Olson (Stuart) Dominion Construction Ltd. v. Structal Heavy Steel, 2013 MBQB 48

• Judge: Schulman, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: February 28, 2013
• Jurisdiction: Manitoba
• Citations: 2013 MBQB 48;(2013), 289 Man.R.(2d) 194 (QB)

Olson Dominion Constr. v. Structal (2013), 289 Man.R.(2d) 194 (QB)

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. MR.021

Stuart Olson Dominion Construction Ltd., formerly known as Dominion Construction Company Inc. (applicant) v. Structal Heavy Steel, A Division of Canam Group Inc. (respondent)

(CI 12-01-80434; 2013 MBQB 48)

Indexed As: Olson (Stuart) Dominion Construction Ltd. v. Structal Heavy Steel

Manitoba Court of Queen's Bench

Winnipeg Centre

Schulman, J.

February 28, 2013.

Summary:

A general contractor (DC) applied for an order that the $15,570,974.53 lien bond it had filed in order to obtain removal of a builder's lien, filed by a sub-contractor (Structal), satisfied DC's trust obligation under the Builders' Liens Act. Structal opposed DC's application and brought a motion for an order that DC or the owner pay to it all or part of a progress payment to which DC appeared to be entitled.

The Manitoba Court of Queen's Bench allowed DC's application and dismissed Structal's motion.

Mechanics' Liens - Topic 7607

Trust fund - The fund - Set-off - A general contractor (DC) applied for an order that the $15,570,974.53 lien bond it had filed in order to obtain removal of a builder's lien filed by a sub-contractor (Structal), satisfied DC's trust obligation under s. 4(3)(a) of the Builders' Liens Act - Structal opposed DC's application and brought a motion for an order that DC or the owner pay to it all or part of a $4,000,000 progress payment to which DC appeared to be entitled - The parties were involved in litigation under the contract - The Manitoba Court of Queen's Bench allowed DC's application and dismissed Structal's motion - The payment did not have to be made twice (set-off was allowed) - After DC filed an application for an order, Structal voluntarily discharged its lien - Further, it would be commercially unreasonable and contrary to the Act's intention to require DC in effect to pay $8,000,000 to secure payment of Structal's claim for $4,000,000 - Further, the Act did not create an ordinary trust for which Structal had an "unrestricted beneficial interest." - It created a trust to which Structal "may eventually become entitled".

Cases Noticed:

PCL Constructors Western Inc. v. Uni-Struct Fabrications Ltd. et al. (1989), 60 Man.R.(2d) 314 (Q.B.), folld. [para. 12].

Bennett (L.W.) Co. Ltd. v. University of Western Ontario (1961), 31 D.L.R.(2d) 246 (Ont. C.A.), folld. [para. 13].

Nicholls (P.) Enterprises Ltd. (Bankrupt), Re (1985), 8 O.A.C. 74; 50 O.R.(2d) 470 (C.A.), refd to. [para. 13].

Provincial Drywall Supply Ltd. v. Gateway Construction Co. et al. (1993), 85 Man.R.(2d) 116; 41 W.A.C. 161 (C.A.), refd to. [para. 13].

Ram Construction Inc. v. JBLK Enterprises Inc., [2010] B.C.T.C. Uned. 1333; 94 C.L.R.(3d) 297; 2010 BCSC 1333, refd to. [para. 14].

PCL Constructors Westcoast Inc. v. Norex Civil Contractors Inc. et al., [2009] B.C.T.C. Uned. 95; 76 C.L.R.(3d) 184; 2009 BCSC 95, refd to. [para. 14].

Ariss (Len) & Co. Ltd. v. Peloso et al. (1958), 14 D.L.R.(2d) 178 (Ont. C.A.), refd to. [para. 15].

Glenko Enterprises Ltd. v. Keller (2000), 150 Man.R.(2d) 1; 230 W.A.C. 1; 2000 MBCA 7, refd to. [para. 16].

GRH Ventures Ltd. v. De Neve (1987), 46 Man.R.(2d) 100 (C.A.), refd to. [para. 16].

Kim et al. v. Lakeview Hotel Development Inc. et al. (1997), 119 Man.R.(2d) 150 (Q.B.), refd to. [para. 22].

Statutes Noticed:

Builders' Liens Act, R.S.M. 1987, c. B-91; C.C.S.M., c. B-91, sect. 4(3)(a) [para. 3].

Counsel:

Dave G. Hill and Michael J. Weinstein, for the applicant;

Kevin T. Williams and Kyla A. Pedersen, for the respondent;

William G. Haight, on watching brief for the owner.

This application was heard by Schulman, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following decision on February 28, 2013.