Motion by third party to validate fourth party claim nunc pro tunc granted

Ontario civil | Construction Law

Construction and builders’ liens

Practice on enforcement of lien

Motion by third party to validate fourth party claim nunc pro tunc granted

Defendant in action brought under Construction Lien Act added third party without leave. Claim was not limited to contribution and indemnity. Third party added fourth parties without seeking leave. Fourth party claim was limited to contribution and indemnity. Plaintiff’s statement of claim and claim for lien were dismissed. Order said third party claim survived but said nothing about fourth party claim. Motion by third party to validate fourth party claim nunc pro tunc was granted. Fourth parties appealed on basis that limitation period for third party to bring claim had expired before leave was sought. Appeal dismissed. Motion judge correctly found that intention of order dismissing statement of claim and claim for lien, made on consent of third party, was to continue action on “ordinary track”. After disposing of lien claim entirely, order stated that third party claim, seeking damages for breach of contract and negligence in addition to contribution and indemnity, would “survive”. Since only claims for contribution and indemnity are permitted in construction lien third party proceedings under s. 56 of Act, third party claim that asserts other claims can only proceed on ordinary track. Accordingly, motion judge adopted only reasonable interpretation that could be given to order. Decision to allow third party to continue fourth party claim was correct. However, since third party proceedings continued on ordinary track, there was no need for nunc pro tunc order for leave.
Bentivoglio v. Groupe Brigil Construction (2017), 2017 CarswellOnt 7511, 2017 ONCA 413, H.S. LaForme J.A., K. van Rensburg J.A., and Grant Huscroft J.A. (Ont. C.A.); affirmed (2016), 2016 CarswellOnt 3318, 2016 ONSC 1237, W.D. Newton J. (Ont. S.C.J.).

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