PRESTIGE GRANITE & MARBLE INC v MAILLOT HOMES INC, 2018 ABQB 1040
6.14: Appeal from master’s judgment or order
7.3: Summary Judgment (Application and decision)
10.33: Court considerations in making costs award
This was an Appeal of a Master’s Decision which had granted partial Summary Judgment to the Defendant, Maillot, for a portion of fees due under a construction contract with the Plaintiff, Prestige.
The Court began by clarifying the standard of review for an Appeal of a Master’s Decision. Hollins J. acknowledged that these Appeals are commonly described as Appeals de novo. However, Hollins J. noted that this cannot be entirely correct given that Rule 6.14(3) clearly describes an Appeal from a Master as an Appeal “on the record.” Moreover, treating Appeals from Masters as appeals de novo relieves litigants of their duty to put their “best foot forward” in a Summary Judgment Application. Litigants can simply use the initial Application as a trial run to have the Master identify potential flaws in argument that can then be fixed on Appeal, which Hollins J. deemed was not appropriate. However, Hollins J. interpreted the authorities as saying that a true appeal “on the record” will be the exception as opposed to the rule because the threshold for introducing new evidence is so low; it need only be relevant and material.
The Court then addressed the threshold for Summary Judgment noting that it will be appropriate where the Court can make a fair and just determination on the merits through a process that: (1) allows the Court to make the necessary findings of fact; (2) allows the Court to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
In this case, Hollins J. ruled that Summary Judgment was not appropriate in the circumstances. The factual disputes between the parties were completely irreconcilable and a Trial was warranted to examine these positions through witness testimony.
The Court granted the Appeal and directed the matter to Trial. On the issue of Costs, the Court noted there have been instances where a successful Appellant has been denied a full Costs award where the Appellant relied on new evidence in the Appeal that was not put before the Master. Hollins J. specifically confirmed that Rule 10.33(2) provides multiple considerations for Costs including whether there has been unnecessary delay in the Action. However, Hollins J. did not find this to have occurred in this case. Therefore, Hollins J. did not disturb the Costs award given by the Master and awarded no Costs on the Appeal.View CanLII Details