Park Avenue Flooring Inc. (“Park Avenue”) had previously sued EllisDon Construction Services Inc. (“EllisDon”) and was partially successful at Trial, resulting in a Judgment and an award of Costs in favour of Park Avenue. 

After the Trial, EllisDon paid the funds owing into Court, but also brought an Application to interplead the amount owing due to another claim to the money at issue by the Sovereign General Insurance Company (“Sovereign”). At issue was whether Sovereign had a right to some of the funds in Park Avenue’s Judgment.

Master Robertson noted that the matter was complicated by the fact that there were no pleadings between Park Avenue and Sovereign, and that the “issues” argued before the Master had grown over the course of cross-examination and the parties’ Applications. The parties had run into difficulties at cross-examination on their Affidavits, as to what issues and documents were “relevant and material”.

Additionally, the matter was confused because Sovereign’s corporate representative had only answered questions within his direct knowledge. However, Master Robertson also noted that Rule 13.18(3) requires that an Affidavit in support of an Application that may dispose of all or part of a claim be sworn on the basis of the personal knowledge of the person swearing the Affidavit. It was clear that what Sovereign was asking for – the funds at issue being paid out of Court – would resolve, finally, the issues between the parties.

Rather than making a finding, Master Robertson offered a number of “observations and recommendations pursuant to Rule 1.4(2)(g)” to assist the parties in reaching a resolution. The Master also provided the parties with specific directions in response to questions “summarized” in one of the parties’ Applications.