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Construction Act

ONTARIO REGULATION 302/18

PROCEDURES FOR ACTIONS UNDER PART VIII

Consolidation Period:  From July 1, 2018 to the e-Laws currency date.

No amendments.

This is the English version of a bilingual regulation.

Statement of claim

1. (1) An action shall be commenced by the issuing of a statement of claim in a court office in the county in which the premises or part of the premises are situate.

(2) Subject to subsection (3), a statement of claim shall be served within 90 days after it is issued.

(3) The court may, on a motion served and filed before or after the period of time mentioned in subsection (2) has expired, extend the time for service of the statement of claim.

Statement of defence, crossclaim and counterclaim

2. (1) A defendant may,

(a) counterclaim against the person who named the defendant as a defendant in respect of any claim that the defendant may be entitled to make against that person, whether or not that claim is related to the making of the improvement; and

(b) crossclaim against a co-defendant in respect of any claim that the defendant may be entitled to make against that person related to the making of the improvement.

(2) Subject to subsection (3), a crossclaim or counterclaim by any person shall accompany the person’s statement of defence.

(3) The court may, on a motion served and filed before the date the statement of defence is delivered, grant leave to deliver a crossclaim or counterclaim after the statement of defence is delivered.

(4) If the court grants leave under subsection (3), the court may,

(a) make any order as to costs that it considers appropriate; and

(b) give directions as to the conduct of the action.

(5) The time for delivering a statement of defence to a lien claim, crossclaim, counterclaim or third party claim shall be 20 days.

Joinder

3. Any number of lien claimants whose liens are in respect of the same owner and the same premises may join in the same action.

Third party claims

4. (1) Subject to subsection (2), a person against whom a claim is made in a statement of claim, crossclaim, counterclaim or third party claim may join a person who is not a party to the action as a third party for the purpose of claiming contribution or indemnity from the third party in respect of that claim.

(2) A person may be joined as a third party only with leave of the court on a motion served and filed with notice to the owner and all persons having subsisting preserved or perfected liens at the time of the motion.

(3) A court may grant leave under subsection (2) only if it is satisfied that the trial of the third party claim will not,

(a) unduly prejudice the ability of the third party or of any lien claimant or defendant to prosecute a claim or conduct a defence; or

(b) unduly delay or complicate the resolution of the action.

(4) The court may give directions as to the conduct of third party claims.

Noting in default

5. (1) If a person against whom a claim is made in a statement of claim, counterclaim, crossclaim or third party claim defaults in the delivery of a defence to that claim, the person against whom the claim is made may be noted in default.

(2) If a defendant or third party has been noted in default under subsection (1), the defendant or third party may not contest the claim of the person who named the defendant or third party as a defendant or third party, or file a statement of defence, except with leave of the court.

(3) A court may grant leave under subsection (2) only if the court is satisfied that there is evidence to support a defence.

(4) If the court grants leave under subsection (2), the court may,

(a) make any order as to costs that it considers appropriate; and

(b) give directions as to the conduct of the action.

(5) The following rules apply with respect to a defendant or third party who has been noted in default under subsection (1), if leave is not granted under subsection (2):

1. The defendant or third party is deemed to admit all allegations of fact made in the statement of claim, counterclaim, crossclaim or third party claim, as the case may be.

2. Despite anything to the contrary in this Regulation, the defendant or third party is not entitled to notice of the trial of the action or of any step in the action, or to participate in the trial of the action or in any step in the action.

3. Default judgment may be given against the defendant or third party.

Parties

6. (1) The person serving the notice of trial and all persons served with notice of trial are parties to the action.

(2) The court may at any time add or join any person as a party to the action.

Carriage of action

7. The court may at any time make an order awarding carriage of the action to any person who has a perfected lien against the premises.

Consolidation of actions

8. If more than one action is brought to enforce liens in respect of the same improvement, the court may,

(a) consolidate all the actions into one action; and

(b) award carriage of the action to any person who has a perfected lien against the premises.

Motion to fix date for trial or settlement meeting

9. (1) Any party may, at any time after the following, make a motion to the court, without notice to any other person, to have a day, time and place fixed for the trial of the action, or for the holding of a settlement meeting under section 10, or both:

1. The delivery of the statements of defence, including the statements of defence to all crossclaims, counterclaims or third party claims.

2. The expiry of the time for the delivery of the statements of defence referred to in paragraph 1.

(2) If the court orders the holding of a settlement meeting, the moving party shall, at least 10 days before the scheduled meeting date, serve a notice of settlement meeting on any person who, on the twelfth day before the scheduled meeting date, was,

(a) the owner of the premises or any other person named as a defendant in a statement of claim in respect of the action;

(b) if the lien attaches to the premises,

(i) a person with a registered interest in the premises, or

(ii) an execution creditor of the owner;

(c) any other person having a preserved or perfected lien against the premises; or

(d) a person joined as a third party under section 4.

(3) If the lien does not attach to the premises, the moving party shall request from the owner the identity of every person described in clause (2) (c).

(4) If the court fixes a date for trial, the moving party shall serve a notice of trial, at least 10 days before the trial date, on any person who is or would be entitled to a notice of a settlement meeting under subsection (2).

Settlement meeting

10. (1) A settlement meeting ordered by the court shall be conducted in accordance with this section.

(2) The settlement meeting shall be for the purpose of resolving or narrowing any issues to be tried in the action.

(3) The settlement meeting shall be conducted by,

(a) a person selected by a majority of the persons present at the meeting; or

(b) if no person is selected, the moving party.

(4) The results of the settlement meeting shall be recorded in a statement of settlement, which shall summarize those issues of fact and law that have been settled by the parties.

(5) The statement of settlement shall be filed with the court and shall be attached to and form part of the record.

(6) A filed statement of settlement is binding on all persons served with notice of the settlement meeting, and on all defendants who have been noted in default.

(7) Despite subsection (6), the court may vary or set aside a filed statement of settlement on such order as to costs as it considers appropriate.

(8) On the filing of a statement of settlement with the court, the court may,

(a) if there was no dispute at the settlement meeting with respect to a claim for lien, declare the lien valid and give such further judgment as it considers appropriate;

(b) enter a judgment or make a report on consent on those issues that have been settled by the parties;

(c) make any order that is necessary to give effect to any judgment or report of the court under clause (a) or (b); and

(d) make any order that is necessary for, or will expedite the conduct of, the trial.

(9) Rule 50 of the Rules of Civil Procedure does not apply to actions.

Reference of action

11. (1) For the purposes of subsection 58 (1.1) of the Act,

(a) notice of a motion for a reference under clause 58 (1) (b) of the Act shall be given to every person who is or would be entitled to a notice of settlement meeting under subsection 9 (2) of this Regulation; and

(b) notice of a motion for a reference under clause 58 (1) (c) of the Act shall be given to any other person having a preserved or perfected lien against the premises.

(2) In the case of a reference mentioned in clause (1) (b), if the lien does not attach to the premises, the moving party shall request from the owner the identity of every person described in clause (1) (b).

(3) On a motion for a reference mentioned in clause (1) (b), the moving party shall file the following documents with respect to the action and any other action that involves a lien claim arising from the same improvement:

1. A copy of the claim for lien.

2. A copy of the pleadings, including in any counterclaim, crossclaim or third party claim in the action.

Motion for directions

12. If a person is in possession of an amount that may be subject to a trust under Part II of the Act, the person may make a motion for directions and the court may give any direction or make any order that the court considers appropriate in the circumstances.

Interlocutory steps

13. Interlocutory steps, other than those provided for under the Act, shall not be taken without the consent of the court on proof that the steps are necessary or would expedite the resolution of the issues in dispute.

Technical assistance

14. (1) The court may, for the purpose of enabling it to determine better any matter of fact in question, obtain the assistance of any merchant, accountant, actuary, building contractor, architect, engineer or other person in any way it considers fit.

(2) The court may fix the remuneration of a person mentioned in subsection (1) and direct the payment of the remuneration by any of the parties.

(3) The parties are entitled to make submissions regarding the payment of remuneration before an order is made under subsection (2).

15. Omitted (provides for coming into force of provisions of this Regulation).

 

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