



COURT OF APPEAL FOR ONTARIO

CITATION: Bentivoglio v. Groupe Brigil Construction, 2017
    ONCA 413

DATE: 20170523

DOCKET: C61864

LaForme, van Rensburg and Huscroft JJ.A.

BETWEEN

Michael
    Steven Bentivoglio O/A Mikes Heating, Air Conditioning &

General
    Contracting

Plaintiff

and

Le Groupe Brigil
    Construction, a Division of 6095186 Canada Inc., and 3223701 Canada Inc.
,
    and Caisse Desjardins de Hull

Defendants (
Respondents
)

and

Genivar Inc.

Third
    Party (Respondent/Appellant

on
    Cross-Appeal)

and

Mastron Mechanical
    Contracting Limited, Mastron Mechanical Contracting (1988) Limited, SJDM
    Holdings Ltd.
, and Michael Steven Bentivoglio O/A Mikes Heating, Air
    Conditioning & General Contracting

Fourth Parties (
Appellants
)

Craig O'Brien, for the appellants, Mastron Mechanical
    Contracting Limited, Mastron Mechanical Contracting (1988) Limited and SJDM
    Holdings Ltd.

Howard Borlack and James M. Brown, for the respondent,
    Genivar Inc.

Gabriel Poliguin, for the respondents, Le Groupe Brigil
    Construction, a Division of 6095186 Canada Inc., and 3223701 Canada Inc.

Heard: May 16, 2017

On appeal from the order of Justice W.D. Newton of the Superior
    Court of Justice, dated February 18, 2016.

REASONS FOR DECISION

[1]

Genivar moved for an order dismissing the third party claim, or in the
    alternative granting leave to continue its fourth party claim against Mastron.
    The basis for the motion to dismiss was that the defendant Brigil had not
    obtained leave to commence the third party claim under the
Construction
    Lien Act
. Mastron argued the fourth party claim should be dismissed
    because it too had been commenced without leave.

[2]

The motion judge refused to dismiss the third and fourth party claims.
    In doing so, he held that an order by Hackland J. dated December 10, 2013 was
    intended to continue the proceedings  under the ordinary track,  and, as
    such, the proceedings continued to be governed by the
Rules of Civil
    Procedure
. He granted leave
nunc pro tunc
to Genivar to issue its
    fourth party claim against Mastron. Mastron appeals.

[3]

Mastron argues that the motion judge erred in granting leave
nunc
    pro tunc
to commence the fourth party claim. It contends that the matter
    was proceeding under the
Construction Lien Act
, and that it was an
    error for the motion judge to grant leave
nunc pro tunc
because the
    two year limitation period for commencement of the fourth party claim by the
    third party had expired before leave was sought.

[4]

The appeal is dismissed. In our view, the motion judge correctly found
    that the intention of the order of Hackland J.  made on consent of Genivar 
    was to continue the action on the ordinary track.

[5]

After disposing of the lien claim
    entirely, the order of Hackland J.
did not expressly state whether the
    remainder of the action would continue under the ordinary track, but

merely that the third party claim would 
survive
.
    The third party claim sought damages for breach of contract and negligence in
    addition to contribution and indemnity.

[6]

Since only claims for contribution and indemnity are permitted in
    construction lien third party proceedings under s. 56 of the
Construction
    Lien Act,
a third party claim that asserts other claims can only proceed
    on the ordinary track. As a practical matter, the third party claim here could
    only 
survive
 in proceedings on the ordinary track. Accordingly,
    the motion judge adopted the only reasonable interpretation that could be given
    to the order of Hackland J.

[7]

In the result, the decision to allow Genivar to continue the fourth
    party claim was correct. We note however that, since the third party
    proceedings continued on the ordinary track, there was no need for the
nunc
    pro tunc
order for leave.

[8]

In light of the conclusion that the action had moved to the ordinary
    track at the time the fourth party proceedings were commenced, it is
    unnecessary to address Mastrons other arguments.

[9]

Pursuant to the agreement of the parties, Genivar is awarded costs of
    the appeal in the amount of $20,000; Brigil is awarded costs of $13,000. Each
    amount is inclusive of disbursements and HST.

H.S.
    LaForme J.A.

K. van Rensburg J.A.

Grant Huscroft J.A.


