Masters Cannot Exercise “Enhanced Powers” when deciding Motions for Summary Judgment

Published on: April 2019 | What's Trending

Motions for Summary Judgment

Justice Belobaba’s decision in R & V Construction Management Inc. v Baradaran, 2019 ONSC 1551, released on March 14, 2019, clarifies the jurisdiction of a master when deciding a motion for summary judgment. The particular question before the Ontario Superior Court of Justice was whether a master has the authority to exercise the so called ‘enhanced powers’ available to a  judge under Rule 20.04(2.1) when deciding a motion for summary judgment. The question came before Justice Belobaba in the context of a motion to confirm the report of Master Albert to whom a construction lien action had been referred for trial. Master Albert had granted summary judgment in favour of the plaintiff and in doing so had used the ‘enhanced powers’.

Rule 20.04(2) of the Rules of Civil Procedure provides that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial.  Rule 20.04(2.1) provides that in determining whether to grant summary judgment the ‘court’ shall consider the evidence submitted by the parties, and if the determination is being made by a ‘judge’, then the judge may also weigh the evidence, evaluate the credibility of a deponent or draw any reasonable inference from the evidence in order to determine a summary judgment motion. The latter are commonly referred to as the ‘enhanced powers’. The Rules define ‘court’ to include “a master having jurisdiction to hear motions under rule 37”. Rule 37.02(2) provides that a master can hear any motion in a proceeding except a motion where the power to grant the relief sought is conferred expressly on a judge by a statute or rule.

Construction lien masters have certain powers given to them by the Construction Act (formerly, the Construction Lien Act) (the “CLA”). Some masters have cited section 58(4) of the CLA as the source of the authority to use the enhanced powers when deciding motions for summary judgment.  Section 58(4) of the CLA provides that “a master or a case management master to whom a reference has been directed has all the jurisdiction, powers and authority of the court to try and completely dispose of the action and all matters and questions arising in connection with the action…”.

An important distinction lies in the use of the word ‘court’ in section 58(4) of the CLA. Justice Belobaba reasoned that as the  CLA routinely refers to ‘the court’, ‘masters’ and ‘judges’, the drafters of the CLA were obviously alive to the distinctions between these words and if they had intended to bestow upon masters all the jurisdiction, powers and authority of a ‘judge’ by way section 58(4), then they would have specifically so stated.  Justice Belobaba also noted that if it was the intent of the legislature to permit masters to use the enhanced powers in deciding summary judgment motions in lien actions referred to them, this certainly could have been achieved by amendment in 2017 when the CLA underwent significant reform.

Justice Belobaba cited the Divisional Court decision of RSG Mechanical v 1398796 Ontario Inc., which concluded that section 58(4) of the CLA did not give a master the standing or powers of a judge. Although Justice Belobaba considered the RSG decision determinative, it did not involve a motion for summary judgment or the use of the enhanced powers.

Justice Belobaba made it clear that this distinction does not abolish a master’s jurisdiction to decide a matter by way of summary judgment. However, it does prohibit a master from weighing evidence, evaluating credibility and drawing reasonable inferences in coming to his or her decision.  Removing the ability to use the enhanced powers severely restricts the use of motions for summary judgment in construction lien actions which have been referred to the master for trial.

The stated objective of the CLA is to provide a summary and inexpensive remedy in construction lien disputes. If masters had the authority to use the enhanced powers available to judges when deciding summary judgment motions, this objection could be better realized. Justice  Belobaba noted that while summary judgment motions are allowed under the CLA, they are only permitted with ‘leave of the court’ and only if ‘necessary’ or will ‘expedite the resolution of the issues in dispute’.  Justice Belobaba also noted that from a plain reading of the CLA it is clear that the legislative remedy of choice in a construction lien action is disposition by way of summary trial – that is, a summary procedure in an action.  Unfortunately, notwithstanding the plain reading of the CLA, construction lien actions are not always disposed of summarily – they are just as expensive as ordinary actions and still take years to be heard.

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