The Court of King's Bench, in Lesenko v. Wild Rose Ready Mix Ltd. (Lesenko), has sent a clear message to the Rules of Court Committee and the Alberta Court of Appeal about the desire for new standard of review rules for appeals of applications judges.
Background
The dispute in Lesenko was simple and arose from a dispute between the applicant homeowners and the respondent contractor. Following non-payment by the homeowners, the contractor filed liens against the property. The homeowners executed a consent order to pay cash into court as security for the lien action, and the liens were discharged from title to the property. The contractor failed to commence lien enforcement proceedings within 180 days as required by the consent order but did commence an action against the homeowners. The homeowners applied for an order directing that the lien action be dismissed and their security returned. The contractor cross-applied for an order extending the terms of the consent order to allow it to commence lien enforcement proceedings.
Applications Judge Schlosser allowed the homeowners' application and denied the contractor's application. The contractor appealed the decision and provided a supplemental affidavit that explained why the contractor had failed to comply with the consent order.
The Court of King's Bench Decision
The appropriate standard of review for appeals from applications judges has been a source of tension since the current version of the Alberta Rules of Court was introduced in 2011. The current Rules provide that an appeal of an applications judge is on the "record," suggesting that normal appellate standards of review would apply. Despite this, the Alberta Court of Appeal confirmed that appeals from applications judges are de novo (i.e., a brand-new hearing).
In the years since, Justices of the Court of King's Bench have lamented the practice of de novo appeals as inefficient and inconsistent with the "culture shift" in civil proceedings mandated by the Supreme Court of Canada. In Lesenko, Justice Feasby provided his thesis at the outset: "... permitting new evidence on appeal together with a non-deferential standard of review is an inefficient use of resources at a time when the Court struggles to meet public demand ... it is time to reconsider whether the reasons that inform the Alberta approach to appeals of Applications Judge decisions continue to justify our practices."
Justice Feasby went on to examine historic Alberta jurisprudence, practices in other jurisdictions, constitutional considerations, and a comparative analysis of civil procedure and administrative law. Alberta judges, he recounted, have traditionally been hesitant to provide any deference to masters, as applications judges were formerly known, because of concerns about fettering the jurisdiction of a federally appointed judge. Ontario and federal judges, however, consider appeals of associate judges using the appellate standards of review seemingly without jurisdictional concerns.
The Constitution, in Justice Feasby's view, provides no defence for a non-deferential standard, especially given that appellate standards of review are suitable for review of other statutory judges, like those of the Alberta Court of Justice. Further, the Supreme Court of Canada, although in other contexts, has demanded a litigation culture shift in Hryniak v. Mauldin, and held that the term "appeal" entails appellate standards of review in Canada (Minister of Citizenship and Immigration) v. Vavilov.
Based upon this, Justice Feasby concluded that there is no compelling reason to demand a different approach to appeals of application judges than other statutory decision-makers. Rather, given that special chambers applications are booking into 2025, he concluded that a new approach is imperative.
Justice Feasby proposed that appeals of applications judges should be conducted like any other appeal. For appeals that do not involve new evidence, the existing appellate standards of review can be applied; appellants should be restricted, as they are in other appeals, to arguing their appeal on the record, with new evidence considered only to the extent that it materially affects the decision. This solution, however, would require a change to the Rules. Justice Feasby concluded with a respectful request that the Rules of Court Committee revise Rule 6.14(3) of the Rules of Court to align it with the practice of appeals generally.
Key Takeaway
Lesenko demonstrates that the Court of King's Bench of Alberta is aware of and concerned about how to address delay in the civil justice system. Delay in the civil justice system has become a major impediment to access to justice. As Justice Feasby rightly notes, the backlog in the civil justice system is severe and worsening. While Lesenko cannot change the Rules of Court, it provides a strong call to action to the Rules of Court Committee to align appeals of applications judges with appellate procedure in other jurisdictions and of other statutory judges.
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