{"id":588,"date":"2009-11-22T13:26:00","date_gmt":"2009-11-22T17:26:00","guid":{"rendered":"http:\/\/cwcb-law.com\/blawg\/?p=588"},"modified":"2009-11-22T13:26:00","modified_gmt":"2009-11-22T17:26:00","slug":"motions-for-summary-judgment-must-be-made-to-master","status":"publish","type":"post","link":"https:\/\/www.cavanagh.ca\/blog\/?p=588","title":{"rendered":"Motions for Summary Judgment Must Be Made to Master"},"content":{"rendered":"

In Bensusan v. Ali<\/strong><\/a><\/em>, Mr. Justice Ted Matlow has ruled that motions for summary judgment must<\/em> be made to a master, rather than to a judge, in jurisdictions where there are masters.<\/p>\n

His Honour arrived at this conclusion by relying on rule 37.04, which reads: “A motion shall<\/em> (emphasis added by Matlow J.) be made to the court if it is within the jurisdiction of a master or registrar and otherwise shall be made to a judge.”<\/p>\n

In other words,\u00a0because masters can <\/em>hear motions for summary judgment,\u00a0such motions must <\/em>be heard by them. (Obviously, this would not apply to jurisdictions that do not have masters.)<\/p>\n

His Honour dealt with a couple of possible counter-arguments. First of all\u00a0 subrule 20.04(4) says, “Where the court is satisfied that the only genuine issue is a question of law, the court may determine the question and grant judgment accordingly, but where the motion is made to a master, it shall be adjourned to be heard by a judge.”<\/p>\n

In Neighborhoods of Cornell Inc. v. 1440106 Ontario Inc.<\/a><\/em>, 2006 CanLII 37402 (ON S.C.), Master Calum MacLeod referred to subrule 20.04(4) as “a frequently misunderstood provision”. He interpreted it to mean that “if a point of law is unclear and it seems possible to determine it on a motion then the issue will be adjourned to a judge. In all other cases in which the law is clear and there is no genuine factual or legal issue, a master may grant summary judgment.” Justice Matlow’s intepretation is consistent with that of Master MacLeod. His Honour felt that it is not up to counsel bringing the motion to decide whether or not it involves a question of law that requires a judicial determination. Rather, “[b]y its terms, this rule leaves it to the master to decide whether \u201cthe only genuine issue is a question of law\u201d and only the master can decide whether or not to adjourn the motion to be heard by a judge.”<\/p>\n

This would suggest that a responding party can never successfully argue that a master lacks jurisdiction to hear a motion for summary judgment.<\/p>\n

The other argument considered by Justice Matlow was that moving for summary judgment from a judge eliminates one level of appeal. His Honour said simply that “that is not a permissible option”.<\/p>\n

Next year, of course, the Rules will change. There will be a sharper delineation between the powers of judges and masters in relation to Rule 20 motions. Judges, but evidently not masters, will have the following powers:<\/p>\n

    \n
  1. Weighing the evidence.<\/li>\n
  2. Evaluating the credibility of a deponent.<\/li>\n
  3. Drawing any reasonable inference from the evidence. (see R. 20.04 (2.1))<\/li>\n<\/ol>\n

    Might that warrant bringing a motion for summary judgment before a judge? Stay tuned…<\/p>\n","protected":false},"excerpt":{"rendered":"

    In Bensusan v. Ali, Mr. Justice Ted Matlow has ruled that motions for summary judgment must be made to a master, rather than to a judge, in jurisdictions where there are masters. His Honour arrived at this conclusion by relying … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[18],"tags":[],"class_list":["post-588","post","type-post","status-publish","format-standard","hentry","category-practice-and-procedure"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=\/wp\/v2\/posts\/588","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=588"}],"version-history":[{"count":0,"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=\/wp\/v2\/posts\/588\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=588"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=588"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.cavanagh.ca\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=588"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}