NOVA SCOTIA COURT OF APPEAL
Citation: W.M.Fares & Associates Inc. v. 3035606 Nova Scotia Ltd.,
2006 NSCA 120
Date: 20061107
Docket: CA 262593
Registry: Halifax
Between:
W. M. Fares & Associates Incorporated
Appellant
v.
3035605 Nova Scotia Limited and
3030558 Nova Scotia Limited
Respondents
Judge: The Honourable Justice Jamie W. S. Saunders
Appeal Heard: September 27, 2006
Post Hearing
Briefs Received: October 2 and 6, 2006
Subject: Mechanics’ Liens. Standard of review. Burden of proof in vacating a lien. Appeals from “final” interlocutory orders. Proof of abandonment. Proceeding summarily.
Summary: The appellant provided engineering and design services to the respondents who held franchise rights for a hotel chain on their lands in Dartmouth. The appellant liened the appellants’ property and claimed $34,500.00 as the unpaid balance on a contract for professional services rendered. The respondents were successful in NSSC Chambers in applying to vacate that lien. The appellant claimed that the Chambers judge erred in considering the matter summarily; in analyzing the evidence; in interpreting and applying the relevant statutory provisions; and in holding that the respondents had discharged the requisite burden of proof.
Held: Appeal allowed. First, the Chambers judge erred in concluding that the contract was abandoned in the absence of any evidence of any such intention to abandon the project. Second, the judge erred in concluding that she could legitimately deal with this application in the face of a serious dispute as to material facts. Given the diametrically opposed positions and the contradictory evidence on the record, it could not be said that the respondents had satisfied their heavy burden of demonstrating that the appellant should be deprived of its lien security. The case could only be resolved after a full trial on the merits.
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