SEWAK GILL ENTERPRISES INC v BEDAUX REAL ESTATE INC, 2018 ABQB 823
6.14: Appeal from master’s judgment or order
7.3: Summary Judgment (Application and decision)
The Defendants/Applicants had previously applied to remove a Caveat registered by the Plaintiff against the land of one of the Defendants. In 2007, the Plaintiff had registered the Caveat and began an Action seeking a declaration of its validity in 2008. At that time, the Defendants filed a Counterclaim for the discharge of the Caveat. The Plaintiff eventually discontinued its Action, but the corresponding Certificate of Lis Pendens (“CLP”) was not discharged. Further, the Defendants did not discontinue their Counterclaim.
The Defendants then brought an Application for Costs of the Plaintiff’s discontinued Claim and to discharge both the Caveat and the CLP. Master Farrington awarded Costs and discharged the CLP. However, Master Farrington did not discharge the Caveat. The Defendants appealed the portion of Master Farrington’s Order declining to discharge the Caveat. Through the Appeal, the Defendants sought Summary Judgment pursuant to Rule 7.3 to discharge the Caveat, or a remedy pursuant to the Land Titles Act, RSA 2000, c L-4.
Hollins J. noted that although Rule 6.14(3) describes an Appeal from a Master as an appeal “on the record”, the Court has described such an appeal as de novo. Justice Hollins traced the origin of this description to Bahcheli v Yorkton Securities, 2012 ABCA 166 (CanLII). Upon reviewing the relevant passage from that case, Justice Hollins disagreed that an Appeal from a Master’s Decision is “automatically an appeal de novo”. Instead, Justice Hollins maintained that “the low threshold for the introduction of new evidence on appeal means that a true ‘appeal on the record’ will be the exception rather than the rule”. Justice Hollins clearly held that an Appeal from a Master’s Decision is not an appeal de novo. That is so, even though Appellants can easily expand the record, and the standard of review is correctness, which makes Appeals from Masters’ Decisions look more like de novo Appeals than Appeals on the record.
Her Ladyship remarked that this position is supported by the clear wording of Rule 6.14 as well as the fact that if an Appeal from a Master was truly de novo, that would be inconsistent with the need to consider the standard of review: the test set out in Rule 6.14, to introduce new evidence to the record before the Master; the proceedings before the Master, including an Appellant’s obligation to provide the Transcript of Proceedings; and the Master’s reasoning.
Hollins J. then proceeded to review whether Master Farrington’s Decision not to discharge the Caveat was correct based on the evidence and arguments before Her Ladyship. Upon considering the merits of the Appeal, Justice Hollins found that the test for Summary Judgment had been satisfied and that the Caveat should be discharged, reversing Master Farrington’s Decision.
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