Appeal of Masters order

Appeal of a Master’s Order

Kalafchi v Yao 2015 BCCA 524 dealt with the standard of review on an appeal from a master’s order to a Supreme Court Judge.

The appeal court rejected the argument that the standard of review in such cases should always be the “clearly wrong” test.

The leadidng case Abermin Corp. v Granges Exploration (1990) 45 BCLR (2D) 188 stated:

“An appeal from a Masters order in a purely interlocutory matter should not be entertained unless the order was “clearly wrong”. However, where the ruling of the master raises questions which are vital in the final issue in the case, or results in one of those final orders which a master is permitted to make, a rehearing is the appropriate form of appeal.”

Abermin decided on the facts that a rehearing of the case was appropriate because of the potential effect of the order on the ultimate outcome at trial.

Abermiin dealt with a custody access situation of an infant, and the court recognized that the potential consequences of the Masters order could be significant and far-reaching.

The appeal court in Kalafchi commented that” on my reading of the cases of appeals of Master’s orders to which we were directed, it appears to me that whether or not our rehearing occurs depends on the chambers judge’s assessment of whether the order raises questions vital to the final issue.— More particularly we were not directed to a body of cases that suggest judges routinely treat interim access or contact orders as vital to the final issue thereby displacing the proper application of the clearly wrong test.”

Accordingly it would appear that the law is clear that the standard of review in respect of a purely interlocutory matter , which does not raise questions vital to the final issue in the case, is the clearly wrong test. Carson v Stucchi 2016 BCSC 2584 at paras 22-24.

Trevor Todd

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 45 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.

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