Ontario Civil

Construction Law

Construction and builders’ liens

Practice on enforcement of lien

Deviation from fundamental principle that final judgment marks end of litigation not warranted

Action was brought to enforce construction lien for materials and services supplied by plaintiff. Parties came to agreement to settle action on eve of trial. Defendants brought motion to enforce terms of minutes of settlement. Motion judge released endorsement, determining, among other things, that settlement agreement was valid and enforceable. No order was signed, issued, and entered in respect of endorsement, and no appeal was brought from it. Defendant brought motion for order directing rehearing of motion due to motion judge’s retirement before hearing was completed, or for order setting aside endorsement and re-listing action for trial. Plaintiff brought cross-motion for relief including order carrying endorsement into operation. Motion dismissed and cross-motion granted. With respect to defendant’s request for rehearing of motion, s.123 of Courts of Justice Act was not engaged in that motion judge gave decision. There was lengthy and unexplained delay in defendant moving, of approximately two years before present motion was brought, and there was no new evidence that would form basis for granting relief under R.59.06 of Rules of Civil Procedure. There was no basis upon which it could be concluded that defendant was denied natural justice. Defendant failed to demonstrate circumstances which would warrant deviation from fundamental principle that final judgment, unless appealed, marks end of litigation.

Patra Ironworks & Railings v. Laurin General Contractor (2017), 2017 CarswellOnt 12477, 2017 ONSC 1690, Daley R.S.J. (Ont. S.C.J.).


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