Court File and Parties

COURT FILE NO.: 56/05

DATE: 2005-12-06

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: architectural phases inc. Plaintiff (Appellant) v. TORCH EDUCATIONAL FUND Defendant (Respondent)

BEFORE: Justice Then

COUNSEL: Joel S. Kuchar, for the Plaintiff (Appellant) Megan E. Shortreed, for the Defendant (Respondent)

HEARD: November 8, 2005

ENDORSEMENT

[1] This is an appeal from the order of Master Dash dated January 11, 2005, dismissing the motion by the Appellant for an order amending the case management timetable by extending the time for answering undertakings and granting the cross-motion of the Respondent’s for dismissal of the action on the basis either of breach of the orders of the court or of timetables set by the court.

[2] The Appellant submits that on an appeal from a final discretionary order of a Master the standard of review is that set out by the Divisional Court in Hudon v. Colliers Macaulay Nicolls Inc., [2001] O.J. No. 1588 (Div. Ct.). Hudon holds that the judge hearing the appeal is entitled to conduct a rehearing, and, after according some deference to the Master’s expertise, is nevertheless entitled to substitute his or her own discretion for that of the Master.

[3] The Respondent submits that the appropriate standard of review on appeals from a Master’s discretionary decision under rule 60.12 for failure to comply with interlocutory orders (see: Vacca v. Banks, [2005] O.J. No. 147 (Div. Ct.) or rule 77.10(7)) for failure to adhere to a timetable (see: 1066087 Ontario Inc. v. Church of the First Born Apostolic Inc., [2004] O.J. No. 3068 (Div. Ct.)) is that the court should only interfere in the event of palpable and overriding error in the decision rendering it clearly wrong. Accordingly, the Respondent submits that even a final discretionary decision of a Master is entitled to deference unless the Master erred in his application of the evidence, in the inferences he drew from the evidence, or in his application of the relevant law.

[4] The Respondent submits that there is no reason to grant a Master’s decision any less deference than that given to the order of a judge in the same circumstances. The Respondent relies upon the decision of this court in 1485625 Ontario Inc. v. Peel Halton Kitchens Inc., 2004 11170 (ON SCDC), [2004] O.J. No. 1589 (Div. Ct.) at paras. [5] - [8]:

[5] It is clear that the interlocutory decision of a Master are to be reviewed according to the same standard as the decisions of judges (Marleen Investments Ltd. v. McBride et. al (1979), 1979 1895 (ON SC), 23 O.R. 125; also see McBride v. Pilon (2002), 2002 53260 (ON SCDC), 163 O.A.C. 101). The decisions of judges are not to be interfered with unless it can be demonstrated that the judge was clearly wrong. (Walsh v. 1124660 Ontario Ltd., [2000] O.J. No. 4069 at para. 14)

[6] However, there is some dispute as to the proper standard of review to apply to a decision of a Master that is final or vital to the disposition of a case – as the decision granting summary judgment clearly is. The traditional approach has been that Masters’ orders vital to the final disposition of the case should be reviewed by way of a hearing de novo (Stoicevski v. Casement (1983), 1983 1679 (ON CA), 43 O.R. (2d) 436). This assumption was challenged by Justice Morden of the Court of Appeal of Ontario (see: Carter v. Brooks (1990), 1990 2623 (ON CA), 2 O.R. (3d) 321).

[7] The distinction between the standard of review for the decision of a Master compared to a decision of a judge has been based upon the assumption that Master’s rarely hear oral evidence. This distinction becomes hard to justify when one considers that the decisions of judges are entitled to a high level of deference even when a judge has heard no oral evidence. If the discretionary or interlocutory orders of Masters are generally reviewed according to the same standard as the discretionary orders of judges there seems to be little reason to treat final orders of Masters differently on the basis of their not having heard oral evidence. There is even less reason to impose a different standard of review in cases where the Master did hear oral evidence.

[8] Given that the Master heard oral submissions from counsel for both the plaintiff and the defendants there is no reason to grant his decision any less deference than that given to the order of judge. Therefore, unless it can be demonstrated that the Master was clearly wrong, his decision should stand.

[5] To the extent that the standard of review for the discretionary order of a Master articulated in Hudon, supra, is based upon the decision of the Court of Appeal in Stoicevski, supra, the standard of review posited in Hudon, supra, may not be appropriate as the court in Hudon did not have the benefit of the observations of Morden J.A. in Carter v. Brooks, supra which may be taken to have modified the decision of the Court of Appeal in Stoicevski.

[6] However, it is not necessary in the circumstances of this case to finally determine the appropriate standard of review of a final discretionary decision of the Master as in my view the result is the same no matter which standard is applied.

[7] If the appropriate standard of review for breach of orders of the court or for breach of timetable is to determine if the Master was clearly wrong, I conclude in this case, as did Ferrier J. in both Vacca, supra, and Church of the First Born Apostolic Inc., supra, that the Master was not clearly wrong but that he was correct. I would have exercised my discretion in the same way as Master Dash did in this case and for essentially the same reasons as articulated by the Master.

[8] If however, it is necessary to conduct a rehearing, I would come to the same conclusions as Master Dash again essentially for the same reasons as the Master.

[9] Accordingly, the appeal must be dismissed.

[10] If the parties cannot agree as to costs, they may make brief written submissions within two weeks of the release of this decision.

Then J.

DATE: December 2005