Masters denied judges’ ‘enhanced powers’

Masters hearing Construction Lien Act cases do not have the same “enhanced powers” of authority as a judge, Justice Edward Belobaba said in a March 14 decision.

In R & V Construction v. Baradaran, 2019 ONSC 1551, Belobaba set aside a master’s order, which had ruled in favour of the plaintiff and awarded the plaintiff more than $78,000. The case, a dispute about a 2016 home renovation project between plaintiff R & V Construction Management Inc. and defendant Manoucher Baradaran, should have proceeded with a trial, Belobaba wrote in the decision.

Ken Wise, who represented the defendant and the successful moving party in the decision, says the decision has implications in the construction law area and, more broadly, in its analysis of the roles of the judiciary and the legislature.

“His decision may be disruptive, especially in Toronto, where construction lien masters have routinely been using the enhanced powers in summary judgment motions to adjudicate construction liens,” says Wise, who practises at Ken Wise & Associates. “It’s also a very interesting analysis of legislation, as opposed to the judicial system — judges — and how they should be interpreting legislation.”

The conflict centred on the construction lien master’s decision to dismiss a summary judgment motion. The master referred in her decision to s. 58 of the Construction Lien Act, which says a master “has all the jurisdiction, powers and authority of the court to try and completely dispose of the action,” according to Belobaba.

Separately, Rule 20.04 of the Rules of Civil Procedure provides that “the court” should grant summary judgment if “the court is satisfied that there are no genuine issues requiring a trial,” Belobaba wrote.

Particularly, Rule 20.04 says that when determining whether there is a genuine issue requiring a trial, “if the determination is being made by a judge,” a judge has enhanced powers of “weighing the evidence, evaluating the credibility of a deponent or drawing any reasonable inferences from the evidence,” said Belobaba in the decision.

Belobaba pointed out in his decision that the case law was split on the issue, but he concluded that while masters may hear summary judgment motions, they may not use the enhanced powers.

Although Belobaba granted the defendant’s motion, he wrote that the plaintiff had correctly argued that the CLA was designed to provide a cheaper and more efficient way to solve construction lien conflicts.

But, he wrote, if masters need enhanced powers, it will need to be done through a legislative amendment.

David Taub, a partner at Robins Appleby LLP in Toronto, who was not involved in the case, says there is a need for masters to have the enhanced powers in the Rules of Civil Procedure.

“What [the decision] does is draw attention to a gap that, probably, not many people turn their minds to in respect to the Construction Act regime. I do agree that there is a need for masters to have this missing power — the enhanced powers to make findings respecting weighing evidence, credibility and drawing inferences so that they can make findings and resolve claims by summary judgment. That’s consistent with the purpose of the act, but they don’t have the power to do it,” says Taub.

Catherine DiMarco, a partner at Heal & Co. LLP based in Toronto, who was not involved in the case, says that the fact the procedure was styled as a “summary judgment” motion may have lost some of the nuance of the situation.

“I think that label in this case matters more than it should. And I think part of the issue — part of why these things get clouded — is that people kind of gravitate back to the pecking order or some people’s views that masters are subordinate to judges,” says DiMarco.

Brennan Maynard, an associate at Glaholt LLP, who worked on the motion, was no longer at the firm and could not be reached by deadline.