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Setting Down for Trial

Niagara Millwork Inc. v. Urbacon 2017 Ont SCJ (Master)

In Toronto, the normal practice for a construction lien action is to move for an order for a reference before a Construction Lien Master. However, a claimant may still choose the ordinary method for moving an action forward for ultimate trial by a judge. In this case, the plaintiff chose the ordinary method. It then decided to set the matter down for trial without discoveries. The defendant brought a motion to discover the plaintiff and the plaintiff then brought its own motion for discovery of the defendant. In each case, the parties needed leave, under section 67(2) of the Construction Lien Act, to bring the motion and in each case leave was granted. The Master granted leave because he determined that discoveries were necessary to provide particulars of the allegations of deficiencies and delay and could also lead to a resolution of some of the issues in dispute. The Master allowed the defendant’s motion, but denied the plaintiff’s motion. The plaintiff was precluded from its discovery by virtue of Rule 48.04(1) (i.e. once a party sets down a matter for trial, the party is deemed to have been prepared for trial and is not entitled to take a fresh step in the action). There was no substantial and unexpected change in circumstances; rather, the plaintiff simply changed its mind.

Written by Jonathan Speigel Jonathan Speigel, the founding partner of Speigel Nichols Fox LLP, leads the litigation and construction practices.