Neritan Xhebraj v. Anita Bassi, 2015 ONSC 2781

COURT FILE NO.: CV-12-461205

DATE: 20150430

SUPERIOR COURT OF JUSTICE – ONTARIO

IN THE MATTER OF the Construction Lien Act, R.S.O. 1990, Chapter C.30

Between

NERITAN XHEBRAJ carrying on business as NX Building and
Maintenance Services, Plaintiff/Responding Party

AND:

ANITA BASSI, Defendant/Moving Party

BEFORE: STEWART J.

COUNSEL: Daria Krysik, for the Plaintiff

Anita Bassi, in person

HEARD: March 5, 2015

ENDORSEMENT

[1] Anita Bassi (“Bassi”) moves to oppose confirmation of the Reference Report of Master C. Albert dated May 28, 2014 which granted judgment in favour of the Plaintiff Neritan Xhebraj (“Xhebraj”) in this construction lien matter. A portion of the value of incomplete work and deficiencies claimed by Bassi was set off by Master Albert to arrive at the amount of the judgment awarded to Xhebraj.

[2] The claim arose out of the supply by Xhebraj to Bassi of services and materials for renovation work at Bassi’s home at 12 Criscoe Street, Toronto.

[3] At trial, Xhebraj’s claim was for $22,867.94. Bassi counterclaimed for $21,658.80.

[4] Master Albert awarded Xhebraj the amount of $14,365.73 and fixed costs at $11,215.94, all-inclusive, to be paid by Bassi to Xhebraj.

[5] On a motion to oppose confirmation of a report on a reference, the results should not be interfered with unless there has been an error in principle, an absence or excess of jurisdiction, or some patent misapprehension of the evidence. Unless it seems unsatisfactory on all of the evidence, the award should not be disturbed. This approach was confirmed in the decision in Jordan v. McKenzie, [1987] O.J. No. 1193, in which the court stated:

I think I ought not to interfere with the result unless there has been some error in principle demonstrated by the Master’s reasons, some absence or excess of jurisdiction, or some patent misapprehension of the evidence. I am further of the view that the award should not be disturbed unless it appears to be unsatisfactory on all of the evidence.

[6] Further, the onus of proof is on the party opposing confirmation (see: Webb v. 3584747 Canada Inc. [2001] O.J. No. 608).

[7] Moreover, where questions of fact are involved, and the Master has seen and heard the witnesses, the conclusions of the Master will not be readily interfered with (see: Pagebrook Inc. v. Lawson, 2009 ONCA 371).

[8] I have considered all of the arguments advanced by Bassi in light of the relevant tests on a motion of this nature. I can see nothing in Master Albert’s careful, detailed and thorough reasons that would indicate any misapprehension of the evidence, error in principle or element of unfairness or injustice to Bassi.

[9] Similarly, the Master’s disposition of costs and reasons therefor demonstrate no reversible error. Rather, they reveal a consideration of the relevant factors affecting costs and a proper exercise of her discretion in that regard.

[10] Accordingly, the motion is dismissed. The Reference Report is hereby confirmed.

[11] If costs are sought, written submissions in that regard may be delivered on behalf of Xhebraj within 20 days of today’s date, and by Bassi within 20 days thereafter.

STEWART J.

Date: April 30, 2015