Starland Contracting Inc. v. 1581518 Ontario Ltd. et al., (2009) 252 O.A.C. 19 (DC)

JudgeJ. Wilson, Swinton and van Rensburg, JJ.
CourtSuperior Court of Justice of Ontario (Canada)
Case DateApril 24, 2009
JurisdictionOntario
Citations(2009), 252 O.A.C. 19 (DC)

Starland Contracting v. 1581518 Ont. (2009), 252 O.A.C. 19 (DC)

MLB headnote and full text

Temp. Cite: [2009] O.A.C. TBEd. JN.104

In The Matter Of the Construction Lien Act, R.S.O. 1990, c. C-30, as amended

Starland Contracting Inc. (plaintiff/respondent on appeal) v. 1581518 Ontario Ltd ., Business Development Bank of Canada and Mamdouh Akhras (defendants/ appellant )

(015/09)

Indexed As: Starland Contracting Inc. v. 1581518 Ontario Ltd. et al.

Court of Ontario

Superior Court of Justice

Divisional Court

J. Wilson, Swinton and van Rensburg, JJ.

June 15, 2009.

Summary:

In a construction lien action, a defendant/plaintiff by counterclaim appealed from a Master's decision striking its statement of defence and counterclaim for failure to comply with court orders, and in particular a "last chance" order requiring the fulfilment of undertakings and particulars of the damages claimed in the counterclaim.

The Ontario Divisional Court allowed the appeal.

Courts - Topic 1125

Masters - Appeals from - Jurisdiction - In a construction lien action, a defendant/plaintiff by counterclaim appealed from a Master's decision striking its statement of defence and counterclaim for failure to comply with court orders, and in particular a "last chance" order requiring the fulfilment of undertakings and particulars of the damages claimed in the counterclaim - Section 71 of the Construction Lien Act (CLA) provided for an appeal to the Divisional Court from a judgment or order on a motion to oppose confirmation of a report under the Act, if the amount claimed was over $1,000 - Section 67(3) provided that, except where inconsistent with the CLA, and subject to s. 67(2), the Courts of Justice Act (CJA) and the rules of court applied to pleadings and proceedings under the CLA - The appeal was scheduled to be heard by a panel of the Divisional Court, although s. 21(2) of the CJA provided that an appeal of a final order of a master "may" be made to a single judge of the Divisional Court - The Ontario Divisional Court held that any appeal of a master's final order should be heard by a single judge of the court - This approach was consistent with the court's practice regarding appeals from the master, and with the objective of s. 67(1) of the CLA to promote prompt resolution in construction lien matters - See paragraphs 2 to 5.

Courts - Topic 7504

Provincial courts - Ontario - Divisional Court - Jurisdiction - Respecting appeals from final orders - [See Courts - Topic 1125 ].

Mechanics' Liens - Topic 8162

Practice - Appeals - Jurisdiction - [See Courts - Topic 1125 ].

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - [See all Practice - Topic 5376 ].

Practice - Topic 5376

Dismissal of action - Grounds - General and want of prosecution - Failure to comply with case management time lines - The Ontario Divisional Court stated that the court had authority to dismiss an action or defence as a sanction for default of court orders and failure to comply with case management timetables - The decision to strike a claim or defence was one of discretion, which had to be exercised on proper principles - See paragraphs 23 and 24.

Practice - Topic 5376

Dismissal of action - Grounds - General and want of prosecution - Failure to comply with case management time lines - The Ontario Divisional Court stated that "The ability of the court to control the litigation process is particularly important in matters that are case managed, such as construction lien actions. The authority to dismiss proceedings for repeated failure to comply with court orders and flagrant disregard for the court process is an essential management tool. A case management judge or master who has a continuous connection with an action, the parties and their counsel is well-positioned to monitor the conduct of the participants throughout the proceedings, and to determine whether anyone is deliberately stalling, showing bad faith or abusing the process of the court when deadlines are missed and defaults occur under procedural orders. A decision to dismiss an action or strike a pleading because of such defaults is entitled to deference, unless that decision is shown to have been exercised on wrong principles or based upon a misapprehension of the evidence such that there is a palpable and overriding error." - See paragraph 26.

Practice - Topic 5376

Dismissal of action - Grounds - General and want of prosecution - Failure to comply with case management time lines - The Ontario Divisional Court stated that "Where an order is made by a court on a 'last chance' basis, the defaulting party is given fair warning as to the possible consequences of a failure to comply with its terms. Unless the court has the authority to follow through with the threatened sanction, its ability to control its process will be undermined. That said, the fact that an order has been described as a 'last chance' order is not determinative where a party seeks to strike the other party's pleadings. In each case the discretion of the master or judge must be exercised having regard to the circumstances prevailing at the time the matter is brought back to court, including whether and to what extent the party remains in default of the order in question." - See paragraph 34.

Cases Noticed:

Schultz (Benjamin) & Associates Ltd. v. Samet (1991), 52 O.A.C. 180; 4 O.R.(3d) 771 (Div. Ct.), dist. [para. 4].

Wood Lumber Co. (Ontario) Ltd. v. Eng et al. (1999), 125 O.A.C. 193; 45 O.R.(3d) 795 (Div. Ct.), dist. [para. 4].

G.C. Rentals v. Falco Steel Fabricators Inc., [2002] O.J. No. 1055, dist. [para. 4].

Meo (R.) & Associates v. Gottenu Developments Ltd. et al., [2000] O.J. No. 782, dist. [para. 4].

Furlan et al. v. Structform International Ltd., [2006] O.J. No. 2925, dist. [para. 4].

Select Acoustic Supply Inc. v. College of Physicians and Surgeons (Ont.) et al., [2008] O.A.C. Uned. 304 (Div. Ct.), dist. [para. 4].

Zeitoun et al. v. Economical Insurance Group (2008), 236 O.A.C. 76; 91 O.R.(3d) 131 (Div. Ct.), affd. [2009] O.A.C. Uned. 265; 2009 ONCA 415, refd to. [para. 7].

Vacca v. Banks, [2005] O.A.C. Uned. 43 (Div. Ct.), refd to. [para. 18].

Broniek-Harren et al. v. Osborne, [2008] O.T.C. Uned. 862 (Sup. Ct.), refd to. [para. 25].

Tizard Estate v. Ontario, [2003] O.J. No. 3010 (Sup. Ct. Master), refd to. [para. 27].

Eloro Resources Ltd. v. Sovereign Capital Group (Ont.) Ltd., [2004] O.T.C. Uned. 137; 2004 CarswellOnt 544 (Sup. Ct. Master), refd to. [para. 27].

Schindler Elevator Co. v. 1147335 Ontario Inc., [2007] O.T.C. Uned. M73 (Sup. Ct. Master), affd. 2008 CarswellOnt 5796 (Div. Ct.), refd to. [para. 31].

Statutes Noticed:

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 21(2) [para. 3].

Counsel:

Marco Drudi, for the respondent;

Richard P. Quance, for the appellant.

This appeal was heard at Toronto, Ontario, on April 24, 2009, by J. Wilson, Swinton and van Rensburg, JJ., of the Ontario Divisional Court, who delivered the following decision on June 15, 2009.

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7 practice notes
  • Barthe v. National Bank Financial Ltd., (2015) 359 N.S.R.(2d) 258 (CA)
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • 14 Mayo 2015
    ...180 B.C.A.C. 316; 297 W.A.C. 316; 2003 BCCA 229, refd to. [para. 183]. Starland Contracting Inc. v. 1581518 Ontario Ltd. et al. (2009), 252 O.A.C. 19 (Div. Ct.), refd to. [para. 184]. Bell ExpressVu Limited Partnership v. Torroni et al. (2009), 246 O.A.C. 212; 2009 ONCA 85, refd to. [para. ......
  • Court Of Appeal Summaries (May 25 ' 29, 2020)
    • Canada
    • Mondaq Canada
    • 10 Junio 2020
    ...Rules of Professional Conduct, Rules 3.4-2, 3.4-3, Hryniak v. Mauldin, 2014 SCC 7, Starland Contracting Inc. v. 1581518 Ontario Ltd. (2009), 252 OAC 19 (Div. Ct.) Khan v. Law Society of Ontario, 2020 ONCA 320 Keywords: Torts, Solicitor Negligence, Civil Procedure, Striking Pleadings, Frivol......
  • Dew Point Insulation Systems Inc. v. JV Mechanical Ltd. et al., (2009) 259 O.A.C. 179 (DC)
    • Canada
    • Ontario Superior Court of Justice of Ontario (Canada)
    • 12 Agosto 2009
    ...Inc. (2000), 132 O.A.C. 231; 49 O.R.(3d) 198 (C.A.), refd to. [para. 15]. Starland Contracting Inc. v. 1581518 Ontario Ltd. et al. (2009), 252 O.A.C. 19 (Div. Ct.), consd. [para. Shoppers Mortgage and Loan Corp. v. Health First Wellington Square Ltd. et al. (1995), 80 O.A.C. 346; 23 O.R.(3d......
  • Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310
    • Canada
    • Court of Appeal (Ontario)
    • 25 Mayo 2020
    ...for the better part of a year. As the Divisional Court appropriately observed in Starland Contracting Inc. v. 1581518 Ontario Ltd. (2009), 252 O.A.C. 19 (Div. Ct.), at para. The authority to dismiss proceedings for repeated failure to comply with court orders and flagrant disregard for the ......
  • Request a trial to view additional results
6 cases
  • Barthe v. National Bank Financial Ltd., (2015) 359 N.S.R.(2d) 258 (CA)
    • Canada
    • Nova Scotia Court of Appeal of Nova Scotia (Canada)
    • 14 Mayo 2015
    ...180 B.C.A.C. 316; 297 W.A.C. 316; 2003 BCCA 229, refd to. [para. 183]. Starland Contracting Inc. v. 1581518 Ontario Ltd. et al. (2009), 252 O.A.C. 19 (Div. Ct.), refd to. [para. 184]. Bell ExpressVu Limited Partnership v. Torroni et al. (2009), 246 O.A.C. 212; 2009 ONCA 85, refd to. [para. ......
  • Dew Point Insulation Systems Inc. v. JV Mechanical Ltd. et al., (2009) 259 O.A.C. 179 (DC)
    • Canada
    • Ontario Superior Court of Justice of Ontario (Canada)
    • 12 Agosto 2009
    ...Inc. (2000), 132 O.A.C. 231; 49 O.R.(3d) 198 (C.A.), refd to. [para. 15]. Starland Contracting Inc. v. 1581518 Ontario Ltd. et al. (2009), 252 O.A.C. 19 (Div. Ct.), consd. [para. Shoppers Mortgage and Loan Corp. v. Health First Wellington Square Ltd. et al. (1995), 80 O.A.C. 346; 23 O.R.(3d......
  • Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310
    • Canada
    • Court of Appeal (Ontario)
    • 25 Mayo 2020
    ...for the better part of a year. As the Divisional Court appropriately observed in Starland Contracting Inc. v. 1581518 Ontario Ltd. (2009), 252 O.A.C. 19 (Div. Ct.), at para. The authority to dismiss proceedings for repeated failure to comply with court orders and flagrant disregard for the ......
  • Gomommy Software.com Inc. v. Blackmont Capital Inc. et al., 2014 ONSC 2478
    • Canada
    • Ontario Superior Court of Justice of Ontario (Canada)
    • 15 Abril 2014
    ...decide actions on their merits." - See paragraphs 50 to 52. Cases Noticed: Starland Contracting Inc. v. 1581518 Ontario Ltd. et al. (2009), 252 O.A.C. 19 (Div. Ct.), refd to. [para. 2, footnote Zeitoun et al. v. Economical Insurance Group (2009), 236 O.A.C. 76; 91 O.R.(3d) 131 (Div. Ct.), a......
  • Request a trial to view additional results
1 firm's commentaries
  • Court Of Appeal Summaries (May 25 ' 29, 2020)
    • Canada
    • Mondaq Canada
    • 10 Junio 2020
    ...Rules of Professional Conduct, Rules 3.4-2, 3.4-3, Hryniak v. Mauldin, 2014 SCC 7, Starland Contracting Inc. v. 1581518 Ontario Ltd. (2009), 252 OAC 19 (Div. Ct.) Khan v. Law Society of Ontario, 2020 ONCA 320 Keywords: Torts, Solicitor Negligence, Civil Procedure, Striking Pleadings, Frivol......

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