COURT OF APPEAL FOR ONTARIO
Doherty, Cronk and Rouleau JJ.A.
BETWEEN:
Pagebrook Inc.
Applicant (Respondent)
and
Mary H. Lawson, John Andrew Lawson, Mary Alexandra Martin, R. Gerald Lawson, Michael D. Lawson, Carole Elizabeth Lawson, Therese Annette Desjardins, Lawgren GP Inc. and RNL Rodyna Holdings Limited
Respondents (Appellants)
Mary H. Lawson and John A. Lawson in person
Timothy J. Hill for the applicant (respondent)
Heard & released orally: April 17, 2009
On appeal from the order of Justice B. Allen of the Superior Court of Justice dated March 27, 2008.
ENDORSEMENT
1The appellants submit that the motion judge erred in law in allowing the Master’s report to be confirmed when the Master made errors in principle, purported to act in the absence of or in excess of his jurisdiction, and patently misapprehended the evidence regarding:
the failure to give the appellants credit for their unequal capital contribution to the acquisition and maintenance of the subject property; and
the development fees claimed by the respondent.
a) Unequal capital contribution
2The appellants’ argument on the Master’s failure to give them credit for an equal capital contribution is in essence that the appellants should not be bound by the agreement concluded with the respondent in 1982, as it was made in error. This alleged error was denied by the respondent. The Master specifically rejected this claim, finding that the alleged mistake in the 1982 agreement and in the appellants’ calculations explaining the mistake were lacking in any reliable evidentiary support. This finding is amply supported in the record.
3In oral argument, the appellants maintained that the Master had failed to give “enough significance” to the evidence that supported their position on this issue. For example, the appellants relied on the apparent willingness of Mr. Grenier, the principal of the respondent, to reach a settlement on the capital contribution issue. The question of how much significance is to be given to each element of the evidence was first and foremost a matter for the Master. Unless he misapprehended the evidence, this court must defer to his assessment. We see no misapprehension of the evidence by the Master and, therefore, find no basis to interfere.
b) Development fees
4The appellants’ submission on the alleged error in allowing part of the respondent’s claim for development fees is, in effect, that the Master did not hold the respondent to the letter of its written development agreement with the appellants.
5In our view, contrary to the appellants’ claim, the Master did not override the terms of the contract between the parties. It is apparent from the evidence that once the parties discovered that the subdivision approval for the partnership’s proposed development had lapsed, the parties no longer conducted themselves on the basis that their relationship was governed by the strict terms of the agreement.
6The respondent effectively carried out the work that was to be done by Cataract Lands Ltd., a company that had been set up by the respondent to be the developer. The development fees that were to accrue in Cataract and paid upon substantial completion became, in fact, fees accrued by Pagebrook for its work done to advance the project until a resolution of the lawsuit was reached and the property sold. The fees were initially $40,000 per year and later reduced to $10,000 per year once the parties became aware that the subdivision approval had lapsed.
7The Master was aware of the contractual arguments now raised by the appellants. In our view, he reached a balanced and fair result consistent with the intent of the development agreement. His findings are well supported by the evidence. Contrary to the appellants’ submission, it falls squarely within the jurisdiction conferred on the Master by rule 55.04(1)(e) to settle accounts and make just allowances.
c) Did the Master otherwise err in his apprehension of the evidence or exceed his jurisdiction?
8Many of the other points raised by the appellants are, as stated by the motion judge, an attempt to retry the facts or to second guess the Master. As is apparent from her thorough reasons, the motion judge carefully considered many of the same issues now raised by the appellants in this court. She concluded that “The Master acted within the jurisdiction allowed him under Rule 55.04(1)(e) on the taking of accounts” and that “based on a reasonable assessment of the evidence before him, he arrived at fair and reasonable conclusions on each issue.”
9We agree. The Master reached his conclusions after four days of testimony and after reviewing the parties’ affidavits and voluminous documents and exhibits. He heard one and a half days of argument, received additional written submissions and held a further attendance to settle the terms of the final report. He ruled in favour of the respondent on some issues but against it on others. He exercised his jurisdiction to reduce certain amounts claimed by the respondent and he made appropriate allowances to arrive at a result that was balanced and fair in all the circumstances and in light of the evidence he heard. We see no basis to interfere with his conclusions. Nor do we find any error in the motion judge’s decision to confirm the Master’s report.
10For these reasons, the appeal is dismissed. Costs to the respondent are fixed in the amount of $10,000, including GST and disbursements.
“D. Doherty J.A.”
“E.A. Cronk J.A.”
“Paul Rouleau J.A.”
