This was an Appeal from the Application Judge’s Decision granting the Plaintiffs’ Application to remove liens from the title to their property and dismissing the Defendant’s cross-Application to extend the time to commence lien enforcement proceedings. In the underlying Action, the parties executed a Consent Order pursuant to the Prompt Payment and Construction Lien Act, RSA 2000, c P-26.4 (the “PPCLA”), under which the Plaintiffs paid security for the liens and had the liens discharged from their property. The Consent Order required the Defendant to commence enforcement proceedings within 180 days after the date of the registration of the liens, which the Defendants failed to do. The Plaintiffs applied to have the Action dismissed and for an Order directing that their security be returned, while the Defendant cross-applied for an Order extending the time to commence enforcement proceedings pursuant to Rule 13.5.

Two sets of reasons were issued by the Applications Judge: in the Order disposing of the Applications (the “Decision Order”), the Applications Judge held that the Court had no power to reinstate the liens; in the amended reasons (the “Corrigendum”) that were issued after the Decision Order was entered, the Applications Judge held that the Court had power to reinstate the liens but no compelling reason was given to exercise his discretion to do so.

Feasby J. noted that Appeals from Applications Judges are statutory and can be either on the existing record or with new evidence pursuant to Rule 6.14(3), and traditionally heard de novo. 

However, Feasby J. suggested that a shift from de novo to the appellate standard of review would be more efficient and in line with general Appeals practice. In response to the constitutional objections to using the appellate standard of review for Appeals of Applications Judge Decisions, Feasby J. noted that Rule 10.9 gives provincially appointed Review Officers authority to assess the reasonableness of lawyer’s retainer agreements and charges, and that Appeals of Review Officers’ Decisions are on the record pursuant to Rule 10.26. As such, the appellate standard of review is appropriate and constitutionally valid for Decisions made by Applications Judges, consistent with how similar judicial roles are treated.

Feasby J. recommended that the Rules of Court Committee consider revising Rule 6.14(3) to bring Applications Judge Appeals in line with the general Appeals practice by restricting them to the record and requiring new evidence to satisfy the test set out in Palmer v The Queen, 1980 1 SCR 759 in exceptional circumstances. Feasby J. highlighted that requiring the Palmer test to be satisfied to adduce new evidence on Appeal obligates parties to put their best case forward. Feasby J. noted these changes are consistent with the purpose of the Rules as outlined in Rule 1.2(1) to resolve claims fairly in a timely and cost-effective manner.

With respect to this Appeal, Feasby J. determined that the Corrigendum was null and void because it made significant changes to the Decision Order after the Decision Order was entered, which was beyond the Applications Judge’s power. Feasby J. noted that the Applications Judge had broad discretion to vary a Judgment or Order pursuant to Rule 9.13(a) before the Order was entered; however, once the Order was entered, the Applications Judge became functus Officio and did not have the power to make substantive changes pursuant to Rule 9.14.

Furthermore, Feasby J. concluded that the term of the Consent Order providing a 180-day period to commence a Court Action is void ab initio as it shortened the statutory limitation period in the Limitations Act and contradicted s. 44 of the PPCLA, which stated a lien does not cease to exist due to inaction within 180 days where it has been replaced by a security held by the Court.

Feasby J. therefore allowed the Appeal and reinstated the liens.