Executive Summary: Key Legal and Evidentiary Issues

• Plaintiff delayed prosecution of the builder’s lien claim for over 18 months after pleadings closed.

• Court found the delay inordinate and inexcusable, triggering a presumption of serious prejudice.

• Lien and Certificate of Lis Pendens were already vacated and replaced by $15,398 held in the defendant’s lawyer’s trust account.

• Plaintiff failed to comply with Civil Procedure Rule 23.11 by filing motion response materials late.

• Builder’s lien claims impose a heightened obligation to proceed expeditiously due to their prejudgment effect on property.

• Although not dismissing the action, the court imposed a deadline for disclosure with threat of dismissal if unmet.

Facts and procedural history

JPA Construction Limited filed a Claim of Lien under the Builder’s Lien Act on October 31, 2022, and perfected the lien on January 5, 2023, by commencing an action and registering a Certificate of Lis Pendens (CLP). On February 22, 2023, JPA Construction and the defendant, Joseph Hanna Saad, consented to an Order vacating the Claim of Lien and CLP, with the defendant paying $15,398 into his lawyer’s trust account as security.

Pleadings among the plaintiff, defendant, and third party (Jean Alphonce) were completed by June 14, 2023. After this, the plaintiff failed to take any steps to advance the action. On December 16, 2024, the defendant moved for dismissal for want of prosecution.

The plaintiff filed its response materials only on December 13, 2024, one business day before the hearing. This filing contravened Civil Procedure Rule 23.11, which requires response materials to be filed five days before the hearing. The court allowed the late filing but ordered the plaintiff to pay $500 in costs for failing to comply with the rule.

Legal framework and issues

Civil Procedure Rule 82.18 allows dismissal of an action not brought to trial or hearing in a reasonable time. The court followed the test from Clarke v. Ismaily, as reaffirmed in Young v. Merrill Lynch Canada Inc., requiring the defendant to show inordinate delay, inexcusable delay, and serious prejudice.

Because builder’s liens affect a property owner’s rights without proving the merits of the claim, courts apply a stricter standard for delay. The decision cited Kaulback v. Burke and Tam v. PD Plumbing & Heating to reinforce that lien claimants must act with urgency due to the prejudicial effect on property owners.

Decision and reasoning

Justice Norton found that the plaintiff’s delay of more than 18 months was inordinate and inexcusable. The plaintiff failed to engage in communication or initiate document disclosure and offered no evidence to explain the delay. The court concluded this conduct raised a presumption of serious prejudice, which had not been rebutted.

Although the lien and CLP had already been vacated and replaced by funds in trust, the court ruled this did not eliminate the prejudice. The judge ordered the $15,398 held in trust returned to the defendant, finding that the plaintiff had forfeited the benefit of that security by failing to prosecute the claim.

However, the court declined to dismiss the entire action. While the delay was inexcusable, the judge was not persuaded it was so inordinate as to justify full dismissal. The plaintiff was ordered to produce an Affidavit Disclosing Documents by February 15, 2025. If this deadline is missed, the action will be dismissed on a motion by correspondence filed by February 28, 2025.

The court awarded $750 in costs to the defendant for the motion and an additional $500 for the late filing, to be paid forthwith and in any event of the cause.

Conclusion

The court emphasized the special duty of lien claimants to prosecute their claims without delay due to the significant interim effect on property rights. The lien in this case was not reinstated, and while the action continues, it remains at risk of dismissal if the plaintiff does not comply with the court’s disclosure order.