A Manitoba contractor’s lawsuit over allegedly defective subcontracting work has been dismissed after the court found that three years had passed without a significant advance in the action.
In Westland Construction Ltd. v. 4732449 Manitoba Ltd. carrying on business as Con-Restor Technologies, 2026 MBKB 96, released July 9, 2026, Associate Judge Berthaudin of the Court of King’s Bench of Manitoba ruled that producing 148 old invoices did not sufficiently move this particular case forward. Emails postponing examinations for discovery also failed to establish an express agreement suspending the litigation until a related arbitration ended.
The ruling dismissed Westland’s action for delay under Rule 24.02. It did not decide whether Con-Restor’s work was defective or determine damages for the alleged deficiencies.
Discovery dates repeatedly postponed
Westland was the prime contractor on a Manitoba Hydro construction project and retained Con-Restor as a subcontractor under contracts entered into in June 2013. Westland alleged that defective subcontracting work caused it loss. It filed its lawsuit in January 2020, seeking general, special and punitive damages.
The parties exchanged disclosure documents in 2022, but examinations for discovery were repeatedly scheduled and cancelled. A further disagreement arose before examinations set for April 2024, when Con-Restor sought documents about Westland’s related arbitration with Manitoba Hydro and particulars of the damages being claimed against the subcontractor.
Westland’s lawyer said arbitration confidentiality obligations and the implied undertaking rule prevented disclosure of arbitration materials. Con-Restor said it would defer questioning Westland until the claim against it was particularized, while making clear that Westland could still examine Con-Restor’s representative.
Westland ultimately cancelled that examination too. Its lawyer said it made sense to defer examinations until the particular matter was settled and to question both parties on consecutive days. The lawyer also promised a supplemental affidavit of documents by the end of May 2024 to correct deficiencies in Westland’s earlier disclosure.
That supplemental disclosure was served on September 2, 2025. Con-Restor moved to dismiss the action the following month.
More documents did not necessarily mean meaningful progress
The court applied a functional test: did something done within the three-year period measurably improve the parties’ or court’s ability to assess the merits and settle or decide the dispute? The assessment looks at the whole picture, including the nature, quality, timing and effect of the step.
Westland’s supplemental affidavit contained 148 invoices issued to it in 2014 and 2015. They were not expert reports or newly acquired information, and Westland had possessed them for at least a decade. The judge regarded their production as a correction to deficient earlier disclosure rather than a significant advance.
Westland argued that the documents followed the conclusion of its arbitration and reduced its claim against Con-Restor. But the court found no evidence establishing either that the arbitration had concluded or that the documents demonstrated such a reduction. Counsel’s submissions did not fill that evidentiary gap.
The judge expressly recognized that supplemental disclosure can significantly advance a case. Newly obtained documents or an expert report could do so, and records explaining damages would often narrow disputed issues. The result here depended on the age and prior availability of these invoices, the deficient original disclosure and the case’s overall lack of progress.
No express standstill agreement
Westland separately argued that the lawyers’ April 2024 emails amounted to an agreement to suspend the case until the Hydro arbitration concluded. Such an agreement could engage an exception to the otherwise mandatory dismissal rule.
The court explained that a standstill agreement may be written, oral or a combination of both. What matters is that it be express: the parties’ intention and essential terms must be clear, rather than inferred from conduct.
Con-Restor’s position was that it needed particulars of the claim before questioning Westland. Its correspondence did not propose waiting for the arbitration’s conclusion, the judge found. Westland’s description of an agreement did not establish one, and Con-Restor was not required to correct that characterization after clearly stating its own position.
Even if the correspondence were read as an agreement to postpone examinations, the judge said that would not suspend the proceeding as a whole. Pleadings were closed, and Westland could have taken other steps, including setting the matter down for a pre-trial conference.
With no significant advance for at least three years and no express agreement engaging the exception, the action was dismissed. The judge said Con-Restor would ordinarily receive tariff costs, leaving the parties able to seek brief submissions if they disputed that result or the amount. No costs figure was fixed.
