W.M. Fares & Associates Inc. v. 3035605 Nova Scotia Ltd.

W.M. Fares & Associates Inc. v. 3035605 Nova Scotia Ltd. Court Supreme Court Date 2006-02-09 Citation 2006 NSSC 64 Docket SH 258848 Judge/Registrar/Adjudicator Hood, Suzanne M. (Honourable Justice) Document Type Decision Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: W.M. Fares & Associates Inc. v. 3035605 Nova Scotia Ltd., 2006 NSSC 64 Date: 20060209 Docket: SH 258848 Registry: Halifax Between: W. M. Fares & Associates Incorporated Plaintiff v. 3035605 Nova Scotia Limited and 3030558 Nova Scotia Limited Defendants D E C I S I O N Judge: The Honourable Justice Suzanne M. Hood. Heard: February 9, 2006 in Chambers at Halifax, Nova Scotia Written Decision: February 23, 2006 (Oral decision Feb. 9, 2006) Counsel: Colin D. Bryson, for the plaintiff James D. MacNeil, for the defendants By the Court: [1] This is an application by the Defendant numbered companies to have the lien filed by W.M. Fares & Associates Incorporated against the project vacated on the basis that it is not valid. [2] It is clear from the cases before me: McLanders Contractors Ltd. v. Eastern Flying Services Ltd., [1982] N.S.J. No. 69, 55 N.S.R. (2d) 449, (1982) 43 C.B.R. (N.S.) 76 and the decision of Justice Coughlan in 3025369 Nova Scotia Ltd. v. 3072560 Nova Scotia Ltd., [2005] N.S.J. No. 220, 2005 NCSC 133 that there is a heavy burden on an applicant in a matter like this to have the lien vacated on the basis of its invalidity. In fact, in the McLanders case, Judge O’Hearn made reference to the application being similar in some respects to a summary judgment application. He also said that the mechanics’ liens as they were at the time provided important security which should not be taken away except on the clearest grounds. [3] In McLanders and the other case, there were facts before the court and, of course, there are facts before the court in this case as well. I have two affidavits of Mr. Hill and one of Nancy Hill and I have an affidavit of Mr. Fares and Mr. Saleh and I also have the benefit of the pleadings, a Demand for Particulars and Reply to Demand for Particulars. The question I have to ask myself, based on the facts before me, is: Can I conclude that the lien was invalid? Two issues arise in that regard. [4] The first is with respect to the meeting of August 11 and, if that does not satisfy me that the lien is valid or that Mr. MacNeil has satisfied me that the lien is therefore invalid because of that meeting, then I go on and look at the broader issue which is when the contract was either abandoned or completed. [5] Based upon the affidavit evidence before me, I conclude that the meeting of August 11 had nothing to do with engineering and design services. That is based on what is before me. It was not within the contract set out in Exhibit A to Mr. Fares’ affidavit which refers to W.M. Fares and Associates being involved in the subject project and providing services based on the understanding that they would be the designers and build the subject hotel. The meeting on August 11 dealt with financing and dealt with a third party who might be able to provide financing. In my view, it is perfectly clear that that does not fall within the services to be provided under that contract and are not lienable services. To use the words of Judge O’Hearn, “the clearest grounds”, I am satisfied that it is perfectly clear that that meeting would not be sufficient to extend the lien period. It would be invalid if that were the only basis upon which the lien was being put forward. [6] Now that or a date soon after that is the last date of work which is referred to in the statement of claim. Because I have dealt with the issue of the meeting, I must go back and look at the affidavit and the statement of claim to determine whether there is another time period which would make the lien valid. [7] In Mr. Fares’ affidavit, he refers to May 2005. The question for me is whether I can conclude that the contract was deemed to be abandoned after that time when it is clear to me that no further work was done after that time. The Reply to the Demand for Particulars refers to work being done in a timely matter. The affidavit does not refer to any contact with the defendant in fact with regard to even that May work. The contract which is attached to Mr. Fares’ affidavit refers to the project being halted for an unexpected period of time and refers to their mutual understanding that they would be the designers and builders. [8] Therefore, if nothing is done after May at the latest, it seems to me it is not reasonable to conclude that the contract continued. This was a major construction project of a hotel and restaurant in Dartmouth ongoing since August 2003 and then up to May 2005, and then there was nothing. In the supplemental affidavit of Gary P. Hill, there is a fax from Mr. Arab saying, “I just wanted to touch base with you as to how you are progressing with the project.” That was July 28, 2005. [9] In my view, there is sufficient facts before me to conclude that the contract was abandoned soon after that May date at the latest and certainly more than sixty days before September 26, which was the date when the lien was filed. [10] Therefore I conclude based upon the facts before me that it is clear that the lien would be invalid and the application is therefore granted. [11] [THE COURT, MR. BRYSON AND MR. MACNEIL - DISCUSSION RE COSTS] [12] I will not make any order that would incorporate anything with respect to the costs that Justice Stewart has already ordered. Under the circumstances, because this was somewhat like her matter, although not unduly complex, I am not going to accede to the request that costs be $1,000.00. In my view, they should be on the upper end of the range under the Tariff. Therefore costs are awarded in the amount of $750.00 and are to be payable forthwith as this matter has been disposed of. Hood, J.