Consbec Inc. v. Newfoundland and Labrador (Minister of Transportation and Works) et al., (2015) 366 Nfld. & P.E.I.R. 313 (NLTD(G))

• Judge: Marshall, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: May 12, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 366 Nfld. & P.E.I.R. 313 (NLTD(G))

Consbec Inc. v. Nfld. (2015), 366 Nfld. & P.E.I.R. 313 (NLTD(G));

    1144 A.P.R. 313

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. MY.017

Consbec Inc. (plaintiff/defendant by counterclaim) v. Her Majesty the Queen in Right of Newfoundland and Labrador, as represented by the Minister of Transportation and Works (first defendant), Mike Kelly & Sons Ltd. (second defendant), Humber Valley Aggregates and Asphalt Ltd. (third defendant/plaintiff by counterclaim) and Humber Valley Paving Ltd. (fourth defendant/plaintiff by counterclaim)

Humber Valley Paving Ltd. (plaintiff) v. Mike Kelly & Sons Ltd. (first defendant), Her Majesty the Queen in Right of Newfoundland and Labrador as Represented by the Minister of Transportation and Works (second defendant)

(201401G5327, 201401G6788; 2015NLTD(G) 68)

Indexed As: Consbec Inc. v. Newfoundland and Labrador (Minister of Transportation and Works) et al.

Newfoundland and Labrador Supreme Court

Trial Division (General)

Marshall, J.

May 12, 2015.

Summary:

Humber Valley Paving Ltd. was a party in two matters that were commenced pursuant to the Mechanics' Lien Act and were consolidated. Humber Valley Paving applied pursuant to rules 32.02, 42 and 20 of the Rules of the Supreme Court, requesting that the court order new trial dates and set down timelines for the resumption and conclusion of all discovery.

The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the application.

Mechanics' Liens - Topic 8083

Practice - Pre-trial application - Order for discovery - [see Practice - Topic 5206 ].

Mechanics' Liens - Topic 8812

Costs - Denial of - Grounds - [see Practice - Topic 7024 ].

Practice - Topic 4176.1

Discovery - Examination - General - Time of examination - [See Practice - Topic 5206 ].

Practice - Topic 5206

Trials - Postponement of trial - The applicant was a party in two matters that were commenced pursuant to the Mechanics' Lien Act and were consolidated - The matters had been set down for trial by order of Justice Hall - The trial date was set for April 27, 2015, but was moved by consent of the parties to May 19, 2015 - As well, discoveries were not completed in accordance with the timelines of Justice Hall's order - The applicant applied pursuant to rules 32.02, 42 and 20, requesting that the court order new trial dates and set down timelines for the resumption and conclusion of all discovery - The applicant submitted that it was not ready for trial, as it required discoveries of both Baker and Kelly - The applicant had not attended the discoveries of those two individuals on the basis that such discoveries were scheduled on dates outside the time lines prescribed by Justice Hall's order - Further, the applicant took the position that the discovery of Kelly was too close to the trial date to allow for proper trial preparation - The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the application - Because all parties agreed to the discovery dates, and because the timelines were imposed solely for the benefit of the parties, it would have been reasonable for the applicant to attend the discoveries of Baker and Kelly, and for the parties to then seek court approval of the change in timeline for the completion of discoveries - The applicant had the transcript of the Baker discovery and the transcript of Kelly's discovery was supposed to be provided to the applicant by May 11, 2015 - The applicant did not indicate what further information it needed to elicit from Baker and Kelly in a discovery, and how such could assist in its trial - The injustice to the applicant of proceeding to trial did not justify interfering with the remaining parties' substantive right to proceed to trial - The court was not persuaded that the entitlement to an expedited trial under the Mechanics' Lien Act should be compromised due to applicant's failure to attend discoveries, the dates for which the applicant had agreed to - Trial fairness could be maintained by accommodations in scheduling in the course of the trial.

Practice - Topic 7024

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - General - The applicant applied pursuant to rules 32.02, 42 and 20 , requesting that the court order new trial dates and set down timelines for the resumption and conclusion of all discovery - The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the application - Although the applicant was unsuccessful, considering that the circumstances of the application emanated from collective noncompliance with time lines of a court order, there would be no order as to the costs of the application - See paragraph 48.

Cases Noticed:

Pennecon Energy Ltd. v. Metal World Inc. et al. (2013), 344 Nfld. & P.E.I.R. 32; 1068 A.P.R. 32; 2013 NLCA 67, refd to. [para. 5].

Brook Construction (2007) Inc. v. Blackwood Contractors Ltd. et al. (2015), 365 Nfld. & P.E.I.R. 82; 1138 A.P.R. 82; 2015 NLCA 18, refd to. [para. 14].

Tarrant v. Manufacturer's Life Insurance Co. (1993), 113 Nfld. & P.E.I.R. 162; 353 A.P.R. 162 (Nfld. T.D.), appld. [para. 19].

Allen v. Stone (1996), 146 Nfld. & P.E.I.R. 308; 456 A.P.R. 308 (Nfld. C.A.), refd to. [para. 19].

Stone Sapphire Ltd. v. Transglobal Communications Group Inc. et al. (2008), 451 A.R. 100; 2008 ABQB 397, refd to. [para. 31].

Statutes Noticed:

Mechanics' Lien Act, R.S.N.L. 1990, c. M-3, sect. 36(1) [para. 4]; sect. 36(2) [para. 45]; sect. 43(2) [para. 43].

Rules of Court (Nfld. & Lab.), Supreme Court Rules, rule 20 [para. 1]; rule 30.13 [para. 32]; rule 32.02, rule 42 [para. 1].

Supreme Court Rules (Nfld. & Lab.) - see Rules of Court (Nfld. & Lab.), Supreme Court Rules.

Counsel:

Rodney Zdebiak and Gregory Moores, for Consbec Inc.;

Suzanne Orsborn, for Her Majesty the Queen;

Heidi Wells and Peter O'Flaherty, for Mike Kelly & Sons Ltd.;

Michael Cabot, for Humber Valley Aggregates and Asphalt Ltd. and Humber Valley Paving Ltd.

This application was heard on May 6 and 8, 2015, at St. John's, N.L., before Marshall, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following reasons for judgment orally on May 12, 2015.