3.59: Claiming set-off
6.14: Appeal from master’s judgment or order

Case Summary

The Plaintiff sought Summary Judgment for damages for undelivered products which the Plaintiff had paid for in advance. Master Schlosser had granted Summary Judgment for $996,720 but directed that $300,000 as a portion of the Judgment be stayed for proof of damages.

The Defendant appealed the Master’s Decision. The Plaintiff did not cross-appeal but argued against the stayed portion of damages. The Plaintiff argued that there was no need to cross-appeal seeing as an Appeal from a Master is a hearing de novo. In consideration of Rule 6.14, regarding Appeals from a Master’s Decision, Justice Ross found that the scope of the Appeal is informed by the Notice of Appeal and not by the de novo nature of the hearing. In support of this finding, Justice Ross cited Uniserve International Products Inc v Alberta Treasury Branches, 2003 ABQB 475 where the Court had found that the only issues before the Court on appeal are those in the Notice of Appeal. In consideration of the Notice of Appeal, Her Ladyship found that the entire Master’s Order was included in the scope of the Appeal.

The Plaintiff also argued that the Defendant’s damages could not be considered, as there was no cross-claim for damages. As noted by Justice Ross, Rule 3.59 allows set-off to be pled as a defence. The Amended Statement of Defence pled set-off, and so Her Ladyship found that it was appropriate to determine the Defendant’s damages on the basis of set-off.

Ultimately, the Appeal was dismissed, and Master’s Decision was upheld.

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