COURT FILE NO.: 09-CV-378222
DATE: 20120405
ONTARIO
SUPERIOR COURT OF JUSTICE
IN THE MATTER OF The Construction Lien Act, R.S.O. 1990, C. 30
BETWEEN:
ANY-WALL CONCRETE FORMING INC.
George F. Vella, for the Plaintiff
Plaintiff
Mark Ross for the Defendants Bloomfield
- and -
PATRICK BLOOMFIELD, NADINE BLOOMFIELD, MAUREEN BLOOMFIELD, and KEN TEMPLE CONTRACTING LTD.
Corinne A. Muccilli, for the Defendant Ken temple Contracting Ltd.
Defendants
HEARD: March 21, 2012
Master Polika
[1] The issue before me on this mini summary trial is whether the claim for lien of the plaintiff was preserved and perfected within the time specified in the Construction Lien Act.
[2] Pursuant to the judgment of reference granted by Justice Conway on July 12, 2010 I conducted the first pre-trial for directions in the reference on November 15, 2010. As the plaintiff failed to provide the necessary documentation to verify that all necessary parties were before me the pre-trial for directions was adjourned to February 7, 2011. At that time it was determined that the defendant Ken Temple Contracting Ltd. (“Ken Temple Contracting”) also registered a claim for lien purportedly sheltering under the plaintiff’s claim for lien.
[3] The relationship of the parties to his reference is the Bloomfield defendants are the owners, Ken Temple Contracting is the general contractor and the plaintiff is the concrete forming subcontractor. The improvement in issue is the demolition of an existing dwelling and construction of a new dwelling for the owners.
[4] At the 6th pre-trial for directions on November 28, 2011 it was disclosed that the principal of Ken Temple Contracting was being petitioned into bankruptcy with a hearing fixed for December 21, 2011 with the potential result that the shares of Ken Temple Contracting might pass to the trustee in bankruptcy which in turn might delay the progress of this reference. The parties agreed that nonetheless there was a discrete issue which could be tried, the timeliness of the plaintiff’s claim for lien which might serve to bring about a settlement of the action. The claim for lien in the amount of $32,225.00 had security posted for it by the defendants Bloomfield. The holdback amount was stated to be approximately $22,000.00.
[5] The parties agreed that the timeliness of the plaintiff’s lien should be addressed by way of a mini summary trial and I fixed the trial for March 21, 2012 giving directions for the exchange of evidence in chief by way of affidavit and providing that if the attendance for cross-examination of a deponent was required at trial by March 14, 2012 a notice in writing had to be given to the party tendering the deponent’s affidavit.
The Trial
[6] The mini summary trial commenced on March 21, 2012 with all parties represented.
[7] The plaintiff served and tendered the affidavits of Gabriel Nunes sworn January 5, 2012 and Luis Nunes also sworn January 5, 2012 as the plaintiff’s evidence in chief.
[8] The defendants Bloomfield served and tendered the affidavit of Patrick Bloomfield sworn January 30, 2012 and the affidavit of Neil Noodelman sworn January, 2012 as their evidence in chief by way of response to that of the plaintiff.
[9] The defendant Ken Temple Contracting served and tendered the affidavit of Ken Temple sworn February 6, 2012 as its evidence in chief also by way of response to that of the plaintiff.
[10] The plaintiff served and tendered the affidavit of Gabriel Nunes sworn March 8, 2012 as its evidence in chief in reply to that of the defendants.
[11] Each of the affidavits was made an exhibit at trial. On consent I made an order excluding witnesses. Counsel for the Bloomfields cross-examined the plaintiff’s three deponents. The plaintiff cross-examined both of the Bloomfield deponents. As part of the defendants Bloomfield’s case counsel read a small portion of the section 40 examination of the plaintiff’s representative Aristides Indio held on October 11, 2011 in addition to the portions relied upon in the affidavit of Patrick Bloomfield.
[12] Once the evidence was complete counsel for the plaintiff and for the defendants Bloomfield made submissions on behalf of their respective parties filling the authorities they were relying upon. Counsel for the defendant Ken temple Contracting did not cross-examine any of the deponents nor did she make any submissions.
[13] I reserved my decision.
Use of the Section 40 Cross-Examination as Read-In Evidence At Trial
[14] After the cross-examination of the defendants Bloomfield’s deponents was complete counsel for the Bloomfields stood up to read-in as part of the defence a portion of the section 40 cross-examination of Aristides Indio the plaintiff’s representative. Counsel for the plaintiff objected to the read-in. After hearing from counsel for the plaintiff and counsel for the Bloomfields I allowed the read-in and gave short verbal reasons for my decision.
[15] Section 40 provides:
Cross-examination on claim for lien
(1) Any of the following persons is liable to be cross-examined without an order on a claim for lien at any time, regardless of whether an action has been commenced:
The lien claimant.
An agent or assignee of the lien claimant.
A trustee of the workers’ trust fund, where subsection 81 (2) applies.
Who may participate
(2) There shall be only one examination under subsection (1), but the contractor, the payer of the lien claimant, and every person named in the claim for lien who has an interest in the premises are entitled to participate therein.
Notice
(3) Any person intending to examine a person under subsection (1) shall give at least seven days notice of the examination specifying the time and place for the examination to,
(a) the person to be examined or the person’s solicitor;
(b) every other person named in the claim for lien as having an interest in the premises;
(c) the contractor; and
(d) the payer of the lien claimant.
Application of rules of court
(4) The rules of court pertaining to examinations apply, with necessary modifications, to cross-examinations under this section.
[16] The Construction Lien Act provides that a person who supplies services or materials to an improvement for an owner, contractor or subcontractor has a lien upon the interest of the owner in the improved premises for the price of those services and materials and goes on to provide how the lien can be preserved and perfected by commencing an action. The Act also provides that the action shall as far as possible be of a summary character and prohibits interlocutory steps in the action without the consent of the court other than those provided for by the Act. Exchange of affidavits of documents and discovery as a consequence are prohibited unless the consent of the court is obtained for those interlocutory steps.
[17] The Act however does provide for certain motions to be brought including motions to have a lien vacated on posting security of an amount the court determines to be reasonable, declaring a preserved or perfected lien expired and ordering the discharge of a lien.
[18] Section 40 permits a one time cross-examination on the claim for lien either before or after an action has been commenced to enforce the claim for lien. The answers given by the representative of the lien claimant/plaintiff are binding on the lien claimant/claimant and can be relied upon in support of any of the permitted motions.
[19] A mini summary trial during a reference conducted pursuant to a judgment of reference is not technically a motion however the issue, timeliness of the lien is no different than that which can be raised on a motion declaring a preserved or perfected lien expired or a motion ordering the discharge of a lien. It would be absurd to state that the lien claimant is bound by the lien claimant’s admissions in a section 40 cross examination on motions brought under the provisions of the Act but not on a mini summary trial deciding the same issue. It would also fly in the face of the policy of the Act that the action be as far as possible of a summary character.
[20] Subsection 40(4) addresses the issue by providing that the rules of court pertaining to examinations apply with necessary modifications to a section 40 cross-examination.
[21] The rules of court relating to examinations provide in Rule 31 and Rule 36 for the taking of evidence before trial for use at trial. Rule 31 deals with examination for discovery and Rule 36 for the examination of witnesses to have their evidence available for trial. I find that Rule 31 dealing with examinations for discovery with necessary modifications applies to a section 40 cross-examination so as to permit the answers to be read in at trial in the same way as answers given on an examination for discovery.
[22] Patrick Bloomfield in his affidavit relied upon and tendered as exhibits to his affidavit excerpts from both the section 40 examination of the plaintiff and of Ken Temple Contracting. Ken Temple Contracting is also asserting a claim for lien which as well is the subject of this reference. Plaintiff’s counsel cross-examined Patrick Bloomfield upon his affidavit and made no objection of the use of the section 40 excerpts set out therein. The plaintiff in its reply affidavit also did not seek to correct any of the answers given on its behalf at the section 40 examination..
[23] For these reasons the defendants Bloomfield were permitted to read in questions and answers from the section 40 cross-examination of the lien claimant/plaintiff.
The Witnesses
[24] Luis Nunes is an employee of the plaintiff and the son of Gabriel Nunes. He attended at the site on February 19, 2009 with his father and worked for about two hours cutting ties and chipping concrete in a wall angle with his father. Ties are used to keep the forms for the concrete foundation walls together during the concrete pour until the concrete sets. Prior to removing the forms ties are broken or cut off up to the face of the form. When the forms are removed portions of the ties still protrude on either side of the concrete and are either broken off or cut off. On cross-examination Luis Nunes admitted that only about 10 per cent of the ties remained to be removed. The photographic evidence does not back up his assertion in that it depicts the concrete foundation walls as tie free save for one row just below the top of a small portion of the concrete foundation wall. He also stated he swung past the job site in the late fall but agreed he did no work there.
[25] Gabriel Nunes is both the president and shareholder of the plaintiff. He attended the job site with his son on February 19, 2009 where he states they cut ties and did chipping particularly in one corner of the concrete wall. He admitted he was not at the site in November, 2008 and did not know how much of the work was done at that time. In contrast to the testimony of his son he stated 50 per cent of the ties had only been removed prior to their arrival which testimony I do not accept. He also testified that it would only take five hours at most to cut off all the ties used in the concrete walls which were poured by the plaintiff and to do the chipping of concrete. If his estimate is correct then the remaining work relating to tie removal and chipping should have taken much less than an hour. In answering the questions posed of him he tended not to give direct answers and appeared to have no knowledge of the work done at the site other than the work he and his son he alleges they did. In terms of the discrepancy between his testimony and that of his son as to how many ties remained to be removed on February 19, 2009 I prefer his son’s testimony although I have found it to be exaggerated. Gabriel Nunes also asserted that work was carried out at the premises on a number of days and appended to his first affidavit a number of time cards for those days which he asserted related to the plaintiff’s concrete work at the premises. Under cross-examination he admitted that the time cards for November 4, 14, 18, 19, and 21, 2008 made no reference to the premises and that he did not know if they related to work at the premises. Further in his first affidavit he stated he attended the premises several times. Again on cross examination he admitted that in terms of the plaintiff’s concrete work February 19, 2009 was his first appearance at the premises. His evidence when taken all together with these discrepancies, when juxtaposed with what is in issue, that is the timeliness of his companies claim for lien, I find to be unreliable.
[26] The defendant Patrick Bloomfield was cross-examined. He is a trustee in bankruptcy and an owner of the premises. He was candid in his answers readily admitting when he could not answer a question. In terms of the photographs he admitted that he did not know the exact dates they were taken. He confirmed that they were taken by either his wife or him. He said the dates were available on the computer where the images were stored but confirmed they were all taken before February 19, 2009 and depicted the improvement in the time period from the time the concrete foundations were put in place to before February 19, 2009. I accept his testimony.
[27] Neil Noodelman was also cross-examined on his affidavit tendered by the Bloomfield defendants. He is a cousin of Mrs. Bloomfield and an engineer employed by his own company in Montreal as a construction consultant and project manager in relation to residential and commercial construction. When he was in Toronto during Christmas 2008 he was asked by the Bloofields to examine the concrete work at the improvement. He attended on December 29, 2008 and made some notes reflecting his observations. In particular he was of the view that it was a messy job. In cross-examination he highlighted the residual lines from the formwork on the concrete where as he stated concrete juice had oozed out and formed. His recollection was there were no ties left to be cut and when directed to the bottom photograph at Exhibit 8 to Mr. Bloomfield’s affidavit did not admit that there was a row of ties just above the green line of waterproofing preferring to call them some sort of wires. I do not accept his testimony in that regard. I find that the only conceivable conclusion for the “wires” protruding from the concrete in a row at that level was that they were ties which had not yet been cut off. Regardless during his site visit on December 29, 2008 he stated he did not see any uncut ties. I find that his observation in that respect was corroborated by the photographs save for the row of ties depicted in the bottom photograph at Exhibit 8.
[28] Aristides Indio was the plaintiff’s employee who had knowledge of the work of the plaintiff at the premises, who had worked there, who knew how much work was done and in particular how many ties were left and how much concrete chipping was left after the plaintiff’s last day of work at the premises in November 2008. He was not tendered as a deponent by the plaintiff and the inference is and I find that he would not have supported the testimony of Gabriel Nunes and Luis Nunes in that respect.
Findings of Fact
[29] Based on the affidavit evidence before me, the testimony of the witnesses on cross-examination and the read-in testimony I make the following findings of fact:
(a) The respective roles of the parties in this action brought under the Act are: the plaintiff is a subcontractor of the defendant Ken Temple Contracting who contracted directly with the owners, the defendants Bloomfield.
(b) On October 17, 2008 a representative of the plaintiff attended and inspected the premises and arrived at a quote for the concrete foundation for the improvement the concrete footings having been poured by someone else.
(c) The plaintiff generated a quote for the concrete foundation work of $37,500 before November 1, 2008 and $39,500 afterwards plus $3,000 for waterproofing and drainage membrane all exclusive of GST.
(d) The plaintiff was retained by the defendant Ken Temple Contracting, the contractor, to construct the concrete foundation and to apply the waterproofing and drainage membrane as Ken Temple Contracting’s subcontractor.
(e) The plaintiff commenced its work at the premises using its own forces on November 6, 2008 and worked on November 7, 10, 11, 12, part of 17, 2008.
(f) According to the plaintiff’s time cards concrete was poured on November 11, 2008. This left breaking of the ties, removal of the forms, breaking of the remaining portion of the ties and chipping and patching of the concrete. The ties are broken once to permit removal of the forms and then a second time so that the concrete surface was left free of ties.
(g) The waterproofing and drainage membrane was installed on the outside wall. In order to do this work first all ties had to be removed and the concrete chipped and patched on the outside of the foundation wherever the waterproofing and drainage membrane was installed.
(h) The plaintiff’s workmen on their last day on the job on November 17, 2008 completed breaking off all of the ties save for some in a top row on the outside of the foundation because they did not have the appropriate tools on site, that is a cut off saw and/ or a ladder.
(i) The only remaining concrete work on site after the plaintiff’s workmen left in November, 2008 was to break the row of ties on the outside of the concrete foundation just below the top of the wall, a few ties in a concrete corner and a miniscule amount of concrete chipping. I find this work at best to be a minor deficiency which the plaintiff was obliged to correct.
(j) At most the minor deficiency amounted to less than 4 hours labour of an approximate value of $100.00 remaining on a $29,000.00 inclusive of GST contract as asserted by Ken Temple Contracting or a $40,500.00 plus GST contract including waterproofing and drainage as asserted by the plaintiff.
(k) On November 21, 2008 the waterproof membrane and drainage membrane was installed by the plaintiff’s subcontractor, Advanced Coatings Inc.
(l) Advance Coatings Inc. billed the plaintiff by invoice 01-1005848 dated November 23, 2008 for its work.
(m) By November 21, 2008 the plaintiff completed its contract work including the waterproofing and drainage membrane save for the minor deficiency relating to the outside row of ties, a few ties in a concrete corner and a miniscule amount of concrete chipping.
(n) By invoice number 08-126 dated November 26, 2008 the plaintiff billed for the whole of the work as set out in its quote, that is $37,500.00 for concrete work plus $3,000.00 for waterproofing and drainage membrane plus GST for a total of $42,525.00. The billing was based on the concrete before November 1 quoted rate.
(o) In January, 2009 the plaintiff and Ken Temple Contracting got into a dispute over price and payment in relation to their agreement. Ken Temple Contracting took the position that the agreed to price was $29,000.00 inclusive of GST which it alleged was the budget for the plaintiff’s work.
(p) Ken Temple Contracting issued cheque number 4003 dated January 19, 2009 payable to the plaintiff which was negotiated the same day and returned marked “Pursuant to clearing rules, this item may not be cleared again unless certified”.
(q) On February 19, 2009 Gabriel and Luis Nunes attended for two hours to cut ties and chip concrete, namely to do the work which I have found to be a deficiency composed of cutting off the row of ties on the outside of the concrete foundation just below the top of the wall, cutting a few ties in a concrete corner and a miniscule amount of concrete chipping.
(r) Ken Temple Contracting asserts that on or about February 24, 2009 as a gesture of good faith a $10,000 payment was made by it to the plaintiff by way bank draft number 48316336.
(s) On March 20, 2009 cheque number 08-126 was certified.
(t) The plaintiff’s claim for lien was registered some forty-six days after February 19, 2009 on Monday April 6, 2009, as Instrument Number AT2042916 claiming the sum of $32,525.00, that is acknowledging a payment of $10,000.00. The registration is deemed to have taken place within forty-five days after February 19, 2009 as the forty-fifth day, April 5, 2009 was a Sunday.
(u) There was no certificate or declaration of the substantial performance of either Ken Temple Contracting’s contract with the owners or the subcontract between the plaintiff and Ken Temple Contracting in issue before me.
Burden of Proof
[30] The plaintiff has the onus and burden of proof to demonstrate on a balance of probabilities that its claim for lien was registered that is preserved before it expired as required by the Act.
[31] Given the date of registration was Monday April 6, 2009, to satisfy its burden the plaintiff had to demonstrate on a balance of probabilities that the last day on which it supplied services or materials to the improvement was February 19, 2009.
The Authorities Relied Upon By The Parties and the Applicable Statutory Provisions.
[32] The relevant portions of section 31 and 34 of the Act are:
31(1) Expiry of Liens _ Unless preserved under section 34, the liens arising from the supply of services or materials to an improvement expire as provided in this section.
31(3) Liens of other persons – Subject to subsection (4) [not applicable on the facts before me], the lien of any other person,
For services or materials supplied to an improvement on or before the date certified or declared to be the date of substantial performance of the contract, expires at the conclusion of the forty-five day period next following the occurrence of the earliest of,
(ii) the date on which the person last supplies services or materials to the improvement . . .
34(1) How Lien Preserved – A lien may be preserved during the supplying of services or materials or at any time before it expires,
(a) Where the lien attaches to the premises, by the registration in the proper land registry office of a claim for lien on the title of the premises in accordance with this Part; . . .
[33] In subsection 1(1) of the Act the following definitions are set out:
“services or materials” includes both services and materials;
“supply of services” means any work done or service performed upon or in respect of an improvement and includes’
(a) the rental of equipment with an operator, and
(b) where the making of the planned improvement is not commenced, the supply of a design, plan, drawing or specification that in itself enhances the value of the owner’s interest in the land,
[34] In dealing with the issue of timeliness and specifically the preservation of a claim for lien there have been numerous decisions by the court. Counsel for the plaintiff and the defendants Bloomfield relied on similar decisions the only difference between that each had a different spin on the decisions.
[35] The plaintiff tendered two authorities, my decision in Applewood Glass v Baun 2009 CarswellOnt 7122, 85 C.L.R. (3d) 307 and that of Master Sandler in L.B.E.W. Trust Fund v. 779857 2004 CarswellOnt2528, 36 C.L.R. (3d) 48.
[36] In Applewood I approved of the following propositions on the basis that they “are dependant on the underlying factual situation in which they are sought to be applied”:
Justice Di Tomaso’s “second basis” upon which he determined the lien expired in Blockwell Masonery Ltd. v. Arcaio Design, 2007 CarswellOnt 5451, namely that an attempt to bootstrap lien rights after their expiry by additional work will not extend the time within which the claim for lien must be registered failing which it is not preserved.”
That “doing work to rectify defective or improper work does not extend the time for registering a claim for lien” as approved by Master Sandler in Canadian Rogers eastern Ltd. v Canadian Glass, [1993] O.J. No.2985 and in Arcon Group Inc. v. Jelco Construction Ltd., [2001] O.J. No. 4661.
Justice Murray’s finding in Wildberry Homes Inc. v. Prosperity One Credit Union Ltd., [2008] O.J. No. 5441 “that a trivial amount of work performed or services supplied after completion of a contract will not serve to extend the time within which a claim for lien must be registered”.
[37] In L.B.E.W. Master Sandler addressed the argument advanced that there was no “benefit” to the improvement from the attendance by the workmen. In his reasons at paragraph 57 he discusses the issue and concludes the Act does not address “benefit” but rather speaks of supply of services to the improvement and concludes on the facts before him not only was there a supply but also a benefit.
[38] The other issue Master Sandler addresses in L.B/E.W. in respect of timeliness was whether an attendance at the job site on January 2 by workers after they were informed that the site was closed until January 2 where while they were unpacking job boxes, ladders and assuming their tool belts they were informed that their employer’s contract was being terminated constitute a “supply of services” or “work done” such that the time for preservation of their claim for lien started to run after that date. He then found that even applying a strict-construction approach it did.
[39] The defendants Bloomfield tendered six authorities including Applewood, Blockwell, Wildberry and Canadian Rogers. The fifth authority tendered was that of Justice Corbett in Urbacon Building Groups Corp. v. Guelph (City), [1912] O.J. No. 56 where the justice reviewed some of the applicable authorities related to timeliness and at paragraph 4 set out the applicable principles as follows quoting from paragraph 22 of the Justice’s reasons in Urbacon v Guelph (September 1, 2010):
The cases are replete with examples of concocted attendances at a job site to extend the time for filing a claim for lien. 12 The court will not permit a claimant to bootstrap its claim by late attendance at a job site after its lien rights have expired.13 On the other hand, where there is no certificate or declaration of substancial completion of the contract or the subcontract (as is the case here), a subcontractor lien claimant is entitled to register a claim for lien within forty-five days from “the date on which the [claimant] last supplies services or materials to the improvement”.14 I do not agree that “unlike a contractor, a subcontractor cannot take a hiatus or holiday from work”.15 Rather, the question is whether there is continued supply of services and materials under the contract, or whether a subsequent attendance is a sham or ‘bootstrapping” attendance to revive expired lien rights. The cases are fact-specific, and a sweeping conclusion that non-attendance at a construction site for 45 days will terminate lien rights is not correct.16 Rather, I agree with Di Tomaso J. when he observes:
Sometimes a fine distinction must be made between services and materials supplied in order to complete a contract and the same services and materials supplied merely for the purpose of extending the time for filing a lien which otherwise would have expired. This distinction is a question of fact in every case and often a difficult one to make.17
[40] I agree with Justice Corbett but add that when factually dealing with a re-attendance upon which timeliness depends if the work amounts to rectification of deficient or improper work then the work does not serve to extend the time for preserving the claim for lien rather it amounts to bootstrapping.[^1]
[41] The sixth authority tendered, Micon Interiors General Contractors Inc. v. D’Abbondanza Enterprises Inc.[2008] ).J. No.4132, a decision of C. Gilmore J. illustrates the factual application of the principle set out in Canadian Rogers but in addition addresses a factual issue, namely whether the delayed delivery of a balancing report by the contractor served to extend the time for preserving the claim for lien. Justice Gilmore finds it does not stating at the conclusion of paragraph 52 that:
To find otherwise would leave the door open for a contractor to, once a document is completed, withhold a document required by the contract in an attempt to delay the completion of the contract months or even years after the actual contract work was completed, all the while keeping open the possibility of registering a lien.
I am in agreement with this principle.
Decision
[42] The latter two of the three propositions I have set out[^2] in the Applewood decision apply to the issue of the timeliness of the plaintiff’s claim for lien.
[43] Based on my factual findings I conclude that the plaintiff completed its work when its subcontractor Advanced Coatings Inc. finished the installation of the waterproof membrane and drainage membrane on November 21, 2008, that is it was the date on which the plaintiff last supplied services or materials to the improvement. The claim for lien was registered on April 6, 2009 long after forty-five days after November 21, 2008 had run.
[44] Advanced Coatings Inc. billed out its work on November 23, 2008 and the plaintiff in turn billed out its work to Ken Temple Contracting on November 26, 2008. Each by their billing completely billed for the work and services they had performed and at that time there was no reservation or indication that work remained to be performed by either of them.
[45] Nonetheless at that point left for the plaintiff was the completion of deficient work that is the row of ties on the outside of the concrete foundation just below the top of the wall, a few ties in a concrete corner and a miniscule amount of concrete chipping. I found this work to be a minor deficiency that is a trivial amount of work which the plaintiff was obliged to correct. I also find this work falls factually within the principle set out in Canadian Rogers such that rectifying this deficiency cannot serve to extend the time within which the claim for lien had to be preserved.
[46] To paraphrase Justice Gilmore, to find otherwise would leave the door open for a contractor to always have a tiny bit of deficient work outstanding in an attempt to delay completion of the contract months or even years after the actual contract work was completed, all the while keeping open the possibility of registering a lien.
[47] The plaintiff did not attempt to do the minor amount of deficient work until an issue arose over payment and the price of its work and after the time for preserving the claim for lien had run. The plaintiff then attended at the premises on February 19, 2009. On the facts as found by me I find the re-attendance on February 19, 2009 amounted to an attempt by the plaintiff to bootstrap its claim for lien.
[48] For the aforesaid reasons I find that the plaintiff failed to meet its burden of proof and demonstrate on a balance of probabilities on the evidence that its claim for lien was registered within the time prescribed by subsection 31(3) that is within forty-five days next following the last day that the plaintiff supplied services and materials to the improvement. This decision is to be incorporated in my report in this reference.
[49] If the parties cannot agree on costs of this mini summary trial they can be addressed at the next pre-trial for directions in this reference fixed for 2:30 in the afternoon on June 11, 2012 to address the further conduct of this reference.
Master Polika
Released: April 5, 2012
[^1]: See the second point in paragraph 36 supra. [^2]: The three propositions are set out in paragraph 36 supra.