T.J.'s Electric Ltd. v. SAR Petroleum Inc. et al., (2003) 270 N.B.R.(2d) 317 (TD)

• Judge: Rideout, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: December 22, 2003
• Jurisdiction: New Brunswick
• Citations: (2003), 270 N.B.R.(2d) 317 (TD);2003 NBQB 461

TJ's Electric v. SAR Petroleum (2003), 270 N.B.R.(2d) 317 (TD);

    270 R.N.-B.(2e) 317; 710 A.P.R. 317

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2004] N.B.R.(2d) TBEd. JA.032

In The Matter Of the Mechanics' Lien Act, R.S.N.B. 1973, c. M-6.

T.J.'s Electric Limited (plaintiff) v. SAR Petroleum Inc., Paul Blades, John Salsbury, Curtis MacNeil and Lisa Lowry (defendants) and Eel River Bar First Nation, and Eel River Bar Development Corporation Inc., acting on behalf of Eel River Bar First Nation (owner)

(M/C/0499/03)

Northeast Flooring Limited (plaintiff) v. SAR Petroleum Inc., Paul Blades, John Salsbury, Curtis MacNeil and Lisa Lowry (defendants)

(M/C/0863/03; 2003 NBQB 461)

Indexed As: T.J.'s Electric Ltd. v. SAR Petroleum Inc. et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Rideout, J.

December 29, 2003.

Summary:

SAR was the general contractor on a con­struction project on Crown lands. TJ and Northeast were unpaid subcontractors. TJ filed a mechanics' lien. Northeast obtained judgment against SAR in Nova Scotia. Both subcontractors sought summary judgment against SAR and sought a favourable ruling that notwithstanding a lien was invalid as against Crown lands, the trust provisions of s. 3 of the Mechanics' Lien Act was a stand-alone provision which applied whether or not a lien could be filed. The two actions were tried together.

The New Brunswick Court of Queen's Bench, Trial Division, granted TJ summary judgment against SAR. Summary judgment was denied for Northeast. The appropriate remedy was to enforce the Nova Scotia judgment rather than obtaining another one in New Brunswick. The court held that s. 3 of the Act was a stand-alone provision. The subcontractors were entitled to the protection of s. 3 notwithstanding they were not en­titled to a lien because the land was Crown land.

Mechanics' Liens - Topic 2823

The holdback - Entitlement - Invalid or unenforceable lien - The New Brunswick Court of Queen's Bench, Trial Division, held that the trust provisions of s. 3 of the Mechanics' Lien Act remained available to subcontractors notwithstanding that they had no right to file a lien because Crown lands were involved - Section 3 was a stand-alone provision - See paragraphs 27 to 44.

Practice - Topic 5702

Judgments and orders - Summary judg­ments - Jurisdiction or when available or appropriate - A subcontractor obtained judgment against a contractor in Nova Scotia, then sought summary judgment in New Brunswick - The New Brunswick Court of Queen's Bench, Trial Division, held that summary judgment was inap­propriate - The subcontractor should seek enforcement of the Nova Scotia judgment rather than seeking another judgment in New Brunswick - See paragraph 26.

Practice - Topic 5705

Judgments and orders - Summary judg­ments - Requirement that question at issue be beyond doubt - A subcontractor sought summary judgment against the contractor and its directors (defendants) for monies owing on a construction project - The subcontractor's affidavit itemized the un­paid invoices - The defendants chose not to respond to any of the allegations - The defence filed was limited to a blanket denial of all of the subcontractor's claims - The New Brunswick Court of Queen's Bench, Trial Division, granted summary judgment against SAR - The subcontrac­tor's pleadings and affidavit clearly estab­lished its claim - A defence consisting of a simple denial was insufficient - The defendants should have advanced a defence on the merits - Absent that, the subcontrac­tor's claim was unanswerable and summary judgment was granted as the result was not in doubt - See paragraphs 8 to 25.

Practice - Topic 5713

Judgments and orders - Summary judg­ments - Burden on defendant - [See Prac­tice - Topic 5705 ].

Cases Noticed:

Cannon v. Lange et al. (1998), 203 N.B.R.(2d) 121; 518 A.P.R. 121 (C.A.), refd to. [para. 20].

Ripulone v. Pontecorvo (1989), 104 N.B.R.(2d) 56; 261 A.P.R. 56 (C.A.), refd to. [para. 21].

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. 22].

Agnew et al. v. Dow Chemical Co. et al. (1991), 116 N.B.R.(2d) 1; 293 A.P.R. 1 (C.A.), refd to. [para. 32].

Johnston et al. v. State Farm Mutual Auto­mobile Insurance Co. (1994), 153 N.B.R.(2d) 385; 392 A.P.R. 385 (T.D.), refd to. [para. 33].

Western Surety Co. v. National Bank of Canada, [1996] N.B.R.(2d) (Supp.) No. 57 (T.D.), refd to. [para. 34].

Canadian Bank of Commerce v. T. McAvi­ty & Sons Ltd., [1959] S.C.R. 478, refd to. [para. 40].

Minneapolis-Honeywell Regulators Co. v. Empire Brothers Manufacturing Co., [1955] S.C.R. 694, refd to. [para. 41].

Fundy Ventilation Ltd. v. Brunswick Con­struction Ltd., Fraser Co. and Minister of National Revenue (N.B.) (1982), 40 N.B.R.(2d) 484; 105 A.P.R. 484 (C.A.), refd to. [para. 42].

Harding Carpets Ltd. v. Saint John Tile & Terrazzo Co. et al. (1987), 78 N.B.R.(2d) 323; 198 A.P.R. 323 (T.D.), refd to. [para. 42].

Bank of Nova Scotia v. O. & O. Contrac­tors Ltd. (1965), 55 W.W.R.(N.S.) 103 (B.C.C.A.), refd to. [para. 43].

Statutes Noticed:

Mechanics' Lien Act, R.S.N.B. 1973, c. M-6, sect. 3 [para. 27]; sect. 47 [para. 15].

Rules of Court (N.B.), rule 22.02(1), rule 22.02(3), rule 22.04(1) [para. 18].

Authors and Works Noticed:

Macklem, D.N., and Bristow, D.I., Me­chanics' Liens in Canada (4th Ed. 1978), pp. 2, 3 [para. 39].

Counsel:

Eric LeDrew, for the plaintiff, T.J.'s Elec­tric Ltd.;

Julian A.G. Dickson, Q.C., for the defen­dants, SAR Petroleum Inc., Paul Blades, John Salsbury and Lisa Lowry;

George L. Cooper, for the plaintiff, North­east Flooring Ltd.

This matter was heard on December 22, 2003, before Rideout, J., of the New Bruns­wick Court of Queen's Bench, Trial Divi­sion, Judicial District of Moncton, who delivered the following judgment on Decem­ber 29, 2003.