COURT FILE NO.: 251/06

DATE: 20081110

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

a.c.j.s.c. cunningham, carnwath and bellamy jj.

B E T W E E N:

DAVID SMITH

Plaintiff (Appellant)

• and -

DAVID SAVARD, DAVID BECKLEY and BECKARD MANAGEMENT GROUP

Defendants (Respondents)

Benjamin Sim-Tzung Lee, for the Plaintiff (Appellant)

Michael MacKay, for the Defendants (Respondents)

HEARD at Toronto: November 10, 2008

A.C.J.s.c. CUNNINGHAM: (Orally)

1This is an appeal from the decision of Master MacLeod, dated April 26, 2006, in which he dismissed the plaintiff’s motion to vary his order, brought pursuant to Rule 59.06. In dismissing the motion to vary his decision, following the lien trial, he stated:

"This motion is really framed as an appeal. The appropriate procedure to appeal is a motion to a judge to oppose confirmation."

2We agree and this appeal is dismissed for the following reasons.

3Given that the standard of review of a decision of a Master is the same as that of a judge, (see Zeitoun v. Economical Insurance Group [2008] 91 O.R. (Div. Ct.) at para. 26), we have little difficulty finding that the learned Master made no error of law, did not exercise his discretion improperly, nor made a palpable or overriding error in dismissing the Rule 59.06 motion.

4Master MacLeod recognizing this as a motion under Rule 59.06, concluded there was no "fresh evidence" as contemplated by Rule 59.06(2)(a). As he stated:

"The central issue of meeting of minds and fixed price contract was clearly adjudicated and indeed was central to his decision."

5Recognizing that the Scott Schedules and the GST issue might get it close to Rule 59.06(1), he concluded the Scott Schedule was not an accidental slip. While the Scott Schedules were deemed to be a request to admit, the numbers in them could not be taken as deemed admissions because the amounts and the level of work contemplated were in dispute.

6Having permitted counsel to address concerns about the decision of Master MacLeod following the lien trial, we conclude Master MacLeod, on the evidence before him appropriately found there was no enforceable fixed price contract. There simply was no consensus ad idem between the parties. The July 16th, 2001 document was not an enforceable contract.

7As the Master stated, both parties knew there would be additional charges because they were simultaneously negotiating extras based on the "working quote in progress and the July 13th statement of account. There was not a true meeting of the minds on what was included in the base price".

8Master MacLeod carefully considered the issue and concluded there never was a finalized fixed price contract for $90,500.00. In other words, the July 16th document was not the party’s final expression given the course of conduct by both parties during construction. (See Rafal Contracting and Management v. Legaspi, 2007 BCSC 1944, [2007] B.C.J. No. 2925).

9These were conclusions the Master was entitled to arrive at based upon the evidence before him. Moreover, in his careful reasons the Master did not err in his calculation of damages.

10Finally, in our view, there was ample reason why the Master did not add GST to the amounts allegedly owing to the appellant. There simply was no evidence before him as to a correct GST number for the appellant.

11The matter is dismissed.

COSTS

12Costs to the Respondent fixed at $3,000.00, all inclusive.

A.C.J.S.C. CUNNINGHAM

CARNWATH J.

BELLAMY J.

Date of Reasons for Judgment: November 10, 2008

Date of Release: November 14, 2008

COURT FILE NO.: 251/06

DATE: 20081110

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

a.c.j.s.c. cunningham, carnwath and bellamy jj.