Background

• JPA Construction Ltd. (Plaintiff) filed a Claim of Lien under the Builder’s Lien Act on October 31, 2022.
• The lien was later vacated by consent, with $15,398 placed in the defendant’s lawyer’s trust account as security.
• No action was taken by the plaintiff to advance the case after pleadings closed on June 14, 2023.
• The defendant, Joseph Hanna Saad, filed a motion to dismiss the action for want of prosecution.

Key Legal Principles

• Under Civil Procedure Rule 82.18, a judge may dismiss a case if it is not brought to trial within a reasonable time.

• The three-part test for dismissal due to delay (from Clarke v. Ismaily, 2002 NSCA 64) requires proving:

  1. Inordinate delay caused by the plaintiff.
  2. Inexcusable delay (without justification).
  3. Serious prejudice to the defendant.

• In builder’s lien cases, there is a lower threshold for proving inordinate delay due to the lien’s impact on property rights (Kaulback v. Burke, 2000 NSCA).

• Presumption of prejudice arises when a party interferes with property rights through a builder’s lien (Tam v. PD Plumbing & Heating, 2023 BCCA).

Court’s Findings

• The plaintiff’s 18-month delay in moving the case forward was inordinate and inexcusable.
• The delay created a presumption of prejudice, which the plaintiff failed to rebut.
• The claim of lien had already been vacated (money held in trust as substitute security).
• However, the court did not dismiss the main action, as the defendant failed to prove additional specific prejudice.

Court’s Orders

1. Plaintiff must file an Affidavit Disclosing Documents by February 15, 2025.
2. Costs awarded to the defendant:
   • $750 for the motion.
   • $500 penalty for late filing.