CITATION: R&V Construction Management Inc. v. Baradaran, 2020 ONSC 3111
DIVISIONAL COURT FILE NO.: 184/19
DATE: 20200521
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
IN THE MATTER OF THE Construction Lien Act, R.S.O. 1990, c. 30
Sachs, D.L. Corbett and Sutherland JJ.
B E T W E E N:
R & V Construction Management Inc.
B. Bowles and L. Wang, for the Appellant
Plaintiff/Appellant
- and -
Manoucher Baradaran, Royal Bank of
Kenneth E. Wise, for the Respondent
Canada and Baybank Capital Inc.
Defendants/Respondent
- and -
SNC-Lavalin Inc.
Jay Nathwani, for the Intervenor
Intervenor
Heard at Toronto: October 2, 2019
REASONS FOR DECISION
D.L. Corbett and Sutherland JJ.:
Introduction
[1] This appeal is from a decision of Belobaba J. dated March 14, 2019 (2019 ONSC 1551), refusing confirmation of the report of Master Albert in which the Master granted summary judgment against the respondent/defendant (“Baradaran”).
[2] Master Albert issued her report following a motion brought by Baradaran under s.47 of the Construction Lien Act[^1] (“CLA”) in which Baradaran sought orders dismissing the action and returning his lien security or, alternatively, reducing his lien security. Only Baradaran’s motion was before Master Albert; R&V did not move for summary judgment.
[3] Master Albert’s report granted summary judgment to the plaintiff/respondent (“R&V”) in the amount of $78,573 (including interest) plus $26,634.32 for costs. In her report, Master Albert found that she had jurisdiction to use the “Enhanced Powers” accorded to judges on motions for summary judgment[^2] because she was acting in her capacity as a construction lien master to whom an action had been referred for trial under the CLA.
[4] On motion by Baradaran opposing confirmation of the Master’s report, the motions judge found that the Master did not have jurisdiction to use the Enhanced Powers. Therefore, he found that the Master exceeded her jurisdiction when she granted summary judgment for R&V. As a result, he declined to confirm the Master’s report and he remitted the case back to the Master for trial.
[5] R&V appeals to this court, asking us to reverse the motions judge’s decision and to confirm Master Albert’s report.
Summary and Disposition
[6] We agree with the motions judge that, in ordinary civil litigation, a master does not have the Enhanced Powers on a motion for summary judgment. However, in this case Master Albert was a referee to whom a construction lien action had been referred for trial. In this capacity, a master has all the powers of a construction lien referee and is not confined to the jurisdiction conferred on masters in ordinary civil litigation. The procedural powers of a construction lien referee include the full range of powers accorded to a judge under the Rules of Civil Procedure. These, in turn, include the Enhanced Powers that may be used on a motion for summary judgment. Accordingly, we conclude that the motions judge erred in finding that Master Albert acted without jurisdiction.
[7] This is an important practice point: in judicial regions with masters (including Toronto), construction lien cases are referred routinely to a master for trial. The jurisdiction of a master to conduct these trials, with all the power accorded to construction lien referees under the CLA, is an important aspect of maintaining the efficient specialized court that masters have become for the adjudication of construction lien cases.[^3]
[8] On the merits of this case, however, we conclude that the appeal should be dismissed. Although Master Albert had jurisdiction to use the Enhanced Powers on a motion for summary judgment, she did not have a motion for summary judgment before her. In proceeding as if she did, she deprived Baradaran, the self-represented defendant, of procedural fairness, and therefore her report cannot stand.
[9] By necessary implication, Master Albert rejected Baradaran’s motion pursuant to s.47 of the CLA. We agree with that aspect of her report. Therefore, for the reasons that follow, Master Albert’s decision granting summary judgment against Baradaran is set aside, Baradaran’s motion pursuant to CLA, s.47 is dismissed, and the case is remitted back to a construction lien master for disposition on the merits.
Background
[10] In February 2016, R&V, as contractor, entered into a contract with Baradaran, as owner, to repair flood damage and to perform other renovations to Baradaran’s home in North York. Disputes arose and on July 4, 2016, R&V registered a claim for lien against Baradaran’s home claiming $87,084.70, thus preserving its lien. R&V perfected its lien on August 23, 2016. Pleadings closed on September 10, 2016.[^4]
[11] On March 2, 2018, Lederer J. granted R&V’s motion for judgment referring the case to a master for trial. The terms of Lederer J.’s order are typical in construction lien references, and include:
- THIS COURT ORDERS AND ADJUDGES that this action be and the same is hereby referred to the Construction Lien Master at Toronto for trial.
After this order was made, Baradaran brought his motion pursuant to CLA, s.47.
Jurisdiction and Standard of Review
(a) Jurisdiction
[12] This is an appeal from a decision of a Justice of the Superior Court, deciding not to confirm a master’s report in a construction lien reference. Pursuant to CLA, s.71, this appeal is properly brought to the Divisional Court.[^5]
(b) Standard of Review
[13] This appeal turns on questions of jurisdiction and procedural fairness. The former is subject to review in this court on a correctness standard.[^6] The standard of review for procedural fairness is “fairness”.[^7]
Issue #1: Jurisdiction of the Master
(a) The Master’s Report
[14] The Master characterized the motion before her as a motion for summary judgment. She found that, as a construction lien master to whom the case had been referred for trial, she had all the powers of a judge, including the Enhanced Powers on a motion for summary judgment. She exercised those powers, disbelieved Baradaran’s evidence, accepted R&V’s evidence, and granted summary judgment for R&V.
(b) Decision of the Motions Judge
[15] The motions judge summarized the issue as follows:
The issue on this motion… is quite narrow: When deciding a motion for summary judgment, does a construction lien master have the statutory jurisdiction to use the so-called “enhanced powers” provided to a judge under Rule 20.04(2.1)?
The issue is not institutional capability but statutory jurisdiction. Masters are just as capable as federally-appointed judges to weigh evidence, assess credibility and draw reasonable inferences, and no one suggests otherwise. But do they have the statutory jurisdiction to do so?
In my view, the applicable statutes and rules as currently worded cannot be reasonably construed to provide masters with the jurisdiction to weigh the evidence, assess credibility or draw reasonable inferences as set out in Rule 20.04(2.1). If these Enhanced Powers are to be provided to Masters, a legislative amendment is needed.[^8]
On this basis, the motions judge concluded that “[t]he master should have dismissed the motion for summary judgment and proceeded with the trial.”[^9]
[16] The motions judge rested his conclusion on the following analysis:
(a) A Divisional Court decision, RSG Mechanical, finds that a master “does not, for the purposes of the reference, obtain the standing of or become a judge.”[^10] This decision is binding on both the master and on the motions judge.
(b) There is divided opinion among masters about their jurisdiction to use the Enhanced Powers.
(c) Authority from the Superior Court and the Divisional Court is, however, unanimous that masters may not use the Enhanced Powers.
(d) There is nothing in the CLA that suggests that masters may use the Enhanced Powers.
[17] We do not agree with these findings; we address each in turn.
A. Divisional Court Authority: RSG Mechanical is Distinguishable
[18] RSG Mechanical was very different from the case before us. In RSG Mechanical, the Master found that, since he was trying a construction lien reference and had all the powers of a judge, he was therefore at the same level as a judge for the purposes of precedent. Consequently, he found that he was not bound by decisions of Superior Court judges.
[19] Of course, the master did not become a judge because a construction lien trial was referred to him. He became a referee, under the Rules of Civil Procedure, and a person to whom a trial had been referred under the CLA. A referee’s decision is subject to confirmation by a Justice of the Superior Court, establishing that the referee is acting on referral from, and is subordinate to, the Superior Court. In technical application, precedent binds if it comes from a court that has the power to review the decision of the court applying precedent.[^11] The fact that a report from the construction lien master is subject to confirmation in the Superior Court is a complete answer to the proposition that a master is not bound by Superior Court authority when trying any matter referred to her by the Superior Court. It was in this context that the Divisional Court held that the master “does not, for the purposes of the reference, obtain the standing of or become a judge.”
[20] The decision in RSG Mechanical had nothing to do with the powers of a master, in her capacity as a referee, to whom a construction lien trial has been referred. It concerns the extent to which the master is bound by precedents of the Superior Court. RSG Mechanical is clearly distinguishable from the case at bar.
B. No Divided Authority Among the Masters
[21] The motions judge noted that Masters Polika, Sandler and Albert have all found that they have “all the powers of a judge to determine… [a] summary judgment motion” when acting as a construction lien reference master.[^12] The motions judge also noted that two other masters have come to a contrary conclusion: Master MacLeod (as he then was) and Master Short .[^13]
[22] We do not agree that opinion is divided among masters on this issue. Masters Polika, Sandler and Albert have all found that they have the Enhanced Powers when deciding a motion for summary judgment brought in a case referred to them under the CLA. The decision cited of Master MacLeod (as he then was) does not say otherwise. The case before Master MacLeod was not a construction lien reference; it was an ordinary piece of civil litigation.[^14] Similarly, the decision of Master Short, while it related to matters involving construction liens and construction trusts, was not made in a construction lien action referred to him for trial.
[23] As the masters understand, they are creatures of statute, not courts of inherent jurisdiction, and their jurisdiction arises from the instruments that give them jurisdiction. It is undoubtedly true that in ordinary civil litigation, masters may not exercise the Enhanced Powers. This includes construction disputes that are not construction lien references. The decisions of Master MacLeod (as he then was) and Master Short to this effect, are not in conflict with the decisions of Masters Polika, Sandler and Albert, noted above.
C. No Unanimous Authority from the Superior Court and the Divisional Court
[24] The motions judge cited two cases to establish this point: the decision of the Divisional Court in RSG Mechanical (which we have already addressed above), and the decision of Heeney R.S.J. in Kieswetter v. Traugott.[^15]
[25] The dicta of Heeney R.S.J. in Kieswetter on this point must be read in context. The issue of whether a master has the Enhanced Powers when presiding on a construction lien reference was not squarely before Heeney R.S.J., and it does not appear that the point was argued before him: none of the authority to the contrary was put to him for his consideration.
[26] The issue before Heeney R.S.J. was whether a plaintiff in a construction lien case should be granted leave to bring a motion for summary judgment for some, but not all, of its claims in the action.[^16] Ultimately Heeney R.S.J. permitted the motion to proceed.
[27] Counsel for the defendant, in resisting the request that leave be granted, relied upon a decision of Master MacLeod (as he then was) for the proposition that a summary trial would be a better way of proceeding than a motion for partial summary judgment. Heeney R.S.J. stated as follows in respect to this argument:
Ms Cooper, for Traugott, relies on the decision of Master MacLeod in Exteriors by Design v. Traversy, 2012 ONSC 3164 (Ont. Master), which was also a construction lien case. There, the Master cast doubt on the efficacy of a summary judgment motion where the matter could be dealt with by summary trial. He said this, at para. 7:
A quick two day summary trial which will finally determine all matters is preferable to arguing a half-day improbable motion for summary judgment which may still require a trial for some or all of the issues.
That decision, however, must be read with caution, because a Master does not have the power to weigh evidence, evaluate credibility and draw reasonable inferences from the evidence that is granted to a judge on a summary judgment motion, pursuant to Rule 20.04(2.1). Master MacLeod appears to recognize the limitation on his powers on the motion at para. 6, where he says the following:
There is therefore a real question as to whether or not arguing summary judgment motion[s] meets the needs of the case when a summary trial procedure is available at which the presiding judicial officer is fully empowered to determine all issues of fact and law.[^17]
Heeney R.S.J.’s observation is correct and was a proper basis on which to distinguish the decision of Master MacLeod – because, though the case arose under the CLA, Master MacLeod was not exercising the jurisdiction of a master to whom a construction lien action had been referred for trial.
[28] Exteriors by Design was a construction lien case, but a case which had not yet been referred to the master for trial. That is a central point of Master MacLeod’s decision: it would be better to obtain judgment for a reference, after which the master would be “fully empowered to determine all issues of fact and law”. Master MacLeod does not rule on what powers he would have on a motion for summary judgment after referral to the master for trial under the CLA.
[29] Heeney R.S.J. did not put his mind to the question of whether the powers of a master in a construction lien reference are different from the powers of a master in ordinary civil litigation. He did not refer to any of the controlling legislation, the applicable Rules, or any of the jurisprudence on this issue.[^18] There is nothing in the decision to suggest that this point was contested before him. His dicta were for the purpose of explaining why he was treating the analysis of Master MacLeod with caution, as it applied to the case before him. Heeney R.S.J.'s dicta was obviously not intended as an authoritative determination of a controversial legal point.
[30] Kieswetter is the only Superior Court decision cited by the motions judge to establish unanimous authority in the Divisional and Superior courts on this issue. In our view neither decision stands for the proposition for which it is cited.
D. Authority in the CLA
[31] The motions judge correctly found that the CLA prevails over the Rules of Civil Procedure in construction lien actions.[^19] The Rules apply to construction lien proceedings, “except where inconsistent with” the CLA.[^20] That is, where there is a conflict between the Rules of Civil Procedure and the CLA, the CLA governs.
[32] The motions judge also found correctly that the CLA is remedial legislation intended to provide security for work and materials provided in construction projects and a relatively inexpensive and expeditious process to resolve related disputes.[^21] The CLA should be “implemented procedurally in such a way as to advance the objective of providing a summary and inexpensive remedy.”[^22]
[33] However, the motions judge considered that it was “obvious from a plain reading of the CLA” that the “legislated remedy of choice was the summary trial”. He found that the use of the words “trial”, “try” and “action” show that the legislature intended that construction lien disputes be resolved by way of a trial and not by way of motions for summary judgment. In our view this conclusion is not correct and runs contrary to established practice in construction lien cases since 1982. By logical implication, it would preclude motions for summary judgment under Rule 20 and motions to dismiss under Rule 21, because disposition before trial would run counter to the principle that construction lien actions must be tried. Alternatively, by logical implication, motions under RR. 20 or 21 would have to be referred back to a judge. In our view there is nothing in the analysis of the motions judge to distinguish these methods of disposing of a case before trial from the use of the Enhanced Powers on a motion for summary judgment. We are of the view that motions under RR. 20 and 21 may be brought before a master, if leave is granted, in cases referred to the master for trial under the CLA. Where a R.20 motion is brought in such a case, for the reasons set out below, the master may use the Enhanced Powers.
The Correct Analysis
[34] The starting place for analysis is the CLA. Section 58 sets out the power of a judge to refer “the whole action or any part of it for trial”
(a) to a master assigned to the area in which the premises or part of the premises are situate;
(a.1) to a case management master; or
(b) to a person agreed on by the parties.
One might take from the provision that a trial is required: the order refers the case “for trial”. But subsections 58(4) and (4.1) provide that a person to whom a construction lien action is referred, pursuant to s.58(1):
… has all the jurisdiction, powers and authority of the court to try and completely dispose of the action and all matters and questions arising in connection with the action, including the giving of leave to amend any pleading and the giving of directions to a receiver or trustee appointed by the court.
One might argue that the use of the words “to try” limits the jurisdiction of the referee to conducting a trial, excepting only the interlocutory steps expressly mentioned in s.58(4). However, the rest of this subsection confers jurisdiction including “all matters and questions arising in connection with the action”, which includes interlocutory proceedings.
[35] If it was not thought that this jurisdiction granted to a construction lien referee includes all appropriate interlocutory proceedings, then s.67 of the CLA makes it clear that this is so. It states:
(1) The procedure in an action shall be as far as possible of a summary character, having regard to the amount and nature of the liens in question.
(2) Interlocutory steps, other than those provided for in this Act, shall not be taken without the consent of the court obtained upon proof that the steps are necessary or would expedite the resolution of the issues in dispute.
(3) Except where inconsistent with this Act, and subject to subsection (2), the Courts of Justice Act and the rules of court apply to pleadings and proceedings under this Act.
[36] Construction lien masters can, and in appropriate cases do, hear interlocutory motions, where in the master’s opinion, it has been shown that the steps are necessary or would expedite the resolution of issues in dispute. Such motions can include motions under Rules 20 and 21 for disposition of the case, or issues in the case, without a trial.
[37] The motions judge’s reasoning is that a “summary trial” is the process chosen by the legislature, and therefore the master does not have jurisdiction to dispose of a construction lien action except by way of a trial. In so concluding, the motions judge did not reference the many cases in which motions for summary judgment, or for judgment under Rule 21, have been brought and decided by a construction lien master. The motions judge’s decision, by implication, rules that these motions under RR.20 and 21 are without jurisdiction, a conclusion that would upend nearly forty years of practice under the CLA.
[38] Indeed, the CLA does not create a process called a “summary trial”. There is nothing in the CLA that prescribes the summary nature of construction lien proceedings, other than the provisions we have quoted above.[^23] The one provision that prescribes “summary process” [s.67(1)] does not refer to a trial, but to the “procedure in an action”. While it is true that construction lien masters have developed a process for summary construction lien trials, generally used where proportionality so recommends, that is a practice that has been developed in reliance on the general authority conferred on masters under the provisions we have cited above. The summary trial is one solution – often a good solution – developed by construction lien masters to exercise their jurisdiction under the CLA.
[39] Disposition of an action without trial is one way to dispose of a case summarily. An interpretation of the CLA that requires that all actions be tried, rather than disposed of by other means, flies in the face of the statutory requirement for summary process. Motions for disposition without trial are interlocutory motions that are not permitted except with the “consent of the court” under s.67(2): so, the parties may only bring a motion (including a motion for disposition without trial) where they satisfy the test in s.67(2). Where a construction lien master is satisfied that a motion for summary judgment “would expedite the resolution of the issues in dispute”, the master may consent to a motion for summary judgment being brought. When a construction lien master does give such consent, pursuant to s.58(1), the master “has all the jurisdiction and powers of the court to try and completely dispose of the action….” Included in those powers “to completely dispose of the action” is the use of the Enhanced Powers on a summary judgment motion.
[40] In our view the motions judge erred in finding that Master Albert was without jurisdiction to use the Enhanced Powers in a motion for summary judgment while sitting in her capacity as a construction lien master under the CLA.
[41] We would add one final point. As stated above, a master’s jurisdiction is statutory: in construction lien cases, it arises under the CLA, the Courts of Justice Act, and the Rules of Civil Procedure. A master may be called upon to adjudicate an issue in a construction lien case at two distinct times: before the case has been referred to a master for trial, and after a judge has referred the case to a master for trial. In the former situation – which arises frequently – the Master is acting solely as a Master under the Rules of Civil Procedure and does not have the jurisdiction, power and authority of a judge pursuant to CLA, s.58(1). It is only once the reference has been made to a master by a judge that a master gains the jurisdiction conferred by s.58(1).
[42] The respondent also argued before us that affording masters the use of the Enhanced Powers on motions for summary judgment would be unconstitutional. This argument was not made to the motions judge. We see little merit in it. It is settled law that construction lien cases may be referred by a s.96 judge to a master for trial. We cannot see how a constitutional concern arises, where there otherwise would be none, because a case is dealt with by way of a motion for summary judgment rather than by way of a trial.[^24]
Procedural Fairness
[43] As stated above, the motion before Master Albert was brought by Baradaran under s. 47 of the CLA for an order discharging R&V’s lien and dismissing the action or, in the alternative, an order reducing lien security. Only Baradaran’s motion was before the court; R&V did not move for summary judgment.
[44] At the outset of her reasons, the Master incorrectly described the motion:
Mr Baradaran asks the court to discharge the lien, release the security posted to vacate the lien and strike the claim by way of summary judgment on grounds that all amounts owing to RV have been paid in full. (para. 4) (emphasis added)
Following this introduction, the Master found that she had all the powers of a judge on a motion for summary judgment including the Enhanced Powers.
[45] CLA, s.47 provides:
(1) The court may, on motion, order the discharge of a lien,
(a) on the basis that the claim for the lien is frivolous, vexatious or an abuse of process; or
(b) on any other proper ground.
(1.1) The court may, on motion, make any of the following orders, on any proper ground:
An order that the registration of a claim for lien, a certificate of action or both be vacated.
If written notice of a lien has been given, a declaration that the lien has expired or that the written notice of the lien shall no longer bind the person to whom it was given.
An order dismissing an action.
(1.2) An order under subsection (1) or (1.1) may include any terms or conditions that the court considers appropriate in the circumstances.
[46] A motion under CLA, s.47 may be brought before a master before or after a construction lien action has been referred to the master for trial. It is a discrete step in construction lien proceedings, used to dispose of liens that are out of time, have been registered against the wrong property, have failed to name a necessary party, or have other fatal defects. A s.47 motion is routinely a master’s motion – whether brought before or after a case has been referred to the master for trial – and it is not a motion for summary judgment under R.20 of the Rules. There is no requirement for parties to “put their best foot forward”. And a s.47 motion is always a defence motion: it does not provide a means for a plaintiff to move for judgment: this is clear from the remedies available under s.47: they do not include granting judgment for the plaintiff.
[47] It is fundamental to a fair process that parties have notice of the issues that are before the court. This is trite law. Baradaran’s motion, brought under s.47 of the CLA, did not give him notice of a motion for summary judgment under R.20 in which the court could grant judgment against him. And yet the court proceeded to do precisely that. This was unfair.
[48] This unfairness could have been cured by a fair process before Master Albert. For example, the court could have advised the parties that it appeared to her that she had a complete record and could decide the case – one way or another – on the record before her. If the parties agreed, then the lack of notice could have been cured by the process followed by the court thereafter. If the parties did not agree, the Master would have had to consider what steps were necessary to accord procedural fairness to both sides (such as an adjournment for Baradaran to consult and perhaps retain counsel for the motion). That did not happen here. We quote and annotate the transcript from the hearing to show how the unfair lack of notice was not cured and, but rather was repeated and compounded during the hearing.
[49] The Master started the hearing by mis-stating the issue before her:
… We’re here to hear the motion brought by the defendant Manoucher Baradaran for summary judgment on this lien claim…. (Transcript, page 1)
The Master followed this up by trying to assist the self-represented Baradaran and stated as follows:
Just to offer you guidance: on a motion for summary judgment this isn’t a trial. On the summary judgment motion the overriding issue I have to assess is whether there’s a genuine issue that requires a trial…. Or whether there is enough evidence that is clear enough on the motion that I can make a judgment on the motion…. That’s the test I have to apply. (Transcript, page 3)
[50] Baradaran stated that he agreed with what the Master had just said, and then added the following:
Yes. For the record the defendants Manoucher Baradaran bring this motion pursuant to s.47(1) of the Construction Lien Act, and for the order that’s discharging the lien which was registered against my former house title. And to that end we are here today. (Transcript, page 3)
No one noted that Baradaran’s characterization of the motion (which was correct) and the Master’s characterization of the motion (which was incorrect) were not the same. Everyone seemed to think that they all understood what they were there to do. Without further discussion to clarify these issues, Baradaran addressed the merits of his motion.
[51] Baradaran and the court addressed various factual issues respecting the merits, and the next reference to the issue before the court was when the Master said:
I understand your arithmetic based on your evidence. What I question is this, for the purposes of this motion and remember the test is whether there is a genuine issue for trial, the plaintiff has admitted some of the payments, the cheques, but the plaintiff denies receiving some of the payments that you rely on, and that raises a genuine issue for trial does it not? (Transcript, page 12)
[52] Baradaran goes on at length to argue that the Master has all the evidence before her, and that there will not be any better evidence at trial (Transcript pages 16-32). He even refers to the Hryniak decision in his argument – the leading decision on summary judgment from the Supreme Court of Canada (Transcript, page 30). This point is summarized in the following exchange between Baradaran and the Master:
THE COURT: Your point is that taking this on to trial is not going to give rise to any better evidence than is before the court today?
MR. BARADARAN: Exactly.
THE COURT: That is essentially your point?
MR. BARADARAN: That is. Yes. …. (Transcript, page 32)
[53] Baradaran’s position was that the plaintiff’s case could not possibly succeed because the plaintiff’s principal, Reza, died before trial without his evidence being preserved. Baradaran’s evidence was that key arrangements – agreements and cash payments – were made between him and Reza, without other witnesses present. With Reza now dead, and Reza’s evidence not before the court, he argued, R&V had no evidence to contradict Baradaran’s sworn evidence, and so there must be judgment for him.
[54] R&V’s argument responded to Baradaran’s position. Counsel for R&V started by framing the issue as follows:
Mr Baradaran brings this motion under section 47 of the Construction Lien Act to dismiss the plaintiff’s action, discharge the lien and return the security paid into court. The parties are in agreement that as a motion under section 47, the onus is on Mr Baradaran to show there is no genuine issue for trial. (Transcript, page 35)
Counsel summarized his position on the key factual disputes and then concluded his opening:
On all these points our position will be that there is a genuine issue for trial which requires viva voce evidence to determine these issues. (Transcript, page 36)
[55] Counsel for R&V was clear: he was seeking a trial. The Master questioned counsel on this point, suggesting that “in lien references… when the matters in issue are… modest amounts…” that recourse should be had to a summary trial process. Counsel agreed with this suggestion, given that the amount in issue was about $87,000. (Transcript, page 36)
[56] There was no discussion between counsel and the court about Hryniak or other authorities related to motions for summary judgment. There was, however, discussion as to whether the Master should make findings of fact based on the evidence before her to “narrow the issues for trial”. (Transcript, page 41)
[57] When Baradaran made reply submissions, the Master once again characterised the motion as a motion for summary judgment. She said:
… one of the findings for you to succeed on this motion as a summary judgment motion and not have the court go on to trial… I have to make a finding as to whether R&V completed the scope of work in the contract….
Baradaran and the court went back and forth on this issue – Baradaran argued that the contract was not completed, or if it was completed, then the work was deficient. Shortly thereafter the court recessed for the lunch break. On resuming after lunch, the Master asked a few questions further and then said as follows:
So this is where we stand. We’ve run out of time. I cannot hear you on costs today. I am going to give you my disposition. My disposition is based on finding that there are no genuine issues for trial. There is the best evidence. R&V has proven a lien claim and that lien claim when I make all the calculations is $78,573.70. The monies in court will be used to pay it.
The Master then spoke with counsel for R&V about the timing for written costs submissions. Then Baradaran said as follows:
MR. BARADARAN: Sorry, what is happen? I do not understand. What is your position, Master?
THE COURT: I am granting you the summary judgment motion, but I am finding that the lien claim has been proven and that the lien claimant is entitled to be paid. There is no genuine issue that requires a trial.
[58] Both counsel and the court have an obligation to a self-represented litigant to ensure that he understands the process before the court. That did not happen here. This was a motion under s.47 of the CLA. That is clear from the motion materials and was confirmed by Baradaran and by counsel for the plaintiff in their opening submissions. The core of Baradaran’s submission (faulty in its premise, but clear in its exposition) was that because the plaintiff’s principal, Reza, was dead, Baradaran’s evidence was now uncontested and so R&V could not succeed at trial.
[59] Baradaran’s position on this issue was flawed. The court is entitled to look at all the evidence in the case – the totality of circumstances, the documentary evidence that does exist, and the court is also entitled to draw inferences from the absence of evidence. The court is not required to accept Baradaran’s evidence even if there is no oral testimony to contradict it.
[60] However, Baradaran did not understand at any point – right up to the time that the Master provided her decision – that the court could disbelieve him and grant judgment against him in deciding his motion under s.47. That issue was not raised in the motion materials, that position was not taken by R&V in its factum or in argument, it was not stated to Baradaran at any time during argument. It was not until judgment was announced that it came to Baradaran’s attention – and his response was – understandable in the circumstances – “I do not understand”.
[61] The Enhanced Powers are not available on a motion pursuant to s.47, which is not a motion for summary judgment under R.20 of the Rules of Civil Procedure. The Master erred in characterizing the motion as she did, and she deprived Baradaran of procedural fairness by treating the motion before her as a motion for summary judgment. For this reason the Report of the Master cannot stand. Therefore, in the result, the decision of the motions judge declining to confirm the Master’s report is upheld.
[62] The Master did not rule expressly on the s.47 motion itself, but by necessary implication she rejected it. The Master did not err in rejecting the s.47 motion by implication, and that issue should not be relitigated below. Subject to that caveat, the case is returned to the Master for disposition (which could be by way of a properly constituted motion for summary judgment).
[63] Master Albert has retired; the case may proceed before any other construction lien master in Toronto.
Costs
[64] R&V has succeeded on Baradaran’s motion under s.47 of the CLA, the matter that was properly before Master Albert. Baradaran has succeeded before us on the issue of summary judgment granted against him. The issue decided by the motions judge was raised by the court, not the parties, and we have found that it was decided below in error: we would not require either party to pay costs for the motion before the motions judge. In our view, the fair thing to do, as regards costs, is to conclude that the costs before the Master (in favour of R&V) and the costs before us (in favour of Baradaran) should cancel out, and that there be no order for costs throughout.
Order
[65] The appeal is dismissed, excepting only that the costs order of the motions judge is set aside. Baradaran’s motion pursuant to s.47 of the CLA is dismissed. There shall be no costs of the motion before the motions judge, the motion before Master Albert, or in this court. There shall be no costs for or against the intervenor.
___________________________ D.L. Corbett J.
___________________________ Sutherland J.
I agree: ___________________________
Sachs J.
Date of Release: May 21, 2020
CITATION: R&V Construction Management Inc. v. Baradaran, 2020 ONSC 3111
DIVISIONAL COURT FILE NO.: 184/19
DATE: 20200521
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Sachs, D.L. Corbett and Sutherland JJ.
BETWEEN:
R&V Construction Management Inc.
Plaintiff/Appellant
– and –
Manoucher Baradaran, Royal Bank of Canada and Baybank Capital Inc.
Defendants/Respondent
– and –
SNC Lavalin Inc.
Intervenor
REASONS FOR DECISION
D.L. Corbett J.
Date of Release: May 21, 2020
[^1]: RSO 1990, c. C.30. The CLA was amended in 2017 by the Construction Lien Amendment Act S.O. 2017, c. 24, and is now known as the Construction Act. The provisions of the CLA apply in this matter given that the contract in question was entered into in 2016, before the amendments became operative in 2018, per section 87.3(1). All citations to the CLA in this judgment are the CLA, as amended, immediately prior to the coming into force of S.O. 2017, c.24.
[^2]: See para. 15, below, in which the “Enhanced Powers” are defined in the decision of the motions judge.
[^3]: See RR. 54 and 55 of the Rules of Civil Procedure, especially R.54.05 (Motions on a Reference) and 55.01(1) (General Provisions for Conduct of Reference).
[^4]: Other parties were named in the statement of claim, but proceedings against those other parties were disposed of, by way of the dismissal order of Master Albert in favour of Baybank Capital Inc. on June 14, 2017, and by way of a notice of discontinuance as against Royal Bank of Canada. The respondent brought a counterclaim, but this was dismissed on consent. At some point Baradaran posted security to remove the lien from title and then sold the home.
[^5]: CLA, s.71(1).
[^6]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235, para. 40; Yorkwest Plumbing Supply Inc. v. Nortown Plumbing (1998) Ltd. et al., 2014 ONSC 5655, para. 1; Unwin v. Crothers, 2005 23337 (ON SC), para. 38.
[^7]: Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 SCR 817.
[^8]: R&V Construction v. Baradaran, 2019 ONSC 1551, paras. 1-3. We note that the motions judge did not find that it would be constitutionally impermissible for masters to exercise the Enhanced Powers on motions for summary judgment and it appears that this issue was not argued before him.
[^9]: R&V Construction v. Baradaran, 2019 ONSC 1551, para. 4.
[^10]: RSG Mechanical Inc. v. 1398796 Ontario Inc., 2015 ONSC 2070, para. 37 (Div. Ct.). See R&V Construction v. Baradaran, 2019 ONSC 1551, paras. 7-8.
[^11]: Thus, for example, this court is bound by decisions of the Ontario Court of Appeal and the Supreme Court of Canada but is not bound by decisions of other Canadian appellate courts. Those other appellate authorities are “persuasive authority” rather than “binding authority” in this court.
[^12]: 6007325 Canada Inc. v. LPQ 18 Yorkville Avenue Inc., 2010 ONSC 2844, paras. 13-17 (Master Polika); DCL Management Ltd. v. Zenith Fitness Inc. et al., 2010 ONSC 5915, para. 9 (Master Sandler); Limen Structures Ltd. v. Brookfield Multiplex Construction Canada Ltd., 2016 ONSC 5107, para. 23 (Master Albert); Walsh Construction / Bondfield Partnership v. Chartis Insurance Co. of Canada, 2017 ONSC 3985, para. 18 (Master Albert.
[^13]: 90 St. George St. v. Reliance Construction, 2012 ONSC 1171, paras. 28 and 36 (Master McLeod, as he then was); Campoli Electric v. Georgian Clairlea, 2017 ONSC 2784 (Master Short).
[^14]: 90 St. George St. v. Reliance Construction, 2012 ONSC 1171. The case did arise from a construction contract, but it was not brought under the CLA. Master MacLeod was acting as a Master under the Rules of Civil Procedure, and not as a Master to whom a case had been referred for trial under the CLA.
[^15]: Kieswetter v. Traugott, 2014 ONSC 1397.
[^16]: The motion was argued in Stratford, Ontario, a jurisdiction in which there are no masters.
[^17]: Kieswetter Demolition (1992) Inc. v. Traugott Building Contractors Inc., 2014 ONSC 1397, 30 C.L.R. (4th) 59 (emphasis added by Heeney R.S.J.).
[^18]: The two authorities cited by Heeney R.S.J. on this point – both from Master MacLeod (as he then was) – were construction cases, but not construction lien cases. In both cases Master MacLeod was presiding as a master in ordinary civil litigation and not in a construction lien action referred to him for trial: 90 George St. v. Reliance Construction Canada et. al.2012 ONSC 1171 (Master) and Mehdi-Pour v. Minto Developments et al. 2010 ONSC 5414 (Master); affirmed 2011 ONSC 3571 (Div. Ct.); leave to appeal refused Oct. 20, 2011 (M40188) (C.A.).
[^19]: R&V Construction v. Baradaran, 2019 ONSC 1551, para. 21.
[^20]: CLA, s.67(3). As noted by the motions judge, this principle of statutory paramountcy over the Rules is also provided in the Courts of Justice Act, RSO 1990, c. C.43, s.66(3), which states that the Rules Committee cannot make rules in conflict with a statute.
[^21]: R&V Construction v. Baradaran, 2019 ONSC 1551, para. 22; see Report of Attorney General’s Advisory Committee on the Draft Construction Lien Act, 1982 (a copy of which may be found at Appendix A to Duncan Glaholt and David Keeshan, The 2019 Construction Lien Act (Toronto: Carswell, 2018); PCR Contractors Inc. v. Wilson Station Development Corp., 2015 ONSC 6319, para. 20.
[^22]: R&V Construction v. Baradaran, 2019 ONSC 1551, para. 22; Hamilton & Landscaping & Paving v. 603893 Ontario Inc., 1988 CarswellOnt 760, para. 11.
[^23]: Other than motions expressly provided in the CLA: no argument has been made and no authority provided, that suggests that the requirement that proceedings be “as summary as possible” is limited to the motions expressly provided in the CLA.
[^24]: We note that Notices of Constitutional Question do not appear to have been served in respect to this issue on the Attorneys General pursuant to s.109 of the Courts of Justice Act, RSO 1990, c.C.34, s.109.