Bonds – Construction lien action – Intervention by bonding company:
A bonding company which has issued a Form 15.1 bond in lieu of the land and premises under s. 44 of the Ontario Construction Lien Act has no inherent right to intervene in the lien action. It will only be granted leave to intervene in appropriate cases and to assert the rights of the bonded party. If the bonding company is added, it is added not in its own right but rather to step into the shoes of the bonded defendant to continue with the defense and counter claim as if it was that defendant. Such addition will be on terms which limit the rights of the added party to those of the defendant and the party seeking to be added, depending on the stage of the action, must demonstrate that it can carry on with the action. For example, if the action is at the stage of discovery, the added party must provide discovery as if it were the defendant, that is, have access to the documents and to someone knowledgeable who can be examined for discovery. Lastly, the party seeking to be added must agree to be personally bound to pay the costs. In all instances, the party seeking to be added is put into the shoes of the defendant whatever state those shoes may be at the time of the addition. In the absence of the bonding company showing that those conditions could be met, its application to intervene was dismissed:
Royal Windsor Mechanical Inc. v. Toronto Catholic District School Board, 2010 ONSC 1849. See CBC, Chapter 9, part 3.