TURNER v DN DEVELOPMENTS LTD, 2011 ABQB 554
6.14: Appeal from master’s judgment or order
15.12: New test or criteria
The Defendants appealed the Decision of Master Wacowich discharging their caveat and certificate of lis pendens filed against property owned by the Plaintiffs.
In its analysis, the Court noted that an Appeal from a Master’s Judgment or Order is now an Appeal on the record. Further, in accordance with Rule 15.1, the new Rules apply to an existing proceeding commenced, but not concluded under the former Rules. Moreover, if the new Rules “impose a new test, provide new criteria, or provide an additional ground for an application in an existing proceeding, the New Rules apply…”.
Although the former Rules and the new Rules do not dictate the standard of review to be applied, the Court noted that cases decided under the former Rules held that the applicable standard of review was one of correctness. However, under the new Rules, since Appeals from a Master are no longer hearings de novo, but rather on the record, recent Decisions have concluded that this change results in an “appellate standard of review”. Browne J. agreed that the appropriate standard of review is an appellate standard of review.
There was no dispute over the Master’s finding of facts; instead the issue was in respect of the correct interpretation of an insurance contract, an issue of law. Therefore, the appropriate standard of review was correctness. On that basis, the Court granted the Defendants’ Appeal.View CanLII Details