Laven Associates Limited v. Gary Tenenbaum, ONSC CV-12-446669 (Ont. Construction Lien Master) October 15, 2014
RE: Leave to tender expert's report in a Construction Lien summary trial
RE: the role of the Construction Lien Court and the purpose and intent of the Construction Lien Act, R.S.O. 1990, c.C30
In this case we successfully opposed a motion brought by a defendant for leave to introduce an expert’s report into evidence in a trial before the Construction Lien Master, after the Master had ordered a summary trial, after the Court ordered deadline for delivery of expert’s reports had passed and after the evidence in chief had already been filed with the Court (by way of affidavits or, in the case of experts, by way of their reports).
The decision is important for a number of reasons, in that it addressed whether or not the motion should be considered interlocutory (requiring the consent of the Court), the importance of Court ordered timetables in a construction lien action, whether the request was akin to a defendant requesting leave to introduce a fresh report after its evidence was in in an ordinary trial, the Court’s discretion to act as a “gatekeeper” to apply a proportionality test to the question of leave and the relevance of s.67(1) of the Construction Lien Act, which required the trial of the action to be, so far as was possible, of a summary character.