COURT FILE NO.: CV-16-546781
DATE: January 31, 2023
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: RA Crete-Scape Ltd. v. Victor Minhas and Janet Minhas;
BEFORE: ASSOCIATE JUSTICE C. WIEBE
COUNSEL: Vasko Kocovski for the defendants;
William F. Kelly for the plaintiff;
HEARD: January 30, 2023.
ENDORSEMENT
[1] This is a motion by the defendants under section 47 of the old Construction Act, R.S.O. 1990, c. C30 (“CA”), which applies, and under Rule 24 for an order dismissing this action for delay, discharging the plaintiff’s claim for lien and returning the posted security.
[2] The motion material reveals the following background facts. On January 8, 2016 the plaintiff, RA Crete-Scape Ltd. (“RA”), registered a claim for lien in the amount of $15,255 for concrete and curbing work RA says it performed on the home of the defendants in late November, 2015. On January 20, 2016 the defendants obtained an order vacating the claim for lien with the posting of cash security. Using lawyer William F. Kelly, RA purported to perfect its claim for lien by commencing this action on February 17, 2016. Using a previous lawyer, Laurie Atchison, the defendants delivered a statement of defence on March 16, 2016. Their defences alleged overcharging and a set-off for their cost of having to remove RA’s dirt allegedly improperly place on the boulevard. On May 31, 2016 the defendants amended their pleading to add a counterclaim for $9,000 in damages due to the alleged replacement of hedges removed by RA.
[3] In this motion RA filed a responding motion record that contained an affidavit of Mr. Kelly’s paralegal. This paralegal swore that in 2017 the parties discussed transferring the action to the Small Claims Court. There was no corroboration for this statement. The defendants deny this and assert that RA did nothing to move this case forward during this time. On December 20, 2017 RA served and filed a trial record.
[4] The paralegal swore that on several occasions in 2017 and 2018 she requested from the defendants dates for examinations for discovery, requests that she said were not responded to. There was no corroboration for this. There was a letter from Mr. Atchison on April 23, 2018 indicating that the defendants would not object to moving the case to the Small Claims Court. The paralegal swore that she then forwarded a consent in this regard to the defendants and that Mr. Kelly sent letters in 2018 and 2019 seeking the signed consent. There was no corroboration for this. The defendants deny these assertions. The court file suggests the case was struck from the trial list in December, 2018.
[5] The defendants retained Mr. Kocovski on April 29, 2019. Mr. Kocovski engaged in correspondence with Mr. Kelly in 2019 wherein Mr. Kocovski made it clear that the defendants consented to having the action transferred to the Small Claims Court. There was no evidence that Mr. Kelly did anything about that. Because of this lack of progress, on December 12, 2019 the defendants revoked their consent. They brought this motion originally returnable in March, 2020. Because of the Covid-19 pandemic the motion was cancelled. Again, RA did nothing thereafter to move this case forward. As a result, the defendants brought this motion back.
[6] Having considered these background facts and evidence and the submissions of counsel, I have decided to dismiss the motion for the following reasons:
a) There is no evidence that the RA claim for lien is in anyway invalid. That claim for lien remains alive thanks to the RA decision to set the action down for trial on December 20, 2017 to avoid the consequence of CA section 37.
b) The issue is entirely one of delay. I note from my general understanding of the law in this area that while “inordinate delay” has been found to be a “proper ground” under the old CA section 47(1) for dismissal, the delay must be real. The length of the delay here is seven years, which is significant. But I note that this motion was originally brought in March, 2020, namely about four years after the action was commenced, and was interrupted by the pandemic. The lack of activity thereafter is deeply troubling. But I take judicial notice that the pandemic has caused significant interruptions in the practice of law.
c) The primary explanation given by RA for the delay was it unsuccessful effort to transfer the RA lien action to the Small Claims Court. While I accept that for some of the delay RA tried to get the defendants to consent to such a transfer, I do not accept this as a valid explanation for the delay. Despite Mr. Kelly’s many protestations to the contrary, it was never legally possible to transfer this action to the Small Claims Court. Section 23(2) of the Courts of Justice Act, R.S.O. 1990, c.C43 makes it clear that only cases for the payment of money or the recovery of possession of person property can be so transferred. A lien action like this involves a claim for lien which is a charge on the improved land. This was an ill-conceived strategy from the beginning. The accepted process in Toronto is a reference of a lien action to an associate judge for management and trial. But I do note with emphasis that the defendants were parties to this ill-conceived strategy. This was the case in 2017 and 2019. This conduct of the defendants must be taken into consideration.
d) The defendants allege that they are prejudiced by the delay. Mr. Minhas swore an affidavit in this motion wherein he stated that the primary prejudice was a disagreement he had with the principal of the completion contractor, Arcan Landscape Construction Ltd., one Anef, in June, 2022, concerning work unrelated to the subject improvement. Mr Minhas stated that Arcan was the completion contractor on the subject improvement years earlier. The argument was that because of the delay in the trial of this action and the falling out between the defendants and Arcan during that delay, Arcan will not be a willing witness at trial. I do not accept this argument. The relevant prejudice must arise from the delay. Here the conduct of the defendants unrelated to the subject improvement caused this problem. In any event, there was no evidence that Anef is not available and cannot be summonsed if necessary.
e) The defendants allege that their memories have faded and that their money remains in court much too long because of the delay. Both issues are a concern, but not enough to grant the motion. The issues in this case are simple and should be easy to remember. The claim is based on one RA invoice for work done over a few days in late November, 2015. The set-off and counterclaim concern essentially two deficiencies, namely the allegedly misplaced dirt and the cutting back of the hedges. The accounting issues should be readily discernable from the documentation. As for the money in court, this is unfortunate, but it is only $19,068.75, which should not be a problematic amount for the defendants, whose house after all is worth, according to Mr. Minhas, $9 million.
f) Mr. Kocovski referred me to three authorities arguing that they showed the willingness of courts to dismiss lien actions where there has been as little as a four year delay: Krypton Steel Inc. v. Maystar General Contractors Inc., 2018 CarswellOnt 9955 (SCJ); Teepee Excavation & Grading Ltd. v. Niran Construction Ltd.(2000), 2000 CarswellOnt 2335, 189 D.L.R. (4th) (CA); Pineau v. Kretschmar Inc., 2004 CarswellOnt 548. I distinguish these cases. They all concern lien actions where the lien has expired and the court is considering exercising its discretion to dismiss the residue of the action, now essentially a civil action for damages, on account of delay. In the case before me, RA has kept its lien alive, thereby creating a separate imperative to determine the lien action.
g) The motion under Rule 24 has many of the same considerations, and I will, therefore, not deal with it separately.
[7] For these reasons I find that a fair trial of the lien action is still possible, despite the serious delays by RA. I, therefore, dismiss the motion.
[8] As to costs, no costs outlines were filed. Mr. Kocovski submitted that I should depart from usual practice and award costs of the motion against the successful party, RA. He wanted $1,500 in costs. Mr. Kelly argued that I should make no order as to costs.
[9] After consideration, I have concluded that I must depart from the usual practice as to costs. The plaintiff has the main responsibility to move a case forward. RA’s conduct in essentially doing very little of any merit to advance its claim over seven years justified the defendants’ motion. This was egregious conduct. The result was a “very close call.” Indeed, I find that I have granted the plaintiff an indulgence. There is a consequence to such an indulgence, namely a costs order.
[10] I award the defendants $1,500 in costs which RA must pay in 30 days.
DATE: January 31, 2023 _____________________________
ASSOCIATE JUSTICE C. WIEBE