Divisional Court upholds motions decision striking the plaintiff’s claim and discharging its claim for lien.

Date: February 2023

A Divisional Court decision released earlier this week upheld a motions decision of Associate Justice Wiebe granting the Respondents’ motion pursuant to s. 47 of the Construction Act to strike the Appellant’s claim and discharge its claim for lien.

By way of background, on the motion, the Associate Justice found that there was no triable issue with respect to the Appellant’s lien claim, contract claim, and claim for quantum meruit because, based on the evidence, there was no contract between the Respondents and the Appellant, the entity that registered the lien. The Respondents had no knowledge or dealings with the Appellant and the Appellant’s name did not appear on any invoice or document given to the Respondents. On the claim for unjust enrichment, the Associate Justice found that there was a triable issue, but that the proceeding was vexatious and an abuse of process.

Essentially, the Appellant had been using another registered business name in its dealings with the Respondents and other homeowners, in a “deceptive and coercive scheme” whereby the Appellant would grossly overcharge for, among other things, “damage restoration” services.

On appeal, the Divisional Court found that the Associate Justice did not err in considering the Appellant’s conduct throughout the whole history of the matter and not just whether there was originally a good cause of action. The Associate Justice found that the Appellant’s use off the court’s process was the final step in a scheme that was grounded in oppressive and unfair practices. The Divisional Court saw no issue with this finding.

The Divisional Court also agreed that allowing the Appellant to pursue its action in the circumstances would bring the administration of justice into disrepute.

Click here for a link to the decision.

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