CITATION: Bentivoglio v. Le Groupe Brigil Construction, 2016 ONSC 1237
COURT FILE NO.: CV-12-55057A2
DATE: 2016-02-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MICHAEL STEVEN BENTIVOGLIO O/A MIKE’S HEATING, AIR CONDITIONING & GENERAL CONTRACTING
The Plaintiff, not represented
Plaintiff
- and -
LE GROUPE BRIGIL CONSTRUCTION, a Division of 6095186 CANADA INC., 3223701 CANADA INC., and CAISSE DESJARDINS DE HULL
Stephane Hutt and Michel Sicotte, for the Defendants, Le Groupe Brigil Construction, a Division of 6095186 Canada Inc., 3223701 Canada Inc.
Defendants
The Defendants, Caisse Desjardins De Hull, not represented
- and -
GENIVAR INC.
James Brown, for the Third Party
Third Party
- 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
Craig O’Brien and Kyle Stout, for Mastron Mechanical Contracting Limited, Mastron Mechanical Contracting (1988) Limited and SJDM Holding Ltd.
Fourth Party, Mike’s Heating, not represented.
Fourth Parties
HEARD: January 14, 2016,
at Ottawa, Ontario
Mr. Justice W.D. Newton
Decision On Motion
[1] This action was commenced under the Construction Lien Act. A number of procedural irregularities lead to the issues that are before me:
Are the third and fourth party claims in this action properly issued?
If not, can the third and fourth party claims be "saved" by an order nunc pro tunc?
[2] Subsection 56 (2) of the Construction Lien Act provides that a party may be joined as a third party to a lien action only with leave of the court. That third party claim is limited to a claim for contribution and indemnity.
[3] The defendant Brigil added Genivar as a third party on September 20, 2012. Leave was not sought and the third party claim was not limited to contribution and indemnity but included other claims.
[4] Genivar added Mastron and the plaintiff as fourth parties on September 19, 2014. Again, leave was not sought but the fourth party claim was limited to contribution and indemnity.
[5] Between these two events the plaintiff's statement of claim and claim for lien were dismissed by Hackland J. on December 10, 2013. That order also provided:
This court further orders that notwithstanding the above, the third party claim, as against Genivar Inc. shall survive;
This court further orders that notwithstanding the above, Genivar Inc. may move to bring a fourth party claim as against the plaintiff… if it so chooses.
[6] This order says nothing about a fourth party claim against Marston.
[7] Genivar brought this motion, originally returnable September 18, 2015, to either strike the third party claim against it or, alternatively, leave to continue the fourth party claim against Mastron. Brigil argues that the third-party claim should continue as ordered by Hackland J. (and consented to by Genivar) and further, that there is no prejudice to Genivar in that discovery is ongoing between these parties. Mastron argues that the fourth party claim should not be permitted and that, following, Canadian Imperial Bank of Commerce v. Green, 2015 SCC 60, I cannot save the fourth party claim by a nunc pro tunc order because of the expiry of the limitation period.
Analysis
[8] In TRS Components Ltd. v. Devlan Construction Ltd., 2015 ONCA 294, the Court of Appeal concluded that "… where a lien is discharged, the court may then order that the remainder of the action proceed under the "ordinary" track. However, unless such an order is made, the trial of the action or any part of the action commenced under the Act would proceed under the Act ..." (at para. 20).
[9] Counsel acknowledged that, had the parties sought such an order on December 10, 2013, Hackland J. could have ordered that the action proceed under the "ordinary" track.
[10] With respect to the third party claim against Genivar, I conclude that Genivar, through its conduct in pursuing discoveries, has acquiesced to the survival of the third party claim. In any event, I conclude that third party claim has already been "saved" by the order of Hackland J. which I find, in effect, granted leave to issue the third party claim nunc pro tunc.
[11] With respect to the fourth party claim, Mastron did not acquiesce. Further, the fourth party claim as against Mastron was not permitted by paragraph seven of the Hackland order.
[12] Parties have an obligation to follow procedural rules whether pursuant to the Construction Lien Act or the Rules of Civil Procedure. The parties cannot adversely affect the rights of other parties without following the required procedures absent consent or acquiescence by conduct. I note that the consent filed to justify the issuing of the fourth party claim includes the following recital:
THE PARTIES certify that the Plaintiffs action... was dismissed by Order of the Honourable Mr. Justice Hackland dated December 10, 2013 with leave to issue the herein Fourth Party Claim. (Emphasis added)
[13] This recital is, on its face, inaccurate. The order only authorized the fourth party claim against Mike's Heating and not a fourth party claim against Mastron.
[14] Nevertheless, Mastron on did not move to strike the fourth party claim when served on October 7, 2014. Mastron took no action until Genivar, as an alternative form of relief, sought validation of the fourth party claim in this motion.
[15] Having concluded that the order of Hackland J. did not authorize the issuance of the fourth party claim I have to decide whether I have the power to validate the fourth party claim nunc pro tunc and whether it is appropriate to do so in the circumstances.
[16] Marston argues that I do not have the power to do so based on Canadian Imperial Bank of Commerce v. Green. That case involved three motions for leave to commence proceedings involving class actions. One case involved a motion for leave filed before the expiry of the limitation period; another involved a motion that was filed and argued before the expiry of the limitation period; and the a third, in which the motion for leave was filed after the expiry of the limitation period. The court reviewed the circumstances in which nunc pro tunc orders could be made and emphasized that the discretion to make nunc pro tunc orders should not be used undermine the purpose of limitation periods or the legislation at issue. One of the factors in determining whether to exercise the discretion to issue an order nunc pro tunc is whether the order would have been granted if sought at the appropriate time. Mastron did not argue that leave would not have been granted had the motion been brought in time. In this case, the fourth party claim was issued in time. However, leave was not sought.
[17] While I do not condone the conduct of Genivar in attempting to shelter the fourth party claim under the Hackland order I conclude that, practically, it is appropriate to grant leave nunc pro tunc to issue the fourth party claim. As stated, the fourth party action was commenced within the limitation period. While technically this action is still under the Construction Lien Act I conclude that what was intended at the time of the Hackland order was that the action was to continue under the "ordinary" track. In the event I do not have the power to grant leave nunc pro tunc to permit the fourth party claim I would order, nunc pro tunc, that the action be converted to the "ordinary track” as of December 10, 2013, the date of the Hackland order, and therefore validate the fourth party claim.
[18] While this claim began under the lien regime, the third and fourth party claims have taken the proceedings beyond where the lien rules are relevant. If the claims have merit, then they should be dealt with on their merits and not be defeated by procedural rules that have no practical relevance.
[19] With respect to costs, I will receive written submissions limited to five pages plus costs outline from each party. If costs submissions are not received within 30 days then the costs will be deemed settled.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: February 18, 2016
CITATION: Bentivoglio v. Le Groupe Brigil Construction, 2016 ONSC 1237
COURT FILE NO.: CV-12-55057A2
DATE: 2016-02-18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
MICHAEL STEVEN BENTIVOGLIO O/A MIKE’S HEATING, AIR CONDITIONING & GENERAL CONTRACTING
Plaintiff
- and -
LE GROUPE BRIGIL CONSTRUCTION, a Division of 6095186 CANADA INC., 3223701 CANADA INC., and CAISSE DESJARDINS DE HULL
Defendants
- and -
GENIVAR INC.
Third Party
- 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
DECISION ON MOTION
Newton J.
Released: February 18, 2016
/cs