COURT FILE NO.: CV-12-0056
DATE: 2012-07-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
1188710 ONTARIO LIMITED trading as BURNETT CONSTRUCTION
Mr. W. Shanks, for the responding party plaintiff
Plaintiff
- and -
GREGORY GARTNER and SUZANNE GARTNER
Ms. R. Clinker, for the moving party defendants
Defendants
HEARD: June 28, 2012,
at Thunder Bay, Ontario
Regional Senior Justice H.M. Pierce
Reasons on Motion
Introduction
[1] The defendants seek:
a) leave to bring this motion;
b) adjournment of the trial of the action now set for the weeks of August 13th and 20th, 2012; and
c) an order setting aside their Notice of Discontinuance, dated December 6, 2011 with respect to their counter-claim against the plaintiff.
[2] The defendants resist this motion.
Background
[3] The within action was commenced under the Construction Lien Act, R.S.O. 1990, c. C.30. The defendants contracted with the plaintiff to renovate their cottage in the spring of 2010. When the defendants failed to make full payment on the contract, the plaintiff registered a construction lien against their property and began this action. The defendants counterclaim against the plaintiff on the basis that its work was defective.
[4] The chronology of events is as follows. In September, 2010, the property was damaged by fire. The defendants claimed damages on their fire insurance policy.
[5] The construction lien action commenced in October, 2010. A statement of defence was filed in December, 2010. Although the defendants’ solicitor requested a copy of the fire inspection report from their insurer, it was not forthcoming.
[6] In September, 2011, the plaintiff’s insurer claimed indemnity against various parties, including the defendants, for any damages that might be awarded against the plaintiff arising from the counterclaim.
[7] On November 9, 2011, counsel for the defendant wrote to the plaintiff’s counsel proposing the construction lien claim proceed separately from the remaining litigation. Paragraph one of her letter stated:
Our clients will agree to the separation of the lien claim from the remainder of the issues. Logistically, my clients will discontinue their counterclaim in the lien action on a without prejudice basis and on a without costs basis. My client, or their insurance company, still intend to rely on the allegations contained in the counterclaim and assert the claims therein in a separate action. As such, enclosed please find a consent for your execution along with a copy of the Notice of Discontinuance that will be filed.
[8] Both parties agreed that, despite not knowing what caused the fire, the defendants would discontinue the counterclaim against the plaintiff and the plaintiff would discontinue the indemnity action. Both parties acted on that agreement.
[9] The parties also agreed that the case would be transferred from Kenora to Thunder Bay. A settlement conference took place in January, 2012. At that time, the case was set for trial during the weeks of August 13th and 20th, 2012.
[10] In May, 2012, the defendants’ insurer rumbled about commencing a subrogation claim in relation to the fire but it has not yet done so. The defendants’ insurer also disclosed a report attributing the cause of a fire to incomplete installation by the plaintiff of an uncertified fireplace appliance.
[11] The defendants have now settled with their insurer and have been paid their fire loss. Nevertheless they wish to adjourn the construction lien trial to permit the action for subrogation to commence and to consolidate it with the construction lien action. They argue that by doing so, issues will be decided together; costs will be saved; the process will be more efficient; and the risk of inconsistent verdicts will be avoided. They submit that if the trial is adjourned, the case can be put on the September Assignment Court list and set to the first sittings for trial so that minimal delay will be involved.
[12] As there is no action for subrogation yet started, there is no motion before me to consolidate the proposed action with the construction lien action.
The Test for Leave
[13] Before the court can entertain the defendants’ motion, it must be satisfied that leave should be granted. Section 67.2 of the Construction Lien Act deals with leave to bring interlocutory proceedings. It provides:
Interlocutory steps, other than those provided for in this Act, shall not be taken without the consent of the court obtained upon proof that the steps are necessary or would expedite the resolution of the issues in dispute.
[14] The defendants concede that adjourning the trial would not expedite resolution of the issues. Therefore, on the motion for leave, the question to be determined is whether the steps are necessary. In GTA Structural Steel Ltd. v 20 Ashtonbee Holdings Ltd [2005] O.J. No. 4999 (S.C.J.) at paragraph 30, Master Polika quoted with approval the decision of Mr. Justice McDermit in Global Design and Building Inc. v 1289193 Ontario Inc. (2000), 2 C.L.R. (3rd) (S.C.J.), 271. In that case, the court considered the meaning of the word, “necessary” in the following terms:
Giving the word “necessary” its plain and ordinary meaning, I believe the Legislature intended to provide a fair but summary way of resolving disputes arising from the filing of construction liens by limiting interlocutory proceedings to those that are required or essential to provide an action to proceed to trial or to permit the issues between the parties to be decided.
[15] In this case, I conclude that it is not necessary to adjourn the trial. The Construction Lien Act was intended to be a summary procedure for the expeditious resolution of claims. The issues related to the negligence proceeding are distinct. The claim is not statute-barred. Litigation of these issues may involve other parties and witnesses who are not involved in the construction lien action. Enlarging the litigation will undoubtedly delay and extend the trial and increase the cost for the plaintiff.
[16] When the defendants agreed to discontinue their counterclaim, they were aware that issues of negligence might arise from the fire. However they agreed to simplify the proceeding even before expert evidence was available as to the cause of the fire. There is no prejudice to holding the defendants to their agreement in these circumstances. Their insurer may still proceed against the plaintiff if so advised. On the other hand, the plaintiff will be prejudiced if leave is granted and an adjournment permitted. The plaintiff agreed the discontinuance would be without costs. The indulgence granted to the defendants cannot now be recouped by the plaintiff.
[17] For these reasons, leave to bring an interlocutory motion to adjourn the trial is refused. The defendants’ motion to adjourn the trial and set aside their notice of discontinuance is accordingly dismissed.
[18] If the parties cannot agree about costs they may apply to the trial coordinator within 30 days to fix a date for argue costs, failing which, costs will be deemed to be settled. Costs submissions are not to exceed 5 pages exclusive of any offers to settle.
“original signed by”
Regional Senior Justice H.M. Pierce
Released: July 6, 2012
COURT FILE NO.: CV-12-0056
DATE: 2012-07-06
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
1188710 ONTARIO LIMITED trading as BURNETT CONSTRUCTION
Plaintiff
- and –
GREGORY GARTNER and SUZANNE GARTNER
Defendants
REASONS ON MOTION
Pierce, J
Released: July, 2012
/nf