Boehner (Doug) Trucking & Excavating Ltd. v. United Gulf Developments Ltd. et al., 2004 NSSC 180

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: October 30, 2003
• Jurisdiction: Nova Scotia
• Citations: 2004 NSSC 180;(2004), 226 N.S.R.(2d) 268 (SC)

Boehner Trucking v. United Gulf (2004), 226 N.S.R.(2d) 268 (SC);

 714 A.P.R. 268

MLB headnote and full text

Temp. Cite: [2004] N.S.R.(2d) TBEd. SE.011

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

(S.H. No. 192466)

Doug Boehner Trucking & Excavating Limited, a body corporate (plaintiff) v. United Gulf Developments Limited, a body corporate, Greater Homes Inc., a body corporate, R. & D. Haverstock and Sons Limited, a body corporate and Mitchell Brison (defendants)

(S.H. No. 192467; 2004 NSSC 180)

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

Nova Scotia Supreme Court

LeBlanc, J.

September 14, 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, in a judgment reported (2004), 221 N.S.R.(2d) 101; 697 A.P.R. 101, 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. When the parties were unable to agree on the form of the Order to reflect the judgment, United raised two issues for determination by the court: (1) whether summary judgment was available in a action commenced under the Mechanics' Lien Act and (2) whether it should be granted leave to present new evidence in respect of summary judgment application.

The Nova Scotia Supreme Court allowed the application. United was permitted to have the summary judgment application reopened to admit the new evidence, subject to the plaintiff being permitted to introduce reply evidence.

Mechanics' Liens - Topic 8009.3

Practice - General - Availability of summary judgment - Section 34(1) of the Mechanics' Lien Act provided that liens "may be enforced by an action to be brought and tried in the Supreme Court ... according to the ordinary procedure of such court, except where the same is varied by this Act" - The Act did not explicitly allow or preclude summary judgment - The Nova Scotia Supreme Court held that summary judgment was available where an action was commenced under the Act - Summary judgment was not precluded where there were additional potential lien claimants - See paragraphs 5 to 28.

Practice - Topic 5710.1

Judgments and orders - Summary judgments - Reopening of to hear new evidence - The plaintiff obtained summary judgment against the defendant - Before formal judgment was issued, the defendant sought leave to reopen the summary judgment application to admit "new evidence" showing a triable issue as to the amount claimed - The Nova Scotia Supreme Court granted leave to reopen the summary judgment application to admit the new evidence, subject to the plaintiff being entitled to admit reply evidence - Although the "new evidence" could have been produced at the hearing of the original application with the exercise of due diligence by the defendant, there was a risk of substantial injustice if the application was not reopened - The new evidence was sufficient to raise an arguable issue as to the amount owed - See paragraphs 29 to 38.

Cases Noticed:

McLanders Contractors Ltd. v. Eastern Flying Services Ltd. (1982), 55 N.S.R.(2d) 449; 114 A.P.R. 449 (Co. Ct.), refd to. [para. 5].

Blue Heron Enterprises Inc. v. Bradley et al. (1999), 174 Nfld. & P.E.I.R. 267; 533 A.P.R. 267 (P.E.I.T.D.), refd to. [para. 6].

Michaels Engineering Consultants Canada Inc. v. 961111 Ontario Ltd. et al. (1996), 91 O.A.C. 221; 29 O.R.(3d) 273 (Div. Ct.), refd to. [para. 8].

Diotte v. ADI International Ltd. (2001), 242 N.B.R.(2d) 356; 628 A.P.R. 356 (T.D.), refd to. [para. 9].

Marco Ltd. v. Newfoundland Processing Ltd. et al. (1995), 130 Nfld. & P.E.I.R. 308; 405 A.P.R. 308 (Nfld. T.D.), refd to. [para. 11].

Dukowski v. Unique Custom Woodwork & Design Ltd. (1982), 39 B.C.L.R. 391 (Co. Ct.), refd to. [para. 13].

Jordan Electric Co. v. Post 83 Co-Operative Housing Association et al. (1984), 12 D.L.R.(4th) 386 (B.C.C.A.), refd to. [para. 13].

Gateway Construction Co. v. Provincial Drywall Supply Ltd. (1988), 51 Man.R.(2d) 275 (C.A.), refd to. [para. 14].

Federal Business Development Bank v. Silver Spoon Desserts Ltd. (2000), 189 N.S.R.(2d) 133; 590 A.P.R. 133 (C.A.), refd to. [para. 30].

Griffin v. Corcoran (2001), 193 N.S.R.(2d) 279; 602 A.P.R. 279 (C.A.), refd to. [para. 30].

Dawi v. Armstrong (1992), 17 C.P.C.(3d) 196 (Ont. Gen. Div.), affd. (1993), 17 C.P.C.(3d) 196 (C.A.), refd to. [para. 36].

Statutes Noticed:

Mechanics' Lien Act, R.S.N.S. 1989, c. 277, sect. 34(1) [para. 17]; sect. 35(1) [para. 19].

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 September 14, 2004.