T.D. Kerr

The plaintiff brought a motion to validate service of a statement of claim in a construction lien action or, alternatively, to extend the time for service under the Construction Lien Act.

The court found that the plaintiff failed to prove that the statement of claim had been personally served within the required 90‑day period and that the delay of approximately 16 months was unexplained and unsupported by compelling reasons.

Given the statutory objective of expeditious resolution of lien claims and the prejudice caused by maintaining a lien against the property, the court declined to extend time for service with respect to the lien claim.

The lien was therefore declared expired.

However, the court permitted the contractual and quantum meruit portions of the claim to proceed as an ordinary civil action and validated service for that limited purpose.

The moving party sought to set aside a default judgment entered after failing to file a defence to a civil claim alleging liability arising from corporate dealings and alleged fraud, misrepresentation, and breach of trust.

The court applied the test for setting aside default judgment, considering promptness of the motion, explanation for the default, the existence of an arguable defence, prejudice to the parties, and the interests of justice.

Although there was delay in bringing the motion, the court found the moving party had an arguable defence because the pleadings did not clearly connect the individual defendant to the contractual obligations or alleged misconduct.

The court concluded that it would be unjust to allow the default judgment to stand.

The judgment was set aside on the condition that the moving party pay the respondent’s costs thrown away.