County Court

Cite as: Turf Masters Landscaping Ltd. v. T.A.G. Developments Ltd., 1992 NSCO 45 PROVINCE OF NOVA SCOTIA COUNTY OF HALIFAX C.H. NO. 68861 I NTH E C 0 U N T Y C 0 U R T OF DISTRICT NUMBER ONE BETWEEN: TURF MASTERS LANDSCAPING LIMITED PLAINTIFF - and ­ T.A.G. DEVELOPMENTS LIMITED and THE CITY OF DARTMOUTH DEFENDANTS Charles D. Lienaux, Esq., Counsel for the Plaintiff; Jean McKenna. Counsel for the Defendant, The City of Dartmouth: Daniel L. Weir, Esq .. Counsel for the Defendant, T.A.G. Developments Limited; 1992, September 28th, Bateman, J.C.C.:- This is a mechanics' lien action. The City of Dartmouth is the owner of the liened lands. T.A.G. Developments is the contractor employed by Dartmouth to complete work on the lands. Turf Masters are sub-contractors of T.A.G. Turf Masters claim is for monies owing for labour and materials provided by Turf to Dartmouth's lands, including a claim for necessary extra labour and materials.

-2­ Dartmouth has served Statement of Claim on CBCL engineers hired by the City of Dartmouth to tender and oversee the contract. Turf has applied to strike the Third Party Notice. Turf says the third party action against CBCL is not within the class of actions contemplated by Section 34(2) of the Mechanics' Lien Act. held liable for the extra work it will necessarily seek indemni f ication from CBCL, embodiment of the City in this contractual arrangement. The original Statement of Claim was filed with the Court on December 21. 1989. alleges that the unpaid value services supplied by Turf Masters, T.A.G., is $382,656.00. On August 6, 1992 in a contested application, Turf was granted leave of the court to file an Amended Statement of Claim, which it did on September 10, 1992. To that .point, Defence. In the Amended Statement of Claim Turf alleges that the extra work and materials failure of Dartmouth and CBCL to disclose certain sub­ a Third Party Notice and Limited, the consulting Dartmouth says that if it is which company was the It is in standard for:n and of the materials and at the request of Dartmouth. had not filed a was required due to the

-3­ surface si te condi tions which condi tions affected the amount of work and material required to complete the project. Dartmouth says necessitated by the Amended Statement of Claim which, for the first time, raises the issue of non-disclosure. Turf's basis for opposing the third party action is that it would unduly delay and complicate the action. Extensive discoveries have although CBCL was in attendance at the discoveries as a witness it is reasonable to expect that, ifrnade a party to the action, CBCL would discoveries in that capacity. motion by T.A.G. Dartmouth agrees that somewhat delayed and more expensive, position that this is a proper third party claim within the contemplation of section 34(2) of the Act. There is very 1 i t tIe case third parties in mechanics' amendment to the Statute is relatively new. third party proceedings were not permissible as decided in P.P.G. Industries.Canada Limited v. J. al (1982), 52 N.S.H. (2d) the third party claim is now been completed and, wish to conduct further Turf is supported in this the litigation will be however, takes the law on the joinder of liens actions as the Originally W. Lindsayet 267. In reaching that

-4­ conclusion the court focused Mechanics' Lien Act. At page 284 Jones J.A. says: "The Act was intended to provide an expeditious remedy claimants. It -intention of the lien claimants would wait for the determination of their claims, while the owner, instances, the contractor claims against third parties which were totally unrelated original claim or of no concern to the lienholder." Apparently in response to the holding in P.P.G., supra, the legislature amended the Mechanics' Lien Act with section 33(l)(A), now section 34(2) which reads: "The jurisdiction Court under this third party procedure amount claimed relates to the lien claim and arises out of the building contract or work materials supplied subject of the lien claims." In Tri-Corp General Contracting and Sales Limi ted et al v. Oceanside Constructions Limi ted et aI, N.S.R. ( 2d ) 346, the Appeal application to add three officers and directors of the defendant general contractor personal capacity. on the purpose of the to lien was never the legislation that be forced to or in many pursued to the of the County Act includes a where the done or the that is the (1987) 81 Division denied an as defendants in their

-5­ At page 349, Matthews J.A. states: "Courts have consistently stated that a multiplicity of actions should be avoided whenever possible; actions should proceed expeditiously; costs of law suits in time and money should be minimized. With respect, these broad and laudable goals beg the question. We are not here concerned with the common law action where such parties could and would be added, but one under statute. Jurisdiction here cannot be assumed because of some worthy goal nor can it be conferred by consent. Jur i sd i ct i on mus t be found within the confines of the Act." And at page 350: "The authority given to the Trial Judge in section 34(1) of the Act to proceed to try the action and all questions which arise therein, does not, in my view, permit issues to be raised and determined which are extraneous to the purposes of the Act. A claim cannot be permi tted which is in essence a separate action. It Matthews J.A. states that it is not sufficient that the proposed action arise out of the same set of facts as does the original action. It must arise out of the contract or the work done or the materials furnished.

-6­ Were this not a mechanics' lien action CBCL would be an appropriate third party. Without question it would be "economical" in the legal determined in a single action. however, of CBCL to Dartmouth is the subject matter of a separate contract, the contract between CBCL and the City of Dartmouth. This issue is of Whether the alleged extra work and materials provided Turf was precipitated by a wrongful act of CBCL or the City of Dartmouth, or simply benign circumstances, is the only issued to be determined in the context of the mechanics' Dartmouth is found liable, it mayor may not choose to pursue an action against CBCL. not to be liable or, alternatively, found to be liable in circumstances support a claim against CBCL. surrounding the relationship between Dartmouth and CBCL is not inevitable. One of the concerns of Dartmouth, in joining CBCL is that there not be a circumstance separate pieces of litigation, courts reach inconsistent findings. For example, the court in this proceeding may find that any necessary extra precipitated by the failure sense to have all matters The potential liability, no concern to Turf. by flowed from relatively lien action. If Dartmouth may be found Dartmouth may be which would not In other words, litigation under which, in t",vO work or materials was of CBCL to make proper

-7­ disclosure of the sub-surface site conditions. for the purposes of this contract, place of Dartmouth, counsel for Dartmouth says that sets up an inevi table claim by Dartmouth against failure to properly perform its duties within the context of i~s relationship with Dartmouth. that in the resulting claim by Dartmouth against CBCL the Court could find that there was disclose. While there is potential for such inconsistent results, that possibi 11 ty limitations proscribed by the Mechanics' Lien Act. does not cloak me with jurisdiction to permit joinder of a third party outside the narrow scope of the Statute. Accordingly, the application of Turf to strike the third party notice is granted. Costs of this application are payable by Dartmouth to Turf, such costs to be disposition of the action. limited role in this aspect of the mat~er there shall be no costs payable to T.A.G. Since, CBCL stood in the CBCL for It is conceivable no failure by CBCL to does not overr ide the It fixed and paid upon final As T.A.G. has played a