DAVID M GOTTLIEB, PROFESSIONAL CORPORATION v CHAMPION HOMES INC, 2012 ABQB 64
6.14: Appeal from master’s judgment or order
This was an Appeal of a Decision of Master Hanebury on the issue of “whether the unilateral discharge, by a mortgagee, of a mortgage granted by one mortgager against a property owned by it, satisfies the debt owing under that mortgage, and thereby renders unenforceable a collateral mortgage granted by a second mortgagee against a second property that was granted to secure the same debt”. Master Hanebury ruled that when the mortgagee unilaterally discharged the mortgage, the debt secured under that mortgage was deemed to be satisfied and therefore the collateral mortgage was unenforceable. The Plaintiffs Appealed that Decision.
In determining the Standard of Review, Kenny J. discussed the application of Rule 6.14(3) and stated that:
[P]rior to the enactment of new Rule 6.14(3), an appeal from a master was an appeal by way of trial de novo. Some caselaw suggests that the new rules have changed the standard of review to be applied on appeals from a Master.
Kenny J. then quoted from the Court of Appeal’s Decision in Gudzinski Estate v Allianz Global Risks US Insurance Company Limited, 2012 ABCA 5, where the Court stated that while Rule 6.14 states that Appeals from a Master are “on the record”, this Rule does not necessarily change the previous Rule and is a continuation of the previous practice. Furthermore, Rule 6.14 states that an Appeal of a Master’s Decision may be based upon new evidence placed before the Court. Kenny J. found that the Standard of Review on a Decision from the Master on a question of law was correctness, on a question of fact was reasonableness, and on a question of mixed fact and law was reasonableness. Lastly, Kenny J. found that where a question of law was extractable from the facts, in a question of mixed fact and law, the Standard of Review was correctness.View CanLII Details