Court File and Parties
DIVISIONAL COURT FILE NO.: 239/15
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, RADY AND C. HORKINS JJ.
BETWEEN:
NERITAN XHEBRAJ, carrying on business as NX Building and Maintenance Services Plaintiff (Respondent)
– and –
ANITA BASSI Defendant (Appellant)
Daria Krysik, for the Plaintiff (Respondent)
In Person
HEARD at Toronto: February 17, 2016
Oral Reasons for Judgment
SWINTON J. (ORALLY)
1The appellant, Anita Bassi, appeals the order of Stewart J. (“the motions judge”) dated April 30, 2015, confirming the reference report of Master Albert dated May 28, 2014 in a construction lien action. She also appeals the July 27, 2015 order of $5,000 in costs.
2The Master found that the parties had an oral contract whereby the respondent agreed to renovate the appellant’s residence. She found that the appellant had anticipatorily breached the contract and she ordered the appellant to pay the respondent damages of $14,365.73 plus costs on a partial indemnity basis of $11,215.94. Of that, $8,500 was for fees.
3The appellant argues that the Master denied her procedural fairness in refusing to allow her to rely on an amended Scott Schedule at trial, because it was not filed in accordance with a timetable; that the Master made palpable and overriding errors in her treatment of the evidence; and that the cost orders of the Master and the motions judge are excessive.
4The motions judge set out the appropriate principles to be followed in a motion to confirm a reference report. She concluded that the Master made no error of law nor did she make any palpable and overriding errors of fact. I agree with her conclusion.
5The Master gave careful reasons for her findings of fact and credibility and she fairly assessed the evidence of both parties and made findings of credibility, adverse to both parties. There was ample evidence to support her findings that there was a contract, the terms of the contract and the appropriate measure of damages.
6I am not satisfied that the appellant was denied procedural fairness because of the Master’s refusal to admit the revised Scott Schedule at trial. The Scott Schedule is not a pleading, but rather an evidentiary aid. It was filed out of time, and the Master had the power to control the trial process. In any event, this ruling did not affect the outcome. The Master accepted the evidence of the appellant’s expert witness, Mr. Cordina, in making her calculation of damages, rather than relying on the Scott Schedule that was in evidence.
7Costs of the proceeding were in the discretion of the Master. She considered the relevant principles and made a reasonable award of costs.
8Accordingly, I see no reviewable error on the part of the motions judge in confirming the report of the Master. The award of costs for the motion was also reasonable. Therefore, the appeal is dismissed.
COSTS
9I have endorsed the Appeal Book, “This appeal is dismissed for oral reasons delivered by me today. Costs of the appeal fixed at $2,500.00 all inclusive, payable by the appellant. Approval of the draft order by the appellant is dispensed with.”
SWINTON J.
RADY J.
C. HORKINS J.
Date of Reasons for Judgment: February 17, 2016
Date of Release: February 19, 2016
CITATION: Xhebraj v. Bassi, 2016 ONSC 1207
DIVISIONAL COURT FILE NO.: 239/15
DATE: 20160217
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SWINTON, RADY AND C. HORKINS JJ.
BETWEEN:
NERITAN XHEBRAJ, carrying on business as NX Building and Maintenance Services Plaintiff (Respondent)
– and –
ANITA BASSI Defendant (Appellant)
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: February 17, 2016
Date of Release: February 19, 2016