Eamon J

6.46: Referee’s report
10.26: Appeal to judge
10.34: Court-ordered assessment of costs

Case Summary

Justice Eamon provided His Lordship’s reasons in the first of three related Appeals by the Plaintiff, First National Financial GP Corporation (“First National”), under Rule 10.26. First National appealed the Assessment Officer’s disallowance of certain disbursements and other charges in the First National’s Costs claims in foreclosure Actions brought against the Defendant, Brendan Cutler (“Mr. Cutler”).

The Foreclosure Fee and Disbursement Guideline (the “Guidelines”) provide fixed amounts for certain routine disbursements and other charges in foreclosure Actions. First National claimed that the Assessment Officer failed to utilize the Guidelines in her assessment. The matter was initially referred by Justice Wilson to Master Farrington as Referee as defined in Rule 6.46. Master Farrington provided recommendations in two reports provided to the Court pursuant to Rule 6.46 (the “Reports”). In the Reports, Master Farrington recommended that some of the Assessment Officer’s assessments be varied to align with the Guidelines. On Appeal, First National requested that Justice Eamon adopt the Reports of Master Farrington and allow the Appeal.

At issue on Appeal was: (1) the meaning of the Guidelines; and (2) the impact of the Guidelines on the Assessment Officer’s discretion. In dealing with certain procedural issues, Eamon J. noted that many matters are routinely adjourned from a busy morning chambers list and the Judge adjourning the matter is seldom seized of that matter. As such, Justice Eamon found that Justice Wilson was not seized with the matter. Additionally, Eamon J. found that Rule 6.46 permits the Court to determine whether to adopt reports provided under Rule 6.46 and the Court is thereby not bound by the conclusions of the Reports.

Justice Eamon explained that, generally, the Assessment Officer has discretion under the Rules to make an assessment and that an Assessment Officer’s discretion should not be fettered unless a Master or Judge making the relevant Foreclosure Order specifically directs that the Guidelines apply pursuant to Rule 10.34(1).

Nonetheless, Justice Eamon found that the assessments must be reasonably conducted by the Assessment Officer. Specifically, Eamon J. noted that the Guidelines are relevant to the assessment task in two ways: (1) they reflect the appropriate means of conducting the assessment; and (2) they provide relevant evidence which must be considered by the Assessment Officer. Justice Eamon concluded that, at the very least, the Guidelines should have been considered by Assessment Officer and, in light of this conclusion, Justice Eamon remitted certain charges for redetermination.

View CanLII Details