Corrections made April 5, 2012: File Number added, Style of Cause and Citation corrected. BRAMPTON COURT FILE NO.: CV-10-164-00
SUDBURY COURT FILE NO.: 1675-11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Hugomark Services Inc. v. Her Majesty the Queen in Right of Ontario and
Carillion Canada Inc.
BEFORE: Justice Robert G. S. Del Frate
COUNSEL: Mr. Leighton Roslyn as agent for Jonathan Speigel, for the Plaintiff Mr. Greg Sheahan, for the Defendant Carillion Canada Inc.
HEARD: January 11, 2012
ENDORSEMENT
1In this Construction Lien action, the plaintiff has brought a motion to amend its statement of claim. The defendant has brought a cross motion striking out the defence to the counterclaim. Arguments on those motions have been completed today. A decision is forthcoming; however, it will not be rendered prior to January 14, 2012.
2That date is important since the plaintiff has until January 14, 2012 to pass the trial record and set this action down. Otherwise, section 37 of the Construction Lien Act comes into play and the plaintiff would lose its status as a Construction Lien case.
3The plaintiff has proposed setting down the action on the pleadings as presently filed. Depending on the decision rendered the parties can file amended pleadings which may be required as a result of the decision.
4The defendant objects to this procedure since this permits the plaintiff an extension of time and the plaintiff is doing indirectly, what section 37 of the Construction Lien Act says it cannot do.
5The defendant further submits that the plaintiff was dilettante in advancing this action. The procedure proposed, would delay the progress of this action. The defendant relies on Pineau v. Kretschmar Inc. [ 204 OJ No. 396 Master Sandler].
6In my view, the facts of the present case are quite different than Pineau v. Kretschmar Inc . In Pineau , the action was four years old, the Lien had expired and no attempts had been made to set the action down.
7This action can still be set down within the time prescribed by section 37. In the spring and summer of 2011, the defendant dealt directly with a representative of the plaintiff. In early August of 2012, Mr. Speigel, solicitor for the plaintiff, forwarded a proposed fresh as amended statement of claim to Mr. Sheahan. No reply on the proposed amendments was received until early November of 2011. The notice of motion was then served returnable in Brampton on December 1, 2011. The remainder of the motion started in Sudbury on December 20, 2011 and was completed on January 11, 2012.
8In my view, the defendant is attempting to obtain a tactical advantage which is not warranted under the circumstances. Accordingly, the proposal suggested by the plaintiff is reasonable.
9Order to issue that the trial record be filed with the pleadings as they presently exist and on a without prejudice basis to both parties to file whatever materials may be necessary as a result of my rulings on the motion and cross motion.
The Hon. Mr. Justice R.G.S. Del Frate
Date: April 5, 2012