Hollins j

6.14: Appeal from master’s judgment or order
7.3: Summary Judgment (Application and decision)

Case Summary

The Appellants purchased a duplex in Calgary which was found to contain numerous construction defects, prompting them to seek compensation from their title insurer (the “Insurer”) to cover losses arising from repair work. They then applied for Summary Judgment against the Insurer pursuant to Rule 7.3. After their Application for Summary Judgment was dismissed in Master’s Chambers, the Appellants appealed that Decision to a Justice; and the Insurer cross-applied for Summary Dismissal of the claims against it.

Justice Hollins first noted that an Appeal from a Master to a Justice is has been described as an Appeal de novo, despite the fact Rule 6.14(3) describes such an Appeal as being “on the record”. Her Ladyship noted that the notion that Appeals from a Master to a Justice are de novo appears to stem from comments made by Cote, J.A. in Bahcheli v Yorkton Securities, 2012 ABCA 166 (CanLII), regarding the standard of review, and commented that the words used by Cote J.A. do not actually suggest that “an appeal from the Master to our Court is automatically an appeal de novo but rather that the low threshold for the introduction of new evidence on appeal dooms the true “appeal on the record” to be the exception rather than the rule”. Her Ladyship emphasized that Appeals from Masters are not true de novo Appeals, and that there would be no reason to discuss the standard of review if they were.

Next, Justice Hollins noted that the test for Summary Judgment is not whether a legal issue can be determined beyond a doubt, but whether it may be fairly decided on the record before the Court. Since the matter was one of contractual interpretation, and there were no disputed material facts or issues of credibility, Summary Judgment was a proper method for resolving the dispute. After reviewing the insurance policy at issue, Her Ladyship determined that the losses arising from the construction defects did not fall under any policy provisions pertaining to risks affecting title. As such, the Appeal was dismissed, and the Insurer’s Application for Summary Dismissal was granted.

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