6.14: Appeal from master’s judgment or order
6.5: Notice of application in foreclosure action

Case Summary

The Defendant appealed a Master’s Decision granting an Order Nisi and Sale of the Defendant’s house under a mortgage held by the Plaintiff. The Defendant was self-represented and raised a number of issues which he believed warranted an Appeal. However, the Defendant did not file a Statement of Defence to RBC’s claim, was noted in default, and did not attempt to set aside the Default Judgment. The Defendant sought to obtain information from RBC in a “Demand for Disclosure”, despite the fact that, under both the old and new Rules, the time for Discovery, Affidavits of Records and Questioning was long past. The Defendant also sought an adjournment from the Master in order to allow him time to get the requested information from RBC, which the Master refused.

In addressing the issue of the standard of review for Queen’s Bench Justices reviewing Masters’ Decisions, Manderscheid J. held that, under the old Rules, the standard was “correctness”. Manderscheid J. further held that the new Rules create a significant change given that an Appeal of a Master’s decision is now on the record pursuant to Rule 6.14(3). His Lordship determined that an Appeal on the record suggests that the standard of review should be that of general appellate review as set out by the Supreme Court of Canada in Housen v Nikkolaisen, [2002] 2 S.C.R. 235. The standard of review for questions of law is correctness. The standard of review for findings of fact and inferences of fact is palpable and overriding error. The standard of review on questions of mixed fact and law is overriding and palpable error, unless a clear error in principle is made with respect to the characterization or application, in which case the error may be an error of law subject to the correctness standard. With regard to the exercise of discretion, Manderscheid J. found that reasonableness is to be applied.

Manderscheid J. addressed which issues were properly before the Court, making reference to new Rule 6.14(3), which states that any Appeal of a Master’s Decision is on the record, and if the Judge permits, may also be based on new evidence that is significant enough that it could have affected the Master’s Decision. Citing new Rule 6.14(5), Manderscheid J. stated that any new evidence sought to be admitted must be filed and served at least one month before the scheduled hearing date. As a Default Judgment was in place and no steps had been taken to overturn it, Manderscheid J. found that the Defendant was not permitted to raise allegations against a non-party, contest the validity of the contracts, or allege fraud in the Appeal. The only issue the Defendant was permitted to raise afresh related to the amount of damages owed to RBC.

Between the date of the Appealed Decision and the Appeal, the Defendant filed three Affidavits. Under Rule 6.14(3), Manderscheid J. found that such evidence could be admitted if it is significant enough that it could have affected the Master’s decision. However, the subject of the new Affidavit evidence was the issue of miscalculation and was never raised before the Master. Although Manderscheid J. found that permitting new evidence under R. 6.14 did not extend to permitting an Appellant to raise a new issue not before the Court below, given that the Defendant was a self-represented litigant, Manderscheid J. exercised his discretion in considering the new issue and some of the new evidence.

Manderscheid J. also addressed whether the Master should have granted the Defendant an adjournment, concluding that the Master did not err in denying an adjournment. Manderscheid J. concluded that the Appeal should be dismissed and that Costs should be awarded to RBC on a solicitor-client basis as provided for in the mortgage.

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