Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff sought payment under a construction contract and filed a builders lien and Certificate of Pending Litigation (CPL) against the property.

• Defendants argued the action should be dismissed for want of prosecution due to a 3.5-year delay.

• Delay was attributed to plaintiff’s former counsel’s negligence, not the plaintiff’s intent or conduct.

• The CPL was challenged under s. 252 of the Land Title Act, alleging it was unjustly tying up the property.

• Court considered whether informal steps like a Notice to Mediate qualified in assessing litigation activity.

• Neither the dismissal of the action nor removal of the CPL was granted due to lack of demonstrated prejudice and excusable delay.

Facts and outcome of the case

Background and contract dispute

The plaintiff, 1149213 B.C. Ltd. doing business as STA Building Technologies, entered into an agreement on October 18, 2020, with the defendant Vancouver Aviation College Inc. (VAC) to supply and install windows, doors, glass, and stair railings for a construction project located on property owned by Pitt Meadows Airport Society. VAC’s CEO, Mostafa Khosrowtaj, was also named as a defendant.

After the plaintiff completed part of the contracted work, it claimed it was owed $38,250 and filed a Notice of Civil Claim (NOCC) on November 8, 2021. The next day, it registered a builders lien and a Certificate of Pending Litigation (CPL) against the property. VAC and Khosrowtaj responded with a counterclaim of over $1.2 million, alleging misrepresentation, project abandonment, overpayment, and lost business opportunities. Pitt Meadows Airport Society did not take a position in the dispute.

Delay in litigation and procedural motion

The case saw limited movement for over two years. In February 2024, the plaintiff served a Notice to Mediate, which received no response. Later that year, the defendants filed a motion seeking to dismiss the action for want of prosecution under Rule 22-7(7) of the Supreme Court Civil Rules, or alternatively, to cancel the CPL under s. 252 of the Land Title Act due to inactivity.

The plaintiff explained the delay was caused by its former legal counsel, who admitted under affidavit to failing to take necessary steps in the litigation. The court accepted this as a credible explanation, noting that the plaintiff itself had consistently expressed intent to pursue the claim, including through informal efforts like the Notice to Mediate and document production.

Court's findings and ruling

The court found that while the delay was significant, it was neither inordinate nor inexcusable in the circumstances. The delay resulted from the plaintiff’s previous lawyer’s negligence and not a tactical decision or bad faith. The court also rejected the argument that the plaintiff was misusing the CPL to pressure the defendants, noting a legitimate intention to resolve the dispute.

On the CPL issue, although the statutory threshold under s. 252 was met, the court held that it would not be in the interests of justice to cancel the CPL. The plaintiff’s claim under the Builders Lien Act was not frivolous, and there was no substantial evidence of prejudice to the defendants due to the CPL remaining in place. However, the defendants were granted liberty to reapply if they could provide more detailed evidence of prejudice.

Outcome

The court dismissed both the motion to strike the action for want of prosecution and the application to cancel the CPL. Costs were ordered to be “in the cause,” meaning they will be determined at the conclusion of the litigation. The plaintiff prevailed on both procedural points, preserving its right to pursue its claims and maintain the CPL on the property.