Boehner (Doug) Trucking & Excavating Ltd. v. United Gulf Developments Ltd. et al., 2004 NSSC 34

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: October 30, 2003
• Jurisdiction: Nova Scotia
• Citations: 2004 NSSC 34;(2004), 221 N.S.R.(2d) 101 (SC)

Boehner Trucking v. United Gulf (2004), 221 N.S.R.(2d) 101 (SC);

 697 A.P.R. 101

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. MR.002

Doug Boehner Trucking & Excavating Limited (plaintiff) v. United Gulf Developments Limited, a body corporate, Annapolis Group Inc., a body corporate, and Cemal Esiyok and Kathleen Houlihan (defendants)

(SH 192466; 2004 NSSC 34)

Indexed As: Boehner (Doug) Trucking & Excavating Ltd. v. United Gulf Developments Ltd. et al.

Nova Scotia Supreme Court

LeBlanc, J.

February 9, 2004.

Summary:

The plaintiff and United were parties to two road construction contracts. The plaintiff was also a party to a trenching and foundation excavation contract with a related company of United. Work was completed on the road contracts. The plaintiff had used contaminated fill on the trenching contract. When the plaintiff refused to remove and remediate, United stepped in to do so at a cost of over $548,000. The plaintiff, refused payment on all three contracts, filed liens respecting all three contracts. United claimed set-off and counterclaimed for the removal and remediation costs. The plaintiff sought summary judgment, submitting that United's set-off and counterclaim was not a defence to the road contracts claims, only the trenching contracts claim.

The Nova Scotia Supreme Court granted summary judgment. The claims for legal or equitable set-off and the counterclaim, all relating to the third contract which was independent of the first two contracts, could not be maintained against the claim for lien.

Mechanics' Liens - Topic 8008

Practice - General - Availability of set-off, counterclaim and third party procedure - The plaintiff and United were parties to two road construction contracts - The plaintiff was also a party to a trenching and foundation excavation contract with a related company of United - Work was satisfactorily completed on the road contracts - The plaintiff had used contaminated fill on the trenching contract - When the plaintiff refused to remove and remediate, United stepped in to do so at a cost of over $548,000 - The plaintiff, refused payment on all three contracts, filed liens respecting the contracts - United claimed set-off and counterclaimed for the removal and remediation costs - The plaintiff sought summary judgment, submitting that United's set-off and counterclaim was not a defence to the road contracts claims, only the trenching contracts claim - The Nova Scotia Supreme Court granted summary judgment - The claims for legal or equitable set-off and the counterclaim, all relating to the third contract which was independent of the first two contracts, could not be maintained against the claim for lien - Set-offs and counterclaims in an action under the Mechanics' Lien Act were restricted to those that arose out of the contract or work done or materials furnished to the property in question as between the parties to the original lien action.

Cases Noticed:

Bank of Montreal v. Scotia Capital Inc. et al. (2002), 210 N.S.R.(2d) 78; 659 A.P.R. 78 (S.C.), refd to. [para. 17].

Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423; 247 N.R. 97; 126 O.A.C. 1, refd to. [para. 17].

P.P.G. Industries Canada Ltd. v. Lindsay (J.W.) Enterprises Ltd. et al. (1982), 52 N.S.R.(2d) 267; 106 A.P.R. 267 (C.A.), refd to. [para. 21].

Fuller (Thomas) Construction Co. (1958) Ltd. v. Centennial Group of Companies Ltd. and Prince George Hotel Ltd. (1987), 82 N.S.R.(2d) 73; 207 A.P.R. 73 (C.A.), refd to. [para. 27].

Telford v. Holt, [1987] 2 S.C.R. 193; 78 N.R. 321; 81 A.R. 385, refd to. [para. 30].

Rocovitis v. Argerys Estate et al. (1988), 27 O.A.C. 300; 63 O.R.(2d) 755 (Div. Ct.), refd to. [para. 30].

Diewold v. Diewold, [1941] 1 D.L.R. 561 (S.C.C.), refd to. [para. 30].

United Steel Corp. v. Turnbull Elevator of Canada Ltd. (1973), 34 D.L.R.(3d) 492 (Ont. C.A.), refd to. [para. 31].

N.W. Robbie & Co. v. Witney Warehouse Co., [1963] 3 All E.R. 613 (C.A.), refd to. [para. 31].

Canadian Imperial Bank of Commerce v. Tucker Industries Inc. et al. (1983), 149 D.L.R.(3d) 172 (B.C.C.A.), refd to. [para. 32].

Agway Metals Inc. v. Dufferin Roofing Ltd., [1991] O.J. No. 9 (Gen. Div.), affd. [1994] O.J. No. 3671 (C.A.), refd to. [para. 33].

Dominion Lumber Winnipeg Ltd. v. A.S. Builders Ltd. (1999), 139 Man.R.(2d) 8 (Q.B.), refd to. [para. 35].

Singer v. Sommex Maritime Ltd. (1996), 148 N.S.R.(2d) 118; 429 A.P.R. 118 (S.C.), refd to. [para. 41].

Coba Industries Ltd. v. Millie's Holdings (Canada) Ltd. (1985), 20 D.L.R.(4th) 689 (B.C.C.A.), refd to. [para. 42].

Federal Commerce and Navigation Co. v. Molena Alpha Inc., [1978] 3 W.L.R. 309 (C.A.), refd to. [para. 42].

Norbury Sudbury Ltd. v. Noront Steel (1981) Ltd. (1984), 11 D.L.R.(4th) 686 (Ont. H.C.J.), refd to. [para. 44].

Hanak v. Green, [1958] 2 All E.R. 141 (C.A.), refd to. [para. 44].

Authors and Works Noticed:

Macklem and Bristow, Mechanics' Liens in Canada (4th Ed. 1978), p. 309 [para. 22].

Counsel:

Ann E. Smith, for the plaintiff;

William A. Moreira, Q.C., for the defendants.

This application was heard on October 30, 2003, at Halifax, N.S., before LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following judgment on February 9, 2004.