REFERENCES TO THE MASTER: A SHORT GUIDE

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1 REFERENCES TO THE MASTER: A SHORT GUIDE OVERVIEW A Reference is a form of delegation of judicial authority to an officer of the court. While references may be made to any officer or to a person agreed upon by the parties, hearing of references has been a core function of masters since the office was first introduced in Ontario in In civil proceedings, general references are governed by Rules 54 and 55 and mortgage references by Rule 64 of the Rules of Civil Procedure. In addition to those references, masters conduct references pursuant to the Construction Lien Act and in some circumstances in family law proceedings. One must therefore look to the civil rules and to the Construction Lien Act or the Family Law Rules to determine the permissible scope of a reference. Note that Rules 54 and 55 apply to all references except to the extent that they are contrary to the legislation under which the reference is ordered or to any provision of the order of reference. Rule 64 and the Construction Lien Act each contain provisions that differ from the standard procedure under Rule 55. Construction lien references may include reference of the whole action for trial under s. 58 of the Act while references under the civil or family rules are generally narrower. The Family Law Rules do not contain a reference procedure but it is possible to refer a specific family law issue under the civil rules by virtue of Family Rule 1 (7). This will apply only if the court considers it appropriate and if the matter is not adequately addressed by the Family Law Rules. References are normally made for one of two purposes. The first of these is to supervise a court mandated process such as a receivership or the sale of land. The second is to take accounts or otherwise to adjudicate a specific issue or issues. Obviously these two purposes may be combined. Where the master is assigned to supervise or carry out a court order, the master may make all necessary ancillary orders to carry out the mandate of the court such as approving the terms of sale or vesting title in the purchaser. Where the master is to adjudicate an issue, the result of the adjudication will be a report but the referee may make all necessary interlocutory orders and directions within the reference itself. After receiving all of the evidence and the submissions of the parties, the master will release reasons containing his or her findings of fact and law. The operative part of the master s decision is embodied in a formal

2 report which is prepared in the form of a draft judgment or order. The formal report is settled as to form and content between the parties or before the master in the same manner as an order. The report automatically becomes an order or judgment of the court on confirmation. Confirmation takes place by virtue of either a specific order of a judge confirming the report (if the original order directing the reference required a report back) or by the passage of time (if the order of reference did not require a report back). The more usual practice is for the judge not to require a report back and for reports to be confirmed automatically by the passage of time. If a report back is not required then the party with carriage serves the formal report on the other parties and it automatically becomes an order or judgment after 15 days. If a party wishes to prevent this then they must bring a motion before a judge to oppose confirmation within the 14 days set by the rules. If the original judge s order directing the reference does require a report back then the report is on no effect until the party with carriage brings a motion to a judge to confirm the report. In either case the motion for confirmation or opposing confirmation is in effect an appeal. Unlike an order, which takes immediate effect, a report has no effect until confirmation by one of these methods. Because the power of the referee derives from an order of a judge, the terms of reference must be clearly set out in the order or judgment or else be implicit in the reference rules (Rules 54 & 55). Note that the form of the judgment of reference under the Construction Lien Act is a prescribed form, Form 16 under the Regulation. In any event the formal order directing the reference must be taken out before the master has authority to proceed. This means that the form of the order must be settled by the parties or the judge before the reference commences. Some sample orders or judgments are attached. The principle advantage of the reference procedure is flexibility. The referee is charged under Rule to devise and adopt the simplest, least expensive and most expeditious manner of conducting the reference. This provides great procedural flexibility and has many of the same benefits as arbitration. Unlike arbitration, however, directing a reference keeps the proceeding under court supervision and within the court action itself. Although a reference may be directed to any officer of the court or to a person agreed upon by the parties, the advantage of a reference to the master is that the master s office operates within the court infrastructure and of course the master also has his or her normal jurisdiction under the Rules in addition to his or her authority as referee. It should be noted however that it is still possible to direct certain references such as mortgage accounts to the Registrar and of course

3 assessments of costs are references to the assessment officer also governed by the reference rules. PROCEDURE ON A REFERENCE If the reference is on consent, it may be useful to have an informal meeting between counsel and the master prior to taking out the order directing the reference. This is useful to determine how practical the reference procedure may be, what time there may be in the master s schedule, what steps may be appropriate in the reference and to discuss specific authority that should be included in the judge s order. If a judge is contemplating directing a reference to the master on his or her own initiative, then it may be useful for the judge to consult with the master s office in advance. In some cases, judges have convened case conferences with the judge and the master and counsel for this purpose. The steps in a reference are generally as follows: 1. Obtain an order or judgment directing a reference. This will normally be by motion to a judge. It is possible for the master to direct a reference in a civil proceeding in disposing of a Rule 20 summary judgment motion. Note that upon signing of the order directing a reference, the province charges a fee of $ There is no fee for a reference under the Construction Lien Act. 2. A hearing for directions pursuant to Rule In the case of a reference under the Construction Lien Act, you must first obtain an order for trial from the master and then serve notice of trial (Form 17 under the Act). In the case of other references, obtain an appointment for directions from the master and then serve a Notice of Hearing for Directions (Form 55A under the Rules) on all affected parties. Note that there may be parties affected by the reference who are not parties to the action. 3. The referee will give direction and make orders as required and will devise the process to be followed on the reference. This may include orders for production and discovery, appointment of experts, requirements for a meeting of experts, creation of a timetable and scheduling of a hearing or hearings. 4. Hearing of viva voce evidence if required and determination of the issues in dispute.

4 5. Issuing of the report and reasons by the referee and service of the report by the party with carriage. 6. Confirmation by the passage of time or by a motion for confirmation (if the order calls for a report back). In the former case a party who objects to the report brings a motion to oppose confirmation. Note that such motions are treated as ordinary civil motions and scheduled in the ordinary manner although they proceed as an appeal. If the original order directing the reference called for a report back (and therefore a motion for confirmation) and if the judge making the original order remains seized then it will be necessary to obtain an appointment with that judge. 7. Entry of the report as an order or judgment. Note that the report becomes a judgment only on confirmation. The report should be drafted in the form of a judgment and must be signed by the referee then served then confirmed before it may be entered as a judgment. Parties should be careful to distinguish between directions, reasons, orders and reports. A formal order or judgment is required to confer authority on the referee. Interim orders may be made in conducting the reference. A report is the outcome of the reference and is drafted in the form of a judgment except that it is entitled REPORT. The reasons for the report, like reasons for judgment are not themselves the report. This is important because the time for confirmation of a report runs from the date the party with carriage serves the report on all affected parties. A report should be issued like an order but it is not entered by the Registrar until it is confirmed. To avoid confusion, it is useful to include a recital in the report to the effect that pursuant to Rule this report will become a judgment of the court upon entry which shall take place immediately after confirmation. ADMINISTATIVE ARRANGEMENTS In Ottawa, when there is a reference, a civil file will be opened with an R suffix. If there is already a civil action in Ottawa, the file number will be the same as the main action. If the reference is from another county or in a family law file, the number will be a new Ottawa civil file number. In accordance with the reference rules, the referee will have custody of the reference file and all matters to be filed on the reference will be filed with the master s office directly. It should be noted that Rule (11) provides that the

5 referee will keep a procedure book in which all steps and directions shall be noted. Directions need not be embodied in a formal order to bind the parties. So although orders made by the referee may be taken out in the normal course, it is not necessary to take out formal orders to bind the parties. It may be necessary to take out orders that put other persons on notice or are to be registered against land. This is similar to orders made under Rule 76 or 77. As noted above, when the reference is complete, there will be a report. The party with carriage will be responsible for serving the formal report and for either bringing the motion for confirmation or having it entered after confirmation by passage of time. If there is dispute over the form of the report it will be settled before the referee in the same manner as settling the form of an order. If there is a motion to grant or oppose confirmation, it proceeds like an appeal. The party bringing the motion will have to arrange for transcripts and exhibits. Operational references such as supervision of the sale of property are handled in much the same manner. The steps are the same except that usually at the hearing for directions, the parties or one of them is permitted to list the property with an agent, to solicit offers and to proceed with a court supervised private sale. The default procedure in the rules for sale by auction is seldom used. If the reference does not include adjudication, for example if the judge has already determined the percentage of the net proceeds of sale to go to each party then there may be no evidence taken and no reasons as such. There could be a report directing the payment out of court or out of trust but since those are orders within the ordinary jurisdiction of the master, subject to any specific direction from the judge making the order, the master will normally simply make that order which is then, subject to appeal, operative immediately. November 6, 2009