APM Constr. v. Caribou Island Electric (2012), 321 N.S.R.(2d) 115 (CA);
1018 A.P.R. 115
MLB headnote and full text
Temp. Cite: [2012] N.S.R.(2d) TBEd. SE.062
APM Construction Services Inc. and Travelers Guarantee Company of Canada (applicants/appellants) v. Caribou Island Electric Limited, 3104607 Nova Scotia Limited, carrying on business as Advanced Cabling Systems, Canada Revenue Agency and Her Majesty the Queen in Right of the Province of Nova Scotia as represented by the Minister of Transportation and Infrastructure Renewal (respondents)
(CA 406600; 2012 NSCA 105)
Indexed As: APM Construction Services Inc. et al. v. Caribou Island Electric Ltd. et al.
Nova Scotia Court of Appeal
Farrar, J.A.
September 13, 2012.
Summary:
The Province of Nova Scotia retained APM Construction Services to act as the general contractor for renovations to one of its buildings. APM took out a payment bond with Travelers Guarantee Company of Canada. APM retained Caribou Island Electric Inc. to supply material and services on the project. Caribou retained a company carrying on business as Advance Cabling Systems (ACS) to supply material and services. The Canada Revenue Agency (CRA) served APM with an Enhanced Requirement to Pay with respect to debts owed by Caribou to the CRA totalling $183,351.44. ACS notified APM that it claimed a lien for $85,347.83 plus HST with respect to work performed on the project by it for Caribou. APM owed Caribou $94,441.36 for work performed. APM applied for an interpleader order (an order to pay the money owed to Caribou to an appointed person or into court) and ancillary relief.
The Nova Scotia Supreme Court, in a decision reported at (2012), 320 N.S.R.(2d) 71; 1014 A.P.R. 71, dismissed the application and declared that ACS was entitled to be paid the money owed to it by APM pursuant to the bond and, upon payment, Travelers’ obligations under the bond vis-à-vis ACS would be discharged. The court further declared that upon APM paying $94,441.36 to the CRA, it would have no further obligation to the CRA arising from the monies that it owed Caribou. APM and Travelers appealed and moved for a stay pending the appeal.
The Nova Scotia Court of Appeal, per Farrar, J.A., dismissed the motion.
Practice – Topic 8952
Appeals – Stay of proceedings pending appeal – When appellant entitled to stay – The Province of Nova Scotia retained a general contractor (APM) to perform renovations to one of its buildings – APM took out a payment bond with a surety – APM retained Caribou Island Electric Inc. to supply material and services on the project – Caribou retained Advance Cabling Systems (ACS) to supply material and services – The Canada Revenue Agency (CRA) served APM with an Enhanced Requirement to Pay respecting debts owed by Caribou to the CRA totalling $183,351.44, claiming “super priority” to Caribou’s assets for failure to pay taxes – ACS notified APM that it claimed a lien for $85,347.83 plus HST against the statutory holdback and any funds payable to Caribou respecting the work performed by ACS for Caribou – APM applied for an interpleader order (to pay the money that it owed Caribou ($94,441.36) to an appointed person or into court) and ancillary relief – The applications judge concluded that ACS was entitled to recover from the surety for the monies that it was owed by Caribou and, upon payment, the surety’s obligations under the bond vis-à-vis ACS would be discharged – Upon APM paying $94,441.36 to the CRA, it would have no further obligation to the CRA arising from money that it owed Caribou – APM and the surety appealed and moved for a stay pending the determination of the appeal, asserting that there were exceptional circumstances in that the case was analogous Fulton Insurance Agencies Ltd. v. Purdy (N.S.C.A.) (Fulton); or, alternatively, the judge made such an egregious error in determining the amount owing to ACS based on “inconsistencies” in the evidence that the decision was “clearly wrong on its face” – The Nova Scotia Court of Appeal, per Farrar, J.A., dismissed the motion – Unlike Fulton, the proceedings below were concluded and there was nothing outstanding to be adjudicated which might impact on the issues in the appeal – Further, the court was not satisfied that the application’s judge’s determination of the amount owing to ACS was an error, let alone an error so egregious that it warranted a stay – The determination of whether the judge erred was best left to the panel hearing the appeal with a full record.
Cases Noticed:
Fulton Insurance Agencies Ltd. v. Purdy (1990), 100 N.S.R.(2d) 341; 272 A.P.R. 341 (C.A.), dist. [para. 1].
Counsel:
Ezra B. Van Gelder, for the applicants/appellants;
John Kulik, Q.C., and Ian Dunbar, for the respondent, Advanced Cabling Systems;
Deanna M. Frappier, for the respondent, Canada Revenue Agency;
Duane Eddy, for the respondent, Minister of Transportation and Infrastructure Renewal;
Fraser Miller, for the respondent, Caribou Electric Limited not appearing.
This appeal was heard and decided orally in Chambers on September 13, 2012, by Farrar, J.A., of the Nova Scotia Court of Appeal, who delivered the following written decision on September 26, 2012.
