R. Wise

The applicant, HMI, brought a motion to refer a consolidated construction lien action, involving seventeen liens totaling over $42 million, to a single private arbitration and to stay the court proceedings.

The consolidated action was divided into three streams (A, B, C) based on contractual relationships.

The motion was opposed by various lien claimants and other parties.

The court dismissed the motion, finding that a consolidated arbitration could not be ordered due to significant conflicts in arbitration clauses across the different contracts, the inclusion of third parties who had not consented to arbitration, the failure to follow contractual dispute resolution protocols (including mediation), and potential for increased costs and delays for some parties.

The court emphasized the consensual nature of arbitration and declined to impose non-consensual amendments to contracts or stay the court action.

The plaintiffs brought a motion to set aside an order dismissing their action for delay.

The court found that while the plaintiffs had repeatedly delayed prosecuting their claims, they provided a reasonable explanation involving issues with their legal representation, health difficulties, and family deaths.

Finding no evidence of actual prejudice to the defendants and noting that discoveries were complete, the court granted the motion on the condition that the plaintiffs first pay a previously ordered costs award of $5,000.