The defendant homeowners brought a motion to discharge a construction lien and dismiss the action after the plaintiff's representative failed to meaningfully participate in two scheduled cross-examinations.
The court found significant issues regarding whether the plaintiff corporation was the actual contracting party, as the homeowners believed they contracted with an individual.
Given the abortive cross-examinations and the procedural complexities that would arise under the Construction Lien Act to resolve the corporate identity and counterclaim issues, the court exercised its discretion under s. 47(1) to discharge the lien and dismiss the entire action, without prejudice to the parties starting fresh non-lien actions.
Costs thrown away were awarded to the defendants.
