Construction bar worried about retiring master’s replacement

Members of the construction law bar are expressing concern about a potentially “dramatic impact” on construction lien work in Toronto over worries a Superior Court master will be retiring in January without someone named to replace him.

Master David Sandler expressed his concerns about the issue in a December 2013 letter he wrote in support of allowing case management masters to work past the age of retirement. The letter was part of submissions to the current commission considering masters’ pay.

Sandler, one of the two remaining traditional masters, was able to work part-time doing construction lien work after he reached the age of 65. But as is the rule, he’ll take full retirement next year.

“If I was not available to devote 87 days a year (just over four months) to assist with this work, the court resources available for construction lien work would seriously suffer and the current one and half construction masters would be seriously overloaded and unable to cope with the incoming work,” wrote Sandler.

“I predict that a crisis in this area will develop when I am forced to completely retire as of January 2015. The government seems to be unwilling to appoint any more Toronto masters to remedy the shortage of master manpower.”

With construction work booming in Toronto — “I don’t have to tell you how much construction activity there has been in Toronto over the last nine years,” wrote Sandler — the lack of masters who specialize in the field would be very problematic, says Anna Esposito, a certified specialist in construction law at Pallett Valo LLP.

“Construction is a different animal,” she says. “The procedures are different, so if you don’t do it exactly correctly, it doesn’t work. So having that specialized court that knows what they’re doing to help you through that mill is wonderful.”

Construction liens — claims made by contractors or others against a property — fall under the Construction Lien Act. Part of the act’s purpose is to expedite these often-complex claims involving multiple parties.

Esposito worries that if there aren’t enough masters to do construction lien work, the task will fall to judges of the Superior Court who already have a full docket.

According to Sandler, one part-time and two full-time masters used to do construction lien work until the backlog of civil motions began requiring some of them to take up a different job.

“Very recently, the chief justice and the Toronto regional senior justice have required one of the two full-time construction lien masters (Master [Charles] Wiebe) to devote half his time to bankruptcy work so that Master [Donald] Short, who, (along with Master [May] Jean), was doing bankruptcy work full-time for the last year, could be reassigned back to deal with the huge backlog of civil motions work,” wrote Sandler.

This meant only Master Carol Albert and himself were available to do construction lien work, he noted.

It would be “a crying shame” to lose the expertise of construction lien masters, says Esposito, who notes they not only adjudicate complex matters but also manage cases in a way that speeds up the process. They focus the parties and narrow down the issues even in cases involving multiple parties, she says.

“To those of us who practise construction lien, it makes all the difference.”

Construction lien work is extremely time sensitive, says Davis LLP partner Howard Krupat. He notes construction projects may come to a halt until the parties resolve a dispute.

“Construction liens can have a dramatic impact on projects themselves,” he says.

“When a construction lien is registered, it has the potential to freeze the flow of funds even when the lien is relatively small compared to the size of the project. So those construction lien issues need to be addressed in real time. We need to be able to deal with lien rights immediately.”

Delayed liens could therefore trigger a domino of interruptions in the construction industry, Krupat
adds. So far, he says he hasn’t experienced difficulty in bringing cases to a close even though getting trial dates can be challenging.

But if Sandler retires without a replacement, “this change could have a pretty significant impact,” he says.
 “If the resources were to be changed and if there were only one or one-half masters available, that would have a dramatic impact,” he adds.

Esposito, who has been part of the construction bar for 26 years, says it’s hard to imagine the courts functioning with fewer resources than they have right now.

“It’s getting really worse,” she says.

“At no time have the resources been as strained as they are right now, so I can’t conceive also losing the supernumerary hours that Master Sandler gives.”

Resources were strained even before master Julian Polika’s retirement last year, Esposito says.

“I can’t begin to imagine how the volume of construction work will be handled after Master Sandler’s full retirement.”

She adds: “If the intention is to completely phase out construction lien masters, if you want the dedicated construction lien work to no longer exist, that would be a shame. That would be a crying shame.”

In response to the concerns, Ministry of the Attorney General spokesman Brendan Crawley noted it’s the chief justice of the Superior Court who oversees the assignment of judicial duties.

In addition, he said Toronto’s regional senior judge, Justice Geoffrey Morawetz, is examining the scheduling of construction lien matters as part of a broader review of civil cases in Toronto.

There’s currently no delay in scheduling construction lien matters, he said.

For more, see "Case management masters decry salary discrepancy."

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