Superior Court of Justice – Ontario
Court File: CV-23-00014675-000
Date: 2025-05-01
Between:
Oorja by Jazz Inc. & Jasvir Kaur, Plaintiffs/Moving Party on Motion/Respondents on Cross-Motion
and
NB Distillers Inc., Canadiana Organic Dist Corp o/a NB Distillers, Neeraj Bakshi, and Bellstaff Enterprises Inc., Defendants/Respondents on Motion/Moving Party on Cross-Motion
Before: Justice S.N. Latimer
Counsel:
Counsel for the Plaintiffs: P. Anand
Counsel for the Defendants: M. Greco
Heard: 2025-04-15
Reasons for Decision
Introduction
[1] This is a lien action under the Construction Act. Section 50(3) of the Act states that “[t]he procedure in an action shall be as far as possible of a summary character, having regard to the amount and nature of the liens in question”. The Canadian Law Dictionary defines summary as “proceed[ings] without delay and without all the formalities of a trial”.[^1]
[2] This proceeding—over sixteen months old—in no way meets that definition. Very little substantive progress has been made. The pleadings have not yet closed. The lien claimant has not been examined. No conference or pre-trial has taken place. The motions before me today arise because the parties are locked in a dispute regarding the sharing of information at this early stage of litigation.
[3] This action centers on the Plaintiffs’ claim that they had a contract with the Defendants for services rendered for which they have not yet received payment. At the time of the lien, the Plaintiffs allege they worked over two years without payment of any kind. They claim $169,500. The Defendants are suspicious, as the claim followed the “deterioration” of a “personal and intimate relationship” between the non-corporate plaintiff and defendant, and there is no obvious evidence of design work having been completed.
[4] At a time of introspection regarding the future of the civil justice system[^2], this litigation is not a good look. Despite the statutory expectation of a summary proceeding, the parties are writing letters, cancelling examinations on short notice, and filing dueling motions at significant mutual expense. The Plaintiffs are the principal offenders in this regard. A straightforward factual matter that seems to largely resolve around whether a contract ever existed in the first place has devolved into sixteen months (and counting) of document demands and finger pointing. There are three issues presently to be resolved. I will do so with s. 50(3) of the Act and its “summary” exhortation front of mind.
Issue 1: Have the Defendants complied with Section 39 of the Act?
[5] Associate Judge Robinson summarized section 39 of the Construction Act in 35 Mercer Ltd v. Intact Insurance, 2024 ONSC 6466, at paragraph 22:
Pursuant to s. 39(1) of the Construction Act, any person having a lien or who is the beneficiary of a trust under Part II of the Construction Act is entitled to require an owner or contractor to provide information on contracts, procurement processes, the state of accounts under a contract, and other information. Specifically, a subtrade or supplier on a construction project may request that the owner or contractor confirm “the names of the parties to the contract, the date on which the contract was entered into and the date on which any applicable procurement process was commenced”. A response to a s. 39 request for information must be provided within no more than twenty-one days…
[6] In this case, the Plaintiffs filed their lien and delivered a demand for information under s. 39 on December 19, 2023. On January 29, 2024, the Defendants responded through counsel that they had no knowledge of any alleged contract and asked for supporting documentation in order to respond to the allegation. No documentation was received, and the Plaintiffs indicated an intention to note the Defendants in default if they did not file a statement of defence by February 6, 2024. On that date, a statement of defence, counterclaim and crossclaim were delivered.
[7] On September 27, 2024, the Defendants filed a detailed s. 39 response. Counsel’s explanation for the delay relates to the complexity of the mortgagee-related information, and the procedural wranglings that have consumed much of 2024 on this file (e.g., scheduling cross-examination of Ms. Kaur pursuant to s. 40 of the Act).
[8] I find the Plaintiffs’ claim that this was an insufficient s. 39 response to be without merit. I do agree it should have been received sooner, although I note the core aspect of the response—that the Defendants are unaware of the existence of any contract—was provided in the initial January letter. In a case with somewhat unique factual circumstances for a lien action (i.e., a dispute about whether an agreement existed in the first place, and litigants with seemingly complicated past personal relationships), this response is sufficient and more than justifies moving this summary proceeding forward. I find the Plaintiffs’ broader documentary requests to be more in aid of discovery than s. 39 information-seeking. This aspect of the Plaintiffs’ motion is dismissed.
Issue 2: Is the Plaintiffs’ demand for particulars and request to inspect justified?
[9] I have reviewed the statement of claim in this proceeding. It is not a model of particularity. It alleges that the Plaintiffs entered into a contract with the Defendants for “supply of labour, services, and/or materials to the project known as NB Distillers Development”. Labour, services and/or material for what? That question remains unanswered. Despite the Defendants' immediate response that they have no knowledge of any contract, no further clarification has been provided in over fifteen months. During oral argument on this motion, after questioning by the court, Plaintiffs’ counsel advised that they are in possession of a written contract. Defendants’ counsel responded that this was the first they had been told this information. To my knowledge, a copy of this document has never been provided to the Defendants.
[10] It is in this context that I assess the Plaintiffs’ request for leave with regard to a demand for particulars and to inspect documents.
[11] The Defendants’ statement of defence denies the existence of a contract and, additionally, raises the spectre of an advance/loan agreement between Ms. Kaur and Mr. Rebello for $75,000. Similarly, the Defendants have not provided documentation to support this claim.
[12] The Plaintiffs require leave to bring this motion. Section 13 of O. Reg. 302/18 under the Construction Act states that leave shall only be granted when the court is satisfied that the “steps are necessary or will expedite the resolution of the issues in dispute”. Contrary to the Defendants’ counsel’s change of heart on this issue during oral submissions, I am not so satisfied. This motion is an unnecessary detour on the road to clarity in this proceeding, which starts with Ms. Kaur’s s. 40 Act examination. Information needs to start being shared between the parties. While at some point that will include the Defendants, it begins with Ms. Kaur, as she filed this lien and commenced this action. In my view, to permit further particulars and document inspection at this time is not in keeping with the expected summary character of this proceeding. These requests by the Plaintiffs are denied.
Issue 3: A Timetable
[13] As I have tried to stress throughout this ruling, the procedural standoff in this case must come to an end, and an honest inquiry of both parties’ positions needs to occur. That starts with the Plaintiffs pleading their Reply and Defence to Counterclaim and Ms. Kaur’s attendance at a cross-examination. I am satisfied in this case that the ordering of a timetable is necessary to “expedite the resolution of the issues in dispute”. I therefore grant leave to hear the cross-motion and allow the motion on the terms contained in paragraph 15.
[14] A factual dispute lies at the heart of this lien action. Was there an agreement between the parties to provide services to this property? If yes, what parties? Were services provided? What services? The answers to these questions will not be found in continued procedural wranglings regarding documents. They will be found in viva voce examination of Ms. Kaur, who made the decision to file this lien and pursue this litigation.
Disposition
[15] The Plaintiffs’ motions are dismissed. The Defendants’ cross-motion is granted as follows:
The Plaintiffs are ordered to plead their Reply and Defence to Counterclaim by 4:00 pm on June 2, 2025, and attend a cross-examination pursuant to section 40 of the Act by June 30, 2025.
[16] Regarding costs, the Defendants have been entirely successful on this motion and are entitled to costs. Section 86 of the Act governs in the circumstances. I exercise my discretion in this manner to substantially compensate the Defendants for (1) responding to this motion, which in my view should not have been brought, (2) for having been required to bring a motion to compel the pleadings to close and for Ms. Kaur to sit for an examination, and (3) more generally, to highlight the responsibility of litigants in a lien action to act efficiently and economically. Based on the Costs Outlines provided in this case, that has not yet occurred. The Plaintiffs spent approximately $20,000 on this motion/response to cross-motion, and the Defendants $30,000. The Defendants are entitled to something approximating substantial indemnity, given my findings documented in this ruling.
[17] I order the Plaintiffs to pay the Defendants $25,000 in costs for this motion and cross-motion forthwith.
_______________________________
S.N. Latimer
Date: 2025-05-01
[^1]: The Canadian Law Dictionary, (Toronto, ON: Law and Business Publications (Canada) Inc., 1980), at p. 365.