BAHCHELI v YORKTON SECURITIES INC, 2012 ABCA 166
CÔTÉ and HUNT JJA, STREKAF J (AD HOC)
6.14: Appeal from master’s judgment or order
This Appeal addressed the Standard of Review on an Appeal of a Master’s Decision.
The Court noted that, pursuant to Rule 6.14(3), an Appeal from a Master’s Decision is on the record and, absent new evidence, a Justice has to consider the evidence that the Master heard. However, Côté J.A. pointed out that the new Rules do not say that an Appeal from a Master is always on the record; Rule 6.14(3) makes an exception when the Justice determines it is proper to admit new evidence. The exception to Rule 6.14(3) is quite wide, making the Rule that the Appeal must be “on the record” rather narrow. Any proposed new evidence need only be “relevant and material” in the opinion of the Justice hearing the Appeal.
Côté J.A. noted that, according to Gudzinski Estate v Allianz Global Risks US Insurance Co, 2012 ABCA 5, it is now settled law that there is no deference to a Master’s findings of fact or discretion when the Justice hears new evidence in the Appeal from a Master’s Decision. His Lordship pointed out that if the Standard of Review were deferential when the evidence before the Justice was the same as that before the Master, this could tempt lawyers to file additional peripheral or scarcely different affidavits on Appeal in order to engineer a different Standard of Review. Côté J.A. also noted another distinction that explains why Decisions from a Justice are assessed on a deferential standard: Justices, unlike Masters, hear conflicting evidence and (where the evidence is oral) routinely decide based on weight or credibility. According to the Court, some of the logical puzzles or possible distinctions which would arise from an Appeal on the record on conflicting evidence rarely apply to an Appeal from a Master.
The Court concluded that the Standard of Review on Appeal from a Master to a Judge is still, on all issues, correctness.View CanLII Details