Artistic Masonry & Stucco Ltd. v. Whitley, (2013) 411 Sask.R. 222 (QB)

• Judge: Barrington-Foote, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 09, 2013
• Jurisdiction: Saskatchewan
• Citations: (2013), 411 Sask.R. 222 (QB);2013 SKQB 11

Artistic Masonry v. Whitley (2013), 411 Sask.R. 222 (QB)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. JA.021

Artistic Masonry & Stucco Ltd. (plaintiff/defendants by counterclaim) v. Norman Scott Whitley and Elizabeth Lou Whitley (defendants/plaintiffs by counterclaim)

(2010 Q.B.G. No. 1472; 2013 SKQB 11)

Indexed As: Artistic Masonry & Stucco Ltd. v. Whitley

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Barrington-Foote, J.

January 9, 2013.

Summary:

The defendants applied pursuant to ss. 55(3) and 60 of the Builders' Lien Act for an order vacating the plaintiff's claim of lien. The plaintiff applied for an order pursuant to s. 55(2) of the Act extending the time to set the proceeding down for trial, and maintaining the plaintiff's lien claim for such time as the court might deem appropriate.

The Saskatchewan Court of Queen's Bench dismissed the plaintiff's application for an order extending the time to set the proceeding down for trial. With respect to the defendants' application, an order that the lien be vacated was not necessary, as the lien had already expired pursuant to s. 55(1) of the Act.

Mechanics' Liens - Topic 6983

Loss or discharge of lien - Loss by operation of statute - Expiration of time period - [See Mechanics' Liens - Topic 8007 ].

Mechanics' Liens - Topic 8007

Practice - General - Setting case down for trial - The defendants applied pursuant to ss. 55(3) and 60 of the Builders' Lien Act for an order vacating the plaintiff's claim of lien - The plaintiff applied for an order pursuant to s. 55(2) of the Act extending the time to set the proceeding down for trial, and maintaining the plaintiff's lien claim for such time as the court deemed appropriate - The Saskatchewan Court of Queen's Bench dismissed the plaintiff's application for an order extending the time to set the proceeding down for trial - The plaintiff had not demonstrated that the delay in setting the matter down for trial was not unreasonable or unjustified - Although significant delays were attributable to the defendants, the plaintiff had the obligation to move the claim forward expeditiously - The plaintiff did not consistently do so - The plaintiff also provided no evidence that it would be prejudiced if the lien were discharged - Although it was reasonable to conclude that the loss of security for a debt constituted prejudice, the presence or absence of evidence as to whether the security was necessary was relevant - The defendants, on the other hand, did provide some evidence of prejudice - It was a reasonable inference, based on the defendants' evidence as to their retirement savings and development plans, that they had the ability to pay any judgment that might be awarded - The prejudice suffered by the defendants was greater than that suffered by the plaintiff and was sufficient that the plaintiff's application should be dismissed - With respect to the defendants' application, an order that the lien be vacated was not necessary, as the lien had already expired pursuant to s. 55(1) of the Act.

Cases Noticed:

101050094 Saskatchewan Ltd. v. Terramax Sitework Ltd. et al. (2007), 304 Sask.R. 179; 413 W.A.C. 179; 2007 SKCA 123, refd to. [para. 6].

Economy Plumbing & Heating (1998) Ltd. v. 101022029 Saskatchewan Ltd. (2008), 327 Sask.R. 307; 2008 SKQB 493, refd to. [para. 7].

Woodland Home & Building Products Ltd. v. Chessall et al. (2009), 339 Sask.R. 310; 2009 SKQB 221, refd to. [para. 7].

Prairie Panels Ltd. v. McCaw et al. (2010), 372 Sask.R. 17; 2010 SKQB 450, refd to. [para. 7].

H & S Holdings Inc. v. Noon (2011), 388 Sask.R. 99; 2011 SKQB 468, refd to. [para. 7].

Top of the Hill Designs Ltd. v. 554650 Alberta Ltd. et al., [2012] Sask.R. Uned. 64; 2012 SKQB 228, refd to. [para. 7].

Howden (Roy) Construction Ltd. v. Dewitt et al., [1994] 1 W.W.R. 617; 114 Sask.R. 263 (Q.B.), refd to. [para. 9].

Statutes Noticed:

Builders' Lien Act, S.S. 1984-85-86, c. B-7.1, sect. 55(1), sect. 60 [para. 5].

Counsel:

David Kowalishen, for the plaintiff;

Brittnee Holliday, for the defendants.

These applications were heard before Barrington-Foote, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following fiat on January 9, 2013.