Court File and Parties

CITATION: Prasher Steel Ltd. v. Maystar General Contractors Ltd., 2020 ONSC 6598

Court File No.: 649/19

Date: 2020-10-28

Superior Court of Justice – Divisional Court - Ontario

Re: Prasher Steel Ltd. v. Maystar General Contractors Ltd.

Counsel: Rocco A. Ruso, for the Appellant Angela Assuras, for the Respondent

Heard: October 28, 2020

Before: D.L. Corbett J.

Endorsement

[1] This is an appeal from the Master on a judgment granted on motion to enforce a settlement under R.49 or for summary judgment under R.20.

[2] The appellant raises an issue with the Master’s jurisdiction to hear the motion. In my view the Master correctly found that he did have jurisdiction.

[3] An order for a construction lien reference was made in this case by Pollak J. in 2013. No judgment or reference report was issued prior to the motion before the Master, so the case was still before the Master on a construction lien reference at the time of the motion. In this situation, the Master had “all the powers of a judge” to hear and decide the case: Construction Lien Act, RSO 1990, c. C.30, s.58; R & V Construction Management Inc. v. Baradaran, 2020 ONSC 3111. This included the power to decide a motion under R.49 or under R.20.

[4] There is one problem, however. As a construction lien reference Master, the Master was required to embody his findings in a Report, which would then be subject to confirmation in the Superior Court pursuant to the Rules of Civil Procedure. The distinction between a Judgment and a Report matters: it determines the routes by which the Master’s decision may be reviewed and appealed. In particular, once the Master issues his Report, it is for an objecting party to move before a single judge of the Superior Court to oppose confirmation of the Master’s Report. The judge’s decision on the motion to oppose confirmation is then subject to appeal to a panel of the Divisional Court. An appeal from a final order granted by the Master is to a single judge of the Divisional Court, and thereafter to the Court of Appeal, with leave. In my respectful view, the Master erred in granting Judgment rather than issuing a Report, this error materially affects review and appeal rights, and cannot be allowed to stand for that reason.

[5] The appeal is allowed, the judgment is set aside, and the case is remitted back to the Master to issue a Report in accordance with his findings on the motion. I have directed the parties to prepare a draft Report for the Master’s consideration and to provide that draft to the Master after this endorsement has been released.

[6] The appellant will be moving to oppose confirmation of the Master’s Report, and should do so promptly after release of the Master’s Report: the parties will not need to do much to finalize the materials they need for the motion to oppose confirmation once they have the Master’s Report in hand. They should arrange for triage of the motion at an early date. The motion itself should be focused on one or two issues, the jurisdictional issue having been disposed of by this court.

[7] Once the parties have a decision from a judge on the motion to oppose confirmation of the Report, if either party decides to appeal to this court, the parties may obtain a case management teleconference with me to schedule a return of the appeal before the panel. As I indicated to the parties, it should be possible to use the materials already prepared for this appeal, with updated factums and records to reflect the motion to oppose confirmation.

[8] I appreciate that the steps directed in this endorsement will lead to delay and expense for the parties. I also appreciate that the issue on which this appeal has been decided was not raised before the Master and was raised in this court by the court. However, it is an important point of practice in construction lien cases and affects the proper appeal routes: it is an error that cannot be ignored in this court.

[9] Costs of the appeal to be considered as part of the costs of the motion to oppose confirmation of the Master’s Report.

D.L. Corbett J.

Date: October 28, 2020