M. Brown, for the respondent, Genivar Inc.

Gabriel Poliguin, for the respondents, Le Groupe Brigil Construction, a Division of 6095186 Canada Inc., and 3223701 Canada Inc.

Heard: May 16, 2017

On appeal from: the order of Justice W.D. Newton of the Superior Court of Justice, dated February 18, 2016.

Reasons for Decision

[1] Genivar moved for an order dismissing the third party claim, or in the alternative granting leave to continue its fourth party claim against Mastron. The basis for the motion to dismiss was that the defendant Brigil had not obtained leave to commence the third party claim under the Construction Lien Act. Mastron argued the fourth party claim should be dismissed because it too had been commenced without leave.

[2] The motion judge refused to dismiss the third and fourth party claims. In doing so, he held that an order by Hackland J. dated December 10, 2013 was intended to continue the proceedings under the "ordinary track," and, as such, the proceedings continued to be governed by the Rules of Civil Procedure. He granted leave nunc pro tunc to Genivar to issue its fourth party claim against Mastron. Mastron appeals.

[3] Mastron argues that the motion judge erred in granting leave nunc pro tunc to commence the fourth party claim. It contends that the matter was proceeding under the Construction Lien Act, and that it was an error for the motion judge to grant leave nunc pro tunc because the two year limitation period for commencement of the fourth party claim by the third party had expired before leave was sought.

[4] The appeal is dismissed. In our view, the motion judge correctly found that the intention of the order of Hackland J. — made on consent of Genivar — was to continue the action on the "ordinary track".

[5] After disposing of the lien claim entirely, the order of Hackland J. did not expressly state whether the remainder of the action would continue under the "ordinary track", but merely that the third party claim would "survive". The third party claim sought damages for breach of contract and negligence in addition to contribution and indemnity.

[6] Since only claims for contribution and indemnity are permitted in construction lien third party proceedings under s. 56 of the Construction Lien Act, a third party claim that asserts other claims can only proceed on the ordinary track. As a practical matter, the third party claim here could only "survive" in proceedings on the "ordinary track". Accordingly, the motion judge adopted the only reasonable interpretation that could be given to the order of Hackland J.

[7] In the result, the decision to allow Genivar to continue the fourth party claim was correct. We note however that, since the third party proceedings continued on the ordinary track, there was no need for the nunc pro tunc order for leave.

[8] In light of the conclusion that the action had moved to the ordinary track at the time the fourth party proceedings were commenced, it is unnecessary to address Mastron's other arguments.

[9] Pursuant to the agreement of the parties, Genivar is awarded costs of the appeal in the amount of $20,000; Brigil is awarded costs of $13,000. Each amount is inclusive of disbursements and HST.

"H.S. LaForme J.A."

"K. van Rensburg J.A."

"Grant Huscroft J.A."