The Bank of Nova Scotia v. Liberty Mutual Insurance Company et al. [Indexed as: Bank of Nova Scotia v. Liberty Mutual Insurance Co.]
67 O.R. (3d) 699
[2003] O.J. No. 4474
No. 346/03
Ontario Superior Court of Justice Divisional Court, McRae, Dunnet and Jennings JJ. October 24, 2003*
- Reasons releaased November 5, 2003.
Civil procedure -- Appeals -- Order of case management master -- Standard of appellate review. [page700]
On an appeal from an order of a case management master, the standard of review is as follows: (a) if the matter is one of discretion, the court should not interfere unless the master was clearly wrong; (b) if the matter is one of law that is not vital to the disposition of the lawsuit, the court should not interfere unless the master was clearly wrong; and (c) if the matter is one of law that is deemed vital to the disposition of the lawsuit, the test is of correctness. Where the master's order deals with an interlocutory matter not vital to the disposition of the lawsuit, the appeal is heard as an appeal and not de novo.
The judgment of the court was delivered by
Cases referred to Noranda Metal Industries Ltd. v. Employer's Liability Assurance Corp. (2000), 2000 50967 (ON SC), 49 C.P.C. (4th) 336 (Ont. S.C.J.)
APPEAL from an order affirming an order of a case management master on the issue of documentary production on a motion.
Andrew A. Evangelista and Jennifer Kent, for plaintiff (appellant). Brian J.E. Brock, Q.C., and Christopher R. Dunn, for defendants (respondents).
[1] DUNNET J. (orally): -- This is an appeal by the Bank of Nova Scotia from the decision of Nordheimer J. upholding on appeal the decision of Master Kelly on the issue of documentary production on a motion.
[2] In July 2002, the respondent brought a motion to stay the action on the ground that the issues between the parties required that the appellant's claim be submitted to arbitration.
[3] The appellant's response was to seek to obtain full documentary disclosure prior to the stay motion being heard. Master Kelly rejected the appellant's request for such an order.
[4] In August 2002, the stay motion came on for hearing before Lederman J. and the appellant renewed its demand for prior complete documentary production. Lederman J. declined to make such an order, but did order limited production of documents relevant to the stay motion.
[5] Unsatisfied with the extent of the respondents' production, the appellant returned to Master Kelly with a motion for compliance with the order of Lederman J.
[6] Master Kelly ruled on which documents were properly producible under the order of Lederman J. The appellant appealed the Master's order to Nordheimer J. and the appeal was heard on May 5, 2003.
[7] Nordheimer J. observed that he was "left with the distinct impression that the [appellant], having failed before Lederman J. [page701] to obtain full documentary production in advance of the argument of the motion to stay, is now attempting to achieve the same result through its attack on the Master's decision". He dismissed the appeal.
[8] Leave to appeal to this court was granted by Lang J., who found that there appeared to be conflicting decisions on the appropriate standard of review of orders of case management Masters and the matter was of sufficient importance to warrant review.
[9] In dealing with the standard of review, Nordheimer J. referred to what he had said in his decision in Noranda Metal Industries Ltd. v. Employer's Liability Assurance Corp. (2000), 2000 50967 (ON SC), 49 C.P.C. (4th) 336 (S.C.J.).
[10] In Noranda Metal, Nordheimer J. established a standard of review of deference for all matters not vital to the disposition of the lawsuit. He said at paras. 7-9:
My view is that the appropriate standard of review is one of deference or, put another way, that these motions ought to be heard as appeals and not de novo. I come to this view for a number of reasons. First, it does not appear to me to be desirable, or logical, to have two different standards of review from decisions of the Master at least with respect to interlocutory matters which do not involve issues "vital to the disposition of the law suit" such as were considered in Westminister Canada Holdings Ltd. v. Coughlan (1990), 75 O.R. (2d) 405 (Ont. Div. Ct.). Secondly, matters involving the production of documents and the appropriateness of questions on examinations for discovery are matters which, under the Rules of Civil Procedure, are normally determined by Masters in the first instance. They are on the "front line" in determining such matters. The expertise that they develop, as a consequence, ought to be entitled to a measure of deference. Thirdly, if these matters are heard de novo, it simply encourages parties to launch such reviews and thereby adds to the costs and length of proceedings which is inconsistent with the fundamental purpose of the Rules of Civil Procedure as embodied in rule 1.04(1), namely:
These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
Finally, this is a case managed action. The purpose of case management, as stated in rule 77.02 is:
The purpose of this Rule is to establish a case management system throughout Ontario that reduces unnecessary cost and delay in civil litigation, facilitates early and fair settlements and brings proceedings expeditiously to a just determination while allowing sufficient time for the conduct of the proceeding.
Case Management Masters play an important role in shepherding cases through the pretrial process and ensuring that the purposes of Rule 77 are achieved. In furtherance of their role in this regard, Case Management Masters must have the ability to exercise some reasonable and fair control over the discovery process without being second-guessed by [page702] judges who will normally be very much less familiar with the history of the proceeding. . . .
[11] We are of the view that Noranda Metal does not dismiss the former standards of review in situations where the decision being reviewed is one determined to be vital to the ultimate disposition of the case, nor does it obviate the necessity of the reviewing court to determine the standard of review of a Master's decision on a case-by-case basis.
[12] We accept that the test to be applied on the review of a Master's decision is as follows: (a) if the matter is one of discretion, the court should not interfere unless the Master was clearly wrong; (b) if the matter is one of law that is not vital to the disposition of the lawsuit, the court should not interfere unless the Master was clearly wrong; and (c) if the matter is one of law that is deemed vital to the disposition of the lawsuit, the test should be one of correctness.
[13] Where the Master is dealing with interlocutory matters not vital to the disposition of the case, the motion ought to be heard as an appeal and not de novo.
[14] The notion of an increased level of deference that ought to be shown to Case Management Masters result from their unique role in the civil litigation process. This is not to say that there will not be situations where motions regarding productions are indeed vital to the lawsuit. This will depend on the nature of the case and the production in issue.
[15] We are of the view that Master Kelly did not exceed his jurisdiction by amending or varying the order of Lederman J. The Master was called upon to exercise his discretion in reviewing the words of the order of Lederman J. and in determining compliance with it in the context of the stay motion.
[16] We agree with the findings of Nordheimer J. that Master Kelly's exercise of discretion was entitled to deference. His determination as to the relevance of documents was not vital to the disposition of the lawsuit. Nordheimer J. was correct in dealing with the matter as an appeal and not de novo.
[17] We find the appellant has failed to demonstrate that Nordheimer J. erred in his appreciation of the evidence on the motion, in the inferences that he drew from the evidence, or in his application of the relevant legal considerations.
[18] He added that in any event, his decision was not the end of the issue and "[i]f during the course of the cross- examination, [page703] proper questions are put which reveal the existence of further documentation that ought to have been produced under the order of Lederman J. then that is a matter which can be brought to the Master's attention and further relief, if appropriate, can be granted."
[19] For these reasons, the appeal is dismissed.
[20] MCRAE J.: -- The appeal book will read: This appeal is dismissed for oral reasons delivered by Dunnet J. Costs to the respondent are fixed at $10,000. Costs on the motion for leave to appeal are payable by the respondent and fixed at $5,000. In both cases the costs are inclusive of disbursements and GST. Order accordingly.