Civil Appeals in Saskatchewan
The Court of Appeal Act & Rules Annotated
First Edition
The Honourable Stuart J. Cameron 2015 CanLIIDocs 293
Law Society of Saskatchewan Library 2015 CanLIIDocs 293 Civil Appeals in Saskatchewan
The Court of Appeal Act & Rules
Annotated 2015 CanLIIDocs 293
First Edition
The Honourable Stuart J. Cameron
Law Society of Saskatchewan Library Civil Appeals in Saskatchewan: The Court of Appeal Act & Rules Annotated First Edition © 2015 Stuart J. Cameron Published by The Law Society of Saskatchewan Library ISBN 978-0-9699120-8-8
Contact: Law Society of Saskatchewan Library 2425 Victoria Avenue Regina, SK S4P4W6 306-569-8020 www.lawsociety.sk.ca
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means: photocopying, electronic, mechanical, recording, or otherwise, without the prior written permission of the copyright holder.
Library and Archives Canada Cataloguing in Publication 2015 CanLIIDocs 293 Cameron, Stuart J. (Stuart John), author Civil appeals in Saskatchewan : the Court of Appeal Act & rules annotated / the honourable Stuart J. Cameron.
Includes index. ISBN 978-0-9699120-8-8 (bound)
1. Saskatchewan. Court of Appeal Act, 2000. 2. Saskatchewan. Court of Appeal--Rules and practice. 3. Appellate procedure-- Saskatchewan. I. Law Society of Saskatchewan. Libraries, issuing body II. Saskatchewan. Court of Appeal Act, 2000. III. Title.
KES565.C34 2015 347.7124’0355 C2015-906628-X KF9058.ZB6C34 2015
Layout and design by Kelly Laycock. Printed and bound in Canada by Friesens.
C016245
15 16 17 18 • 4 3 2 1 Contents
Foreword by the Honourable Chief Justice Robert Richards...... iv Acknowledgments ...... v 2015 CanLIIDocs 293 Part One The Court of Appeal Act, 2000
Table of Contents...... 3
Part Two The Court of Appeal Rules (Civil)
Table of Contents...... 101
Appendices...... 245 I Forms...... 247 II Civil Practice Directives ...... 280 III Queen’s Bench Rules Applicable in the Court of Appeal . . . . . 322 IV Tariff of Costs...... 345 V The Court of Appeal Fees Regulations, 2000...... 347
Table of Cases ...... 351 Table of Statutes...... 363 Index...... 365
Contents iii Foreword
The Honourable Stuart Cameron had a distinguished three-decade-long career as a judge of the Court of Appeal for Saskatchewan. At the end of that tour of duty, when the thoughts of most would have understandably turned to relaxation or
alternate endeavours, he generously undertook the task of writing an annotation 2015 CanLIIDocs 293 of The Court of Appeal Act, 2000 and The Court of Appeal Rules. I am delighted with the result of his efforts.
Practice before this court has its share of complications. That is true for counsel who appear regularly before us and it is doubly true for counsel who are on their first appellate journey or who are otherwise not wholly familiar with appellate practice. Historically, there has been nothing by way of secondary resources to assist practitioners in finding a safe and effective route through the twists and turns of an appeal. Happily, that has now changed.
Stuart Cameron’s annotation is helpfully cast as a guide to practice in relation to the civil side of the court’s mandate. It is written and organized with care, clarity and thoroughness. The research has been exhaustive. At many points, by way of a practice tip, the reader will also gain the benefit of my former colleague’s considerable appellate experience. This annotation fills a major gap in the tool kit available to lawyers and will doubtlessly become an important starting point for counsel in the analysis of practice and procedure problems involving the Court of Appeal.
I join the profession in thanking The Honourable Stuart Cameron for bringing his energy and wisdom to bear on this project. I congratulate him and his team on its completion. It is a job well done.
—The Honourable Chief Justice Robert Richards
iv Civil Appeals in Saskatchewan Acknowledgments
At the suggestion of then Chief Justice Klebuc in the fall of 2009, the Court of Appeal undertook to compile an annotated version of The Court of Appeal Rules based on a draft prepared several years earlier by the Honorable Calvin Tallis, a distinguished
former member of the court. The court undertook to do so in conjunction with 2015 CanLIIDocs 293 the Law Society of Saskatchewan, and with the support of the Saskatchewan Law Foundation. I agreed to head up the project with the assistance of a group of law librarians familiar with the annotation of The Queen’s Bench Rules .
As so often happens in life, “way leads on to way” and what began as a relatively modest project eventually became a rather more ambitious one. At the suggestion along the way of Mr Justice Richards (as he then was), the court decided, with the backing of both the Law Society and the Law Foundation, to expand the scope of the project to include not only an annotated version of The Court of Appeal Rules but also an annotated version of The Court of Appeal Act, 2000.
Hence this publication is divided into two Parts: Part One The Court of Appeal Act, 2000 annotated Part Two The Court of Appeal Rules annotated
It was also decided to orient the content and style of the work toward a publication in the nature of a guide to appellate practice in the province on the civil law side. Hence, the annotations are arranged under the primary heads “Commentary” and “Case Law” and are weighted in accordance with their relative importance to appellate practice. They are thus weighted in favor of the most commonly encountered subjects pertaining to appeal: subjects such as the jurisdiction and powers of the court, the standards of appellate review, the business of seeking leave to appeal, the associated business of securing stays of execution and proceedings pending appeal, and so on. As such, the primary focus of the annotations is upon the relevant case law—relevant in the sense of the principles in play and their application on a case by case basis.
Acknowledgments v Many cases ultimately reduce to the mere application of existing jurisprudence to situations that have been encountered in the past. Accordingly, a certain amount of culling went into the selection of the cases. I used a light rather than a heavy hand in this regard, thinking over-inclusion was apt to be more instructive than under-inclusion, especially in relation to matters that frequently find their way before a judge of the court sitting in chambers. Applications for leave to appeal, for example, come up regularly, as do applications for stays pending appeal, extensions of time, and the like. Applications such as these are largely driven by a recurrent but nonetheless variable mix of fact in one context or another. So it seemed well, when referring to the case law in these contexts, to opt for more rather than less. At a turn or two, however, the reader may be forgiven for thinking I might have been more selective.
The text of both Parts One and Two, including the content, organization, format, and style of the text, was reviewed in detail by the Honorable Calvin Tallis, as well as by Chief Justice Richards and each of the judges of the court. It was also considered by Melanie Baldwin, the registrar of the court. As one might expect
of such an extraordinarily knowledgeable panel of legal professionals, they 2015 CanLIIDocs 293 offered much insight into the work—and much in the way of sound advice and helpful suggestion. Indeed, their contributions were invaluable. For this and for everything, including their continuous support and encouragement, I sincerely thank them.
In addition, I should like to acknowledge, with thanks, the contributions of the group of law librarians who worked with me on this project. The “Working Group” consisted at the outset of Toby Willis-Camp, the Director of the Law Society libraries; Mary Tastad, a University of Saskatchewan Law School librarian; Ann Marie Melvie, the Court of Appeal librarian; and Maxine Seeley and Peta Bates, the librarians of the Law Society libraries in Regina and Saskatoon respectively. Given the composition of the Group, some may think I never met a law librarian I did not like; and that is true. Over time, all but Mary Tastad and Ann Marie Melvie retired, though Peta Bates generously volunteered to remain as a member of the Group upon her retirement.
Toby Willis-Camp engaged Mary Tastad to spearhead the research, and then went on to oversee the administration of the funding provided by the Law Foundation for this purpose. She did so efficiently and seamlessly until moving on to other things. Her successor, Melanie Hodges Neufeld, the Law Society’s Director of Legal Resources, then joined the Group and was especially helpful in moving the project along to publication. Kelly Laycock, the Law Society’s Publications Coordinator and in-house Editor, oversaw the publication of the work, including the final design and layout of the material, as well as the preparation of the index. She is very good at what she does and was a delight to work with.
vi Civil Appeals in Saskatchewan Then there are Mary Tastad BA, LL.B, MLIS, Ann Marie Melvie BEd, MLIS, and Peta Bates BA (Hons.), MLS. Judging alone from the nature and extent of their degrees, one may suppose they contributed a great deal to this publication; and one would be altogether right about that. Mary Tastad conducted the bulk of the research, assembled several binders of material, and offered much wise counsel regarding the content, style, and accuracy of the work. Ann Marie Melvie served as the coordinator of the Working Group, assisted with the research, layout, and publication of the work, and was instrumental in bringing everything together from beginning to end. Both infused the project with impressive measures of professionalism, dedication, energy, and (not to be overlooked) good humor.
So, too, did Peta Bates. She served in an advisory capacity, paying special attention to the organization and presentation of the material to ensure the work lent itself to ease of reference and ready understanding. So, she had much to do with the internal structure of the work, including the main Table of Contents. To be sure, this is an abbreviated account of the tasks performed by each of these gifted law librarians, but I trust it will serve to illustrate the extent to which we 2015 CanLIIDocs 293 are indebted to each of them, and why their all-important contributions fall to be acknowledged with our wholehearted thanks.
I should like also to acknowledge, with thanks, the assistance throughout the life of this project of Marlene Rodie, the Executive Officer of the Court of Appeal, and the court’s Judicial Assistants, namely Donna Daniels, Amanda Haynes, Becky Frisko, and Karen Smith. Each often came to my aid in connection with one thing or another, including the preparation of the Table of Cases, and did so with their customary competence and grace and patience. My many thanks to each of them.
Before concluding, I must add a note of explanation to what I said earlier about the invaluable contributions of the members of the court to this work. While that is certainly true, it must not be thought that the views I expressed throughout the text are necessarily those of the court. Indeed, it would be a mistake to assume my views of the meaning and effect of the provisions of The Court of Appeal Act, 2000 and The Court of Appeal Rules have been endorsed by the court. That is not the case. This is equally true of my assessment of the case law. Thus, the views I have expressed must be seen to be my personal views.
In conclusion, I want to say that, despite the care that went into assembling and organizing the material included in this publication—and the thought that went into ensuring it met its objective as a useful guide to appellate practice in the province—I expect some shortcomings of my making will reveal themselves. I expect, too, that as the jurisprudence continues to evolve, a second edition is
Acknowledgments vii apt to be called for. With this in mind, I invite members of the legal profession to come forward with suggestions for improvement. These may be made through Ann Marie Melvie, who is thoroughly conversant with this work, and who will be pleased to hear from the profession in this regard. Her email address is [email protected], and she may be reached at 306-787-7399.
—The Honourable Stuart J. Cameron 2015 CanLIIDocs 293
viii Civil Appeals in Saskatchewan Part One The Court of Appeal Act, 2000 2015 CanLIIDocs 293 2015 CanLIIDocs 293 Contents
1 Short title...... 4 16 Re-hearings...... 85 2 Interpretation...... 5 17 Queen’s Bench judges 3 Court continued...... 6 assisting in court...... 87 2015 CanLIIDocs 293 4 Oath of office ...... 12 18 Judge of first instance not to review own decision ...... 87 5 Duties and powers of judges. . . .. 12 19 Sittings...... 88 5 .1 Judgment by former judge. . . .. 14 20 Judge in chambers...... 91 6 Duties and powers of chief justice...... 14 21 Registrar ...... 94 7 Right of appeal...... 15 22 Rules of court...... 95 8 Interlocutory appeals...... 32 23 Publication of rules...... 96 9 Appeal periods...... 50 24 RSS 1978, c C-42 repealed . . . . . 96 10 Appellate jurisdiction ...... 62 25 RSS 1978, c C-32, section 28 amended ...... 97 11 Original jurisdiction...... 68 26 SS 1995, c I-11 .2, section 27 12 Powers of the court...... 69 amended ...... 97 13 Motions against decision 27 SS 1995, c R-16 .2, Schedule 1 of judge ...... 81 amended ...... 97 14 Powers of court re evidence. . . . 81 28 Coming into force...... 97 15 Quorum...... 84
Part One The Court of Appeal Act, 2000 3 s. 1
CHAPTER C-42.1
An Act respecting the Court of Appeal for Saskatchewan and making consequential amendments to other Acts
Short title 1 This Act may be cited as The Court of Appeal Act, 2000.
Commentary
The Court of Appeal Act, 2000 was enacted by the Legislature on the constitutional authority of subsection 92(4) of the Constitution Act, 1867 (as were its predecessors 2015 CanLIIDocs 293 dating back to The Court of Appeal Act, SS 1915, c 9, when the court was established) . Subsection 92(4) of the Constitution Act, 1867 clothes the provincial Legislatures with the power to make laws for the “administration of justice” in the province, including the “constitution, maintenance, and organization of provincial courts, both of criminal and civil jurisdiction” and “procedure in civil matters in those courts ”.
The Court of Appeal Act, 2000 was assented to on June 27, 2000, and came into force on November 1, 2000 . It repealed The Court of Appeal Act, RSS 1978, c C-42, the provisions of which were largely drawn from The Court of Appeal Act of 1915 .
In the words of the Attorney General who introduced the Bill that led to the enactment of the present Act, the purpose was fourfold: • to “update and clarify” some of the provisions of the former Act, including those pertaining to “the jurisdiction” of the court, which provisions were “incomprehensible to anyone other than legal historians” • to enact “a few changes in substance” in order to “clarify the powers and procedures” of the judges, including “the powers of the court” to act on an appeal and “the procedure respecting re-hearings” • to remove the pre-existing power of the Lieutenant Governor in Council to decrease the size of the court, and • to enact the statute in both official languages (Saskatchewan, Legislative Assembly, Debates and Proceedings (Hansard), 24th Leg, 1st Sess (7 June 2000) at 1625–1626) .
4 Civil Appeals in Saskatchewan s. 2
TheAct contains the substantive components of the subject of appeal to the Court of Appeal . The Court of Appeal Rules, adopted on the authority of the Act, contain the procedural components .
The court adopted a revised set of rules, effective July 1, 1997, to the end of providing an updated, streamlined version of the rules, accompanied by a set of standard forms for use on appeal . (See Part Two of this publication, The Court of Appeal Rules (Civil) .)
Taken together, The Court of Appeal Act, 2000 and The Court of Appeal Rules are intended to provide an integrated, contemporary, and clear whole; as clear, that is, as the intricacy of the subject of appeal allows .
It might be noted that The Court of Appeal Rules predate the enactment of The Court of Appeal Act, 2000 and that the latter incorporated some of the provisions of the former . As a result, some of the provisions of the Act overlap with some of the provisions of the Rules . The overlapping provisions are generally intended to serve the same purposes and to work in tandem . Should any conflict emerge between them, however, the provisions of the Act govern . 2015 CanLIIDocs 293
•
Interpretation 2 In this Act and the rules of court made pursuant to this Act, except where otherwise provided: “chief justice” means the Chief Justice of Saskatchewan; “court” means the Court of Appeal for Saskatchewan; “decision” includes any judgment, order, decree, verdict or finding; “judge” means a judge of the court, and includes a supernumerary judge mentioned in subsection 3(5) and a judge of the Court of Queen’s Bench sitting pursuant to section 17; “matter” means every proceeding in the court that is not an appeal; “northern centre” means any of the judicial centres of Battleford, Humboldt, Melfort, Prince Albert or Saskatoon or a place in Saskatchewan that is nearer to any of those judicial centres than to any other judicial centre;
Part One The Court of Appeal Act, 2000 5 s. 3
“registrar” means the Registrar of the Court of Appeal appointed pursuant to section 3 of The Court Officials Act, 2012; “rules of court” means the rules of court made pursuant to section 22.
•
Court continued 3(1) The Court of Appeal is continued as the Court of Appeal for Saskatchewan, and is a superior court of record having appellate jurisdiction. (2) The court consists of a chief justice called the Chief Justice of Saskatchewan and six other judges.
(3) The court shall sit at Regina and Saskatoon, and may sit at any 2015 CanLIIDocs 293 other place that the chief justice considers appropriate. (4) The Lieutenant Governor may, by proclamation, increase the number of judges. (5) For each office of judge provided for by subsection (2), there is the additional office of supernumerary judge. (6) A supernumerary judge shall hold himself or herself available to perform any judicial duties that may be assigned to the judge from time to time by the chief justice. (7) The seal of the court is the seal approved by the Lieutenant Governor in Council.
Commentary Subsection 3(1): continuation of the court
The subsection continues the court as the Court of Appeal for Saskatchewan and, in doing so, declares the court to be a “superior court of record” having “appellate jurisdiction” . These terms are of fundamental significance to the role of the court, as a close examination of them reveals .
6 Civil Appeals in Saskatchewan s. 3
The term “superior court”
The predecessor toThe Court of Appeal Act, 2000 did not expressly declare the court to be a superior court of record, thus leaving the matter to implication, having regard in particular for section 6 of the former Act .
Section 6 of the former Act conferred upon the court all the jurisdiction and powers formerly possessed by the Supreme Court of Saskatchewan en banc immediately prior to March 1, 1918 . In addition, the section conferred upon the court all the jurisdiction and powers of any divisional court of the High Court of Justice or the Court of Appeals in England as of January 1, 1898, except as modified by the Legislature .
In the light of this, it may be noted that the Supreme Court of Saskatchewan en banc was a superior court of record (The Judicature Act, SS 1907, c 52, s 4) . So, too, were the High Court of Justice and the Court of Appeals of England (Judicature Act, 1873 (36, 37 Victoria c 66, s 16, 18)) . By implication, then, the Court of Appeal for Saskatchewan was a superior court of record, but the legislation did not expressly recognize this—not until the present legislation was enacted . Thus, what 2015 CanLIIDocs 293 was formerly implicit is now explicit .
That the court is a superior court of record is significant in a jurisdictional sense, for this has a bearing on the extent of its jurisdiction . The jurisdiction of the court is primarily statutory, as provided for by The Court of Appeal Act, 2000, but as a superior court of record the court is possessed of a measure of inherent jurisdiction, as are all superior courts .
Inherent jurisdiction is an amorphous but pervasive species of jurisdiction that flows not from statute or rule of law but from the essential character of a superior court of law . Hence, the term “inherent jurisdiction”—a term that serves in general to describe the intrinsic power of a superior court of law to maintain its authority and to prevent its process being obstructed and abused .
“The jurisdiction which is inherent in a superior court of law is that which enables it to fulfill itself as a court of law . The juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect, and to fulfill the judicial function of administering justice according to law in a regular, orderly, and effective manner”: Jacob, I .H ., “The Inherent Jurisdiction of the Court” (1970), 23 Current Legal Problems 23, cited with approval in Société des Acadiens du Nouveau-Brunswick Inc. v Association of Parents for Fairness in Education, Grand Falls District 50 Branch, [1986] 1 SCR 549 at p 591 .
That the court is a superior court is significant in another sense, and for other purposes, most notably for the purposes of sections 96, 99, and 100 of the Constitution Act, 1867 . These sections provide, in turn, for: (i) the appointment
Part One The Court of Appeal Act, 2000 7 s. 3
of the judges of the superior courts by the Governor General, meaning, in effect, the federal government; (ii) the security of tenure of the judges of the superior courts; and (iii) the payment of the salaries of the judges as fixed and provided for by Parliament . These sections serve to guarantee the judicial independence of the superior courts and their judges, including their independence from the legislative and executive branches of government .
The term “appellate jurisdiction”
This term connotes the authority in the Court of Appeal, as a superior court of record having appellate jurisdiction: • to take cognizance of, or entertain, a properly constituted appeal from a decision of another court or tribunal, and • to act upon such appeal in accordance with the powers of the Court of Appeal .
There is no right of appeal to the court except as provided by statute: R v Meltzer, 2015 CanLIIDocs 293 [1989] 1 SCR 1764; Kourtessis v M.N.R., [1993] 2 SCR 53; Dagenais v Canadian Broadcasting Corp., [1994] 3 SCR 835; R v S. (T.), [1994] 3 SCR 952 . Hence, a properly constituted appeal is one grounded substantively in a right of appeal conferred by statute—and one that complies with such procedural requirements as must be met and cannot be dispensed . Absent a properly constituted appeal, the court is unable to exercise its appellate jurisdiction .
The term “appellate jurisdiction” is often used in contradistinction to the term “original jurisdiction”, which latter term connotes the authority in a court or tribunal to hear and determine a legal dispute in the first instance by hearing evidence, deciding facts, ascertaining and applying the relevant law, and thus reaching a decision .
The term “original jurisdiction”
When the Court of Queen’s Bench, or any other court or tribunal, is properly called upon to decide a legal dispute in the first instance, it is called upon to do so in exercise of its original jurisdiction, meaning it must do the following: • find the facts material to the resolution of the dispute, having regard for the weight of the admissible and relevant evidence, the nature of the burden of proof, and the location of the onus of proof; • identify the governing law, including the selection and, if need be, the interpretation of the law; and • reach a conclusion by applying the governing law to the facts as found and, when so empowered, to exercise discretion .
8 Civil Appeals in Saskatchewan s. 3
These are the basic components of all judicial and quasi-judicial decision- making in the context of the exercise of original jurisdiction: Farm Credit Corp. v Valley Beef Producers Co-operative Ltd., 2002 SKCA 100 at para 49, 218 DLR (4th) 86 .
The combined significance of the above terms
In consequence of the Act having continued the court as a superior court having appellate jurisdiction, the court is endowed with the capacity, on a properly constituted appeal from a judicial or quasi-judicial decision of first instance, to review that decision for error and, if error be found, to address it .
The extent of the court’s capacity to do so, however, is dependent upon the scope of the right of appeal pursuant to which a particular appeal is brought .
If the scope of the right of appeal is unrestricted, the appellate jurisdiction of the court extends to every component of the decision of first instance . In that event the court’s appellate jurisdiction enables it to review the decision for alleged error 2015 CanLIIDocs 293 of fact, law, application of law to fact, or exercise of discretion, and, if reversible error be found, to address it in accordance with the remedial powers vested in the court: Farm Credit Corp. v Valley Beef Producers Co-operative Ltd., 2002 SKCA 100, 218 DLR (4th) 86 .
Conversely, if the scope of the right of appeal is restricted, as it is on occasion to a question of law alone, the appellate jurisdiction of the court is correspondingly restricted . In that event the appellate jurisdiction of the court does not extend to every component of the decision of first instance but is confined to those components giving rise on appeal to a question of law as distinct from a question of fact: Sherwood (Rural Municipality No. 159) v Regina (City), 2000 SKCA 4 .
The jurisdiction of the court as a superior court with appellate jurisdiction, as referred to in subsection 3(1), finds explicit expression in section 10 of the Act . Section 10 expressly endows the court with “appellate jurisdiction in civil and criminal matters where an appeal lies to the court…”
The expression “where an appeal lies to the court” means where an appeal lies to the court pursuant to statute . As noted above, there is no right of appeal to the court from a decision of first instance, or otherwise, except as provided by statute .
While the court is continued as a superior court of record having appellate jurisdiction (as in subsection 3(1) of the Act), and is expressly endowed with appellate jurisdiction (as in section 10), the Act goes on to confer a measure of original jurisdiction in the court to the end of empowering the court to entertain and fully address all matters that may properly come before it .
Part One The Court of Appeal Act, 2000 9 s. 3
In addition to this, the court is also possessed of a measure of inherent jurisdiction by reason of its status as a superior court of record—inherent jurisdiction that is ancillary to both its appellate and original jurisdiction .
For further consideration of the subject of the jurisdiction of the court, see the commentary accompanying each of section 10 (Appellate jurisdiction) and section 11 (Original jurisdiction) .
Subsection 3(2): composition and size of the court
This subsection, which states that the court consists of a chief justice and six other judges, falls to be read in conjunction with subsection 3(5), which establishes the additional office of supernumerary judge of the court . (See the commentary in relation to subsections 3(5) and (6) .)
Subsection 3(3): place of sitting 2015 CanLIIDocs 293 The subsection requires the court to sit in both Regina and Saskatoon . It also empowers the court to sit elsewhere at the discretion of the chief justice .
In general, the court sits in Regina as the historical seat of the court (The Court of Appeal Act, SS 1915, c 9, s 3) . In keeping with the requirements of subsection 3(3) of the present Act, however, the court sits not only in Regina but also in Saskatoon . It does so to the end of reducing the inconvenience and cost to the parties of a civil appeal from a decision made in or nearer to Saskatoon than Regina .
Thus the court sits in Saskatoon on a regular basis in accordance with an annual sitting schedule approved by the judges of the court and published on the court’s website (www .sasklawcourts .ca) .
The practice of the court is to schedule sittings in Saskatoon six times per year and for one week at a time, subject to extension depending on the circumstances .
Subsection 3(4): size of the court
As noted above (in relation to the purpose underlying the enactment of the present Act), this subsection removed the pre-existing power of the Lieutenant Governor in Council (meaning, in effect, the Executive Council or cabinet), to decrease the size of the court, in contradistinction to increasing its size . In consequence, only the Legislature can decrease the size of the court . This change may be taken to have been inspired by a desire to avoid potential infringement of the core constitutional principles of judicial independence
10 Civil Appeals in Saskatchewan s. 3 mentioned, for example, in Saskatchewan Federation of Labour v Saskatchewan (Attorney General), 2013 SKCA 61, 417 Sask R 50 .
Subsections 3(5) and (6): supernumerary judges
Subsection 3(5) states that for each office of judge provided for by subsection 3(2), namely the offices of a chief justice and six other judges, there is the additional office of supernumerary judge (lit: “person above the allotted number”) . Subsection 3(6) goes on to state that a supernumerary judge shall hold himself or herself “available to perform any judicial duties that may be assigned to the judge from time to time by the chief justice” .
These subsections were enacted to the end of securing the advantage to the administration of justice generally of section 29 of the Judges Act, RSC 1985, c J-1 . Section 29 makes it possible for long-serving judges of a superior court to give up their regular judicial duties and hold office as a supernumerary judge, thus paving the way for the renewal of the judiciary through a process of transition . 2015 CanLIIDocs 293
More specifically, section 29 of theJudges Act provides that, if a provincial legislature has enacted legislation establishing “for each office of judge of a superior court” of the province the “additional office of supernumerary judge of the court”, a judge of that court may, if eligible to do so, elect to give up the judge’s regular duties of office and “hold office only as a supernumerary judge” .
To be eligible to do so, a judge must have continued in judicial office for at least 15 years, and the judge’s combined age and number of years in judicial office must be not less than 80 . If thus eligible, a judge may elect to hold office as a supernumerary judge for a period of 10 years or until the judge resigns, is removed from office, or reaches the mandatory retirement age of 75, whichever occurs first . The same election is available to a judge who has attained the age of 70 years, and who has continued in judicial office for at least 10 years .
A judge of the court who elects to hold office as a supernumerary judge retains all the powers, and remains bound by all the duties, appertaining to the office of a judge of the court .
Section 29 of the Judges Act goes on to provide that a judge who elects to hold office as a supernumerary judge is bound to “hold himself or herself available to perform such special judicial duties as may be assigned to the judge…by the chief justice…”
In the light of this requirement, every judge of the court who elects to hold office as a supernumerary judge is expected, as a matter of internal court policy,
Part One The Court of Appeal Act, 2000 11 s. 4
to be available to hear and determine at least half the number of appeals and applications in chambers as are heard and determined by judges performing the regular duties of the office (or more than half as occasion may require) . Supernumerary judges are similarly expected to continue to play an active role as members of the court generally .
•
Oath of office 4 Before entering on the duties of office, a judge shall take the following oath, administered by the Lieutenant Governor, the chief justice or another judge:
I, ______, do swear (or solemnly affirm) that I will well
and truly serve our Sovereign Lady the Queen in the office of Chief 2015 CanLIIDocs 293 Justice (or a Judge) of the Court of Appeal for Saskatchewan, and that I will duly and faithfully, and according to the best of my skill and knowledge, exercise the powers and trust reposed in me as Chief Justice (or a Judge) of that court. (So help me God.)
•
Duties and powers of judges 5(1) The chief justice and the other judges are also, by virtue of their office, judges of the Court of Queen’s Bench and: (a) for all purposes, have all the powers, rights, privileges and immunities of judges of the Court of Queen’s Bench; and (b) are eligible to preside over trials of criminal and civil cases in the Court of Queen’s Bench, to sit in chambers as judges of that court and to hear and determine all applications that may properly be made to a judge of that court sitting in chambers. (2) Each judge has all the jurisdiction, both civil and criminal, possessed by the judges of any court in Saskatchewan pursuant to any Act or any Act of the Parliament of Canada.
12 Civil Appeals in Saskatchewan s. 5
(3) Nothing in this Act requires judges to preside over trials of criminal and civil cases, but they may, with the consent of the chief justice, preside over criminal and civil trials when requested to do so by the Chief Justice of the Court of Queen’s Bench.
Commentary
Subsections 5(1) and (2) confer upon each judge of the court, for all purposes, all the powers of a judge of the Court of Queen’s Bench, along with the whole of the jurisdiction possessed by the judges of any court in Saskatchewan pursuant to any statute, provincial or federal .
This power may be exercised by a judge of the court to determine an application to the Court of Queen’s Bench that would ordinarily be determined by a judge of that court except for circumstances making it awkward for the application to be heard in that court: Baynton v Mills, 2008 SKQB 108, 313 Sask R 266 (Queen’s Bench 2015 CanLIIDocs 293 judge a party to an application for an interlocutory injunction, making it desirable for a judge of the Court of Appeal to hear and determine the matter) .
However, it is seldom necessary, in the context of a proceeding before the Court of Appeal, to call upon the judges of the court to exercise the jurisdiction and power conferred upon them by subsections 5(1) and (2) . This is so by reason of: (i) the extensive appellate powers vested in the court by sections 12, 13, and 14 of the Act; (ii) the inherent jurisdiction in the court as a superior court of record; and (iii) the measure of original jurisdiction conferred on the court by section 10 of the Act .
Still, it may be necessary in rare circumstances to call upon the court, in the context of a proceeding in the court that does not constitute an appeal as such, to exercise the powers and jurisdiction conferred upon the judges of the court by subsections 5(1) and (2): R v Sterling (1993), 84 CCC (3d) 65 (Sask CA) at 80 to 81 . This was an unusual case inasmuch as the court held that no right of appeal existed from an order made in the Court of Queen’s Bench but, nevertheless, assumed jurisdiction and quashed the order as being a nullity . It did so in reliance upon the doctrine of ex debito justitiae (lit: “as or from a debt of justice”), and in doing so the court drew upon what are now subsections 5(1) and (2) of the Act for these purposes .
•
Part One The Court of Appeal Act, 2000 13 s. 5.1
Judgment by former judge 5.1(1) A judge who resigns his or her office or is appointed to another court or otherwise ceases to hold office may, within six months after the resignation, appointment or date that he or she otherwise ceases to hold office, give a decision in an appeal or matter he or she heard while holding office, and the decision is effective as though he or she still held office. (2) A judge who is appointed to another court may continue with the hearing of an appeal or matter of which he or she was seized, and the jurisdiction to hear the appeal or matter and give a decision is effective as though he or she still held office.
Commentary 2015 CanLIIDocs 293 The operative purpose of these provisions is to avoid the delay and expense associated with the potential for having to re-hear an appeal or matter in the circumstances mentioned in this section .
Thus, if a judge who participated in the hearing of an appeal or matter in relation to which the decision has been reserved should cease to hold office for any of the reasons mentioned in subsection (1), the judge remains empowered to give a decision for a period of six months after ceasing to hold office .
Similarly, if a judge who was seized with the hearing of an appeal or matter should cease to hold office for the reason mentioned in subsection (2), the judge may continue to hear the appeal or matter and give a decision as though the judge still held office .
For related matters, and the need in some such circumstances to re-hear an appeal or matter, see the commentary under each of section 15 (Quorum) and section 16 (Re-hearings) .
•
Duties and powers of chief justice 6 The chief justice: (a) is the presiding judge and administrative head of the court;
14 Civil Appeals in Saskatchewan s. 7
and (b) has general supervision and direction over the sittings of the court, assignment of the judicial duties of the court, court lists and administrative staff carrying out functions related to the court.
•
Right of appeal 7(1) In this section and section 9, “enactment” means: (a) an Act; (b) an Act of the Parliament of Canada; or (c) a regulation made pursuant to an Act or an Act of the 2015 CanLIIDocs 293 Parliament of Canada; but does not include this Act. (2) Subject to subsection (3) and section 8, an appeal lies to the court from a decision: (a) of the Court of Queen’s Bench or a judge of that court; and (b) of any other court or tribunal where a right of appeal to the court is conferred by an enactment. (3) If an enactment provides that there is no appeal from a decision mentioned in subsection (2) or confers only a limited right of appeal, that enactment prevails.
Commentary
Section 7 was enacted in place of section 6 of the former Act .
Section 6 conferred upon the court all the jurisdiction and powers of the Supreme Court of Saskatchewan en banc immediately prior to March 1, 1918 . This was expressed to include the jurisdiction and power to hear and determine appeals, and matters in the nature of appeals, respecting any decision made by a judge of the Court of Queen’s Bench, or a judge of an inferior court where an appeal is given by any Act .
Part One The Court of Appeal Act, 2000 15 s. 7
Section 6 also endowed the court with the jurisdiction and power to hear and determine any other matter that might lawfully be brought before any divisional court of the High Court of Justice or the Court of Appeals of England as of January 2, 1898, except as specifically modified by provincial legislation .
The cast of section 6 prompted the attorney general of the day, when introducing the Bill that led to the enactment of the present Act, to observe that the jurisdiction of the court was “incomprehensible to anyone other than legal historians” .
Section 7 of the present Act was enacted to the general end of rectifying this state of affairs by clarifying the right of appeal to this court, as well as the associated jurisdiction of the court .
As such, this section, together with those empowering the Court of Appeal to act upon a right of appeal, is of fundamental importance to the subject of appeal . This is particularly so of subsection 7(2) .
Subsection 7(2) 2015 CanLIIDocs 293
Overview
Subsection 7(2) states that an appeal lies to the Court of Appeal from: a) a decision of the Court of Queen’s Bench or a judge of that court, and b) a decision of any other court or tribunal where a right of appeal is conferred by an enactment .
This is of fundamental importance to the subject of appeal in light of the legal principle that there exists no right of appeal from a decision of any court or tribunal except as provided by statute: R v Meltzer, [1989] 1 SCR 1764; Kourtessis v M.N.R., [1993] 2 SCR 53; Dagenais v Canadian Broadcasting Corp., [1994] 3 SCR 835; R v S. (T.), [1994] 3 SCR 952 . As was said in Kourtessis v M.N.R. at 69 to 70: Appeals to appellate courts and the Supreme Court of Canada have become so established and routine that there is a widespread expectation that there must be some way to appeal the decision of a court of first instance . But it remains true that there is no right of appeal on any matter unless provided for by the relevant legislation .
Object
That there is no right of appeal unless provided for by statute accounts for the object of subsection 7(2) . The object is twofold:
16 Civil Appeals in Saskatchewan s. 7
• to confer a general right of appeal to the court from a decision of the Court of Queen’s Bench or a judge of that court (subsection 7(2)(a)), and • to recognize and accommodate such specific rights of appeal from a decision of any other court or tribunal as may be conferred by an enactment (subsection 7(2)(b)) .
The term “enactment” is defined in subsection 7(1) to mean an Act of the Legislature, an Act of Parliament, or a regulation made pursuant to either, but does not include The Court of Appeal Act, 2000 .
The term “decision” is defined in section 2 of the Act to include “a judgment, order, decree, verdict or finding” .
Purpose
The rights of appeal mentioned in subsection 7(2) are regarded as having both a private and public purpose . Their private purpose lies in ensuring no one is left to bear the burden of a wrong, unfair, or unreasonable decision . Their public 2015 CanLIIDocs 293 purpose lies, first, in maintaining public confidence in the administration of justice by ensuring, among other things, that the law is interpreted and applied consistently throughout the province; and, second, in fostering the clarification and development of the law as may be appropriate: Farm Credit Corp. v Valley Beef Producers Co-operative Ltd., 2002 SKCA 100, 218 DLR (4th) 86 .
Potential limitations: subsection 7(3)
The rights of appeal mentioned in subsection 7(2) are expressed to be subject, first, to the provisions of subsection 7(3) and, second, to the provisions of section 8 .
Subsection 7(3) states that if an enactment provides that there is no right of appeal, or confers only a limited right of appeal, that enactment prevails .
Hence, if an enactment pursuant to which a decision is made should state that there is no right of appeal, that enactment prevails and, in consequence, no appeal from the decision lies to the Court of Appeal . To this extent, subsection 7(3) serves to preclude appeal to the court .
Similarly, if an enactment pursuant to which a decision is made should provide for only a limited right of appeal to the court (such as a right of appeal confined to a question of law), that enactment prevails and, in consequence, the right of appeal does not extend beyond a question of law . To this extent, subsection 7(3) serves to limit the scope of the right of appeal, limiting it to matters of law to the exclusion of matters of fact .
Part One The Court of Appeal Act, 2000 17 s. 7
Furthermore, section 8 states that, except for a confined class of cases, no appeal lies to the court from an interlocutory decision of the Court of Queen’s Bench unless leave to appeal is granted by the court or a judge of the court . The section thus serves to limit the exercise of the right of appeal, not allowing for its exercise without leave of the court or a judge of the court .
Operation
Subsection 7(2) operates in a number of different ways, both as it applies to appeals from a decision of the Court of Queen’s Bench or a judge of that court and from a decision of any other court or tribunal . There are, however, two prerequisites to its operation in either context .
First, there must exist a right of appeal conferred by statute: Kourtessis v M.N.R., [1993] 2 SCR 53 .
Second, there must be a decision from which it is sought to appeal, which is to say
there must exist a “judgment, order, decree, verdict or finding” of a court or tribunal, 2015 CanLIIDocs 293 for otherwise there is no right of appeal: Clements v Preece, 2014 SKCA 113 .
Even so, the section operates differently in relation to: • appeals from the Court of Queen’s Bench or a judge of that court, and • appeals from a decision of any other court or tribunal .
Appeals from the Court of Queen’s Bench
Unlike any other court or tribunal mentioned in subsection 7(2), the Court of Queen’s Bench and the judges of that court make decisions in exercise of diverse kinds of jurisdiction and power derived from diverse sources .
Generally speaking, the Court of Queen’s Bench is possessed of such original jurisdiction and power as is: (i) accorded to it in its capacity as a superior court of record; (ii) conferred upon it by The Queen’s Bench Act, 1998, SS 1998, c Q-1 .01, and The Queen’s Bench Rules; and (iii) committed to it by both common law and by particular enactments (federal or provincial as the case may be) relating to particular subject matter such as divorce, the division of family property, bankruptcy, personal property security, and so on .
In addition, the Court of Queen’s Bench is possessed of appellate jurisdiction and power as may be assigned to it by particular enactments, such as those pertaining to the adjudication of small claims and professional misconduct complaints . Enactments of this type render such adjudications subject to appeal to that court, rather than the Court of Appeal, at least in the first instance .
18 Civil Appeals in Saskatchewan s. 7
Thus, the Court of Queen’s Bench makes all manner of decisions in exercise of its various sources of jurisdiction and power .
All of this lies within the contemplation of subsection 7(2)(a) of The Court of Appeal Act, 2000 .
Accordingly, the subsection 7(2)(a) right of appeal to the court from a decision of the Court of Queen’s Bench, or a judge of that court, constitutes a general right of appeal that extends to all such decisions, provided, that is, that this general right of appeal is not displaced by operation of subsection 7(3) or limited in its exercise by section 8 .
For further consideration of this proviso, see the the following heading, Potential limitations: subsection 7(3), and commentary under section 8 .
In whom the right of appeal lies
A party to an action in the Court of Queen’s Bench against whose interests a 2015 CanLIIDocs 293 decision is made is entitled to exercise this right of appeal to the extent the interests of that party are adversely affected by the decision . The right may be exercised by means of either a notice of appeal or a notice of cross-appeal as the case may be .
The term “action” is defined in section 2 of The Queen’s Bench Act, 1998 to mean: (a) a civil proceeding commenced by statement of claim or in any other manner authorized or required by this Act or the rules of court, or (b) any other original proceeding between a plaintiff and a defendant .
A non-party to an action who is adversely affected by a decision of the Court of Queen’s Bench may also exercise this right of appeal but only with leave of the Court of Appeal, which has the inherent jurisdiction to entertain an appeal by a non- party so affected: Société des Acadiens du Nouveau-Brunswick Inc. v Association of Parents for Fairness in Education, Grand Falls District 50 Branch, [1986] 1 SCR 549 . See, too: R v Homestake Mining Company, [1977] 3 WWR 629 (Sask CA), and Dimitrijevic v Trainor (1989), 61 DLR (4th) 741, [1989] 6 WWR 186 (Sask CA) .
The right of appeal lies from the decision, not the reasons for the decision
The subsection 7(2)(a) right of appeal to the Court of Appeal is expressed to be from a decision of the Court of Queen’s Bench or a judge of that court . The word “decision” is defined in section 2 to include “any judgment, order, decree, verdict or finding” .
Obviously—though this is overlooked on occasion—no right of appeal lies to the court except from a decision as such: Clements v Preece, 2014 SKCA 113 (notice of
Part One The Court of Appeal Act, 2000 19 s. 7
appeal stuck to the extent it took issue with a matter that, in the context of ongoing proceedings, had yet to be addressed in the Court of Queen’s Bench) .
Nor does the right of appeal lie against the reasons for a decision as distinct from the decision itself . Accordingly, and in keeping with convention, the right of appeal is from the decision, not the reasons for the decision .
Hence, a party in whose favour a decision is made cannot, as a general rule, appeal from the decision, even if the reasons for it be open to objection . This rule may be subject, however, to potential exception in rare circumstances where the reasons for judgment may in themselves be open to objection on the ground of serious prejudice to the interests of the successful party in the context of ongoing proceedings: Sunnyvale Farming Enterprises Ltd. v Lloyds Bank Canada (1991), 90 Sask R 33 (CA) (reasons for judgment potentially giving rise to a claim of res judicata in further proceedings engaging the same issues) .
Nor, as a general rule, can a person in whose favour a decision is made cross- appeal against the decision except to the end of seeking to vary the decision, not the reasons for the decision . In rare circumstances, however, it may be necessary 2015 CanLIIDocs 293 for the successful party, though not wishing to vary the decision, to seek and obtain leave to cross-appeal in relation to the reasons for the decision: Sorotski v CNH Global N.V., 2006 SKCA 77, 285 Sask R 125 . In this case key portions of the reasons improperly found their way into the resulting order and prejudiced the respondent’s ability to seek to sustain the order for reasons other than those upon which it was made .
Bearing in mind that a decision is one thing, whereas the reason or reasons for its making another, the court may sustain a decision for reasons other than those upon which it was reached: Thatcher v Lindskog (1983), 1 DLR (4th) 763, 27 Sask R 68 (CA): [2] An adjudication under attack may be affirmed on a ground not articulated in the written reasons . An appellate court may affirm on any valid ground—in doing so, it may ignore the reasons of the lower Court which are not persuasive… .It would be destructive of time and energy for all concerned were we to accede to the request of learned counsel for the appellants and remit the motion to the learned Chambers Judge for further argument and consideration .
While it is open to a respondent to “advance any argument to sustain the [decision] below…a party cannot, however, raise an entirely new argument which has not been raised below and in relation to which it might have been necessary to adduce evidence at trial”: R v Perka, [1984] 2 SCR 232 at p 240 . See, too: Sorotski v CNH Global .
20 Civil Appeals in Saskatchewan s. 7
For a more complete consideration of the subject of raising an entirely new argument on appeal see the commentary pertaining to this subject under section 10 of the Act (Appellate jurisdiction) .
The scope of the right of appeal
Unless otherwise limited, the scope of the subsection 7(2)(a) general right of appeal to the Court of Appeal from a decision of the Court of Queen’s Bench is unlimited in the sense it extends to every component of the decision .
In other words, this right of appeal extends to the facts as found, to the identification of the governing law, to the application of law to fact, and to the exercise of discretion if the decision was made in whole or in part in the exercise of a discretionary power: Farm Credit Corp. v Valley Beef Producers Co-operative Ltd., 2002 SKCA 100, 218 DLR (4th) 86 .
It should also be noted that, since this general right of appeal is expressed to lie from a decision of the Court of Queen’s Bench or a judge of that court, the right 2015 CanLIIDocs 293 extends to both a decision of a judge alone, whether at trial or in chambers, and a decision of the court following upon a trial by judge and jury . It extends to the latter because a jury verdict is ultimately reduced by the formal judgment roll to a decision of the Court of Queen’s Bench .
While this right of appeal extends to a decision made by a jury, it functions somewhat differently in this context than in the context of a decision of a judge alone . The reason for this lies in the right to trial by jury and the unique mode of trial associated with this right, including the exclusive role of the jury in determining the facts and evaluating them against the governing legal standards given to the jury at the direction of the trial judge, all of which is ultimately reflected in the verdict of the jury .
Traditionally, the right of appeal in relation to a jury verdict extended to (i) misdirection; (ii) improper reception or rejection of evidence; (iii) unfairness in the proceedings; and (iv) insufficient evidence to support the verdict . This is still so .
However, so far as the right of appeal extends to a jury’s findings of fact (including the sufficiency of the evidence), and the jury’s application of the law to the facts (or its evaluation of the facts against the governing legal standard), the exercise of this right of appeal in this context invites a distinct standard of appellate review born of respect for the right to trial by jury . This finds expression in the principle that an appellate court will not interfere with a jury’s findings of fact, or a jury’s application of law to fact, unless the court is satisfied the verdict is so plainly unreasonable that no jury properly instructed and acting judicially could have arrived at the verdict: Baert v Graham, 2011 SKCA 21, 371 Sask R 1 .
Part One The Court of Appeal Act, 2000 21 s. 7
Potential limitations: subsection 7(3)
Subsection 7(3) states, in effect, that if an enactment provides that there is no right of appeal from a decision of the Court of Queen’s Bench or a judge of that court, or provides for only a limited right of appeal, that enactment prevails .
In consequence, the subsection 7(2)(a) right of appeal from a decision made in the Court of Queen’s Bench may not always apply, because this right of appeal is open to potential override by some other enactment that speaks to appeal .
This is especially so if the decision is made pursuant to a particular enactment relating to particular subject matter and conferring specific powers upon the Court of Queen’s Bench in relation to that subject matter . To speak of a decision made pursuant to a particular enactment is to speak, more precisely, of a decision made in exercise of the jurisdiction and power conferred upon the Court of Queen’s Bench by the particular enactment .
Some such enactments may state there is no right of appeal to the court . Others may be silent about the matter . Still others may confer a right of appeal to the 2015 CanLIIDocs 293 court, and may do so in either unlimited or limited terms .
This variation warrants attention, for it is closely associated with: • the source of the right of appeal from a decision made in the Court of Queen’s Bench, and • the scope of the right of appeal .
These distinctions account for the requirements of Rule 8 of The Court of Appeal Rules . Rule 8 (Contents of notice of appeal) requires that a notice of appeal “identify the source of the right of appeal and the basis for the jurisdiction of the court to determine the appeal” .
When other enactment states there is no appeal
If a particular enactment pursuant to which a decision of the Court of Queen’s Bench is made should state that there is no right of appeal, that enactment prevails and, in consequence, the general right of appeal conferred by subsection 7(2)(a) is overridden, there is no right of appeal to the Court of Appeal, and the court has no jurisdiction to entertain an appeal: Huerto v Saskatchewan (Minister of Health) (1995), 128 Sask R 208 (CA); Thompson v Wall, 2006 SKCA 116, 289 Sask R 7 .
When other enactment is silent about appeal
If a particular enactment pursuant to which a decision of the Court of Queen’s Bench is made says nothing about appeal, the general right of appeal provided
22 Civil Appeals in Saskatchewan s. 7 for by subsection 7(2)(a) applies: Attorney General of Canada v Lees, [1977] 4 WWR 505 (Sask CA); Borrowman v Wickens (1986), 82 Sask R 295 (CA); Sydiaha v Saskatchewan College of Psychologists, 2014 SKCA 116, 446 Sask R 196 .
When other enactment confers a right of appeal
If a particular enactment pursuant to which a decision of the Court of Queen’s Bench is made confers a right of appeal to the Court of Appeal, that enactment governs and, in consequence, the specific right of appeal provided for by that enactment applies .
Thus, if the right of appeal conferred by such an enactment should amount to an unlimited right of appeal, that enactment prevails, though in that event the specific right of appeal conferred by that enactment is the functional equivalent of the general right of appeal conferred by subsection 7(2)(a) . This is so because subsection 7(2)(a) provides an unlimited right of appeal: Farm Credit Corp. v
Valley Beef Producers Co-operative Ltd., 2002 SKCA 100, 218 DLR (4th) 86 . 2015 CanLIIDocs 293
If, on the other hand, the right of appeal conferred by such an enactment should amount to only a limited right of appeal, that enactment prevails and, in consequence, the general right of appeal provided for by subsection 7(2)(a) is overridden, the specific right of appeal provided for by that enactment governs, and the scope of the right of appeal is limited accordingly .
For example, the scope of a right of appeal limited to a question of law is confined to matters of law to the exclusion of matters of fact: Murphy v Saskatchewan Government Insurance, 2008 SKCA 57, 310 Sask R 149 .
Appeals from any other court or tribunal
Subsection 7(2)(b) states (subject to subsection 7(3)), that an appeal lies to the Court of Appeal from a decision of any other court or tribunal where a right of appeal to the court is conferred by an enactment .
Accordingly, subsection 7(2)(b) does not confer a right of appeal to the Court of Appeal . Rather it recognizes and accommodates such rights of appeal as may be conferred by some other enactment, notably the enabling enactment pursuant to which the decision was made .
Generally speaking, any other court or tribunal (unlike the Court of Queen’s Bench), possesses only such jurisdiction and power as may be conferred upon it by its enabling enactment, which is to say the statute pursuant to which it was established and is empowered to act . Thus these bodies make decisions in the
Part One The Court of Appeal Act, 2000 23 s. 7
exercise not of diverse sources of jurisdiction and power but in the exercise of the jurisdiction and powers committed to them by their enabling enactments .
Some such enactments contain no right of appeal to the Court of Appeal from a decision made pursuant thereto . Others do . Of those that do, it is not uncommon for them to limit the right of appeal to a question of law or jurisdiction . Nor is it uncommon for them to limit the exercise of the right of appeal by requiring leave to appeal by the court or a judge of the court .
So, there are multiple possibilities here, all of which lie within the implicit contemplation of subsection 7(2)(b) .
Enabling enactment providing no right of appeal
If such enactment contains no right of appeal, no appeal lies and the court is without jurisdiction to entertain an appeal . The reason for this is that, as a matter of legal principle, there is no right of appeal except as provided for by statute:
Kourtessis v M.N.R., [1993] 2 SCR 53 . 2015 CanLIIDocs 293
Enabling enactment conferring a right of appeal
Some enabling enactments contain a right of appeal of one kind or another, the exercise of which may or may not be subject to restriction . Since there are many such enactments, there are many such rights of appeal, the nature of which may vary from enactment to enactment . They may vary in relation to both their scope and manner of exercise .
This makes it essential, when considering an appeal from a decision of any other court or tribunal, to identify the source and nature of the right of appeal with a view to whether the right of appeal might be limited in scope to a question of law, for instance, and whether its exercise might be subject to obtaining leave to appeal .
The scope of such right of appeal
The scope of a right of appeal from any other court or tribunal is entirely dependant upon the wording of the enactment conferring the right of appeal .
If the enactment is so worded as to confer an unlimited right of appeal (which is rare), the right of appeal extends to every component of the decision subject to appeal . Which is to say it extends to the facts as found, to the identification of the governing law, to the application of law to fact, and to the exercise of discretion if the decision was made in whole or in part in the exercise of a discretionary power:
24 Civil Appeals in Saskatchewan s. 7
Farm Credit Corp. v Valley Beef Producers Co-operative Ltd., 2002 SKCA 100, 218 DLR (4th) 86 .
If, on the other hand, the enactment is so worded as to confer only a limited right of appeal (which is commonly the case), the scope of the right of appeal is correspondingly limited . For example, a right of appeal expressly limited to a question of law does not extend to the facts as found but is confined to matters of law and its application: Murphy v Saskatchewan Government Insurance, 2008 SKCA 57, 310 Sask R 149 . See, too: Sherwood (Rural Municipality No. 159) v Regina (City), 2000 SKCA 4 .
The manner of exercise of such rights of appeal
An enactment conferring a right of appeal from any other court or tribunal, as referred to in subsection 7(2)(b), may or may not restrict the exercise of that right of appeal by requiring leave to appeal by the court or a judge of the court .
Should leave to appeal be required, the right of appeal may only be exercised on 2015 CanLIIDocs 293 obtaining such leave, and only to the extent provided for in the order granting leave to appeal: Schwab v Waterer, [1996] 4 WWR 433, 137 Sask R 315 (CA) . See, too: Idziak v Canada (Minister of Justice), [1992] 3 SCR 631 .
The role of subsection 7(3) re a decision of any other court or tribunal
Subsection 7(3) states that if an enactment precludes appeal or confers only a limited right of appeal, that enactment prevails . This is expressed in subsection 7(2) to constitute an exception to the rights of appeal mentioned in subsection (2), including the right of appeal from a decision of any other court or tribunal where a right of appeal to the court is conferred by an enactment .
To the extent this exception is expressed to apply to any other court or tribunal, the exception is something of an anomaly inasmuch as it appears to be redundant in two respects .
First, the subsection 7(3) states that if an enactment provides that there is no right of appeal, that enactment prevails . This is clear enough, but as the subsection applies to a decision of any other court or tribunal, it appears redundant because there can be no appeal from any other court or tribunal unless that body’s enabling enactment contains a right of appeal (or unless some other enactment should do so) . The reason for this is that there is no right of appeal except that provided for by statute: Kourtessis v M.N.R., [1993] 2 SCR 53 .
Part One The Court of Appeal Act, 2000 25 s. 7
Second, the remaining provisions of subsection 7(3) state that if an enactment provides only a limited right of appeal, that enactment prevails . Again this is clear enough, but so far as this statement applies to the right of appeal from a decision of any other court or tribunal, it also appears to be redundant . It appears to be so because the scope of a right of appeal conferred by an enactment will have been defined by that enactment .
Even so, the provisions of subsection 7(3) serve to reinforce the idea that the right of appeal, if any, from a decision of any other court or tribunal is entirely dependent upon statute . They also serve as a reminder of the need to carefully identify the nature and source of the right of appeal when appealing to this court from a decision of any other court or tribunal .
Further Commentary
For added commentary pertaining to the rights of appeal mentioned in subsection 7(2), namely the right of appeal from a decision of the Court of Queen’s Bench (subsection 7(2)(a)) and such right of appeal as may exist from a decision any 2015 CanLIIDocs 293 other court or tribunal (subsection 7(2)(b)), see the following sources: (1) Cameron J .A ., “Civil Appeals to the Court of Appeal: Practice and Procedure” (Regina: Law Society of Saskatchewan, 2009), online at www .sasklawcourts .ca: • Pages 5 to 10—The analysis of the scope of these rights of appeal, including their scope when not restricted to a question of law, as well to their scope when so restricted . (2) Richards C .J .S ., “Going Fishing”: Some Thoughts on Successful Advocacy in the Court of Appeal (Regina: Court of Appeal for Saskatchewan, 2008), online at www .sasklawcourts .ca: • Pages 8 to 10—The discussion of the matter in the context of appellate advocacy .
Case Law
The case law relevant to the rights of appeal mentioned in section 7 both pre- dates and post-dates the enactment of The Court of Appeal Act, 2000 . That which pre-dates the enactment is concerned with section 6 of the former Act . As such, this case law is no longer as significant as it once was . However, section 7 of the present Act is based upon section 6 of the former Act (RSS 1978, c C-42) and, accordingly, this case law retains some relevance . It also serves to shed some light on the subject matter of section 7 .
26 Civil Appeals in Saskatchewan s. 7
This is especially so of two matters of distinction common to the provisions of section 7 of the Act as they relate to an appeal from a decision of the Court of Queen’s Bench or of a judge of that court, namely: • the distinction between a particular enactment that states there is no right of appeal from such a decision, and a particular enactment that is silent regarding the subject of appeal, and • the distinction between a decision made pursuant to a particular enactment, and a decision made pursuant to the general authority of the court .
Pre-2000
The right of appeal, if any
In a case in which a physician appealed to the court from an order of a judge of the Court of Queen’s Bench dismissing the physician’s appeal to that court from a decision made against him by the Joint Medical Professional Review 2015 CanLIIDocs 293 Committee on the authority of The Saskatchewan Medical Care Insurance Act, RSS 1978, c S-29, the Court of Appeal struck down the appeal on the following footings . Notwithstanding the right of appeal found in section 6 of The Court of Appeal Act, RSS 1978, c C-42, the court had no jurisdiction to entertain the appeal because section 49 .21(1) of The Saskatchewan Medical Care Insurance Act stated that “there is no right of appeal from a decision of a judge” acting on the authority of this section of this Act: Huerto v Saskatchewan (Minister of Health) (1995), 128 Sask R 208 (CA) .
Similarly, in a case in which the Saskatchewan Association of Registered Nurses appealed to the Court of Appeal from a decision of a judge of the Court of Queen’s Bench allowing an appeal to that court by a nurse from a finding of professional misconduct made against her under The Registered Nurses Act, 1988, SS 1988-89, c R-12 .2, the Court of Appeal held that the Association had no right of appeal under section 6 of The Court of Appeal Act . Why? Because the right of appeal to the Court of Queen’s Bench provided for by The Registered Nurses Act, 1988 was confined to the nurse and did not, therefore, extend to the Association: Swanson v Saskatchewan Registered Nurses’ Association (1992), 100 Sask R 81 (CA) . (The Registered Nurses Act, 1988 was subsequently amended to allow for an appeal by the Saskatchewan Association of Registered Nurses in circumstances such as these . See The Registered Nurses Amendment Act, 1993, SS 1993, c 37 .)
On the other hand, where The Recovery of Possession of Land Act, RSS 1965, c 122, provided for a right of appeal to a judge of the Court of Queen’s Bench but was silent about a further appeal to the Court of Appeal, the Court of Appeal held
Part One The Court of Appeal Act, 2000 27 s. 7
that in these circumstances an appeal lay to the court on the strength of the right of appeal found in section 6 of The Court of Appeal Act, namely the general right of appeal from a decision of the Court of Queen’s Bench: Attorney General of Canada v Lees, [1977] 4 WWR 505 (Sask CA) .
Likewise, where The Local Government Election Act, SS 1982-83, c L-30 .1, was silent as to a right of appeal to the Court of Appeal from a decision of a judge of the Court of Queen’s Bench regarding a contested municipal election, the court held that the decision was subject to appeal to the Court of Appeal pursuant to the general right of appeal grounded in section 6 of The Court of Appeal Act: Borrowman v Wickens (1986), 82 Sask R 295 (CA) . See, too: Silcorp Ltd. v KJK Holdings Inc. (1992), 90 DLR (4th) 488, 100 Sask R 143 (CA) .
The source of the right of appeal
On an appeal from a pre-hearing determination of a “preliminary objection to jurisdiction” made in the Court of Queen’s Bench in the context of a proceeding under The Infants Act, RSS 1978, c I-9, the Court of Appeal held, in majority 2015 CanLIIDocs 293 reasons for judgment, that a right of appeal, without leave, lay to the Court of Appeal pursuant to section 6 of The Court of Appeal Act: Hamm v Stagman (1984), 12 DLR (4th) 25, [1984] 5 WWR 148 (Sask CA) .
In this case the source of the jurisdiction of the court to entertain the appeal was explained in concurring reasons for judgment, with the following suggestions . First, the decision in the Court of Queen’s Bench regarding the “preliminary objection to jurisdiction” was made pursuant to The Queen’s Bench Act and The Queen’s Bench Rules, not The Infants Act, and that, in consequence, the general right of appeal provided for by The Court of Appeal Act applied, but leave to appeal was required because of the interlocutory nature of the impugned decision . Second, the fact The Infants Act was silent as to a right of appeal was immaterial in these circumstances .
Later, on an appeal from an order made in the Court of Queen’s Bench “directing the trial of an issue” in the context of proceedings under The Personal Property Security Act, SS 1979-80, c P-6 .1, the Court of Appeal held, in majority reasons for judgment, that the specific right of appeal provided for by The Personal Property Security Act applied, rather than the general right of appeal provided by section 6 of The Court of Appeal Act, and that, in consequence, leave to appeal against the order was not required: Dureault’s Allied Sales Ltd. v Courtyard Inns Ltd. (1988), 70 Sask R 77 (CA) .
However, in a subsequent case featuring a similar issue, the court cited Dureault’s Allied Sales Ltd. v Courtyard Inns Ltd., neither approving nor disapproving it
28 Civil Appeals in Saskatchewan s. 7 but leaving it open for future consideration: Rimmer v Adshead, 2003 SKCA 19, 224 DLR (4th) 372 .
Post-2000
The source of the right of appeal
On an appeal from a decision of a judge of the Court of Queen’s Bench refusing to compel one of the parties to answer questions on an examination for discovery in proceedings entailing divorce and division of family property, the court held that the general right of appeal provided for by subsection 7(2)(a) of The Court of Appeal Act, 2000 applied, rather than the specific right of appeal provided for by each of the Divorce Act, RSC 1985, c 3 (2d Supp), or The Family Property Act, SS 1997, c F-6 .3: Rimmer v Adshead, 2003 SKCA 19, 224 DLR (4th) 372 .
In so holding, the court cited its previous decision in Dureault’s Allied Sales Ltd. v Courtyard Inns Ltd. (1988), 70 Sask R 77 (CA), neither approving nor disapproving it but leaving it open for future consideration, noting that the right of appeal 2015 CanLIIDocs 293 conferred by a particular statute is: [8] …limited to those judgments or orders arising from a power specifically conferred by those statutes, to the exclusion of the variety of interlocutory decisions which may be made under the Rules of Court . Accordingly, this appeal finds its authority in The Court of Appeal Act, 2000 .
With this in mind, the court concluded that the decision under appeal was not made “under or pursuant to” the Divorce Act or The Family Property Act (so as to attract the right of appeal provided for by either of these enactments), but was made pursuant to The Queen’s Bench Rules (thus attracting the general right of appeal provided for by subsection 7(2)(a) of The Court of Appeal Act, 2000) . In support of its conclusion the court cited Kelvin Energy Ltd. v Lee, [1992] 3 SCR 235, among others . See, too: Gilewich v Strand, 2007 SKCA 34, 293 Sask R 48 .
Similarly, on an appeal from a decision of a judge of the Court of Queen’s Bench refusing to strike or stay proceedings launched by the Director of Community Operations under The Safer Communities and Neighbourhoods Act, SS 2004, c S-0 .1, the court held that the impugned decision was made pursuant to Rule 173 of The Queen’s Bench Rules, not The Safer Communities and Neighbourhoods Act, and was therefore subject to the general right of appeal provided for by sections 7 and 8 of The Court of Appeal Act, 2000: Director of Community Operations v 101150089 Saskatchewan Ltd., 2013 SKCA 110, 423 Sask R 276 .
Part One The Court of Appeal Act, 2000 29 s. 7
In a like vein, on an application for leave to appeal an interlocutory order of a judge of the Court of Queen’s Bench directing the listing for sale of a residence and providing for the partial distribution of the proceeds of sale in the course of family property proceedings was held to have been made pursuant to The Queen’s Bench Act and The Queen’s Bench Rules, rather than The Family Property Act, SS 1997, c F-6 .3 . Accordingly the source of the right of appeal lay in sections 7 and 8 of The Court of Appeal Act, 2000, not section 55 of The Family Property Act: Mannix v McKay, 2007 SKCA 93, 307 Sask R 154 .
Likewise, an interlocutory order for disclosure and production of documents, for interim distribution of family property, and for further and better particulars, was held to have been made on the authority of The Queen’s Bench Rules, not The Family Property Act, meaning the governing right of appeal was that provided for by The Court of Appeal Act, 2000, rather than The Family Property Act: Dutchak v Dutchak, 2009 SKCA 89, 337 Sask R 46 .
On the other hand, an interlocutory order granting exclusive possession of the
family home to one of the parties to proceedings under The Family Property Act 2015 CanLIIDocs 293 was held to have been made pursuant to that Act, not The Queen’s Bench Rules, and that in consequence (i) the source of the right of appeal from the order lay in section 55 of The Family Property Act, rather than in subsection 7(2)(a) of The Court of Appeal Act, 2000; and (ii) that leave to appeal was unnecessary because the right of appeal conferred by The Family Property Act does not require leave: Fehr v Turta, 2014 SKCA 91, 446 Sask R 1 .
Where an enactment provided a right of appeal to the Court of Queen’s Bench from a decision of a professional disciplinary body but was silent about whether a right of appeal lay to the Court of Appeal from the decision of the Court of Queen’s Bench, the Court of Appeal held that subsection 7(2)(a) of The Court of Appeal Act, 2000 applied and that accordingly a right of appeal from the decision of the Court of Queen’s Bench lay to the Court of Appeal: Sydiaha v Saskatchewan College of Psychologists, 2014 SKCA 116, 446 Sask R 196 .
The scope of the right of appeal
When not limited by the enactment conferring it
On an appeal based upon the right of appeal contained in subsection 66(2) of The Personal Property Security Act, 1993, SS 1993, c P-6 .2, which stated that “an appeal lies to the Court of Appeal from an order, judgment or direction of a court made pursuant to this Act”, the court held this right of appeal to be an unlimited right of appeal in the sense it extended to every component of the impugned decision made in the Court of Queen’s Bench . In so holding, the court observed that this specific right of appeal was the functional equivalent
30 Civil Appeals in Saskatchewan s. 7 of the general right of appeal conferred by subsection 7(2)(a) of The Court of Appeal Act, 2000 (when subject to no statutory restrictions): Farm Credit Corp. v Valley Beef Producers Co-operative Ltd., 2002 SKCA 100, 218 DLR (4th) 86 . More particularly, the court observed at para 49: [This] is what subsection 7(2)(a) comes down to when not subject to section 8 or subsection 7(3) . It confers an unlimited right of appeal upon a party to a proceeding in the Queen’s Bench . This is a substantive right of the person, the scope of which extends to every component of the decision subject to the right . In considering the scope of the right, as well as its object, it might be well to remind ourselves that Queen’s Bench judges, when called upon to decide a dispute, are basically called upon to perform three tasks: (i) to find the facts material to each of the elements of the cause of action, having regard for the evidence and the weight of the evidence bearing upon each of those
elements, for the nature of the burden of proof, and for the 2015 CanLIIDocs 293 location of the onus of proof; (ii) to identify the governing law, including the selection, the construction, and, if required, the interpretation of the law; and (iii) to apply the governing law to the facts as found and to exercise, when appropriate, judicial discretion .
When limited by the enactment conferring it
On an appeal from a decision of a judge of the Court of Queen’s Bench directing the payment of additional benefits to an insured under The Automobile Accident Insurance Act, RSS 1978, c A-35, the court held that the right of appeal provided by that Act, which was expressed to be “on a question of law alone,” applied and accordingly the appeal was limited by that enactment to questions of law and did not, therefore, extend to the judge’s findings of fact: Murphy v Saskatchewan Government Insurance, 2008 SKCA 57, 310 Sask R 149 .
No appeal when an enactment so states
An appeal from a decision of a judge of the Court of Queen’s Bench made on the authority of section 26 of The Water Appeal Board Act, SS 1983-84, c W-4 .01, was quashed on the ground that section 26 of this Act, while allowing for an appeal on a question of law to a judge of the Court of Queen’s Bench from a decision of the Water Appeal Board, stated “there is no appeal from the decision of a judge pursuant to this section”: Kachur v Lanigan Creek-Dellwood
Part One The Court of Appeal Act, 2000 31 s. 8
Brook Watershed Association, 2006 SKCA 117, 285 Sask R 307 . In quashing the appeal the court said this: [6] …Section 7(3) of The Court of Appeal Act makes it clear that if an enactment provides that there is no appeal from a decision of the Court of Queen’s Bench or a judge of that Court or confers only a limited right of appeal that the enactment prevails . In other words, the general right to appeal to this Court is overridden by the specific enactment in the statute . That is precisely the situation here .
See, too: Thompson v Wall, 2006 SKCA 116, 289 Sask R 7 .
•
Interlocutory appeals 2015 CanLIIDocs 293 8(1) Subject to subsection (2), no appeal lies to the court from an interlocutory decision of the Court of Queen’s Bench unless leave to appeal is granted by a judge or the court. (2) Leave to appeal an interlocutory decision is not required in the following cases: (a) cases involving: (i) the liberty of an individual; (ii) the custody of a minor; (iii) the granting or refusal of an injunction; or (iv) the appointment of a receiver; (b) other cases, prescribed in the rules of court, that are in the nature of final decisions.
Commentary
Section 8 is confined to appeal from a decision of the Court of Queen’s Bench or a judge of that court, as distinct from a decision of any other court or tribunal . As such the provisions of section 8 modify those of subsection 7(2)(a), which, subject to section 8, provide a right of appeal from a decision of the Court of Queen’s Bench or a judge of that court .
32 Civil Appeals in Saskatchewan s. 8
Subsection 8(1) states in effect that no appeal lies to the Court of Appeal from an “interlocutory decision” made in the Court of Queen’s Bench unless leave to appeal is granted by the Court of Appeal or a judge of the court . This serves to modify the exercise of the subsection 7(2)(a) right of appeal as it relates to an interlocutory decision . It does so by subjecting the exercise of that right to the need to obtain leave to appeal .
The term “interlocutory” stands in contradistinction to the term “final” and, as applied to the term “decision”, connotes something in the nature of a decision which, made between the commencement and conclusion of legal proceedings, relates to an intermediate matter at issue in the proceedings, not to the ultimate matter in issue .
The term “decision” is defined in section 2 of the Act to include “any judgment, order, decree, verdict or finding ”.
Since section 8 is expressed to require leave to appeal from an interlocutory decision of the Court of Queen’s Bench or a judge of that court, it is the character of the decision, rather than the nature of the application that resulted in the 2015 CanLIIDocs 293 decision, that either attracts or does not attract the application of subsection 8(1) . If interlocutory, rather than final, the decision attracts the application of this subsection and, in consequence, the decision cannot be appealed without leave (subject, that is, to the provisions of subsection 8(2)) .
Subsection 8(2) contains certain exceptions to the need to obtain leave to appeal, beginning with those mentioned in subsection 8(2)(a), namely interlocutory decisions pertaining to the liberty of the individual, the custody of a child, the granting or refusal of an injunction, and the appointment of a receiver . Thus, leave to appeal a decision of this nature is not required .
Nor, according to subsection 8(2)(b), is leave to appeal required in other cases, namely those prescribed by the rules of court that are in the nature of final decisions . The court has not adopted any such rule, so this exception is inoperative .
There are, however, other potential exceptions to the need to obtain leave to appeal from an interlocutory decision of the court of Queen’s Bench, depending upon the source of the right of appeal .
If, on the one hand, the source of the right of appeal lies in subsection 7(2)(a) of the Act, which confers a general right of appeal from a decision of the Court of Queen’s Bench, section 8 of the Act applies and, in consequence, leave to appeal from an interlocutory decision must be obtained unless otherwise provided for by subsection 8(2)(b) .
Part One The Court of Appeal Act, 2000 33 s. 8
If, on the other hand, the source of the right of appeal lies in some other enactment conferring a specific right of appeal from a decision of the Court of Queen’s Bench made pursuant to that enactment, the specific right of appeal may or may not be subject in its exercise to the need to obtain leave to appeal, irrespective of whether the decision is interlocutory or final . This depends on the requirements of that enactment .
As mentioned at the outset, section 8 is confined to appeal of an interlocutory decision of the Court of Queen’s Bench . As such, the section is of no concern to the subject of appeal from a decision of any other court or tribunal . Whether leave to appeal is required in relation to a decision of any other court or tribunal depends entirely upon the enactment pursuant to which the decision is made . If that enactment contains a right of appeal, the right of appeal may or may not be expressed to require leave to appeal, and may or may not do so irrespective of whether the decision is final or interlocutory .
While section 8 is thus of no concern to a decision of any other court or tribunal,
it may be noted that the basis upon which the court grants or denies leave to 2015 CanLIIDocs 293 appeal as contemplated by section 8 is much the same as the basis upon which it grants or denies leave to appeal in the context of other enactments requiring leave to appeal .
All of the foregoing requires elaboration, for the subject of leave to appeal, including in particular the requirements of subsection 8(1), is more complex than it first appears .
Subsection 8(1)
Object
The object of subsection 8(1) lies in avoiding undue cost and delay by allowing prospective appeals from interlocutory decisions of the Court of Queen’s Bench to be selectively culled to the end of achieving that object: Grant v Saskatchewan Government Insurance, 2003 SKCA 17, 227 Sask R 316 . Thus, the subsection is heavily driven by the meaning of the term “interlocutory decision ”.
The meaning of “interlocutory decision”
Even though subsection 8(1) is heavily driven by the term “interlocutory decision,” this is something of an amorphous term . It has been taken to mean a decision which, made between the commencement and conclusion of an action, does not finally decide the substantive matter in issue in the action . “The authorities…show that orders which do not finally dispose of the substantive issue in an action are not for the purpose of appeal final, but are interlocutory”: Beaver Lumber Co. Ltd. v Cain,
34 Civil Appeals in Saskatchewan s. 8
[1924] 3 WWR 332 (Sask CA), per Martin J .A . at 334, citing Alexander Hamilton Institutes v Chambers (1921), 65 DLR 226, [1921] 3 WWR 520 (Sask CA), wherein it was held that an order is final, rather than interlocutory, when the order “if allowed to stand, finally dispose[s] of the rights of the parties…” (per Turgeon J .A . at 228) . See, too: Cherry v Hindmarsh (1987), 64 Sask R 220 (CA) .
Even at that, it remains difficult from time to time to know whether an order is interlocutory or final for the purpose of appeal .
This makes it necessary on occasion for counsel to “look up the practice books and see what has been decided on the point . Most orders have now been the subject of decision . If a new case should arise, we must do the best we can with it . There is no other way”: Silcorp Ltd. v KJK Holdings Inc. (1992), 90 DLR (4th) 488, 100 Sask R 143 (CA), quoting Denning M .R . in Salter Rex & Co. v Ghosh, [1971] 2 All ER 865 (CA) at p 866 . See, too: Grant v Saskatchewan Government Insurance, 2003 SKCA 17, 227 Sask R 316; Stadnyk v Saskatchewan, 2011 SKCA 30; and Rekken Estate v Health Region No. 1, 2012 SKCA 86, 399 Sask R 241 .
That said, most orders have been the subject of decision in this and other 2015 CanLIIDocs 293 courts of appeal . For orders that have been characterized by this court as either interlocutory or final for the purpose of appeal, see the case law referred to in detail below .
The jurisdiction to grant or deny leave to appeal
Subsection 8(1) of the Act speaks to the need to obtain leave to appeal from either a judge or the court . A single judge sitting in chambers is expressly empowered by subsection 20(2) of the Act to “hear and dispose of an application for leave to appeal” . That being so, applications for leave to appeal are customarily made—and expected to be made—to a judge in chambers .
The jurisdiction to grant or deny leave to appeal as contemplated by subsection 8(1) is founded upon the character of the decision as interlocutory rather than final . “It is precisely from the interlocutory nature of the order that the judge derives his or her jurisdiction to either grant or refuse leave [to appeal]”: Iron v Saskatchewan (Minister of the Environment and Public Safety) (1993), 103 DLR (4th) 585, 109 Sask R 49 (CA), (leave to appeal refused [1993] 3 SCR vii) .
The basis for the exercise of the jurisdiction to grant or deny leave
The power to grant or refuse leave to appeal as contemplated by subsection 8(1) is exercised upon a set of criteria and conventional considerations having to do with the merit and importance of the proposed appeal: Rothmans, Benson & Hedges Inc. v Saskatchewan, 2002 SKCA 119, 227 Sask R 121:
Part One The Court of Appeal Act, 2000 35 s. 8
[6] The power to grant leave has been taken to be a discretionary power exercisable upon a set of criteria which, on balance, must be shown by the applicant to weigh decisively in favour of leave being granted: Steier v. University Hospital, [1988] 4 W .W .R . 303 (Sask . C A. ,. per Tallis J .A . in chambers) . The governing criteria may be reduced to two—each of which features a subset of considerations—provided it be understood that they constitute conventional considerations rather than fixed rules, that they are case sensitive, and that their point by point reduction is not exhaustive . Generally, leave is granted or withheld on considerations of merit and importance, as follows: First: Is the proposed appeal of sufficient merit to warrant the attention of the Court of Appeal? • Is it prima facie frivolous or vexatious? • Is it prima facie destined to fail in any event, having regard to the nature of the issue and the scope of 2015 CanLIIDocs 293 the right of appeal, for instance, or the nature of the adjudicative framework, such as that pertaining to the exercise of discretionary power? • Is it apt to unduly delay the proceedings or be overcome by them and rendered moot? • Is it apt to add unduly or disproportionately to the cost of the proceedings? Second: Is the proposed appeal of sufficient importance to the proceedings before the court, or to the field of practice or the state of the law, or to the administration of justice generally, to warrant determination by the Court of Appeal? • Does the decision bear heavily and potentially prejudicially upon the course or outcome of the particular proceedings? • Does it raise a new or controversial or unusual issue of practice? • Does it raise a new or uncertain or unsettled point of law? • Does it transcend the particular in its implications?
36 Civil Appeals in Saskatchewan s. 8
Selective leave
Leave to appeal may be granted on a selective basis, in the sense it may be granted in relation to one issue and not another if the proposed appeal raises more than one issue: Austman v Royal Bank of Canada, [1991] SJ No 564 (QL) (CA) (leave to appeal an interlocutory decision of a judge of the Queen’s Bench granted in relation to one issue only); Bourgault Industries Ltd. v Canada (Attorney General), 2011 SKCA 29, 366 Sask R 312 (leave to appeal an interlocutory decision of a judge of the Queen’s Bench limited to one ground to the exclusion of another); GMRI Canada Inc. v Saskatoon (City), 2007 SKCA 39 (leave to appeal a final decision of a tribunal on questions of law granted on a selective basis) .
Conditional leave
Similarly, leave to appeal may be granted on condition, including conditions related to perfecting the appeal and regarding the payment of costs: Austman v Royal Bank of Canada, [1991] SJ No 564 (QL) (CA) (perfecting appeal); Boyko v Broomfield (1993), 113 Sask R 291 (CA) (appellant to pay costs in any event of 2015 CanLIIDocs 293 the cause) .
Leave nunc pro tunc
Whenever leave to appeal is required, it is necessary to obtain leave before serving and filing a notice of appeal . Nevertheless, leave to appeal may be granted afterwards, which is to say it may be granted nunc pro tunc (lit . “now for then”) in exercise of the inherent jurisdiction of the court: Rimmer v Adshead, 2002 SKCA 12 at paras 53–54, [2002] 4 WWR 119 .
This jurisdiction, however, is exercised sparingly so as not to defeat the object of subsection 8(1): Grant v Saskatchewan Government Insurance, 2003 SKCA 17, 227 Sask R 316; Holmes v Jastek Master Builder 2004 Inc., 2008 SKCA 159, 314 Sask R 267; Stevenson Estate v Bank of Montreal, 2011 SKCA 51, 371 Sask R 198 .
Applications for leave to appeal, once made, are final
An application for leave to appeal constitutes an irrevocable election by the applicant to treat the decision in relation to which leave to appeal is sought as being interlocutory rather than final . In consequence, an applicant who applies for leave to appeal and is refused leave cannot later resile from that election and contend that the decision is not interlocutory but final and that leave to appeal
Part One The Court of Appeal Act, 2000 37 s. 8
is therefore unnecessary: Iron v Saskatchewan (Minister of the Environment and Public Safety) (1993), 103 DLR (4th) 585, 109 Sask R 49 (CA) . The reason for this lies in the implicit footings upon which such applications are made, as explained in Iron v Saskatchewan at 591: The essence of an application for leave embodies, necessarily, four fundamental assertions by the applicant . By the mere fact of making the application, the applicant expressly or impliedly is saying these four things to the Chambers judge: (i) I have here an interlocutory order which I desire to appeal; (ii) the interlocutory nature of the order vests you, the judge, with jurisdiction to grant or refuse leave to appeal; (iii) I ask you to assume that jurisdiction, and I submit to it; (iv) in exercising your jurisdiction I ask you to grant me leave .
This makes it necessary for a party dissatisfied with a decision (other than an obviously final one) to carefully consider the character of the decision as either interlocutory or final . This is all the more important by reason of the fact that it has been held that an applicant for leave must elect to treat the 2015 CanLIIDocs 293 order as either interlocutory or final, and that it is not for the chambers judge to provide advice or give directions regarding the matter: Mann Family Trust (Trustee of) v Hawkins, 2011 SKCA 7 . See, too: deBalinhard v deBalinhard, 2014 SKCA 95, 442 Sask R 296 .
Unlike other orders made by a judge of the court, an order made by a judge in chambers granting or refusing leave to appeal is not subject, according to subsection 20(3) of the Act, to discharge or variation by the court . Hence an order of a judge granting or refusing leave to appeal is final and may not be appealed .
When leave not required by section 8
First, leave to appeal from an interlocutory decision of the Court of Queen’s Bench is not required, according to subsection 8(2)(a) of the Act, where the case involves: • the liberty of the subject • the custody of a minor • the granting or refusal of an injunction, or • the appointment of a receiver .
Second, leave is not required, according to subsection 8(2)(b) of the Act, in relation to a decision prescribed by The Court of Appeal Rules to be in the nature of a final decision, though no such rule has yet been adopted by the court .
38 Civil Appeals in Saskatchewan s. 8
Third, leave to appeal is not required in respect of an interlocutory decision of the Court of Queen’s Bench where the enactment pursuant to which the decision is made confers a right of appeal and does so without requiring leave to appeal: Dureault’s Allied Sales Ltd. v Courtyard Inns Ltd. (1988), 70 Sask R 77 (CA); Kotelmach v Mattison (1987), 61 Sask R 207 (CA); Farden v Farden (1996), 141 Sask R 178 (CA); Rimmer v Adshead, 2003 SKCA 19, 224 DLR (4th) 372; Fehr v Turta, 2014 SKCA 91, 446 Sask R 1 .
Thus, in each of Kotelmach v Mattison and Farden v Farden, it was held that leave to appeal was unnecessary in relation to an appeal of interlocutory orders for interim maintenance made by a judge of the Court of Queen’s Bench on the authority of the Divorce Act, RSC 1985, c 3 (2nd Supp), because the right of appeal conferred by section 21 of that Act does not require leave to appeal .
Similarly, in Rimmer v Adshead it was suggested that leave to appeal was not required from an interlocutory decision made by a judge of the Court of Queen’s Bench pursuant to either the Divorce Act, RSC 1985, c 3 (2nd Supp),
or The Family Property Act, SS 1997, c F-6 .3, because neither requires leave 2015 CanLIIDocs 293 to appeal: [3] …If the right of appeal is grounded in The Court of Appeal Act, 2000, subsection 8(1) of that Act comes into play . It states that “no appeal lies to the court from an interlocutory decision of the Court of Queen’s Bench unless leave to appeal is granted by a judge or the court ”. If the right of appeal is derived from The Family Property Act or the Divorce Act, an appeal, whether interlocutory or final, may be made as of right because the governing statute may take precedence over subsection 7(2) of The Court of Appeal Act, 2000 by virtue of subsection 7(3) of that Act .
Thus, in Fehr v Turta leave to appeal was held to be unnecessary in relation to an interlocutory order made by a judge of the Court of Queen’s Bench granting exclusive possession of the family home to one of the parties to proceedings under The Family Property Act, SS 1997, c F-6 .3, because such orders are made pursuant to this Act and because section 55 of this Act confers a right of appeal to the Court of Appeal “from any order or judgment made or given…pursuant to this Act” and does so without requiring leave to appeal .
However, not all enactments pursuant to which the Court of Queen’s Bench makes a decision (or pursuant to which any other court or tribunal does so) provide for appeal without the need to obtain leave to appeal .
Part One The Court of Appeal Act, 2000 39 s. 8
When leave required by other enactment
An enactment pursuant to which a decision is made by the Court of Queen’s Bench, or a judge of that court, may confer a right of appeal, and may do so subject to the need to obtain leave to appeal . If an appeal is taken pursuant to the right of appeal conferred by some such enactment, that enactment prevails and leave to appeal must be obtained if required by that enactment .
This is also true of an enactment pursuant to which any other court or tribunal makes a decision .
Some such enactments confer a right of appeal from a decision of the Court of Queen’s Bench but limit the right of appeal to a question of law and require leave to appeal . For example, The Small Claims Act, 1997, SS 1997, c S-50 .11, confers a right of appeal to the Court of Appeal from a judgment of the Court of Queen’s Bench, following an appeal to that court from a decision of the Provincial Court, but limits the right of appeal to a question of law and requires leave to appeal .
Similarly, some such enactments confer rights of appeal to the Court of Appeal 2015 CanLIIDocs 293 from decisions of any other court or tribunal, often limiting the right of appeal to a question of law, and often requiring leave . For example, The Municipal Board Act, SS 1988-89, c M-23 .2, confers a right of appeal to the Court of Appeal from a decision of the Assessment Appeals Committee of the Saskatchewan Municipal Board but limits the right of appeal to a question of law or jurisdiction and requires leave to appeal .
Applications for leave to appeal in circumstances such as these are governed by the same procedural requirements as those made under section 8 of The Court of Appeal Act, 2000 . In these circumstances, then, an application for leave to appeal is determined on essentially the same bases of merit and importance as are mentioned in Rothmans, Benson & Hedges Inc. v Saskatchewan, 2002 SKCA 119, 227 Sask R 121 . This is so irrespective of whether the decision is interlocutory or final, though, if final, some of the conventional considerations mentioned in Rothmans, Benson & Hedges may not be material .
To obtain leave to appeal when the right of appeal is limited to a question of law and may only be exercised on obtaining leave, an applicant must do the following three things: • identify a question of law • demonstrate that the question is of sufficient merit to justify leave being granted, and • establish that the case is of enough importance to warrant the attention of the court .
40 Civil Appeals in Saskatchewan s. 8
See Profico Energy Management Ltd. v Watson, 2005 SKCA 57, 262 Sask R 235, and Rutherford v Husky Oil Operations Ltd., 2014 SKCA 118 (applications for leave to appeal on a question of law arising out of decisions of the Saskatchewan Surface Rights Board made pursuant to The Surface Rights Acquisition and Compensation Act, RSS 1978, c S-65) .
See, too: • 627360 Saskatchewan Ltd. v Bellrose, 2007 SKCA 23, 293 Sask R 164 (application for leave to appeal from a decision on a question of law alone as required by The Small Claims Act, 1997, SS 1997, c S-50 .11) . • Wotherspoon v Growers International Organic Sales Inc., 2014 SKCA 48 (leave to appeal on a question of law from a decision made under The Small Claims Act, 1997, SS 1997, c S-50 .11) . • Saskatchewan (Minister of Social Services) v R.S., 2008 SKCA 115, 314 Sask R 35 (application for leave to appeal on a question of law from an order made under The Child and Family Services Act, SS 1989-90, c C-7 .2) . • Saskatoon (City) v North Ridge Development Corp., 2013 SKCA 62, 417 2015 CanLIIDocs 293 Sask R 64 (application for leave to appeal, as required by section 33 of The Municipal Board Act, SS 1988-89, c M-23 .2, regarding an interlocutory order) . • Pilot Butte (Town) v Aaron Enterprises Inc., 2014 SKCA 119 (application for leave to appeal, as required by section 33 of The Municipal Board Act, SS 1988-89, c M-23 .2, in relation to a final order) . • SAISU Technologies Inc. v Thelander, 2005 SKCA 74, 275 Sask R 98 (application for leave to appeal under The Labour Standards Act, RSS 1978, c L-5) . • Royal Bank of Canada v Paulsen & Son Excavating Ltd., 2012 SKCA 101, 399 Sask R 283, and Lemare Lake Logging Ltd. v 3L Cattle Co. Ltd., 2013 SKCA 90, 423 Sask R 54 (applications for leave to appeal as required by the Bankruptcy and Insolvency Act, RSC 1985, c B-3) .
Applications such as these, once made, are likewise final, inasmuch as an order made by a judge in chambers granting or refusing leave to appeal is not open to discharge or variation by the court as provided for by subsection 20(3) of the Act .
Formal and other requirements
All applications for leave to appeal must be made by notice of motion as provided for by The Court of Appeal Rules . These applications are subject in particular to the
Part One The Court of Appeal Act, 2000 41 s. 8
requirements of Rule 11 (Appeals requiring leave), Rule 48 (Forms of application), and Rule 49 (Applications for leave to appeal) .
Further Commentary
For further commentary on the subject of obtaining leave to appeal, including suggestions pertaining to advocacy in this regard, see the following: (1) Cameron J .A ., “Civil Appeals to the Court of Appeal: Practice and Procedure” (Regina: Law Society of Saskatchewan, 2009), online at www .sasklawcourts .ca: • Pages 27 to 33—Obtaining leave to appeal when necessary .
(2) Richards C .J .S ., “Going Fishing”: Some Thoughts on Successful Advocacy in the Court of Appeal (Regina: Court of Appeal for Saskatchewan, 2008), online at www .sasklawcourts .ca: • Pages 8 to 10—Right of appeal . 2015 CanLIIDocs 293 • Page 12—Application for leave to appeal .
Case Law
Orders treated as being “Interlocutory”
The following orders made in the Court of Queen’s Bench were taken or assumed to be interlocutory, thus requiring leave to appeal in accordance with subsection 8(1) of the Act . Leave to appeal was either granted or refused depending on the circumstances of the particular case .
Proceeding with action
• Orders declining to strike out an action: Rollheiser v Lockwood, 2006 SKCA 57, 279 Sask R 113 (as beyond jurisdiction of QB); Bartok v Shokeir (1998), 168 Sask R 280 (CA) (as pleading a novel cause of action); Progressive Conservative Party of Saskatchewan v Emsley, 2008 SKCA 155 (as disclosing no reasonable cause of action) .
• Orders declining to dismiss an action as misconceived: Dagenais v Dagenais, 2007 SKCA 31, 293 Sask R 39 (as disclosing no reasonable cause of action and being out of time); Cameco Corp. v Insurance Co. of the State of Pennsylvania, 2009 SKCA 15, 324 Sask R 46 (as claiming
42 Civil Appeals in Saskatchewan s. 8
contribution among insurers on subrogation); F.R. v D.T., 2011 SKCA 103, 385 Sask R 41 (as attracting statutory immunity) .
• Order declining to dismiss an action for want of prosecution: Zuidema Farms Inc. v Gritzfeld, 2008 SKCA 12; Pedigree Poultry Ltd. v Saskatchewan Broiler Hatching Egg Producers’ Marketing Board, 2011 SKCA 39, 371 Sask R 79 .
• Order declining to entertain an action under The Court Jurisdiction and Proceedings Transfer Act, SS 1997, c C-41 .1: Mubili v Chona, 2009 SKCA 34, 324 Sask R 152 .
• Order granting leave to commence an action for damages for tort committed outside the province: Newgrade Energy Inc. v Kubota America Corp. (1991), 97 Sask R 32 (CA) .
• Order granting creditor leave to sue bankrupt creditor in Queen’s Bench under subsection 69(1) of the Bankruptcy and Insolvency Act, RSC 1985, c B-3: Avco Financial Services Canada v Little (Bankrupts) 2015 CanLIIDocs 293 (1990), 85 Sask R 1 (CA) .
• Order setting aside noting for default and granting leave to file a statement of defence: Budd v Pioneer Co-Operative Association Ltd. (1986), 49 Sask R 306 (CA); Grant v Saskatchewan Government Insurance, 2003 SKCA 17, 227 Sask R 316; D & S Developments Inc. v Gamble, 2009 SKCA 82, 337 Sask R 114 .
• Order allowing a hearing under sections 23 and 33 of The Limitation of Civil Rights Act, RSS 1978, c L-16: Bank of Montreal v Hildebrand, [1988] 4 WWR 363 (Sask CA) .
• Order directing a case to be tried by jury (without the usual deposit): Scrimshaw v Holy Family Hospital, [1987] SJ No 42 (QL) (CA) .
• Order by Queen’s Bench judge granting leave to appeal to Queen’s Bench from a decision of an arbitrator under The Arbitration Act, 1992, SS 1992, c A-24 .1: Bank of Nova Scotia v Span West Farms Ltd., 2003 SKCA 35, 232 Sask R 279 .
• Order that foreclosure action subject to limitations of section 2 of The Limitation of Civil Rights Act, RSS 1978, c L-16: National Trust Co. v Larsen and Remai Financial Corp. (1988), 68 Sask R 207 (CA) .
• Order refusing stay of civil action pending disposition of criminal charges: Bank of Montreal v McCammon, 1994 CanLII 4548 (Sask CA); Bank of Nova Scotia v Diamond-T Cattle Co.(1994), 123 Sask R 125 (CA) .
Part One The Court of Appeal Act, 2000 43 s. 8
• Order requiring corporate party to obtain counsel as required by Rule 2-34 of The Queen’s Bench Rules: Devries v 101149940 Saskatchewan Ltd., 2014 SKCA 89, 442 Sask R 176 .
• Order declining to vacate a notice of pending litigation: Garden v Rizos, 2014 SKCA 90, 442 Sask R 180; deBalinhard v deBalinhard, 2014 SKCA 95, 442 Sask R 296 .
• Order declining to dismiss an action based on a builders’ lien and extending the statutory time limit for setting the case down for trial: Empire Drywall Ltd. v Meridian Special Projects Corp., 2014 SKCA 62, 438 Sask R 217 .
Pleadings
• Orders re amending pleadings: Kieling v Saskatchewan Wheat Pool, [1989] SJ No 525 (QL) (CA); Cameco Corp. v Insurance Co. of the State
of Pennsylvania, 2007 SKCA 76; Kidd v Flad, 2007 SKCA 130; Holmes v 2015 CanLIIDocs 293 Jastek Master Builder 2004 Inc., 2008 SKCA 159, 314 Sask R 267; Bourgault Industries Ltd. v Canada (Attorney General), 2011 SKCA 29, 366 Sask R 312; Rekken Estate v Health Region No. 1, 2014 SKCA 108 .
[Note: leave to appeal was granted in the extraordinary circumstances of the above-mentioned case of Kieling v Saskatchewan Wheat Pool, where the Chief Justice of the Queen’s Bench advised a disgruntled litigant about what an order made by another judge of the court meant or did not mean, with a third judge disagreeing on the meaning attributed to the order by the Chief Justice .]
Adding parties
• Order adding party to an action: Stomp Pork Farm Ltd. v Lombard General Insurance Co. of Canada, 2008 SKCA 146, 314 Sask R 175 .
• Order declining to add party: Lowery v Anchorage Counselling & Rehabilitation Services Inc., 2007 SKCA 19 .
• Ex parte order adding party: Brail v Fayerman Bros. Ltd., [1987] 1 WWR 518, 53 Sask R 204 (CA) (option to return to Queen’s Bench to rectify order) .
• Order allowing third party proceedings to be taken: Sapsford v Fry, 2010 SKCA 124, 359 Sask R 309 .
44 Civil Appeals in Saskatchewan s. 8
Discovery
• Orders pertaining to the discovery and production of documents: Qually v Qually (1986), 53 Sask R 161 (CA); Steier v University Hospital Board, [1988] 4 WWR 303, 67 Sask R 81 (CA); Aitken and Aitken v Regina (City) (1987), 60 Sask R 57 (CA); Schroeder v Korf (1996), 144 Sask R 229 (CA); Anderson v Canada (Attorney General), 2004 SKCA 115, 254 Sask R 242; Gulka Enterprises v Bayer CropScience Inc., 2009 SKCA 68, 331 Sask R 280; Clements v Preece, 2014 SKCA 63, 438 Sask R 222 .
• Order dismissing application for production of documents in the hands of a third party: Rekken Estate v Health Region No. 1, 2012 SKCA 86, 399 Sask R 241 .
• Orders regarding oral discovery, including proper officer and direction to answer questions: International Minerals & Chemical Corp. (Canada) Ltd. v Commonwealth Insurance Co. (1988), 71 Sask R 306 (CA); Potash 2015 CanLIIDocs 293 Corp. of Saskatchewan Inc. v Allendale Mutual Insurance Co. (1993), 109 Sask R 144 (CA); G.L. v Canada (Attorney General), 2004 SKCA 137, 254 Sask R 286; Mann Motor Products Ltd. v Hlewka, 2004 SKCA 163 .
• Order of case management judge re scope of discovery: Saskatchewan Trust Co. (Liquidator of) v Coopers & Lybrand Inc., 2003 SKCA 75, 238 Sask R 191 .
• Orders regarding proper officer to be examined for discovery: Mercer Human Resource Consulting Ltd. v Farm Credit Canada, 2008 SKCA 98, 311 Sask R 209; Jorgenson v ASL Paving Ltd., 2007 SKCA 25, 289 Sask R 281; K and P Holdings Ltd. v Saskatchewan Government Insurance (1989), 81 Sask R 314 (CA) .
• Order declining discovery by way of independent medical examination: Boyko v Broomfield (1993), 113 Sask R 291 (CA) .
Pre-trial points of law
• Orders relating to the setting down and determination of points of law for pre-trial determination under former Queen’s Bench Rule 188: Thompson Lands Ltd. v Henry Kelly Tractor Ltd. (1984), 34 Sask R 246 (CA); Shields (Resort Village) v Toronto-Dominion Bank (1988), 67 Sask R 79 (CA); Rothmans, Benson & Hedges Inc. v Saskatchewan, 2002 SKCA 119, 227 Sask R 121 .
Part One The Court of Appeal Act, 2000 45 s. 8
Trial of an issue
• Orders directing the trial of an issue: Lund v Board of Police Commissioners of Estevan (City), [1996] 9 WRR 440, 144 Sask R 308 (CA) (judicial review); Chubak v Blais, 2004 SKCA 4 (application to vary child support); Noble Holdings Ltd. v Basler Holdings Ltd., 2005 SKCA 4 (claim under The Personal Property Security Act, 1993, SS 1993, c P-6 .2); IPC Insurance Strategies Inc. v Sawa, 2009 SKCA 80 (capacity to instruct counsel re settlement) .
• Order staying proceedings pending the trial of an issue: Pisiak v Wadena Credit Union Ltd. (1992), 97 Sask R 241 (CA) .
Matters of severance
• Orders severing and declining to sever cross-claims from main actions, or issues of liability from issues of damages: S.T. v Canada (Attorney
General), 2001 SKCA 88; Lamirande v Metis Society of Saskatoon, Local 2015 CanLIIDocs 293 11 (1987), 63 Sask R 239 (CA); Cosgrove v South Saskatchewan Hospital Centre (1991), 91 Sask R 159 (CA) .
Summary proceedings
• Orders declining summary judgment: First City Trust Co. v Woodlawn Properties Ltd., [1987] SJ No 494 (QL) (CA); Gehlen v Bryden, 2014 SKCA 117 .
• Order allowing supplementary affidavit to be filed on application for summary judgment: Rask v Hus, 2006 SKCA 29 .
• Order to proceed under Queen’s Bench Simplified Procedure: White v White (1999), 189 Sask R 152 (CA) (collateral appeal unavailable after dismissal: Diamond v Western Realty Co., [1924] SCR 308) .
Garnishee proceedings
• Order setting aside pre-judgment garnishee summons engaging none but the interests of the parties to the litigation: Silcorp Ltd. v KJK Holdings Inc. (1992), 90 DLR (4th) 488, 100 Sask R 143 (CA) .
• Order declining to set aside pre-judgment garnishee summons: Montreal Lake Cree Nation v Mamczasz Electrical Ltd., 2009 SKCA 30 .
46 Civil Appeals in Saskatchewan s. 8
Payment of monies into court
• Order for payment into court by federal government: Peepeetch v Canada (Attorney General), 2006 SKCA 40 (jurisdiction to make order) .
• Order for payment into court as security for costs: Sundown Theatre Co. Ltd. v Ro-Edd Agencies Ltd., 2009 SKCA 114; Abouabdallah v College of Dental Surgeons of Saskatchewan, 2013 SKCA 120, 427 Sask R 23 .
Pre-trial conference
• Order setting a date for pre-trial conference and compliance with a disclosure order: Arlo Investments Ltd. v Prince Albert (City), 2007 SKCA 26 .
Family property
• Order regarding interim disposition of family property: Mannix v McKay, 2007 SKCA 93, 307 Sask R 154; Dutchak v Dutchak, 2009 SKCA 2015 CanLIIDocs 293 89, 337 Sask R 46 .
• Interim order for maintenance of child under The Infants Act, RSS 1978 c I-9: Singh v Singh, [1987] SJ No 487 (QL) (CA) .
Other
• Order under former Queen’s Bench Rule 438(1) taking accounts and determining indebtedness of defendant: Canadian Imperial Bank of Commerce v Shinkaruk, [1986] SJ No 114 (QL) (CA) .
• Order declining to direct return of seized equipment but without prejudice to reapply: Sunnyvale Farming Enterprises Ltd. v Lloyds Bank Canada (1991), 90 Sask R 33 (CA) (application for leave to appeal made by successful party—an obvious anomaly—because of an adverse finding in the fiat) .
• Order declining to extend period of redemption in an order nisi for foreclosure: Altec Management Ltd. v Great-West Life Assurance Co. (1996), 141 Sask R 167 (CA) .
• Order staying suspension of medical doctor pending appeal: Bahinipaty v College of Physicians and Surgeons of Saskatchewan (1985), 44 Sask R 110 (CA) .
Part One The Court of Appeal Act, 2000 47 s. 8
• Order declining to terminate a preservation order made under The Enforcement of Money Judgments Act, SS 2010, c E-9 .22: Sekerbank T.A.S. v Arslan, 2014 SKCA 105 .
Orders treated as “Final”
The following orders of the Court of Queen’s Bench were taken to be final orders, thus free of the requirement for leave to appeal under subsection 8(1) of the Act:
• Order striking out a cause of action as barred by a limitation period: D.B. v M.C., 2001 SKCA 129, 213 Sask R 272 .
• Order striking out a misconceived claim against individual defendants: Stadnyk v Saskatchewan, 2011 SKCA 30 .
• Order relating to the removal of counsel in an action: Mitchell v Mitchell
(1996), 144 Sask R 223 (CA) . 2015 CanLIIDocs 293
• Order allowing a non-suit against some but not all defendants: Ceapro Inc. v Saskatchewan, 2008 SKCA 64, 314 Sask R 1 .
• Order requiring disclosure of documents against a non-party to the litigation: Popowich v Saskatchewan (1999), 174 DLR (4th) 336, 177 Sask R 226 (CA) .
• Order staying motion for contempt, with leave to return the matter to chambers list in certain events: Collis v Saskatchewan Government Insurance, 2002 SKCA 64, 219 Sask R 211 .
• Order refusing to suspend the registration of a foreign judgment “may well be final”: Bank of Nova Scotia v R & R Wood Preservers Ltd., [1985] SJ No 583 (QL) (CA) .
• Order setting down points of law for pre-trial determination under former Queen’s Bench Rule 188: Qually v Qually (1986), 53 Sask R 161 (CA) .
• Order declining leave to commence an action where leave required by statute: Cherry v Hindmarsh (1987), 64 Sask R 220 (CA) .
• Order declining review of a taxation of costs under The Legal Profession Act, RSS 1978, c L-10: Hawrish v Lakner, [1988] 4 WWR 334, 68 Sask R 41 (CA) .
48 Civil Appeals in Saskatchewan s. 8
• Order dismissing application by third party for return of documents seized pursuant to Anton Pillar order: AgraCity Ltd. v Skinner, 2010 SKCA 145, 362 Sask R 301 .
Orders in class actions
Decisions in the Court of Queen’s Bench pertaining to class action proceedings stand apart from other decisions inasmuch as section 39 of The Class Actions Act, SS 2001, c C-12 01,. contains it own regime for appealing judgments and orders made pursuant to this Act . As provided for by section 39, some such decisions are open to appeal without leave of a judge of the Court of Appeal, whereas others are not .
Applications for leave to appeal, when leave is required by The Class Actions Act, attract the same procedural requirements as any other application for leave to appeal . Hence they are determined on the framework of principle set out in Rothmans, Benson & Hedges Inc. v Saskatchewan, 2002 SKCA 119, 227 Sask R 121; Frey v BCE Inc., 2010 SKCA 32; Brooks v Canada (Attorney General), 2010 SKCA 2015 CanLIIDocs 293 55, 350 Sask R 261; Ross v Saskatchewan, 2014 SKCA 96, 446 Sask R 6 .
The following orders have been treated as requiring leave to appeal, and leave to appeal was either granted or refused depending upon the circumstances of the particular case .
• Order declining to certify an action as a class action: Hoffman v Monsanto Canada Inc., 2005 SKCA 105, [2006] 5 WWR 400 (leave to appeal granted); Brooks v Canada (Attorney General), 2010 SKCA 55, 350 Sask R 261 (leave to appeal denied); Ross v Saskatchewan, 2014 SKCA 96, 446 Sask R 6 (leave to appeal granted) .
• Order certifying an action as a class action: May v Saskatchewan, 2006 SKCA 65, 285 Sask R 131 (leave to appeal denied) .
• Order declining to amend a statement of claim to convert an action into a class action: Stevenson Estate v Bank of Montreal, 2011 SKCA 51, 371 Sask R 198 (leave to appeal denied) .
• Order by case management judge declining to further amend a statement of claim to redefine the class: Chatfield v Bell Mobility Inc., 2013 SKCA 117 (leave to appeal denied) .
• Order for filing of defence in a class action before certification: Hoffman v Monsanto Canada Inc., 2002 SKCA 86, 223 Sask R 232 (leave to appeal granted) .
Part One The Court of Appeal Act, 2000 49 s. 9
• Order certifying class action as multijurisdictional (leave to appeal denied on the basis that the applicants were not entitled to apply for leave under subsection 39(3) of The Class Actions Act because they were not parties to the action): Wuttunee v Merck Frosst Canada Ltd., 2008 SKCA 80, 311 Sask R 146 .
• Multiple orders re various aspects of the certification of an action as a class action, including amendments of the certification order; the scope of the pleadings in relation to the causes of action; the common issues; the jurisdictional sweep of the action; and so on: Frey v BCE Inc., 2010 SKCA 32 (leave to appeal granted or refused selectively depending on the issue) .
•
Appeal periods 2015 CanLIIDocs 293 9(1) In this section, “date” means, with respect to a decision: (a) the date of filing of the written reasons for the decision with the registrar, local registrar or chambers clerk of the Court of Queen’s Bench, as the case may be; or (b) where the decision has been pronounced in court or chambers with no provisions for written reasons to follow, the date of the oral pronouncement. (2) Subject to this section, a notice of appeal must be served within 30 days after the date of the decision being appealed from. (3) Where leave to appeal is necessary, an application for leave must be made within 15 days after the date of the decision for which leave to appeal is being sought or within any time ordered by the court or a judge. (4) Where a decision is made during or after a trial and the decision is only incidental to the trial, a notice of appeal from the incidental decision must be served not later than 30 days after the date of the judgment at trial, and a party appealing from the trial judgment may include in the notice of appeal of the trial judgment an appeal from the incidental decision. (5) Where a decision is made during or after the hearing of an application in chambers and the decision is only incidental to the
50 Civil Appeals in Saskatchewan s. 9
application and does not dispose of the matter in issue, a notice of appeal from the incidental decision must be served not later than 15 days after the date of the judgment on the matter in issue in the application, and a party appealing from the judgment may include in the notice of appeal of the judgment an appeal from the incidental decision. (6) On the application of any party, a judge or the court may extend an appeal period mentioned in this section where, in the opinion of the judge or court, it is just and equitable to do so. (7) Where a provision of this section conflicts with a provision of an enactment governing an appeal, the provision of the enactment prevails.
Commentary 2015 CanLIIDocs 293 Subsection 9(1): computing time limits
Section 9 contains varying time limits (30 days or 15 days as the case may be) pertaining to the exercise of the right of appeal from a decision of the Court of Queen’s Bench or a judge of that court . This is the right of appeal found in subsection 7(2)(a) of the Act .
Each of these time limits is tied to the date of the decision . The term “date” is defined in subsection 9(1) so as to avoid confusion (often present in the past), about when an appeal period begins and ends .
So there are two things of note here: • the date of the decision, and • the day upon which the time for appeal, or for applying for leave to appeal, begins and ends .
The date of the decision
Where a decision of the Court of Queen’s Bench is accompanied by written reasons explaining the bases for the decision, the date of the decision is expressed to be the date the written reasons are filed with the registrar or chambers clerk as the case may be (subsection 9(1)(a)) .
Where a decision is pronounced in court or in chambers, with no provision for written reasons to follow, the date of the decision is expressed to be the date of the oral pronouncement (subsection 9(1)(b)) .
Part One The Court of Appeal Act, 2000 51 s. 9
The beginning and end of the prescribed time limits
The time limits imposed by section 9 require response within a prescribed number of days after the date of the decision . Thus, time begins to run on the day after the date of the decision, and continues to run to and including the last of the prescribed number of days .
Subsection 9(2): 30 days to serve notice of appeal
Subject to the section as a whole, subsection 9(2) requires that a notice of appeal be served within 30 days after the date of the decision . This is generally the case inasmuch as this appeal period applies to all decisions of the Court of Queen’s Bench with the exception of those mentioned in subsection 9(3) (requiring leave to appeal) and those mentioned in subsections 9(4) and (5) (incidental decisions) .
A notice of appeal must comply in form and content with the requirements of The Court of Appeal Rules, particularly Rules 6 (Notice of appeal), 7 (Style of cause 2015 CanLIIDocs 293 in notice), and 8 (Contents of notice of appeal) . And the notice must be served in accordance with the Rules or, if so provided, by the enactment conferring the right of appeal . Rule 9 (Serving notice of appeal) and Rule 67 (Service) prescribe the manner of service of a notice of appeal .
Subsection 9(3): 15 days to apply for leave to appeal
Subsection 9(3) states in effect that where leave to appeal is required from a decision of the Court of Queen’s Bench, an application for leave must be made within 15 days after the date of the decision, or within any time ordered by the court or a judge .
While not limited to an interlocutory decision within the contemplation of section 8 (Interlocutory appeals), this time limit applies to a decision of that nature and, accordingly, an application for leave to appeal under section 8 must be made within 15 days after the date of the decision .
So, too, must all other applications for leave to appeal (irrespective of the nature of the decision), if leave to appeal is required by the particular enactment pursuant to which the decision was made .
The term “made” appearing in subsection 9(3) is not defined but is generally understood to mean served and filed .
However, it is open to the court or a judge to extend the time for making an application for leave to appeal as contemplated by the last of the provisions of
52 Civil Appeals in Saskatchewan s. 9 subsection 9(3), stating that an application for leave to appeal must be made within 15 days after the date of the decision or within any time provided by order of the court or a judge .
For further consideration of the power to extend the time for applying for leave to appeal, see Case Law hereunder regarding extensions of time .
An application for leave to appeal must be made by notice of motion in accordance with the requirements of The Court of Appeal Rules, including in particular Rules 48 (Form of application) and 49 (Applications for leave to appeal) .
Subsection 9(4): 30 days to serve notice of appeal of an incidental decision made at trial
Subsection 9(4) is concerned with the exercise of the right of appeal from an incidental decision made during or after a trial in the Court of Queen’s Bench .
As the wording of the subsection implies, an incidental decision is in the nature of 2015 CanLIIDocs 293 one made in relation to the conduct, rather than the disposition, of the proceedings at trial .
Accordingly, the object of subsection 9(4) is to avoid fragmentation of proceedings at trial by postponing the exercise of the right of appeal from an incidental decision until the trial has come to a conclusion upon judgment being given .
Hence, incidental decisions made during or after a trial are subject to appeal, but the right of appeal may only be exercised after the judgment at trial comes down, and must be exercised within 30 days after the date of judgment .
The right of appeal from an incidental decision made during or after a trial is customarily exercised in conjunction with the right of appeal from the judgment itself, as contemplated by the last of the provisions of subsection 9(4), which state that a party appealing from the trial judgment “may include in the notice of appeal of the trial judgment an appeal from the incidental decision” .
For further consideration of the import of subsection 9(4), including the meaning of the term “incidental decision”, see Case Law hereunder pertaining to subsections 9(4) and (5) .
Subsection 9(5): 15 days to serve notice of appeal of an incidental decision made in chambers
Subsection 9(5) is also concerned with the exercise of the right of appeal from an incidental decision, though not from an incidental decision made during or
Part One The Court of Appeal Act, 2000 53 s. 9
after trial, as contemplated by subsection 9(4), but rather from an incidental decision made during or after the hearing of an application in chambers .
Again, the object is to avoid fragmentation of proceedings, which is to stay proceedings in chambers, by postponing the right of appeal from an incidental decision until the application in chambers has reached a conclusion by the rendering of judgment .
Such incidental decisions are subject to appeal, though once again the right of appeal may only be exercised after the date of judgment, and must be exercised within 15 days after the date of judgment .
The right of appeal from an incidental decision made during or after the hearing of an application in chambers is customarily exercised in conjunction with the right of appeal from the judgment in chambers, as contemplated by the last of the provisions of subsection 9(4): a party appealing from the judgment may include in the notice of appeal of the judgment an appeal from the incidental decision . 2015 CanLIIDocs 293 Subsection 9(6): extension of time
Subsection 9(6) empowers a judge of the court, as well as the court, to extend any appeal period mentioned in section 9 where, in the opinion of the judge or court as the case may be, it is just and equitable to do so .
See Case Law hereunder for the principles pertaining to the exercise of this power of extension .
An application for an extension of time to serve a notice of appeal must be made by notice of motion in accordance with The Court of Appeal Rules, including in particular Rule 48 (Form of application) .
Subsection 9(7): conflict with other enactments
Subsection 9(7) states that where a provision of section 9 conflicts with a provision of an enactment governing an appeal, the provision of that enactment prevails .
A decision of the Court of Queen’s Bench made pursuant to an enactment containing its own appeal provisions is subject to appeal in accordance with those provisions . If any such enactment should contain an appeal period, or a time limit, or other associated provision that conflicts with those mentioned in section 9, the former prevails .
This is of particular significance in relation to the power to extend the time for serving a notice of appeal (as in subsection 9(6)), and the power to enlarge the
54 Civil Appeals in Saskatchewan s. 9 time for bringing an application for leave to appeal (as in subsection 9(3)) . These time limits may be extended as contemplated by these subsections . However, if an enactment pursuant to which a decision is made should not allow for such extensions of time, then no such extension may be granted .
See Case Law hereunder regarding extensions of time .
Case Law Subsections 9(4) and (5): incidental decisions
As mentioned above, the object of these provisions is to avoid fragmentation of proceedings in the Court of Queen’s Bench (whether during or after trial, or during or after the hearing of an application in chambers) .
Thus subsections 9(4) and (5) serve in effect to postpone the exercise of the right of appeal from an incidental decision until such time as the proceedings come to a conclusion by the rendering of judgment . Only then can the right of appeal from 2015 CanLIIDocs 293 an incidental decision be exercised, bearing in mind that an incidental decision is ordinarily subsumed in the judgment and is subject to appeal as part of the judgment: Prince Albert Credit Union Ltd. v Diehl, [1986] 3 WWR 543, 47 Sask R 284 (CA); Bank of Montreal v Kergen (1988), 70 Sask R 166 (CA) .
Where an appeal was taken from an incidental decision made in Queen’s Bench chambers—a decision that left the matter in issue to be finally determined at a later date—the court quashed the appeal with costs: Bank of Montreal v Kergen at 166: We have indicated on many occasions that “piecemeal” appeals are disfavoured: See for example Bay v. Bay, 13 R .F .L . (3d) 50 . Fragmentation of applications of this nature [which have yet to be finally decided below] does not contribute to the orderly disposition of such motions, and the interjection of an appeal is unnecessary because the appellants’ right to appeal after disposition of the motion is fully protected [as by what is now subsection 9(5) of the Act]…
The meaning of “incidental decision”
The meaning of this term derives from the wording of subsections 9(4) and (5) when read in the light of their object . These subsections speak of an “incidental decision” as being one that is only incidental to the trial, or application in chambers as the case may be, and does not dispose of the matter in issue .
Part One The Court of Appeal Act, 2000 55 s. 9
Hence, an incidental decision is in the nature of one made in relation to the conduct of the proceedings, in contradistinction to their disposition: one consisting, for example, of a procedural or evidentiary ruling made during or after trial, or during or after the hearing of an application in chambers .
“A ruling by a trial judge on an evidentiary matter, a procedural matter, or upon an application for leave to amend pleadings is but part of the trial” and constitutes an incidental decision that is destined to be subsumed in the trial judgment and is not, therefore, subject to appeal until the judgment is rendered: Prince Albert Credit Union Ltd. v Diehl, [1986] 3 WWR 543, 47 Sask R 284 (CA) .
A decision by a trial judge allowing a motion for non-suit against only some of the defendants is not, as against those defendants, an “incidental decision” within the meaning of subsection 9(4) of the Act but rather a “final judgment” because it resulted in the dismissal of the action as against those defendants and will not be subsumed in the judgment to be rendered in relation to the remaining defendants on the conclusion of the trial: Ceapro Inc. v Saskatchewan,
2008 SKCA 64, 314 Sask R 1 . 2015 CanLIIDocs 293
An order made by a judge in chambers allowing a party to an application for summary judgment to file a further affidavit amounts to an “incidental decision” inasmuch as it constitutes a “ruling on a matter of the evidence to be received in the summary trial”—a ruling that may “be appealed as part of an appeal from any judgment rendered following the summary trial” as contemplated by subsections 9(4) and (5) of the Act: Rask v Hus, 2006 SKCA 29 .
An order made by a judge in chambers directing that the facts in issue on a application to vary a child custody order be determined, if necessary, on a trial of the issues following a pre-trial conference, constitutes “a decision incidental to an application yet to be decided” and therefore constitutes an “incidental decision” within the contemplation of subsection 9(5) of the Act: Gilewich v Strand, 2007 SKCA 34, 293 Sask R 48 .
Subsection 9(6): extensions of time
General principles
The overarching principle pertaining to the power to extend an appeal period is whether, in the words of subsection 9(6), it is just and equitable to do so, having regard for considerations of prejudice, delay, and merit viewed in light of the circumstances of the case: Joynt v Topp (1962), 36 DLR (2d) 591, 40 WWR 248 (Sask CA); Bank of Nova Scotia v Saskatoon Salvage Company (1954) Ltd. (1983), 29 Sask R 285 (CA) .
56 Civil Appeals in Saskatchewan s. 9
Thus, in Bank of Nova Scotia v Saskatoon Salvage, the court said this of the matter: [18] Counsel for the appellant also submitted that the learned Chambers judge erred in law in failing to find that there would be no prejudice to the respondent if the time were extended . This principle was considered by Pigeon, J ., in granting an extension of time within which an appeal might be brought from a judgment of this court to the Supreme Court of Canada in the case of University of Saskatchewan v. Canadian Union of Public Emplyoees Local 1975, [1975] 2 S .C .R . 830: At page 831, he said: Nevertheless, I feel an extension is justified under the circumstances by reason of the principle that, if it can be done without serious prejudice to the other party, relief should be granted in order to prevent serious prejudice to a litigant . This is, as it appears to me, the principle on which this court granted an extension of
time for bringing an appeal to that court in Cité de Pont 2015 CanLIIDocs 293 Viau v. Gauthier Mfg. Ltd. (February 7, 19878, [sic] not yet reported) . [19] Other factors which this court has said should be considered on such an application are (1) whether the appellant had a bona fide intention to appeal within the time limited for appeal; (2) whether the appellant has shown at least an arguable case; and (3) whether the appellant has acted with reasonable diligence or has reasonable excuse for the delay . Geck v. Geck, [1944] 3 W .W .R . 607; Joynt v. Topp (1962-63), 40 W .W .R . 248; R. v. Smith, [1983] 4 W .W .R . 717, at 724 .
While the above-mentioned factors inform the exercise of the discretionary power of extension, a failure to meet one or more of them is not necessarily fatal: Treeland Motor Inn Ltd. v Western Assurance Co. (1983), 4 DLR (4th) 370, 30 Sask R 154 (CA): [9] It is true that the appellant considered, but rejected launching an appeal during the time it had to do so . In that sense it may be said that an intention to appeal was not present while the time therefore was extant . And there has been considerable delay . These are factors which weigh against the sought-after enlargement, but they do not, in principle, preclude it . In the peculiar circumstances of this case—involving, as they do, allegations of serious failings on behalf of the appellant’s previous counsel—we are persuaded to grant the enlargement despite the delay and even though the intention to appeal was
Part One The Court of Appeal Act, 2000 57 s. 9
not present, in the sense earlier referred to, while the time for appeal was still running .
The powers conferred on the court or a judge by subsection 9(6) (to extend the time during which a notice of appeal must be served) and subsection 9(3) (to extend the time during which an application for leave to appeal must be made), are exercised upon the same bases of principle: Royal Bank of Canada v G.M. Homes Inc. (1982), 25 Sask R 6 (CA) (motion to extend time for serving notice of appeal); 627360 Saskatchewan Ltd. v Bellrose, 2007 SKCA 23, 293 Sask R 164 (motion to extend the time for applying for leave to appeal) .
See, too: Montreal Trust Co. of Canada v Toronto-Dominion Bank, 2003 SKCA 14 (motion to extend time for serving notice of appeal), and Daniels v Canada (Attorney General), 2003 SKCA 25, 232 Sask R 64 (motion to extend the time for applying for leave to appeal) .
Where any other enactment limits the time during which an appeal may be taken, and empowers the court or a judge to extend the time, the power of extension is exercised on the same basis of principle as that pertaining to extensions of time 2015 CanLIIDocs 293 under subsection 9(6) of the Act: Hippsley v Saskatchewan Government Insurance, 2008 SKCA 14, 307 Sask R 160 .
Specific application of the general principles
Extension of time granted
Where the time for appeal from a judgment allowing an application for non- suit had expired, but not by much, and the judgment roll had mistakenly identified the date of the judgment, a motion to extend the time for appeal was granted on these bases: (i) there was no prejudice to the respondent; (ii) the appellant had intended to appeal within the time allowed but was misled by the mistake; (iii) the lapse of time was short; and (iv) the case was not unmeritorious, bearing in mind that in circumstances such as these, including the relative rarity of non-suit judgment, it is “inappropriate to place undue weight on a vigorous review of the merits of the proposed appeal”: Ceapro Inc. v Saskatchewan, 2008 SKCA 64, 314 Sask R 1 .
A motion to extend the time for appeal of an order striking out a statement of claim on the ground of res judicata was granted where a self-represented litigant with several matters on the go intended to appeal within the prescribed time, mistakenly believed she had done so, and mistakenly thought her submissions in these respects amounted to an application to enlarge the time . There was no prejudice, the case on appeal was at least arguable, and subsection 9(6) of The Court of Appeal Act “is clearly broad enough to permit a Chambers judge to enlarge a time period, without a written motion, where it is just and
58 Civil Appeals in Saskatchewan s. 9 appropriate to do so”: Hill v Huskie Athletics Sports Medicine Centre, 2009 SKCA 90, 337 Sask R 43 .
Where an application for leave to appeal was filed one day late as a result of solicitor error in overlooking the time limit, the time for applying for leave to appeal was extended by two days on the combined basis of lack of prejudice to the respondent and “the fact of the solicitor’s error diminishes the need to scrutinize the requirements to enlarge the time for leave with the usual intensity”: Daniels v Canada (Attorney General), 2003 SKCA 25, 232 Sask R 64 .
An application to extend the time for appeal prescribed by subsection 194(2) of The Automobile Accident Insurance Act, RSS 1978, c A-35, was granted pursuant to the power of extension found in that enactment, having regard for the fact that: (i) the appellant intended to appeal within the prescribed time and would have done so but for a slip up in thinking the appeal lay to the Court of Queen’s Bench; (ii) the time limit had been exceeded by only a few days and resulted in no prejudice to the respondent; and (iii) the appeal was not frivolous or
vexatious but at least arguable: Hippsley v Saskatchewan Government Insurance, 2015 CanLIIDocs 293 2008 SKCA 14, 307 Sask R 160 .
A motion to extend the time for appeal prescribed by the Divorce Act, RSC 1985, c 3 (2nd Supp), may only be granted in “special circumstances”, meaning there must be “something in the reasons why an appeal was not taken on time or something in the proceedings or about the judgment that would tend to work injustice were the time not extended,” as was the case where: (i) a number of significant misunderstandings affected the prosecution of the appeal, the conduct of the proceedings in the court below, and the correctness of the resulting order; (ii) the appellant genuinely intended to appeal during the prescribed period; (iii) the case had an arguable quality about it; and (iv) no effective prejudice would befall the respondent should the time for appeal be extended: Wood v Wood, 2001 SKCA 2, 13 RFL (5th) 216 . But time was extended on condition the appellant post security for costs in a fixed amount to ensure that if the appeal failed the respondent would not be deprived of her costs on appeal .
The time for appeal from the grant of a divorce was also extended where the appellant failed to appeal within the prescribed time as a result of being misled by the judgment, which erroneously identified the date the divorce was granted:He v Chen, 2010 SKCA 29, 346 Sask R 274 .
Extension of time refused
A motion to extend the time for serving a notice of appeal from a judgment in small claims court was dismissed on the basis several months had intervened and the applicant had failed to make out an arguable case: Lajeunesse v Tastad Enterprises Inc. (1999), 180 Sask R 264 (CA) .
Part One The Court of Appeal Act, 2000 59 s. 9
An application to extend the time for appeal from an order striking out a statement of claim and a counterclaim by reason of the failure of the plaintiff to observe the terms of an order to comply with undertakings on discovery was dismissed on the bases the applicant had not demonstrated a bona fide intention to appeal within the allotted time and had failed, in any event, to demonstrate an arguable case: Prestige Commercial Interiors (1992) Ltd. v Graham Construction & Engineering Inc., 2008 SKCA 27, 307 Sask R 134 .
Motions to extend the time for applying for leave to appeal, and grant leave to appeal, were dismissed where the applicant failed to file an affidavit addressing the circumstances and failed, in any event, to demonstrate that the application for leave to appeal was of sufficient merit and importance to warrant the attention of the court: 627360 Saskatchewan Ltd. v Bellrose, 2007 SKCA 23, 293 Sask R 164 .
Sixteen months after an appeal was taken, the respondent applied to extend the time for serving a notice of cross-appeal, saying the test for extending the time for initiating a cross-appeal was less strenuous than that applicable to an appeal .
It was held that the cross-appeal amounted in substance to an appeal, and 2015 CanLIIDocs 293 the application to extend the time was dismissed on the bases the respondent had not satisfactorily explained the delay and had not evinced an intention to appeal within the prescribed time: Raymond v Raymond Estate, 2010 SKCA 86, 359 Sask R 123 .
An application to extend the time for appealing a mandatory injunction ordering the applicants to remove a structure from certain land was dismissed for the reasons: (i) the applicants did not have a bona fide intention to appeal during the required period (indeed they had undertaken not to appeal in return for being granted more time to remove the structure), and (ii) had failed to make out an arguable case in the sense their proposed appeal was entirely dependent on an application to adduce fresh evidence that was so fraught with problems as to be virtually preordained to fail: Schafer v Island View (Resort Village), 2009 SKCA 104, 337 Sask R 208 .
A motion to extend the time for applying for leave to appeal from an interlocutory order allowing for an interim distribution of family property was dismissed because the applicant failed to satisfactorily establish (i) an intention to appeal within the allotted time, (ii) a reasonable excuse for the delay, and (iii) an arguable case: Mannix v McKay, 2007 SKCA 93, 307 Sask R 154 .
An application to extend the time for leave to appeal an interlocutory order directing an interim distribution of family property, disclosure of assets, and the payment of solicitor-client costs was dismissed on the basis the factors relevant to enlarging the time for appeal in relation to a final order are “even more pertinent” in the context of interlocutory orders . Dutchak v Dutchak, 2009 SKCA 89, 337 Sask R 46:
60 Civil Appeals in Saskatchewan s. 9
[13] …When the extension of time is being sought with respect to an interlocutory matter, the applicant has the double hurdle of demonstrating that the application for leave should be heard late as well as persuading the Court that leave should be granted at all . Appeals on interlocutory matters may hold up proceedings in the Court of Queen’s Bench and are therefore dealt with by the Court on an expedited basis . Applicants for leave are expected to move with dispatch, and demonstrate the significance and merits of the issue to be appealed . In this case, it is also apparent that the applicant will have a right of appeal at a later stage in the proceedings, if the matter progresses and is not otherwise resolved .
Where the time for appeal from the dismissal of a motion to add otherwise statute-barred claims had expired as a result of a misconceived application for leave to appeal, it was held that, while the applicant intended to appeal within the allotted time and there was no prejudice, the delay associated with the motion had not been explained, either in the court below or here, and the proposed 2015 CanLIIDocs 293 appeal was “doomed to fail ”. Where “the appeal has no prospect of success…the court should exercise its unfettered discretion to prevent such an appeal from proceeding further”: Montreal Trust Co. of Canada v Toronto-Dominion Bank, 2003 SKCA 14 .
Subsection 9(7): conflicts with other enactments
Subsection 9(6) empowers a judge or the court to extend any appeal period mentioned in section 9, but the exercise of this power is subject to subsection 9(7), which states that where any provision of section 9 conflicts with a provision of an enactment governing an appeal, the provision of the enactment prevails .
Where an enactment pursuant to which a decision of the Court of Queen’s Bench was made limited the time during which an appeal from the decision could be taken, and contained no provision allowing for an extension of time, the court held that it was powerless to extend the time because “the substantive right to extend the time would have to be found in the statute creating the right of appeal”: Jordan v Saskatchewan Securities Commission (1968), 64 WWR 121 (Sask CA), citing in support MacDonald, Re (1928), [1929] 2 DLR 265, [1929] 1 WWR 193 (Sask CA), wherein it was held that: As the right of appeal is given by statute and there is no statutory or other authority for extending the time fixed by the statute, there is no right of appeal if the appeal is not brought within that time, and this Court has no power to extend that time as
Part One The Court of Appeal Act, 2000 61 s. 10
we have been asked to do: B.C. Perm. Loan Co. v. C.N.R. (1922), 66 D .L .R . 75, 15 Sask . L .R . 433 .
On a motion to extend the time to serve a notice of appeal from a decision made pursuant to an enactment which, while providing for appeal, limited the time for service of a notice of appeal, it was held that “[t]here is simply no right of appeal unless such right is granted by statute and, unless the statute confers a power of enlargement of the time for appeal a statutory appeal period cannot be extended”: Schnell v Schnell, 2001 SKCA 123, 21 RFL (5th) 197 .
While some enactments “leave the question of the appeal period to be governed by section 9 of The Court of Appeal Act, 2000…and for which an application to file late is permitted”, enactments that “fix the appeal period and provide no relief from it, do not permit an appellant to apply to extend the time for filing beyond the fixed appeal period…”: Pankiw v Chiropractors’ Association of Saskatchewan, 2011 SKCA 142, 377 Sask R 237 .
• 2015 CanLIIDocs 293
Appellate jurisdiction 10 The court has appellate jurisdiction in civil and criminal matters where an appeal lies to the court, with any original jurisdiction that is necessary or incidental to the hearing and determination of an appeal.
Commentary
Section 10 contains the primary source of jurisdiction in the court to hear and determine appeals from: • decisions of the Court of Queen’s Bench or a judge of that court (as contemplated by subsection 7(2)(a)), and • decisions of any other court or tribunal (as contemplated by subsection 7(2)(b)) .
Leaving aside the appellate jurisdiction conferred on the court in relation to criminal appeals, section 10 confers appellate jurisdiction on the court where an appeal lies to the court .
The section also confers such original jurisdiction on the court as is necessary or incidental to the hearing and determination of an appeal . (See, the commentary under section 3 for further comment on the jurisdiction of the court .)
62 Civil Appeals in Saskatchewan s. 10
Appellate jurisdiction
As noted in the commentary under section 3 (regarding the nature of the jurisdiction in the court generally), the term “appellate jurisdiction”, read in conjunction with the phrase “where an appeal lies to the court”, connotes the authority vested in the court to: • take cognizance of, or entertain, a properly constituted appeal from a decision of another court or tribunal, and • act upon such appeal in accordance with the powers conferred on the court, especially those conferred on it by sections 12 to 14 inclusive .
A properly constituted appeal is one grounded, to begin with, in a right of appeal conferred by statute, for there is no right of appeal to the court except that provided for by statute: Kourtessis v M.N.R., [1993] 2 SCR 53 .
Incidental original jurisdiction 2015 CanLIIDocs 293 As suggested in the commentary under section 3 (pertaining to the subject of jurisdiction generally), the term “original jurisdiction” connotes the authority in a court or tribunal to decide a matter properly before it in the first instance .
To the extent section 10 confers such jurisdiction on the Court of Appeal, it does so only to the extent this jurisdiction is necessary or incidental to the hearing and determination of a properly constituted appeal . The effect is to supplement the appellate jurisdiction of the court to the end of ensuring, to the extent reasonably possible, that the whole of the matter in issue on appeal may be efficiently and effectively determined without the need, unless this should prove unavoidable, of having to direct a new hearing or to remit the matter to the court or tribunal of first instance .
The exercise of jurisdiction
The court routinely hears properly constituted appeals in exercise of the jurisdiction conferred on it by section 10 . However, the court retains the residual discretion to decline to do so in exceptional circumstances, including those where: • an issue on appeal has become moot • an issue is raised for the first time on appeal, or • the appeal amounts to an abuse of process .
Part One The Court of Appeal Act, 2000 63 s. 10
Mootness
On occasion the substratum of an appeal, or some part of it, may become moot between the time an appeal is taken and the time it is heard . In that event the court, in the exercise of its discretion, may decline to entertain the appeal in whole or in part depending upon the nature of the case, the extent to which there no longer exists a live controversy, and the prospect of the matter in issue coming before the court in a case in which the matter in issue is not moot . The leading authority on the subject is Borowski v Canada (Attorney General), [1989] 1 SCR 342: 15 The doctrine of mootness is an aspect of a general policy or practice that a court may decline to decide a case which raises merely a hypothetical or abstract question . The general principle applies when the decision of the court will not have the effect of resolving some controversy which affects or may affect the rights of the parties . If the decision of the court will have no practical effect on such rights, the court will decline to decide the case . This essential ingredient must be present not only when the action or proceeding is commenced but 2015 CanLIIDocs 293 at the time when the court is called upon to reach a decision . Accordingly if, subsequent to the initiation of the action or proceeding, events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of the parties, the case is said to be moot . The general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice . The relevant factors relating to the exercise of the court’s discretion are discussed hereinafter . 16 The approach in recent cases involves a two-step analysis . First it is necessary to determine whether the required tangible and concrete dispute has disappeared and the issues have become academic . Second, if the response to the first question is affirmative, it is necessary to decide if the court should exercise its discretion to hear the case . The cases do not always make it clear whether the term “moot” applies to cases that do not present a concrete controversy or whether the term applies only to such of those cases as the court declines to hear . In the interest of clarity, I consider that a case is moot if it fails to meet the “live controversy” test . A court may nonetheless elect to address a moot issue if the circumstances warrant .
The court may nevertheless elect to determine a moot question if, for example, the question is of significant legal importance and if the question is unlikely,
64 Civil Appeals in Saskatchewan s. 10 in the nature of things, to come before the court in proceedings other than those that have become moot: International Brotherhood of Electrical Workers, Local Union 2085 v Winnipeg Builders’ Exchange, [1967] SCR 628 at 636 (injunction in labour-management dispute spent as a result of strike settlement but question at issue was important and was unlikely to come before the court in circumstances other than these) .
Thus inO.K. Economy Stores v Retail, Wholesale and Department Store Union, Local 454 (1994), 118 DLR (4th) 345, 123 Sask R 245 (CA), the court elected to hear an appeal featuring an issue arising out of an action grounded in a lockout or strike—an action that had since been discontinued—on the premises the issue was of a recurring and short-lived nature, and was unlikely to be judicially considered except in circumstances where the underlying action had been settled and the issue rendered moot . See, too: Affinity Credit Union v United Food and Commercial Workers, Local 1400, 2014 SKCA 70, 438 Sask R 296, where an issue underlying the arbitration of a labour-management dispute had become moot while the appeal was pending but was nevertheless held to be worthy of being heard in the public interest . 2015 CanLIIDocs 293
In circumstances other than these, where the substratum of the appeal had become moot and there was nothing out of the ordinary, the court declined to entertain the appeal: Roman v Law Society of Saskatchewan (1984), [1985] 2 WWR 765, 37 Sask R 252 (CA): The practice of this Court as well as the Supreme Court of Canada and Appellate Courts in other jurisdictions in this country is to refuse to hear an appeal where it has become moot except in circumstances which are of a demanding nature . This is not one of those cases where we should retain our discretion to hear the matter . The circumstances here are not of a demanding nature as contemplated in International Brotherhood of Electrical Workers and Winnipeg Builders Exchange, [1967] S .C .R . 628 . See also Canadian Cable Systems (Ontario) Limited v. Consumers Association of Canada, [1977] 2 S C. .R . 740 .
Similarly, where the substratum of an appeal had become wholly moot as a result of intervening circumstances, the court declined to entertain the appeal: R v Law Society of Saskatchewan (1983), 25 Sask R 135 (CA) .
The court declined to entertain a moot constitutional issue in private litigation because this would turn the proceedings into a constitutional reference at the instance of the individual, and because there was no reason to suppose the issue would not come before the court in a case that was not moot: Daniels v Daniels (1989), 79 Sask R 62 (CA) .
Part One The Court of Appeal Act, 2000 65 s. 10
Raising an entirely new argument
The court will not entertain an entirely new argument in relation to which it might have been necessary to adduce evidence: Hawkeye Tanks & Equipment Inc. v Farr- Mor Fertilizer Services Ltd., 2002 SKCA 44, 219 Sask R 148: [8] With respect to raising an entirely new argument on appeal the controlling principle was articulated by the Supreme Court of Canada in Perka v. The Queen, [1984] 2 S .C .R . 232 where Dickson J ., speaking for the Supreme Court of Canada, stated at p . 240: In both civil and criminal matters it is open to a respondent to advance any argument to sustain the judgment below, and he is not limited to appellants’ points of law . A party cannot, however, raise an entirely new argument which has not been raised below and in relation to which it might have been necessary to
adduce evidence at trial… 2015 CanLIIDocs 293 [9] The general rule against raising an entirely new argument for the first time on appeal applies as much to an appellant as to a respondent . Although the rule is not absolute, it is essential that all interested parties have an adequate opportunity to prepare submissions, and consider what evidence should be placed before the trial court . In this case, the respondent had no such opportunity and correctly points out that this Court is being asked to pass upon an issue without the necessary evidentiary underpinning .
See, too: Luzny v Craik (Town), 2013 SKCA 94, 423 Sask R 116 (raising an issue of the validity of an expropriation bylaw for first time on appeal); Frank v Linn, 2014 SKCA 87, 442 Sask R 126 (raising for argument on appeal a matter that was conceded at trial); Bison Properties Ltd. v Regina (City), 2007 SKCA 135 (granting leave to appeal in relation to an entirely new argument on the understanding the court may decline to entertain the argument) .
Nor will the court allow a party to recast the case on appeal by raising a new ground of liability or defence that was not raised at trial and in relation to which evidence might have been required: Howell v Stagg, [1937] 2 WWR 331 (Sask CA), citing with approval The “Tasmania” (1890), 15 AC 223 (HL) at 225: My Lords, I think that a point such as this, not taken at trial, and presented for the first time in the Court of Appeal, ought to be most jealously scrutinized . The conduct of a cause at the trial is governed by, and the questions asked of the witnesses are
66 Civil Appeals in Saskatchewan s. 10
directed to, the points then suggested . And it is obvious that no care is exercised in the elucidation of facts not material to them . It appears to me that under these circumstances a Court of Appeal ought only to decide in favour of an appellant on a ground put forward for the first time, if it be satisfied beyond doubt, first, that it has before it all the facts bearing upon the new contention, as completely as would have been the case if the controversy would have arisen at trial; and next, that no satisfactory explanation could have been offered by those whose conduct is impugned if an opportunity for explanation had been afforded them when in the witness box .
For much the same reasons it is generally not open to a party to raise constitutional issues for the first time on appeal: Wuttunee v Merck Frosst Canada Ltd., 2008 SKCA 125, 314 Sask R 90: [13] …While it is possible to point to some cases in which
constitutional attacks on legislation have been permitted to be 2015 CanLIIDocs 293 raised for the first time in appellate courts, in general, it is an undesirable way in which to litigate constitutional issues, which by their nature almost invariably raise questions of general importance . See: R. v. Gray . It is “essential that all interested parties have an adequate opportunity to prepare submissions, and consider what evidence should be placed before the Court ”. There are many authorities on point that could be cited for these general propositions . These are representative: Consumers Cordage Co. v. Connolly, Perka v. The Queen, and Hy and Zel’s Inc. et al v. Ontario (Attorney General); Paul Magder Furs Ltd. v. Ontario (Attorney General) . [footnotes omitted ]
[14] In summary, we conclude that it would be inappropriate to allow the appellants to amend their notice of appeal to argue the constitutional question on this appeal, not having raised it at first instance .
Abuse of process
The court, in reliance on its inherent jurisdiction as a superior court of record, may decline to exercise the appellate jurisdiction conferred on it by section 10 in the face of abuse of process . As mentioned in the commentary under section 3 (pertaining to the subject of the court’s jurisdiction in general), superior courts of record are possessed of the intrinsic power to prevent obstruction or abuse of their process .
Part One The Court of Appeal Act, 2000 67 s. 11
Thus the court may quash an appeal if it amounts to a vexatious proceeding as contemplated by Part XII .1 of The Court of Appeal Rules . See Rules 46 .1 and 46 .2, and the commentary under these Rules, for a detailed consideration of this subject .
•
Original jurisdiction 11 The court may, in its discretion, exercise original jurisdiction to grant relief in the nature of a prerogative writ.
Commentary 2015 CanLIIDocs 293 Section 11 confers a particular species of original jurisdiction upon the court, being the jurisdiction to grant relief “in the nature of a prerogative writ” .
This is a species of jurisdiction that, from the inception of the Court of Queen’s Bench as a superior court of record, has endowed that court with: • the capacity to supervise the legality of actions taken by statutory decision-makers, including administrative tribunals, and • the power to make orders in the nature, among others, of mandamus, prohibition, and certiorari pertaining to the proper exercise of jurisdiction by such statutory decision-makers .
Section 11 confers this same original supervisory jurisdiction upon the Court of Appeal .
Only in exceptional circumstances, however, does the court exercise this jurisdiction: Geller v Saskatchewan (1985), 48 Sask R 239 (CA): [4] …This being a court whose primary jurisdiction is appellate, we think that only in special cases, of which this is not one, or in extraordinary circumstances should this court entertain, in the first instance, an application inviting the exercise of its concurrent original jurisdiction . Such applications, generally speaking, are to be made to the Court of Queen’s Bench .
68 Civil Appeals in Saskatchewan s. 12
For special cases or exceptional circumstances in which the court exercised this jurisdiction, see:
• Maurice v Priel (1987), 46 DLR (4th) 416, 60 Sask R 241 (CA) (Queen’s Bench judge a party to an application for prohibition, thus making this a special case for the Court of Appeal to exercise its original supervisory jurisdiction) . • Royal Canadian Mounted Police v Saskatchewan (Commission of Inquiry), [1992] 6 WWR 62, 100 Sask R 313 (CA) (Queen’s Bench represented at inquiry, making it unseemly for the application for review of a ruling by the commission to be heard in that court) . • Hartwig v Saskatchewan (Minister of Justice), 2007 SKCA 41 (Queen’s Bench judge acting as a commission of inquiry, making this a special case for the Court of Appeal to entertain an application by way of certiorari to quash portions of the inquiry report) . • Pearlman v University of Saskatchewan, 2006 SKCA 105, 273 DLR (4th)
414 (Queen’s Bench judge deciding a matter qua University Visitor, 2015 CanLIIDocs 293 making this a special case for the Court of Appeal to exercise its original supervisory jurisdiction and entertain an application for judicial review by way of certiorari) .
•
Powers of the court 12(1) On an appeal, the court may: (a) allow the appeal in whole or in part; (b) dismiss the appeal; (c) order a new trial; (d) make any decision that could have been made by the court or tribunal appealed from; (e) impose reasonable terms and conditions in a decision; and (f) make any additional decision that it considers just. (2) Where the court sets aside damages assessed by a jury, the court may assess any damages that the jury could have assessed.
Part One The Court of Appeal Act, 2000 69 s. 12
Commentary
Overview
Section 12 contains a set of powers that apply across the board to all appeals within the contemplation of section 7 of the Act (Right of Appeal) . Hence these powers are potentially applicable in one respect or another to a properly constituted appeal from: • a decision of the Court of Queen’s Bench or a judge of that court as contemplated by subsection 7(2)(a), and • a decision of any other court or tribunal as contemplated by subsection 7(2)(b) .
Subsection 12(1)
With the exception of the power mentioned in clause (a) of subsection 12(1), namely the power to dismiss an appeal, the powers conferred on the court by 2015 CanLIIDocs 293 subsection 12(1) are remedial powers enacted to the end of empowering the court to effectively deal with material errors affecting the reasonableness or correctness of a decision under appeal (or affecting the conduct of the underlying proceedings), and thus to set matters right .
Hence the court is empowered to allow an appeal, in whole or part, and to selectively exercise the remedial powers conferred upon it by subsections 12(1)(c) to (f) as the case may require, which is to say the court may: • order a new trial if necessary • make any decision that could have been made in the first instance • impose reasonable terms and conditions, and • make any additional decision that it considers just .
Subsection 12(2)
Subsection 12(2) empowers the court to reassess the quantum of damages awarded by a jury where the court decides to set aside the award as being either inordinately high or low .
This is a new remedial power, inasmuch as the right to trial by jury operated in the past to preclude the court (in the absence of the consent of the parties), from reassessing the amount of damages awarded by a jury: Graff v Bennett, [1995] 9 WWR 609, 134 Sask R 161 (CA) . All the court could then do, upon deciding the
70 Civil Appeals in Saskatchewan s. 12 damages assessed by a jury were inordinately high or low, was to remit the case to the Court of Queen’s Bench for retrial of the quantum of damages . Presently the court may reassess the quantum of damages as permitted by subsection 12(2) .
The exercise of the powers of the court
Of the several remedial powers conferred on the court by section 12, the power in subsection 12(1)(a) to “allow an appeal in whole or in part” is of first importance . It is the remedial entry point, so to speak .
That said, power is one thing, the bases for its exercise another . This makes it necessary, when looking to the power of the court to allow an appeal in whole or in part, to have regard for the framework of principle governing the exercise of this power .
This framework consists of varying standards of review, depending upon the nature of the matter placed in issue on an appeal . 2015 CanLIIDocs 293
Standards of Review
The process of appeal envisioned by the Act is one of review for error, not one entailing the re-hearing of the case on the record: H.L. v Canada (Attorney General), 2005 SCC 25, [2005] 1 SCR 401 .
Thus, the function of the court at the outset is to review a decision under appeal for error as alleged in the grounds of appeal set forth in the notice of appeal . This raises the question of the test or tests the court employs in doing so . Over time, the Supreme Court of Canada has developed a set of tests for this purpose or, in other words, a set of appellate standards of review .
These standards, and the tests they posit, differ depending on the nature of the error or errors identified in the grounds of appeal to have been made by the court or tribunal against whose decision an appeal is taken .
The potential for error exists in relation to each of the basic components of a decision of first instance, bearing in mind that the function of a decision-maker of first instance is to: • find the facts • identify the governing law • apply the law to the facts, and • when empowered to do so, exercise discretion .
Part One The Court of Appeal Act, 2000 71 s. 12
These are the basic components of all first-instance judicial and quasi-judicial decision-making, and are accompanied by the possibility of error at one turn or another, and therefore of one kind or another: Farm Credit Corp. v Valley Beef Producers Co-operative Ltd., 2002 SKCA 100, 218 DLR (4th) 86 .
Hence, a decision is potentially capable of being made in error in relation to the findings of fact, the identification of the law and its application to the facts, and to the exercise of discretion if the decision entails the exercise of discretionary power .
Put another way, a decision is potentially capable of giving rise on appeal to various questions: a question pertaining to the findings of fact; a question pertaining to the identification of the law and its application; and a question pertaining to the exercise of discretion, including the exercise of discretion in one context or another .
Each of such questions attracts its own standard of appellate review .
Review re findings of fact 2015 CanLIIDocs 293 The review for error pertaining to findings of fact (and the questions to which this gives rise on appeal) is conducted on the basis of whether an impugned finding of fact rests upon a palpable and overriding error or, in other words, is unreasonable or unsupported by the evidence: H.L. v Canada (Attorney General), 2005 SCC 25, [2005] 1 SCR 401 at paras 55–56 .
This standard of appellate review posits a significant measure of deference to findings of fact, and applies to all findings of fact, whether based on direct or circumstantial evidence . Hence, it applies to: • findings of credibility • primary findings of fact, being those grounded directly in the evidence • secondary findings of fact, being those grounded in inference drawn from established facts, and • findings of fact based on a global assessment of the evidence .
More particularly, as this standard applies to findings of credibility, it posits a heightened measure of deference born of the advantage enjoyed by the fact-finder of first instance (and denied an appellate court), in having seen and heard the witnesses . In addition, as this standard applies to inferences of fact, it entails reviewing an inference to determine if it is clearly wrong as being beyond the generous ambit of reasonableness: H.L. v Canada at paras 53–56 .
In effect, then, the court will only set aside a finding of fact—and exercise its power to allow an appeal on that basis—where the finding of fact in issue is attended by palpable error affecting the result or, in other words, can be plainly shown to be unreasonable or unsupported by the evidence .
72 Civil Appeals in Saskatchewan s. 12
This is a demanding standard, the application of which entails examination of the record with an eye to determining whether a finding of fact has been made on the basis of an error of one sort or another in the assessment of the evidence: Toneguzzo-Norvell (Guardian ad litem of) v Burnaby Hospital, [1994] 1 SCR 114: 13 It is by now well established that a Court of Appeal must not interfere with a trial judge’s conclusions on matters of fact unless there is palpable or overriding error . In principle, a Court of Appeal will only intervene if the judge has made a manifest error, has ignored conclusive or relevant evidence, has misunderstood the evidence, or has drawn erroneous conclusions from it: see P. (D.) v. S. (C.), [1993] 4 S .C .R . 141, at pp . 188-89 (per L’Heureux-Dubé J .), and all cases cited therein, as well as Geffen v. Goodman Estate, [1991] 2 S .C .R . 353, at pp . 388-89 (per Wilson J .), and Stein v. The Ship “Kathy K”, [1976] 2 S .C .R . 802, at pp . 806-8 (per Ritchie J .) .
This passage speaks in effect to the process by which matters of fact in dispute are resolved by a trial judge . It speaks to what the process entails and what it requires . 2015 CanLIIDocs 293 The same may be said of the process as it functions in relation to findings of fact made by a tribunal charged with the statutory duty of having to determine facts in dispute: Hitchings v P.S.S. Professional Salon Services Inc., 2007 SKCA 149, [2008] 5 WWR 440: 67 [Tribunals]…are required as a matter of principle (much as judges are), to determine the facts in controversy on the basis of the relevant evidence before them (leaving aside matters of fact in relation to which they may take judicial notice) . Hence, they are required in principle to consider and weigh the relevant evidence as the faculty of judgment commends when exercised impartially, fairly, in good faith, and in accordance with reason, bearing in mind the governing standard of proof and the location of the onus of proof . 68 It follows, that a tribunal cannot reasonably make a valid finding of fact on the basis of no evidence or irrelevant evidence . Nor can it reasonably make a valid finding of fact in disregard of relevant evidence or upon a mischaracterization of relevant evidence . To do so is to err in principle or, in other words, to commit an error of law… .Nor can a tribunal reasonably make a valid finding of fact based on an unfounded or irrational inference of fact . 69 The all-important point is that to make a finding of fact on any of these bases is to err in principle by offending the implicit requirements of the statute, as well as the common law duty of procedural fairness perhaps . To suppose otherwise is to
Part One The Court of Appeal Act, 2000 73 s. 12
suppose the legislature intended, in conferring power upon a… tribunal to determine facts in controversy much as judges do, to empower the tribunal to engage in unfounded, unreasonable, or arbitrary fact-finding . The fact-finding process, or method by which facts in controversy are to be determined in this quasi- judicial setting, does not permit of this, either in its statutory or common law conception .
Thus the application of the standard of review reserved for questions pertaining to findings of fact is applied with considerations such as these in mind, remembering all the while that the review is concerned with determining whether a finding of fact was made on the basis of palpable and overriding error or, in other words, is plainly unreasonable or unsupported by the evidence .
As this standard of review applies to a finding of fact based solely on affidavit evidence, it is applied with allowance for the reality that the court is in no different position than the fact-finder of first instance when it comes to the assessment of
affidavit evidence . This is not the reality when it comes to the assessment ofviva 2015 CanLIIDocs 293 voce evidence, for the assessment of such evidence is appreciably enhanced by the advantage enjoyed by the fact-finder of first instance, and denied the court, of seeing and hearing the witnesses .
The court makes allowance for this difference by reviewing findings of fact grounded alone in affidavit evidence on a standard of reasonableness, asking itself whether the finding, which is presupposed to be reasonable, stands up to the test of reasonableness having regard for the whole of the evidence bearing upon the matter when viewed in the light of the burden of proof: Farm Credit Corp. v Valley Beef Producers Co-operative Ltd., 2002 SKCA 100, 218 DLR (4th) 86; Great Sandhills Terminal Marketing Centre Ltd. v J-Sons Inc., 2008 SKCA 16, 307 Sask R 295; Ethier v Skrudland, 2011 SKCA 17, 366 Sask R 203 .
Review re identification and application of the law
The review for alleged error pertaining to the identification of the law upon which a decision is founded, including the selection and interpretation of the governing law, is conducted on the basis of whether the decision is correct in this respect .
This correctness standard of review is non-deferential in the sense a question pertaining to whether the decision-maker of first instance properly identified the law applicable to an issue constitutes a question of law for the court to determine in the unencumbered exercise of its own judgment: Housen v Nikolaisen, 2002 SCC 33 at para 8, [2002] 2 SCR 235; St-Jean v Mercier, 2002 SCC 15 at paras 33–34, [2002] 1 SCR 491; Farm Credit Corp. v Valley Beef Producers Co-operative Ltd., 2002 SKCA 100 at para 96, 218 DLR (4th) 86 [Valley Beef] .
74 Civil Appeals in Saskatchewan s. 12
In general, this correctness standard of review applies not only to questions pertaining to the identification of the governing law, including its selection and interpretation, but also to questions pertaining to the application of the law to the facts as properly determined or, in other words, to the evaluation of the facts against the governing legal standard: St-Jean v Mercier at para 49; Valley Beef at paras 100–105; Great Sandhills Terminal Marketing Centre Ltd. v J-Sons Inc., 2008 SKCA 16 at para 28, 307 Sask R 295 . See, too: Prud’homme v Prud’homme, 2002 SCC 85, [2002] 4 SCR 663; Ellis-Don Ltd. v Ontario (Labour Relations Board), 2001 SCC 4 at para 42, [2001] 1 SCR 221 (“the legal consequences to be derived from the facts is a pure question of law”) .
In an action in negligence, however, if the impugned decision gives rise on appeal to a question of mixed fact and law incapable of reduction to a pure question of law, the matter is to be reviewed on the standard of palpable and overriding error, if on “the spectrum of particularity” the decision is of insignificant “precedential value” . So if the case falls on the particular end of the spectrum and is of little precedential value, the decision is then subject to review on this standard, whereas if the case falls on the general end of the spectrum and is of significant 2015 CanLIIDocs 293 precedential value, then the decision falls to be reviewed on the standard of correctness: Housen v Nikolaisen .
Similarly, a decision interpreting a contract generally involves issues of mixed fact and law, and therefore attracts a deferential standard of appellate review, bearing in mind that the key difference between a question of law and a question of mixed fact and law lies in the degree of generality (or “precedential value”) associated with the issue: Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, [2014] 2 SCR 633 . See, too: Seven Oaks Inn Partnership v Directcash Management Inc., 2014 SKCA 106, 446 Sask R 89 .
Review re exercise of discretion
In the context of judicial and quasi-judicial decision-making, the term “discretion” connotes the faculty to determine a matter at issue in accordance with what seems just, fair, right, and equitable in the circumstances . Hence, the exercise of discretionary power entails the exercise of a significant measure of moral judgment and is, therefore, accompanied by a significant measure of latitude .
The law frequently vests judicial or quasi-judicial decision-makers with the power to exercise discretion—discretion that is sometimes unfettered, sometimes lightly fettered, and sometimes heavily fettered, depending on whether and to what extent the law prescribes the criteria or things to be considered by the decision-maker in the exercise of that discretion . That a decision-maker exercising discretionary power is bound in principle to have regard for criteria of this nature is axiomatic .
Part One The Court of Appeal Act, 2000 75 s. 12
Thus, the scope of this power (and the room it leaves for the exercise of discretion), may be more or less ample depending upon the extent to which it is implicitly or explicitly bounded .
Given the nature of discretion and discretionary power, a decision made in the exercise of discretion attracts a particular standard of appellate review . The standard is grounded in the fundamental premise that the decision is not open to appellant intervention unless reached in abuse of the discretionary power pursuant to which it was made: Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 SCR 3; Rimmer v Adshead, 2002 SKCA 12, [2002] 4 WWR 119 . Thus, in Rimmer v Adshead the court said this: [58] In turning to this issue, it is necessary to bear in mind that the powers in issue are discretionary and therefore fall to be exercised as the judge vested with them thinks fit, having regard for such criteria as bear upon their proper exercise . The discretion is that of the judge of first instance, not ours . Hence, our function, at least at the outset, is one of review only: review to determine if, in light of such criteria, the judge abused his 2015 CanLIIDocs 293 or her discretion . Did the judge err in principle, disregard a material matter of fact, or fail to act judicially? Only if some such failing is present are we free to override the decision of the judge and do as we think fit . Either that or the result must be so plainly wrong as to amount to an injustice and invite intervention on that basis . (See, for example, McKinnon Industries Ltd. v. Walker, [1951] 3 D .L .R . 577, at 579 (P .C .) and Saskatchewan Power Corporation v. John Doe, [1988] 6 W .W .R . 634 (Sask . C .A .) .)
Further Commentary
For additional commentary on the nature of discretionary power, and how the breadth of it may vary—and vary appreciably—depending upon the extent to which a particular discretionary power may be bounded and thus abused or not abused, see the following source: (1) Cameron J .A ., “Civil Appeals to the Court of Appeal: Practice and Procedure” (Regina: Court of Appeal for Saskatchewan, 2009), online at www .sasklawcourts .ca: • Pages 23 to 25—Standards of review pertaining to decisions based on discretion .
76 Civil Appeals in Saskatchewan s. 12
Review re jury verdicts
A decision of the Court of Queen’s Bench founded upon a jury verdict attracts appellate review for alleged error on essentially the same standards of review as those reserved for a decision of a judge alone, but modified in their application to suit this particular context .
This particular context encompasses the right to trial by jury, as well as the mode of trial associated with this right, which is to say a trial in which the judge lays out the governing law for the jury, and the jury then determines the facts and applies the law to the facts in arriving at a verdict .
The judge’s charge to the jury, so far as it lays out the law for the jury, attracts appellate review on the standard of correctness .
The findings of fact made by the jury, along with its application of the law to the facts, are implicitly reflected in the verdict, which attracts a distinctive standard of review born of respect for the right to trial by jury and the associated mode of trial . 2015 CanLIIDocs 293
This finds expression in the principle that an appellate court will not interfere with a jury verdict unless the court is satisfied the verdict is so plainly unreasonable that no jury, properly instructed and acting judicially, could have arrived at the verdict: Quintal v Datta, [1988] 6 WWR 481, 68 Sask R 104 (CA); Baert v Graham, 2011 SKCA 21, 371 Sask R 1 .
The foregoing amounts to an instance in which the appellate standards of review are applied in a particular way in a particular context . There are other instances of this (though not as stark), as there are in relation to the standard of review reserved for discretionary decision-making in other contexts . Two of these merit specific mention, namely: • the assessment of damages, and • the determination of family law support obligations, as well child custody and access .
Review re assessing damages
Generally speaking, the quantum of damages, whether assessed by a judge or a jury, is a reflection of the exercise of a measure of discretion, depending on the nature of the case and hence the award, including, in the case of personal injury in particular, the heads of damage upon which the award rests .
Part One The Court of Appeal Act, 2000 77 s. 12
As such, an assessment of damages attracts appellate review for error on much the same standard as that reserved for questions pertaining to the exercise of discretion generally: Woelk v Halvorson, [1980] 2 SCR 430 at 435–436: It is well settled that a Court of Appeal should not alter a damage award made at trial merely because, on its view of the evidence, it would have come to a different conclusion . It is only where a Court of Appeal comes to the conclusion that there was no evidence upon which a trial judge could have reached this conclusion, or where he proceeded upon a mistaken or wrong principle, or where the result reached at the trial was wholly erroneous, that a Court of Appeal is entitled to intervene . The well-known passage from the judgment of Viscount Simon in Nance v. British Columbia Electric Railway Co. Ltd., [1951] A .C . 601 at p . 613…provides ample authority for this proposition . He said: …Whether the assessment of damages be by a
judge or a jury, the appellate court is not justified in 2015 CanLIIDocs 293 substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance . Even if the tribunal of first instance was a judge sitting alone, then, before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage . [emphasis added]
More recently, the Supreme Court of Canada, in Naylor Group Inc. v Ellis-Don Construction Ltd., 2001 SCC 58, [2001] 2 SCR 943, described this appellate standard of review in somewhat greater detail:
[80] It is common ground that the Court of Appeal was not entitled to substitute its own view of a proper award unless it could be shown that the trial judge had made an error of principle of law, or misapprehended the evidence (Lang v. Pollard, [1957] S .C .R . 858, at p . 862), or it could be shown there was no evidence on which the trial judge could have reached his or her conclusion (Woelk v. Halvorson, [1980] 2 S C. .R . 430, at p . 435), or the trial judge failed to consider relevant factors in the assessment of damages, or considered irrelevant factors, or otherwise, in the result,
78 Civil Appeals in Saskatchewan s. 12
made “a palpably incorrect” or “wholly erroneous” assessment of the damages…Where one or more of these conditions are met, however, the appellate court is obliged to interfere .
Review re family law support orders and child custody and access orders
The appellate standard of review reserved for questions pertaining to the exercise of discretion is more nuanced in its application in the context of family law support orders than it is in other contexts . This finds illustration in the reasons for judgment of the Supreme Court of Canada in Hickey v Hickey, [1999] 2 SCR 518: 10 When family law legislation gives judges the power to decide on support obligations based on certain objectives, values, factors, and criteria, determining whether support will be awarded or varied, and if so, the amount of the order, involves the exercise of considerable discretion by trial judges . They must balance the objectives and factors set out in the Divorce
Act or in provincial support statutes with an appreciation of 2015 CanLIIDocs 293 the particular facts of the case . It is a difficult but important determination, which is critical to the lives of the parties and to their children . Because of its fact-based and discretionary nature, trial judges must be given considerable deference by appellate courts when such decisions are reviewed . [emphasis added]
11 Our Court has often emphasized the rule that appeal courts should not overturn support orders unless the reasons disclose an error in principle, a significant misapprehension of the evidence, or unless the award is clearly wrong… [emphasis added]
12 There are strong reasons for the significant deference that must be given to trial judges in relation to support orders . This standard of appellate review recognizes that the discretion involved in making a support order is best exercised by the judge who has heard the parties directly . It avoids giving parties an incentive to appeal judgments and incur added expenses in the hope that the appeal court will have a different appreciation of the relevant factors and evidence . This approach promotes finality in family law litigation and recognizes the importance of the appreciation of the facts by the trial judge . Though an appeal court must intervene when there is a material error, a serious misapprehension of the evidence, or an error in law, it is not entitled to overturn a support order simply because it would have made a different decision or balanced the factors differently. [emphasis added]
Part One The Court of Appeal Act, 2000 79 s. 12
See, too: Frank v Linn, 2014 SKCA 87 at paras 82–90, 442 Sask R 126, particularly as the above standard of review applies to a spousal support order made with reference to the Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) .
The above standard of review applies (with equal emphasis and for the same policy reasons), to appellate review for error of a decision regarding child custody and access: Van de Perre v Edwards, 2001 SCC 60 at para 11, [2001] 2 SCR 1014: 11 In reviewing the decisions of trial judges in all cases, including family law cases involving custody, it is important that the appellate court remind itself of the narrow scope of appellate review [as remarked upon by L’Heureux-Dubé J . in Hickey v Hickey, [1999] 2 SCR 518, at paras 10 and 12] .
See, too: C.R.H. v D.G., 2010 SKCA 127, 362 Sask R 261, and Ackerman v Ackerman, 2014 SKCA 86, 442 Sask R 113 . In Ackerman v Ackerman the court said this of the matter: 14 …As pointed out in [C.R.H. v D.G.] the scope of appellate 2015 CanLIIDocs 293 review in custody cases is a narrow one . An appellate court should only intervene where there is a material error, a serious misapprehension of the evidence, or an error in law . It is not entitled to intervene simply because it would have made a different decision .
Practice Tip
The various standards of review pertaining to the exercise by the court of the power to allow an appeal in whole or in part as provided for by 12(1)(a) of The Court of Appeal Act, 2000 form a critical part of the process of appeal. Hence, an appellant is required by Rule 28(1) of The Court of Appeal Rules to state in Part II of the appellant’s factum which of the standards of review are engaged, having regard for the source of the right of appeal, the basis for the jurisdiction of the court, and the nature of the grounds of appeal. This rule also requires a respondent to set forth the respondent’s position with respect to these matters.
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80 Civil Appeals in Saskatchewan s. 13
Motions against decision of judge 13 Where issues of fact have been tried, or damages have been assessed, by a trial judge without a jury, any party is entitled to move against the decision of the trial judge, by motion for a new trial or otherwise: (a) within the same time that is allowed in cases of trial or assessment of damages by a jury; and (b) on the same grounds, including objections against the sufficiency of the evidence, or the view of the evidence taken by the trial judge, that are allowed in cases of trial or assessment of damages by a jury.
• 2015 CanLIIDocs 293 Powers of court re evidence 14 On an appeal from, or on a motion against, the decision of a trial judge or on any re-hearing, the court is not obliged to grant a new trial or to adopt the view of the evidence taken by the trial judge, but the court shall act on its own view of what, in its judgment, the evidence proves, and the court may draw inferences of fact and pronounce the decision that, in its judgment, the trial judge ought to have pronounced.
Commentary Introductory note
Sections 13 and 14 fall to be considered together, and in conjunction with other sections of the Act, namely section 7 (Right of appeal) and section 12 (Powers of the court) .
They also fall to be considered in light of their origins and age .
The equivalents of sections 13 and 14 were first enacted in 1915, on the passage of the original Court of Appeal Act, and have formed a part of every subsequent enactment to and including The Court of Appeal Act, 2000 . So they are very old, and their age is reflected in their partially dated language .
Part One The Court of Appeal Act, 2000 81 s. 14
Their age is also reflected in the fact some of their provisions have been subsumed in sections 7 and 11, or overlap with these sections . This is particularly so, first, of subsection 7(2)(a), which confers a right of appeal from a decision of the Court of Queen’s Bench or judge of that court; and, second, subsection 12(1), which empowers the court to allow an appeal in whole or in part and, in consequence, to order a new trial or make any decision that could have been made in the court below .
Section 13
Section 13 allows for appeal from a decision made by a trial judge, sitting without a jury, on the same grounds as those upon which an appeal from a decision based upon a jury verdict are permitted .
As such, the section serves to augment the right of appeal, conferred by subsection 12(2)(a) of the Act, from a decision of a judge of the Court of Queen’s Bench sitting without a jury . It does so by specifying the grounds upon which an appeal from such a decision may be taken . 2015 CanLIIDocs 293
Historically, the equivalent of an appeal from a judgment of the Court of Queen’s Bench founded upon a jury verdict was permitted to be taken by motion on grounds that extended to: • misdirection • improper reception or rejection of evidence • unfairness in the proceedings, and • insufficient evidence to support the verdict .
In effect, then, section 13 allows for an appeal, on grounds such as these, from a decision of a judge sitting without a jury . But so, too, does the right of appeal conferred by subsection 7(2)(a) of the Act, for this right of appeal is unlimited and thus allows for appeal on any ground of law and fact pertaining to a decision of a judge sitting without a jury .
Hence, section 13 has become something of an anachronism as a result of the changes wrought by the enactment of the present Act, for one need not look beyond subsection 7(2)(a) for the right of appeal from a decision of the Court of Queen’s Bench or a judge of that court .
Even so, section 13 is intended to operate in tandem with section 14 and contributes in this respect to a better understanding of the operation of the latter .
82 Civil Appeals in Saskatchewan s. 14
Section 14
Section 14 states in material part that on an appeal from a decision of a trial judge the court is not obliged to grant a new trial or to adopt the view of the evidence taken by the trial judge, but “shall act on its own view of what, in its judgment, the evidence proves” . The section then goes on to state that the court “may draw inferences of fact and pronounce the decision that, in its judgment, the trial judge ought to have pronounced” .
These provisions, which are limited in their application to an appeal from a decision of a trial judge, serve to augment the jurisdiction of the court and the powers vested in it by subsection 12(1) . This is particularly so of the power to allow an appeal in whole or in part (subsection 12(1)(a)) and to make the decision that could have been made in the first instance (subsection 12(1)(d)) .
However—and this of fundamental significance—the exercise of this jurisdiction and these powers is subject to the pre-condition that the review by the court of a decision of a trial judge for error pertaining to the findings of fact at trial has 2015 CanLIIDocs 293 turned up a palpable and overriding error .
The court is enabled by section 14 to make its own findings of fact and draw its own inferences of fact, but it may only do so “where the trial judge is shown to have committed a palpable and overriding error or made findings of fact that are clearly wrong, unreasonable, or unsupported by the evidence”: H.L. v Canada (Attorney General), 2005 SCC 25 at para 89, [2005] 1 SCR 401 .
See, too: Lensen v Lensen, [1987] 2 SCR 672 at 683: While section [14] of the Saskatchewan Court of Appeal Act authorizes the Court of Appeal to “draw inferences of fact”, this task must be performed in relation to facts as found by the trial judge . Unless the trial judge has made some “palpable and overriding error” in this regard, s . [14] should not be construed so as to modify the traditional role of the Court of Appeal with respect to those findings .
Viewed in this light, section 14 may be seen to relieve the court from having to order a new trial pursuant to subsection 12(1)(c) where, in the case of trial by judge alone, the court decides to allow an appeal and set aside a decision on the ground the findings of fact material to the decision cannot be sustained because they are the product of palpable and overriding error or, in other words, are unreasonable or unsupported by the evidence .
Part One The Court of Appeal Act, 2000 83 s. 15
It follows that, if the court decides to set aside a decision of a trial judge on the ground the decision is based on findings of fact that are unreasonable or unsupported by the evidence, or attended by a palpable or overriding error, the court is empowered by section 14 of the Act to decline to order a new trial and, instead, to take its own view of what the evidence proves, draw its own inferences of fact, and pronounce the decision the trial judge should have pronounced .
That said, the power of the court to order a new trial pursuant to subsection 12(1) (c) of the Act (whether in this context or others) falls to be exercised in accordance with the provisions of Rule 58 of The Court of Appeal Rules .
Rule 58 (Powers exercised by the court) lays out the basis of principle pursuant to which the court acts in considering whether or not to order a new trial, including the principle that the court may decline to order a new trial if no substantial wrong or miscarriage of justice occurred by reason of error .
For a more complete treatment of the bases upon which the court acts in determining whether to order a new trial, see the commentary under Rule 58, including the case law regarding the application of the rule . 2015 CanLIIDocs 293
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Quorum 15(1) Any three judges constitute a quorum of the court at a sitting of the court. (2) A decision of the three judges constituting a quorum, or of a majority of them, is deemed to be the decision of the court. (3) Subsection (4) applies in the following circumstances: (a) an appeal or matter has been heard and is standing for judgment; and (b) one or more of the judges who heard the appeal or matter: (i) dies before the decision is given; (ii) is, because of illness or for any other reason, unable to participate in giving the decision; or (iii) resigns his or her office or is appointed to another court or otherwise ceases to hold office and does not participate in giving the decision as allowed by section 5.1.
84 Civil Appeals in Saskatchewan s. 16
(4) In the circumstances mentioned in subsection (3), notwithstanding subsection (1) but subject to section 16, the remaining judges may give the decision, and the decision is deemed the decision of the court.
Commentary
Subsections 15(1) and (2) allow for a complement of three judges of the court to hear and determine an appeal or matter . This makes it possible for the court to sit in panels of three, five, or seven judges . In order to manage the workload of the court efficiently and effectively, the court customarily sits in panels of three judges (as do virtually all provincial appellate courts), though in exceptional circumstances, and at the direction of the chief justice, the court may sit with a panel of five or even seven judges .
Subsections 15(3) and (4) provide for the possibility that one or more judges who sat on a case in which judgment was reserved may, before judgment is rendered, 2015 CanLIIDocs 293 become unable to participate in rendering judgment for one of the reasons specified in subsection 15(3) .
In that event the remaining judges may pronounce judgment, provided they are not precluded from doing so by the provisions of section 16 (Re-hearings) .
This serves to avoid the delay, expense, and strain upon the resources of the court and the parties associated with having to re-hear a case unless a re-hearing is unavoidable, as it is in the circumstances mentioned in section 16 .
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Re-hearings 16(1) The court shall re-hear an appeal or matter that has been heard and is standing for judgment if a majority of the judges who heard the appeal or matter: (a) die before the decision is given; (b) are, because of illness or for any other reason, unable to participate in giving the decision; or (c) resign their offices or are appointed to another court or otherwise cease to hold office and do not participate in giving the decision as allowed by 5.1.
Part One The Court of Appeal Act, 2000 85 s. 16
(2) An uneven number of judges shall re-hear an appeal or matter that has been heard and is standing for judgment if: (a) the number of judges who heard the appeal or matter is later reduced to an even number of judges; (b) the remaining judges are equally divided on the appeal or matter; and (c) a party to the appeal or matter applies for a re-hearing.
Commentary
Section 16 states that the court shall re-hear a case in the event judgment was reserved and either: • a majority of the judges who sat on the case are unavailable to participate in the rendering of judgment by reason of death, illness, resignation, 2015 CanLIIDocs 293 appointment to another court, and so on (subsection16(1)), or • the number of judges who sat on the case are reduced to an even number, are equally divided in the result, and an application for a re-hearing is made by a party to the case (subsection 16(2)) .
The genesis of the latter is Storey v Zazelenchuk (1985), 40 Sask R 241 (CA) . This was a case in which one of five judges who sat on an appeal from a decision of a judge of the Court of Queen’s Bench retired while the decision was under reserve, and in which the remaining four were evenly divided in the result . Being evenly divided, they were unable to render judgment as such, and accordingly the decision of the judge of the Court of Queen’s Bench was left undisturbed .
On a subsequent application for a re-hearing, the court sat seven judges, a majority of whom declined to grant the application . In consequence, the decision of the judge of the Court of the Queen’s Bench prevailed .
Subsection 16(2) was enacted in response, requiring the court in circumstances such as these to re-hear an appeal . See, too: Armco Canada Ltd. v P.C.L. Construction Ltd. (1986), 33 DLR (4th) 621, 52 Sask R 100 (CA) .
While section 16 provides for mandatory re-hearing in the circumstances mentioned therein, the court may in the exercise of its discretion re-hear an appeal in other circumstances, as contemplated by Rule 47 of The Court of Appeal Rules .
See the commentary under Rule 47 for the bases upon which the court may undertake to re-hear an appeal in circumstances where a re-hearing is not mandatory but discretionary .
86 Civil Appeals in Saskatchewan s. 17
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Queen’s Bench judges assisting in court 17(1) At the request of the chief justice but subject to the consent of the Chief Justice of the Queen’s Bench, one or more judges of the Court of Queen’s Bench may sit as judges where there are vacancies or where one or more of the judges are absent due to illness or any other reason. (2) In the absence of the chief justice or where the office of chief justice is vacant, any two judges may make a request pursuant to subsection (1). (3) In the absence of the Chief Justice of the Queen’s Bench or where the office of the Chief Justice of the Queen’s Bench is vacant, the non-
supernumerary judge of that court who is senior in appointment to 2015 CanLIIDocs 293 office may grant the consent required by subsection (1).
Commentary
These provisions are invoked as occasion requires, but when the court is at full strength, and includes one or more supernumerary judges, it is seldom necessary to resort to these provisions .
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Judge of first instance not to review own decision 18 On any appeal or matter before the court, a judge shall not sit as one of the judges composing the court if the decision being appealed against or reviewed: (a) is the decision of the judge; or (b) was rendered before the judge.
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Part One The Court of Appeal Act, 2000 87 s. 19
Sittings 19(1) Subject to subsection 3(3), sittings of the court shall be held at the judicial centres of Regina and Saskatoon at any times that are fixed from time to time by the court. (2) Subject to subsections (3) to (8) and subsection 3(3), all applications and appeals to the court, and all motions to be heard by the court, are to be entered for hearing and heard at a sitting of the court at the judicial centre of Regina. (3) The court may hear at the judicial centre of Saskatoon any application or motion that is incidental to: (a) an appeal with respect to an action tried at a northern centre; (b) an appeal with respect to a matter heard at a northern centre; or
(c) an appeal entered for hearing at a sitting of the court at the 2015 CanLIIDocs 293 judicial centre of Saskatoon pursuant to this section. (4) Where a person appeals to the court with respect to an action tried or a matter heard at a northern centre: (a) the person may include in the notice of appeal a request that the appeal be heard at the judicial centre of Saskatoon; and (b) if the person does not make a request pursuant to clause (a), any other party to the appeal may, within 10 days after being served with the notice of appeal, file with the registrar a request that the appeal be heard at the judicial centre of Saskatoon. (5) On the filing of a notice of appeal containing a request pursuant to clause (4)(a) or on the filing of a request pursuant to clause (4)(b): (a) the registrar shall: (i) enter the appeal for hearing at a sitting of the court at the judicial centre of Saskatoon; and (ii) in the case of a request pursuant to clause (4)(b), mail a notice of the entry to each of the other parties to the appeal; and (b) every appeal entered pursuant to clause (a) shall, subject to subsections (6) and (7), be heard at the judicial centre of Saskatoon.
88 Civil Appeals in Saskatchewan s. 19
(6) Where an appeal has been entered for hearing at a sitting of the court at the judicial centre of either Regina or Saskatoon, any of the parties to the appeal may file with the registrar a request signed by all of the parties to have the appeal heard at the other judicial centre. (7) On the filing of a request pursuant to subsection (6): (a) the entry is deemed to be cancelled; (b) the registrar shall enter the appeal for hearing at a sitting of the court at the judicial centre of: (i) Saskatoon, in the case of an appeal originally entered for hearing at Regina; and (ii) Regina, in the case of an appeal originally entered for hearing at Saskatoon; and
(c) the appeal shall be heard at a sitting of the court at the 2015 CanLIIDocs 293 judicial centre specified in clause (b). (8) Subsections (3) to (7) do not apply with respect to appeals related to prosecutions pursuant to the Criminal Code and the Controlled Drugs and Substances Act (Canada) and appeals pursuant to the Youth Criminal Justice Act (Canada).
Commentary
Section 19 is expressed to be subject to subsection 3(3) of the Act . Subsection 3(3) requires the court to sit in both Regina and Saskatoon, and empowers the court to sit elsewhere at the direction of the chief justice .
As explained in the commentary accompanying subsection 3(3), the court customarily sits in Regina, as the historical seat of the court, but also sits in Saskatoon as required by subsection 3(3), the object of which is to reduce the inconvenience and cost to the parties to a civil appeal from a decision made in proceedings conducted at a northern centre .
The term “northern centre” is defined in section 2 to mean any of the judicial centres of Saskatoon, Battleford, Prince Albert, Melfort, and Humboldt (though Humboldt has since ceased to be a judicial centre), as well as a place in the province that is nearer to any of these judicial centres than any other .
Part One The Court of Appeal Act, 2000 89 s. 19
Having regard for the foregoing, and as contemplated by subsection 19(1), the court sits in both Regina and Saskatoon at times fixed by the court . Thus, the court sits in each of Regina and Saskatoon in accordance with an annual schedule approved by the court and published on the court’s website (www .sasklawcourts .ca) . The practice of the court is to schedule sittings throughout the year, including sittings in Saskatoon six times per year for one week at a time, subject to variation as circumstances may reasonably require .
Viewed in this light, section 19 may be seen to set out the basic administrative framework for entering cases to be heard in Regina or Saskatoon .
To start with, subsection 19(2) states that all applications and appeals to the court, and all motions to be heard by the court, shall be entered for hearing and heard in Regina . This is subject, however, to the remaining provisions of section 19 .
The remaining provisions begin by empowering the court, in subsection 19(3), to hear in Saskatoon any application or motion incidental to an appeal that arose out of proceedings tried or heard at a northern centre or that is entered for hearing in Saskatoon . 2015 CanLIIDocs 293
Subsection 19(4) then goes on to leave it to the party who initiates an appeal from a decision made in proceedings conducted at a northern centre to request the registrar (in the notice of appeal) to enter the appeal for hearing in Saskatoon . Failing that, any other party may, within 10 days of being served with the notice of appeal, request the registrar to do so .
Upon any such request being made, and upon the perfection of the appeal, the registrar enters the appeal for hearing at a scheduled sitting of the court in Saskatoon in accordance with the requirements of subsection 19(5) . Otherwise, the registrar enters the appeal for hearing in Regina .
On occasion, the dates available for the hearing of an appeal in Saskatoon may prove inconvenient for one or more of the parties, including inconvenience born of the scheduling demands upon counsel . In that event the registrar, with the consent of the parties, will reschedule the appeal for hearing in Regina rather than in Saskatoon as contemplated by subsection 19(7) .
The converse is also possible, though rare because the court’s schedule of Regina sittings extends throughout the year .
It should be noted that the provisions of section 19 do not apply to appeals stemming from criminal prosecutions of the nature of those mentioned in subsection 19(8) .
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90 Civil Appeals in Saskatchewan s. 20
Judge in chambers 20(1) A single judge sitting in chambers may hear and dispose of an application or motion that is incidental to an appeal or matter pending in the court and that does not involve the decision of the appeal on the merits. (2) A single judge sitting in chambers may hear and dispose of an application for leave to appeal. (3) An order made by a judge in chambers, other than an order granting or denying leave to appeal, may be discharged or varied by the court.
Commentary Subsection 20(1): motions incidental to appeal 2015 CanLIIDocs 293 Subsection 20(1) applies to matters that arise between the time an appeal is initiated and the time it is heard by the court . More particularly it applies to applications or motions that relate to the appeal but do not entail its disposition .
The subsection empowers a single judge sitting in chambers to hear and dispose of any such application or motion that “does not involve the determination of the appeal on its merits” .
A single judge in chambers is thus empowered to hear and determine applications that are made pursuant to the Act or The Court of Appeal Rules and that seek relief in the form of orders such as these: • lifting or imposing a stay of execution of a decision pending appeal, or the proceedings underlying the decision (Rule 15) • preserving the status quo pending the hearing of an appeal (inherent jurisdiction) • settling disputes regarding the appeal book (Rule 22) or the factums (Rule 28) • requiring the timely perfection of an appeal, or risk its dismissal by the court (Rule 46) • extending the time limited for taking a step associated with an appeal or prospective appeal, except for extensions of time that may only be granted by the court (Rule 71) (section 9 of the Act), or • sealing portions of an appeal book and factum pending the hearing of an appeal (inherent jurisdiction) .
Part One The Court of Appeal Act, 2000 91 s. 20
Subsection 20(2): applications for leave to appeal
This subsection expressly empowers a single judge in chambers to hear and determine applications for leave to appeal, whether leave to appeal be required by subsection 8(1) of the Act (Interlocutory appeals) or by any other enactment pursuant to which a decision is made and under which leave to appeal is required .
See the commentary accompanying section 8 of the Act pertaining to applications for leave to appeal in relation both to interlocutory decisions of the Court of Queen’s Bench and to decisions of any other court or tribunal where leave to appeal is required by the enactment pursuant to which the decision was made .
Subsection 20(3): orders in chambers subject to review
This subsection allows for an order of a single judge in chambers to bedischarged or varied by the court, except for an order granting or denying leave to appeal .
In effect, then, all such orders, with the exception of those pertaining to leave to 2015 CanLIIDocs 293 appeal, are subject to review by the court on application made to the court for that purpose . Those pertaining to leave to appeal are final and cannot be reviewed .
Case Law The power of a judge in chambers generally
The scope of the power conferred upon a single judge in chambers by section 20 was referred to in Mann v KPMG Inc., 2001 SKCA 24 at para 14, 203 Sask R 267, as follows: …This is a broad power, one that is routinely exercised in relation to procedural matters arising in advance of the hearing of the appeal by the Court . Once the conditions for its exercise are met, this power is limited, at least expressly, only by the phrase “does not involve the decision of the appeal” .
Matters within the power of a judge in chambers
It is within the power of a single judge in chambers acting on the authority of subsection 20(1) of the Act to prohibit a lawyer from acting for a party to an appeal where the lawyer had been disqualified from acting for that party in the Court of Queen’s Bench by reason of a conflict of interest, for this was a matter that did not “involve the decision of the appeal on its merits”: U.E.S. v D.H., 2005 SKCA 102, 275 Sask R 125 .
92 Civil Appeals in Saskatchewan s. 20
An order made by a single judge in chambers requiring a party to an appeal to pay child maintenance pending the determination of an appeal was held by the court, on review of the order, to have been made for the purpose of preserving the status quo, and in proper exercise of the power conferred on the judge by subsection 20(1) of the Act, inasmuch as this was a matter incidental to the appeal and did not entail a decision on the merits of the appeal: T.E.T. v J.D.L., 2004 SKCA 76, 249 Sask R 218 .
Matters concerning the content and filing of an appeal book and a factum fall within the jurisdiction of a single judge in chambers: Sundown Theatre Co. Ltd. v Ro-Edd Agencies Ltd., 2009 SKCA 78, 337 Sask R 111 .
A single judge in chambers is empowered by subsection 20(1) to order the removal of portions of a factum that exceed the function of a factum and offend the rules regarding its form and content: Mann v KPMG Inc., 2001 SKCA 24, 203 Sask R 267 .
Similarly, a single judge is empowered by subsection 20(1) to order that portions of the appeal book and factums be sealed pending the hearing of an 2015 CanLIIDocs 293 appeal so as to prevent the contents from becoming public in the meantime: Affinity Credit Union v United Food and Commercial Workers, Local 1400, 2014 SKCA 114, 446 Sask R 204 .
Matters beyond the power of a judge in chambers
It is not open to a single judge in chambers to strike out a notice of appeal on the basis the enactment pursuant to which the impugned decision was made expressly stated that there was no right of appeal to the court: Kachur v Lanigan Creek- Dellwood Brook Watershed Association, 2006 SKCA 81, 285 Sask R 180 .
Nor is it within the power of a single judge in chambers acting on the authority of section 20 to declare a notice of appeal to be a nullity on the ground leave to appeal was required and had not been obtained: Sundown Theatre Co. Ltd. v Ro- Edd Agencies Ltd., 2009 SKCA 78, 337 Sask R 111; Clements v Preece, 2014 SKCA 63, 438 Sask R 222 .
A single judge in chambers is not empowered by subsection 20(1) to strike out a notice of appeal on the basis it was not filed within the prescribed time, for this would constitute a final disposition of the appeal: He v Chen, 2010 SKCA 29, 346 Sask R 274 .
Nor is a single judge in chambers empowered by subsection 21(1) to quash an appeal on the ground of delay in perfecting the appeal . “The judge may impose conditions for the perfecting of the appeal, but the dismissal itself can only be
Part One The Court of Appeal Act, 2000 93 s. 21
made by the Court”: Cochet v Cochet (1989), 74 Sask R 219 (CA) . See, too: Owen v Thomas (1988), 67 Sask R 84 (CA) .
The power conferred upon a single judge in chambers by subsection 20(1) does not extend to granting leave to adduce fresh evidence on an appeal: Turbo Resources Ltd. v Gibson (1987), 60 Sask R 221 (CA) .
Where a non-party to a proceeding in the Court of Queen’s Bench applied to a single judge of the Court of Appeal to be added as a party to the proceeding for the purpose of appealing the decision, it was held that a judge of the court, acting alone, did not have the power to make an order of this kind; only the court could do so: 604598 Saskatchewan Ltd. v Saskatchewan Liquor and Gaming Licensing Commission (1997), 152 Sask R 201 (CA) .
• 2015 CanLIIDocs 293 Registrar 21(1) The registrar may exercise any power or jurisdiction of a judge sitting in chambers that may be conferred on the registrar by the rules of court. (2) For the purposes of subsection (1), “registrar” does not include a deputy registrar. (3) The Lieutenant Governor in Council may make regulations prescribing the fees and charges payable to the registrar.
Commentary Subsections 21(1) and (2)
These subsections empower the registrar (but only the registrar), to exercise such of the jurisdiction and power of a single judge in chambers as is conferred upon the registrar by The Court of Appeal Rules .
Rule 60 (Powers of the registrar) authorizes the registrar to hear and determine applications for various forms of procedural relief that would otherwise have to be heard and determined by a judge in chambers . This includes relief in the nature of orders pertaining in general to filing requirements, appeal book and factum requirements, and so on .
94 Civil Appeals in Saskatchewan s. 22
See the commentary under Rule 60 for a more detailed consideration of the authority of the registrar in these respects .
Subsection 21(3): registrar’s fees
The Lieutenant Governor in Council is empowered by this subsection to prescribe the fees and charges payable to the registrar in connection with proceedings in the Court of Appeal .
Acting on this authority, the Lieutenant Governor in Council enacted The Court of Appeal Fees Regulations, 2000, RRS c C-42 .1 Reg 1, a copy of which can be found in Appendix V .
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Rules of court 2015 CanLIIDocs 293 22 The judges, or a majority of them present at any meeting held for that purpose, may make rules of court: (a) regulating the practice and procedure relating to all appeals or matters coming before the court, the duties of the officers of the court and, subject to subsection 21(3), the costs of proceedings in the court; (b) for the purposes of clause 8(2)(b), prescribing cases that are in the nature of final decisions; (c) authorizing the registrar to do any specified thing or transact any specified business; (d) subject to subsection 21(2), authorizing the registrar to exercise any power or jurisdiction that may be exercised by a judge sitting in chambers pursuant to any Act other than The Constitutional Questions Act, 2012, Act of the Parliament of Canada or the custom or practice of the courts; (e) fixing a tariff of fees and costs to be allowed to solicitors and counsel on proceedings in the court; (f) providing for any other thing that the judges consider expedient for better attaining the ends of justice, advancing the remedies of parties, carrying into effect the provisions of this
Part One The Court of Appeal Act, 2000 95 s. 23
Act or providing for any subject that is not sufficiently provided for in this Act.
Commentary
The rules made by the court pursuant to the provisions of section 22 may be found in Part Two of this publication, which includes an annotated version of The Court of Appeal Rules .
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Publication of rules 23(1) All rules of court made pursuant to this Act must be 2015 CanLIIDocs 293 published in The Saskatchewan Gazette with as little delay as possible. (2) Subject to subsections (3) and (4), subsection (1) does not apply to a general consolidation and revision of the rules of court. (3) A notice of the promulgation of a consolidation and revision of the rules of court must be published in the Gazette and must state the date on which the consolidation and revision of the rules of court comes into force. (4) The date on which a consolidation and revision of the rules of court comes into force must be later than the date of publication of the notice.
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RSS 1978, c C-42 repealed 24 The Court of Appeal Act is repealed.
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96 Civil Appeals in Saskatchewan s. 25
25 to 27 Dispensed. These sections make consequential amendments to other Acts. The amendments have been incorporated into the corresponding Acts.
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Coming into force 28 This Act comes into force on proclamation. 2015 CanLIIDocs 293
Part One The Court of Appeal Act, 2000 97 2015 CanLIIDocs 293 Part Two The Court of Appeal Rules (Civil) 2015 CanLIIDocs 293 2015 CanLIIDocs 293 Contents
PART I 10 Filing notice of appeal. . . . . 116 Title and Interpretation 10 .1 Filing judgment or order 1 Title ...... 104 appealed against...... 117 2015 CanLIIDocs 293 2 Interpretation...... 105 11 Appeals requiring leave. . . . . 118 12 Appeals from incidental orders made at trial PART II or chambers...... 121 Purpose and Application of the Rules 13 Amendment to notice of appeal...... 122 3 Purpose of rules...... 105 14 Date of judgment...... 123 4 Application of the rules. . . . . 106 5 Where no provision...... 107 PART V Stay of Proceedings PART III 15 Stay...... 124 Initiating Appeals
6 Notice of appeal...... 108 PART VI 7 Style of cause in notice . . . . . 108 Cross-Appeal 8 Contents of notice of appeal. . . 109 16 Cross-appeal...... 148
PART IV PART VII Serving and Filing Intervention Notice of Appeal 17 Intervention ...... 152 9 Serving notice of appeal. . . . . 114
Part Two The Court of Appeal Rules (Civil) 101 PART VIII 35 Factum not required from Perfecting Appeal: unrepresented party...... 180 Appeal Book and Factum 36 Book of authorities...... 181
A. Appeal Book 37 Estimate of time for hearing...... 181 18 Appeal book required. . . . . 158 38 Raising additional 19 Agreement as to transcript arguments...... 182 of evidence...... 159
20 Contents of transcript. . . . . 161 PART IX 21 Transcript...... 161 Entering an Appeal 22 Agreement as to contents and for Hearing completion of appeal book. . . 162 39 Entering and fixing time 23 Contents of appeal book. . . . 164 for hearing...... 182 24 Form of appeal book...... 168 39 .1 Adjournments...... 184 25 Transmittal of file from 40 Disposition without 2015 CanLIIDocs 293 court below...... 169 oral hearing...... 186 26 Service and filing of appeal book...... 169 PART X Pre-Hearing Conference B. Factum 41 Pre-hearing conference. . . . . 187 27 Factum required...... 170 28 Contents of factum ...... 170 PART XI 29 Form of factum...... 176 Other Appeals 30 Factum dealing with 42 Appeals from divorce matrimonial property . . . . . 176 judgments...... 188 31 Factum dealing with 43 Expedited appeal...... 189 foreclosure, judicial sale, bankruptcy, or 44 Stated case...... 192 insolvency...... 177 32 Service and filing of factum. . . 177 PART XII 33 Factum in reply on Abandonment and Dismissal cross-appeal...... 178 for Want of Prosecution 33 .1 Factum in reply in 45 Abandonment...... 195 other cases...... 179 46 Dismissal for want of 34 Late filing of factum ...... 180 prosecution...... 196
102 Civil Appeals in Saskatchewan PART XII.1 PART XVI Prohibiting Vexatious Powers of the Court Proceedings 58 Powers exercised by the court. 225 46 .1...... 198 59 Fresh evidence...... 228 46 .2...... 198 PART XVII PART XIII General Rules Re-Hearing 60 Powers of registrar...... 231 47 Re-hearing...... 201 61 Prescribing terms and conditions...... 232 PART XIV 62 Material to be legible and Applications to comply with rules...... 233 48 Form of applications...... 205 63 Forms...... 233
49 Applications for leave 64 Style of cause...... 234 2015 CanLIIDocs 293 to appeal...... 208 65 Address for service...... 234 50 Crown Practice 66 Illusory or fictitious address applications...... 209 information...... 235 51 Queen’s Bench Rules 67 Service...... 236 to apply...... 210 68 Notification by registrar. . . . 236 69 Receipt by fax...... 237 PART XV Costs and Enforcement 70 Calculating time...... 237 of Judgment 71 Extension of time...... 238 52 Costs ...... 211 72 Representation by lawyer. . . . 241 53 Security for costs...... 213 73 Mechanical recording devices...... 242 54 Taxation of costs...... 216 74 Practice directives ...... 242 54 .1 Review of taxation of costs...... 220 55 Payment of costs by PART XVIII lawyer...... 221 Repeal, Transitional and Coming Into Force 56 Set-off...... 223 57 Enforcement of judgment. . . . 223 75 Repeal ...... 243 57 .1 Taking out judgments 76 Transitional...... 243 and orders...... 223 77 Coming into force...... 244
Part Two The Court of Appeal Rules (Civil) 103 R. 1
PART I Title and Interpretation
Title 1 These rules may be cited as The Court of Appeal Rules.
Commentary
The Court of Appeal Rules provide the framework of practice and procedure pertaining to appeals governed by The Court of Appeal Act, 2000, SS 2000, c C-42 .1 . The Rules were made by the court on the authority of section 22 of the Act, as 2015 CanLIIDocs 293 amended by Statutes of Saskatchewan 2004, c 66, and 2007, c 22 .
This is an annotated version of the Rules as consolidated and revised effective July 1, 1997 (The Saskatchewan Gazette, April 18, 1997), and as amended effective November 30, 2007 (The Saskatchewan Gazette, November 16, 2007) and July 4, 2014 (The Saskatchewan Gazette, July 4, 2014) .
It might be noted that the 1997 consolidated revision of The Court of Appeal Rules preceded the enactment of The Court of Appeal Act, 2000 . The latter was drafted with an eye in part to the former and, in consequence, some of the provisions of the Rules found their way into the Act . Hence, some of the provisions of the Act overlap some of the provisions of the Rules . Generally, the overlapping provisions are much alike, but should they conflict, the provisions of the Act prevail .
It might also be noted that the 1997 revision of The Court of Appeal Rules was undertaken to establish a contemporary set of rules accompanied by a complete set of forms for use on appeal . To this end, some new rules were added, others were altered in substance, and still others were merely rewritten in keeping with modern drafting protocols . The latter were rewritten with the general intention of preserving existing jurisprudence . Thus, the case law predating the present version of the Rules remains relevant in several instances, as indicated in the commentaries accompanying this annotated version .
From time to time it is necessary to clarify or supplement the practice before the court as provided for by the Rules . This is done by way of Practice Directive issued by the court on the authority of Rule 74 .
104 Civil Appeals in Saskatchewan R. 2
A number of Practice Directives are currently in effect . They are found in Appendix II to this annotated version of The Court of Appeal Rules . Where a Rule has been clarified or supplemented by a Practice Directive, the commentaries so indicate .
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Interpretation 2 In these rules: “Act” means The Court of Appeal Act, 2000; “application” includes a motion; “court” means the Court of Appeal; “court appealed from” includes, where appropriate, a tribunal;
“file” means to file with the registrar and pay the prescribed 2015 CanLIIDocs 293 fee, if any; “judge” means, unless otherwise indicated, a judge of the Court of Appeal acting under section 20 of the Act; “judgment” includes any judgment, order, decree or decision; “local registrar” means a local registrar of the Court of Queen’s Bench; “registrar” means the registrar of the Court of Appeal.
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PART II Purpose and Application of the Rules
Purpose of rules 3 The purpose of these rules is to provide for the orderly and expeditious administration of justice in the court.
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Part Two The Court of Appeal Rules (Civil) 105 R. 4
Application of the rules 4(1) Where it is in the interests of the proper administration of justice to do so, the court or a judge may waive compliance or relieve against non-compliance with these rules and direct the procedure to be followed. (2) Non-compliance with these rules may subject the party in default to an order for costs.
Commentary
Given the purpose and comprehensive nature of the Rules, they are expected to be observed and will be enforced . Nevertheless, the court or a judge is empowered by Rule 4(1) to waive compliance where “it is in the interests of the proper
administration of justice” to do so . As provided for by Rule 4(2), however, a party 2015 CanLIIDocs 293 in default may be required to pay the costs associated with non-compliance .
Case Law Underlying remedial philosophy
“As a general principle, the rules of procedure should be the servant of the substantive rights and not the master”: Reekie v Messervey, [1990] 1 SCR 219 at 222 .
Substance should prevail over form: Québec (Communauté urbaine) v Services de santé du Québec, [1992] 1 SCR 426 .
“Rules of Court are the servants of the court, whose duty it is to interpret them in the manner most likely to do justice between the parties” and “there is no general rule with respect to the practice of this court that will not yield to the demands of justice”: Coulthard v Coulthard, [1952] 5 WWR (NS) 662 (Sask CA) at 669 .
Even so, the Rules are fundamental to the practice and procedure in the court, and counsel and others are expected to comply with them . The court will use awards of costs to enforce compliance, penalize non-compliance, and compensate those who incur expense from non-compliance . When non-compliance cannot be remedied because of injustice to another party, the lawyer guilty of non-compliance runs the risk of an action in negligence by the client: Co-operative Trust Co. of Canada v Maranda, 2002 SKCA 10, 213 Sask R 262 .
106 Civil Appeals in Saskatchewan R. 5
Remedial limitations
None of the Rules, including Rule 4(1), may be invoked to relieve against non- compliance with a procedural requirement prescribed by statute: University of Saskatchewan v Van Oder (1974), 49 DLR (3d) 313 (Sask CA) (non-compliance with manner of service prescribed by The Trade Union Act, RSS 1965, c 237); Jordan v Saskatchewan Securities Commission (1968), 64 WWR 121 (Sask CA) (non-compliance with time for taking appeal prescribed by The Securities Act, RSS 1965, c 396) . See, too: Dawe v Canada (1994), 174 NR 1 (FCA); Duzs v Duzs (1973), 35 DLR (3d) 310, [1973] 3 WWR 394 (Alta CA) .
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Where no provision 5 Where the statute giving a right of appeal or a right to apply to 2015 CanLIIDocs 293 the court or to a judge does not specify the procedure to be followed, these rules apply as far as may be practicable.
Commentary
If a statute confers a right of appeal and does not specify the procedure to be followed, the Rules apply as far as may be practicable . However, if the statute specifies the procedure to be followed, including the time within which an appeal is required to be taken, and the procedure differs from that of The Court of Appeal Rules, the statute prevails .
Case Law
The absence of rules of procedure cannot paralyze the exercise of a statutory jurisdiction conferred upon the court: R v Hemlock Park Co-operative Ltd., [1974] SCR 123 at 130 .
If a lacuna exists in the applicable rules of procedure, the court may draw upon its inherent jurisdiction to act: Panayiotou v Sony Music Entertainment (UK) Ltd., [1994] 1 All ER 755 (Ch) .
Thus, where money was mistakenly paid into court in answer to a garnishee summons, and no authority for its repayment existed, statutory or otherwise,
Part Two The Court of Appeal Rules (Civil) 107 R. 6
the court drew upon its inherent power to order repayment and thus rectify the mistake: Sordsdahl v Royal Bank of Canada, [1991] 4 WWR 730, 92 Sask R 299 (CA) .
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PART III Initiating Appeals
Notice of appeal 6 Unless otherwise provided by statute, all appeals shall be initiated by notice of appeal or cross-appeal. (Forms 1a and 1b) 2015 CanLIIDocs 293 Commentary
This Rule requires that all appeals, including cross-appeals, be initiated in accordance with the forms provided for that purpose .
Form 1(a) is to be used in the case of an appeal, and Form 1(b) in the case of a cross-appeal . These and other forms are found in Appendix I . The others provide the structural framework for motions, orders, and judgments of various kinds .
The Forms were developed by the court for the twofold purpose of: • providing parties to an appeal and their counsel with a pre-cast set of Forms for ease of use in working with the Rules, and • promoting a substantial degree of uniformity in practice for the benefit of the parties and the court alike .
Accordingly, the court strongly encourages use of the Forms .
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Style of cause in notice 7(1) The style of cause shall set out without abbreviation of names: (a) the name of the appellant together with the designation
108 Civil Appeals in Saskatchewan R. 8
“Appellant”, followed by the appellant’s status in the court appealed from; (b) the name of each party against whose interest the appeal is taken, together with the designation “Respondent”, followed by the respondent’s status in the court appealed from; (c) the name of each party against whose interest the appeal has not been taken, together with the designation “Non-party”, followed by the party’s status in the court appealed from. (2) The status of the party in the court appealed from shall be in parentheses.
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Contents of notice of appeal 2015 CanLIIDocs 293 8 A notice of appeal, in addition to identifying the judgment or order from which the appeal is taken, shall, in separate numbered paragraphs: (a) specify whether all or part of the judgment is being appealed and, if a part, which part; (b) identify the source of the right of appeal and the basis for the jurisdiction of the court to determine the appeal; (c) set forth the grounds of the appeal; (d) state precisely the relief sought; (e) provide the information required under Rule 65(1) (Address for service); and (f) contain a request that the appeal be set down for hearing in either Regina or Saskatoon.
Commentary
Rule 8 requires a notice of appeal to be drafted with care having regard in particular for the requirements of clauses (b), (c), and (d), which require careful attention to four matters that must be addressed in a notice of appeal:
Part Two The Court of Appeal Rules (Civil) 109 R. 8
• the source of the right of appeal • the jurisdiction of the court • the grounds of appeal, and • the relief sought .
The source of the right of appeal
Section 7 of The Court of Appeal Act, 2000 (Right of appeal) furnishes the starting point for identifying the source of the right of appeal as required by Rule 8, bearing in mind that there is no right of appeal to the court except as provided by statute: R v Meltzer, [1989] 1 SCR 1764; Kourtessis v M.N.R., [1993] 2 SCR 53; Dagenais v Canadian Broadcasting Corp., [1994] 3 SCR 835; R v S. (T.), [1994] 3 SCR 952 .
More particularly, subsection 7(2) of the Act furnishes the starting point . It does two things: 2015 CanLIIDocs 293 • it confers a general right of appeal to the court from a decision of the Court of Queen’s Bench or a judge of that court (subsection 7(2)(a)), and • it recognizes and accommodates such specific rights of appeal from a decision of any other court or tribunal as may be conferred by an enactment (subsection 7(2)(b)) .
The term “enactment” is defined in subsection 7(1) of the Act to mean an Act of the Legislature, an Act of the Parliament of Canada, or a regulation made pursuant to any such Act, but does not include The Court of Appeal Act, 2000 .
Given the twofold provisions of subsection 7(2) of the Act, it is necessary, in identifying the source of the right of appeal, to have regard, first, for right of appeal from a decision of the Court of Queen’s Bench and, then, to the right of appeal from any other court or tribunal as may be conferred by an enactment .
The right of appeal from Queen’s Bench
The right of appeal conferred by subsection 7(2)(a) of The Court of Appeal Act, 2000 from a decision of the Court of Queen’s Bench or a judge of that court is a general right of appeal conferred by this Act . The significance of this lies in the fact that an enactment pursuant to which a decision is made may contain its own appeal provisions . In other words, it may contain a specific right of appeal, and that right of appeal may be restricted in some way—restricted, for example, to a question of law, or restricted in its exercise by the need to obtain leave to appeal .
110 Civil Appeals in Saskatchewan R. 8
Thus, in identifying the source of the right of appeal from a decision of Court of Queen’s Bench for the purpose of Rule 8, it is necessary to look to the basis of jurisdiction and power pursuant to which the decision in question was made .
Many decisions are made by the Court of Queen’s Bench in exercise of the general authority vested in it as a superior court, committed to it by The Queen’s Bench Act, 1998, SS 1998, c Q-1 .01, and conferred upon it by The Queen’s Bench Rules .
Other decisions are made by the Court of Queen’s Bench in exercise of the specific authority conferred upon it by a particular enactment, one that may contain its own right of appeal and may place restrictions on that right .
Hence, it is often necessary to look beyond subsection 7(2)(a) for the source of the right of appeal from a decision made by the Court of Queen’s Bench or a judge of that court .
For example, federal enactments such as the Divorce Act, RSC 1985, c 3 (2d Supp), s 21, and the Bankruptcy and Insolvency Act, RSC 1985, c B-3, ss 183(2) and 193, provide for appeal from decisions made pursuant to these enactments . 2015 CanLIIDocs 293 It is these enactments, not subsection 7(2)(a) of The Court of Appeal Act, 2000, that contain the source of the right of appeal in relation to decisions made pursuant to these enactments .
Likewise, many provincial enactments devoted to a particular subject matter provide for appeal from decisions of the Court of Queen’s Bench made pursuant to such enactments, as do the following examples: The Family Property Act, SS 1997, c F-6 .3, s 55; The Family Maintenance Act, 1997, SS 1997, c F-6 .2, s 25; and The Saskatchewan Human Rights Code, SS 1979, c S-24 .1, s 32 . Again, it is these enactments, not subsection 7(2)(a) of The Court of Appeal Act, 2000, that contain the source of the right of appeal to the court .
This is why, in identifying the source of the right of appeal from a decision of the Court of Queen’s Bench as required by Rule 8, it is often necessary to look beyond subsection 7(2)(a) of The Court of Appeal Act, 2000 for the source of the right of appeal .
The right of appeal from any other court or tribunal
As mentioned above, subsection 7(2)(b) of The Court of Appeal Act, 2000 recognizes and accommodates such rights of appeal from a decision of any other court or tribunal as may be conferred by an enactment . Accordingly, subsection 7(2)(b) does not in itself confer any right of appeal to the Court of Appeal . This makes it necessary to look elsewhere for the source of the right of appeal from a decision of any other court or tribunal .
Part Two The Court of Appeal Rules (Civil) 111 R. 8
Such right of appeal, if any, is usually found in the court or tribunal’s enabling enactment . Examples include the following: The Small Claims Act, 1997, SS 1997, c S-50 .11, s 45; The Legal Profession Act, 1990, SS 1990-91, c L-10 .1, s 56; and The Medical Profession Act, 1981, SS 1980-81, c M-10 .1, ss 62 and 66 .
Once again, it is these enactments and their like, not subsection 7(2)(b) of The Court of Appeal Act, 2000, that furnish the source of the right of appeal, if any, to this court .
All of these rights of appeal, whether from a decision of the Court of Queen’s Bench or any other court or tribunal, are subject to potential limitation . The potential limitations appear, first, in subsection 7(3) of the Act and, second, in section 8 .
Potential limitations
In subsection 7(3) of The Court of Appeal Act, 2000, it is stated in effect that if an enactment provides that there is no right of appeal from a decision of the Court
of Queen’s Bench or any other court of tribunal, or confers only a limited right of 2015 CanLIIDocs 293 appeal, that enactment prevails .
Some enactments preclude appeal altogether, for instance The Trade Union Act, RSS 1978, c T-17, s 21, or preclude appeal to the Court of Appeal, as does The Water Appeal Board Act, SS 1983-84, c W-4 01,. s 26 .
Other enactments do provide for appeal to the Court of Appeal . Some confer an unlimited right of appeal to the court, for instance The Legal Profession Act, 1990, SS 1990-91, c L-10 .1 . Others confer only a limited right of appeal to the court—limited to a question of law or jurisdiction, for example, or limited by the need to obtain leave to appeal . Examples include The Small Claims Act, 1997, SS 1997, c S-50 .11, s 45; The Medical Profession Act, 1981, SS 1980-81, c M-10 .1; The Automobile Accident Insurance Act, RSS 1978, c A-35, s 194(1); and The Municipal Board Act, SS 1988-89, c M-23 .2, s 33 1. .
Hence, it is imperative, in keeping with the provisions of Rule 8(b), that the notice of appeal correctly identify the source of the right of appeal, having regard for the restrictions that may be placed upon the right of appeal as contemplated by subsection 7(3) of The Court of Appeal Act, 2000 .
In section 8 of the Act, subsection (1) requires leave to appeal from an interlocutory decision of the Court of Queen’s Bench or a judge of that court (subject to the exceptions mentioned in subsection 8(2)) .
Other enactments may also require leave to appeal, whether the decision be interlocutory or final, and whether it be a decision of the Court of Queen’s Bench or any other court or tribunal .
112 Civil Appeals in Saskatchewan R. 8
For a more detailed consideration of matters such as these, see the commentary accompanying each of sections 7 and 8 of The Court of Appeal Act, 2000 in Part One of this publication .
The jurisdiction of the court
Having regard for the need to identify the jurisdiction of the court as required by Rule 8, it may be noted that its jurisdiction derives mainly from section 10 of The Court of Appeal Act, 2000 . Section 10 endows the court with appellate jurisdiction, where an appeal lies to the court, as well as with such original jurisdiction as is necessary or incidental to the hearing and determination of an appeal .
Where no appeal lies to the court, either from a decision of the Court of Queen’s Bench or any other court or tribunal, the appellate jurisdiction conferred on the court by section 10 is, of course, inoperative .
Similarly, where the right of appeal is limited in scope, the jurisdiction of the court is correspondingly limited . Thus, where the right of appeal to the court is limited 2015 CanLIIDocs 293 to a question of law, as it is for example in The Small Claims Act, 1997, SS 1997, c S-50 .11, s 45, and others, the jurisdiction of the court does not extend beyond the question of law to which the proceedings below give rise .
For a more complete treatment of the subject of the jurisdiction of the court, see the commentary under the following sections of the Act: section 3 (Court continued), section 10 (Appellate jurisdiction), and section 11 (Original jurisdiction) .
The grounds of appeal
It is imperative that the grounds of appeal be set forth in a notice of appeal as required by Rule 8, bearing in mind that: (i) an appeal is from a decision, not the reasons for the decision; (ii) an appeal entails review of the decision for error; and (iii) the scope of the review is dictated by the grounds of appeal and the standard of appellate review pertaining to each ground .
Leaving aside errors concerning procedure or process (including the erroneous reception or rejection of evidence), it is well to remember, when framing the grounds of appeal, that all judicial and quasi-judicial decision-making entails: • finding the facts material to the dispute • selecting and, if need be, interpreting the law governing the dispute • applying the governing law to the facts as found, and • exercising discretion where discretionary power is vested in the decision- maker .
Part Two The Court of Appeal Rules (Civil) 113 R. 9
Thus, if an error is made, it is apt to lie in a failing in relation to the performance of one or more of these functions . Such errors, as well as those concerning procedure or process, must be identified and set forth in the notice of appeal, and are expected to be identified with considerable care and clarity .
That said, Rule 8 also requires that a notice of appeal state the relief being sought .
The relief sought
Rule 8 requires that a notice of appeal state precisely the relief sought from the court should the appeal succeed . Accordingly, the order or orders sought by the appellant should be clearly and completely described .
Further Commentary
For further treatment of these topics, see the following sources:
(1) Cameron J .A ., “Civil Appeals to the Court of Appeal: Practice and 2015 CanLIIDocs 293 Procedure” (Regina: Law Society of Saskatchewan, 2009), online at www .sasklawcourts .ca: • Pages 5 to 13—Right of appeal . • Page 15—Jurisdiction of the court .
(2) Richards C .J .S ., “Going Fishing”: Some Thoughts on Successful Advocacy in the Court of Appeal (Regina: Court of Appeal for Saskatchewan, 2008), online at www .sasklawcourts .ca: • Pages 9 to 10—Right of appeal . • Page 24—Relief sought .
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PART IV Serving and Filing Notice of Appeal
Serving notice of appeal 9(1) The appellant shall serve the notice of appeal upon all parties against whose interest the appeal is taken.
114 Civil Appeals in Saskatchewan R. 9
(2) The notice of appeal shall be served within 30 days after the date of the judgment or order being appealed from, except where otherwise provided by these rules and subject to the provisions of any statute governing the appeal. (3) Service shall be effected in accordance with Rule 67 (Service) or by serving the party’s lawyer on record in the court appealed from. (4) The court or a judge may direct the notice of appeal be served on any person not a party and may make such interim orders as the court or judge considers just.
Commentary
Rule 9 is largely concerned with who is to be served with a notice of appeal and how service is to be made . 2015 CanLIIDocs 293
Hence, Rules 9(1), 9(3), and 9(4) require that a notice of appeal be served: (i) in accordance with Rule 67 (Service); (ii) on all parties against whose interest the appeal is taken; and (iii) on any person the court or a judge of the court should direct be served .
Rule 9(2) requires a notice of appeal to be served within 30 days after the date of the judgment or order being appealed from . It applies to both a notice of appeal from a decision of the Court of Queen’s Bench and a notice of appeal from a decision of any other court or tribunal . Both notices are required to be served within this 30-day period .
However, to the extent Rule 9(2) applies to a notice of appeal from a decision of the Court of Queen’s Bench (in contradistinction to any other court or tribunal), the operation of the Rule has been displaced by subsection 9(2) of The Court of Appeal Act, 2000 .
The provisions of section 9 of the Act, including those of subsection (2), are specifically geared to an appeal from a decision of the Court of Queen’s Bench . And they are highly detailed in relation to the time during which an appeal may be taken from a decision of that court .
It is therefore necessary, when considering the period of time within which a notice of appeal from the Court of Queen’s Bench must be served, to consider section 9 of the Act and its detailed provisions in this regard, including those for computing and extending time in relation to prescribed appeal periods .
Part Two The Court of Appeal Rules (Civil) 115 R. 10
Generally speaking, the time during which a notice of appeal from a decision of that court must be served is expressed in section 9 of the Act to be within 30 days after the date of the decision .
There are exceptions, however, as there are in relation to decisions that are only incidental to the proceedings—incidental in the sense the decision relates to the conduct of the proceedings as distinct from their disposition . In that case a notice of appeal is required by section 9 to be served either within 30 days or 15 days of the conclusion of the proceedings, depending upon whether the decision is made during or after a trial, or during or after the hearing of an application in chambers . All of this finds detailed explanation in section 9 and the commentary accompanying this section .
That said, section 9 of the Act does not apply to a notice of appeal from a decision of any other court or tribunal . In consequence, Rule 9(2) continues to operate in this context . That being so, if the enactment pursuant to which the decision was made provides a right of appeal to the Court of Appeal and if that enactment does
not provide otherwise, the notice of appeal is required by Rule 9(2) to be served 2015 CanLIIDocs 293 within 30 days after the date of the decision .
This makes it necessary, when considering the time during which an appeal may be taken from a decision of any other court or tribunal, to have regard for the enactment governing the appeal, and for what that enactment may have to say, if anything, about the time within which a notice of appeal must be served .
For the purpose, then, of exercising a right of appeal from a decision of any other court or tribunal, the notice of appeal must be served within 30 days after the date of the judgment or order appealed from as required by Rule 9(2) .
This is subject to potential exception, however, for the enactment conferring the right of appeal may provide otherwise . If so, it prevails . For example, the Bankruptcy and Insolvency General Rules, enacted on the authority of the Bankruptcy and Insolvency Act, RSC 1985, c B-3, provide otherwise . Rule 32(1) of Bankruptcy and Insolvency General Rules provides that an appeal to an appellate court must be made by filing a notice of appeal within 10 days after the date of the order or decision appealed from, or within such time as a judge of the court stipulates .
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Filing notice of appeal 10(1) The notice of appeal shall be filed, with proof of service, within 10 days after service upon the last of the parties to be served,
116 Civil Appeals in Saskatchewan R. 10.1
and in cases where service is not required, the notice of appeal shall be filed within 30 days after the date of the judgment or order appealed from. (2) A notice of appeal shall not be filed after the expiration of the time period prescribed in this rule without an order of a judge.
Commentary
Rule 10(1) requires a notice of appeal to be filed, with proof of service, within 10 days after service is complete or, if service is not required, within 30 days after the date of the decision appealed from . Rule 10(2) goes on to provide that a notice of appeal may not be filed after the expiration of these time limits without an order of a judge .
To the extent Rule 10(2) precludes late filing without an order of a judge, the Rule 2015 CanLIIDocs 293 falls to be read in conjunction with Rule 60 (Powers of the registrar), for the latter empowers the registrar, based on section 21 of The Court of Appeal Act, 2000, to hear and determine applications under Rule 10(2) .
Hence, it is customary to apply to the registrar, rather than a judge, for the purpose of obtaining relief from the requirements of Rule 10(1) .
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Filing judgment or order appealed against 10.1 Where an appeal is taken against a judgment or order of the Court of Queen’s Bench, a copy of the judgment or order, as taken out in the Court of Queen’s Bench, shall be filed contemporaneously with the notice of appeal.
Commentary
This Rule is clear and to the point, but it is overlooked on occasion . It requires, in the case of an appeal from a decision of the Court of Queen’s Bench, that a copy of the judgment or order as taken out in that court be filed along with the notice of appeal . Overlooking this requirement causes sufficient inconvenience to be of concern .
Part Two The Court of Appeal Rules (Civil) 117 R. 11
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Appeals requiring leave 11(1) Subject to any statute governing the appeal, where leave to appeal is necessary, the application for leave shall be made within 15 days after the date of the judgment or order sought to be appealed from or within such time as ordered by the court or a judge. (2) The notice of appeal shall be served within 10 days after the date of the order granting leave to appeal.
Commentary
On the whole, Rule 11 speaks to the time within which leave to appeal, if necessary, 2015 CanLIIDocs 293 is to be sought and, if granted, is to be acted upon .
Rule 11(1) is expressed to be subject to any statute governing the appeal . Hence, the requirements of this Rule fall to be considered in the context of the statute pursuant to which an appeal is taken . Some statutes conferring a right of appeal require leave to appeal, whereas others do not .
For instance, section 8 of The Court of Appeal Act, 2000 requires leave to appeal an interlocutory decision made by the Court of Queen’s Bench or a judge of that court, except an interlocutory decision having to do with: • the liberty of the subject • the custody of a minor • the grant or refusal of an injunction, or • the appointment of a receiver .
At a very general level, an interlocutory decision is one that, made during the progress of an action or other proceeding, relates to some intermediate matter at issue in the case, not to the ultimate matter in issue .
Other statutes, namely those pursuant to which a decision is made (either by the Court of Queen’s Bench or by any other court or tribunal) and pursuant to which an appeal may be taken, may also require leave to appeal, and may do so irrespective of whether the decision is interlocutory or final .
118 Civil Appeals in Saskatchewan R. 11
Thus, whenever an enactment, includingThe Court of Appeal Act, 2000, confers a right of appeal but requires leave to appeal, the exercise of that right is conditional upon obtaining leave to appeal .
When leave required
Queen’s Bench
Subject to the exceptions noted above, leave to appeal is required by section 8 of The Court of Appeal Act, 2000 whenever a party wishes to appeal an interlocutory decision of the Court of Queen’s Bench .
In addition, leave to appeal a decision of the Court of Queen’s Bench is required if the enactment pursuant to which the decision was made, and pursuant to which the appeal is taken, should so provide, bearing in mind that such an enactment may require leave to appeal irrespective of whether the decision is interlocutory or final . 2015 CanLIIDocs 293 It might be noted that leave to appeal a judgment or order made in the Court of Queen’s Bench with the consent of the parties is also required but, as provided for by section 38 of The Queen’s Bench Act, 1998, SS 1998, c Q-1 .01, the application for leave to appeal must be made to the court or judge giving the judgment or making the order: Brears v Brears (1989), 74 Sask R 47 (CA) .
Any other court or tribunal
If the enactment pursuant to which a decision is made by any other court or tribunal should provide a right of appeal to the Court of Appeal but only with leave of the court or judge of the court, leave must be obtained . Otherwise it is not necessary to apply for leave to appeal .
Time for applying for leave to appeal
Unless otherwise provided by statute, and subject to the power of enlargement, Rule 11(1) requires all applications for leave to appeal to be brought within 15 days of the date of the decision sought to be appealed .
Rule 11(2) goes on to provide that, if leave to appeal is granted, the notice of appeal must be served within 10 days thereafter . This stands in contrast with the 30-day requirement for serving a notice of appeal where leave is not required .
Part Two The Court of Appeal Rules (Civil) 119 R. 11
Applying for leave in chambers
With one exception, all applications for leave may be made to a single judge in chambers in accordance with subsection 20(2) of the Act . The exception is this: if an enactment confers a right of appeal conditional upon obtaining leave to appeal from the court, as distinct from a judge of the court, an application for leave to appeal must be made to the court: Hrycyk v Jeannotte (1993), 113 Sask R 62 (CA) .
It might be noted that the enactment in question in Hrycyk v Jeannotte, namely The Family Maintenance Act, SS 1990-91, c F 6 .1, s 24(2), required leave of the court to appeal but has since been amended to allow a judge in chambers to grant leave to appeal: The Family Maintenance Act, 1997, SS 1997, c F-6 .2, s 25(2) .
Practice and procedure
The practice and procedure to be followed on applications for leave to appeal is governed by Rules 48 (Forms of application) and 49 (Applications for leave to appeal) . 2015 CanLIIDocs 293
Rule 49 codifies the oft-ignored practice as laid out in Trail-Rite Flatdecks Ltd. v Larcon Investments Ltd. (1987), 61 Sask R 163 (CA) . The codification is intended to reinforce the requirement that applications for leave to appeal are expected to be as fully supported as any other . Thus, the Rule requires the applicant: • to provide the registrar with the file pertaining to the decision the applicant wishes to appeal, and • to file with the registrar the following: (a) the impugned judgment or order (b) the reasons therefor (c) a draft notice of appeal, and (d) a memorandum specifying the grounds for seeking leave .
Further commentary
The subject of obtaining leave to appeal—including whether leave is or is not required and, if required, the framework of principle governing the exercise of the power to grant leave, and so on—is complex at several turns . So, it is well to have regard for both the commentary and the case law accompanying sections 7 and 8 of The Court of Appeal Act, 2000 in Part One of this publication . Both cover the subject in much greater detail .
See, too: Rule 49 (Applications for leave to appeal) .
120 Civil Appeals in Saskatchewan R. 12
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Appeals from incidental orders made at trial or chambers 12(1) Where an order is made or a decision is given during or after a trial, and such order or decision is only incidental to the trial, the time for appealing from such order or decision shall continue for 30 days after the date of the judgment at trial, and a party appealing from the trial judgment may also include in the notice of appeal an appeal from such incidental order or decision. (2) Where an order is made or a decision is given during or after the hearing of an application in chambers and such order or decision is only incidental to the application and does not dispose of the matter in issue therein, the time for appealing from such order or decision shall continue for a period of 15 days 2015 CanLIIDocs 293 after the date of the judgment on the matter in issue in such application, and a party appealing from the judgment may also include in the notice of appeal an appeal from such incidental order or decision.
Commentary
Rule 12 was adopted prior to the enactment of The Court of Appeal Act, 2000, including section 9 of the Act (Appeal periods) .
The significance of this lies, first, in the similarity between the provisions of Rules 12(1) and (2) and the provisions of subsections 9(4) and (5) of the Act and, second, in the consequential effect of this . In effect Rules 12(1) and (2) have been displaced by subsections 9(4) and (5) of the Act .
Subsections 9(4) and (5) of the Act address the same subject matter as that addressed by Rules 12(1) and (2), namely the time during which an appeal from an “incidental decision” of the Court of Queen’s Bench may be taken, depending upon whether the decision was made during or after a trial or during or after the hearing of an application in chambers .
Broadly speaking, an incidental decision is one that is only incidental to the proceedings: one having to do with the conduct of the proceedings rather than their disposition .
Part Two The Court of Appeal Rules (Civil) 121 R. 13
In the case of an incidental decision made during or after trial, the time for appealing that decision, according to subsection 9(4) of the Act, is limited to 30 days after the date of judgment at trial .
In the case of an incidental decision made during or after the hearing of an application in chambers, the time for appealing that decision, according to subsection 9(5) of the Act, is limited to 15 days after the date of judgment in relation to the chamber application .
For a more complete consideration of the subject of appeal from an incidental decision, including what constitutes an incidental decision, see the commentary accompanying subsections 9(4) and (5) of the Act in Part One of this publication .
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Amendment to notice of appeal 2015 CanLIIDocs 293 13 A notice of appeal or cross-appeal may be amended at any time with leave of the court or a judge.
Commentary
The Rule allows a notice of appeal or cross-appeal to be amended at any time with leave of the court or a judge . The Rule is open-ended, but its application is subject to restraint, as the case law demonstrates .
Case Law
A notice of appeal cannot be amended to include a ground of appeal raising an issue that was not raised at trial unless the court is satisfied beyond doubt that all possible evidence relevant to the issue is before the court: Howell v Stagg, [1937] 2 WWR 331 (Sask CA), citing with approval Olver v Winnipeg (City) (1914), 6 WWR 161, 24 Man R 25 (CA); The “Tasmania” (1890), 15 AC 223 (HL) (at 225 and 228); and Connecticut Fire Insur. Co. v Kavanagh, [1892] AC 473 .
On appeal, a party cannot raise an entirely new argument in relation to which it might have been necessary to adduce evidence at trial: R v Perka, [1984] 2 SCR 232 at 240 . See, too, the commentary accompanying section 10 of The Court of
122 Civil Appeals in Saskatchewan R. 14
Appeal Act, 2000, particularly as it relates to raising an entirely new argument on appeal and to recasting a case on appeal .
A notice of appeal cannot be amended to substitute one entity for another as the appellant where the right of appeal is vested in the other by statute, the time for appeal prescribed by the statute has expired, and the statute makes no provision for enlarging the time for appeal: Pankiw v Board of Chiropractors’ Association of Saskatchewan, 2011 SKCA 142, 377 Sask R 237 .
Generally, an application to amend a notice of appeal for the purpose of raising a constitutional issue not raised in the proceeding below will not be allowed . Constitutional arguments, which invariably raise questions of general importance, should be raised in the first instance, with all parties being given the opportunity to prepare submissions and consider what evidence might be called: Wuttunee v Merck Frosst Canada Ltd., 2008 SKCA 125, 314 Sask R 90 .
Hence, in Wuttunee v Merck Frosst the court dismissed an application to amend a notice of appeal to allege, for the first time, that the provisions of The Class Actions Act, SS 2001, c C-12 .01, allowing for multi-jurisdictional certification were 2015 CanLIIDocs 293 unconstitutional .
Similarly, the court dismissed an application to amend a notice of appeal for the purposes of challenging the constitutional validity of the provisions of The Interpretation Act, 1995, SS 1995, c I-11 .2, empowering the Lieutenant Governor in Council to terminate the appointments of the chair and vice-chair of the Labour Relations Board: Saskatchewan Federation of Labour v Saskatchewan (Attorney General), 2010 SKCA 27, 317 DLR (4th) 127 .
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Date of judgment 14 In this Part, “date” of judgment or order means: (a) the date of filing with the registrar, local registrar or chambers clerk of the Court of Queen’s Bench, as the case may be, of the written reasons for judgment or the written fiat; or (b) where the judgment or order has been pronounced in court or chambers with no provision for written reasons to follow, the date of the oral pronouncement.
Part Two The Court of Appeal Rules (Civil) 123 R. 15 Commentary
Rule 14 was adopted prior to the enactment of The Court of Appeal Act, 2000, including section 9 of the Act (Appeal periods) .
Subsection 9(1) of the Act defines the “date” of a decision in substantially the same terms as Rule 14 defines the “date” of a judgment, though the former is now the authoritative source of the definition of this term .
The primary purpose of defining the date of a decision is to clarify when the time prescribed for serving a notice of appeal, or making an application for leave to appeal, begins and ends .
Both section 9 of the Act and Rule 9 of the Rules set forth periods of time during which a notice of appeal must be served, or an application for leave to appeal must be made . These periods of time are computed from the date of the decision or judgment . 2015 CanLIIDocs 293 The time begins to run on the day after the date of the decision or judgment, and continues to run to and including the last day of the prescribed period .
For further consideration of this subject, see the commentary under section 9 of the Act in Part One of this publication .
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PART V Stay of Proceedings
Stay 15(1) Unless otherwise ordered by the judge appealed from or by a judge, the service and filing of a notice of appeal does not stay the execution of a judgment or an order awarding mandamus, an injunction, alimony, or maintenance for a spouse, child or dependant adult. Unless otherwise ordered by a judge, the service and filing of a notice of appeal stays the execution of any other judgment or order pending the disposition of the appeal. (Forms 5a and 5b)
124 Civil Appeals in Saskatchewan R. 15
(2) Where leave to appeal from an interlocutory order is granted, the judge hearing the application may give directions as to staying proceedings. (3) Where a writ of execution has been issued but is stayed after being issued because of an appeal, the appellant is entitled to obtain a certificate from the registrar that the execution of the writ has been stayed pending the appeal. On the deposit of the certificate with the sheriff, the execution of the writ is stayed but the execution debtor shall pay the sheriff’s fees, and the amount so paid shall be allowed to the execution debtor as part of the costs of the appeal. (4) Where the execution of a judgment or order is stayed pending an appeal, all further proceedings in the action, other than the issue of the judgment and the taxation of costs under the judgment, are stayed unless otherwise ordered. 2015 CanLIIDocs 293
Commentary
Rule 15 was adopted in its present form in 1997 . It was adopted with the intention of preserving the existing jurisprudence relating to the previous version of the Rule . The previous version was promulgated in 1975 (The Saskatchewan Gazette, March 14, 1975) .
The present Rule houses four Subrules . Of these, Rules 15(1) and (4) are of paramount importance . This is so because they are of broad, general, and automatic application (and almost always come into play upon the launch of an appeal), whereas the others have only limited, specific, and selective application (and are therefore invoked infrequently) .
Each of Rules 15(1) and 15(4) address the subject of stays pending appeal . However, their subject matter differs . Rule 15(1) is concerned with the stay of execution of a judgment or order pending appeal, whereas Rule 15(4) is concerned with the stay of proceedings in an action consequent upon a stay of execution of a judgment or order pending appeal .
The distinction between a stay of execution of a judgment or order, on the one hand, and a stay of proceedings, on the other, is critical to a proper understanding of these two Rules and their operation .
Part Two The Court of Appeal Rules (Civil) 125 R. 15
Staying the execution of a judgment or order entails holding up the enforcement of the judgment or order, in whole or in part, until the appeal is determined . Staying proceedings entails putting the underlying proceedings on hold, in whole or in part, until the appeal is determined .
Rule 15(1): stay of execution of judgment
The scope of the rule
Rule 15(1) is concerned with the execution of judgments or orders against which an appeal has been taken .
As such, the Rule only applies to judgments or orders pursuant to which something falls to be executed or enforced: Mayrand v Mayrand (1982), 20 Sask R 263 (CA) . This “something” may or may not be conveniently and justly executed pending the disposition of the appeal, and it is here where the Rule finds its purpose . 2015 CanLIIDocs 293 The purpose of the rule
To the extent Rule 15(1) empowers a judge to lift or impose a stay of execution of a judgment or order under appeal, the basic purpose of the Rule is this: to prevent such prejudice, pending the determination of the appeal, as may arise between the date the appeal is launched and the date it is determined: Bank of Nova Scotia v Omni Construction Ltd. (1981), 14 Sask R 81 (CA) .
The goal is to ensure, to the extent reasonably possible, that the mere act of appealing does not work to the significant advantage or disadvantage of either party to the appeal: Ochapowace First Nation v Araya (1994), 123 Sask R 311 (CA) .
The operation of the rule
Rule 15(1) operates upon the service and filing of a notice of appeal . Hence, it is only engaged once an appeal has been launched, not before .
It follows that, where leave to appeal a decision is required, the Rule is not engaged unless leave to appeal is granted, and is then engaged only upon service and filing of the notice of appeal .
When engaged, the Rule operates to automatically stay the execution of all judgments or orders under appeal except those granting relief in the nature of: • mandamus • injunction
126 Civil Appeals in Saskatchewan R. 15
• alimony, or • maintenance .
The execution of judgments or orders falling within these exceptions may be stayed on order of the judge appealed from or a judge of the Court of Appeal, but the execution of judgments or orders of this nature is not automatically stayed, as are other judgments or orders .
When Rule 15(1) inapplicable
Since the Rule is concerned with staying the execution of a judgment or order pending appeal (not the judgment or order itself or the underlying proceedings), the Rule does not apply if the judgment or order leaves nothing to be executed: Mayrand v Mayrand (1982), 20 Sask R 263 (CA) at 264: 4 Both parties appear to have misconceived the effect of the stay imposed by Rule 15(1) insofar as it affects the present appeal . The parts of the Rule material to the present case provide “… 2015 CanLIIDocs 293 upon an appeal being filed, execution of the judgment appealed from shall be stayed pending the disposition of the appeal ”. It is noted that only “execution of the judgment” is stayed . Here, the “judgment appealed from” consists of an order of dismissal of an interlocutory application [to transfer proceedings in the Unified Family Court from one judicial centre to another] . The judgment does not direct that anything be executed . There is, therefore, nothing to stay . Accordingly, Rule 15(1) in the present factual situation is of no moment . 5 The parties appear to have attributed to the stay imposed by Rule 15(1) a scope that is totally unwarranted . The Rule does not impose a general stay of proceedings bringing to a halt all proceedings in the action as would an order of a court directing a stay of all proceedings . The Rule imposes a stay of only one proceeding: the execution of the judgment appealed from . It follows that the wife may make her application to the Unified Family Court without any order of this court under Rule 15(1) .
See, too: Canadian Pioneer Petroleums Inc. v Federal Deposit Insurance Corp., [1984] 3 WWR 765, 34 Sask R 51 (CA); Madech Mortgage Corp. v Kensington Developments Inc., 2000 SKCA 54 .
Rule 15(1) does not apply to judgments or orders of the following kind because they leave nothing to be executed, namely judgments or orders:
Part Two The Court of Appeal Rules (Civil) 127 R. 15
• Dismissing an interlocutory application to transfer the proceedings from one judicial centre to another: Mayrand v Mayrand. • Vacating an ex parte injunction: Canadian Pioneer Petroleums Inc. v Federal Deposit Insurance Corp. • Granting a divorce on severance of the issues pertaining to corollary relief: Bast v Bast (1990), 89 Sask R 264, 30 RFL (3d) 181 (CA) . • Setting aside a ministerial order authorizing the drilling of an oil well: Kennibar Resources Ltd. v Saskatchewan (Minister of Energy and Mines) (1990), 90 Sask R 127 (CA) . • Dismissing an application for variation of a child custody order: Orr v Bzowey, 2005 SKCA 86, 262 Sask R 310 . • Declaring that counsel was precluded from acting on behalf of a litigant by reason of a conflict of interest: Shingoose v Harripersad, 2005 SKCA 102, 275 Sask R 125 . • Setting aside an indefinite adjournment by a board of arbitration for the purpose of awaiting the outcome of disciplinary proceedings: 2015 CanLIIDocs 293 Saskatchewan Union of Nurses v Sherbrooke Community Centre (1996), 141 Sask R 161 . Nor does Rule 15(1) apply to a judgment granting a divorce . The reason for this is that subsection 12(3) of the Divorce Act, RSC 1985, c 3 (2d Supp), specifically provides for when a judgment for divorce takes effect in the event an appeal from the judgment is launched within the prescribed appeal period: Bast v Bast .
Practice Tip
Contrary to the view once held by the Maintenance Enforcement Office, Rule 15(1) does not serve to stay the enforcement by that office of a spousal support order: Goudy v Malbeuf, 2005 SKCA 144.
When Rule 15(1) applicable
General principles
The power of a judge to lift or impose a stay of execution of a judgment or order under Rule 15(1) is a discretionary power that falls to be exercised judicially on the basis of justice and appropriateness: Tekarra Properties Ltd. v Saskatoon Drug and Stationery Co. (1985), 17 DLR (4th) 155, 37 Sask R 286 (CA) [Tekarra Properties] .
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The object is to “minimize prejudice” and “arrive at a result which is fair and equitable as between the contending parties”: Bank of Nova Scotia v Omni Construction Ltd. (1981), 14 Sask R 81 (CA) [Omni Construction] .
On application of the Rule the question is “whether the automatic stay creates an injustice against which some relief should be given”: MacKay Construction Ltd. v Potts Construction Co. (1983), 25 Sask R 81 (CA) . “The underlying objective is to prevent injustice and to ensure that the result is as fair and equitable as possible for all sides”: Gerski v Gerski, 2006 SKCA 66, 285 Sask R 121 . To this end it is necessary “to balance the competing interests of the respondent who has been successful against those of an appellant who ought not to be prejudiced simply by appealing”: Ochapowace First Nation v Araya (1994), 123 Sask R 311 (CA) .
The power to lift a stay of execution pending appeal will not be exercised where the lifting of the stay would render the appeal nugatory or wholly moot: Farm Credit Canada v Agristar Produce (Sask.) Ltd., 2005 SKCA 36, 269 Sask R 55; Sinclair v Hlady, 2013 SKCA 112, 427 Sask R 1 .
As was held to be the case in Tekarra Properties, Rule 15(1) allows for imposing 2015 CanLIIDocs 293 or lifting a stay in whole or in part, and with or without conditions, including conditions for: • payment of money into court • securing and investing the proceeds of execution and garnishment, and • payment of interest thereon .
This is so notwithstanding the implications to the contrary contained in the older cases of Leskovar v Saskatchewan Government Insurance Office (1964), 51 DLR (2d) 190 (Sask CA), and Regina Steam Laundry Ltd. v Saskatchewan Government Insurance Office (1970), 15 DLR (3d) 121 (Sask CA) .
Hence, the power conferred by Rule 15(1) is not necessarily limited to either lifting the stay or leaving it intact (or imposing a stay or not imposing it), as though there were no mid-ground . The reason for this was explained in Tekarra Properties: [6] …In many situations a stay is clearly unjust to one side, but to remove the stay is clearly unjust to the opposite side . What is just is something in between . If that something is outside the reach of the Rule, then the Rule becomes an instrument of injustice—a purpose one can confidently say was not intended by the promulgators of the Rule .
See, too: Omni Construction, wherein it was held, in recognition of “modern economic conditions and practice”, that the scope of the Rule should be taken to allow for lifting the stay of execution on condition that any monies realized on
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execution or garnishment be held in trust and invested by the sheriff pending the determination of the appeal .
It is unlikely, however, that the scope of Rule 15(1) is sufficiently wide to allow for the making of an order declaring that the service and filing of a notice of appeal does not effect a stay: Kennibar Resources Ltd. v Saskatchewan (Minister of Energy and Mines) (1990), 90 Sask R 127 (CA); Saskatchewan Union of Nurses v Sherbrooke Community Centre (1996), 141 Sask R 161; and Gerski v Gerski, 2006 SKCA 66, 285 Sask R 121 .
The scope of the Rule has been taken to allow for a stay to be lifted, despite having been left intact on an earlier occasion featuring companion proceedings, where (i) further proceedings had been taken in the meantime, and (ii) there had been a material change of circumstances in the interval: F.M.I. Developments Ltd. v 1269917 Alberta Ltd., 2011 SKCA 94, 375 Sask R 175 .
Rule 15(1) does not empower a judge to stay the execution of a judgment of the Court of Appeal pending an application for leave to appeal that judgment to the Supreme Court of Canada: Blass v University of Regina Faculty Association, 2015 CanLIIDocs 293 2011 SKCA 48, 371 Sask R 158 . The matter is governed by section 65 of the Supreme Court Act, RSC 1985, c S-26, and the indicia set forth in RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311, and Nova Scotia (Minister of Community Services) v B.F., 2003 NSCA 125, 219 NSR (2d) 67 .
Specific application of the general principles
Injunction
The Rule does not stay the execution of an order granting interlocutory injunctive relief enjoining one party from apparently infringing on the trademark of another pending trial . However, a stay was imposed where, pending the determination of the appeal, the enjoined party was apt to suffer significant financial disadvantage and the appeal could be determined expeditiously: Trail-Rite Flatdecks Ltd. v Larcon Investments Ltd. (1987), 61 Sask R 163 (CA) .
Vesting order
An order was made in the Court of Queen’s Bench vesting title to land in a secured creditor free of encumbrances (including a municipal tax lien), on condition the bulk of the arrears of taxes be paid to the municipality and the remainder be paid into court . On appeal the execution of the order was automatically stayed . However, the stay was lifted (allowing the secured party to sell the land free of the tax lien), in recognition of the fact (i) the money paid into court stood in place of the land and (ii) the municipality’s interest in the funds and its ability to present
130 Civil Appeals in Saskatchewan R. 15 its case would be preserved: Farm Credit Canada v Agristar Produce (Sask.) Ltd., 2005 SKCA 36, 269 Sask R 55 .
Appointment of receiver or inspector
The automatic stay provided for by Rule 15(1) applies to a receivership order made under the Bankruptcy and Insolvency Act, RSC 1985, c B-3 . But it operates only to stay the exercise of the powers of the trustee, not the bankruptcy adjudication . And the stay may be lifted, at least in part, to allow the trustee to take some steps pending the determination of the appeal: Saskatoon Sound City (Bankrupt), Re (1989), 80 Sask R 226 (CA) .
Similarly, the automatic stay applies to an interim order appointing an inspector to follow up on a finding of oppressive conduct under section 222 of The Business Corporations Act, RSS 1978, c B-10 . But the stay may be lifted to permit the inspector to carry out his or her responsibilities pending the determination of the appeal where it would be prejudicial to the financial interests of the plaintiffs should the inspector be unable to act: Aquino v First Choice Capital Fund Ltd. 2015 CanLIIDocs 293 (1995), 134 Sask R 241 (CA) .
Damage awards
Where an award in the sum of $50,000 was recovered against a third party at trial, the automatic stay of execution of the judgment imposed by Rule 15(1) was lifted on condition that any amounts realized by execution or garnishment be held in trust by the sheriff pending the outcome of the appeal, with directions to the sheriff that the funds be invested in an interest-bearing account or a guaranteed investment certificate acceptable to the solicitors:Bank of Nova Scotia v Omni Construction Ltd. (1981), 14 Sask R 81 (CA) .
Conversely, where an award of damages in the amount of $140,000 was made at trial, the automatic stay of execution of the judgment was left intact on condition this sum be paid into court within thirty days and be invested in an interest-bearing account or guaranteed investment certificate acceptable to the solicitors for the parties, with leave to apply for further directions in the event of disagreement: MacKay Construction Ltd. v Potts Construction Co. (1983), 25 Sask R 81 (CA) .
Following an award of damages in the amount of $136,721 .22 at trial, an appeal was taken and the execution of the judgment was automatically stayed . However, on order made by a judge of the court the stay was lifted on condition that any sums realized pursuant to the execution be held in trust by an officer of the court and invested in an interest-bearing account or guaranteed investment certificate pending the determination of the appeal . This order was upheld by
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the court, confirming that orders of this nature may be made under Rule 15(1) notwithstanding older case law suggesting the contrary: Tekarra Properties Ltd. v Saskatoon Drug and Stationery Co. (1985), 17 DLR (4th) 155, 37 Sask R 286 (CA) . (For the history and significance of this decision relative to the older case law, see: Horseshoe Creek Farms Ltd. v Sterling Structures Co. Ltd. (1982), 15 Sask R 54 (CA), and the cases cited therein .)
Where an award of damages in the amount of $2,643,224 was made at trial, the stay was left intact on condition the appellants: (i) pay into court the sum of $2 million plus accrued interest thereon (less amounts previously paid on account of the judgment); (ii) deposit with the court a letter of credit, in terms to be agreed to by the parties, to secure payment of the balance of the judgment; and (iii) comply with these conditions within 30 days . Failing that, it was directed that the stay be lifted to the extent of non-compliance and that any monies realized be paid into court to await the determination of the appeal . In the circumstances, it was also directed, upon payment of monies into court: (i) that an amount equivalent to one-half of the judgment (less amounts previously paid) be paid forthwith to the
respondents on a pro rata basis; (ii) that the funds remaining in court be invested 2015 CanLIIDocs 293 in securities as may be agreed to by the parties; and (iii) that these funds be paid out as directed by the court upon the disposition of the appeal: Rieger v Burgess (1986), [1987] 1 WWR 285, 53 Sask R 201 (CA) . (For payment out of court after the disposition of the appeal, see Rieger v Burgess, [1988] 4 WWR 577, 66 Sask R 1 (CA) .)
The stay of execution of a judgment consisting of an award of $90,449 .74, plus punitive damages in the amount of $30,000, was partially lifted pending appeal, allowing the plaintiff to proceed to execution (except in relation to the punitive damages), provided the funds realized on execution be held in trust by the sheriff and invested in an interest-bearing account or certificate pending the determination of the appeal: Saskatchewan Wheat Pool v Feduk, 2002 SKCA 24, 217 Sask R 131 .
The stay of execution of a judgment for damages in an action grounded in breach of fiduciary duty, fraud, and conspiracy was lifted so as to minimize the risk of dissipation of assets and allow for enforcement of the judgment under The Enforcement of Money Judgments Act, SS 2010, c E-9 .22, but subject to a number of conditions related to the cost of enforcement proceedings, the operation of that Act, and the need to ensure that the proceeds of enforcement be secured pending appeal: Stecyk v Smysniuk, 2013 SKCA 106, 423 Sask R 259 .
Recovery of debt
The plaintiff obtained judgment for the recovery of a debt . The defendant appealed and, in consequence, execution of the judgment was stayed pending
132 Civil Appeals in Saskatchewan R. 15 the determination of the appeal . On application then being made by the plaintiff, the stay was lifted so as to allow the plaintiff to proceed to execution of its judgment, including the award of costs, but only on condition that: (i) any amounts realized by execution or garnishment be held in trust by the sheriff and invested pending the hearing of the appeal; and (ii) should the defendant file with the registrar an acceptable letter of credit guaranteeing payment of the judgment (costs included), the operation of the order lifting the stay would itself be stayed: Domco Construction Inc. v Aliva Holdings Inc., 2004 SKCA 62 .
Family property
On a trial concerning the division of family property valued at approximately $1 million, the wife was awarded five quarter-sections of farmland and $40,800 in cash payable by installment . The husband appealed and, in consequence, execution of the judgment was stayed . On application by the wife to lift the stay, it was decided (over the objection of the husband that the lifting of the stay would render the appeal nugatory), that the stay should be partially lifted 2015 CanLIIDocs 293 so as to allow the wife to take possession of four of the five quarter-sections, valued at $253,075, and realize payment of the first installment of cash . It was noted that: (i) the wife was undoubtedly entitled to a substantial portion of the family property; (ii) she was financially pressed; (iii) she would suffer prejudice should the stay not be lifted to this extent; and (iv) the husband would suffer no prejudice were the stay to be lifted to this extent: Ross v Ross (1984), 37 Sask R 290 (CA) .
Similarly, the stay of execution of a judgment dividing the family property between the parties was partially lifted by vesting two quarter-sections of farmland in the wife, consistent with the award at trial, and granting her possession of and the right to farm the land on condition she not sell or encumber it pending the determination of the appeal . In addition, the husband was restrained from disposing of assets except for specified purposes: Qually v Qually (1987), 61 Sask R 188 (CA) .
An order was made partially lifting the stay of execution of a judgment ordering the division of family property so as to accommodate the request of the husband for payment out of court to him of $100,000 of the $992,067 held in court as a result of the proceedings: Propp v Propp, 2013 SKCA 126, 427 Sask R 47 .
The stay of execution in relation to a judgment awarding the wife $29,057 was lifted, provided $5,000 of the amount realized on execution be held in an interest- bearing account by the sheriff pending the determination of the appeal: Eftoda v Eftoda (1987), 61 Sask R 206 (CA) .
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Judgment dividing the family property of the parties was issued in the Court of Queen’s Bench awarding the wife $241,434 to be paid by way of immediate payment of $102,129, followed by payment of annual installments of $33,861 each . The husband appealed, and accordingly, execution of the judgment was stayed . The stay was left intact but on condition the husband pay the wife the $102,129, together with the first installment (which was then due), within 30 days: Balasch v Balasch (1986), 55 Sask R 12 (CA) .
Following the pronouncement of judgment dividing the family property of the parties, the husband appealed and in consequence execution of the judgment was stayed . He later applied to lift the stay so as to enable him to transfer certain parcels of real property . His application was dismissed, leaving the stay intact, for the reason that lifting the stay would be unfair to the wife because: (i) lump sum spousal support was owed to her; (ii) orders for the payment of costs remained unsatisfied; and (iii) the division of all of the property was in issue on the appeal . It was noted that, while the husband had offered to pay the lump sum into court, and while the wife could file a writ of execution against the real property, lifting
the stay would still be unfair to her: Riley v Riley, 2010 SKCA 88, 359 Sask R 128 . 2015 CanLIIDocs 293 (For judgment on appeal, see 2011 SKCA 5, 366 Sask R 110 .)
Child custody and access (generally)
The automatic stay of child custody and access orders, whether interim or final, may be lifted in whole or in part pending the determination of the appeal . The primary focus is on the best interests of the child, as explained in Wiegers v Gray, 2007 SKCA 30: [1] Applications of this nature, which is to say applications to lift the stay of execution of orders respecting the custody of a child, are heavily driven by the best interests of the child: Ebenal v. Ebenal, 2003 SKCA 130; Bader v. Styranka, 2004 SKCA 55 . It is thus necessary to approach these applications from the perspective of the child and the child’s welfare . Generally, the central question is how the child is apt to be affected, should the stay be lifted or allowed to remain in place pending the determination of the appeal, having regard for such considerations as the potential for harmful disruption in the life of the child should the appeal succeed .
Child custody
Having regard for the above statement of general principle, the automatic stay of execution imposed by Rule 15(1) was lifted in relation to a final custody order directing that the primary residence of the children remain with the mother even
134 Civil Appeals in Saskatchewan R. 15 though she intended, over the objection of the father, to move to Florida with the children . The stay was lifted for the essential reasons that this would: (i) accord with the best interest of the children as determined at trial; (ii) allow the children to continue in the care of their mother, in whose care they had been for many years; and (iii) permit access by the father as had been agreed upon between the parties: Hayden v Dahl, 2008 SKCA 30, 307 Sask R 274 . See, too: D.M.M. v H.R.M., 2009 SKCA 103, 337 Sask R 180 .
In a similar vein it was decided to lift the stay of execution of an interim child custody order directing that the primary residence of a school-aged child be with his father in Vanscoy, though the mother resided in Saskatoon and had objected to the father’s move to Vanscoy . The stay was lifted for the primary reason that this would allow the child to remain in school in Vanscoy, in accordance with the best interests of the child as determined in the court below following a viva voce hearing: Atchison v Atchison, 2001 SKCA 89, 213 Sask R 221 .
Likewise, the stay of execution of an interim order granting the mother custody of
an infant child was lifted in the best interests of the child, where the father, before 2015 CanLIIDocs 293 the order was granted, had taken the child to Ontario and refused to return her to Saskatchewan even though the mother had been the primary caregiver: Bader v Styranka, 2004 SKCA 55 .
Having regard for the principle that “the interests of the children are obviously the overriding considerations”, it was decided to lift the stay of execution of an interim order directing that, until the matter could be determined on a viva voce hearing in the Queen’s Bench, the primary residence of the children was to remain with the mother in Shellbrook, notwithstanding the desire of the mother to move to Saskatoon with the children over the objection of the father . The fact the judge who made the order was satisfied this was in the best interests of the children, combined with the fact the hearing below was set to proceed within five weeks, weighed in favor of lifting the stay . So, too, did the need to guard against disruption in the lives of the children, particularly in relation to their schooling and their social and other relationships: Stochmanski v Stochmanski, 2005 SKCA 58, 262 Sask R 232 .
On the premise “the interest of the child was of paramount concern” it was decided to lift the stay of execution of a final custody order directing that the primary residence of the child be with the father in Saskatchewan, rather than with the mother who had removed the child to British Columbia, even though this would entail a transfer of the child from British Columbia to Saskatchewan pending the determination of the mother’s appeal . In the circumstances, this was held to be in the best interests of the child, having regard for the fact, among others, that the parties had worked out an arrangement for the transfer of the child and were attempting to work out a plan of access . Two-thirds of the cost of the transfer was
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directed to be borne by the father, with the mother to bear the remaining third, and the parties were given leave to apply for further directions should it become necessary to do so: R.M.S. v P.J.M., 2007 SKCA 14, 293 Sask R 3 .
An application to lift the stay imposed by an appeal of an interim custody order entrusting the custody of the children to their mother was denied, and the stay left intact, on the basis the best interests of the children indicated they should remain with their father pending disposition of his appeal because of the length of time they had been with him and because they were attending school at his place of residence: Judd v Judd, 2007 SKCA 13 .
Upon review and application of the relevant principles, the stay of execution of an interim custody order providing that the oldest child attend kindergarten in Pike Lake (where the mother resided) rather than in Saskatoon (where the father resided), was lifted so as to preserve the status quo (including the stability of the children’s schedule), and to minimize the opportunity for conflict: Elias v Elias, 2008 SKCA 101, 311 Sask R 183 .
The stay of an interim order for joint custody, where the child was being breastfed, 2015 CanLIIDocs 293 was lifted in part and maintained in part to accommodate the special needs of the child: Bachorcik v Bachorcik, 2011 SKCA 46 .
The stay of a relatively short-term interim custody and access order providing for highly detailed access to a kindergarten-aged child (whose father, the designated primary caregiver, lived in Debden and whose mother lived in Fort McMurray) was lifted in the best interests of the child so as to allow the child to spend time with the mother even though this meant the child would miss two days of kindergarten per month, as well as some extra-curricular activities, for otherwise the child would be deprived of contact with the mother: Wutzke v Bittner, 2012 SKCA 15, 385 Sask R 235 .
The stay of an interim custody order providing for structured access to an infant child by the father, after the mother had arbitrarily moved from the jurisdiction with the child, was lifted, but: (i) the terms of the order were modified to accommodate the lapse of time; (ii) the parties were encouraged to attend a scheduled pre-trial conference in Queen’s Bench pending the determination of the appeal; and (iii) the stay of proceedings in Queen’s Bench, assuming they were stayed by operation of Rule 15(4), was lifted so as to allow the pre-trial conference to proceed: Jochems v Jochems, 2013 SKCA 53, 414 Sask R 201 . (For the final disposition of this appeal, see 2013 SKCA 81, 417 Sask R 232 .)
An application to lift the stay of execution of afinal order for custody and access was denied, but the de facto arrangements then in place were continued subject to directions: Aalbers v Aalbers, 2011 SKCA 156, 385 Sask R 141 .
136 Civil Appeals in Saskatchewan R. 15
Practice Tip
Orders providing for the lifting of the stay or otherwise in relation to child custody orders may be made on condition, including the condition the child not be removed from the jurisdiction pending appeal and, in the case of an interim order, that the appellant take all necessary and reasonable steps to expedite the proceedings in the court below: Reimer v Reimer (1985), 47 RFL (2d) 442 (Sask CA).
Child access
The stay of execution of an interim access order affording the father (who lived in Regina) access to his children (who lived with their mother in Toronto), was lifted over the objections of the mother . She was concerned that once the children flew to Regina to visit their father, he may not return them to Toronto . While the order did not expressly require him to do so, it provided for a visit of fixed duration and was therefore taken to have implicitly required 2015 CanLIIDocs 293 the father to return the children to the mother on conclusion of the visit . But the stay was lifted on condition the father, when purchasing tickets to fly the children to Regina, purchase return tickets to Toronto: Stevenson v Saunders, 2005 SKCA 99 .
An application by the father to stay the execution of an interim access order providing access and directing an oral hearing because of conflicting affidavit evidence was denied, and the stay left intact, on the grounds the hearing below was imminent and the lifting of the stay would disrupt the child’s existing routine . While the application was denied, leaving the stay intact, Rule 15(4) was invoked so as to allow the Queen’s Bench to make such changes regarding custody and access as may be appropriate pending the hearing of the appeal: Causevic v Causevic, 2007 SKCA 91, 304 Sask R 274 .
The stay of execution of an interim custody order permitting the father access by way of visits with the children under professional supervision (subject to review after four weeks), was lifted over the objections of the mother who was concerned about the father visiting the children while under the influence of alcohol or drugs . The stay was lifted in view of the fact that: (i) the mother had not contested access; (ii) the arrangement was subject to review after four weeks; and (iii) the order required professional supervision of the visits, a requirement that served to meet the mother’s concerns . Since she had failed to perfect her appeal in accordance with the Rules, she was directed to perfect it promptly, failing which the father was given leave to apply to have the appeal
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exposed to dismissal for want of prosecution under Rule 46: Wakaluk v Leibel, 2008 SKCA 109 .
The stay of execution of an interim order allowing the father weekend access to an infant child was partially lifted so as to allow the father to have the child during the day, while the mother was working, but not overnight since the child was still being breastfed: Bachorcik v Bachorcik, 2011 SKCA 46 .
An application to lift the stay of execution of an order granting the father supervised access to his daughter was adjourned sine die, rather than determined, because the hearing of the appeal was imminent and an application to adduce fresh evidence on appeal was pending: H.F. v M.R., 2008 SKCA 26 .
In Tucker v Lester, 2002 SKCA 85, a grandmother obtained an interim order for specified access to her grandchildren . The parents then appealed, and the grandmother applied to lift the stay or, alternatively, for directions to expedite the hearing of the appeal . The stay was lifted, as being in the best interests of the children . But the chambers judge observed that, since there existed little prospect of success on the appeal, and since the order below had been made on the strength 2015 CanLIIDocs 293 alone of affidavit evidence, what was needed was an expedited trial in preference to an expedited appeal . Hence, directions were given to the effect that, if the trial could not be expedited, the hearing of the appeal was to be expedited .
Practice Tip
On applications to lift the stay of execution of child custody and access orders, particularly interim orders, consideration should be given to seeking directions for expedited hearings in light of the court’s repeated emphasis on the need to have such issues resolved on their merit as soon as reasonably possible: Wilk v Wilk, (24 June 1987) (Sask CA) [unreported]. Such directions, in the case of interim orders of this nature, may include directions to expedite proceedings below and, failing that, to expedite the hearing of the appeal: Tucker v Lester.
Child support
The father appealed an order requiring him to pay arrears of child support at the rate of $500 per month . At the time the order was made, the oldest of the two children had attained the age of majority and the youngest was about to do so . After launching his appeal, the father applied for a stay of execution of the order . He argued that Rule 15(1) does not apply where a child is no longer
138 Civil Appeals in Saskatchewan R. 15 entitled to support and the arrears amount to a debt . It was held that the term “maintenance” found in Rule 15(1) includes arrears of maintenance: to hold otherwise would encourage delay in resolving child support obligations if they were to be converted into ordinary judgment debts . And to grant the stay would run counter to the principles of fairness and equity underlying the Rule, including the prevention of injustice . While the father would have to make the payments pending the hearing of the appeal, the appeal could be heard expeditiously and, should the father succeed, he would not be substantially out of pocket: Primeau v Primeau, 2004 SKCA 149, 257 Sask R 66 .
An application by the respondent to lift the stay of execution of an order securing arrears of child and spousal support by way of charge upon the appellant’s corporate property was allowed on the basis, among others, that the appellant (i) failed to file affidavit evidence regarding prejudice, and (ii) was not entitled for the purpose of the application to rely on the evidence adduced at trial: Hannah v Warner, 2008 SKCA 39, 307 Sask R 316 .
Other judgments or orders 2015 CanLIIDocs 293
On application made under section 33 of The Urban Municipality Act, RSS 1978, c U-11, the Court of Queen’s Bench ordered the removal of a person from the office of mayor . Following the launch of an appeal, the automatic stay of execution of the order was lifted, without conditions, pending the hearing of the appeal: Brisebois v Chabot (1987), 61 Sask R 202 (CA) .
The automatic stay of execution of an order made by a human rights tribunal granting the complainant a monetary award was left intact on the ground that lifting the stay would be unfair because, if the appeal succeeded, the complainant was unlikely to be able to repay the amounts paid to him pending the hearing of the appeal: Regina (City) v Kivela, 2006 SKCA 2 .
Rule 15(2): stay of proceedings re interlocutory orders
The operation of the rule
Rule 15(2) empowers a judge, upon granting leave to appeal from an interlocutory order, to give directions pertaining to a stay of proceedings .
As remarked upon in the introductory note to Rule 15, Rule 15(2) is of limited application—limited, that is, by its specific subject matter, namely the potential stay of proceedings upon an appeal of an interlocutory order .
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The purpose of the rule
The meaning of Rule 15(2) is clear enough, but when the rule is read in conjunction with Rules 15(1) and (4), its intended purpose is obscure .
The reason for this is twofold . First, if leave is granted to appeal an interlocutory order as contemplated by Rule 15(2), and the order is such as to leave something to be executed, then upon serving and filing the notice of appeal Rule 15(1) would seem to apply so as to automatically stay the execution of the order . Second, once Rule 15(1) applies, so does Rule 15(4), which serves to stay further proceedings unless otherwise ordered . Hence, the role of Rule 15(2) is difficult to discern . Nor, it seems, has Rule 15(2) come in for interpretation or, for that matter, reported application .
It may be that Rule 15(2), which applies only in the context of an appeal of an interlocutory order, was meant to apply in the event Rules 15(1) and (4) should not apply for one reason or another . They would not apply, for example, where an interlocutory order leaves nothing to be executed . In that event, the 2015 CanLIIDocs 293 proceedings below would be untouched by Rule 15(4), meaning they would not be stayed pending the determination of the appeal of the order . Nor, but for Rule 15(2), would there then exist any mechanism to stay the proceeding below, even though their stay in whole or in part may be desirable pending the determination of the appeal .
By way of further example, Rules 15(1) and (4) would not apply between the date leave to appeal an interlocutory order is granted and the date the notice of appeal is served and filed, for Rule 15(1) only operates upon the service and filing of a notice of appeal . And as many as 10 days may elapse between the grant of leave to appeal and the service and filing of the notice of appeal as per Rule 11(2) .
Hence, one conceivable purpose of Rule 15(2) is to empower a judge, in the context of granting leave to appeal an interlocutory order, to do what the judge might otherwise be precluded from doing by reason of the fact Rule 15(1), and therefore Rule 15(4), does not apply in the circumstances of the case .
Or the purpose may lie in the particular attributes of an appeal of an interlocutory order and the potential effect of such an appeal on the proceedings below . Depending upon the nature of the interlocutory order under appeal, there may or may not be a need to hold the proceedings below in abeyance, pending the disposition of the appeal . If such proceedings can conveniently and effectively move forward despite the appeal, it will be neither necessary nor desirable in the interests of efficiency to stay them . If not, they may have
140 Civil Appeals in Saskatchewan R. 15 to be stayed in whole or in part until the appeal is determined . For example, an appeal of an interlocutory order granting some form of interim relief pending the disposition of the case might have no appreciable bearing upon the continuation of the proceedings below, whereas other forms of interlocutory order might do so .
However, until such time as Rule 15(2) is interpreted, or comes in for reported application, it is difficult to say much more of the Rule than this: it clearly empowers a judge, upon granting leave to appeal an interlocutory order, to give directions as to staying proceedings . The word “proceedings”, as it appears in the Rule, presumably extends to proceedings related to the order, including proceedings in the court or other forum below, as well as proceedings on appeal .
Rule 15(3): staying enforcement of writ of execution
Rule 15(3) states that where a writ of execution has been issued but is stayed because of an appeal, the appellant may obtain a certificate from the registrar confirming that the enforcement of the writ is stayed pending appeal, and may 2015 CanLIIDocs 293 then deposit the certificate with the sheriff to ensure the writ is not acted upon until the appeal is determined .
Thus, Rule 15(3) provides the mechanism to effectively forestall the enforcement of a judgment which, while ordinarily amenable to enforcement by the sheriff, is under appeal and, in consequence, cannot be properly enforced unless the automatic stay imposed by Rule 15(1) is lifted .
Rule 15(3) was adopted prior to the enactment of The Enforcement of Money Judgments Act, SS 2010, c E-9 .22, which abolished writs of execution as such and substituted other means of enforcing judgments subject to enforcement by the sheriff pursuant to this Act . Hence, the Rule is dated and falls to be read and applied in light of the changes wrought by this enactment, bearing in mind the automatic stay of execution or enforcement provided for by Rule 15(1) .
Practice Tip
To ensure the sheriff is informed of an appeal of a judgment subject to enforcement under The Enforcement of Money Judgments Act, and does not move to enforce the judgment notwithstanding a stay imposed by Rule 15(1), the registrar may still be asked to issue a certificate of the kind contemplated by Rule 15(3) and will do so upon request.
Part Two The Court of Appeal Rules (Civil) 141 R. 15
Rule 15(4): staying further proceedings
The scope and operation of the rule
As remarked upon in the introductory note to Rule 15, Rule 15(4) is concerned with the stay of proceedings consequent upon a stay of execution or enforcement of a judgment or order under appeal .
As such, the Rule operates in conjunction with Rule 15(1), so that when the execution of a judgment or order is stayed pending appeal, as per Rule 15(1), all further proceedings in the action are likewise stayed unless otherwise ordered . All further proceedings are stayed, that is, except the issue of the judgment and the taxation of costs under the judgment .
This stay of proceedings is automatic, which is to say it comes into effect automatically whenever the execution of a judgment or order is stayed pending the disposition of the appeal of that judgment or order . And the stay remains in effect unless otherwise ordered . 2015 CanLIIDocs 293
The application of the rule
Rule 15(4) only applies where the execution of a judgment or order has been stayed, either by operation of Rule 15(1) or by an order made under Rule 15(2): Orr v Bzowey, 2005 SKCA 86, 262 Sask R 310 .
The Rule does not appear to permit a judge of the court to stay criminal proceedings in the Court of Queen’s Bench pending an appeal from an order regarding disclosure, for the Rule is not incorporated into the Criminal Appeal Rules: R v McCullough, 2000 SKCA 128, 199 Sask R 229 .
Where the execution of an interim child custody and access order was stayed pursuant to Rule 15(1), but an oral hearing in Queen’s Bench regarding the matter was scheduled to proceed in two weeks time, an order was made under Rule 15(4) directing that the stay of proceedings imposed by Rule 15(4) not prevent a Queen’s Bench judge from proceeding with the hearing and making such changes to the interim custody and access order as he or she may find appropriate: Causevic v Causevic, 2007 SKCA 91, 304 Sask R 274 .
The automatic stay of proceedings imposed by Rule 15(4) in relation to a family property order was lifted but only to the extent of allowing the party in whose favor the order was made to secure her interest as contemplated by the order: Aalbers v Aalbers, 2011 SKCA 156, 385 Sask R 141 .
Applications by the parties to selectively lift a stay of proceedings in relation to a final order for custody and access were dismissed for the reason this would serve
142 Civil Appeals in Saskatchewan R. 15 in the circumstances to delay the resolution of the appeal and likely give rise to a further appeal: Aalbers v Aalbers .
Practice Tip
For the practice in the Court of Queen’s Bench, when the proceedings are said to be stayed by operation of Rule 15(4), see, for example: Silver Developments Ltd. (Trustee of) v Investors Group Trust Co., [1999] SJ No 301 (QL) (QB), and Bzowy v Grover, 2005 SKQB 241, 264 Sask R 243.
Preservation of status quo: inherent jurisdiction
General principles
If for any reason Rule 15 should not apply, a judge of the court may nevertheless be
empowered to grant relief analogous to that contemplated by Rule 15, which is to 2015 CanLIIDocs 293 say relief in the form of order preserving the status quo, pending the determination of an appeal, so as to prevent the frustration of the appeal .
The authority of a single judge in chambers to do so is often taken to lie in Blackwoods Beverages Ltd. v Dairy Employees, Truck Drivers and Warehousemen, Local No. 834 (No. 1) (1956), 3 DLR (2d) 529, 18 WWR 481 (Sask CA) [Blackwoods Beverages] .
Blackwoods Beverages involved an application made directly to the Court of Appeal by a company of that name for judicial review of an order made by the Labour Relations Board directing the reinstatement of certain employees and awarding them monetary relief . More particularly, the company applied to the Court of Appeal for an order in the nature of certiorari quashing the order of the Board . On filing its application, the company applied successfully to a judge of the court in chambers for an interim order staying the reinstatement of the employees (and any further proceeding in that regard), pending the determination of the case for judicial review . Shortly afterwards, the company asked the court to confirm the interim order . The court did so, saying this of the matter at page 533 (DLR): In considering the application to quash the order of [the Board], the Court is exercising its inherent jurisdiction . In the exercise of that jurisdiction the Court has not only the right, but the duty, to preserve the rights of the parties as nearly as possible in statu quo until the merits can be fully tried . In granting the interim stay and continuing the same until the final disposition of the original application, the Court is doing that which it has
Part Two The Court of Appeal Rules (Civil) 143 R. 15
a right to do and, under the facts disclosed herein, a duty to do . I think it is abundantly clear, that to hold otherwise, would be a surrender by the Court of its rights and jurisdiction and could only result in confusion and uncertainty in every application of this nature, a result most undesirable and detrimental to all bona fide litigants .
The court then went on to observe that this approach “is in accordance with recognized Crown practice procedure” as provided for by Rule 46 of The Crown Practice Rules, including those expressly empowering the court or a judge of the court, on granting leave to apply for an order of prohibition or certiorari, to direct a stay of the proceedings in question pending determination of the application .
Blackwoods Beverages is an unusual case in the sense that: (i) the proceedings did not constitute an appeal but an application for judicial review and, therefore, engaged the court’s original supervisory jurisdiction rather than its appellate jurisdiction; (ii) the practice pertaining to the exercise of original supervisory
jurisdiction relative to prohibition and certiorari was then governed by The Crown 2015 CanLIIDocs 293 Practice Rules; (iii) The Crown Practice Rules expressly authorized the court or a judge of the court to order a stay of proceedings pending determination of an application for judicial review; and (iv) the court drew upon both its inherent jurisdiction and the jurisdiction committed to it by The Crown Practice Rules when confirming the interim order preserving the status quo pending the determination of the case on its merits .
In light of the foregoing, it seems, some of the subsequent case law having to do with preventing the frustration of an appeal by means of an order preserving the status quo pending the hearing of the appeal, exhibits a tendency toward guarded expression of principle with respect to the jurisdiction of a judge of the court (as distinct from the court), to preserve the status quo pending the hearing of an appeal . Still, such orders have been made from time to time without hesitation .
Application of the general principles
Pending the hearing of an appeal from an order of a judge of the Court of Appeal dismissing an application for leave to appeal a final judgment of the Court of Queen’s Bench, which required one of the parties to deliver two items of farm equipment to the other, another judge of the Court of Appeal, acting on the authority of Blackwoods Beverages Ltd. v Dairy Employees, Truck Drivers and Warehousemen, Local No. 834 (No. 1) (1956), 3 DLR (2d) 529, 18 WWR 481 (Sask CA) [Blackwoods Beverages], made an order staying execution of the judgment so as to preserve the status quo until the issue over the refusal to grant leave was resolved: International Harvester v Baschuk (1985), 44 Sask R 228 (CA) .
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“There are dicta which suggest that an order can be made by a judge in chambers to preserve the status quo” pending appeal, but where the relief sought on an application to preserve the status quo went well beyond this and amounted to the very relief sought on the appeal proper, the sought-after relief was denied: Taylor v Eisner (1989), 80 Sask R 84 (CA): A Chambers judge of this court sitting alone cannot, of course, grant the entire relief to be granted by the court on the appeal proper . There are dicta which suggest that an order can be made by the Chambers judge to preserve the status quo, but an order of the kind suggested, ordering the cow elk to be bred with a Manitoba bull to be provided by the appellant, when this is contrary to the wishes of the respondents, is in my view outside the power of a judge sitting in Chambers in this court .
“Assuming (without deciding) that a judge of the Court of Appeal has the jurisdiction” to preserve the status quo by means of an injunction restraining the removal of a tenured university professor pending the determination of an appeal of a decision made below refusing such relief, the applicant would 2015 CanLIIDocs 293 have to make out a sufficient case for an injunction in accordance with Manitoba (Attorney General) v Metropolitan Stores (MTS) Ltd., [1987] 1 SCR 110, including a case of irreparable harm: Kim v University of Regina (1990), 85 Sask R 166 (CA) .
On an application to stay disciplinary proceedings by the Saskatchewan Registered Nurses Association pending an appeal challenging the Association’s jurisdiction, a judge of the court granted the sought-after stay on the primary authority of Blackwoods Beverages: Knutson v Saskatchewan Registered Nurses’ Association (1990), 87 Sask R 89 (CA) .
To preserve the status quo and prevent the frustration of an appeal, an ex parte order was made by a judge of the Court of Appeal to stop payment of a cheque issued by the registrar of the Court of Queen’s Bench pursuant to a judgment after trial directing the payment out of monies paid into court, but time and circumstance intervened to thwart the effectiveness of the ex parte order and it was later vacated: Gresham (Bankrupt) v Gresham (1990), 89 Sask R 314, 30 RFL (3d) 133 (CA) .
“Assuming without deciding” that a judge in chambers has jurisdiction to make an order “maintaining the status quo” pending appeal, an application for an order enjoining the operation of an order-in-council found to be valid in the court below was dismissed by a judge of the court on the ground an order to preserve the status quo would amount in the circumstances to “altering the status quo”: Saskatchewan Wheat Pool v Canada (Attorney General) (1993), 131 Sask R 243 (CA) .
Part Two The Court of Appeal Rules (Civil) 145 R. 15
Based on the authority of International Harvester v Baschuk, an order was made by a judge of the court staying the registration of a subdivision plan pending an appeal from a decision of the Court of Queen’s Bench declining to quash the approval of the plan, but on condition the appeal be heard within a matter of weeks so as to minimize the potential for delay and harm: Neumann v Saskatoon (City) (1994), 125 Sask R 181 (CA) .
An application to a judge of the court to stay foreclosure proceedings (including discoveries), pending the hearing of an appeal from an order declaring that subsection 9(1)(d) of The Saskatchewan Farm Security Act, SS 1988-89, c S-17, did not apply to the mortgages, was dismissed . But, in reliance upon Blackwoods Beverages and International Harvester v Baschuk, it was said that, “notwithstanding Rule 15, the Court of Appeal has jurisdiction to grant a stay [of proceedings] in situations where the need is apparent”: Saskatchewan Trust Co. v Darwall Enterprises Ltd. (1995), 134 Sask R 68 (CA) .
“Assuming without deciding that an appellate court judge in chambers has the
jurisdiction” to make an order continuing an interlocutory injunction after 2015 CanLIIDocs 293 the underlying action was dismissed at trial, such order will not be made in the absence of irreparable harm: O’Brien v O’Brien Estate (1998), 172 Sask R 80 (CA) .
An interim order of a judge of the court in chambers granting child maintenance pending appeal was upheld by the court on the ground the order constituted an order to preserve the status quo pending appeal and was within the authority of the judge to grant based on Blackwoods Beverages: T.E.T. v J.D.L., 2004 SKCA 76, 249 Sask R 218 .
On an application before a judge of the court in chambers to stay proceedings before the Labour Relations Board pending appeal, it was said that it was open to a judge alone to grant such relief on the authority of Blackwoods Beverages, but in the circumstances the application was dismissed: United Food and Commercial Workers, Local 1400 v Wal-Mart Canada Corp., 2012 SKCA 2, 385 Sask R 130 .
An application by the appellant for injunctive relief, pending appeal, of the very kind the Court of Queen’s Bench had declined to grant (including a mandatory injunction), was denied as being beyond the preservation of the status quo and beyond the power of a judge alone to grant: Beare v Kirby Enterprises Inc., 2013 SKCA 44, 414 Sask R 66 .
The guarded nature of some of the case law
The guarded expression of principle in some of the Saskatchewan cases noted above may be attributable to the unusual character of Blackwoods Beverages Ltd. v
146 Civil Appeals in Saskatchewan R. 15
Dairy Employees, Truck Drivers and Warehousemen, Local No. 834 (No. 1) (1956), 3 DLR (2d) 529, 18 WWR 481 (Sask CA) [Blackwoods Beverages], including the fact The Crown Practice Rules governing the exercise by the court of its original supervisory jurisdiction expressly empowered a judge of the court, as well as the court, to stay proceedings pending the determination of an application for prohibition or certiorari .
This guarded expression of principle may also be attributable to the fact other jurisdictions have struggled over the nature and scope of the inherent and ancillary jurisdiction of an appellate court, and the capacity of a judge alone to exercise that jurisdiction in the absence of express authority to do so . See, for example: R v Church of Scientology of Toronto (1985), 13 OAC 17, 25 CCC (3d) 149 (where the Ontario Court of Appeal held that a judge in chambers is not empowered to exercise the ancillary or inherent jurisdiction of an appellant court to prevent the frustration of an appeal, except to the extent this is authorized by statute or regulation, including the Rules of Civil Procedure); and R v Zurowski, 2003 ABCA 174, [2003] 9 WWR 400 (where the Alberta Court of Appeal, in a split decision, referred to the above-mentioned case and others pertaining to the 2015 CanLIIDocs 293 power of an appellate court to prevent the frustration of an appeal by means of orders of one kind or another effectively preserving the status quo pending the determination of an appeal) .
Beneath this there seems to lie a measure of tension between, on the one hand, the need for clear jurisprudential authority for a single judge in chambers to prevent the frustration of an appeal or other proceeding by way of an order preserving the status quo and, on the other hand, the desirability of not restricting the powers of a judge to do so in the interests of ensuring the protection of the rights of the parties pending determination of the matter in controversy .
In any event, cases such as these, together with the guarded expressions of principle found in some of the Saskatchewan cases, fall to be considered in the light, first, of the whole of the case law of which the Saskatchewan cases form part and, second, of the following contextual considerations: • The inherent jurisdiction of the court, as a superior court of record, which enables it to “fulfill itself as a court of law” and thus to “fulfill the judicial function in a regular, orderly, and effective manner” . (See the commentary accompanying section 3 of the Act pertaining to the inherent jurisdiction of the court .) • The provisions of section 10 of the Act, which vest the court with both appellate jurisdiction and “any original jurisdiction that is necessary or incidental to the hearing and determination of an appeal” . (See the commentary under sections 3 and 10 of the Act regarding the appellate and original jurisdiction of the court .)
Part Two The Court of Appeal Rules (Civil) 147 R. 16
• The provisions of subsection 20(1) of the Act, which expressly empower a single judge sitting in chambers to “hear and dispose of an application or motion that is incidental to an appeal…and that does not involve the decision of the appeal on its merits” . • The decision of the court in T.E.T. v J.D.L., 2004 SKCA 76, 249 Sask R 218, which upheld an order of a judge of the court in chambers ordering interim child maintenance pending the determination of an appeal potentially touching upon that matter . While, strictly speaking, this case may not have involved an order by a judge of the court to prevent the frustration of the underlying appeal by means of an order maintaining the status quo pending the hearing of the appeal, the court nevertheless said this of the interim order and its making: [10] The power of the court and of a judge thereof to make orders preserving the status quo have long been recognized: Blackwoods Beverages Ltd. v. Dairy Employees, Truck Drivers and Warehousemen, Local No. 834 (No. 1) (1956), 3 D .L .R .
(2d) 529; 18 W .W .R . (N .S .) 481 (Sask . C .A .), and International 2015 CanLIIDocs 293 Harvester v. Baschuk (1985), 44 Sask . R . 228 (C .A .) . [11] The order of Jackson, J .A ., for interim maintenance was pursuant to an application that was incidental to an appeal pending before the court and did not involve the decision of the appeal on the merits . It was within the power granted to her by s . 20(1) [of The Court of Appeal Act, 2000] .
•
PART VI Cross-Appeal
Cross-appeal 16(1) If a respondent desires to contend that the judgment appealed from should be varied, the respondent shall: (a) within 15 days after being served with the notice of appeal, serve a notice of cross-appeal on all parties affected; and (b) within 10 days after service on all parties, file the notice of cross-appeal with proof of service.
148 Civil Appeals in Saskatchewan R. 16
(2) A notice of cross-appeal shall: (a) identify the part of the judgment sought to be varied; (b) specify the grounds for variation; and (c) state precisely the relief sought. (3) The omission to serve a notice of cross-appeal does not necessarily preclude a party from seeking a variation of the judgment appealed from, as contemplated by Rule 58(c) (Powers of the court), but the omission may be grounds for an adjournment of the hearing of the appeal or for a special order as to costs.
Commentary
Rule 16 is the successor to former Rules 11 and 12 . It generally tracks the latter 2015 CanLIIDocs 293 (with the exception of time limits), but the latter employed different terms . Still, the old Rules, together with the case law touching upon them, serve to contribute to a better understanding of the present Rule .
Former Rule 11 provided as follows: (i) a respondent, who intends to argue on appeal that the decision of the court below should be varied, shall “give notice of such intention” to any party who may be affected thereby; (ii) an omission to do so does not “diminish the power of the court” but provides the grounds for an adjournment or a special order as to costs; and (iii) the “notice of motion to vary” shall state the grounds thereof .
Former Rule 12 went on to provide that the “notice of intention to vary” be served within 8 days of the service of the notice of appeal (in the case of an appeal from an order made in chambers), and within 15 days of the service of the notice of appeal (in the case of any other judgment or order), subject always to an order to the contrary .
Rule 16
The present Rule, beginning with Rule 16(1), requires that: • a notice of cross-appeal be served within 15 days after service of the notice of appeal, and
Part Two The Court of Appeal Rules (Civil) 149 R. 16
• the notice of cross-appeal, together with proof of service, be filed within 10 days after service thereof on all parties .
These are exacting time limits, in keeping with the general policy of the court to have appeals heard as promptly and efficiently as reasonably possible .
Rule 16(2) goes on to require that a notice of cross-appeal: • identify the part of the judgment sought to be varied • specify the grounds for variation, and • state precisely the relief sought .
Rule 16(3) states, in turn, that the omission to serve a notice of cross-appeal does not necessarily preclude a party from seeking a variation of the judgment or order appealed from, provided, however, that such omission may be grounds for an adjournment and a special order as to costs .
Such omission, then, carries with it the risk of a substantial order for costs being made against the defaulting party, or conceivably against counsel personally . This is particularly 2015 CanLIIDocs 293 so if an adjournment of the hearing is required in consequence of the omission .
Practice Tip
An appeal is from a decision, not the reasons for the decision. Hence, it is open to a respondent to defend the result of a decision (and open to the court to uphold the result), for reasons other than those upon which the decision was expressed to be made. As a general rule, there is no need to cross-appeal for this purpose, but only for the purpose of varying the decision itself, rather than the reasons for the decision. This can be a source of confusion, so it is well when considering the subject of cross-appeal to have regard for the commentary under subsection 7(2)(a) of The Court of Appeal Act, 2000 (Right of appeal) regarding the import of the distinction between a decision and the reasons for a decision.
Case Law
On a chamber application under former Rule 12 for an order extending the time for serving a notice to vary, it was held that a judge’s discretion to enlarge the time for serving a notice to vary is “no less ‘unfettered’” than the discretion to enlarge the time for serving a notice of appeal in accordance with Royal Bank of Canada v G.M. Homes Inc. (1982), 25 Sask R 6 (CA): Kodellas v Saskatchewan (Human Rights Commission), [1987] 3 WWR 558, 56 Sask R 149 (CA) .
150 Civil Appeals in Saskatchewan R. 16
It was also held in Kodellas that a notice to vary is not the equivalent of a notice of appeal and, in consequence, the practice relating to an extension of time for filing a notice to vary should permit more flexibility than that related to an extension of time for filing a notice of appeal: …a notice to vary is not an originating process whose purpose is to assert a right and put into motion whatever is necessary to fructify a right, as for example a notice of motion or a notice of appeal, but is more in the nature of a notice designed to eliminate surprise on the part of the opposing side and on the part of the court . As is evident from the wording of [Rule] 11, the failure to file a notice to vary does not put a stamp of finality on the matter and thereby preclude the party from advancing the issue he wishes to put forward . It follows that the practice relating to an extension of time for filing a notice to vary should permit more flexibility than that relating to an extension of time for filing a notice of appeal . The reason given by the applicant… is bona fide and in my view an acceptable one for extending the 2015 CanLIIDocs 293 time . The delay in question is a short one . The respondents have not shown and, indeed, do not contend that they will suffer any prejudice by reason of the late filing . I see no reason for not extending the time to file the notice to vary… [at 561]
Where a cross-appeal had not been filed for 15 months following service of the notice of appeal, and where the cross-appeal amounted in substance to an appeal, a judge in chambers dismissed an application to enlarge the time, noting that Rule 16(3) does not posit a less stringent test for an extension of time generally and that, in consequence, the application fell to be determined on the same basis as that reserved for applications to extend the time for filing a notice of appeal . With that, the application was dismissed for the reasons the applicant failed to satisfactorily explain the delay, admitted she had not intended to appeal during the time allowed, and was unable to advance any but a weak arguable case at best: Raymond v Raymond Estate, 2010 SKCA 86, 359 Sask R 123 .
An enlargement of time was granted to file a notice to vary (or perhaps more properly a notice of appeal) where more than two years had elapsed since the date of judgment below and where the appeal from the judgment had been set down for hearing . The time was enlarged in light of the fact (i) the omission to file the notice to vary was attributable to solicitor’s inadvertence, (ii) the matter in issue had been argued below, and (iii) the time could be enlarged without the need for an adjournment of the appeal and without prejudice save for the inconvenience associated with the expeditious filing of factums, a matter that could be compensated for by an order for costs: Darichuck Estate, Re (1988), 70 Sask R 215 (CA) .
Part Two The Court of Appeal Rules (Civil) 151 R. 17
Practice Tip
In the case of a cross-appeal from a judgment dividing family property under The Family Property Act, SS 1997, c F-6.3, the respondent is expected to specify in detail the division of property sought by the respondent, including: • the items of property in issue • the value of each item • the proposed distribution, and • the alternative distribution that may be sought, having regard for the grounds of variation that may or may not succeed.
•
PART VII 2015 CanLIIDocs 293 Intervention
Intervention 17(1) Any person interested in any proceeding before the court may, by leave of the court, intervene in the proceeding on the terms and conditions the court may direct. (2) Any intervenor before the court appealed from shall be served with a notice of appeal and notice of cross-appeal, if any, but shall not have the status of an intervenor on appeal unless leave to intervene is first granted by the court. (3) An application to intervene shall be made to the court on notice to all parties and other interveners in the proceeding.
Commentary
This is a new Rule in the sense, first, that it was adopted in 1997 to form part of the consolidated and revised version of The Court of Appeal Rules and, second, that it was not preceded by any comparable Rule . However, the Rule picks up on past experience, and to some extent on past practice, meaning the pre- existing jurisprudence continues to inform the application of the Rule .
152 Civil Appeals in Saskatchewan R. 17
The purpose of the rule
The purpose is twofold: • to clarify the basis for the authority to allow non-parties to an appeal to intervene, and • to allow them to do so to the extent they have a sufficient interest in the issues and are able to assist the court in resolving those issues .
The operation and scope of the rule
Rule 17(1)
This Rule operates to allow a person interested in any proceeding before the court to intervene, with leave of the court, on such terms and conditions as the court may direct .
The phrase “any person interested” in any proceeding before the court is confined 2015 CanLIIDocs 293 to persons who have a particular and genuine interest in the subject matter of the proceedings (especially the principle or principles of law in issue), and who may be of assistance to the court in resolving the issues .
The phrase “any proceeding before the court” encompasses appeals as well as references under The Constitutional Questions Act, 2012, SS 2012, c C-29 .01 .
The expression “terms and conditions” extends to such matters as the length of the factum; the issues that may be addressed in the factum; such restrictions, if any, as may be placed on oral argument; and so on .
The words “intervenor” and “intervener” appearing in Rule 17 are obviously interchangeable .
Rule 17(2)
This Rule requires that a person who was granted intervener status in the court below be served with a notice of appeal and notice of cross-appeal . Such service, however, does not confer upon such person intervener status on appeal, unless leave to intervene is granted by the court .
Rules 17(2) and (3)
These Rules require all persons wishing to intervene, including those who were granted intervener status in the court below, to apply to the court on notice to all parties and other interveners .
Part Two The Court of Appeal Rules (Civil) 153 R. 17
Such applications are to be made by notice of motion, in accordance with Rule 48, but the motion is expected to be directed to the court, in keeping with both Rule 17(1) (which requires leave by the court to intervene), and Rule 17(3) (which stipulates that applications for leave to intervene are to be made to the court) .
The application of Rule 17
While Rule 17 had no counterpart in the Rules as they existed prior to 1997 (when the current version of the Rules was adopted), a Practice Directive was then in effect (Civil Practice Directive No . 16, circa 1987) .
This Practice Directive, which fell by the wayside on the adoption of the current Rules, provided that applications for leave to intervene were to be made to the court or, more particularly, to the panel of the court designated to hear the appeal; or, if no panel had been designated, to a panel designated by the chief justice for that purpose .
As matters currently stand, Rule 17 merely states that such applications are to be 2015 CanLIIDocs 293 made to the court .
Despite the fact Rule 17 had no counterpart in the old Rules, and notwithstanding the provisions of old Practice Directive No . 16, it was customary for a single judge in chambers to hear and determine applications for leave to intervene .
Even so, it is clear that Rule 17 only contemplates leave to intervene being granted or denied by the court, rather than a judge of the court .
Nevertheless, much of the jurisprudence from the period preceding 1997 continues to inform the bases in practice upon which applications to intervene are considered . This is borne out in the case law, both pre-1997 and post-1997 .
Case Law Pre-1997
The court (on apparent application of former Queen’s Bench Rules 39 (adding parties) and 75 (amicus curiae)), declined to grant an application by the Saskatchewan Medical Association to intervene on an appeal by a medical doctor from an order of the Court of Queen’s Bench dismissing the doctor’s appeal from a disciplinary decision of the College of Physicians and Surgeons: Brand v College of Physicians & Surgeons of Saskatchewan (1990), 72 DLR (4th) 446, 86 Sask R 18 (CA) . In doing so the court said this of the matter at 467: …it seems clear that having an interest in the result of this appeal would not of itself create a basis for granting the application
154 Civil Appeals in Saskatchewan R. 17
to intervene . Rather, there must be some prospect that the process will be advanced or improved in some way by virtue of the intervention . It is not apparent that this occurs in this case . Indeed, counsel for the intervenor acknowledged that it was not his desire to provide an echo for the arguments presented by the appellant, and if that was his only role he could understand that intervention was not to the advantage of anyone . …the question which the intervenor wishes to have addressed will be adequately dealt with by the parties to this appeal . Consequently, there is no apparent benefit to the parties or the process to warrant granting the application of the intervenor…
See, too: Canada (Attorney General) v Saskatchewan Water Corp., [1991] 2 WWR 614, 92 Sask R 295 (CA); R v Daniels (1991), 92 Sask R 293 (CA); and R v Latimer (1995), 128 Sask R 195 (CA) .
In R v Latimer, two groups representing disabled persons were granted leave to intervene by a judge of the court in relation to an appeal by an accused from 2015 CanLIIDocs 293 his conviction and sentencing on a charge of murdering his disabled daughter . In the main, their applications for leave to intervene were determined on the bases of principle mentioned in Brand and enumerated in The Conduct of an Appeal, 3d ed, by J . Sopinka & M . Gelowitz (Markham: LexisNexis, 2012) at 347: In considering an application to intervene, appellate courts will consider: (1) whether the intervention will unduly delay the proceedings; (2) possible prejudice to the parties if intervention is granted; (3) whether the intervention will widen the lis between the parties; (4) the extent to which the position of the intervener is already represented and protected by one of the parties; and (5) whether the intervention will transform the court into a political arena . As it is a matter of discretion, the court is not bound by any of these factors in determining an application for intervention but must balance these factors against the convenience, efficiency and social purpose of moving the case forward with only the persons directly involved in the lis . [footnotes omitted]
With the above in mind, the judge granted leave to intervene to each of the two groups but only “on a strictly limited basis” so as to accommodate their legitimate interest in the questions of law in issue, on the one hand, and not prejudice the interests of the accused on the other . The limits imposed consisted of directions to the effect: (i) that the factums of the interveners be limited to questions of law and be confined to supplementing, rather than repeating, the submissions of the Crown; (ii) that the factums be filed before
Part Two The Court of Appeal Rules (Civil) 155 R. 17
the hearing of the appeal, with sufficient time for the accused to respond; (iii) that the interveners not be permitted to address the court orally except to answer any questions the court may have .
Post-1997
Citing R v Latimer (1995), 128 Sask R 195 (CA), a judge in chambers granted leave to the Saskatchewan Federation of Labour to intervene in an appeal relating to a decision of an adjudicator under The Labour Standards Act, RSS 1978, c . L-1, on condition: (i) the intervener’s factum be confined to matters not already addressed by the parties or other interveners; (ii) its entitlement to address the court orally be left to the court on the hearing of the appeal, and (iii) its request to file an affidavit as part of the record be granted subject to deletion of parts thereof: Dominion Bridge Inc. v Routledge (1999), 173 DLR (4th) 624, 177 Sask R 114 (CA) .
Acting on the basis of principle adopted in R v Latimer, a judge in chambers granted leave to the Canadian Religious Freedom Alliance and the Canadian 2015 CanLIIDocs 293 Civil Liberties Association to intervene in an appeal involving a decision of a Saskatchewan Human Rights Tribunal on condition the interveners: (i) not be permitted to adduce new facts or evidence; (ii) be permitted to file a factum and, at their discretion, a book of authorities, provided the factum be served and filed by a given date and be restricted to supplementing the submission of the parties; and (iii) that the interveners be entitled to make oral submissions on such basis as the court directs on the hearing of the appeal . In keeping with “the usual practice” the parties were directed not to file “reply” factums on the understanding they could, of course, address in oral argument the points made by the interveners: Owens v Saskatchewan (Human Rights Commission), 2005 SKCA 103 .
Applying the framework of principle found in R v Latimer, a judge declined to grant leave to two environmental groups to intervene in the appeal of an order denying certification of a class action alleging that the plaintiffs, as organic farmers, suffered loss as a result of the introduction and distribution by the defendants of genetically modified grains and oil seeds . While the cause of action had an environmental dimension to it, the subject matter of the appeal did not because the appeal was concerned with the interpretation and application of The Class Actions Act . This was a matter of principle that the parties had ably addressed, meaning the proposed interveners could not usefully contribute to the resolution of these issues . Moreover, granting intervener status to the applicants would delay the hearing of the appeal (which was scheduled to be heard shortly and would have to be adjourned) and would widen the lis: Hoffman v Monsanto Canada Inc., 2006 SKCA 132, 289 Sask R 32 .
156 Civil Appeals in Saskatchewan R. 17
Having regard in principle for R v Latimer and Hoffman v Monsanto, the Mutual Fund Dealers Association of Canada was granted leave to intervene in an appeal that raised the question of whether the Investment Dealers Association of Canada had jurisdiction to discipline a member firm for the acts of a former representative who was no longer a member of the Investment Dealers Association . To avoid delaying the hearing of the appeal, which was set down for hearing, leave to intervene was granted on condition that the intervener file its factum within 5 days: Investment Dealers Association of Canada v MacBain, 2007 SKCA 24 .
With R v Latimer and Owens v Saskatchewan in mind, a judge in chambers granted leave to the Canadian Civil Liberties Association to intervene in an appeal by a licensed practical nurse regarding a decision of the disciplinary body on conditions similar to those imposed in Owens v Saskatchewan, but implicitly permitting the intervener to raise and address a new argument respecting the standard of review: Whatcott v Saskatchewan Association of Licensed Practical Nurses, 2007 SKCA 49 .
On the basis of principle mentioned in Brand v College of Physicians & Surgeons 2015 CanLIIDocs 293 of Saskatchewan (1990), 72 DLR (4th) 446, 86 Sask R 18 (CA), and R v Latimer, the Law Society of Saskatchewan was permitted to intervene in an appeal where the question in issue was whether a lawyer’s contingency agreement was valid: Thompson v Thompson, 2007 SKCA 83, 304 Sask R 227 .
An application by the Canadian Constitution Foundation (a non-profit institution dedicated to public education regarding human and civil rights) to intervene in an appeal involving a decision of a Saskatchewan Human Rights Tribunal was granted by a judge on the basis of principle adopted in R v Latimer and on condition: (i) that the intervener be confined to the constitutional issues as framed by the parties; (ii) that its factum be filed and served within one month; and (iii) that oral submission be left to the direction of the court on the hearing of the appeal: Whatcott v Saskatchewan (Human Rights Tribunal), 2008 SKCA 95 .
A like application by the Canadian Civil Liberties Association was granted by a judge on condition the intervener serve its factum within 5 days (so as not to prejudice the parties in their preparation for the hearing of the appeal) and limit its factum to 15 pages: Whatcott v Saskatchewan (Human Rights Tribunal), 2008 SKCA 114 .
Subject to a number of conditions regarding the scope of intervention, several applications for leave to intervene were allowed by the court (following upon a pre-hearing conference conducted by a judge in chambers), in a reference regarding the constitutional validity of an Act to amend The Marriage Act, 1995, SS 1995, c M-41, to the end of exempting marriage commissioners, on the basis of religious belief, from having to perform same sex marriages: Reference re
Part Two The Court of Appeal Rules (Civil) 157 R. 18
Marriage Commissioners Appointed Under The Marriage Act, 1995, 2011 SKCA 3, 327 DLR (4th) 669 .
A similar process was followed in Saskatchewan Federation of Labour v Saskatchewan, 2013 SKCA 43, 390 Sask R 196 (re an appeal of a decision of the Court of Queen’s Bench in an action challenging the constitutional validity of two pieces of provincial labour legislation) .
Intervener status will not be granted where the proposed intervener wishes to raise an entirely new set of issues not raised and addressed by the parties to the appeal, especially in relation to a reference, for the terms of the reference control the scope of the appeal: Reference re Goods and Services Tax, [1992] 2 SCR 445 .
Practice Tip
While the case law includes several instances in which a judge of the court heard and determined applications to intervene, it is clear that Rule 17 only empowers the court to grant or deny intervener status. Accordingly such 2015 CanLIIDocs 293 applications should be directed to the court. Where appropriate, a judge of the court may be designated, pursuant to Rule 41 (Pre-hearing conference), to conduct a pre-hearing conference to manage the process, but ultimately it is the court that must pass upon such applications.
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PART VIII Perfecting Appeal: Appeal Book and Factum
A. Appeal Book
Appeal book required 18 An appeal book is required in every appeal, unless otherwise ordered.
158 Civil Appeals in Saskatchewan R. 19 Commentary
This Rule replaces former Rule 18 which provided that an appeal book was not required on an appeal of an ex parte or other order made in chambers on the basis of affidavit evidence unless the registrar, having been furnished with the material used on the application in the court below, deemed an appeal book necessary: Turbo Resources Ltd. v Gibson (1987), 60 Sask R 221 (CA) .
Under the Rule as it presently stands, an appeal book is required in every appeal unless otherwise ordered .
Such orders are rare, but they may be made by a judge or by the registrar . The registrar may make such orders on the combined authority of subsection 21(1) of The Court of Appeal Act, 2000 (Judge in chambers) and Rule 60(1) (Powers of registrar) .
Generally, applications to dispense with the filing of an appeal book should be made to the registrar, who may, if need be, refer the matter to a judge under 2015 CanLIIDocs 293 Rule 60(2) .
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Agreement as to transcript of evidence 19(1) In every appeal from a judgment after hearing oral evidence, where the evidence has been recorded, each party is responsible for including in the appeal book a transcript of only those parts of the evidence that are relevant to the appeal. (2) The parties shall make every reasonable effort to reach a written agreementas to those parts of the transcript of evidence required for the appeal, within 30 days after the last party has been served with the notice of appeal. (3) The parties shall file any written agreement within the 30 day period mentioned in Subrule (2). (4) If the parties fail to agree, a transcript of the whole of the evidence is deemed to be required.
Part Two The Court of Appeal Rules (Civil) 159 R. 19
(5) If the court is satisfied that the costs of the appeal have been increased unduly by the failure of a party to co-operate in reaching a written agreement, the court may take this into account when awarding costs.
Commentary The purpose of the rule
The principal object of Rule 19 is to reduce the cost of an appeal by reducing, when reasonably possible, the cost associated with obtaining and filing a transcript of the oral evidence adduced below .
This component of the cost of an appeal can be meaningfully reduced in those instances—which are relatively numerous—where the whole of the oral evidence
is not required in light of the grounds of appeal . Much needless cost can be avoided 2015 CanLIIDocs 293 by careful attention to the provisions of Rule 19 .
The operation of the rule
Rule 19(1) contemplates the inclusion in the appeal book of only those parts of the evidence that are relevant to the appeal . Generally speaking, only those parts of the evidence that bear upon a finding of fact placed in issue in the notice of appeal are relevant to the appeal .
Rule 19(2) goes on to impose a duty upon the parties to make every reasonable effort to agree upon those parts of the evidence required for the appeal .
Failing agreement, the whole of the evidence is deemed to be required according to Rule 19(4) .
However, if the costs of appeal have, in the opinion of the court, been increased unduly by the failure of a party to cooperate in reaching agreement, as provided for by Rule 19(5), the court may take this into account when awarding costs .
Case Law
On an appeal related to the distribution of family property, the time for filing a written agreement regarding the contents of the transcript was extended by 15 days, but the appellant was not required to pay any part of the judgment
160 Civil Appeals in Saskatchewan R. 20 in advance, as had been requested, for this was considered too onerous: Sebastian- Hansen v Hansen, 2000 SKCA 62, 199 Sask R 16 .
The court relieved the parties of having to file the requisite agreement, ordered the registrar to obtain the estimated cost of the entire transcript, and directed the appellant pay the cost, failing which the appeal would be dismissed as abandoned: Croft Aviation Ltd. v Dunbar Airmotive Ltd., 2004 SKCA 67 .
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Contents of transcript 20(1) The transcript shall contain: (a) those parts of the transcript of evidence required under Rule 19 (Agreement as to transcript of evidence); (b) the reasons for the judgment appealed from, if delivered 2015 CanLIIDocs 293 orally and recorded; and (c) in the case of an appeal from judgment in a jury trial, the judge’s charge to the jury, together with counsel’s addresses to the jury. (2) Notwithstanding anything contained in this rule, a party may apply to a judge for an order dispensing with a transcript of evidence for the appeal.
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Transcript 21(1) Where a transcript is required, the appellant shall, within 14 days of the expiration of the time period prescribed in Rule 19 (Agreement as to transcript of evidence), order a complete transcript of the proceedings, or a transcript of the parts of the proceedings that the parties agree are required, from Transcript Services or any other commercial court reporting service in the format for transcripts approved by the court. (2) The appellant shall either:
Part Two The Court of Appeal Rules (Civil) 161 R. 22
(a) file an electronic copy of the transcript with the registrar immediately on the appellant’s receipt of the transcript; or (b) make arrangements with Transcript Services or the commercial court reporting service, as the case may be, to file an electronic copy of the transcript with the registrar immediately after the transcript is completed and ready for filing.
Commentary
The court, in consultation with transcript service providers, has approved a transcript format, and this format is routinely used by these transcript providers . Should any question arise regarding the format of the transcript, the matter should be referred to the registrar . 2015 CanLIIDocs 293 •
Agreement as to contents and completion of appeal book 22(1) Subject to Rule 43 (Expedited appeal), where an appeal book is required, the appellant shall serve on each respondent a draft agreement as to the contents of the appeal book and the date upon which the appeal book is to be completed. (2) The draft agreement shall be served within the following times: (a) in the case of an appeal where a praecipe has been filed under Rule 21 (Praecipe for transcript), within 10 days after receipt of the registrar’s notification that the transcript of evidence has been received; (b) in the case of an appeal where no praecipe is required, within 10 days after the date the last respondent was served with the notice of appeal. (3) Within 10 days after the receipt of the draft agreement, each respondent shall return the draft agreement to the appellant, signed in approval, or, if not approved, accompanied by a memorandum of objections to it.
162 Civil Appeals in Saskatchewan R. 22
(4) The parties shall make every reasonable effort to exclude irrelevant material from the appeal book, avoid duplication and otherwise confine the contents to that which is necessary for the purposes of the appeal. (5) If, within 30 days after the date the last respondent received the draft agreement, the parties do not agree upon the contents of the appeal book or the date upon which it is to be completed, the appellant shall apply to a judge to have the matter in dispute settled.
Commentary
Rule 22(1) is subject to Rule 43 (Expedited appeal) . Rule 43(2) states that no agreement as to the transcript of evidence or the contents of the appeal book is required in expedited appeals . Expedited appeals are those from judgments: 2015 CanLIIDocs 293 • made in chambers • rendered after trial upon an agreed statement of facts without additional oral evidence • relating to the custody of a child or dependent adult, including the appointment of a guardian, or • those that are ordered to be treated as expedited appeals by the court or a judge .
Otherwise, Rule 22(1) requires the appellant to serve the respondent with a draft agreement as to the contents of the appeal book and its completion date .
Rules 22(2) and (3) go on to provide the times within which the draft agreement is to be served and then either approved or objected to . The time limits imposed by these Rules are relatively short, but they are expected to be met in the interests of the orderly and expeditious perfection of appeals . This is particularly so in light of the increasing concern with the time it takes to move matters through the courts .
Rule 22(4) goes on, in the interest of efficiency, to impose a duty upon the parties to make every reasonable effort to exclude irrelevant material from the appeal book and to avoid duplication of material .
What is relevant or irrelevant depends in significant part on whether the appeal is from the whole of the decision or only part of it, and whether the grounds of
Part Two The Court of Appeal Rules (Civil) 163 R. 23
appeal are such as to require resort to the whole of the record or only part of it . Excluding the irrelevant is not only cost efficient, but makes for a tidier and more navigable appeal book .
The same may be said of needless duplication of material, though not all manner of duplication is needless . For example, where the record includes two or more affidavits to which the same document is appended as an exhibit, it is often better to attach the document to each of the affidavits . This results in some duplication of the document but makes for ease of reference . To the extent reasonably possible, however, every effort should be made to avoid needless duplication .
Rule 22(5) provides that, if the parties are unable to agree upon the contents of the appeal book, the appellant shall apply to a judge to have the matter settled . It should be noted, however, that the registrar is also empowered (by Rule 60), to settle the contents of an appeal book and may, if necessary, refer the matter to a judge . Unless a dispute over the contents of the appeal book proves to be
particularly difficult, the matter is best left to the registrar to determine . 2015 CanLIIDocs 293
Practice Tip
A lean appeal book, devoid of irrelevant material and needless duplication, is much more convenient for all to work with (counsel and judges alike) than is otherwise the case, and is indicative, along with a well prepared factum, of a high standard of appellate practice.
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Contents of appeal book 23(1) The appeal book shall contain the following material in the following order: (a) a comprehensive index, including: (i) a sub-index of exhibits, whether included in the appeal book or not, listing them with a reference to the page in the appeal book where each exhibit is reproduced and the page in the transcript where each is referred to in the evidence for the first time; (ii) a sub-index of witnesses listing their names, by whom each was called, and whether the evidence of the witness
164 Civil Appeals in Saskatchewan R. 23
was given in examination-in-chief, cross-examination, re- examination or examination by the court appealed from; (b) the pleadings, indicating by underlining where the pleadings have been amended and by appropriate note when the amendments were made, and any particulars of the pleadings; (c) the judgment or order of the court appealed from; (d) the reasons for the judgment or order appealed from, if any; (e) the notice of appeal; (f) the notice of cross-appeal, if any; (g) the notice served under The Constitutional Questions Act, if any, and particulars of service; (h) the exhibits, clearly identified by letter and number appearing on each page of the exhibit; and 2015 CanLIIDocs 293 (i) the transcript. (2) The top of each page of the transcript of evidence shall state the name of the witness, by whom the witness was called and whether the evidence of the witness was given in examination-in- chief, cross-examination, re-examination or examination by the court appealed from. (3) The pages of the appeal book shall be numbered consecutively as follows: (a) the index shall be numbered i, ii, and so on; (b) the pages preceding the transcript, except the index, shall be numbered 1a, 2a and so on; (c) the transcript shall be numbered 1, 2 and so on.
Commentary The purpose and scope of the rule
The purpose of Rule 23 is threefold: • to avoid uncertainty about the content and form of the appeal book • to promote uniformity of practice, and • to render the appeal book easy to navigate for counsel and court alike .
Part Two The Court of Appeal Rules (Civil) 165 R. 23
Thus, Rule 23(1) contains a comprehensive and precise list of the material to be included in the appeal book .
And Rules 23(2) and (3) contain several formatting requirements aimed at ease of reference to the material in the appeal book . These requirements have been identified precisely, based on past experience in navigating appeal books, and care should be taken to ensure their observance .
Practice Tip
Nothing contributes more to ease of navigation than the index, including the sub-indexes mentioned in Rule 23(1)(a). A detailed index contributes immeasurably to ease of reference, both at the stage of preparing for the hearing of an appeal and at the stage of conducting the hearing. In preparing the index, it is generally well to err on the side of more detail rather than less. For example, if the index includes reference to an affidavit or affidavits, it is well for the index to include a sub-index referring to each of the exhibits to the
affidavits. This is particularly so of affidavits with multiple exhibits. 2015 CanLIIDocs 293
Disputes re content of appeal book
Despite the comprehensive nature of Rule 23, disputes occasionally arise over the content of the appeal book .
Such disputes are customarily resolved by the registrar in exercise of the powers bestowed upon the registrar by the combined force of subsection 21(1) of The Court of Appeal Act, 2000 and Rule 60 (Powers of registrar), though the registrar may, if need be, refer such disputes to a judge in chambers pursuant to Rule 60 .
These disputes are ordinarily resolved having regard for whether the disputed material is: • relevant to the appeal in light of the grounds of appeal; and • necessary to the proper disposition of the appeal .
In most instances it should not be necessary to apply to a judge to resolve these and like disputes, for “…controversies of this kind can usually be avoided on consultation with the Registrar, who is fully conversant with the rules and the expectations of the judges”: Mann v KPMG Inc., 2001 SKCA 24 at para 18, 203 Sask R 267 .
Nevertheless, there will be occasions when it is necessary or desirable to have the matter in dispute resolved by a judge as the case law demonstrates .
166 Civil Appeals in Saskatchewan R. 23 Case Law
On an application to settle the contents of an appeal book, the court (on referral from a judge in chambers), held that fresh evidence that a party is desirous of adducing on appeal, as contemplated by Rule 59(1), is not to be included in the appeal book: Turbo Resources Ltd. v Gibson (1987), 60 Sask R 221 (CA) . Rather, it is to be included in the material filed and served in support of the motion to the court for leave to adduce fresh evidence .
In a case in which the appellant objected to the respondent having filed a “supplementary appeal book” containing material that did not appear in the Queen’s Bench file related to the decision under appeal, it was held that material not forming part of the record for the purposes of the appeal should not be included in the appeal book . It was suggested that if the respondent wished to have the court consider the material (some of which appeared to consist of fresh evidence), he should make an application to that end and append the material to the application:
Mann v KPMG Inc., 2001 SKCA 24, 203 Sask R 267 . 2015 CanLIIDocs 293
Where a dispute among self-represented parties arose over compliance with Rules 19 through 29 in relation to an appeal from a judgment after trial, the court issued an order containing a series of directions regarding the steps to be taken and in doing so relieved the parties of having to agree to the contents of the appeal book as contemplated by Rule 22: Croft Aviation Ltd. v Dunbar Airmotive Ltd., 2004 SKCA 67 .
Documents that were tendered at trial and marked as exhibits for identification, but were not admitted into evidence as “full exhibits”, were ordered to be excluded from the appeal book because they did not form part of the record: Redl v Nolan, 2009 SKCA 106, 337 Sask R 189 .
Practice Tip
It is unclear in light of Redl v Nolan how documents, marked for identification but excluded from evidence in the proceedings below, are to be placed before the court for its consideration of whether they were properly excluded. If they do not qualify for inclusion in the appeal book, as not forming part of the record, presumably they should not be included in the factum. Yet they must be placed before the court in one way or another. In cases such as these, then, it may be well to apply to a judge for directions.
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Part Two The Court of Appeal Rules (Civil) 167 R. 24
Form of appeal book 24(1) The style of cause shall appear only on the cover of each volume of the appeal book. (2) The cover of the appeal book shall be blue. (3) Where the appeal book exceeds 200 pages, it shall be bound in separate volumes of 200 pages or less. (4) Where there is more than one volume: (a) the complete index shall appear at the beginning of each volume; and (b) the cover of each volume shall show the consecutive volume number and the numbers of the pages contained in that volume. (5) Where there are three volumes or more, the spine of each
volume shall show the consecutive volume number and the numbers 2015 CanLIIDocs 293 of the pages contained in that volume. (6) The contents of the appeal book shall be printed, typed or photocopied, and both sides of the page should be used where practicable. (7) The book shall be bound in a manner satisfactory to the registrar.
Commentary
In the interests of dispelling a measure of uncertainty in the application of Rule 24, it might be noted that: • Rule 24(3) provides that, where the appeal book exceeds 200 pages, it is to be bound in separate volumes of 200 pages or less, and • Rule 24(6) requires that both sides of the page be used where practicable .
Using both sides of the page serves in practice to increase the allowable number of pages from 200 to 400 . In practice, then, the Rule may be seen to require that a volume not exceed 200 sheets of paper, rather than 200 pages as such .
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168 Civil Appeals in Saskatchewan R. 25
Transmittal of file from court below 25 The appellant shall require the local registrar to transmit to the registrar the file in the court appealed from, including all exhibits in order that they may be received by the registrar before or at the time of the filing of the appeal book. The registrar shall not file any appeal book unless that file and those exhibits are in the registrar’s custody.
Commentary
This Rule does not specify any particular form of request, but local registrars require the request to be in writing before transmitting the file to the registrar of the Court of Appeal . Hence, such requests may be made by way of letter, or other acceptable means of written communication, with a copy sent to the registrar of the Court of Appeal . 2015 CanLIIDocs 293
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Service and filing of appeal book 26 On or before the date agreed upon or fixed under Rule 22 (Agreement as to contents and completion of appeal book), the appellant shall: (a) serve a copy of the appeal book on each respondent and intervener; and (b) file proof of service in accordance with paragraph (a), together with four copies of the appeal book (being the original and three copies), or such other number as the registrar requires.
Commentary
As a result of the court having decided to convert to electronic filing, and as provided for by Civil Practice Directive No . 3 issued effective December 15, 2010, the appellant may now file either:
Part Two The Court of Appeal Rules (Civil) 169 R. 27
• an electronic copy of the appeal book (in which case the appellant must immediately file three bound paper copies with the registrar), or • an unbound, unperforated paper copy of the appeal book (along with three bound paper copies) .
See sections 4 and 5 of Civil Practice Directive No . 3, which appears in Appendix II .
Where an appeal book is filed electronically, the registrar retains the electronic copy and makes a bound paper copy available to each of the judges assigned to hear the appeal .
Where an appeal book is filed inpaper form, the registrar retains the original, which must be unbound and unperforated, and makes a bound paper copy available to each of the judges .
• 2015 CanLIIDocs 293
B. Factum
Factum required 27 Each of the parties to the appeal shall serve and file a factum in accordance with these rules.
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Contents of factum 28(1) A factum shall, except where otherwise provided or otherwise ordered, consist of the following seven parts: Part I. Introduction: The appellant and respondent shall each briefly summarize the context for the appeal. Part II. Jurisdiction and Standard of Review: The appellant shall state the source of the right of appeal, the basis for the jurisdiction of the court to determine the appeal and the applicable standard of appellate review. The respondent shall state its position with respect to the same matters.
170 Civil Appeals in Saskatchewan R. 28
Part III. Summary of Facts: The appellant shall concisely state the facts. The respondent shall state its position taken with respect to the appellant’s statement of facts and any facts it considers relevant. Part IV. Points in Issue: The appellant shall concisely state the points in issue in the appeal. The respondent shall state its position in regard to the appellant’s points which the respondent wishes to put in issue. If a respondent intends to contend that the judgment should be upheld, whether in whole or in part, for reasons not found in the judgment and not raised in the appellant’s factum, it shall state that intention. Part V. Argument: This part shall contain a statement of the argument, setting out concisely the points of law or fact to be argued and the basis for the argument, with a particular reference to the page and line of the appeal book and the authorities relied upon in support of each point. When a statute, regulation, rule, 2015 CanLIIDocs 293 ordinance or bylaw is cited or relied upon, either as much of the statute, regulation, rule, ordinance or bylaw as may be necessary to the determination of the appeal shall be copied as an appendix to the factum or sufficient copies of the statute, regulation, rule, ordinance or bylaw may be filed. Part VI. Relief: This part shall state the precise order the party desires the court to make, including any special disposition as to costs. Part VII. Authorities: This part shall contain a table of authorities and statutes that the party has referred to, arranged alphabetically and citing the Supreme Court Reports where possible. Counsel citing decisions from electronic databases in factums and memorandums of authority must also provide the citation from traditional print sources. (2) Parts I to VI of a factum shall not exceed 40 pages, unless otherwise ordered. (3) Each paragraph in Parts I to VI inclusive shall be numbered consecutively.
Part Two The Court of Appeal Rules (Civil) 171 R. 28 Commentary The purpose of the rule
The purpose of Rule 28 is to ensure an informed, disciplined, orderly, and concise written argument of the grounds of appeal are set out in the notice of appeal .
The purpose runs through Rule 28(1) in particular, which addresses the content of the factum and requires that the factum be divided into seven parts, Parts I to VII .
The purpose also runs through Rule 28(2), which addresses the length of the factum and limits it to 40 pages unless otherwise ordered, which is to say unless otherwise ordered by a judge, for the power vested in the registrar by Rule 60 (Power of registrar) does not extend to Rule 28(2) .
The application of the rule
For a considered assessment of how best to approach the preparation of a factum 2015 CanLIIDocs 293 from the perspectives of (i) the general importance of the factum and (ii) the specific role of each of the seven parts of the factum mentioned in Rule 28(1), see: Richards C .J .S ., “Going Fishing”: Some Thoughts on Successful Advocacy in the Court of Appeal (Regina: Court of Appeal for Saskatchewan, 2008), including the consideration of the following matters: • Pages 18 to 25—Importance generally • Pages 13 to 14 and 27 to 28—Standards of review • Pages 26 to 27—Table of contents • Pages 28 to 31—Summary of facts • Pages 31 to 32—Points of argument • Pages 35 to 36—Relief requested, and • Part VII—Books of Authorities
For consideration of the preparation of a factum from the perspectives of (i) the powers of the court, and (ii) standards of review, see the commentary under section 12 of The Court of Appeal Act, 2000 (Powers of the court) in Part One of this publication .
Further Commentary
See Cameron J .A ., “Civil Appeals to the Court of Appeal: Practice and Procedure” (Regina: Law Soceity of Saskatchewan, 2009) at pages 16 to 17 (Powers of the court), and 17 to 26 (Standards of review) .
172 Civil Appeals in Saskatchewan R. 28
Disputes re content and length of factum
Despite the clarity of the requirements concerning the content of the factum, disputes regarding the content occasionally arise . These may be resolved by a judge, acting on the authority of section 20 of The Court of Appeal Act, 2000 (Judge in chambers) .
They may also be resolved by the registrar, acting on the combined authority of section 21 of the Act (Registrar) and Rule 60 (Powers of registrar), with the registrar being empowered by Rule 60 to refer the matter in controversy to a judge if need be .
In most instances it should not be necessary to apply to a judge to resolve disputes related to the content of the factum (or the appeal book), for “controversy of this kind can usually be avoided on consultation with the Registrar, who is fully conversant with the rules and the expectations of the judges”: Mann v KPMG Inc., 2001 SKCA 24 at para 18, 203 Sask R 267 . Still, some such controversies must on occasion find their way before a judge . 2015 CanLIIDocs 293
So, too, must controversies regarding the length of the factum, given the fact only a judge and not the registrar is empowered to allow a factum to exceed 40 pages .
Case Law Disputes over content of factum
On an application to strike from the factum an expert opinion suggesting the decision under appeal had been wrongly decided, the appellant contended that a judge in chambers is not empowered to alter the content of a factum . The chamber judge, without expressing any opinion in this regard, reserved the matter for the court to determine when hearing the appeal proper: Pitney Bowes of Canada Ltd. v Norm’s Hauling Ltd. (Trustee of), [1992] 3 WWR 217 (Sask CA) [Pitney Bowes Canada] .
On an application by the appellant to strike out portions of the respondent’s factum referring to material that did not form part of the record in the proceedings underlying the impugned decision, the respondent contended that a judge in chambers was powerless to reject a factum in whole or in part, citing Pitney Bowes Canada and Bell Telephone Co. of Canada v The Toronto, Hamilton and Buffalo Railway Co., [1932] SCR 54 . This contention was found to have been “overdrawn”, and it was held that a judge in chambers, acting on the authority of section 20 of The Court of Appeal Act, 2000, is empowered to remove “offensive portions of a factum: portions improperly included, having regard for
Part Two The Court of Appeal Rules (Civil) 173 R. 28
the nature, purpose, and function of factums, together with the Rules governing their form and content”: Mann v KPMG Inc., 2001 SKCA 24, 203 Sask R 267 . It was there said: [16] Generally speaking, that part of a factum—Part III headed “Summary of Facts” as provided for, as a matter of content, by present Rule 28(1)—is by reason of its very nature inherently confined to matters of fact drawn from the record as it appears in the appeal book . This is so basic I hesitate to dwell on it, but in light of the submission of respondent counsel, I refer to the requirement of Part V of the Rule, requiring that argument pertaining to fact contain “particular reference to the page and line of the appeal book…” . The respondent’s factum is not so confined, and it does not include these references . [17] If a party to an appeal is desirous of enlarging the scope of the issues of fact beyond those arising from the record,
it seems to me the appropriate procedure is to apply by notice 2015 CanLIIDocs 293 of motion to introduce the material not forming part of the record, append the material to the motion, and file a written brief going to the material . This does not serve to deprive the party of the advantage of written argument in advance, for what is not included in the factum may be included in the written brief in relation to the motion . It must be remembered that enlargements of this sort raise a threshold matter for the Court, with power in the Court to accept or reject material which does not from part of the record . Accordingly, the factum, which is basically a concise argument of the issues of law and fact based on the record, should not contain references to matters of fact or evidence that are beyond the record and have yet to be accepted by the Court .
Practice Tip
Mann v KPMG Inc. cautions against a hard-and-fast adversarial approach when seeking to resolve issues of this kind with the assistance of the registrar: “A respectful, conciliatory approach designed to get the matter before the court in an orderly and timely fashion is what is called for. And reasonable counsel will find the Registrar’s office most helpful.”
174 Civil Appeals in Saskatchewan R. 28
Disputes over length of factum
Rule 28(2) is strictly enforced, and only in exceptional circumstances will the rule be relaxed . In Ochapowace Indian Band v Saskatchewan (Minister of Justice), 2006 SKCA 70, it stated: [6] Rule 28 requires that factums be written concisely and, with that obligation in mind, proceeds on the assumption that, in all but exceptional circumstances, counsel will be able to fully and effectively present their positions in 40 pages or less . Cases which might be expected to generate exceptions to the 40-page rule are those with unusually involved, complicated or extensive facts and/or those which feature an extraordinary number of issues . … [9] I see no reason why, if presented “concisely” as required by Rule 28, the appellants’ position cannot be advanced very effectively in 40 pages . Indeed, I fully expect their submissions 2015 CanLIIDocs 293 to be more persuasive if they are distilled and refined so as to come within the requirements of the Rules . The appellants should have no concerns at all that the power of their arguments will be diminished merely because they are expressed in the span of 40 pages . [10] By way of a practice note, I recommend against the approach taken by the appellants in this case, i.e., I recommend against the approach whereby the factum is drafted and finalized before leave is sought to exceed the 40-page limit . The better and more common method of proceeding is to approach the Court for leave at the point when counsel first concludes that 40 pages is insufficient to properly present the appeal . That practice sidesteps the problem of investing time and effort into a factum which is ultimately rejected as being too long, and avoids the awkwardness which goes along with presenting opposing counsel with a fait à complis and asking for consent .
For a case involving exceptional circumstances, warranting a factum in excess of 40 pages, see Sparvier v Canada (Attorney General), 2007 SKCA 21 . There a factum of 70 pages was allowed, provided it covered both the appeal and cross-appeal .
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Part Two The Court of Appeal Rules (Civil) 175 R. 29
Form of factum 29(1) The colour of the cover of the appellant’s factum shall be buff, the respondent’s green, and the intervener’s red. (2) A factum shall set out on its cover the style of cause and whether it is the factum of the appellant, respondent or intervener. Where there is more than one appellant, respondent or intervener, the name of the party shall also be given. (3) A factum shall be printed: (a) on one side of the paper only with the printed pages facing up on the left; (b) in type of 12 point; (c) with at least one and one-half line spacing, except for quotations from authorities, which shall be indented and
single-spaced; and 2015 CanLIIDocs 293 (d) with margins of no less that 3.0 centimetres or one and one- half inches. (4) The factum shall include an index after which all pages shall be numbered consecutively and shall be bound in the sequence outlined in Rule 28 (Contents of factum). (5) The factum shall be signed by the lawyer responsible for its preparation.
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Factum dealing with matrimonial property 30 In an appeal dealing with matrimonial property, where the distribution or valuation of the property is in issue, the factum shall contain: (a) a Schedule A listing, as determined at trial: (i) each item of property; (ii) the value of each item of property; (iii) the distribution of each item of property, including exemptions; and (iv) the liabilities of each party and their allocation; and
176 Civil Appeals in Saskatchewan R. 31
(b) a Schedule B, specifying the precise relief the party desires the court to grant in relation to each item of property, including the valuations, exemptions, and distributions proposed by the party.
Commentary
The adoption of Rule 30 was inspired by the decision of the court inTanouye v Tanouye (1994), 121 DLR (4th) 315, 128 Sask R 48 (CA) . The reasons for judgment in that case serve to illustrate not only the object of the rule but also the importance of adhering to it .
• 2015 CanLIIDocs 293 Factum dealing with foreclosure, judicial sale, bankruptcy, or insolvency 31 In an appeal dealing with a foreclosure, judicial sale, bankruptcy, or insolvency where the disposition or valuation of the property is in issue, the factum shall contain the schedules required under Rule 30 (Factum dealing with matrimonial property), adapted with any necessary modification.
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Service and filing of factum 32(1) An appellant shall serve the appellant’s factum at the same time and in the same manner as the appeal book is required to be served under Rule 26 (Service and filing of appeal book). (2) An appellant shall also file the appellant’s factum at the same time and in the same manner as the appeal book is required to be filed under Rule 26 (Service and filing of appeal book). (3) A respondent or intervener shall serve and file its factum within 30 days after the receipt of the appeal book. (4) All parties filing factums with proof of service shall give the registrar four copies (being the original and three copies), or more as the registrar may require.
Part Two The Court of Appeal Rules (Civil) 177 R. 33 Commentary
Rule 32(1) requires that the appeal book and factum be served contemporaneously and in the manner prescribed by Rule 26 (Serving and filing of appeal book) .
Similarly, Rule 32(2) requires that the appeal book and factum be filed contemporaneously and in the manner prescribed by Rule 26 .
Following upon the decision of the court to convert to electronic filing, the practice regarding the filing of the appeal book and factum has undergone a change in form as reflected in Practice Directive No . 3, issued on December 15, 2010 . This Practice Directive may be found in Appendix II .
Sections 4 and 5 of Practice Directive No . 3 provide for filing a factum in either electronic or paper form .
In the case of electronic filing, a party filing a factum must, immediately after filing
electronically, provide the registrar with three bound paper copies . 2015 CanLIIDocs 293
In the case of paper filing, a party filing a factum must file the original, which is to be unbound and unperforated, and three bound paper copies .
An appellant is still expected by Rule 32(1) to file the appeal book and factum at the same time, along with proof of service .
Practice Tip
Rule 32(1) requires that an appeal book and factum be filed at the same time, and be accompanied by proof of service. The need to file proof of service contemporaneously with the filing of the appeal book and factum is often overlooked, with proof of service being left to be filed later. Overlooking this requirement gives rise to inefficiency and risk of misplacement or misfiling. It also suggests a casual approach to the requirements of the Rules. Thus, the registrar may reject the filing unless it is accompanied by the requisite proof of service.
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Factum in reply on cross-appeal 33 Within 15 days after receipt of a respondent’s factum dealing with a cross-appeal, an appellant may serve and file a factum in reply.
178 Civil Appeals in Saskatchewan R. 33.1
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Factum in reply in other cases 33.1(1) Subject to Subrules (2), (3), and (4), an appellant may serve and file a factum in reply if the respondent’s factum contends: (a) that the judgment appealed from should be upheld whether in whole or in part, notwithstanding error in the reasons for the decision as contended for by the appellant; and (b) that the judgment should be upheld for reasons not found in the decision. (2) A factum in reply contemplated by Subrule (1) shall be served and filed within 15 days after receipt of the respondent’s factum. (3) Where the registrar is of the opinion: 2015 CanLIIDocs 293 (a) that the conditions requisite to serving and filing of a factum in reply under Subrule (1) do not exist; or (b) that the factum in reply tendered for filing is excessive or otherwise offensive to the purpose of Subrule (1); the registrar may refuse to file the factum in reply or, if filed, remove it from the file and return it to the appellant. (4) Where any dispute arises out of the filing of a factum in reply, the registrar may refer the dispute to a judge for final resolution.
Commentary
The purpose of Rule 33 .1 is to preserve an even balance of advantage to parties in their written submissions to the court by curbing the indiscriminate and improper use of appellant factums in reply . Thus, an appellant is only permitted to file a factum in reply to the factum of the respondent in the circumstances mentioned in Rule 33 .1(1) .
In practice, then, the appellant is not permitted to file a factum in reply unless the factum of the respondent contends in effect that: • the judgment under appeal should be upheld despite error in the reasons for judgment as contended for in the appellant’s factum, and • the judgment should be upheld for reasons other than those found in the reasons for judgment .
Part Two The Court of Appeal Rules (Civil) 179 R. 34
In these circumstances, which are beyond the anticipation of appellants in the preparation of their factums, an appellant may file a factum in reply to the contentions in the respondent’s factum that the judgment, while in error, should nevertheless be upheld .
To ensure compliance with these provisions, Rule 33 .1(3) empowers the registrar to reject an appellant’s factum in reply if the requisite circumstances do not exist, or the factum in reply is excessive or offensive to the purpose of Rule 33 .1(1) . Should a dispute emerge in this regard, the registrar is empowered by Rule 33 .1(4) to refer the dispute to a judge for resolution .
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Late filing of factum 34(1) A factum shall not be filed later than the time period prescribed by these rules without leave of a judge. 2015 CanLIIDocs 293 (2) If any party fails to file a factum within the time period prescribed by these rules, any other party may apply to a judge, on notice to the party in default, for directions, including a direction that the appeal be referred to the court for disposition in light of such failure.
Commentary
While Rule 34 requires leave of a judge to file a factum after the time for filing has expired, it may be noted that the registrar is also empowered, by Rule 60, to relieve against late filing .
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Factum not required from unrepresented party 35 Notwithstanding any other rule, a party not represented by a lawyer shall not be required to serve or file a factum but shall serve and file a written argument, not to exceed 15 pages, within the time period prescribed by these rules for the serving and filing of a factum.
180 Civil Appeals in Saskatchewan R. 36
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Book of authorities 36(1) A party may serve a book of authorities when serving that party’s factum. (2) Where a party has served a book of authorities along with its factum, that party shall, when filing its factum, file the book of authorities in triplicate, or in such numbers as the registrar requires. (3) The parties may agree upon a common book of authorities and, where they so agree, they shall file the book in triplicate, or in such numbers as the registrar requires. (4) A book of authorities shall contain an index and shall have the cases in it individually tabbed by number or letter. Where possible, Supreme Court Reports shall be used for decisions of 2015 CanLIIDocs 293 that court. (5) Where a book of authorities includes decisions from electronic databases, counsel must provide the citation from traditional print sources.
Commentary
The provisions of Rule 30 have been supplemented by Practice Directive No . 2, which was issued effective November 1, 2009, and appears in Appendix II of this publication .
Accordingly the provisions of Rule 36 must be read in conjunction with those of Practice Directive No . 2, which contains a set of instructions regarding the filing of books of authorities .
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Estimate of time for hearing 37 A party filing a factum shall give an estimate to the registrar of the length of time required to present that party’s argument.
Part Two The Court of Appeal Rules (Civil) 181 R. 38
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Raising additional arguments 38 A party intending to present arguments, raise points of law and cite authorities not mentioned in the factum may do so only with leave of the court.
Commentary
While Rule 38 does not so state, where a party intends to present arguments, raise points of law, and cite authorities not mentioned in the factum, that party should notify both the opposite party and the registrar of the intention to do so . This eliminates the element of surprise and contributes to a more orderly and efficient proceeding . 2015 CanLIIDocs 293
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PART IX Entering an Appeal for Hearing
Entering and fixing time for hearing 39(1) The registrar shall enter an appeal for hearing when the appeal is perfected as contemplated by Part VIII (Perfecting Appeal: Appeal Book and Factum). (2) An appeal is perfected when the last factum required to be filed is filed. (3) Subject to direction by the Chief Justice, the registrar shall fix the time and place for the hearing of an appeal, and shall notify the parties. (4) Counsel for the appellant, or the appellant if self-represented, shall: (a) serve on the respondent, if self-represented, notice of the time and place set for the hearing of the appeal; and
182 Civil Appeals in Saskatchewan R. 39
(b) file proof of service of the notice referred to in paragraph (a) at least 15 days before the appeal is set to be heard. (5) If Subrule (4) is not complied with: (a) the hearing of the appeal may be adjourned; and (b) the appellant may be ordered to pay costs.
Commentary
As contemplated by Rule 39, once an appeal is perfected by the filing of the last of the required factums, the registrar sets about fixing a time and place for the hearing of the appeal . This is an ongoing process that usually culminates in an appeal being entered for hearing within eight weeks of its perfection .
In the ordinary course, this process entails the selection by the registrar of a day the 2015 CanLIIDocs 293 court has been scheduled to sit on civil appeals, either in Regina or Saskatoon—a day that has not yet been selected for the hearing of other appeals . The registrar customarily selects the first available day, which usually falls in the first or second month following the month in which the appeal is perfected .
Having thus selected the day for hearing, the registrar enters the appeal on a list of appeals tentatively scheduled for hearing during the month for which the list has been prepared . Once the list for that month has filled up and been approved by the chief justice, the registrar then completes the scheduling process by notifying the parties of the time and place the appeal is to be heard and by posting that month’s list of scheduled appeals on the court’s website: www .sasklawcourts .ca .
In the ordinary course, then, the registrar will enter an appeal for hearing on the first available date following the filing of the last of the required factums . This date may prove inconvenient for the parties by reason, for example, of the unavailability of counsel on that date . To avoid this, counsel may, on the filing of the last of the required factums, request the registrar to fix a convenient time for the hearing of the appeal . The registrar is open to such requests and is usually able to accommodate them, especially if counsel concur in the selection of a suitable date or dates . Such requests are not uncommon and often obviate the need for a later application to adjourn .
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Part Two The Court of Appeal Rules (Civil) 183 R. 39.1
Adjournments 39.1(1) All requests to adjourn the hearing of an appeal set down for hearing in accordance with the list of scheduled appeals shall be made to the registrar immediately upon receipt of the schedule and upon three days’ notice to the other party. (2) In the event of an objection, the registrar: (a) may adjourn or decline to adjourn the hearing, subject to consulting with the court when appropriate in the opinion of the registrar, and, if adjourned, set a new date for the hearing; or (b) may refer the request to a judge in chambers. (3) The decision of the registrar is final.
Commentary 2015 CanLIIDocs 293
The purpose of Rule 39 .1 lies in facilitating the timely, orderly, and efficient adjournment of appeals that have been set down for hearing, having regard for considerations of convenience, time, and cost .
Hence, Rule 39 .1(1) requires all requests for adjournment to be made to the registrar immediately upon receipt of the list of scheduled appeals or, in keeping with conventional practice, immediately upon receipt by the parties of notice from the registrar notifying them of the time and place fixed for the hearing of the appeal in accordance with Rule 39 . The object of this requirement is to firm up the list of scheduled appeals as soon as practicable, and before the judges assigned to hear the case have received the appeal book and factums and begun preparing for the hearing .
Rule 39 .1(1) also requires that all requests for adjournment be made upon three days’ notice to the other party .
If objection be made to a request for adjournment, the registrar is empowered by Rule 39 1(2). to grant the request or deny it, subject to consulting with the court where appropriate, or to refer the matter to a judge in chambers .
In practice, it is easier, less time consuming and costly, and less disruptive for everyone if the request for adjournment is made promptly upon receipt of the list of scheduled appeals or the notice from the registrar notifying the parties of the time and place fixed for the hearing of the appeal .
184 Civil Appeals in Saskatchewan R. 39.1
The reason for this is essentially twofold: (1) Requests for adjournment made immediately upon receipt of notice from the registrar of the date fixed for the hearing of an appeal can usually be accommodated without complication, and most often lend themselves to routine processing by the registrar without reference to the court or a judge . Even if such prompt requests be opposed, the registrar is empowered to deal with them and is usually able to do so, at this early stage, without reference to the court or a judge . (2) The appeal books and factums are not distributed to the judges for a period of about two to three weeks following release of the list of scheduled appeals and notification to the parties of the date fixed for the hearing of their appeal . This means the judges have not yet begun to read the material and prepare for the hearing, which in turn means they are not generally concerned with adjournments at this stage . Once they have begun their preparation, however, this all changes, for the registrar will then have to consult with the judges and obtain their views regarding the proposed
adjournment . 2015 CanLIIDocs 293
So, once the court has begun preparing for the hearing of an appeal—usually within two to three weeks from the time the appeal has been set down for hearing—the process of adjournment becomes more formal, time consuming, and exacting .
Counsel is then expected, at this late stage, to provide a good reason for a sought-after adjournment, bearing in mind that, if the request arises out of a scheduling conflict, appearances on appeal take precedence over appearances in proceedings in the lower courts .
The point is this: The process of adjournment becomes more demanding and costly as time passes between the date an appeal is set down for hearing and the date it is scheduled to be heard . This is to be avoided, whenever reasonably possible, by requesting the registrar, immediately upon being notified of the date the appeal is scheduled to be heard, to adjourn the hearing to another time .
Case Law
A request to adjourn a motion for relief pending an application for leave to appeal to the Supreme Court of Canada was denied and the motion was dismissed where: (i) a previous adjournment had been granted; (ii) the applicant was not prepared to proceed on the adjourned date; and (iii) the applicant’s case for relief appeared to be untenable: Andres v Derbowka, 2003 SKCA 129 .
Part Two The Court of Appeal Rules (Civil) 185 R. 40
Practice Tip
Counsel are often able within reasonable limits to choose their own hearing date, provided they act before receiving the list of scheduled appeals referred to in Rule 39.1(1) (Adjournments). How? By taking the following steps. Immediately upon service and filing of the respondent’s factum in accordance with Rule 32(3) (Service and filing of factum), counsel may: (i) confer with one another and agree upon a date or dates; (ii) inform the registrar of the date or dates suitable to them; and (iii) ask the registrar, when preparing the list of scheduled appeals, to accommodate their request. The registrar (who is then at the first stage in the process of preparing a tentative list of scheduled appeals), can usually accommodate these requests and will do so within reasonable limits. But time is of the essence in this regard, for the month-by-month list of scheduled appeals fills up quickly once the respondent’s factum is served and filed. 2015 CanLIIDocs 293
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Disposition without oral hearing 40 Where the parties agree, an appeal entered for hearing may be determined on the basis of factums.
Commentary The purpose and operation of the rule
The purpose of Rule 40 is to reduce the cost of appeal and save time where the parties agree that oral argument is unnecessary .
Parties wishing to have the court determine an appeal without the necessity of appearing and presenting oral argument need only file their written agreement with the registrar, who will then inform the court that it may proceed to determine the case on the basis of written argument .
186 Civil Appeals in Saskatchewan R. 41 Case Law
On the agreement of counsel, an appeal giving rise to procedural issues regarding the renewal of a judgment in the Court of Queen’s Bench was determined on the basis of the appeal book and factums, without the need for counsel to appear and be heard: Co-operative Trust Co. of Canada v Maranda, 2002 SKCA 10, 213 Sask R 262 .
Pursuant to an agreement between counsel and a self-represented litigant, an appeal that featured a number of issues arising out of a judgment after trial in an action in the Court of Queen’s Bench for defamation was determined by the court on the basis alone of the appeal book and factums: Strudwick v Lee, 2007 SKCA 11, 289 Sask R 269 .
On a series of motions asking the court to exercise its original jurisdiction to grant prerogative relief in relation to a judicial inquiry, the court, with the agreement of counsel, ruled upon the issues on the basis of written submissions: 2015 CanLIIDocs 293 Hartwig v Saskatchewan (Minister of Justice), 2007 SKCA 41 .
On the agreement of counsel, an appeal entailing the interpretation of a Last Will and Testament was determined on the basis of the factums without the need for oral argument: Wernicke v Quirk, 2011 SKCA 95, 385 Sask R 7 .
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PART X Pre-Hearing Conference
Pre-hearing conference 41(1) A party may at any time apply to the registrar who, after consultation with the Chief Justice or the court, may direct the attendance of the parties at a pre-hearing conference. (2) The court may on its own initiative order a pre-hearing conference.
Part Two The Court of Appeal Rules (Civil) 187 R. 42
(3) The purpose of the pre-hearing conference shall be to consider matters that might expedite the hearing and determination of the appeal. (4) A lawyer who represents the party at the pre-hearing conference shall represent the party on the hearing of the appeal, unless the lawyer obtains leave from the court to withdraw.
Commentary
Rule 41 is reserved for appeals featuring unusual procedural complexity that is best resolved with the prompt assistance of a judge in the interests of expediting the hearing and determination of such appeals .
The Rule allows for a party to apply to the registrar for a pre-hearing conference by a judge, and empowers the registrar, on consultation with the chief justice or the
court, to direct the attendance of the parties at a pre-hearing conference . It also 2015 CanLIIDocs 293 allows for the court, on its own initiative, to order a pre-hearing conference .
The underlying purpose, as mentioned in Rule 41(3), is to consider matters that might expedite the hearing and determination of an appeal .
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PART XI Other Appeals
Appeals from divorce judgments 42(1) In an appeal from a judgment granting a divorce, the appellant shall file the notice of appeal not later than 30 days after the date of the judgment granting the divorce. (2) Immediately upon the filing of the notice of appeal, or of an application to extend the time for appeal, the registrar shall inform the local registrar of the judicial centre in which the judgment was rendered of such filing and shall then send written confirmation to the local registrar.
188 Civil Appeals in Saskatchewan R. 43 Commentary The purpose and operation of the rule
The purpose of Rule 42 lies in ensuring that the special provisions pertaining to an appeal of a judgment of divorce under the Divorce Act, RSC 1985, c 3 (2d Supp), be complied with . This is particularly so of the provisions found in sections 12 and 21 of this Act .
According to these provisions, a divorce “takes effect” on the thirty-first day after the day on which the judgment is rendered . And once the divorce takes effect, a “certificate of divorce” may issue . The certificate constitutes “conclusive proof” of the divorce, meaning, among other things, that the parties are then free to remarry .
If an appeal is taken on time, which is to say before the expiration of this 31-day period, the divorce does not “take effect” pending the determination of the appeal .
This accounts for the registrar having to immediately notify the local registrar 2015 CanLIIDocs 293 (of the judicial centre in which the judgment was rendered), of the taking of an appeal, and then to provide written confirmation thereof .
On a related note, the time for appeal may be extended but only in accordance with the provisions of the Divorce Act . (See, for example, Wood v Wood, 2001 SKCA 2, 13 RFL (5th) 216 (appeal in general), and He v Chen, 2010 SKCA 29, 346 Sask R 274 (appeal re divorce) ).
See, too, Rule 15-46 of The Queen’s Bench Rules, which requires the appellant to file a copy of the notice of appeal from a judgment granting a divorce, or a copy of an order extending the time for appeal, with the local registrar in the office in which the judgment granting the divorce was entered .
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Expedited appeal 43(1) In this rule, “expedited appeal” means one of the following appeals: (a) an appeal from a judgment in chambers; (b) an appeal from a judgment rendered after trial on an agreed statement of facts without additional oral evidence;
Part Two The Court of Appeal Rules (Civil) 189 R. 43
(c) an appeal from a judgment relating to the custody of a child or dependent adult or to the appointment of a legal custodian or guardian of a child or dependent adult; (d) an appeal that the court or a judge orders to be treated as an expedited appeal because of its urgency. (2) The regular procedure for appeals set forth in these rules applies to expedited appeals subject to the following variations: (a) no agreements as to the transcript of evidence or the contents of the appeal book are required; (b) the appellant shall serve and file the appeal book and factum with all appropriate copies: (i) within 30 days after filing the notice of appeal; or (ii) in the case of an appeal requiring a transcript, within
30 days after the registrar notifies the appellant that the 2015 CanLIIDocs 293 transcript has been received; (c) the respondent shall serve and file its factum with appropriate copies within 15 days after receipt by a respondent of the appellant’s appeal book and factum. (3) If a dispute arises over the contents of an appeal book on an expedited appeal, either party may apply to a judge to have the matter in dispute settled.
Commentary The purpose of the rule
As the term “expedited” appearing in the heading of Rule 43 suggests, the object of the Rule is to allow an appeal to be heard and determined more quickly and less expensively than would otherwise be the case, having regard for the nature or urgency of the matter .
The operation of the rule
The Rule operates in one of two ways: (1) It defines an expedited appeal by reference to the nature of the judgment (Rules 43(1)(a), (b), and (c)) and then varies some of the usual
190 Civil Appeals in Saskatchewan R. 43
procedural requirements, including the usual need for agreements relating to the transcript and the contents of the appeal book (Rule 43(2)) .To this extent, the Rule operates automatically in relation to appeals concerning judgments made: • in chambers (whether in the Court of Queen’s Bench or the Court of Appeal) • after trial on an agreed statement of facts and without oral evidence, and • in proceedings regarding child custody or dependent adult custody and guardianship . On an appeal from judgments of this nature the Rule serves in effect to waive compliance with Rules 19 (Agreement as to transcript of evidence) and 22 (Agreement as to contents of appeal book) and thus allow the appeal to be heard more quickly and less expensively than is ordinarily the case .
In keeping with this objective, the appellant must serve and file the appeal book and factum within 30 days after filing the notice of appeal or, if a transcript is required, within 30 days of its receipt . And the respondent must 2015 CanLIIDocs 293 file a factum within 15 days thereafter .
(2) The Rule empowers the court or a judge to order that an appeal be treated as an expedited appeal by reason of urgency (Rule 43(1)(d)) . Such orders may be made on application by one or both of the parties, or at the instance of the court or a judge, in circumstances of urgency . In this context the rule is often invoked in conjunction with Rule 15 (stays of execution and proceedings) . This is particularly so in relation to family law matters such as child custody, child and spousal support, and so on .
Case Law
An application to stay enforcement proceedings relating to a child support order was dismissed, given the fact the appeal book and factum were already filed, the appeal was of a type that could be expedited under Rule 43 in general, and the registrar would arrange an early date for the hearing of the appeal: Bogdan v Bogdan, 2003 SKCA 29 .
On lifting the stay of execution of a judgment denying the father access to an infant child, an order was made on the authority of Rule 43 in general for an expedited appeal: Hendricks v Swan, 2007 SKCA 46, 293 Sask R 158 .
Upon dismissing an application under Rule 15 to lift the stay of execution of a judgment relating to the custody of a seven-year-old child (the effect of which
Part Two The Court of Appeal Rules (Civil) 191 R. 44
judgment was to substantially alter the status quo), an order was made on the combined authority of Rule 43(1)(d) to expedite the hearing of the appeal by means, among others, of directing the appeal be heard at the sittings of the court to be held the following month, with the judge remaining seized of the file pending the hearing: Stavric v King, 2008 SKCA 139 .
On temporarily declining to lift the stay of execution of a judgment ordering a judicial sale, and by reason of the urgency of the situation, an order was made on the authority of Rule 43(1)(d) directing the appeal be treated as an expedited appeal to be perfected on a set of special directions, including these: (i) that the appeal be set down for hearing on a fixed date that allowed for only 19 days to have the appeal made ready for hearing; and (ii) that the application to lift the stay be referred for further decision to the panel of judges designated to hear the appeal: Royal Bank of Canada v Rak, 2004 SKCA 61 .
On an application for an order to continue a pre-trial injunction (which had fallen by the wayside as a result of the judgment under appeal having dismissed
the underlying action), an order was made dismissing the application, but, 2015 CanLIIDocs 293 given the potentially pressing state of affairs, an order was made pursuant to Rule 43(1)(d) directing that the appeal be treated as an expedited appeal and suggesting that it be heard within eight to ten weeks: O’Brien v O’Brien Estate (1998), 172 Sask R 80 (CA) .
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Stated case 44(1) In every stated case where the applicable statute provides a time limit within which the court must rule on the case, the registrar shall, subject to direction by the Chief Justice, enter the case for hearing by the court on receipt of the case. The applicant may apply to a judge for directions as to the filing of or dispensing with a case book and factum. (2) A stated case shall be treated in the manner of an expedited appeal.
Commentary The purpose and operation of the rule
The object is to ensure that, where an enactment provides for appeal by way of stated case and imposes a time limit for a decision on the case, the time limit is met .
192 Civil Appeals in Saskatchewan R. 44
In the interest of achieving the object, the Rule operates to require the registrar, subject to the direction of the chief justice, to set the case down for hearing immediately upon receipt of the stated case and to direct that the case be treated as an expedited appeal .
Appeal by way of “stated case”
This is a particular mode of appeal (specified by statute in some instances) that requires the decision-maker (usually an administrative tribunal) to state the case to be heard by the court .
In general, this mode of appeal calls upon the decision-maker to frame the case by first stating the facts as found, the law that was relied upon, and the conclusion arrived at; and by then posing a question or questions for the determination of the court . The question or questions are confined to those that arise out of the decision and the grounds upon which the decision has drawn objection . 2015 CanLIIDocs 293 Traditionally, some enactments granting a right of appeal from a decision of an administrative tribunal specified this mode of appeal whereas others did not . This could be confusing, and over time this mode of appeal has increasingly given way to the conventional mode of appeal, being that prescribed by The Court of Appeal Rules in general . This is particularly so in respect of rights of appeal from decisions of administrative tribunals, in which rights of appeal are frequently restricted to a question of law or jurisdiction .
For example, appeals relating to decisions of the Assessment Appeals Committee of the Saskatchewan Municipal Board were required by statute to be brought by way of stated case, whereas appeals relating to decisions of the Surface Rights Compensation Board of Arbitration were required by statute to be brought by way of conventional appeal . In keeping with the trend away from appeal by way of stated case, the former are no longer required to be brought via this mode of appeal .
Case Law
In addressing an appeal brought pursuant to section 71 of The Surface Rights Acquisition and Compensation Act, RSS 1978, c S-65, the court commented upon the distinction between the two modes of appeal: Fletcher Challenge Energy Canada Inc. v Sulz, 2001 SKCA 11, 203 Sask R 115 . The court there said this of the matter, beginning with the conventional mode of appeal provided for by The Court of Appeal Rules generally:
Part Two The Court of Appeal Rules (Civil) 193 R. 44
[45] We might add that these appeals are not to be confused with stated cases as, for example, in Regina (City v. Laing Property Corp. (1994), 128 Sask . R . 29 . Such cases typically posed a set of questions of law or jurisdiction for the opinion of the Court, each of which was expected to be answered “yes” or “no”, with the opinion of the Court then being conveyed to the board . This is not the nature of a s . 71 appeal, which is a very different matter, both in point of form and substance . A s . 71 appeal is an appeal, in the true sense, against an order, decision or award of the Board, and is aimed at the powers conferred on the Court by s . 12 of The Court of Appeal Act . The significance of this, as a matter of practice, is that if the order granting leave to appeal sets out the grounds of appeal in the form of a series of questions of law, as the order in this case did, the function of the Court is not to answer each of the questions. Its function is to decide the appeal on one or more of the grounds raised in the order, invoking the Court’s appellate powers, except for its powers 2015 CanLIIDocs 293 pertaining to questions of fact . It might be better, to avoid confusion in this regard, if orders granting leave to appeal were to set out the grounds in conventional fashion, rather than pose a series of questions, bearing in mind that only grounds of appeal based on questions of law or jurisdiction qualify for leave . [bold added for emphasis]
While the “stated case” is no longer the prescribed mode of appeal in relation to decisions of the Assessment Appeals Committee of the Saskatchewan Municipal Board, the case authority in this context nevertheless remains instructive in this and other respects .
See, for example: • Kannata Highlands Ltd. v Kannata Valley (Village) (1987), 61 Sask R 292 (CA) (court exercising appellate rather than supervisory jurisdiction) • Marathon Realty Co. v Regina (City) (1989), 64 DLR (4th) 241, 80 Sask R 53 (CA) (question of law only—precluding “critical analysis” of the facts—and standard of review) • Cedar Meadows Condominium v Regina (City) (1990), 89 Sask R 242 (CA) (precision called for in framing questions for the court) • Regina (City) v Laing Property Corp. (1994), [1995] 3 WWR 551, 128 Sask R 29 (CA) (questions restated)
194 Civil Appeals in Saskatchewan R. 45
• Saskatchewan Municipal Board v First City Trust Co. (1996), 144 Sask R 56 (CA) (remedy for resolving disputes over the framing of the questions), and • Muzichuk v Buchanan Conservation and Development Area Authority, 2004 SKCA 158 (review of evidence beyond the capacity of the court) .
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PART XII Abandonment and Dismissal for Want of Prosecution
Abandonment 2015 CanLIIDocs 293 45 A party intending to abandon an appeal, cross-appeal or application shall serve on all other parties a copy of the notice of abandonment and file the original with proof of service. The other parties shall be entitled to their taxable costs without order. (Form 8)
Commentary The purpose and operation of the rule
The purpose of Rule 45 is twofold: • to establish a formal process of abandonment, and • to provide for the recovery of costs, to the point of abandonment, by the opposite party .
The Rule operates in relation not only to the abandonment of an appeal and a cross-appeal, but also to the abandonment of an application . The costs to the point of abandonment are recoverable without order, meaning the taxation of the costs, if necessary, may proceed on the authority alone of the notice of abandonment .
The Rule implicitly contemplates the service and filing of the requisite notice of abandonment as soon as the decision to abandon is made . Delay can result in
Part Two The Court of Appeal Rules (Civil) 195 R. 46
driving up the recoverable costs if the opposite party, unaware of the decision to abandon, should take a further step in the proceedings . In such event, costs of the further step are ordinarily recoverable on order of the court .
Case Law
Where an appellant decided to abandon an appeal but neglected to serve and file the requisite notice of abandonment, and the opposite party, unaware of the decision to abandon, made an application for relief in the context of the appeal proceedings, the appellant was ordered on the hearing of the application to pay the costs of that application: Beier v Beier, 2011 SKCA 71 .
See, too: Noble Holdings Ltd. v Basler Holdings Ltd., 2005 SKCA 4 (appeal abandoned at the hearing of the appeal rather than before) .
In a case in which one of the parties to an ongoing action in the Court of Queen’s
Bench abandoned an appeal of an interlocutory order, an order was made in that 2015 CanLIIDocs 293 court on the combined authority of Rule 45 of The Court of Appeal Rules and former Rule 566(o) of The Queen’s Bench Rules (now Rule 11-8) for the recovery of costs associated with the abandoned appeal: Popoff v Popoff, 2000 SKQB 151, 193 Sask R 51 .
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Dismissal for want of prosecution 46(1) An appellant shall diligently prosecute its appeal, perfecting the appeal within the time period prescribed by these rules. If an appellant fails to do so, a respondent may apply to a judge for an order requiring the appeal be perfected by a fixed date, failing which the appeal may be exposed to dismissal by the court for want of prosecution. (Forms 6 and 7) (2) If an appeal has not been set down for hearing within one year after the notice of appeal has been filed, the registrar may, upon notice to the parties, refer the matter to the court to be dismissed as abandoned. Notice shall be given in Form 9, and the parties shall have 15 days to apply to the court to show cause why the appeal should not be dismissed.
196 Civil Appeals in Saskatchewan R. 46 Commentary The purpose of the rule
The purpose of Rule 46 ties in with the general purpose of the rules as expressed in Rule 3, namely to provide for the orderly and expeditious administration of justice in the court .
The operation of the rule
The Rule operates to pave the way, so to speak, to obtain an order of the court (in contradistinction to a judge of the court) to dismiss an appeal if the appellant fails to move it along in a timely way as expected by the Rules in general .
The Rule operates in one of two ways as provided, in turn, by Rule 46(1) and Rule 46(2) . 2015 CanLIIDocs 293 Rule 46(1)
This Rule empowers a judge of the court (on application made by a respondent) to direct that the appeal be perfected by a fixed date, failing which the respondent may then apply to the court to dismiss the appeal for want of prosecution .
The power of a judge to direct that an appeal be perfected by a fixed date includes the power: (i) to order the appellant to obtain a transcript, if required; (ii) to serve and file an appeal book and factum within prescribed periods of time; and (iii) to grant leave to the respondent, in the event of non-compliance with the order, to apply to the court to have the appeal dismissed: Hoknes v Thiessen, 2014 SKCA 65, 438 Sask R 226 .
In Hoknes v Thiessen the court dismissed an appeal (for want of prosecution) from a judgment directing specific performance of a contract for the sale of a house because the appellant failed to perfect his appeal in accordance with an order of a judge of the court directing that he do so within a specified period of time .
Rule 46(2)
This Rule empowers the registrar, whenever an appeal has not been set down for hearing within one year of its launch, to refer the appeal to the court to be dismissed as abandoned .
Upon referral to the court, the party in default is expected to appear before the court, on a show cause hearing, to show why the appeal should not be dismissed as abandoned .
Part Two The Court of Appeal Rules (Civil) 197 R. 46.1
Further Commentary
For further commentary on the operation of the Rule, and its application in practice, see: Cameron J .A ., “Civil Appeals to the Court of Appeal: Practice and Procedure” (Regina: Law Society of Saskatchewan, 2009) at 35 to 36, available online at www .sasklawcourts .ca .
Practice Tip
A surprising number of applications to dismiss or strike an appeal for one reason or another end up before a judge, rather than the court, even though only the court is empowered to dispose of an appeal. The power of a single judge in chambers is limited by subsection 20(1) of The Court of Appeal Act, 2000 (Judge in chambers) to disposing of an application or motion that is incidental to the appeal or to a related matter, and that does not involve the disposition of the appeal proper. 2015 CanLIIDocs 293
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PART XII.1 Prohibiting Vexatious Proceedings
46.1(1) On application by any party to an appeal, the court may make an order quashing an appeal on the ground: (a) it discloses no right of appeal; (b) it is frivolous or vexatious; (c) it is manifestly without merit; or (d) it is otherwise an abuse of the process of the court. (2) Before an order is made under Subrule (1), the appellant shall be given an opportunity to be heard in accordance with Part XIV.
46.2(1) If, on application of any person, the court or a judge is satisfied that a person has habitually, persistently, and without reasonable cause commenced frivolous or vexatious proceedings
198 Civil Appeals in Saskatchewan R. 46.2
in the court, the court or a judge may make an order prohibiting the commencement of proceedings without leave of the court or a judge. (2) Before an order is made under Subrule (1), the person against whom such an order may be made shall be given an opportunity to be heard in accordance with Part XIV.
Commentary The purpose
Rules 46 .1 and 46 .2 were made for the purpose of formalizing the exercise by the court of its inherent jurisdiction to control its own process to the end of preventing the abuse thereof by persons who, by reason of bad faith, irrational judgment, or otherwise, are prompted to abuse the process in one way or another . 2015 CanLIIDocs 293
The operation
These rules operate in one of two ways as provided for, in turn, by Rule 46 .1(1) and Rule 46 .2(1) .
Rule 46.1(1)
This rule operates (on application of a party to an appeal) to pave the way for the court to quash the appeal on the ground the appeal: • discloses no right of appeal • is frivolous or vexatious • is manifestly devoid of merit, or • is otherwise an abuse of the process of the court .
In this way, the rule operates to facilitate the convenient disposition of such appeals without further cost being incurred .
Rule 46.2(1)
This rule operates (on application of any person) to pave the way for the court, or a judge of the court, to make an order prohibiting another person from commencing any proceedings without leave of the court or a judge if that other person has
Part Two The Court of Appeal Rules (Civil) 199 R. 46.2
habitually, persistently, and without reasonable cause commenced frivolous or vexatious proceedings in the court .
In this way, the rule operates to facilitate the protection of persons from being drawn into unreasonable proceedings launched by unreasonable persons, bearing in mind the resulting disruption, cost, time, and unfairness to others .
Case Law
While the court is not possessed of statutory power to quash an appeal as amounting to an abuse of process, “every court of justice has an inherent jurisdiction to prevent such abuse of its own procedure”: 586903 Saskatchewan Ltd. v Dube Investments Ltd. (1994), 123 Sask R 315 (CA) . In so holding, the court said this of the matter: [3] In National Life Assurance Co. of Canada v.
McCoubrey, [1926] S .C .R . 277, at p . 282 the court suggested 2015 CanLIIDocs 293 to the respondent’s counsel, on a motion to quash for other reasons, that he should consider the advisability of asking the appeal be quashed for “such manifest lack of substance as would bring it within the character of vexatious proceedings designed merely to delay the (appellant’s) recovery” . Anglin, C .J .C ., went on to say: “Every court of justice has an inherent jurisdiction to prevent such abuse of its own procedure, Reichel v. McGrath [[1889] 14 A .C . 665] . If an appeal, though within its jurisdiction, be manifestly entirely devoid of merit or substance, this court will entertain favourably a motion to quash it, as it does in cases where costs only are involved, …as a convenient way of disposing of the appeal before further costs have been incurred ”. Ultimately, the appeal was struck . See also: Ezrin v. Becker, [1975] 1 S .C .R . 508…at p . 511 .
A single judge in chambers is not empowered to quash an appeal on the bases listed in Rule 46 .1(1): St. Cyr v St. Cyr Estate, 2000 SKCA 75 . See, too: Sinclair v Webb, 2011 SKCA 90; F.M.I. Developments Ltd. v 1269917 Alberta Ltd., 2011 SKCA 94, 375 Sask R 175 (matter set down to be heard by the court at the next sitting) .
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200 Civil Appeals in Saskatchewan R. 47
PART XIII Re-Hearing
Re-hearing 47(1) There shall be no re-hearing of an appeal except by order of the court as constituted on the hearing and determination of the appeal. (2) An application requesting a re-hearing shall be by notice of motion, served and filed before the formal judgment is issued. (3) The notice of motion shall state the grounds for the application and shall be supported by a memorandum of argument. (4) The notice and memorandum shall be served on all other parties that appeared upon the appeal. 2015 CanLIIDocs 293 (5) Within 10 days after the service of the notice and memorandum, the other parties to the appeal may serve and file a memorandum in writing in response to the motion. (6) The formal judgment shall not be issued until an application requesting a re-hearing has been disposed of.
Commentary The purpose and operation of the rule
Rule 47 has a threefold purpose: • to clarify the bases upon which a re-hearing may be allowed (Rule 47(1)) • to provide the procedure to be followed in requesting a re-hearing (Rules 47(2), (3), (4), and (5)), and • to ensure the judgment of the court does not issue pending the re-hearing of an appeal (Rule 47(6)) .
The Rule operates subject to section 16 of The Court of Appeal Act, 2000 (Re-hearings) . As provided for by section 16, the re-hearing of an appeal is mandatory in some circumstances, discretionary in others .
Part Two The Court of Appeal Rules (Civil) 201 R. 47
Mandatory re-hearing
The court must re-hear an appeal or matter in the circumstances mentioned in section 16 of the Act . Section 16 provides that, where an appeal or matter has been heard and is standing for judgment, the court must re-hear the appeal in the following circumstances: • if by reason of the death, resignation, or absence of two or more of the judges who heard the appeal, only one of the judges who heard the appeal or matter remains (subsection 16(1)), or • if the number of judges who heard an appeal or matter is later reduced to an even number, the remaining judges are equally divided on the result, and a party applies for a re-hearing (subsection 16(2)) .
The latter was enacted in response to the decision in Storey v Zazelenchuk (1985), 40 Sask R 241 (CA) . In this case, the court by majority judgment dismissed an application to re-hear an appeal in consequence, first, upon the retirement of one of five judges who heard the appeal and, second, an even split among the 2015 CanLIIDocs 293 remaining four .
For further consideration of this subject, see the commentary under section 16 of the Act .
Discretionary re-hearing
In circumstances other than those mentioned in section 16 of the Act, the court may in its discretion re-hear an appeal, even after judgment has been rendered, provided the formal judgment has not issued .
If the formal judgment has issued, the court is restricted to reconsidering it for the sole purpose of determining whether the judgment as entered truly represents the intention of the court .
Otherwise the court may reconsider its decision, but the power to re-hear has been traditionally exercised in only exceptional or special circumstance: Storey v Zazelenchuk .
Case Law General principles
As noted by the majority in Storey v Zazelenchuk (1985), 40 Sask R 241 (CA) at 243 to 244:
202 Civil Appeals in Saskatchewan R. 47
[2] There are two general classes of rehearings: those where the judgment has been perfected and those where it has not . Where the judgment has been perfected, the court is restricted to reconsidering its judgment to determine only whether the judgment entered truly represents the intention of the court or whether there has been a slip in drawing up the judgment . (See: Kuziak v. Romuld (No. 2) (1966), 58 W .W .R . (N .S .) 462; 60 D .L .R . (2d) 286, and Canfarge Ltd. v. Neumann, Derksen and Ethier, [1974] 6 W .W .R . 283) . Where the judgment has not been perfected, as in the present case, the court has a much broader power of rehearing . (See: Metz v. Marshall, [1923] 1 W .W .R . 201; 16 Sask . L R. . 521; [1923] 1 D .L .R . 367; Friesen et al. v. Saskatchewan Mortgage and Trust Corporation Limited, [1926] 3 W .W .R . 125; 21 Sask . L .R . 8; [1926] 4 D .L .R . 496 (C .A .), and Shaw v. City of Regina, City of Saskatoon et al., [1944] 1 W .W .R . 433) . The only issue before us is whether that power should be exercised . 2015 CanLIIDocs 293 … [5] …The guiding principle in rehearing applications in civil matters where the judgment has not been perfected seems to be that a Court of Appeal will reconsider its judgment only in special or unusual circumstances (see: Metz v. Marshall, supra, Shaw v. City of Regina, supra, Woodpulp Inc (Canada) v. Jannock Industries Ltd. (1979), 33 N .B .R . (2d) 652; 80 A .P .R . 652; Fruehauf Trailer Company v. McCrea et al. (1955), 38 M .P .R . 151) . In Metz, Martin, J .A . (later C .J .S .), on behalf of this court, said at p . 203: “But while many authorities may be cited to the effect that a court has jurisdiction to rehear before the formal order is entered, I have been unable to find any case where after judgment was given on the evidence, as in the present case, a court reheard, reviewed or practically retried a case on the grounds that the court had been mistaken in its interpretation of the evidence; and I am of the opinion that such application should only be entertained under very exceptional circumstances, otherwise there could be no finality to litigation ”. In Shaw, Martin, C .J .S ., for the court, stated at p . 449: “Applications for rehearing however should not be encouraged because of the desirability of having a finality to litigation . In this case however, as the
Part Two The Court of Appeal Rules (Civil) 203 R. 47
application is one for the rehearing of argument upon and reconsideration of a point of law involving the construction of a statute on the ground that the point was not argued on the hearing of the appeal, the court is of the opinion that the interpretation given to sec . 8(2) by the court in its reasons for judgment may properly be reviewed ”. In Woodpulp, Hughes, C .J .N .B ., for the New Brunswick Court of Appeal, relying on Fruehauf, stated at p . 654: “Before a court of appeal is justified in varying a judgment which it has rendered, the court must be satisfied that the circumstances were special or unusual ”. [6] Examples of what are and what are not special circumstances may be found in a number of cases .…In Glebe Sugar Refining Company, Limited et al. v. Trustees of Port and Harbours of Greenock, [1921] 2 A .C . 66, the House of Lords heard reargument on the ground a certain section of an 2015 CanLIIDocs 293 Act had not been drawn to their attention . Subsequently, their Lordships found the section to govern the case . Similarly, in Shaw the existence of a point of law involving the construction of a statute most relevant to the appeal and not argued on the hearing of the appeal was considered a special circumstance . In Woodpulp, an omission by counsel and the court to properly assess an item that had the effect of changing the judgment by $24,671 .57 was found to be a special circumstance: the sum involved was large enough to justify a further appeal . [7] On the other hand, in Canadian Utilities Ltd. v. Mannix Ltd. and London Guarantee & Accident Co. Ltd. and Haddin, Davis & Brown Ltd. (1960), 21 D .L .R . (2d) 269, the Alberta Court of Appeal held that where counsel sought to further interpret a contract on a question already covered in the judgment, no special circumstance existed . Similarly, as noted, in Metz this court found that no special circumstance existed where counsel requested the court to merely review the evidence and rehear the case on the ground that the decision was not warranted by the evidence . [bold in original]
Application of general principles
Following a split decision on an appeal, an application asking the three-member court to withdraw its reasons for judgment and direct a re-hearing before a full
204 Civil Appeals in Saskatchewan R. 48 court was dismissed by the majority on the basis of principle articulated in Storey v Zazelenchuk (1985), 40 Sask R 241 (CA): Armco Canada Ltd. v P.C.L. Construction Ltd. (1986), 33 DLR (4th) 621, 52 Sask R 100 (CA) .
The fact an appeal was decided on the basis of a question from the bench that caught counsel off guard (though the question was not altogether foreign to the proceedings), was held not to amount to a “special circumstance” within the contemplation of Storey v Zazelenchuk: Borrowman v Wickens (1986), 50 Sask R 124 (CA) .
Having regard for Storey v Zazelenchuk, as well as Armco Canada, the court held that “an allegation” the judgment of the court is wrong does not warrant a re- hearing of an appeal, for a re-hearing will only be ordered “in special or unusual circumstances…[and] there must be something more than just an allegation that the judgment is wrong”: HDL Investments Inc. v Regina (City), 2008 SKCA 59 [emphasis added] .
On an application for a re-hearing, brought in conjunction with an application to adduce fresh evidence, the court held that this evidence: (i) was not “new” inasmuch as it was similar to, or amounted to, that which was in existence at the 2015 CanLIIDocs 293 time of the original hearing; (ii) was tied to the question of whether the court erred in its initial decision; and (iii) was not such as to give rise to special or unusual circumstances inasmuch as “it is not sufficient to demonstrate error in the judgment for which a re-hearing is sought”: Chutskoff Estate v Ruskin Estate, 2011 SKCA 47 [emphasis added] .
Practice Tip
The subject of re-hearing has evolved, making it imperative to have regard for the provisions of section 16 of The Court of Appeal Act, 2000 (Re-hearings) in considering whether to apply for a re-hearing. This is so because these provisions were aimed at overcoming some of the earlier case law.
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PART XIV Applications
Form of applications 48(1) Unless otherwise provided, an application to the court or a judge shall:
Part Two The Court of Appeal Rules (Civil) 205 R. 48
(a) be by notice of motion in the form provided in the rules or in accordance with Subrule (2); (b) have attached all material upon which the applicant relies to support the application; and (c) be served and filed at least three clear days before the date set for hearing the application. (2) Where no form is provided by the rules for a particular motion, the notice shall: (a) state the basis for the motion; (b) set forth the grounds upon which the motion is made; and (c) state precisely the relief sought by the applicant. (3) An application to a judge shall be made returnable on a regular chambers date and the hearing of any application may, from time to time, be adjourned upon such terms, if any, as a 2015 CanLIIDocs 293 judge shall think fit. (4) Regular chambers sittings are to be held: (a) in Regina on the second and fourth Wednesdays of each month; and (b) in Saskatoon on the first day of each regular court sitting. (5) A party intending to oppose an application shall: (a) serve a copy of each affidavit upon which that party intends to rely at the hearing on every other party to the application; and (b) file each affidavit with proof of service at least one clear day before the day set for hearing the application. (6) If a party files a brief of law with respect to an application, the brief: (a) must be concise and must address the legal aspects of the case; and (b) must be served on every other party to the application and filed at least one clear day before the day set for hearing the application. (7) If a judge or the registrar is satisfied that the matter is urgent, the judge or registrar may arrange a special chambers sitting.
206 Civil Appeals in Saskatchewan R. 48
(8) Where the parties agree, an application in chambers may be determined on the basis of written submissions. (9) Where the parties agree or the registrar directs, an application in chambers may be made by telephone conference.
Commentary The purpose and operation of the rule
The purpose of Rule 48 is to provide for the orderly making of applications of one kind or another to the court or a judge .
The Rule applies to all manner of applications, including applications under Rule 11 (Leave to appeal); Rule 15 (Stays of execution and proceedings); Rule 17 (Intervention); Rule 46(1) (Perfecting appeal or dismissing for want of prosecution); Rule 71 (Extension of time); and so on . 2015 CanLIIDocs 293
In the case of applications for leave to appeal, however, Rule 48 falls to be read in conjunction with Rule 49, which is specifically geared to applications for leave to appeal and contains a number of requirements specific to such applications—requirements that differ in some significant respects from those applicable generally .
Rule 48(1)(a) requires that all applications be made by way of notice of motion in prescribed form (if one is provided in the schedule of forms), or else in accordance with Rule 48(2) . The forms prescribed for this and other purposes appear in Appendix I .
Rule 48(1)(c) provides that a notice of motion be served and filed at least three clear days before the date set for the hearing of the application . The expression “three clear days” operates so as to exclude both the day of the service and filing of the notice of motion and the day of the hearing of the application .
Rule 48(2) goes on to require that a notice of motion state precisely the relief sought by the applicant . This is an important feature of Rule 48 as a whole, especially where the form of relief sought by the applicant has more than one component to it, or is made up of more than one form of relief, or has conditions attached to it, and so on .
Rules 48(5) and (6) stipulate that affidavits and briefs of law in support of any application be served on every other party to the application and that they be filed at least one clear day before the date set for the hearing of the application . The term “clear day” operates to exclude both the day of filing and the day of the hearing .
Part Two The Court of Appeal Rules (Civil) 207 R. 49
Applications for leave to appeal or for prerogative relief are subject to additional requirement, as provided for in Rules 49 (Application for leave to appeal) and 50 (Crown Practice application) .
Practice Tip
While the Rule does not so require, it is always helpful, no matter the nature of the application, to include a draft order setting out the relief being sought. This helps to ensure compliance with Rule 48(2)(c) and paves the way, when an order is granted, for the issuance of the order without the need for further clarification.
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Applications for leave to appeal 2015 CanLIIDocs 293 49 Where an application is made for leave to appeal, the applicant shall: (a) provide the registrar with the file of the court appealed from; and (b) file with the application: (i) the judgment or order issued by the court appealed from; (ii) the reasons for the judgment or order, if any; (iii) a draft notice of appeal; and (iv) a memorandum specifying the grounds for seeking leave. (Forms 4a and 4b)
Commentary
Rule 49 was adopted to the end of ensuring, which was not always the case, that applications for leave to appeal be fully and appropriately supported having regard for the specific nature of such applications and the need for an orderly approach to their undertaking .
208 Civil Appeals in Saskatchewan R. 50
Hence, an applicant for leave to appeal must not only provide the registrar with the file from the court below but must also file: • the judgment or order issued by the court below • the reasons for judgment • a draft notice of appeal, and • a memorandum specifying the basis for seeking leave .
The reason for requiring an applicant for leave to appeal to file the judgment or order as issued in the court below lies in the long-standing notion that until the judgment or order is issued or taken out there is nothing, strictly speaking, from which an appeal may be taken .
The memorandum required to be filed in support of an application for leave to appeal is expected to briefly address the question of whether the proposed appeal warrants leave to appeal, which is to say whether the proposed appeal is of sufficient merit and importance to warrant the attention of the court having regard for the conventional considerations, material to the question, mentioned 2015 CanLIIDocs 293 in Rothmans, Benson & Hedges Inc. v Saskatchewan, 2002 SKCA 119, 227 Sask R 121 .
For a detailed consideration of the subject of leave to appeal, see the commentary accompanying each of section 8 of the Act and Rule 11 of the Rules .
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Crown Practice applications 50(1) An application to the court for a prerogative writ of mandamus, for a writ of certiorari or order to quash proceedings without the actual issue of the writ, for a writ of habeas corpus, for prohibition, or for an information in the nature of a quo warranto shall be made by notice of motion, in accordance with the practice of this court. (2) The court may grant ex parte an order for the immediate issue of a writ of habeas corpus. (3) A party making an application under this rule shall file the address information required by Rule 65 (Address for service).
Part Two The Court of Appeal Rules (Civil) 209 R. 51 Commentary
Rule 50 provides the procedure to be followed when applying to the court for prerogative relief in the form of mandamus, certiorari, prohibition, and so on .
These forms of prerogative relief may be granted by the court in the exercise of the original jurisdiction conferred on the court by section 11 of The Court of Appeal Act, 2000 (Original jurisdiction) .
Only in “special cases” or “extraordinary circumstance”, however, does the court exercise its original jurisdiction to grant relief in the nature of a prerogative writ: Geller v Saskatchewan (1987), 44 DLR (4th) 245, 59 Sask R 168 (CA) .
For what constitutes “extraordinary circumstances” in this context, see the commentary accompanying section 11 of the Act .
In the absence of such circumstances, a person desirous of obtaining prerogative
relief must apply to Court of Queen’s Bench in accordance with Subdivision 2 2015 CanLIIDocs 293 of Division 3 of Part 3 of The Queen’s Bench Rules (Additional Rules Specific to Originating Applications for Judicial Review) .
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Queen’s Bench Rules to apply 51 Subject to these rules, Subdivision 2 of Division 4 of Part 13 of The Queen’s Bench Rules shall apply, with any necessary modification, to an application to the court or a judge.
Commentary
Subject to The Court of Appeal Rules in general, Rule 51 applies to all applications to the court or a judge .
The Rule renders Subdivision 2 of Division 4 of Part 13 of The Queen’s Bench Rules (Form and Contents of Affidavits and Exhibits) applicable to proceedings in the Court of Appeal, subject to necessary modification .
Thus affidavits intended for use in the Court of Appeal must comply with Rules 13-30 to 13-38 of The Queen’s Bench Rules . These Rules are appended hereto as Appendix III . In sum, they provide as follows:
210 Civil Appeals in Saskatchewan R. 52
• Rule 13-30: Affidavits are to be based on knowledge or belief as required .
• Rule 13-31: Affidavits must be in approved form, contain prescribed particulars, and be adopted in the required manner, failing which costs may be withheld .
• Rule 13-32: Affidavits must not contain any but properly endorsed alterations, failing which they will not be used without leave of the court or a judge .
• Rule 13-33: Affidavits must not contain scandalous material, which is subject to being struck out by the court or a judge .
• Rule 13-34: Documents are to be marked as exhibits, and may or may not be annexed to the affidavit but must be filed or left with the court in prescribed manner and form .
• Rule 13-35: The swearing or affirmation of affidavits by the visually
impaired or the illiterate must comply with special requirements as 2015 CanLIIDocs 293 provided for by Rule 13-36 . It is the responsibility of persons administering affidavits to ensure the content is understood .
• Rule 13-37: Affidavits made by two or more persons must so state and must be sworn or affirmed individually and separately .
• Rule 13-38: Affidavits complying with the rules may be used and received routinely but with some restrictions in the case of affidavits in answer to those of the opposite party, which can only be made with leave of the court or a judge and only in respect of new matters arising out of those affidavits .
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PART XV Costs and Enforcement of Judgment
Costs 52 The court may make any order as to the costs of an appeal, cross- appeal or application to the court that it considers appropriate. A judge may make any order as to costs in a proceeding before the judge.
Part Two The Court of Appeal Rules (Civil) 211 R. 52 Commentary
Rule 52 empowers the court or a judge, as the case may be, to award costs in relation to proceedings in the court . As such, the Rule falls to be read in conjunction with Rule 54, which provides the mechanism for the quantification of such awards by way of taxation .
The object of the rule
The object of Rule 52 lies in the purpose or purposes of an award of costs . Cost awards serve a mix of traditional and contemporary purposes: • to ensure an efficient, orderly, and fair legal process • to indemnify or compensate the successful party in connection with the expenses incurred in relation to the proceedings, at least in significant part 2015 CanLIIDocs 293 • to discourage meritless, frivolous, or vexatious proceedings, and • to sanction conduct that increases the duration or expense of the proceedings or that is otherwise unreasonable .
See British Columbia (Minster of Forests) v Okanagan Indian Band, 2003 SCC 71, [2003] 3 SCR 371 .
The practice re costs in general
The power to award costs constitutes a broad-based discretionary power, which in principle is largely unfettered in its exercise . But it is customarily exercised to the end of achieving one or more of the above purposes .
In the ordinary course, costs associated with an appeal are awarded to the successful party and fall to be taxed as between party and party in accordance with Rule 54 (Taxation of costs) and the Tariff of Costs in the Court of Appeal, appended hereto as Appendix IV .
Where success is divided (in the sense each of the parties achieves a significant measure of success), the parties are ordinarily left to bear their own costs, with no order for costs being made in that case .
Outside the ordinary course, all manner of cost awards are possible, having regard for the purposes of such awards and the circumstances of the case . Thus, costs may be awarded in a fixed amount, apportioned, withheld, denied, set off, awarded selectively (including on a solicitor and client basis), and so on, depending on the circumstances and the purpose or purposes engaged by the particular case .
212 Civil Appeals in Saskatchewan R. 53
An award of costs as between the parties to an appeal or an application may be directed by the court or a judge, as the case may be, to be taxed as between solicitor and client as provided for by Rule 54(2), though such awards are made only in exceptional circumstances . (See the commentary under Rule 54 (Taxation of costs) for the bases upon which an award of costs of this nature may be made .)
Practice Tip
Appellate courts are generally consistent when it comes to the award of costs, meaning the case authority found in the work of Mark M. Orkin, The Law of Costs, loose-leaf, 2d ed (Toronto: Canada Law Book, 2014), is often of considerable assistance. This is especially so of chapter 8, section 802 “Costs of Appeal”.
• 2015 CanLIIDocs 293
Security for costs 53(1) The court or a judge may in special circumstances order that security be given for the costs of an appeal. (2) Where a judge makes an order under this rule and the order is not complied with, the party in whose favour the order was made may apply to the court on 10 days notice to have the appeal dismissed.
Commentary The purpose of the rule
The purpose of Rule 53 lies in ensuring that the respondent, if successful, will in fact be able to recover such costs as may be ordered against the appellant where it appears the respondent may experience significant difficulty in doing so .
The operation of the rule
The Rule empowers thecourt or a judge, in special circumstances, to make an order requiring an appellant to give security for the costs of an appeal .
Such security may take the form of payment of an amount of money into court to await the outcome of the appeal, the deposit with the registrar of an approved letter of credit, and so on .
Part Two The Court of Appeal Rules (Civil) 213 R. 53
The Rule also allows a party in whose favour an order for security for costs is made by a judge to apply to the court, on 10 days’ notice, for an order dismissing the appeal in the event of non-compliance with an order for security for costs .
Case Law Traditional
The term “special circumstances” includes those in which: (i) the party seeking an order for security costs establishes that the appellant does not have sufficient assets within the province out of which the costs of appeal can be readily realized on execution; and (ii) it is reasonably apparent that the party making the application is apt to succeed: Cook v Orr, [1924] 3 DLR 808, [1924] 2 WWR 1131 (Sask CA); Houston v Western Trust Co., [1939] 4 DLR 751, [1939] 3 WWR 155 (Sask CA) .
The term “special circumstances” was taken to include the poverty of the appellant unless it is reasonably apparent, based upon the judgment appealed from and the 2015 CanLIIDocs 293 material before the chambers judge, that the judgment in point of law is wrong: Steen v Stewart, [1942] 3 DLR 775 (Sask CA) .
By amendment to the Rules following the decision of the court in Steen v Stewart, the Rules expressly provided that “poverty alone of the appellant shall not be deemed a special circumstance hereunder” .
However, this provision was removed from the Rules as of July 1, 1997, and accordingly impecuniousness or poverty presently constitutes a special circumstance, as comprehended by Cook v Orr, but this must be considered on balance, having regard for the merits and other circumstances of the case, so as not to unjustly deprive an impoverished appellant of his or her right of appeal: S.J.D. v J.S., 2001 SKCA 51, 207 Sask R 112 .
“Special circumstances” has been taken, at least potentially, to include those in which the appellant on an appeal from a child support order had moved from the province, substantially reduced his income, and appeared to be hiding assets and shirking his financial responsibilities: Steeves v English (1995), 137 Sask R 76 (CA) .
Contemporary
As in Farmers of North America Inc. v Bushell, 2013 SKCA 65, 417 Sask R 91, the disposition of an application for an order for security for costs engages the following general principles:
214 Civil Appeals in Saskatchewan R. 53
• As a general matter such orders will not be made on appeal because Rule 53 states that security for costs is to be ordered only in “special circumstances” . • Before making such an order, a judge must be satisfied there is a meaningful risk that, absent an order, costs will not be recovered, or recovered only with significant or unusual difficulty . • It is necessary to consider and balance the right of the respondent to a measure of financial security, on the one hand, and the competing right of the appellant to pursue relief, on the other, bearing in mind that where the appellant has a reasonable chance of success an order for security for costs may serve to deprive an impecunious or financially strapped appellant from his or her day in court . • “Special circumstances” is a flexible concept, not a closed category, and depends upon the facts of the particular case, the competing rights of the parties, and the need for a just and reasonable compromise .
Having regard for the foregoing, and the fact the appellant had failed to satisfy 2015 CanLIIDocs 293 previous awards of costs in the proceedings (which conduct constituted “special circumstances”), an order for security for costs was made in the amount of $6,000 based on the applicable provisions of the Tariff of Costs: Farmers of North America Inc. v Bushell .
Where an appeal lacked merit and both appellants lived outside the province, with neither having any assets of significance in the province, an order for security for costs in the amount of $10,000 was made, directing payment of that amount into court and noting that in the event of default, the respondents could apply to have the appeal dismissed: St. Cyr v St. Cyr Estate, 2000 SKCA 75 .
An order for security for costs in the amount of $4,500 was made where land of the appellant had been seized for non-payment of taxes, the land was only worth half the amount of taxes in arrears, the appellant had given no indication the taxes would be paid, and the appeal did not appear to have much merit: Molly Lenhardt Art Society v Melville (City), 2005 SKCA 151 .
An order for security for costs in the amount of $7,500 was made against an appellant on the ground the respondent, if successful on the appeal, was apt to have difficulty realizing on a order for costs by reason of the fact the appellant had refused to satisfy orders for costs made against her in previous proceedings: Kapacila Estate v Otto, 2009 SKCA 107 .
The fact an appellant had failed to pay the costs below, had failed for more than a year to advance the appeal in accordance with the Rules, and was unlikely to
Part Two The Court of Appeal Rules (Civil) 215 R. 54
satisfy an order for costs on appeal, was held to constitute “special circumstances” warranting an order for security for costs: Chase Bryant Inc. v Polymicron Technologies Inc., 2013 SKCA 105, 423 Sask R 254 .
An order for security for costs in an amount sufficient to cover both the costs potentially recoverable on appeal and the costs actually recovered at trial was made on the bases of “special circumstances”, including the fact that the respondent had been unable to collect the costs awarded against the appellant at trial, that the appeal was based mainly on findings of fact, and that findings of credibility adverse to the appellant’s case had been made at trial: Chase Bryant Inc. v Polymicron Technologies Inc., citing Freyberg v Fletcher Challenge Oil and Gas Inc., 2003 ABCA 208, 330 AR 130, and Pivotal Capital Advisory Group Ltd. v NorAmera BioEnergy Corp., 2008 ABCA 279, as authority for including trial costs in an order for security of costs on appeal .
• 2015 CanLIIDocs 293
Taxation of costs 54(1) Unless otherwise ordered: (a) the costs of an appeal or application shall be taxed as between party and party by the registrar in accordance with the fees set out in the appropriate column of the ‘TARIFF OF COSTS IN THE COURT OF APPEAL’, which is attached as Schedule I to these Rules; and (b) Column 2 of Schedule I applies to the taxation of costs where non-monetary relief is involved. (2) The court or a judge may direct that the costs of an appeal or application be taxed as between solicitor and client. (3) A party entitled to costs shall: (a) take out a Notice of Appointment for Taxation of Costs in Form 11a by first obtaining a date and time for taxation from the registrar; (b) prepare a proposed bill of costs in Form 11b; (c) serve the Notice of Appointment for Taxation of Costs and proposed bill of costs on the party against whom costs were imposed; and
216 Civil Appeals in Saskatchewan R. 54
(d) file the Notice of Appointment for Taxation of Costs, proposed bill of costs and proof of service with the registrar. (4) If a party entitled to costs fails or refuses to take out an appointment for taxation in Form 11c within a reasonable time, any party liable to pay costs, or any party whose costs depend on the determination of another party’s costs, may obtain a notice to take out an appointment for taxation on filing proof of: (a) a written demand for the taxation made to the party entitled to costs; and (b) the failure or refusal to take out the appointment for taxation by the party entitled to costs. (5) The party that obtains a notice to take out an appointment for taxation in Form 11c pursuant to Subrule (4) shall serve it on every party interested in the taxation. 2015 CanLIIDocs 293 (6) If the party entitled to costs fails to take out an appointment for taxation within 14 days after being served with the notice pursuant to Subrule (5), the registrar may proceed to tax the costs of that party in that party’s absence. (7) On a taxation, the registrar may do any of the following: (a) take evidence by affidavit, administer oaths or affirmations and examine witnesses, as the registrar considers appropriate; (b) require production of records; (c) require notice of the taxation to be given to all persons who may be interested in the taxation or in the fund or estate out of which costs are payable; (d) give any directions and perform any duties that the registrar considers are necessary for the conduct of the taxation; (e) refer a matter requiring direction to the court or a judge. (8) After a taxation, the registrar may do any of the following: (a) if parties are liable to pay costs to each other: (i) adjust the costs by way of set-off; or (ii) delay the allowance of costs a party is entitled to receive until that party has paid or tendered the costs that the party is liable to pay;
Part Two The Court of Appeal Rules (Civil) 217 R. 54
(b) award the costs of a taxation to any party and fix those costs. (9) The registrar shall: (a) if a party specifically objects to items on the taxation before the registrar, note those objections in the certificate as to taxation of costs; and (b) if requested to do so by a party interested in the taxation, provide written reasons for the decision.
Commentary The operation of the rule
Rule 54(1) operates in conjunction with the Tariff of Costs in the Court of Appeal, which is appended hereto as Appendix IV . 2015 CanLIIDocs 293 The Rule provides that, unless otherwise ordered, the registrar is to tax the costs as between party and party, and in accordance with the appropriate column of the Tariff or, if non-monetary relief is involved, in accordance with column 2 of the Tariff .
The term “unless otherwise ordered” extends to the court or a judge, depending upon whether the order for costs has been made by the court (on the disposition of an appeal), or by a judge (on the disposition of a matter incidental to an appeal) .
Should the court or a judge order otherwise (as either may do to achieve one or more of the purposes of an order for costs as mentioned in the commentary under Rule 52 (Costs)), the costs are to be taxed in accordance with the underlying order .
Rule 54(2) provides for a particular form of the term “unless otherwise ordered”, namely for an order by the court or a judge directing that costs as between party and party be taxed as between solicitor and client .
Rules 54(3) to 54(9) provide the procedural framework for the taxation of costs payable in relation to an appeal, or a matter incidental to an appeal, and empower the registrar to conduct the taxation irrespective of whether the costs be taxable as between party and party or as between solicitor and client .
It might be noted that, unlike the practice in the Court of Queen’s Bench, where an award of costs on a solicitor and client basis is required to be taxed
218 Civil Appeals in Saskatchewan R. 54 by a judge of that court, the practice in the Court of Appeal is for the registrar to tax such awards .
Case Law Costs as between party and party
In a case in which leave to appeal an interlocutory order of the Court of Queen’s Bench was dismissed with “costs in the usual way”, it was held that this expression meant such costs were taxable and payable forthwith: MIF AG Services Ltd. v Sotkowy, 2014 SKCA 69 .
Costs as between solicitor and client
General principles
In general, the object of directing that an award of costs be taxed as between solicitor 2015 CanLIIDocs 293 and client is to wholly or substantially indemnify a successful party for the costs reasonably incurred by that party in connection with the underlying proceedings .
Such awards are generally reserved for exceptional cases, such as those in which “there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties”: Young v Young, [1993] 4 SCR 3 at 134 . See, too: Hamilton v Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 SCR 303 .
More particularly, the discretionary power to direct that an award of costs as between the parties be taxed as between solicitor and client is generally exercised on the bases of principle articulated in Siemans v Bawolin, 2002 SKCA 84 at para 118, 219 Sask R 282: 1 . solicitor and client costs are awarded in rare and exceptional cases only; 2 . solicitor and client costs are awarded in cases where the conduct of the party against whom they are sought is described variously as scandalous, outrageous or reprehensible; 3 . solicitor and client costs are not generally awarded as a reaction to the conduct giving rise to the litigation, but are intended to censure behaviour related to the litigation alone; 4 . notwithstanding point 3, solicitor and client costs may be awarded in exceptional cases to provide the other party complete indemnification for costs reasonably incurred .
Part Two The Court of Appeal Rules (Civil) 219 R. 54.1
Conduct deserving of censure is not necessarily a prerequisite to an award of solicitor and client costs on the basis of the fourth point mentioned in Siemans v Bawolin: Hashemian v Wilde, 2006 SKCA 126, 289 Sask R 105 .
Thus, solicitor and client costs may be awarded “in exceptional circumstances including but not restricted to situations where the conduct of the party against whom they are awarded is scandalous, outrageous, or reprehensible”: Goodtrack v Waverly (Rural Municipality No. 44), 2013 SKCA 137, 427 Sask R 147 .
Basis for taxation
In general, solicitor and client costs fall to be taxed on a quantum meruit basis, having regard for what constitutes a fair and reasonable amount determined in accordance with the criteria set out in Sandstrom & Scott v United Chemicals Ltd., [1989] 5 WWR 690, 74 Sask R 59 (CA), namely: • the time and effort expended by the solicitor
• the complexity and importance of the matter 2015 CanLIIDocs 293 • the amount of responsibility assumed by the solicitor • the skill required for the matter • the degree and competence demonstrated by the solicitor • the charges of other solicitors of the same standing at the bar • the amount of money involved • the importance of the matter, and • the ability to pay .
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Review of taxation of costs 54.1(1) A person with a pecuniary interest in the result of a taxation of costs who is dissatisfied with the taxation may apply to a judge for a review of the taxation of costs. (2) An application pursuant to Subrule (1) must be made within 14 days after the date of the certificate as to taxation of costs. (3) A review of a taxation of costs must be limited to items that have been objected to before the registrar and may include items with respect to which the registrar exercised discretion.
220 Civil Appeals in Saskatchewan R. 55
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Payment of costs by lawyer 55 The court or a judge may direct that costs be paid by a lawyer without recourse to the lawyer’s client.
Commentary
Rule 55 stipulates that the court or a judge may direct that costs be paid by a lawyer without recourse to the client, meaning in effect that a lawyer may be ordered to personally pay costs associated with a proceeding before the court .
The power to direct that a lawyer do so constitutes an extraordinary power rooted in the inherent jurisdiction of the court to control abuse of process and contempt 2015 CanLIIDocs 293 of court . As such it is used sparingly .
The exercise of this power is governed by a body of principle according to which the conduct of the lawyer falls to be assessed against a standard of serious professional default, and the object is compensatory not punitive .
Case Law General principles
Only where there has been “a serious dereliction of duty” by the lawyer does the court have jurisdiction to order the lawyer to pay the cost of proceedings personally . Mere error of judgment, even if it constitutes the equivalent of negligence, is insufficient; there must be something that amounts to a serious, even gross, dereliction of duty, though normally it is unnecessary to establish mala fides: Boyko v Sitter; Re Hawrish (1964), 49 DLR (2d) 464, 50 WWR 616 (Sask CA) .
An order for costs against a lawyer personally is essentially compensatory not punitive and, having regard to the “entirely satisfactory analysis” of principle in Young v Young (1990), 75 DLR (4th) 46, 50 BCLR (2d) 1 (CA), an order of this nature may be made against a lawyer if the proceedings are characterized by repetitive and irrelevant material, excessive motions, and bad faith on the part of the lawyer in encouraging this abuse . The court must be “extremely cautious”, however, in awarding costs against a lawyer in these situations, given the duty
Part Two The Court of Appeal Rules (Civil) 221 R. 55
of lawyers to respect the confidentiality of their instructions and to pursue even unpopular causes with courage . A lawyer should not be placed in a situation where “fear of an adverse order of costs may conflict with these fundamental duties of his or her calling” and, assuming that costs might, in certain circumstances, “be imposed for contempt of court”, no such finding had been against the lawyer: Young v Young, [1993] 4 SCR 3 (per McLachlin J . at 135–6) .
Application of general principles
On granting a motion to quash an appeal as an abuse of process in Toronto Dominion Bank v Burgon (1993), 109 Sask R 122 (CA), the court made an order for costs against the lawyer for the appellant on the basis the lawyer had failed to disclose all material facts on a related ex parte proceeding in the Court of Queen’s Bench and had failed, as well, to notify the opposite party of such proceedings: In making this order, we are mindful of the practice that such an
order should be granted with extreme caution and only where 2015 CanLIIDocs 293 a solicitor’s conduct is so inappropriate that it constitutes an abuse of process: Boyko v. Sitter; Re Hawrish (1965), 49 D .L .R . (2d) 464 (Sask . C A. ). and Orchard v. South Eastern Electricity Board, [1987] 1 All E .R . 95 . [bold in original]
An order for costs against a lawyer arising out of the need to adjourn a class-action certification application by reason of the late filing of material by the lawyer was set aside by the court on the ground the conduct of the lawyer, while discourteous and disrespectful, and causing unnecessary delay and expense, was not such as to “rise to the high level of censurable behaviour” contemplated by Boyko v Sitter and Young v Young, [1993] 4 SCR 3, though were it not for the limits regarding the recovery of costs in class action proceedings, an order for costs might have been made against the lawyer’s clients: Waters v DaimlerChrysler Services Canada Inc., 2011 SKCA 53, 371 Sask R 153 .
Where appellate counsel failed to appear on the date set for the hearing of an appeal but sent a junior to inform the court that counsel was engaged in a trial and intended to withdraw as counsel on the appeal (though he had not
Practice Tip
For further application of the equivalent of Rule 55 in other jurisdictions, see “Costs Payable by Solicitor” in Mark M. Orkin, The Law of Costs, loose- leaf, 2d ed (Toronto: Canada Law Book, 2014) chapter 2, section 220 “Costs Payable by Solicitor”.
222 Civil Appeals in Saskatchewan R. 56 formally done so), the court adjourned the appeal and made an order for costs of the day against counsel personally, noting that his conduct was “an affront to the administration of justice and a disservice to his client”: Goudy v Malbeuf, 2005 SKCA 144 .
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Set-off 56 The court may order a set-off of costs or of judgments, whether obtained in the court or in the court appealed from.
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Enforcement of judgment 2015 CanLIIDocs 293 57 The formal judgment of the court, together with a certificate as to the taxation of costs in Form 11d shall be filed with the local registrar of the court appealed from and shall upon filing become the judgment of that court and may be enforced in like manner.
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Taking out judgments and orders 57.1(1) The party responsible for taking out a judgment or order of the court, or an order of a judge of the court, shall before submitting the proposed judgment or order to the registrar serve a copy on the opposite party or parties at least three days in advance, so as to permit the other to raise with the registrar such concerns, if any, as that party may have as to the consistency of the judgment or order with the decision upon which it is based. (2) The party responsible for taking out a judgment or order referred to in Subrule (1) shall, when submitting the proposed judgment or order to the registrar, file proof of service on the opposite party or parties.
Part Two The Court of Appeal Rules (Civil) 223 R. 57.1
(3) Failing proof of service, the registrar shall not settle or issue the judgment or order.
Commentary The operation of the rule
Rule 57 1. provides for taking out a judgment or order of the court (or an order of a judge of the court) by the party responsible for doing so .
The “party responsible” for doing so is the party in whose favour the judgment or order has been made or, in other words, the successful party . In the event of divided success, however, it is the appellant who is expected to draw up the judgment or order, but in that event, the responsibility for taking out the judgment or order may be seen to be the joint responsibility of the parties .
In any event, the judgment or order (as drawn up by one or another of the parties in 2015 CanLIIDocs 293 accordance with the decision), must be served on the opposite party or parties before being submitted to the registrar to be issued . And it must be served at least three days in advance of its submission to the registrar, so as to permit the other party to raise with the registrar such concerns, if any, as that party may have in relation to the consistency of the judgment or order with the decision upon which it is based .
Should objection be taken to the judgment or order as drawn up by the party responsible for taking out the judgment or order, the registrar will not issue it, unless the parties come to agreement .
In the absence of agreement, the registrar will refer the matter to the court as constituted on the determination of the case or, where the matter was determined by a judge, to the judge who made the determination .
On such a referral, the parties are expected to state their respective positions in writing, serving one another as usual . If the court or the judge, as the case may be, thinks it necessary to call upon the parties for oral argument, the registrar will so inform the parties and arrange for a suitable hearing date . Otherwise the judgment or order will be settled on the basis of the written submissions .
Generally speaking, until the judgment or order is taken out in accordance with Rule 57 1(1),. the decision upon which it is based cannot be formally acted upon, for the judgment or order as taken out constitutes “the judgment or order” of the court, as such, or the “order” of a judge as the case may be .
Forms for judgments and orders of various kinds may be found in the set of forms appended hereto as Appendix I .
224 Civil Appeals in Saskatchewan R. 58 Case Law
If ambiguity exits in the reasons for judgment of the court regarding a matter determined on appeal, it is incumbent upon the parties, before the judgment or order is taken out, to raise the ambiguity with the court for clarification or, if need be, to seek a re-hearing of the matter, all to the end of ensuring clarity in the judgment as issued and, hence, of avoiding later disagreement over the meaning of the issued judgment: Ford Credit Canada Ltd. v Percival Mercury Sales Ltd. (1986), 50 Sask R 268 (CA) .
The taking out of a consent judgment which, as it turns out, does not accurately reflect the intention of the parties may be rectified by the judge of first instance, or on appeal, without the necessity of fresh proceedings: Kelly v Kelly, [1986] 5 WWR 558, 50 Sask R 101 (CA) .
Where, before the judgment of the court was taken out in relation to an appeal concerning the distribution of family property, one of the parties obtained an 2015 CanLIIDocs 293 order from the Court of Queen’s Bench vesting an item of property in that party pursuant to the terms of the original judgment, the court set aside the order as having been improperly made: Benson v Benson (1994), 123 Sask R 122, 4 RFL (4th) 164 (CA) .
Upon allowing an appeal and granting summary judgment to the appellant, the court ordered that an appropriate amount of interest be calculated and added to the judgment, directing the parties to “prepare a draft judgment roll for discussion with the Registrar” and, if problems should arise in calculating the amount of interest, to refer the matter to the panel on the understanding the panel would remain seized of the matter: Agricultural Credit Corp. of Saskatchewan v Belcheff Farms Ltd., 2006 SKCA 25 .
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PART XVI Powers of the Court
Powers exercised by the court 58 Consistent with the powers vested in it, the court may: (a) order that a judgment appealed from be set aside, in whole or in part, and order a new trial or a new trial on any question
Part Two The Court of Appeal Rules (Civil) 225 R. 58
without interfering with a finding or with the decision on any other question; (b) decline to order a new trial on the ground of misdirection, the improper admission or rejection of evidence, or because the verdict of the jury was not taken on a question the trial judge was not asked to leave to them, if, in the opinion of the court, no substantial wrong or miscarriage of justice occurred. If, in the opinion of the court, a substantial wrong or miscarriage of justice occurred but affects only part of the matter in controversy, or only one or some of the parties, the court may give judgment as to the part of the controversy not affected and direct a new trial as to the affected part or as to the other party or parties; (c) give any judgment or make any order that ought to have been made, or make any further order the case may require notwithstanding that the notice of appeal or the notice of cross- 2015 CanLIIDocs 293 appeal sought to reverse or vary only part of the judgment appealed from.
Commentary
Rule 58 articulates the basis for the exercise of the power conferred on the court by subsection 12(1)(c) of The Court of Appeal Act, 2000, namely the power to order a new trial .
Upon setting aside a judgment made at trial, the court may order a new trial if need be, or a new trial limited to a particular question, as contemplated by clause (a) of Rule 58 .
As contemplated by clause (b), however, the court may decline to do so, even in the face of error of the kind mentioned in this clause, if in the opinion of the court no substantial wrong or miscarriage of justice occurred . Clause (b) is largely oriented to the power of the court to decline to order a new trial in the context of an appeal from the verdict of a jury . Even so, the power to decline to order a new trial on the basis no substantial wrong or injustice occurred is not confined to this context but extends to an appeal from a decision of a judge sitting without a jury: Grosvenor Fine Furniture (1982) Ltd. v Terrie’s Plumbing and Heating Ltd. (1993), [1994] 1 WWR 275, 113 Sask R 105 (CA) .
226 Civil Appeals in Saskatchewan R. 58
Clause (c) goes on to state that the court may give any judgment or make any order that ought to have been made in the first instance, or make any further order the case may require even though the notice of appeal or cross-appeal, as the case may be, sought to reverse or vary only a part of the judgment under appeal .
Case Law
Where a trial judge delivered oral judgment without having given counsel an opportunity to present argument, the court set aside the judgment and ordered a new trial: Burlock v Bethune, [1985] 5 WWR 288, 44 Sask R 79 (CA) .
Judgment was set aside and a new trial ordered as a result of a failure by a trial judge to read questions and answers from the examination for discovery that had been tendered in evidence and treated as read: Kowalski v Royal Ford Lincoln Mercury Sales Ltd. (1993), 116 Sask R 73 (CA) .
The court set aside a judgment and ordered a new trial where: (i) the tape 2015 CanLIIDocs 293 of the trial proceedings had been destroyed and the trial judge’s notes were incomplete; (ii) the judge had decided an issue that had not been pleaded, raised, or argued; and (iii) the judge permitted an amendment of the pleadings after the trial was completed: Potash Corp. of Saskatchewan Inc. v Crown Investments Corp. of Saskatchewan, 2002 SKCA 68, 223 Sask R 226 . In ordering a new trial, the court said: [8] This is unfortunate, but in the circumstances we find ourselves hamstrung . It is just not possible for us to conduct a satisfactory appellate review of any of the issues . Accordingly, the appeal is allowed, the judgment below is set aside, and a new trial is ordered . There will be no order for costs .
Not every “gap” in a trial transcript will warrant a new trial . Only if the gap cannot be effectively overcome by reference, for example, to the trial judge’s notes among other things, and there exists a serious possibility the gap will deprive the appellant of a ground of appeal, will a new trial be necessary . Otherwise no “miscarriage of justice” will have occurred: R v Hayes, [1989] 1 SCR 44 .
Where the trial transcript contained “gaps” that might be remedied by reference to the examinations for discovery and the trial judge’s notes, the parties were directed in advance of the hearing of the appeal to meet with the registrar to see if the gaps could be effectively overcome in the interests of avoiding a new trial: Van De Geer Estate v Penner, 2005 SKCA 1, 257 Sask R 72 .
Part Two The Court of Appeal Rules (Civil) 227 R. 59
The court set aside a jury verdict and ordered a new trial on the basis the trial judge failed to leave with the jury the question of the extent to which the disability of a child was attributable, on the one hand, to the alleged negligence of one of two physicians who treated the child and, on the other, to the negligence of the mother of the child . In the circumstances, the court observed that “the issues of liability, causation and damages cannot be separated without creating confusion, inconvenience and prejudice to the parties . Accordingly there must be a new trial on all issues”: Quintal v Datta, [1988] 6 WWR 481, 68 Sask R 104 (CA) .
Conversely, where a trial judge failed to instruct the jury against allowing double recovery of damages, and the jury’s award reflected double recovery, the court declined to order a new trial on the premise it was able to reduce the damages appropriately, and hence, “no substantial wrong or miscarriage of justice” occurred: Wallace Construction Specialties Ltd. v Manson Insulation Inc. (1993), 106 DLR (4th) 169, [1993] 8 WWR 502 (Sask CA) .
Similarly, but in the context of an appeal from a decision of a judge alone, the court
declined to order a new trial, notwithstanding the fact the trial judge erred or may 2015 CanLIIDocs 293 have erred in relation to the basis upon which the damages were determined, for no “substantial wrong or miscarriage of justice occurred” . None occurred because the award was nevertheless sustainable: Grosvenor Fine Furniture (1982) Ltd. v Terrie’s Plumbing and Heating Ltd. (1993), [1994] 1 WWR 275, 113 Sask R 105 (CA) (leave to appeal denied (1993), [1994] 1 SCR xi) .
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Fresh evidence 59(1) A party desiring to adduce fresh evidence on appeal shall, in accordance with existing law, apply to the court for leave to do so by notice of motion returnable on the date fixed for hearing the appeal. (2) The notice of motion shall be served on all parties and filed not later than 10 days before the date fixed for hearing the appeal.
Commentary
Rule 59(1) provides that an application to adduce fresh evidence on appeal is to be made in accordance with existing law and that fresh evidence can only be adduced with leave of the court .
228 Civil Appeals in Saskatchewan R. 59
This makes it necessary when considering an application to adduce fresh evidence to have regard for the pre-existing and subsequent case law pertaining to the subject .
Pre-existing case law
The case law in existence on the adoption of Rule 59 stipulated that leave to adduce fresh evidence on an appeal from a judgment after trial fell to be granted or denied on the basis of the following criteria set forth in Maitland v Drozda, [1983] 3 WWR 193, 22 Sask R 1 (CA) (often referred to as “the Palmer criteria” in light of their having been drawn from R v Palmer, [1980] 1 SCR 759): • Fresh evidence will not be admitted if, by due diligence, it could have been adduced at trial . • The evidence must be relevant, in the sense that it bears upon a decisive, or potentially decisive, issue in the action .
• The evidence must be credible in the sense that it is reasonably capable 2015 CanLIIDocs 293 of belief . • The evidence must be practically conclusive of a decisive or potentially decisive issue, or it must be such that, if believed, could reasonably be expected to have affected the result, when taken with the other evidence adduced at trial . • These criteria apply with greater force in civil than in criminal matters .
See, too: Dormuth v Untereiner (1963), [1964] SCR 122, and R v McMartin, [1964] SCR 484 .
The above criteria were adopted and applied in the context of an appeal from an order made in chambers (as distinct from a judgment after trial) in Turbo Resources Ltd. v Gibson (1987), 60 Sask R 221 (CA) .
Subsequent case law
On an appeal from a judgment after trial, an application to adduce fresh evidence of the true value of an item of family property sold by the appellant while judgment was pending was dismissed on the grounds: (i) the appellant had had earlier opportunities to disclose the sale and its terms but did not do so; and (ii) the rule regarding the admission of fresh evidence is “enforced with vigour in civil cases”: Bencze v Archer, 2004 SKCA 92 .
On an appeal from a judgment after trial in an action regarding the valuation and distribution of family property, fresh evidence incapable of affecting the result of the valuation and distribution was nevertheless admitted on the basis the evidence
Part Two The Court of Appeal Rules (Civil) 229 R. 59
demonstrated that the respondent had “deliberately set out to deceive the court” in relation to an asset—a matter that “no court can condone”—and was potentially relevant to the relief to be granted on appeal: Schatz v Doust, 2002 SKCA 129, 227 Sask R 1 .
On the hearing of an appeal of a child custody order made at trial, the court refused to admit fresh evidence of post-trial undertakings by the parties stemming from alleged criminal conduct on the part of both, because such evidence, while perhaps relevant to an application to vary, was of little or no assistance in determining an appropriate parenting plan and could not be seen, when considered in light of the evidence adduced at trial, to have affected the result: Ackerman v Ackerman, 2014 SKCA 86, 442 Sask R 113 .
On the hearing of an appeal from an order made in chambers dismissing an application to prohibit an administrative tribunal from making any order against the appellant by reason of bias, the court refused to admit further affidavit evidence on the grounds it was either not new, was available and could have been
filed in the court below, or was not decisive or potentially decisive of any issue: 2015 CanLIIDocs 293 Wal‑mart Canada Corp. v Saskatchewan (Labour Relations Board), 2006 SKCA 142, 289 Sask R 20 .
On an appeal from an order made in chambers declining to dismiss an action for want of prosecution, an application to adduce fresh evidence (consisting of documents that were in existence but not discovered until after the order was made) was dismissed on the bases: (i) with due diligence the documents could have been adduced in evidence before the chambers judge; and (ii) they would not have affected the result of the application to dismiss the action for want of prosecution: Zuidema Farms Inc. v Gritzfeld, 2009 SKCA 51, 331 Sask R 63 .
On a cross-appeal from an order made in chambers, an application to adduce fresh evidence of a fact in existence before the hearing but not discovered until afterwards was allowed for the reasons the evidence: (i) was not discoverable with due diligence; (ii) was credible in the sense the fact in question was admitted; (iii) was relevant to the subject matter in dispute; and (iv) could reasonably have affected the result, it being noted that “the fresh evidence changes the complexion of the proceedings and casts matters in an entirely different light”: Thompson v Thompson, 2007 SKCA 142, 288 DLR (4th) 344 . See, too: Affinity Credit Union v United Food and Commercial Workers, Local 1400, 2014 SKCA 70, 438 Sask R 296 .
On an appeal from a decision of a professional disciplinary committee, the court did not allow the appellant to adduce so-called “fresh evidence” consisting of: (i) an account of what happened before the committee; and (ii) a number of documents, some of which had been filed below, because this was either a matter of record already or was irrelevant: Merchant v Law Society of Saskatchewan, 2002 SKCA 60, 213 DLR (4th) 457 .
230 Civil Appeals in Saskatchewan R. 60
An application in chambers to extend the time for appeal on the basis the appellants proposed to adduce fresh evidence on appeal was dismissed for the reason, among others, that there was little merit in the proposal to adduce fresh evidence: Schafer v Island View (Resort Village), 2009 SKCA 104, 337 Sask R 208 .
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PART XVII General Rules
Powers of registrar 60(1) The registrar may hear and determine applications under Rules 10(2) (Filing notice of appeal), 18 (Appeal book required), 22(5) (Agreement as to contents and completion of appeal book), 2015 CanLIIDocs 293 28(1) (Contents of factum), 34(1) (Late filing of factum), or 43(3) (Content of appeal book on expedited appeal). (2) Any matter arising before the registrar may be referred by the registrar to a judge for a decision by the judge.
Commentary
Rule 60 serves to augment the ordinary authority of the registrar, scattered throughout the Rules, by empowering the registrar to hear and determine disputes of the nature contemplated by Rule 60(1) .
Hence, the registrar enjoys two sets of powers, being those found elsewhere in the Rules and those found in Rule 60(1) .
As for the former, the registrar is empowered, for example: • to adjourn or decline to adjourn a scheduled hearing, subject to consulting with the court when appropriate (Rule 39 .1) • to direct that a chamber application be made by way of teleconference (Rule 48(7)) • to receive and act upon concerns regarding the content of a judgment or order (Rule 57 .1)
Part Two The Court of Appeal Rules (Civil) 231 R. 61
• to refuse to receive for filing any material that does not comply with the Rules (Rule 62(2)), and so on .
As for the latter, the registrar is empowered by Rule 60(1) to hear and determine applications made under the following Rules: • Rule 10(2) (Filing notice of appeal) • Rule 18 (Appeal book required) • Rule 22(5) (Agreement as to contents and completion of appeal book) • Rule 28(1) (Contents of factum) • Rule 34(1) (Late filing of factum) • Rule 43(3) (Content of appeal book on expedited appeal) .
The powers conferred upon the registrar by the last mentioned set of Rules exist to the end of promoting efficiency and reducing cost and delay . As such, these are particularly important powers, meaning that applications of the kind covered by
this set of Rules should be made to the registrar (rather than to a judge), bearing 2015 CanLIIDocs 293 in mind that the registrar is authorized by Rule 60(2) to refer any matter arising out of such applications to a judge for decision .
The significance of this is such as to merit repetition of the practice tip appearing under Rule 28 (Contents of factum) .
Practice Tip
Mann v KPMG Inc., 2001 SKCA 24, 203 Sask R 267, cautions against a hard-and- fast adversarial approach when seeking to resolve issues of this kind with the assistance of the registrar: “A respectful, conciliatory approach designed to get the matter before the court in an orderly and timely fashion is what is called for. And reasonable counsel will find the Registrar’s office most helpful.”
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Prescribing terms and conditions 61 Where these rules provide that the court, a judge, or the registrar may make an order or direction, the court, the judge or the registrar, as the case may be, may impose terms and conditions in the order or direction, as may be necessary.
232 Civil Appeals in Saskatchewan R. 62 Commentary
Rule 61 was adopted in the interests of removing any doubt about the authority of the court, a judge, or the registrar, when making any order or direction contemplated by the Rules, to impose terms or conditions as may be necessary . The Rule explicitly empowers the court, a judge, or the registrar, as the case may be, to do so .
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Material to be legible and to comply with rules 62(1) All material to be filed shall be legible and on good quality paper measuring 28 centimetres or 11 inches by 21½ centimetres or 8½ inches.
(2) The registrar may refuse to receive for filing any material that 2015 CanLIIDocs 293 does not substantially comply with these rules. (3) Material that does not comply with these rules may be subject to an order of the court or a judge for costs.
Commentary
This Rule ties in with others, including in particular Rule 24 (Form of appeal book) and Rule 29 (Form of factum) .
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Forms 63 The forms in the Appendix to these rules are to be used where applicable, with such variations as the circumstances require.
Commentary
Rule 63 provides for the use of the forms found in Appendix I (Forms 1a to 12 inclusive), with such modifications as the circumstances require .
Part Two The Court of Appeal Rules (Civil) 233 R. 64
This allows for adapting an existing form to the needs of the particular situation .
Form 3a, for example, which is to be used on a motion to extend the time for appeal, may also be used, with suitable modification, on a motion to extend the time for applying for leave to appeal .
If no form exists relative to the particular situation (as is the case regarding applications for security for costs), the documents pertaining to the application should be formatted along the common lines of the existing forms, with such modifications as are necessary to reflect the particular situation .
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Style of cause 64(1) The style of cause shall be set out on: 2015 CanLIIDocs 293 (a) the front page of a document commencing a proceeding before the court or a judge; (b) the cover of any other document required to be filed with the registrar. (2) Where an intervenor has been added on appeal, the style of cause shall thereafter contain the name of the intervenor.
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Address for service 65(1) In every appeal, each party shall file the following address information: (a) if a party is represented by a lawyer, the name, address, telephone and fax numbers of the lawyer’s law firm, and the name of the lawyer in charge of the file; or (b) if a party is not represented by a lawyer, the full name, occupation, business or residential address, and telephone and fax numbers, if any, of the party.
234 Civil Appeals in Saskatchewan R. 66
(2) The address filed under Subrule (1) shall be the party’s address for service in Saskatchewan where any document may be served on the party. (3) The registrar shall not file any document unless the party seeking to file the document has filed the address information required under Subrule (1). (4) Except where otherwise provided by these rules or otherwise ordered, a party who fails to file address information shall not be entitled to notice of any subsequent proceeding. (5) Until the respondent files address information, the respondent’s address for service is the address on record in the court appealed from.
Commentary 2015 CanLIIDocs 293
In addition to the requirements of this Rule, Civil Practice Directive No . 3, subsection 7(2) states: “every party to an appeal shall provide the registrar with a valid e-mail address, unless exempted from doing so by the registrar” . This Practice Directive may be found in Appendix II .
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Illusory or fictitious address information 66 If any address information is illusory or fictitious, any party may apply to the court for an order: (a) setting aside the filing or issuing of all documents filed or issued by the party in default; and (b) dismissing the appeal, if the party in default is an appellant, or allowing the appeal, if the party in default is a respondent.
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Part Two The Court of Appeal Rules (Civil) 235 R. 67
Service 67(1) The provisions of Part 12 of The Queen’s Bench Rules apply, with any necessary modification, to service required by these Rules. (2) In addition to proving service of a document in a manner permitted under Part 12 of The Queen’s Bench Rules, counsel for a party or for an intervenor in a proceeding may prove service of a document for the purposes of these Rules by filing a Certificate of Service in Form 12, unless otherwise ordered by the court or a judge.
Commentary
Rule 67(1) incorporates by reference Part 12 of The Queen’s Bench Rules (Service of Documents) . 2015 CanLIIDocs 293 Part 12 of The Queen’s Bench Rules, consisting of Rules 12-1 to 12-16, contains a comprehensive scheme governing the service of documents, including: • modes of service • special modes of service on certain persons • substituted service • service outside Saskatchewan • effective date of service, and • proof of service .
Each of these matters is dealt with in detail in Part 12 of The Queen’s Bench Rules, which Part is appended hereto as Appendix III .
That said, Rule 67(1) of The Court of Appeal Rules allows for an additional mode of proof of service by counsel, namely by filing with the registrar a Certificate of Service in Form 12 of this court’s Forms . Form 12 appears in Appendix I hereto .
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Notification by registrar 68(1) Where, in these rules, the registrar is required to notify the parties, the notification shall be sent by ordinary mail.
236 Civil Appeals in Saskatchewan R. 69
(2) Where notification is sent by ordinary mail, it is deemed to have been received five days after the date the notice was mailed.
Commentary
In addition to the methods of notification mentioned in Rule 68, the registrar may give any notice or other communication “by any means of electronic communication capable of producing a printed copy”: Practice Directive No . 3, section 7(3) . This Practice Directive may be found in Appendix II .
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Receipt by fax 2015 CanLIIDocs 293 69(1) The registrar may accept a copy of a document transmitted by facsimile, provided that the party shall file the original document with the registrar immediately thereafter. (2) If the original document is filed, the date of filing is deemed to have been the date the facsimile was received by the registrar.
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Calculating time 70 Where the time for doing an act with respect to an appeal, a prospective appeal or any proceeding in the court is fixed by the Act or any other enactment, by these rules, or by an order of the court or a judge, the time shall be calculated in accordance with section 24 of The Interpretation Act, 1995.
Commentary
Section 24 of The Interpretation Act, 1995, SS 1995, c I-11 .2 (Calculation of time), contains a comprehensive and detailed scheme for computing the time
Part Two The Court of Appeal Rules (Civil) 237 R. 71
during which something may be required to be done . In the main, the section provides that: • Where the time for doing an act falls on a holiday, the time is extended to the next day that is not a holiday . • Where time for doing an act in a business office falls on a day in which the office is not open during its regular business hours, the time is extended to include the next business day in which the office is open . • When calculating a period of time that is not expressed as a number of “clear” days, weeks, or months, or is not expressed as “at least” or “not less than” a number of days, weeks, or months, the first day shall be excluded and the last day included . • When calculating a period of time that is expressed as a number of “clear” days, weeks, or months, or as “at least” or “not less than” a number of days, weeks, or months, the first and last days shall be excluded . • Where a period of time is expressed to begin or end at, on, or with a
specified day, the period includes that day . 2015 CanLIIDocs 293 • Where a period of time is expressed to continue to or until a specified day, the period does not include that day . • Where a prescribed time would otherwise end on a day for which there is no calendar number in a month, the time ends on the last day of that month .
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Extension of time 71 The court or a judge may enlarge or abridge the time periods fixed by these rules or by order on such terms as the case may require. The order enlarging or abridging the time may be made before or after the fixed time period has expired. (Forms 3a and 3b)
Commentary
Rule 71 is concerned with the enlargement or abridgment of time periods fixed by these Rules, or by order . These are periods of time during which some step associated with an appeal or prospective appeal must be taken . Time periods such as this are common . Some are fixed by statute, others by the Rules, and still others by order of the court or a judge .
238 Civil Appeals in Saskatchewan R. 71
Time periods fixed by statute
The power of enlargement conferred on the court or a judge by Rule 71 is expressed to apply only to time periods fixed by these Rules or by order of the court or a judge . Accordingly, this power of enlargement does not extend to time periods fixed by statute .
Those fixed by statute, including The Court of Appeal Act, 2000, may only be enlarged in exercise of such power of enlargement as may be conferred by that statute .
For example, section 9 of the Act fixes the periods of time during which a notice of appeal is required to be served, and an application for leave to appeal is required to be made . The section goes on to empower a judge, as well as the court, to extend the time periods mentioned therein, but not if the enactment pursuant to which the decision in question was made should provide otherwise .
Thus, applications for the extension of time during which a notice of appeal must be served, or a notice of motion for leave to appeal must be brought, are governed by section 9 of the Act, not Rule 71 . 2015 CanLIIDocs 293
This makes it necessary to have regard for section 9 of the Act in relation to extending the appeal periods prescribed by this Act, or by such other enactment as may provide for appeal and fix the time during which the right of appeal must be acted upon .
For further consideration of this subject, see section 9 of the Act, as well as the accompanying commentary and case law, including the case law dealing with the bases of principle upon which the court acts when determining applications for the enlargement of time periods fixed by statute .
Time periods fixed by rule
Several Rules provide time limits for doing something in connection with an appeal, including the following: • Rule 10(2) (Filing notice of appeal) • Rule 16(1) (Serving and filing of notice of cross appeal) • Rule 19(3) (Filing agreement as to contents of appeal book) • Rule 21 (Ordering transcript) • Rule 22 (Serving and responding to draft agreement as to contents of appeal book) • Rule 32 (Serving and filing factums) • Rule 33 (Service and filing factum on cross appeal)
Part Two The Court of Appeal Rules (Civil) 239 R. 71
• Rule 33 l. (Filing factum in reply) • Rule 43(2) (Serving and filing appeal book and factum in expedited appeals) • Rule 46(1) (Perfecting appeal) • Rule 46(2) (Setting down appeal for hearing) • Rule 57 1. (Taking out judgments or orders) • Rule 67 (Service according to The Queen’s Bench Rules) .
Rule 71 allows for the enlargement or abridgment of these time periods by the court or a judge . It also allows for them to be enlarged or abridged on such terms as the case may require, and both before and after the expiration of the time period in question .
Time periods fixed by order
Rule 71 applies to time periods fixed not only by the Rules but also by order of 2015 CanLIIDocs 293 the court or a judge, and states that the court or a judge may enlarge or abridge the time periods fixed by order .
The Rule applies to time periods fixed by the court or a judge in connection with matters such as those covered by the above-mentioned Rules .
The Rule does not specify whether a judge may enlarge or abridge a time period fixed by thecourt . However, it may be supposed that if a time period has been fixed by the court, it will fall to the court to entertain an application to enlarge or abridge the time .
This should not be so of an application to enlarge a time period fixed by a judge, where the time has expired (or is about to expire), and circumstances warrant an extension . For example, where a judge has fixed the time period within which an appeal must be perfected or exposed to dismissal for want of prosecution pursuant to Rule 46(1), there is no reason to suppose a judge cannot enlarge the time .
Practice Tip
Rule 71 confines the power of enlargement or abridgment to the court or a judge. Nevertheless, the registrar, acting on the authority of Rule 60 (Powers of registrar), may hear and determine applications under Rule 10(2) (late filing of notice of appeal) and Rule 34(1) (late filing of factum). Thus applications to enlarge the time periods fixed by these two Rules may be made to the registrar, rather than a judge.
240 Civil Appeals in Saskatchewan R. 72
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Representation by lawyer 72(1) Except as otherwise provided by these rules, Division 4 of Part 2 of The Queen’s Bench Rules applies, with any necessary modification, to proceedings in the court or in chambers. (2) A lawyer shall not cease to represent a party in a proceeding before the court after the contents of the appeal book have been settled, except with leave of the court. (3) Where no agreement to settle the contents of the appeal book is required, a lawyer shall not cease to represent a party in a proceeding before the court in the 30 day period immediately preceding the hearing of an appeal or application, except with leave
of the court or a judge, as the case may be. 2015 CanLIIDocs 293
Commentary
Except as otherwise provided by the Rules, Rule 72(1) renders Division 4 of Part 2 of The Queen’s Bench Rules (Lawyer of Record) applicable in the Court of Appeal with any necessary modification .
Division 4 of Part 2 consists of Queen’s Bench Rules 2-34 to 2-44, which may be found in Appendix IV hereto . In general these Rules provide as follows: • Rule 2-34: A lawyer is required if a party is under disability, acts in a representative capacity, or is a corporation . • Rule 2-35: An articling student may appear before a judge in chambers in accordance with the Rule . • Rule 2-36: The lawyer of record . • Rule 2-37: Duties of the lawyer of record . • Rule 2-38: A party may establish the fact of the lawyer of record by means of the method found in this Rule . • Rule 2-41: A lawyer of record may withdraw by means of the method prescribed by the Rule . • Rule 2-42: After withdrawal, service cannot be made on the former lawyer of record .
Part Two The Court of Appeal Rules (Civil) 241 R. 73
• Rule 2-44: A lawyer of record is automatically terminated in the circumstances prescribed by this Rule .
The above Rules aside, Rules 72(2) and (3) ofThe Court of Appeal Rules serve to limit the circumstances in which a lawyer may withdraw once an appeal has reached a certain stage of perfection .
After the contents of the appeal book have been settled, as contemplated by Rule 22 (Agreement as to contents and completion of appeal book), a lawyer may only withdraw with leave of the court as provided for by Rule 72(2) .
If no agreement to settle the contents of the appeal book is required, as contemplated by Rule 43 (Expedited appeal), a lawyer may withdraw without leave, but may not do so within the 30-day period immediately preceding the hearing of the appeal or a related application . During this period the lawyer may only withdraw with leave of the court or a judge, as the case may be, all as provided for by Rule 72(3) . 2015 CanLIIDocs 293 •
Mechanical recording devices 73 Except as otherwise provided by law, no person shall record by any device, machine, or system the proceedings in the court or in chambers without leave of the court or a judge, as the case may be.
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Practice directives 74 The court may issue practice directives from time to time, clarifying or supplementing the practice before the court.
Commentary
As mentioned in the commentary accompanying Rule 1 (Title), the court is empowered by Rule 74 to issue practice directives from time to time for the purpose of clarifying or supplementing the practice before the court .
242 Civil Appeals in Saskatchewan R. 75
The practice directives currently in effect in relation to civil appeals are appended hereto as Appendix II . They are numbered 1 through 7, though numbers 4 and 5 were repealed, effective July 1, 2014, and have therefore been omitted from the Appendix .
The remaining civil practice directives cover the following practice-related subjects: • Situations in which a lawyer may appear despite having submitted an affidavit sworn by the lawyer (Directive No . 1) • Filing, content, and form of books of authorities (Directive No . 2) • Electronic filing of documents, including: access thereto; the method of obtaining a transcript of evidence; the filing of paper copies of the appeal book and factum; and service and address for service (including e-mail address and communications by e-mail) (Directive No . 3) • Applications to restrict media reporting and public access to civil proceedings (Directive No . 6) 2015 CanLIIDocs 293 • Citation of authorities in accordance with the Citation Guide for the Courts of Saskatchewan (Directive No . 7)
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PART XVIII Repeal, Transitional and Coming Into Force
Repeal 75 The rules of the court in force on the day preceding the day these rules come into force are repealed.
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Transitional 76(1) Proceedings commenced prior to the coming into force of these rules and continued after their coming into force shall be governed by these rules without prejudice to anything lawfully done prior to the coming into force of these rules.
Part Two The Court of Appeal Rules (Civil) 243 R. 77
(2) Notwithstanding Subrule (1), the court or a judge may give directions respecting the application of these rules or an amendment to these rules to proceedings mentioned in Subrule (1).
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Coming into force 77 These rules come into force on July 1, 1997. 2015 CanLIIDocs 293
244 Civil Appeals in Saskatchewan Appendices
I Forms...... 247 II Civil Practice Directives ...... 280 III Queen’s Bench Rules Applicable in the Court of Appeal ...... 322 2015 CanLIIDocs 293 IV Tariff of Costs...... 345 V The Court of Appeal Fees Regulations, 2000 ...... 347
Appendices 245 2015 CanLIIDocs 293 Appendix I Forms
Form # Name Page
1a (Rule 6) Notice of Appeal...... 249
1b (Rule 6) Notice of Cross-Appeal...... 250 2015 CanLIIDocs 293 3a (Rule 71) Notice of Motion to Extend Time for Appeal...... 251 3b (Rule 71) Draft Order...... 253 4a (Rule 49) Notice of Motion to Obtain Leave to Appeal...... 254 4b (Rule 49) Draft Order...... 256 5a (Rule 15) Notice of Motion to Lift Stay of Execution...... 257 5b (Rule 15) Draft Order...... 259 6a (Rule 46(1)) Notice of Motion to Perfect Appeal...... 261 6b (Rule 46(1)) Draft Order...... 262 7 (Rule 46(1)) Notice of Motion to Dismiss Appeal for Want of Prosecution...... 263 8 (Rule 45) Notice of Abandonment ...... 264 9 (Rule 46(2)) Notice to Show Cause...... 265 10a Judgment Dismissing Appeal...... 266 10b Judgment Allowing Appeal and Granting Appellant Judgment Below...... 268 10c Judgment Allowing Appeal and Varying Judgment Below...... 270 10d Judgment Allowing Appeal and Ordering New Trial...... 272
Appendix I Forms 247 Form # Name Page
11a Notice of Appointment for Taxation of Costs...... 274 11b Bill of Costs...... 275 11c Notice to Take Out an Appointment for Taxation...... 277 11d Certificate of Taxation of Costs...... 278 12 Certificate of Service ...... 279 2015 CanLIIDocs 293
248 Civil Appeals in Saskatchewan F. 1a
FORM 1a (Rule 6) IN THE COURT OF APPEAL FOR SASKATCHEWAN
CACV Between Appellant (status in court appealed from) – and – Respondent (status in court appealed from)
NOTICE OF APPEAL
TAKE NOTICE: 1 . THAT the above-named Appellant hereby appeals to the Court of Appeal from the judgment (or order) of the Honourable Mr ./Madam Justice
issued on the day of , . 2015 CanLIIDocs 293 (month) (year) 2 . THAT the whole of the judgment (or order) or the following parts are being appealed: 3 . THAT the source of the Appellant’s right of appeal and the court’s jurisdiction to entertain the appeal is: 4 . THAT the appeal is taken upon the following grounds: (Here set forth in numbered paragraphs the grounds upon which it is contended the judgment (or order) appealed against is erroneous.) 5 . THAT the Appellant requests the following relief: 6 . THAT the Appellant’s address for service is: Telephone number: Fax number: The lawyer in charge of the file is: 7 . THAT the Appellant requests that this appeal be heard at (Regina or Saskatoon) .
DATED at , Saskatchewan, this day of , . (month) (year)
Name and Signature of the Lawyer for the Appellant
TO: Respondent(s)
Appendix I Forms 249 F. 1b
FORM 1b (Rule 6) IN THE COURT OF APPEAL FOR SASKATCHEWAN
CACV Between Appellant (status in court appealed from) – and – Respondent (status in court appealed from)
NOTICE OF CROSS-APPEAL
TAKE NOTICE:
1 . THAT the Respondent hereby cross-appeals from the judgment (or order) at issue in this appeal . 2 . THAT the Respondent seeks to have the judgment (or order) varied in part as follows: 2015 CanLIIDocs 293 3 . THAT the cross-appeal is taken upon the following grounds: (Here set forth in numbered paragraphs the grounds upon which the cross-appeal is taken.) 4 . THAT the Respondent requests the following relief:
DATED at , Saskatchewan, this day of , . (month) (year)
Name and Signature of the Lawyer for the Respondent
TO: Appellant(s)
250 Civil Appeals in Saskatchewan F. 3a
FORM 3a (Rule 71) IN THE COURT OF APPEAL FOR SASKATCHEWAN
CACV Between Appellant (status in court appealed from) – and – Respondent (status in court appealed from)
NOTICE OF MOTION TO EXTEND TIME FOR APPEAL
TAKE NOTICE:
1 . THAT the Prospective Appellant intends to apply to the presiding judge in Chambers at the Court House, 2425 Victoria Avenue, Regina, Saskatchewan, on
Wednesday the day of , , at 10:00 a .m . 2015 CanLIIDocs 293 (month) (year) for the following relief: (a) An order pursuant to Rule 71 of The Court of Appeal Rules extending the time within which the Prospective Appellant may serve a notice of appeal from the judgment (or order) of the Honourable Mr ./Madam Justice issued on the day of , . (month) (year) (b) An order pursuant to Rule 52 of The Court of Appeal Rules that the Prospective Respondent shall (or shall not) have the costs of this application .
2 . THAT the following material will be filed in support of this application: (a) This notice of motion with proof of service . (b) The affidavit of . (c) The formal judgment (or order) from which the Prospective Appellant desires to appeal . (d) The decision of the Honourable Mr ./Madam Justice upon which the judgment (or order) is based . (e) A draft notice of appeal . (f) A draft order extending the time for appeal . (g) A memorandum specifying the basis for the proposed extension .
Appendix I Forms 251 F. 3a
FORM 3a (Rule 71) continued
3 . THAT the Appellant’s address for service is: Telephone number: Fax number: The lawyer in charge of the file is:
DATED at , Saskatchewan, this day of , . (month) (year)
Name and Signature of the Lawyer for the Prospective Appellant
TO: Prospective Respondent(s) 2015 CanLIIDocs 293
252 Civil Appeals in Saskatchewan F. 3b
FORM 3b (Rule 71) IN THE COURT OF APPEAL FOR SASKATCHEWAN
CACV Between Prospective Appellant – and – Prospective Respondent
BEFORE THE HONOURABLE Wednesday, the MR ./ MADAM JUSTICE day of , . IN CHAMBERS: } (month) (year) DRAFT ORDER
UPON THE APPLICATION of the Prospective Appellant and having read the notice of 2015 CanLIIDocs 293 motion with proof of service, the affidavit of , the formal judgment (or order) and the decision of the Honourable Mr ./Madam Justice , together with such other material as was filed in support of the application, and having regard for the submissions of counsel: IT IS HEREBY ORDERED: 1 . THAT the time within which a notice of appeal may be served, appealing from the judgment (or order) of the Honourable Mr ./Madam Justice issued on the day of , , is extended to and (month) (year)
includes the day of , . (month) (year)
2 . THAT the Respondent shall have the costs of this application in any event of the cause .
ISSUED at , Saskatchewan, this day of , . (month) (year)
Registrar, Court of Appeal
Appendix I Forms 253 F. 4a
FORM 4a (Rule 49) IN THE COURT OF APPEAL FOR SASKATCHEWAN
CACV Between Prospective Appellant (status in court appealed from) – and – Prospective Respondent (status in court appealed from)
NOTICE OF MOTION TO OBTAIN LEAVE TO APPEAL
TAKE NOTICE:
1 . THAT the Prospective Appellant intends to apply to the presiding judge in Chambers at the Court House, 2425 Victoria Avenue, Regina, Saskatchewan, on
Wednesday the day of , , at 10:00 a .m . 2015 CanLIIDocs 293 (month) (year) for the following relief: (a) An order pursuant to Rule 49 of The Court of Appeal Rules granting the Prospective Appellant leave to appeal the judgment (or order) of the Honourable Mr ./Madam Justice issued on the day of , . (month) (year) (b) An order pursuant to Rule 52 of The Court of Appeal Rules that the costs of this application be the costs in the cause .
2 . THAT the following material will be filed in support of this application: (a) This notice of motion with proof of service . (b) The formal judgment (or order) from which the Prospective Appellant desires to appeal . (c) The decision of the Honourable Mr ./Madam Justice upon which the judgment (or order) is based . (d) A draft notice of appeal . (e) A draft order granting leave to appeal . (f) A memorandum specifying the grounds for seeking leave .
254 Civil Appeals in Saskatchewan F. 4a
FORM 4a (Rule 49) continued
DATED at , Saskatchewan, this day of , . (month) (year)
Name and Signature of the Lawyer for the Prospective Appellant
TO: Prospective Respondent(s) 2015 CanLIIDocs 293
Appendix I Forms 255 F. 4b
FORM 4b (Rule 49) IN THE COURT OF APPEAL FOR SASKATCHEWAN
CACV Between Prospective Appellant – and – Prospective Respondent
BEFORE THE HONOURABLE Wednesday, the MR ./ MADAM JUSTICE day of , .
IN CHAMBERS: } (month) (year) DRAFT ORDER
UPON THE APPLICATION of the Prospective Appellant and having read the notice of 2015 CanLIIDocs 293 motion with proof of service, the formal judgment (or order) and the decision of the Honourable Mr ./Madam Justice together with such other material as was filed in support of the application, and having regard for the submissions of counsel: IT IS HEREBY ORDERED: 1 . THAT the Prospective Appellant be granted leave to appeal from the judgment (or order) of the Honourable Mr ./Madam Justice issued on the day of , . (month) (year)
– OR –
1 . THAT the Prospective Appellant be granted leave to appeal from the judgment (or order) of the Honourable Mr ./Madam Justice dated the day of , , to the extent the (month) (year) judgment (or order) gives rise to the following questions: (Here set forth the specific issues in relation to which leave is to be, or was granted.)
2 . THAT the costs of this application be costs in the cause .
ISSUED at , Saskatchewan, this day of , . (month) (year)
Registrar, Court of Appeal
256 Civil Appeals in Saskatchewan F. 5a
FORM 5a (Rule 15) IN THE COURT OF APPEAL FOR SASKATCHEWAN
CACV Between Appellant (status in court appealed from) – and – Respondent (status in court appealed from)
NOTICE OF MOTION TO LIFT STAY OF EXECUTION
TAKE NOTICE:
1 . THAT the Respondent intends to apply to the presiding judge in Chambers at the Court House, 2425 Victoria Avenue, Regina, Saskatchewan, on
the day of , , at 10:00 a .m . for the 2015 CanLIIDocs 293 (month) (year) following relief:
(a) An order pursuant to Rule 15 of The Court of Appeal Rules lifting the stay of execution of the judgment (or order) of the Honourable Mr ./Madam Justice
issued on the day of , . (month) (year)
(b) Alternatively, an order requiring, as a condition of the continuation of the stay, that the following steps be taken: (Here set forth the terms the Respondent wishes to see imposed if the stay is to be continued in whole or in part, as for example: (i) That the Appellant pay into this Honourable Court the sum of $ on or before the day of , . (month) (year) (ii) That this sum to be deposited by the Registrar into an interest bearing ac- count to be held there pending the determination of this appeal .)
2 . THAT the following material will be filed in support of this application: (a) This notice of motion with proof of service . (b) The affidavit of . (c) The formal judgment (or order) from which the Appellant desires to appeal . (d) The decision of the Honourable Mr ./Madam Justice upon which the judgment (or order) is based .
Appendix I Forms 257 F. 5a
FORM 5a (Rule 15) continued
(e) A draft order of the relief sought . (f) A memorandum specifying the basis for seeking a lift of the stay .
DATED at , Saskatchewan, this day of , . (month) (year)
Name and Signature of the Lawyer for the Respondent
TO: Appellant(s) 2015 CanLIIDocs 293
258 Civil Appeals in Saskatchewan F. 5b
FORM 5b (Rule 15) IN THE COURT OF APPEAL FOR SASKATCHEWAN
CACV Between Appellant – and – Respondent
BEFORE THE HONOURABLE Wednesday, the MR ./ MADAM JUSTICE day of , . IN CHAMBERS: } (month) (year) DRAFT ORDER
UPON THE APPLICATION of the Respondent, and having read the notice of motion 2015 CanLIIDocs 293 with proof of service, the affidavit of , the formal judgment (or order) and the decision of the Honourable Mr ./Madam Justice together with such other material as was filed in support of the application, and having regard for the submissions of counsel: IT IS HEREBY ORDERED: THAT the stay of execution imposed pursuant to Rule 15 of The Court of Appeal Rules is lifted . – OR –
THAT the stay of execution imposed pursuant to Rule 15 of The Court of Appeal Rules is continued on condition: (Here set forth the proposed conditions upon which the stay may be continued, for example, in the case of an order for the payment of funds into court: 1 . The Appellant shall deposit with the Registrar, not later than the
day of , , a sum equal to the judgment appealed from, (month) (year) or a surety bond or irrevocable letter of credit in the amount of the judgment and satisfactory to the Registrar . 2 . All monies deposited with the Registrar shall be invested by the Registrar in an interest bearing account, and any surety bond or letter of credit filed with the Registrar shall be retained by the Registrar until further order or final determination of the appeal .
Appendix I Forms 259 F. 5b
FORM 5b (Rule 15) continued
3 . Anything realized by means of a writ of execution or garnishee shall be retained by the Sheriff or Local Registrar until further order or the final determination of the appeal . 4 . (Further terms as required .) 5 . The costs of this application shall be costs in the cause .)
ISSUED at , Saskatchewan, this day of , . (month) (year)
Registrar, Court of Appeal 2015 CanLIIDocs 293
260 Civil Appeals in Saskatchewan F. 6a
FORM 6a (Rule 46(1)) IN THE COURT OF APPEAL FOR SASKATCHEWAN
CACV Between Appellant (status in court appealed from) – and – Respondent (status in court appealed from)
NOTICE OF MOTION TO PERFECT APPEAL
TAKE NOTICE:
1 . THAT the Respondent intends to apply to the presiding judge of the Court of Appeal, sitting in chambers, at the Court House, 2425 Victoria Avenue, Regina,
Saskatchewan, on Wednesday the day of , 2015 CanLIIDocs 293 (month) , at 10:00 a .m . for the following relief: (year) (a) An order pursuant to Rule 46(1) of The Court of Appeal Rules requiring that this appeal be perfected promptly, failing which it may be exposed to dismissal for want of prosecution . (b) An order pursuant to Rule 52 of The Court of Appeal Rules that the Respondent be awarded the costs of this application .
2 . THAT the following material will be filed in support of this application: (a) This notice of motion with proof of service . (b) The affidavit of . (c) A draft order requiring perfection in accordance therewith . (g) A memorandum specifying the basis for the application .
DATED at , Saskatchewan, this day of , . (month) (year)
Name and Signature of the Lawyer for the Respondent
TO: Appellant(s)
Appendix I Forms 261 F. 6b
FORM 6b (Rule 46(1)) IN THE COURT OF APPEAL FOR SASKATCHEWAN
CACV Between Appellant – and – Respondent
BEFORE THE HONOURABLE Wednesday, the MR ./ MADAM JUSTICE day of , . IN CHAMBERS: } (month) (year) DRAFT ORDER
UPON THE APPLICATION of the Respondent, and having read the notice of motion 2015 CanLIIDocs 293 with proof of service, the affidavit of , the record of the proceedings, and having regard for the submissions of counsel: IT IS HEREBY ORDERED: 1 . THAT the Appellant shall perfect this appeal as follows: (Here set forth the steps to be taken by the Appellant, for example: (a) The Appellant shall file with the Registrar on or before the
day of , , a praecipe for the transcript required (month) (year) by Rule 21 of The Court of Appeal Rules . (b) The Appellant shall, within 30 days of being notified by the Registrar of the receipt of the transcript, serve and file the appeal book and factum . – OR – (a) The Appellant shall, within days of being served with a copy of this
order, serve and file an appeal book and factum ). 2 . THAT should the Appellant fail to comply with this order, leave is hereby granted to the Respondent to apply to the Court, on five days’ notice, to dismiss the appeal for want of prosecution . 3 . THAT the Respondent shall have the costs of this application .
ISSUED at , Saskatchewan, this day of , . (month) (year)
Registrar, Court of Appeal
262 Civil Appeals in Saskatchewan F. 7
FORM 7 (Rule 46(1)) IN THE COURT OF APPEAL FOR SASKATCHEWAN
CACV Between Appellant (status in court appealed from) – and – Respondent (status in court appealed from)
NOTICE OF MOTION TO DISMISS APPEAL FOR WANT OF PROSECUTION
TAKE NOTICE:
1 . THAT the Respondent intends to apply to the Court of Appeal, at the Court House, 2425 Victoria Avenue, Regina, Saskatchewan, on the
day of , , at 10:00 a .m . for the following relief: 2015 CanLIIDocs 293 (month) (year) (a) An order pursuant to Rule 46(1) of The Court of Appeal Rules dismissing the within appeal for want of prosecution . (b) An order pursuant to Rule 52 of The Court of Appeal Rules that the Respondent have the costs of this application .
2 . THAT the following material will be filed in support of this application: (a) This notice of motion with proof of service . (b) The affidavit of . (c) The order of the Honourable Mr ./Madam Justice dated the day of , , with proof of (month) (year) service, requiring the perfection of this appeal .
DATED at , Saskatchewan, this day of , . (month) (year)
Name and Signature of the Lawyer for the Respondent
TO: Appellant(s)
Appendix I Forms 263 F. 8
FORM 8 (Rule 45) IN THE COURT OF APPEAL FOR SASKATCHEWAN
CACV Between Appellant (status in court appealed from) – and – Respondent (status in court appealed from)
NOTICE OF ABANDONMENT
TAKE NOTICE:
THAT the Appellant (or Applicant as the case may be), hereby abandons the appeal (or application) concerning the judgment (or order) of the Honourable Mr ./Madam Justice dated the day of ,
(month) 2015 CanLIIDocs 293 . (year)
DATED at , Saskatchewan, this day of , . (month) (year)
Name and Signature of the Lawyer of the Appellant (or Applicant)
TO: Respondent(s)
264 Civil Appeals in Saskatchewan F. 9
FORM 9 (Rule 46(2)) IN THE COURT OF APPEAL FOR SASKATCHEWAN
CACV Between Appellant (status in court appealed from) – and – Respondent (status in court appealed from)
NOTICE TO SHOW CAUSE
TAKE NOTICE:
1 . THAT the Registrar has referred the within appeal to the Court of Appeal for dismissal on the ground the appeal appears to have been abandoned .
2 . THAT you have 15 days from the date of this notice, to apply to the Court of 2015 CanLIIDocs 293 Appeal to show cause why the appeal should not be dismissed, failing which the Court shall dismiss the appeal as abandoned .
DATED at , Saskatchewan, this day of , . (month) (year)
Registrar, Court of Appeal
TO: Appellant(s)
Appendix I Forms 265 F. 10a
FORM 10a IN THE COURT OF APPEAL FOR SASKATCHEWAN (Judgment Dismissing Appeal)
CACV Between Appellant(s) – and – Respondent(s)
BEFORE
The Honourable [Chief Justice of Saskatchewan] or [Mr . or Madam Justice]
(name)
The Honourable [Mr . or Madam] Justice 2015 CanLIIDocs 293
(name)
The Honourable [Mr . or Madam] Justice
(name)
JUDGMENT OF THE COURT
THIS APPEAL from the judgment [or order] of the Honourable [Mr . or Madam] Justice
(name) dated the day of , , was heard on the (month) (year) day of , , at Regina [or Saskatoon] . (month) (year)
ON READING the material filed with the court, including the judgment pronounced [or order made] by the Honourable [Mr . or Madam] Justice and the reasons therefor, and
ON HEARING the submissions on behalf of the parties, THIS COURT HEREBY ORDERS:
266 Civil Appeals in Saskatchewan F. 10a
FORM 10a continued
1 . That this appeal be dismissed .
2 . That the appellant forthwith pay the respondent’s taxed costs on appeal as determined under column of The Court of Appeal Tariff of Costs .
DATED this day of , . (month) (year)
Registrar, Court of Appeal 2015 CanLIIDocs 293
Appendix I Forms 267 F. 10b
FORM 10b IN THE COURT OF APPEAL FOR SASKATCHEWAN (Judgment Allowing Appeal and Granting Appellant Judgment Below)
CACV Between Appellant(s) – and – Respondent(s)
BEFORE
The Honourable [Chief Justice of Saskatchewan] or [Mr . or Madam Justice]
(name)
The Honourable [Mr . or Madam] Justice 2015 CanLIIDocs 293
(name)
The Honourable [Mr . or Madam] Justice
(name)
JUDGMENT OF THE COURT
THIS APPEAL from the judgment [or order] of the Honourable [Mr . or Madam] Justice
(name) dated the day of , , was heard on the (month) (year) day of , , at Regina [or Saskatoon] . (month) (year)
ON READING the material filed with the court, including the judgment pronounced [or order made] by the Honourable [Mr . or Madam] Justice and the reasons therefor, and
ON HEARING the submissions on behalf of the parties, THIS COURT HEREBY ORDERS:
268 Civil Appeals in Saskatchewan F. 10b
FORM 10b continued
1 . That the appeal be allowed and the judgment [order] appealed from be set aside .
2 . That the appellant shall have judgment in the proceedings in the Court of Queen’s Bench that gave rise to the judgment [order] appealed from .
3 . That the respondent forthwith pay the appellant’s taxed costs in relation to the proceedings in the Court of Queen’s Bench that gave rise to the judgment [order] appealed from, such costs to be determined in the Court of Queen’s Bench in accordance with the rules of that Court and its Tariff of Costs .
4 . That the respondent forthwith pay the appellant’s taxed costs on appeal as determined under column of The Court of Appeal Tariff of Costs .
DATED this day of , . (year) (month) 2015 CanLIIDocs 293
Registrar, Court of Appeal
Appendix I Forms 269 F. 10c
FORM 10c IN THE COURT OF APPEAL FOR SASKATCHEWAN (Judgment Allowing Appeal and Varying Judgment Below)
CACV Between Appellant(s) – and – Respondent(s)
BEFORE
The Honourable [Chief Justice of Saskatchewan] or [Mr . or Madam Justice]
(name)
The Honourable [Mr . or Madam] Justice 2015 CanLIIDocs 293
(name)
The Honourable [Mr . or Madam] Justice
(name)
JUDGMENT OF THE COURT
THIS APPEAL from the judgment [or order] of the Honourable [Mr . or Madam] Justice
(name) dated the day of , , was heard on the (month) (year) day of , , at Regina [or Saskatoon] . (month) (year)
ON READING the material filed with the court, including the judgment pronounced [or order made] by the Honourable [Mr . or Madam] Justice and the reasons therefor, and
ON HEARING the submissions on behalf of the parties, THIS COURT HEREBY ORDERS:
270 Civil Appeals in Saskatchewan F. 10c
FORM 10c continued
1 . That the appeal be allowed and the judgment [order] appealed from be varied as follows:
2 . That the respondent forthwith pay the appellant’s taxed costs on appeal as determined under column of The Court of Appeal Tariff of Costs .
DATED this day of , . (month) (year) 2015 CanLIIDocs 293 Registrar, Court of Appeal
Appendix I Forms 271 F. 10d
FORM 10d IN THE COURT OF APPEAL FOR SASKATCHEWAN (Judgment Allowing Appeal and Ordering New Trial)
CACV Between Appellant(s) – and – Respondent(s)
BEFORE
The Honourable [Chief Justice of Saskatchewan] or [Mr . or Madam Justice]
(name)
The Honourable [Mr . or Madam] Justice 2015 CanLIIDocs 293
(name)
The Honourable [Mr . or Madam] Justice
(name)
JUDGMENT OF THE COURT
THIS APPEAL from the judgment [or order] of the Honourable [Mr . or Madam] Justice
(name) dated the day of , , was heard on the (month) (year) day of , , at Regina [or Saskatoon] . (month) (year)
ON READING the material filed with the court, including the judgment pronounced [or order made] by the Honourable [Mr . or Madam] Justice and the reasons therefor, and
ON HEARING the submissions on behalf of the parties, THIS COURT HEREBY ORDERS:
272 Civil Appeals in Saskatchewan F. 10d
FORM 10d continued
1 . That the appeal be allowed and the judgment appealed from be set aside .
2 . That a new trial be had between the parties .
3 . That the respondent forthwith pay the appellant’s taxed costs on appeal as determined under column of The Court of Appeal Tariff of Costs .
DATED this day of , . (month) (year)
Registrar, Court of Appeal 2015 CanLIIDocs 293
Appendix I Forms 273 F. 11a
FORM 11a IN THE COURT OF APPEAL FOR SASKATCHEWAN
CACV
Between Appellant (status in court appealed from) – and – Respondent (status in court appealed from)
NOTICE OF APPOINTMENT FOR TAXATION OF COSTS
TO:
I HAVE MADE AN APPOINTMENT to tax the costs of the
before the Registrar of the Court of Appeal for Saskatchewan on the day of
, , at a .m ., at the Court House, 2425 Victoria Ave ., 2015 CanLIIDocs 293 (month) (year) Regina, Saskatchewan .
A copy of the proposed Bill of Costs and an affidavit of disbursements are attached to this Notice of Appointment .
If you have been served with this Notice of Appointment and fail to attend, the Registrar may proceed with the taxation in your absence .
DATED at , Saskatchewan, this day of , . (month) (year)
Deputy Registrar
TO: Appellant/Respondent This document was delivered by: [Name of law firm] [Address] [Lawyer in charge of file] [Telephone] [Fax]
274 Civil Appeals in Saskatchewan F. 11b
FORM 11b IN THE COURT OF APPEAL FOR SASKATCHEWAN
CACV
Between Appellant (status in court appealed from) – and – Respondent (status in court appealed from)
BILL OF COSTS — Column
# Description Fees Disbursements Taxed Taxed On Off 1 . Motion for Leave to Appeal 2 . Notice of Appeal
3 . Fee to Respondent on receipt of 2015 CanLIIDocs 293 Notice of Appeal 4 . Simple Motions 5 . Complex Motions (a) opposed (b) unopposed 6 . Agreement as to Contents of Appeal Book 7 . Preparation of Appeal Book 8 . Preparation of Factum 9 . All Other Preparation for Hearing 10 . Appearance to Present Argument on Appeal before Court of Appeal (for each ½ day) Second counsel (when allowed by the Court, for each ½ day) 11 . Preparing Formal Judgment or Order 12 . Correspondence 13 . Preparation of Bill of Costs 14 . Taxation of Bill of Costs
Appendix I Forms 275 F. 11b
FORM 11b continued
# Description Fees Disbursements Taxed Taxed On Off 15 . For all other services not otherwise provided for, the same fees as are authorized by the tariff of lawyer’s fees in the court from which the appeal is brought 16 . All necessary disbursements for which there are proper vouchers TOTAL FEES TOTAL DISBURSEMENTS TOTAL FEES AND DISBURSEMENTS 2015 CanLIIDocs 293 TAXED ON $ TAXED OFF $ TAXED AT $
This Bill of Costs has been taxed and allowed at $ , this day
of , . (month) (year)
Registrar, Court of Appeal
TO: Appellant/Respondent This document was delivered by: [Name of law firm] [Address] [Lawyer in charge of file] [Telephone] [Fax]
276 Civil Appeals in Saskatchewan F. 11c
FORM 11c IN THE COURT OF APPEAL FOR SASKATCHEWAN
CACV
Between Appellant (status in court appealed from) – and – Respondent (status in court appealed from)
NOTICE TO TAKE OUT AN APPOINTMENT FOR TAXATION
TO: Party Entitled to Costs
You are entitled to costs pursuant to [specify order, judgment, rule or statutory provision entitling party to costs] . 2015 CanLIIDocs 293 You are required to take out an appointment for taxation within 14 days of being served with this notice, failing which I may proceed to tax your costs in your absence .
DATED at , Saskatchewan, this day of , . (month) (year)
Registrar, Court of Appeal
AND TO: Every other party interested in the taxation .
Appendix I Forms 277 F. 11d
FORM 11d IN THE COURT OF APPEAL FOR SASKATCHEWAN
CACV
Between Appellant (status in court appealed from) – and – Respondent (status in court appealed from)
CERTIFICATE OF TAXATION OF COSTS
I CERTIFY that I have taxed the costs of in this appeal under the authority of Rule 54 of The Court of Appeal Rules and have taxed and allowed costs in the sum of $ to be paid by . 2015 CanLIIDocs 293
DATED at , Saskatchewan, this day of , . (month) (year)
Registrar, Court of Appeal
TO: Appellant/Respondent
278 Civil Appeals in Saskatchewan F. 12
FORM 12 IN THE COURT OF APPEAL FOR SASKATCHEWAN
CACV
Between Appellant (status in court appealed from) – and – Respondent (status in court appealed from)
CERTIFICATE OF SERVICE
I, , being a member of the
Law Society of Saskatchewan and legal counsel for the , certify that I caused
[legal counsel for] the to
2015 CanLIIDocs 293 be served on day of , , with a true copy of the following (month) (year) document(s):
[Document(s)]
DATED at , Saskatchewan, this day of , . (month) (year)
Signature
This document was delivered by: [Name of law firm] [Address] [Lawyer in charge of file] [Telephone] [Fax]
TO: Registrar Court of Appeal for Saskatchewan 2425 Victoria Avenue Regina, Saskatchewan S4P 4W6 Telephone: 306-787-5382 Fax: 306-787-5815 e-file: https://ecourt .sasklawcourts .ca
Appendix I Forms 279 Appendix II Civil Practice Directives
No . 1...... 281 No . 2 Books of Authorities ...... 283 No . 3 Electronic Filing...... 285 2015 CanLIIDocs 293 No . 6 Applications for Discretionary Orders Restricting Media Reporting or Public Access...... 288 No . 7 Citation of Authorities...... 290 No . 8 Appeal Settlement Conferences...... 320
NOTE: The Practice Directives have been reproduced by permission of the Court of Appeal for Saskatchewan and have been formatted to fit this publication . For the official Practice Directives, please go to www.sasklawcourts.ca .
280 Civil Appeals in Saskatchewan No. 1
CIVIL PRACTICE DIRECTIVE NO . 1
Effective: November 1, 2009
Civil Practice Directive No . 1 (July 1, 1997) is cancelled and the following substituted therefore: Resolution No . 8 passed at the 1985 Annual General Meeting of the Law Society of Saskatchewan attests to the profession’s need and request for clarification of the Court’s application of the rule of professional conduct that requires a lawyer to abstain from appearing as advocate in a proceeding where he has submitted his own affidavit—a rule expounded upon by this court in Bilson v. University of Saskatchewan, [1984] 4 W .W .R . 238; and R. v. Ironchild, 30 Sask . R . 269; and the cases cited therein . The purpose of this Directive is to provide that clarification . 1 The Court interprets the Rule, as set forth in the Canadian Bar Association Code of Professional Conduct, always to proscribe a lawyer’s appearance 2015 CanLIIDocs 293 except in three situations: (a) where the Rules of Court (“local rules or practice”) expressly permit a lawyer’s appearance despite his or her submission of an affidavit; (b) where the matter deposed to in the affidavit is purely a formal one; (c) where the matter deposed to, although not a mere formality, is uncontroverted, that is, not in issue . 2 What is and what is not a formal matter is usually readily ascertainable but will nevertheless have to be determined by the circumstances of each case . 3 What is uncontroverted may be determined readily by inquiry of the opposing party . If there is no opposing party, the matter in all likelihood is not controverted . 4 The lawyer who submits an affidavit and who intends to appear as advocate in the proceeding should state in the affidavit which of the three exceptions he or she relies upon to permit his or her appearance . 5 If he or she fails to so state in the affidavit, he or she should at the beginning of his or her argument in Chambers state the exception . 6 The same principles apply mutatis mutandis to a lawyer’s appearance as advocate where he or she does not submit an affidavit but testifies in open court . 7 The same principles apply mutatis mutandis to a lawyer’s appearance as advocate where he himself or she herself does not submit an affidavit or testify in open court but a lawyer in his or her firm submits an affidavit or testifies in open court .
Appendix II Civil Practice Directives 281 No. 1
8 Where it deems it in the interests of justice, the Court may, upon application, grant leave to a lawyer to appear as advocate notwithstanding the rule of conduct in question .
NOTE: This Practice Directive is issued by the Court under the authority of The Court of Appeal Act, 2000 and Rule 74 of The Court of Appeal Rules.
Civil Practice Directive No. 1 is issued by the Court of Appeal for Saskatchewan, this 2nd day of October, A.D. 2009.
Lian Schwann, Q .C ., Registrar, Court of Appeal for Saskatchewan . 2015 CanLIIDocs 293
282 Civil Appeals in Saskatchewan No. 2
CIVIL PRACTICE DIRECTIVE NO . 2 Books of Authorities
Effective November 1, 2009 (Amended October 1, 2014)
General 1(1) The Court of Appeal Rules (Civil) do not require that copies of authorities be filed . However, the Court encourages the practice of filing a book of authorities . (2) If only a few authorities are relied on, they may be included as an appendix to the factum provided that they are listed in the “index” at the beginning of the factum as described in Rule 29(4) and marked with tabs .
Authorities to be Included 2(1) Subject to subsections (2) and (3), the authorities filed should ideally include all of those referred to in the factum, including cases, legislation and academic or other writings . However, filing key authorities is preferable to 2015 CanLIIDocs 293 filing none . (2) The book of authorities shall not include cases found in the “Book of Authorities Civil Exclusion List” which appears as Appendix A of this Directive . (3) Counsel are encouraged to co-operate in the production of a common book of authorities containing the authorities relied on by all parties . If a common book is not produced, the respondent’s book of authorities should contain only those authorities not found in the appellant’s book . An intervener’s book should contain only those authorities not found in either the appellant’s or the respondent’s books .
Form 3(1) The colour of an appellant’s book of authorities and a common book of authorities shall be buff, a respondent’s green and an intervener’s red . (2) Each volume should contain an index which lists the authorities included in all volumes and indicates the volume and the tab where each authority is to be found . (3) The index should list cases in alphabetical order and include citations which comply with Civil Practice Directive No . 7 . (4) Each authority should be marked with a separate tab . (5) Where a book of authorities exceeds 300 pages, it should be bound in volumes of not more than 200 pages each .
Appendix II Civil Practice Directives 283 No. 2
(6) Where a book of authorities is printed in more than one volume, the cover and the spine of each volume should clearly indicate the volume number . (7) Authorities should be printed on both sides of the page . (8) Cases included in the book of authorities should always include a copy of the head note . The case should contain only as much of the text as is necessary to provide a full understanding of the passage or passages relied on . This might require that the entire decision be reproduced but often it will be possible to include only excerpts .
Marking of Passages 4 The passages in the authorities which are relied on by counsel should be marked either by way of coloured highlighting, underlining, marginal bars or similar technique .
Number of Copies 5 Unless otherwise directed by the Registrar, three copies of the book of
authorities shall be filed with the Registrar . 2015 CanLIIDocs 293
Service and Filing 6 Books of authorities shall be served on all participants in the appeal before they are filed . Proof of service should be provided at the time of filing .
NOTE: This Practice Directive is issued by the Court under the authority of The Court of Appeal Act, 2000 and Rule 74 of The Court of Appeal Rules.
Lian Schwann, Q .C ., Registrar, Court of Appeal for Saskatchewan .
APPENDIX A Book of Authorities Civil Exclusion List
1. Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S .C .R . 226; 2003 SCC 19 . 2. Hickey v. Hickey, [1999] 2 S .C .R . 518 . 3. Housen v. Nikolaisen, [2002] 2 S .C .R . 235; 2002 SCC 33 . 4. Van de Perre v. Edwards, [2001] 2 S .C .R . 1014; 2001 SCC 60 . 5. Dunsmuir v. New Brunswick, [2008] 1 S .C .R . 190; 2008 SCC 9 . 6. H.L. v. Canada (Attorney General), [2005] 1 S .C .R . 401; 2005 SCC 25 . 7. R. v. Oakes, [1986] 1 S .C .R . 103 .
284 Civil Appeals in Saskatchewan No. 3
CIVIL PRACTICE DIRECTIVE NO . 3 Electronic Filing
Effective April 2, 2012
Practice Directive prevails: This Practice Directive prevails in the event of any conflict or inconsistency between this Practice Directive and The Court of Appeal Rules .
Electronic filing mandatory effective April 2, 2012 1 Effective April 2, 2012, a person who intends to submit a document for filing shall file that document electronically unless exempted from doing so by the registrar .
Electronic filing 2(1) In this Practice Directive, “approved filer” means a person who has
been approved by the registrar pursuant to subsection (3) . 2015 CanLIIDocs 293 (2) A person who intends to submit a document electronically for filing may apply to the registrar to become an approved filer . (3) On receipt of an application pursuant to subsection (2), the registrar may approve the person as an approved filer if: (a) the person provides an email address and any other information that may be requested by the registrar; (b) the person agrees or undertakes to comply with the terms of use for electronic filing; and (c) the registrar considers it appropriate to do so . (4) The registrar may: (a) impose any terms and conditions on an approved filer pursuant to subsection (3); and (b) revoke approval if an approved filer fails to use the electronic filing system in accordance with, or otherwise breaches, the terms of use, any term or condition imposed pursuant to clause (a), or this Practice Directive . (5) An approved filer who submits a document electronically for filing shall: (a) submit the document in an electronic format acceptable to the registrar along with proof of service; and (b) at the time the document is submitted, pay any applicable fee by credit card (Visa or MasterCard) .
Appendix II Civil Practice Directives 285 No. 3
(6) A document submitted electronically for filing is not filed until the registrar accepts it for filing . (7) If a document submitted electronically pursuant to this Practice Directive is accepted for filing by the registrar, the document is filed: (a) on the day the document is submitted, if the document is received by the registrar on or before 4 p .m . on a day on which the registry is open; (b) if the document is received by the registrar after 4 p .m . on a day on which the registry is open, on the first following day that the registry is open; (c) if the document is received by the registrar on a day on which the registry is not open, on the first day following that the registry is open . (8) When accepting a document submitted electronically for filing, the registrar shall place an electronic stamp on the document . (9) If a document in paper form is filed with the registrar, the registrar may
convert the document into electronic form and, if the registrar does so, the 2015 CanLIIDocs 293 registrar shall: (a) store the converted document in an electronic system that the registrar considers appropriate; and (b) retain the paper form of the document .
3 Repealed 4 July 2014, r . 12 .
Transcript 4(1) Notwithstanding Rule 21, an appellant is not required to file a praecipe requisitioning a transcript . (2) Within 14 days after reaching agreement as to the parts of the transcript required for an appeal, the appellant shall order a complete transcript of the proceedings, or a transcript of the parts of the proceedings that the parties agree are required, from Transcript Services or any other commercial court reporting service in the format for transcripts approved by the Court . (3) The appellant shall either: (a) file an electronic copy of the transcript with the registrar immediately on the appellant’s receipt of the transcript; or (b) make arrangements with Transcript Services or the commercial court reporting service, as the case may be, to file an electronic copy of the transcript with the registrar immediately after the transcript is completed and ready for filing .
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Electronic filing - paper copy requirements 5 If a document filed electronically by an approved filer is an appeal book or factum, the approved filer shall file, immediately after the electronic filing, three bound paper copies of the document with the registrar .
Paper filing—paper copy requirements 6(1) Subject to subsection (2), if the registrar exempts a party from filing a document electronically, the party shall file one unbound and unperforated copy of that document in paper form with the registrar . (2) If a party is permitted to file an appeal book or factum in paper form, the party shall immediately file two additional bound paper copies of the document .
Service, address for service and communications by registrar 7(1) Notwithstanding subrule 67(2), if service is required by the Rules, parties may effect service by any means permitted by Part Three of The Queen’s
Bench Rules, with any necessary modification . 2015 CanLIIDocs 293 (2) In addition to the requirements of Rule 65, every party to an appeal shall provide the registrar with a valid email address, unless exempted from doing so by the registrar . (3) Notwithstanding Rule 68, any notice or other communication given by the registrar may be made by any means of electronic communication capable of producing a printed copy .
NOTE: This Practice Directive is issued by the Court under the authority of The Court of Appeal Act, 2000 and Rule 74 of The Court of Appeal Rules. It replaces the earlier Practice Directive on Electronic Filing that was effective on December 15, 2010.
Melanie A . Baldwin, Registrar, Court of Appeal for Saskatchewan .
Appendix II Civil Practice Directives 287 No. 6
CIVIL PRACTICE DIRECTIVE NO . 6 Applications for Discretionary Orders Restricting Media Reporting or Public Access
Effective January 1, 2014
Application of Practice Directive 1 This Practice Directive applies to: (a) an application for a discretionary order restricting media reporting of, or media or public access to, a civil proceeding; and (b) an application to vary or set aside an existing discretionary order restricting media reporting of, or media or public access to, a civil proceeding .
Notice to Parties
2(1) An applicant for a discretionary order restricting media reporting 2015 CanLIIDocs 293 of, or media or public access to, a proceeding shall, at least three days before the proceeding to which the order is to apply, serve the parties to the proceeding with: (a) a notice of motion returnable on the first day of the proceeding; (b) an affidavit; and (c) a draft order . (2) The applicant shall also file the notice of motion, affidavit and draft order mentioned in subsection (1), with proof of service, with the Registrar at least three days before the proceeding to which the order is to apply .
Requirements for Notice of Motion 3 The notice of motion must: (a) state the basis for the motion; (b) set forth the grounds on which the motion is made, including the authority under which the order is sought, whether it is the common law discretion of the Court or a specific statutory provision; and (c) state precisely the relief sought by the applicant, including the particular terms of the order being sought .
Notice to Media 4 An applicant for a discretionary order restricting media reporting of, or media or public access to, a proceeding shall, at least three days before
288 Civil Appeals in Saskatchewan No. 6
the hearing of the application, complete the electronic Notice of Application for a Publication Ban that can be found in the Resources section of the Saskatchewan Law Courts’ website (www .sasklawcourts .ca) .
Standing 5 Standing to be heard on the application is in the sole discretion of: (a) the Court; or (b) if the proceeding is a chambers matter, the judge hearing the application .
NOTE: This Practice Directive is issued by the Court under the authority of The Court of Appeal Act, 2000 and Rule 74 of The Court of Appeal Rules.
Melanie A . Baldwin, Registrar, Court of Appeal for Saskatchewan . 2015 CanLIIDocs 293
Appendix II Civil Practice Directives 289 No. 7
CIVIL PRACTICE DIRECTIVE NO . 7 Citation of Authorities
Effective October 1, 2014
1 The citations included in all factums, written arguments, memoranda of law and other written submissions filed with the Court must comply with the Citation Guide for the Courts of Saskatchewan .
2 TheCitation Guide for the Courts of Saskatchewan is attached to and forms part of this Practice Directive .
NOTE: This Practice Directive is issued by the Court under the authority of The Court of Appeal Act, 2000 and Rule 74 of The Court of Appeal Rules.
Melanie A . Baldwin, Registrar, Court of Appeal for Saskatchewan . 2015 CanLIIDocs 293
Explanatory Note
The Citation Guide for the Courts of Saskatchewan makes important changes to legal citation in the courts of Saskatchewan . Some of those changes are: • A requirement to identify an electronic source in the citation under certain circumstances; • A consistent approach to the use and format of short forms that identify case law or legislation that has previously been cited; and • A hybrid approach to the use of periods in citations .
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Citation Guide for the Courts of Saskatchewan 2015 CanLIIDocs 293
2014
Appendix II Civil Practice Directives 291 No. 7
PURPOSE
The purpose of this Guide is to provide a standard set of citation rules for the courts of Saskatchewan . It covers all of the basic citation structures . For citation questions not covered by this Guide, the Canadian Guide to Uniform Legal Citation (the McGill Guide) should be consulted . Where this Guide and other style guides differ, this Guide prevails .
ACKNOWLEDGMENTS
The Court of Appeal for Saskatchewan, the Court of Queen’s Bench for Saskatchewan, and the Provincial Court of Saskatchewan would like to thank the authors of this Guide, Joanne V . Colledge-Miller of MacPherson Leslie & Tyerman LLP and Ann Marie Melvie, Court of Appeal Librarian, for preparing it .
The authors wish to thank the Supreme Court of Canada and the Ontario Court of Appeal for their assistance in this project . They also acknowledge their reference
to examples in the Canadian Guide to Uniform Legal Citation, 7th edition (Toronto: 2015 CanLIIDocs 293 Carswell, 2010) .
292 Civil Appeals in Saskatchewan No. 7
TABLE OF CONTENTS
I. Citation Quick Reference Guide Case Law...... 296 Neutral Citation Available...... 296 No Neutral Citation Available...... 296 Statutes—Federal and Provincial...... 296 Saskatchewan Regulations...... 296 Revised Regulations...... 296 Unrevised Regulations...... 297 Federal Regulations...... 297 Revised Regulations...... 297 Unrevised Regulations...... 297 Books ...... 297
Journal Articles...... 297 2015 CanLIIDocs 293 Loose-leaf Materials...... 297 Websites...... 298 List of Authorities/Bibliography...... 298
II. Case Law A . Canadian Case Law...... 298 General Citation Pattern...... 298 Neutral Citation Available...... 298 No Neutral Citation Available...... 298 Elements of a Citation...... 299 Use of Periods in a Citation...... 299 1 . Case Name (commonly known as the “style of cause”). . . . 299 2 . The Citation Proper...... 300 3 . “Indexed as” Entry...... 300 4 . Neutral Citation ...... 300 5 . Parallel Citations...... 301 6 . Year of Decision ...... 301 7 . Jurisdiction and Level of Court ...... 302 8 . Pinpoint Reference...... 303 Pinpointing from Databases...... 304 9 . Short Title ...... 304 10 . Which Source? Neutral Citations, Reporters and Electronic Databases ...... 305
Appendix II Civil Practice Directives 293 No. 7
11 . Judgments in Electronic Form...... 305 12 . Unreported Judgments without a Neutral Citation...... 306 B . Foreign Case Law...... 306 1 . Britain and the Commonwealth...... 307 2 . United States...... 307 US Supreme Court decisions ...... 308
III. Statutes and Regulations A . Statutes...... 308 General Citation Pattern...... 308 1 . Saskatchewan Statutes...... 309 2 . Federal Statutes...... 309 3 . Statutes of Other Provinces...... 310 4 . Canadian Charter of Rights and Freedoms ...... 310 5 . Constitution Acts...... 310
B . Provincial Regulations...... 311 2015 CanLIIDocs 293 1 . Revised Regulations...... 311 2 . Unrevised Regulations...... 311 C . Federal Regulations...... 312 1 . Revised Regulations...... 312 2 . Unrevised Regulations...... 312
IV. Secondary Sources, Government Documents and International Materials A . Books...... 312 General Citation Pattern...... 312 1 . Author ...... 313 2 . Edition Statement...... 313 3 . Place of Publication...... 313 4 . Publisher ...... 313 5 . Year...... 313 6 . Pinpoint Reference...... 314 B . Editor or Reviser of the Text of Another...... 314 General Citation Pattern...... 314 C . Collections of Essays ...... 314 General Citation Pattern...... 314 D . Loose-leaf Materials...... 315 General Citation Pattern...... 315
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E . Journal Articles...... 315 General Citation Pattern...... 315 1 . Halsbury’s Laws of Canada...... 316 2 . Journal Articles in Electronic Services ...... 316 3 . Online Journals...... 316 General Citation Pattern...... 316 F . Websites...... 316 General Citation Pattern...... 316 G . Hansard...... 317 1 . Provincial...... 317 General Citation Pattern...... 317 2 . Federal...... 317 General Citation Pattern...... 317
Appendix A: Adoption of Neutral Citations by Canadian Courts ...... 317 2015 CanLIIDocs 293 Appendix B: List of Authorities/Bibliography...... 318 List of Authorities...... 319 Statutes...... 319 Case Law ...... 319 Secondary Sources...... 319
Appendix II Civil Practice Directives 295 No. 7
I. CITATION QUICK REFERENCE GUIDE
This part of the Guide provides a quick reference to the most common kinds of citations . For an expanded explanation, please see the balance of the Guide .
CASE LAW
Neutral Citation Available Case name, | Neutral Citation | pinpoint (as needed), | Print Report Citation (if available) . Gray v Wiegers, 2008 SKCA 7 at para 4, 291 DLR (4th) 176 . H.E.K. v M.L.K., 2013 SKCA 14 .
No Neutral Citation Available
Case name | (year of decision) (as needed), | print report citation | (electronic 2015 CanLIIDocs 293 database where decision obtained) (as needed) | (jurisdiction and level of court) (as needed) | pinpoint (as needed). Kieling v Saskatchewan Wheat Pool (1994), 120 Sask R 239 (CA) . Harelkin v University of Regina, [1979] 3 WWR 673 (QL) (Sask CA) at para 5 .
STATUTES – FEDERAL AND PROVINCIAL
Title, | Statute Volume (e .g ., RSS) | year, | chapter | (session or supplement) (as needed), | pinpoint (as needed). The Sale of Goods Act, RSS 1978, c S-1, s 58 . Income Tax Act, RSC 1985, c 1 (5th Supp), s 103 .
SASKATCHEWAN REGULATIONS
Revised Regulations Title, | RRS | chapter | regulation number. The Conseil scolaire fransaskois Election Regulations, RRS c E-0 .2 Reg 4 . The Slot Machine Regulations, RRS c S-50 Reg 1 . The Parks Regulations, 1991, RRS c P-1 1. Reg 6 .
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Unrevised Regulations Title, | Sask Reg number/year. The Hospital Standards Regulations, 1980, Sask Reg 331/79 .
FEDERAL REGULATIONS
Revised Regulations Title, | CRC, | chapter, | pinpoint (as needed) | (year of revision, optional). Civil Service Insurance Regulations, CRC, c 401, s 5 (1978) .
Unrevised Regulations Title (optional), | SOR/ | year-regulation number, | pinpoint (as needed). Citizenship Regulations, 1993, SOR/93-246, s 7 . 2015 CanLIIDocs 293 BOOKS
Author(s), | Title, | edition (as needed), | volume number (as needed) | (Place of Publication: Publisher, year of publication) | pinpoint (as needed). Bruce MacDougall, Estoppel, 2d ed (Markham: LexisNexis, 2012) at 154 . Michel Bastarache & Andréa Boudreau Ouellet, Précis du droit des biens réels, 2d ed (Cowansville, Que: Éditions Yvon Blais, 2001) at 27 .
JOURNAL ARTICLES
Author(s), | “Title of Article” |(year) | volume | Journal or Review Name | first page number | (Electronic Service) (if applicable) | pinpoint (as needed). Emily Luther, “Justice for All Shapes and Sizes: Combatting Weight Discrimination in Canada” (2010) 48 Alta L Rev 167 (QL) at para 12 .
LOOSE-LEAF MATERIALS
Author(s), | Title, | loose-leaf (release number) | edition (as needed), | volume number (as needed) | (Place of Publication: Publisher, year of publication) | pinpoint (as needed). Mark M . Orkin, The Law of Costs, loose-leaf (Rel 44, June 2014) 2d ed, vol 2 (Toronto: Canada Law Book, 2014) at para 402 .
Appendix II Civil Practice Directives 297 No. 7
Tim Quigley, Procedure in Canadian Criminal Law, loose-leaf (2014- Rel 1) 2d ed (Toronto: Carswell, 2005) .
WEBSITES
Traditional citation, | online: | Name of Website |
LIST OF AUTHORITIES/BIBLIOGRAPHY
See Appendix B for examples . 2015 CanLIIDocs 293
II. CASE LAW
A. CANADIAN CASE LAW
General Citation Pattern Neutral Citation Available Case name, | neutral citation | pinpoint (as needed), | print report citation (if available).
Gray v Wiegers, 2008 SKCA 7 at para 4, 291 DLR (4th) 176 . } } } }
Case name Neutral Citation Pinpoint Print Report Citation
No Neutral Citation Available Case name | (year of the decision) (as needed), | print report citation | (electronic database where decision obtained) (as needed – see point 8) | (jurisdiction and level of court) (as needed) | pinpoint (as needed).
Bank of Montreal v Nevin, [1996] 7 WWR 317 (Sask CA) at 320 . } } }
Case name Print Report Citation Pinpoint
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Kieling v Saskatchewan Wheat Pool (1994), 120 Sask R 239 (CA) at 240 . } } }
Case name Print Report Citation Pinpoint
Drope & Co. Ltd. v Pantel (1963), 40 DLR (2d) 455 (QL) (Sask CA) at para 14 . } } }
Case name Print Report Citation/Electronic Source Pinpoint (see explanation at point 8)
ELEMENTS OF A CITATION
Use of Periods in a Citation 2015 CanLIIDocs 293 1. The case name (commonly known as the “style of cause”) This part of the citation will only include periods in proper names. No other parts of the case name will include periods. Neither the “v” nor the “c” is followed by a period. 2. The citation proper This part of the citation will not include periods for abbreviations for print reports, jurisdictions, or court identifiers. 3. A pinpoint reference This part of the citation will not include periods to indicate abbreviations for paragraphs and pages.
NOTE: These rules only apply to periods in citations . In the body of a document, abbreviations keep their punctuation: e .g ., “The Court made the following statement at para . 25: …”
1. Case Name (commonly known as the “style of cause”)
The case name sets out the names of the parties and identifies how the case is indexed so there is a uniform description of the case name (an issue for cases involving multiple parties) . If there are multiple parties named, use the name of the first listed party . For more information see point 3 below .
The names of the parties are in italics, separated by “v” or “c” (no period) . The “v” is used in the English version of the judgment and the “c” in the French version .
Appendix II Civil Practice Directives 299 No. 7
The “v” and “c” are in italics . Do not use “et al” in the case name . The names of the parties are followed by a reference to the law report . Hunter v Southam Inc., [1984] 2 SCR 145 .
2. The Citation Proper
The citation proper consists of the neutral citation and/or the print report . All citations must include the following: • the year of decision; • where the decision is available (print report or online database); • the jurisdiction of the court; and • the level of court .
If the province or court of origin is clear from the title of the reporter, do not include it in the jurisdiction statement . If it is not clear, then include it in the
jurisdiction section . For example, if citing to a Saskatchewan Court of Appeal 2015 CanLIIDocs 293 decision as found in the DLR, put (Sask CA) after the page number . However, if citing to the same case in the Sask Reports, only (CA) is needed .
3. “Indexed as” Entry
Since 1986, the editors of the various law reports and databases in Canada have standardized the case name of cases by creating an “indexed as” entry, which indicates how to refer to the decision . This is how the decision must be cited . The SCR began using an “indexed as” entry in volume 2 of 1986: YES: Ford v Quebec (Attorney General), [1988] 2 SCR 712 . NO: Attorney General of Quebec v La Chaussure Brown’s Inc., [1988] 2 SCR 712 .
For citation purposes, where there is more than one case listed in the case name (e .g ., where two or more cases are consolidated), only the first case listed should be used in the “indexed as” entry .
If the “indexed as” entry is not listed in the print report, go to the judgments database of the court that issued the decision .
4. Neutral Citation
On January 1, 2000, the Supreme Court of Canada and the Saskatchewan Court of Appeal started using a neutral citation standard for their judgments . Most other Canadian courts and tribunals adopted the same practice around
300 Civil Appeals in Saskatchewan No. 7 that same time, with the exception of Ontario . The neutral citation permits the immediate identification of any judicial decision regardless of format (electronic or paper) or publisher . The neutral citation contains three parts: the year of the decision; the tribunal identifier; and the ordinal number of the decision (this is the consecutive number for each decision issued by that court that is assigned by the court itself) .
The tribunal identifier for Supreme Court of Canada decisions is SCC for the English version and CSC for the French version . The tribunal identifier for Saskatchewan Court of Appeal decisions is SKCA; for Saskatchewan Court of Queen’s Bench decisions, it is SKQB; and for Saskatchewan Provincial Court decisions, it is SKPC .
Always provide the neutral citation if it is available. If the decision is very recent, the neutral citation may be all that is available: R v Levin, 2014 SKCA 66 . Reference re Supreme Court Act, ss 5 and 6, 2014 SCC 21 . 2015 CanLIIDocs 293 Once the judgment is published in a print report, use the print report citation as a second and parallel citation . Refer to point 10 below, for a priority list of which print report to cite first: Westfair Foods Ltd. v United Food and Commercial Workers, Local 1400, 2004 SKCA 119, 244 DLR (4th) 726 . Arsenault-Cameron v Prince Edward Island, 2000 SCC 1, [2000] 1 SCR 3 .
If a neutral citation is not available, then only cite to one print report . For more details, see point 10 below .
A chart of when various Canadian courts adopted neutral citations is attached as Appendix A .
5. Parallel Citations
Where a neutral citation is available, a parallel citation to a print reporter is required . Where there is no neutral citation, cite to only one print report . For more details, see point 10 below .
6. Year of Decision
When the law report can be located by volume number, place the year of the judgment in round parentheses . The comma separating the case name from the citation goes after the parentheses . In other cases, place the year of the volume
Appendix II Civil Practice Directives 301 No. 7
in square brackets and the comma separating the case name from the citation before the square brackets: R v Latimer (1994), 124 Sask R 180 (QB) . Canada (Attorney General) v H.L., [2003] 5 WWR 421 (Sask CA) .
If the year of the decision is the same as the year of the reporter, do not provide the year of the decision . Where the year of the decision differs from the year of the reporter, it is necessary to indicate both years: Busse Farms Ltd. v Federal Business Development Bank (1998), [1999] 7 WWR 737 (Sask CA) .
7. Jurisdiction and Level of Court
Add the name of the court and its jurisdiction, if it cannot be identified from the title of the law report . It is not necessary to identify a level of court or jurisdiction if there is a neutral citation: Langford v Langford (1996), 142 Sask R 51 (QB) . 2015 CanLIIDocs 293 Goodsman v Saskatchewan Power Corp. (1997), 145 DLR (4th) 213 (Sask CA) at 217 . Valley Beef Producers Co-operative Ltd. v Farm Credit Corp., 2002 SKCA 100 at para 97, 218 DLR (4th) 86 .
When initials are used for the jurisdiction, do not leave a space between the jurisdiction and the court (e .g ., BCSC) . When an abbreviation is used for the jurisdiction, leave a space between the jurisdiction and the court (e .g ., Ont SCJ) .
The following table contains abbreviations for jurisdictions:
Jurisdiction Abbreviation Jurisdiction Abbreviation Alberta Alta Nova Scotia NS British Columbia BC Nunavut Nu Federal Fed Ontario Ont Manitoba Man Prince Edward Island PEI New Brunswick NB Quebec Que Newfoundland and NL Saskatchewan Sask Labrador Northwest Territories NWT Yukon Yu
302 Civil Appeals in Saskatchewan No. 7
The following table contains abbreviations for courts:
Court Abbreviation Supreme Court of Canada SCC Federal Court of Appeal FCA Court of Appeal CA Federal Court Fed Ct Superior Court of Justice (Divisional Court) Sup Ct (Div Ct)* Tax Court of Canada Tax Ct Court of Queen’s Bench QB Court of King’s Bench KB Superior Court of Justice or Superior Court Sup Ct Supreme Court SC Provincial Court Prov Ct
Court of Justice Ct J 2015 CanLIIDocs 293 * Where a Divisional Court decision has a neutral citation, it is important to indicate that it is a case from the Divisional Court of the Superior Court of Justice, e .g . 2014 ONSC 941 (Div Ct) .
8. Pinpoint References
Paragraph numbers were added to help the legal profession make the link between the paper and the electronic versions (databases or Internet) of a judgment . A pinpoint is a reference to a particular paragraph or page . If it is not possible to cite to the paragraph number, cite the page .
The following illustrates the year that various law reporting series began adding paragraph numbers:
Reporter Volume Year Began Paragraph Numbering SCR 1 1995 DLR 149 1997 WWR 4 1991 Sask R All 1980
When a neutral citation is available, place the pinpoint immediately after the neutral citation and before the print report citation (if one is available): Gray v Wiegers, 2008 SKCA 7 at paras 4–6, 291 DLR (4th) 176 .
Appendix II Civil Practice Directives 303 No. 7
When a neutral citation isn’t available, place the pinpoint at the very end of the citation, after the jurisdiction and level of court: Farm Credit Corp. v Johnston (1990), 82 Sask R 161 (CA) at para 17 . R v Latimer (1995), 126 DLR (4th) 203 (Sask CA) at 229–30 .
Pinpointing from Databases
Cases with neutral citations are issued with paragraph numbers . If pinpointing to a case without a neutral citation, and the paper version of the print report does not contain paragraph numbers, cite to the page number . If the print report is not available, or if it is more convenient to use a database version of the decision, cite to the paragraph number used by the database and indicate the database used: Drope & Co. Ltd. v Pantel (1963), 40 DLR (2d) 455 (QL) (Sask CA) at para 14 .
Paragraph numbering for decisions without neutral citations can sometimes vary
between electronic databases . Therefore, the citation should specify the database 2015 CanLIIDocs 293 used to reference the paragraph number: Walker v Manitoba Public Insurance Corporation (1985), 35 Man R (2d) 308 (QL) (CA) at para 5 .
Use the following abbreviations for the most frequently accessed databases:
Database Abbreviation Quicklaw QL Westlaw Canada/Westlaw Next/Westlaw WL CanLII, the Canadian Legal Information Institute CanLII
9. Short Title
If reference is made to a case that has already been cited, choose the name of one of the parties or a distinctive part of the case name (commonly known as the “style of cause”) for subsequent references . Place it in square brackets at the end of the citation . Do not use “supra” in place of the citation or after the short form: Gray v Wiegers, 2008 SKCA 7 at para 4, 291 DLR (4th) 176 [Gray] .
Do not use the term “hereinafter” to describe subsequent references to a case . Instead, adopt the simplest form of the case name and use it consistently throughout .
Whatever short form is used, always italicize it . This will also include references to the Act or the Regulation, if only one Act or Regulation is being cited .
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The Administration of Estates Act, SS 1998, c A-4 .1 [AEA] . The Automobile Accident Insurance Act, RSS 1978, c A-35 [AAIA] .
Supra and ibid should still be used in footnotes .
10. Which Source? Neutral Citations, Reporters and Electronic Databases
The process for deciding how to cite case law follows these two rules: RULE #1: If there is a neutral citation, it must be used . See Appendix A for a list of when various Canadian courts adopted neutral citations . RULE #2: Along with the neutral citation, cite a print report if available . If there is no neutral citation, only cite to one print report .
Selecting which print report to cite should be determined on the basis of the following guidelines: (1) all Supreme Court of Canada decisions must be cited to the SCR . If the
decision is too recent to be in the SCR, use the neutral citation and if available, 2015 CanLIIDocs 293 a DLR or WWR cite; (2) Federal Court and Federal Court of Appeal decisions must be cited to the FCR . If the decision is too recent to be in the FCR, use the neutral citation and if available, a DLR, or another available print cite; (3) for civil decisions, cite to the DLR, WWR, Sask R, or other comparable print report . Or, cite to the most applicable topical print report (e .g ., RFL, CPC, CBR, ETR); (4) for criminal decisions, cite to the CCC, CR, DLR, WWR, Sask R, or other comparable print report .
Cite the full version of a decision, either in print or electronic form . A citation to a summary digest (such as ACWS, WCB, AWLD, or BCWLD) should not be used . See “Judgments in Electronic Form” below .
Each electronic database lists parallel citations for decisions; however, parallel citations can also be located in the Canadian Abridgment Consolidated Table of Cases, available in the Court of Appeal Library, the University of Saskatchewan Law Library and the Law Society Libraries in Regina and Saskatoon .
11. Judgments in Electronic Form
A judgment may be too recent to have been published in a print report, but all court decisions have a neutral citation . If it has a neutral citation, cite it .
If the judgment is not available in a print report and there is no neutral citation, cite an electronic database (e .g ., CanLII, Quicklaw or Westlaw Canada) .
Appendix II Civil Practice Directives 305 No. 7
If the judgment is available on CanLII as well as Quicklaw or Westlaw Canada, use the freely available CanLII citation in preference to a subscription-based electronic database:
Database Citation Pattern CanLII citation Saskatchewan Student Aid Fund v Olsen, 1995 CanLII 3942 (Sask CA)
Quicklaw citation R v Otto, [2005] SJ No 275 (QL) (QB) • Always add “QL” to the citation to indicate it is a Quicklaw cite . • The Quicklaw identifier “SJ” indicates “Saskatchewan judgments ”.
Westlaw Citation Heredi v Toth, 1995 CarswellSask 416 (WL) (CA) • Add “WL” to the citation to indicate it is a Westlaw Canada or a WestlawNext Canada cite . 2015 CanLIIDocs 293 12. Unreported Judgments without a Neutral Citation
For the purposes of this Guide, a decision is considered unreported if it has no neutral citation and is not published in a print report or a database .
Provide the names of the parties, together with the name of the court, its jurisdiction, the court file number (if possible) and the date on which the judgment was rendered .
The format for citing an unreported decision is as follows: Case name (date) | judicial centre (if available), | docket number (if available) | (jurisdiction and court). R v Duchek (5 February 1997) Yorkton, CR 901-902/94 (Sask QB) . Williams v Saskatchewan Government Insurance (25 June 2009) Melfort, QBG 20/2009 (Sask QB) . R v Noltcho (9 April 1997) (Sask Prov Ct) .
NOTE: Saskatchewan Provincial Court decisions: follow the pattern as much as possible . Add any information that might be helpful, e .g ., the name of the judge .
B. FOREIGN CASE LAW
When reference is made to a judgment of a foreign country, the rules of the country of origin are usually followed .
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1. Britain and the Commonwealth
The rules for citing English cases, like those of other Commonwealth countries, are identical to the Canadian rules .
Cite the Law Reports (LR) in preference to the Weekly Law Reports (WLR) or the All England Law Reports (All ER) .
The Law Reports are divided into series . Do not refer to the Law Reports, but rather to the series .
Abbreviate the series as follows:
Reporter Abbreviation Appeal Cases (House of Lords and Judicial AC Committee of the Privy Council) Queen’s Bench Division QB King’s Bench Division KB 2015 CanLIIDocs 293 Chancery Ch Family (1972 to present) Fam
For example: Lindley v Rutter, [1981] QB 128 .
When a judgment is cited in the English Reports (ER), the reference to the original report must also be given . When citing a case to the ER, there is generally no need to identify the court: Millar v Taylor (1769), 4 Burr 2303, 98 ER 201 .
In the UK, judgments of the House of Lords, Privy Council, Court of Appeal and Administrative Court have been released with a neutral citation since 2001, as have those of the other parts of the High Court since 2002 . The High Court of Australia adopted the neutral citation system in 1998 . Since then, most courts in that country have done the same .
In England, Australia and New Zealand, the year of the decision of a neutral citation is indicated in square brackets: R v J., [2004] UKHL 42, [2005] 1 All ER 1 . Luton v Lessels, [2002] HCA 13, 210 CLR 333 .
2. United States
There is currently no one uniform standard for neutral citation in the United States .
Appendix II Civil Practice Directives 307 No. 7
The Bluebook: A Uniform System of Citation can be consulted for guidance when dealing with citations for decisions from the United States .
With two exceptions, the rules for citing American cases are similar to the Canadian rules: (1) The year of the judgment is placed at the end of the citation: Abbatte v United States, 359 US 187 (1959) . Adams v Federal Trade Commission, 296 F2d 861 (8th Cir 1961) . (2) It is not necessary to indicate the court if it is the highest court of the state . To determine whether the court in question is the highest state court, consult The Bluebook: People v Dorr, 265 NE2d 601 (Ill 1971) . Spalding v Preston, 21 Vt 9 (1848) . Northwestern National Insurance Co. v Middenberger, 359 SW2d 380 (Mo Ct App 1962) . 2015 CanLIIDocs 293
US Supreme Court decisions
It is preferable to cite decisions of the United States Supreme Court to the US reports . Prior to 1875 (volume 91), they were numbered consecutively for each editor . Place this number and the editor’s name in parentheses after US: Worcester v State of Georgia, 31 US (6 Pet) 515 (1832) .
After 1875, there is no need to worry about the editor’s name: Mills v Maryland, 486 US 367 (1988) .
III. STATUTES AND REGULATIONS
A. STATUTES
General Citation Pattern Title, | statute volume (e .g ., RSS) | year, | chapter | (session or supplement) (as needed), | pinpoint (as needed). The format for citing legislation is to first state the short form of the Act, which is identified at the beginning of the statute . The short form isitalicized followed by a comma, the abbreviation for the statute volume, the year of publication, and the chapter number1:
1 As noted earlier, abbreviations keep their periods in the body of a document; e .g ., “The Court called for a combined approach to s . 241(2) of the Canada Business Corporations Act .”
308 Civil Appeals in Saskatchewan No. 7
The Sale of Goods Act, RSS 1978, c S-1, s 58 . } } }
Short Form Citation Pinpoint
Income Tax Act, RSC 1985, c 1 (5th Supp), s 103 . } } }
Short Form Citation Pinpoint
The Trustee Act, 2009, SS 2009, c T-23 .01, s 14 . } } }
Short Form Citation Pinpoint
1. Saskatchewan Statutes 2015 CanLIIDocs 293
The Statutes of Saskatchewan were revised in 1978 . When citing to these statutes, make sure the abbreviation for the Revised Statutes of Saskatchewan (RSS) is used .
Saskatchewan statutes include the article “The” as part of the English title: The Automobile Accident Insurance Act, RSS 1978, c A-33 .
French titles do not begin with an article .
Legislation enacted after 1978 should be cited to the bound volume in which it appears . Use the abbreviation SS, which stands for the Statutes of Saskatchewan . The Inter-jurisdictional Support Orders Act, SS 2002, c I-10 .03 . The Personal Property Security Act, SS 1993, c P-6 .2 .
2. Federal Statutes
Federal statutes were last revised in 1985 . The abbreviation for the Revised Statutes of Canada is RSC . All acts that appeared in the 1985 consolidation, or in one of the supplements (there are five), should be cited as RSC .
Federal statutes do not include the article “the” as part of the title: Criminal Code, RSC 1985, c C-46 . Divorce Act, RSC 1985, c 3 (2d Supp) .
Appendix II Civil Practice Directives 309 No. 7
Acts that do not exist in the 1985 consolidation should be cited to the bound volume in which they appear . Use the abbreviation SC, which stands for the Statutes of Canada: Corrections and Conditional Release Act, SC 1992, c 20 .
3. Statutes of Other Provinces and Territories
Use the preceding rules when citing statutes from other provinces and territories . Modify the citation for each jurisdiction’s citation series .
Include “The” in the English titles of Acts from these provinces: • Saskatchewan • Manitoba • Newfoundland • Ontario (pre-1980 statutes) .
Do not include “The” in the English titles of the Acts from these jurisdictions: 2015 CanLIIDocs 293 • Canada • Alberta • British Columbia • New Brunswick • Northwest Territories • Nova Scotia • Ontario (post-1980) .
4. Canadian Charter of Rights and Freedoms
The complete citation for the Charter is as follows: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 .
However, it is not necessary to provide the full citation . The first time it is used in a document, it can be referred to as the Canadian Charter of Rights and Freedoms . Thereafter, it can be referred to as the Charter .
5. Constitution Acts
The complete citation for the Constitution Acts most commonly referred to are as follows:
310 Civil Appeals in Saskatchewan No. 7
Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5 . Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 .
However, there is also no need to provide these full citations . The Constitution Acts of 1867 and 1982 can be cited as follows: Constitution Act, 1867 . Constitution Act, 1982 .
B. PROVINCIAL REGULATIONS
Most Saskatchewan regulations have been revised . If a regulation has been revised, it has a chapter number . If it has not been revised, it has a “Sask Reg” number followed by the abbreviated year . 2015 CanLIIDocs 293 1. Revised Regulations
A citation to the revised regulations includes the title, Revised Regulations of Saskatchewan (RRS), the chapter number, and the Regulation number .
The citation pattern for revised provincial regulations is as follows: Title, | RRS | chapter | regulation number. The Conseil scolaire fransaskois Election Regulations, RRS c E-0 .2 Reg 4 . The Slot Machine Regulations, RRS c S-50 Reg 1 . The Parks Regulations, 1991, RRS c P-1 .1 Reg 6 .
NOTE: 1991 is included in the third example because it is part of the title of the regulation . Because there was never a consolidation of the regulations, a year is not attached to the “RRS ”.
2. Unrevised Regulations
A citation to an unrevised regulation includes the title, the Sask Reg number and the year it came into force .
Citation pattern for unrevised provincial regulations is as follows: Title, | Sask Reg number/year. The Hospital Standards Regulations, 1980, Sask Reg 331/79 .
Appendix II Civil Practice Directives 311 No. 7
C. FEDERAL REGULATIONS
Federal regulations were last revised in 1978 in the Consolidated Regulations of Canada, 1978 . Therefore, if the regulation existed in the 1978 consolidation, cite to the CRC .
1. Revised Regulations Title, | CRC, | chapter, | pinpoint (as needed) | (year of revision, optional). Civil Service Insurance Regulations, CRC, c 401, s 5 (1978) .
If the regulation came into force after the consolidation, cite to the SOR (Statutory Orders and Regulations) number .
2. Unrevised regulations Title (optional), | SOR/ | year-regulation number, | pinpoint (as needed). Canadian Turkey Marketing Quota Regulations, 1990, SOR/90-231, s 7 . 2015 CanLIIDocs 293 In this example, the “90” represents the year the regulation came into force . More recent years will be represented by four digits: Children’s Sleepwear Regulations, SOR/2011-15 .
IV. SECONDARY SOURCES, GOVERNMENT DOCUMENTS AND INTERNATIONAL MATERIALS
A. BOOKS
Keep the periods in the author’s name and in the title, but do not include periods in the remainder of the citation .
General Citation Pattern Author(s), | Title, | edition (as needed), | volume number (as needed) | (Place of Publication: Publisher, year of publication) | pinpoint (as needed). Randal N . Graham, Statutory Interpretation: Theory and Practice (Toronto: Emond Montgomery Publications, 2001) . Richard Tremblay, L’essentiel de l’interprétation des lois (Cowansville, Que: Éditions Yvon Blais, 2004) . S .M . Waddams, The Law of Contracts, 3d ed (Toronto: Canada Law Book, 1993) . The Honourable William A . Stevenson & The Honourable Jean E . Côté, Civil Procedure Encyclopedia, vol 2 (Edmonton: Juriliber, 2003) .
312 Civil Appeals in Saskatchewan No. 7
1. Author • List the author’s name as it is presented on the title page of the book . • Include titles (e .g ., Madam Justice) if they appear on the title page . Do not include degrees or credentials . • Include up to three authors, separating the first two authors’ names with a comma and the last two with an ampersand (&) . • If there are more than three authors, include only the first author’s name and et al (in italics but no periods) . • In a list of authorities or bibliography, place the surname first . See Appendix B for examples .
2. Edition Statement • Abbreviate the word edition to “ed” and omit the period . • Abbreviate the edition as follows: 1st, 2d, 3d, 4th, 5th, 6th, 7th, 8th, 9th,
10th, etc . 2015 CanLIIDocs 293
3. Place of Publication • Indicate the place of publication as it appears on the title page or the copyright page on the other side of the title page . • If more than one place of publication is listed, include the first place only . • If no place of publication is listed, write “np” without a period . • If the province, state, or country is needed to identify the place of publication, include it . • If a location could be confused with another, provide additional information (e .g ., London, Ont and London, UK) .
4. Publisher • Write the publisher’s name as it appears on the title page . • Omit the definite article “the,” even if it is the first word of the name . • Omit terms that identify corporate status—Ltd ., Inc ., etc . • If no publisher is listed, write “no publisher ”.
5. Year • Use the most recent copyright date, unless a year of publication is given . • Do not cite the year of printing . • If no year is listed, write “nd ”.
Appendix II Civil Practice Directives 313 No. 7
6. Pinpoint Reference A pinpoint is a reference to a particular paragraph or page . Where it is possible to cite to either the page number or the paragraph number, cite to the paragraph . • Place the pinpoint after the publication information . • Begin references to page numbers or paragraph numbers with “at ”. • Paragraph pinpoints can be “at para” or “at paras” or use the paragraph symbol ¶ (also known as a pilcrow): Ronald C .C . Cuming & Roderick J. Wood, Saskatchewan and Manitoba Personal Property Security Acts Handbook (np: Carswell, 1994) at 453–54 . Michel Bastarache & Andréa Boudreau Ouellet, Précis du droit des biens réels, 2d ed (Cowansville, Que: Éditions Yvon Blais, 2001) at 27 . Victor Di Castri, The Law of Vendor and Purchaser, loose-leaf (2013- Rel 10) 3d ed, vol 2 (Toronto: Carswell, 1988) at para 689 . 2015 CanLIIDocs 293
B. EDITOR OR REVISER OF THE TEXT OF ANOTHER
General Citation Pattern Editor, | ed, | Title, | edition | (Place of Publication: Publisher, year of publication) | pinpoint (as needed).
If the author’s name is part of the title, treat the editor as the author, followed by “ed”: H .G . Beale, ed, Chitty on Contracts, 31st ed (London: Sweet & Maxwell, 2012) .
C. COLLECTIONS OF ESSAYS
General Citation Pattern Author of essay, | “Title of Essay” | in | editor (as needed), | ed, | Title of Book | (Place of Publication: Publisher, year of publication) | first page of essay | pinpoint (as needed). David Wright, “The Crown and Remedies” in Jeff Berryman & Rick Bigwood, eds, The Law of Remedies: New Directions in the Common Law (Toronto: Irwin Law, 2010) 469 at 471 .
• Place the name of the author and the title of the essay before the collection .
314 Civil Appeals in Saskatchewan No. 7
• Follow the name(s) of the editor(s) of the collection by “ed” or “eds,” placed between commas . Some collections have no named editor . Do not provide any editor in such cases . • Provide the title of the collection in italics .
D. LOOSE-LEAF MATERIALS
Indicate the source is in loose-leaf format after the title .
General Citation Pattern Author(s), | Title, | loose-leaf (release number) | edition (as needed), | volume number (as needed) | (Place of Publication: Publisher, year of publication) | pinpoint (as needed). Mark M . Orkin, The Law of Costs, loose-leaf (Rel 44, June 2014) 2d ed, vol 2 (Toronto: Canada Law Book, 2014) at para 402 .
Tim Quigley, Procedure in Canadian Criminal Law, loose-leaf (2014- 2015 CanLIIDocs 293 Rel 1) 2d ed (Toronto: Carswell, 2005) . Peter W . Hogg, Constitutional Law of Canada, loose-leaf (2013-1) 5th ed, vol 1 (Toronto: Carswell, 2007) at 5–20 .
• Include the release number, which can include a date, generally located at the front of the binder . • Cite to the year of publication that appears on the copyright page of the loose-leaf volume . • Pinpoint to a loose-leaf volume via paragraph references where available rather than page references since the former remain consistent over the life of a volume .
E. JOURNAL ARTICLES
Keep the punctuation (periods) in the author’s name and in the title of the article, but do not include periods in the remainder of the citation .
General Citation Pattern Author(s), | “Title of Article” | (year) | volume | Journal or Review Name | first page number |(Electronic Service) (if applicable) | pinpoint (as needed). Jaime Carlson et al, “On the Road to Fairness: Redesigning Saskatchewan’s Administrative Tribunal System” (2010) 73 Sask Law Rev 309 at 311 .
Appendix II Civil Practice Directives 315 No. 7
• If a journal is organized by volume number, indicate the year of publication in parentheses . • If a journal is organized by year rather than by volume number, provide the year in square brackets .
1. Halsbury’s Laws of Canada
Halsbury’s Laws of Canada, Debtor and Creditor, 1st ed (Markham: LexisNexis, 2010) at para HDC-6 .
2. Journal Articles in Electronic Services
If citing to an article found in an electronic source such as Quicklaw, WestlawNext Canada, or HeinOnline, without pinpointing, use the traditional citation .
If pinpointing to the page number of an article found in an electronic source where the original journal’s page numbers are displayed (such as in the PDF version),
there is no need to indicate the name of the electronic source used . 2015 CanLIIDocs 293
Indicate the electronic source used when pinpointing to a paragraph number . This is done because at times, database providers add paragraph numbers to the online version of an article where they don’t exist in the print version: Jaime Carlson et al, “On the Road to Fairness: Redesigning Saskatchewan’s Administrative Tribunal System” (2010) 73 Sask Law Rev 309 (QL) at para 22 .
3. Online Journals
General Citation Pattern Traditional citation, | online: | (year) |volume:issue (as needed) | journal | article number | pinpoint |
F. WEBSITES General Citation Pattern Traditional citation, | online: | name of website |
316 Civil Appeals in Saskatchewan No. 7
Saskatchewan, College of Law, 2005), online: Queen’s Printer (Saskatchewan)
G. HANSARD
1. Provincial General Citation Pattern Jurisdiction, | Legislature, | Title, | number of Legislature and Session | (date) | pinpoint | Speaker (if desired). Saskatchewan, Legislative Assembly, Debates and Proceedings (Hansard), 24th Leg, 1st Sess (7 June 2000) at 1626 (Mr . Toth) .
• This pattern may be used to cite any government debates, minutes, reports and so on .
2. Federal 2015 CanLIIDocs 293 General Citation Pattern Title, | Parliament and Session | (date) | pinpoint | (Speaker) (if desired). House of Commons Debates, 37th Parl, 1st Sess (17 May 2001) at 4175 (Hon . Elinor Caplan) .
APPENDIX A: ADOPTION OF NEUTRAL CITATIONS BY CANADIAN COURTS2
Court Identifier Court Date Introduced SCC Supreme Court of Canada 2000 FC Federal Court of Canada—Trial Division February 2001 FCA Federal Court of Canada—Appeal Division February 2001
ABCA Alberta Court of Appeal 1998 ABQB Alberta Court of Queen’s Bench 1998 BCCA British Columbia Court of Appeal 1999 BCSC Supreme Court of British Columbia 2000 MBCA Manitoba Court of Appeal March 2000 MBQB Court of Queen’s Bench of Manitoba April 2000
2 Neutral citations adopted in January of the indicated year unless otherwise indicated .
Appendix II Civil Practice Directives 317 No. 7
Court Identifier Court Date Introduced NBCA Court of Appeal of New Brunswick May 2001 NBQB Court of Queen’s Bench of New Brunswick 2002 NFCA Supreme Court of Newfoundland & Labrador, 2001 Court of Appeal NLSCTD Supreme Court of Newfoundland & Labrador, July 2003 Trial Division NSCA Nova Scotia Court of Appeal September 1999 NSSC Supreme Court of Nova Scotia December 2000 NUCA Court of Appeal of Nunavut May 2006 NUCJ Nunavut Court of Justice 2001 NWTCA Court of Appeal for the Northwest Territories December 1999 NWTSC Supreme Court of the Northwest Territories October 1999 ONCA Court of Appeal for Ontario 2007
ONCJ Ontario Court of Justice 2004 2015 CanLIIDocs 293 ONSC Ontario Superior Court of Justice 2010 PESCAD Prince Edward Island Supreme Court, 2000 Appeal Division PESCTD Prince Edward Island Supreme Court, 2000 Trial Division QCCA Court of Appeal of Quebec 2005 QCCS Superior Court of Quebec 2006 SKCA Court of Appeal for Saskatchewan 2000 SKQB Saskatchewan Court of Queen’s Bench 1999 SKPC Provincial Court of Saskatchewan 2002 YKCA Yukon Court of Appeal March 2000 YKSC Supreme Court of the Yukon Territory March 2000
APPENDIX B: LIST OF AUTHORITIES/ BIBLIOGRAPHY
The following is provided as an example of a “List of Authorities” and how entries are ordered alphabetically .
The only differences between in-text or footnoted citations and citations listed in a List of Authorities or Bibliography is that all pinpoint references are removed in a List of Authorities and the author’s surname is placed first for any secondary sources . End the entry with a period .
318 Civil Appeals in Saskatchewan No. 7
LIST OF AUTHORITIES Statutes Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 . Citizenship Regulations, 1993, SOR/93-246 . Divorce Act, RSC 1985, c 3 (2d Supp) . The Administration of Estates Act, SS 1998, c A-4 .1 . The Automobile Accident Insurance Act, RSS 1978, c A-33 . The Conseil scolaire fransaskois Election Regulations, RRS c E-0 .2 Reg 4 . The Hospital Standards Regulations, 1980, Sask Reg 331/79 . The Inter-jurisdictional Support Orders Act, SS 2002, c I-10 .03 . The Personal Property Security Act, SS 1993, c P-6 .2 .
Case Law 2015 CanLIIDocs 293 Canada (Attorney General) v H.L., [2003] 5 WWR 421 (Sask CA) . Gray v Wiegers, 2008 SKCA 7, 291 DLR (4th) 176 . Millar v Taylor (1769), 4 Burr 2303, 98 ER 201 . Northwestern National Insurance Co. v Middenberger, 359 SW2d 380 (Mo Ct App 1962) . Williams v Saskatchewan Government Insurance (25 June 2009) Melfort, QBG 20/2009 (Sask QB) .
Secondary Sources
Buckwold, Tamara M . & Cuming, Ronald C .C . Modernization of Saskatchewan Money Judgment Enforcement Law: Final Report, (Saskatoon: University of Saskatchewan, College of Law, 2005), online: Queen’s Printer (Saskatchewan)
Appendix II Civil Practice Directives 319 No. 8
CIVIL PRACTICE DIRECTIVE NO . 8 Appeal Settlement Conferences
Effective September 1, 2015
Purpose of an Appeal Settlement Conference 1 The purpose of an appeal settlement conference [ASC] is to facilitate discussions with a view to reaching a settlement on all issues arising in an appeal, or to resolve as many issues as possible, with the assistance of a judge of the court [the ASC Judge] .
Requesting, Scheduling and Preparing for an Appeal Settlement Conference 2 An ASC may be requested at any time during the appeal process before the hearing of an appeal by one or more of the parties to the appeal . The registrar of the Court of Appeal [Registrar] or a judge of the court sitting in chambers may suggest that the parties consider requesting an ASC . 3 All parties to an appeal must agree to an ASC and it must be authorized 2015 CanLIIDocs 293 by the ASC Judge . 4 Unless otherwise directed by a judge, all requests for an ASC must be made in writing to the Registrar and must be accompanied by written consents of all parties . 5 On receipt of a request for an ASC and obtaining the authorization of the ASC Judge, the Registrar will fix an appropriate date in consultation with the parties . 6 As soon as a date is selected, the Registrar will confirm the date in writing with the parties and will advise of any filing requirements, further materials, procedures or pre-meetings requested by the ASC Judge . 7 Materials submitted for an ASC will not be filed by the Registry of the Court of Appeal or become part of the court record but will be stamped “Received” and forwarded to the ASC Judge .
At the Appeal Settlement Conference 8 To promote success, a person with authority to make settlement decisions must be present and participate in an ASC on behalf of each party . 9 ASCs are intended to be informal . Gowning is not required .
Confidentiality 10 The ASC is confidential . All documents prepared for an ASC and statements made by counsel, or by the parties during an ASC are confidential, without prejudice, and cannot be used for any purpose or in any proceeding
320 Civil Appeals in Saskatchewan No. 8
other than the ASC . The Registrar will destroy all documents submitted for an ASC as ordered by the ASC Judge . 11 The ASC Judge will not hear any applications relating to the appeal or sit on the panel hearing the appeal . Regardless of the outcome of the ASC, the ASC Judge will not discuss the ASC with any other judge of the court . 12 As in any judicial process, the ASC Judge is non-compellable as a witness in any proceedings .
After the Appeal Settlement Conference 13 If an ASC is not successful, the ASC Judge may convert the ASC into a pre-hearing conference pursuant to Rule 41 of The Court of Appeal Rules for the purpose of setting timelines for filing materials necessary for the expeditious hearing of the appeal . 14 If an ASC is successful, the appellant must file a notice of abandonment or a consent judgment (if appropriate) within 30 days of the conclusion of the ASC or within such other time as the ASC Judge directs . 2015 CanLIIDocs 293
NOTE: This Practice Directive is issued by the Court under the authority of The Court of Appeal Act, 2000 and Rule 74 of The Court of Appeal Rules.
Melanie A . Baldwin, Registrar, Court of Appeal for Saskatchewan .
Appendix II Civil Practice Directives 321 Appendix III Queen’s Bench Rules Applicable in the Court of Appeal
PART 2 The Parties to Litigation
DIVISION 4 Lawyer of Record 2015 CanLIIDocs 293 2-34 Lawyer required...... 325 2-35 Students-at-law...... 325 2-36 Lawyer of record...... 326 2-37 Duties of lawyer of record...... 326 2-38 Verifying lawyer of record...... 326 2-39 Retaining a lawyer for limited purposes...... 326 2-40 Change in lawyer of record or self-representation...... 327 2-41 Withdrawal of lawyer of record ...... 327 2-42 Service after lawyer ceases to be lawyer of record...... 328 2-43 Withdrawal after trial date scheduled...... 328 2-44 Automatic termination of lawyer of record and resolving difficulties...... 328
PART 12 Service of Documents
DIVISION 1 Discretion of Court to Validate or Set Aside Service 12-1 Validating or setting aside service ...... 329
322 Civil Appeals in Saskatchewan DIVISION 2 Modes of Service 12-2 Personal service...... 330 12-3 Requirements for ackowledgement of service ...... 331 12-4 Service by alternative modes...... 331
DIVISION 3 Special Modes of Service on Certain Persons 12-5 Service on corporation...... 333 12-6 Service on proprietorships, partnerships and other unincorporated entities...... 334 12-7 Agent of corporation or unincorporated entity...... 334 12-8 Service on a person having no legal capacity...... 335 12-9 Service on a person represented by a lawyer ...... 335
DIVISION 4 Substituted Service
12-10 Substituted service...... 336 2015 CanLIIDocs 293
DIVISION 5 Service Outside Saskatchewan 12-11 Manner of service...... 337 12-12 Service pursuant to the Hague Convention ...... 337
DIVISION 6 Effective Date of Service 12-13 Effective date of service...... 338
DIVISION 7 Proof of Service 12-14 Acknowledgment or certificate of service...... 339 12-15 Affidavit of service...... 339 12-16 Service outside Saskatchewan...... 340
PART 13 Technical Rules
DIVISION 4 Filed Documents Subdivision 2 Form and Contents of Affidavits and Exhibits 13-30 Affidavit to be on knowledge or belief...... 340 13-31 Requirements for affidavits...... 341 13-32 Alterations in affidavits ...... 342
Appendix III Queen’s Bench Rules 323 13-33 Scandalous matter ...... 342 13-34 Requirements for exhibits to an affidavit...... 342 13-35 Affidavits by the visually impaired or those unable to read...... 343 13-37 More than one individual swearing or affirming an affidavit ...... 343 13-38 Use of filed affidavits ...... 344 2015 CanLIIDocs 293
324 Civil Appeals in Saskatchewan R. 2-34
PART 2 The Parties to Litigation
DIVISION 4 Lawyer of Record
Lawyer required 2-34(1) A party to a proceeding who is under disability or acts in a representative capacity must be represented by a lawyer . (2) Subject to subrule (3), unless the Court orders otherwise, a party that is a corporation must be represented in a proceeding by a lawyer . (3) Subrule (2) does not apply to: (a) the enforcement of judgments filed with the Court pursuant to The Small Claims Act, 1997; or 2015 CanLIIDocs 293 (b) the enforcement of orders of the Director of Residential Tenancies filed with the Court pursuant to The Residential Tenancies Act, 2006 .
•
Students-at-law 2-35(1) An articled student-at-law may represent a party before a judge sitting in chambers if: (a) the student-at-law is accompanied by the lawyer in charge of the file; or (b) subject to subrule (2), the matter on which the student-at-law appears is: (i) uncontested; or (ii) an uncomplicated contested matter . (2) An articled student-at-law may not appear on a matter pursuant to subclause (1)(b)(ii) unless the lawyer in charge of the file has filed, no later than the day before the matter is to be heard, a written notice stating that the student-at-law will be appearing and certifying that the student-at-law has been properly briefed . (3) Notwithstanding subrules (1) and (2), the chambers judge may require the personal attendance of the lawyer in charge of the file .
•
Appendix III Queen’s Bench Rules 325 R. 2-36
Lawyer of record 2-36(1) The lawyer or firm of lawyers whose name appears on a commencement document, pleading, affidavit or other document filed or served in an action as acting for a party is a lawyer of record for that party . (2) If there is a lawyer of record, the party for whom the lawyer of record acts may not self-represent unless the Court permits . (3) A lawyer of record remains a lawyer of record until the lawyer ceases to be a lawyer of record under these rules .
•
Duties of lawyer of record 2-37 The duties of a lawyer of record include: (a) conducting the action in a manner that furthers the purpose and intention of these rules described in rule 1-3; and 2015 CanLIIDocs 293 (b) continuing to act as lawyer of record while the lawyer is recorded in that capacity .
•
Verifying lawyer of record 2-38(1) If a person who is served with a commencement document, pleading, affidavit or other document asks a lawyer if the lawyer is a lawyer of record in an action, application or proceeding, the lawyer shall respond to the question in writing as soon as is practicable . (2) If a lawyer or firm of lawyers whose name appears as a lawyer of record in an action denies being the lawyer of record: (a) every application and proceeding in the action is stayed; and (b) no further application, proceeding or step may be taken in the action without the Court’s permission .
•
Retaining a lawyer for limited purposes 2-39(1) If a self-represented litigant or a lawyer of record retains a lawyer to appear before the Court for a particular purpose, the lawyer appearing shall
326 Civil Appeals in Saskatchewan R. 2-40
inform the Court of the nature of the appearance before the appearance by filing the terms of the retainer, other than the terms related to the lawyers’ fees and disbursements . (2) If a self-represented litigant retains a lawyer for a particular purpose, the litigant shall attend the application or proceeding for which the lawyer is retained unless the Court otherwise permits .
•
Change in lawyer of record or self-representation 2-40(1) A party may change the party’s lawyer of record or may self- represent by: (a) serving on every other party and on the lawyer or former lawyer of record and filing a notice of the change in Form 2-40; and
(b) filing an affidavit of service of the notice . 2015 CanLIIDocs 293 (2) A self-represented litigant who retains a lawyer to act on the litigant’s behalf shall: (a) serve on every other party and file a notice naming the lawyer of record in Form 2-40; and (b) file an affidavit of service of the notice . (3) The notice must include an address for service . (4) The notice is not required to be served on: (a) a party noted in default; or (b) a party against whom default judgment has been entered .
•
Withdrawal of lawyer of record 2-41(1) Subject to rule 2-43, a lawyer or firm of lawyers may withdraw as lawyer of record by: (a) serving on every party and filing a notice of withdrawal in Form 2-41A that states the client’s last known address; (b) filing an affidavit of service of the notice; and (c) serving on the client or former client and filing a notice in Form 2-41B to the effect that, on the expiry of 10 days after the date on which
Appendix III Queen’s Bench Rules 327 R. 2-42
the affidavit of service of the notice is filed, the withdrawing lawyer will no longer be the lawyer of record . (2) The withdrawal of the lawyer of record takes effect 10 days after the affidavit of service is filed . (3) The address of the party stated in the notice of withdrawal is the party’s address for service after the lawyer of record withdraws unless another address for service is provided or the Court orders otherwise . (4) The Court may, on application, order that a lawyer need not disclose the last known address of a client and instead provide an alternative address for service for the client in a notice of withdrawal served pursuant to this rule if the Court considers it necessary to protect the safety and well-being of the client . (5) An application pursuant to subrule (4) may be made without notice . (6) Service of the notice on the client or former client may be by ordinary mail . 2015 CanLIIDocs 293 •
Service after lawyer ceases to be lawyer of record 2-42 After a lawyer or firm of lawyers ceases to be a lawyer of record, no delivery of a pleading, affidavit, notice or other document relating to the action is effective service on the former lawyer of record or at any address for service previously provided by the former lawyer of record .
•
Withdrawal after trial date scheduled 2-43 After a pre-trial date or a trial date is scheduled, a lawyer of record may not, without the Court’s permission, serve a notice of withdrawal as lawyer of record, and any notice of withdrawal that is served without the Court’s permission has no effect .
•
Automatic termination of lawyer of record and resolving difficulties 2-44(1) A lawyer or firm of lawyers ceases to be the lawyer of record if: (a) in the case of an individual lawyer:
328 Civil Appeals in Saskatchewan R. 12-1
(i) the lawyer dies; (ii) the lawyer is suspended or disbarred from practice as a lawyer; or (iii) the lawyer ceases to practise as a lawyer; or (b) in the case of a firm of lawyers, the firm dissolves . (2) If any of the circumstances described in subrule (1) occurs, any party may apply to the Court, without notice to any other party, for directions respecting service of documents . (3) The Court may: (a) direct the manner in which service is to be effected; (b) dispense with service in accordance with rule 12-10; or (c) make any other order respecting service that the circumstances require . (4) An order pursuant to this rule applies until a notice is given pursuant to rule 2-40 or rule 2-41 or the Court orders otherwise . 2015 CanLIIDocs 293 (5) Nothing in this rule prevents a party from serving a notice of change of lawyer of record or notice that the party intends to self-represent .
•
PART 12 Service of Documents
DIVISION 1 Discretion of Court to Validate or Set Aside Service
Validating or setting aside service 12-1(1) Subject to the express provisions of any enactment and notwithstanding any rule respecting service, the Court has discretion to validate or set aside the service of any document . (2) The primary consideration for the Court in the exercise of its discretion is that the person served or to be served: (a) received notice of the document; or (b) would have received notice except for the attempts of that person to evade service .
Appendix III Queen’s Bench Rules 329 R. 12-2
(3) If the Court is satisfied that the person to be served received notice of the document, the Court may: (a) validate any irregular or unauthorized service of a document; and (b) impose any terms that it considers appropriate on the validation . (4) If the Court is not satisfied that the person to be served received notice of a document, the Court may: (a) set aside service of the document; and (b) order further or other service of the document . (5) The Court may set aside the consequences of any default to respond to service of a document or may extend the time to respond to service of a document if the Court is satisfied that: (a) the person to be served did not have notice of the document; (b) the person to be served did not have notice of the document until a date later than the effective date of service; or 2015 CanLIIDocs 293 (c) the document served was incomplete or illegible .
•
DIVISION 2 Modes of Service
Personal service 12-2(1) Service of a document must be effected by personal service of that document on the person to be served except where: (a) an enactment or order of the Court provides otherwise; or (b) these rules authorize service by an alternative or special mode of service . (2) A document may be served personally notwithstanding that service in another manner is authorized . (3) Personal service of a document is effected by leaving a copy of the document with the person to be served . (4) It is not necessary for the person effecting personal service of a document to possess or produce the original document . (5) A commencement document is deemed to have been personally served if the person to be served has delivered a statement of defence or taken any action that is necessary to participate in the proceeding .
330 Civil Appeals in Saskatchewan R. 12-3
(6) A document is deemed to have been personally served if an acknowledgment of service that complies with rule 12-3 is filed .
•
Requirements for acknowledgment of service 12-3(1) An acknowledgment of service must be in Form 12-3 . (2) An acknowledgment of service must: (a) be signed by the person to be served, or by his or her lawyer or an authorized person as provided in rules 12-5 to 12-9; (b) set out the date of service; (c) clearly identify the document served; and (d) include an address for service of the person to be served .
(3) A commencement document must be accompanied by: 2015 CanLIIDocs 293 (a) an acknowledgment of service; (b) a request that the person served return the signed and completed acknowledgment of service without delay; and (c) a postage prepaid envelope addressed to the person serving the document, except where service is effected by fax or electronic transmission . (4) The person to be served shall bear all costs of service necessitated by that person’s neglect or refusal to sign and return a completed acknowledgment of service without delay . (5) Unless the Court orders otherwise, a party is not entitled to notice of any subsequent proceedings in the cause or matter if that party: (a) neglects or refuses to sign and return a completed acknowledgment of service including a proper address for service; or (b) fails to otherwise file an address for service .
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Service by alternative modes 12-4(1) If expressly authorized by enactment, an order of the Court or these rules, service of a document may be effected by an alternative mode, including:
Appendix III Queen’s Bench Rules 331 R. 12-4
(a) courier; (b) registered or ordinary mail; (c) fax; or (d) electronic transmission . (2) Subject to subrule (3), if an address for service in a proceeding has been filed respecting the person to be served, a document required to be served may be served at the address for service by any of the following modes: (a) courier, including any adult person who delivers the document; (b) registered or ordinary mail; (c) fax; or (d) electronic transmission, but only if an electronic transmission acknowledging receipt is received from the person to be served . (3) Subrule (2) does not apply to a subpoena or an application for committal of a person for contempt of Court . 2015 CanLIIDocs 293 (4) In the case of service by courier, a copy of the document must be: (a) left at the address for service with the person to be served; (b) left at the address for service with an adult person who appears to be an employee, agent, representative or household member of the person to be served; or (c) left in a mail receptacle at the address for service if there is no person described in clause (b) present: (i) at an address for service that is a residential address; or (ii) during regular office hours, at an address for service that is a business address . (5) In the case of service by registered or ordinary mail, a copy of the document must be placed in an envelope and mailed to the address for service of the person to be served . (6) In the case of service by fax, the document must be faxed to the fax number shown in the address for service of the person to be served and must include a cover page that sets out all of the following information: (a) the sender’s name, address, telephone and fax numbers; (b) the name of the person to be served; (c) the date and time of transmission; (d) the total number of pages transmitted, including the cover page;
332 Civil Appeals in Saskatchewan R. 12-5
(e) the name and telephone number of a person to contact in the event of transmission problems . (7) In the case of service by electronic transmission: (a) the document must be electronically transmitted to the electronic transmission address shown in the address for service of the person to be served; and (b) the electronic transmission must set out all of the following information: (i) the sender’s name, address, telephone number, electronic transmission address and the sender’s fax number if there is one; (ii) the name of the person to be served; (iii) the date and time of transmission; (iv) the electronic file name of the document being transmitted, the style of cause, name and date of the document being transmitted and the total number of hard copy pages of the document;
(v) the name and telephone number of a person to contact in the 2015 CanLIIDocs 293 event of transmission problems; (vi) confirmation that the original document has been signed, that the original signed document has been or will be filed with the Court and that the original signed document is available for inspection at the place and times specified .
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DIVISION 3 Special Modes of Service on Certain Persons
Service on corporation 12-5 Subject to the express provisions of any enactment, service of a document may be made: (a) on a municipal corporation, by leaving a copy of the document with the mayor, reeve, clerk or secretary of the municipal corporation or their respective deputies; (b) on a corporation incorporated or registered pursuant to any enactment, in accordance with the provisions for service of that enactment; or
Appendix III Queen’s Bench Rules 333 R. 12-6
(c) on any other corporation or on a corporation mentioned in clause (b) if the enactment contains no provisions for service, by leaving a copy of the document with: (i) any officer, director, agent or liquidator of the corporation; or (ii) any clerk, manager, agent or other representative of the corporation at or in charge of any office or other place where the corporation carries on business .
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Service on proprietorships, partnerships and other unincorporated entities 12-6 Subject to the express provisions of any enactment, service of a document may be made: (a) on a sole proprietorship, by leaving a copy of the document with
the sole proprietor or any person at the principal place of business of the 2015 CanLIIDocs 293 sole proprietorship who appears to be in control or management of the proprietorship; (b) on a partnership, by leaving a copy of the document with one of the partners or any person at the principal place of business of the partnership who appears to be in control or management of the partnership; (c) on an unincorporated association, by leaving a copy of the document with any officer of the association or any person at the office or premises of the association who appears to be in control or management of the association; or (d) on a board or commission, by leaving a copy of the document with any member or secretary of the board or commission .
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Agent of corporation or unincorporated entity 12-7(1) In this rule, “unincorporated entity” means a sole proprietorship, partnership, unincorporated association or board or commission . (2) If a person in Saskatchewan transacts or carries on any business for or on behalf of any corporation or unincorporated entity that has its principal place of business outside Saskatchewan, that person is deemed to be an agent of that corporation or unincorporated entity for the purposes of service
334 Civil Appeals in Saskatchewan R. 12-8
until an address for service is filed by or on behalf of that corporation or unincorporated entity .
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Service on a person having no legal capacity 12-8 Subject to the express provisions of any enactment or order of the Court, service of a document may be made: (a) on a minor, by leaving a copy of the document with: (i) the minor; and (ii) the father, mother, guardian or legal custodian of the minor or an adult person who has the care of the minor and with whom the minor resides; (b) on a dependent adult, by leaving a copy of the document with:
(i) the dependent adult; and 2015 CanLIIDocs 293 (ii) his or her personal or property decision-maker; or (c) on a person who may be of unsound mind but has no personal or property decision-maker, in accordance with the terms of an order of the Court authorizing service .
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Service on a person represented by a lawyer 12-9(1) Subject to the express provisions of any enactment and to subrule (2), service of a document on a person who is represented by a lawyer respecting the proceeding to which the document pertains must be effected by service on the lawyer . (2) This rule does not apply to a subpoena or an application for committal of a person for contempt of Court . (3) An acknowledgment of service in Form 12-3 signed by the lawyer representing the person to be served constitutes a representation that the person to be served has authorized the lawyer to accept service on his or her behalf . (4) If the lawyer representing the person to be served respecting the proceeding to which the document to be served pertains refuses or
Appendix III Queen’s Bench Rules 335 R. 12-10
neglects to sign and return the completed acknowledgment of service without delay: (a) the document may be served on the person who is represented by the lawyer; and (b) the lawyer shall personally pay all costs of service necessitated by the refusal or neglect .
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DIVISION 4 Substituted Service
Substituted service 12-10(1) If it is impractical to effect service of a document by any of the
modes authorized by this Part, an application without notice may be made to 2015 CanLIIDocs 293 the Court for an order: (a) for substituted service of the document; or (b) dispensing with service of the document . (2) An application pursuant to subrule (1) may include directions for service or dispensing with service of any subsequent documents in the proceeding . (3) An application pursuant to subrule (1) must comply with rule 6-4 and must be supported by an affidavit that sets out: (a) the attempts, if any, that have been made to effect service of a document by a mode authorized by this Part; (b) the circumstances that make it impractical to effect service by that mode; (c) the mode of service that, in the opinion of the deponent, is likely to provide the party to be served with notice of the document; and (d) the grounds on which an order dispensing with service of the document should be made, if that order is sought . (4) An order for substituted service must be served with any document to be served substitutionally . (5) Service of a document in accordance with the terms of an order for substituted service constitutes valid service on the person served .
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336 Civil Appeals in Saskatchewan R. 12-11
DIVISION 5 Service Outside Saskatchewan
Manner of service 12-11(1) Service of a document outside Saskatchewan may be effected: (a) in the manner provided by these rules for service in Saskatchewan if it is not incompatible with the law of the jurisdiction where service is made; (b) in the manner provided by the law of the jurisdiction where service is made; or (c) in the manner provided in rule 12-12 . (2) Service of a document in the manner provided for service in Saskatchewan is deemed to be valid service unless the person served shows that the service is incompatible with the law of the jurisdiction where service is made . 2015 CanLIIDocs 293
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Service pursuant to the Hague Convention 12-12(1) In this rule: “document” means a judicial or extra-judicial document in a civil or commercial matter; “Hague Convention” means the Convention on the Service Abroad of Judicial and Extra-judicial Documents in Civil or Commercial Matters, signed at The Hague on November 15, 1965; “state” means a state outside of Canada that is a signatory to the Hague Convention . (2) If a document is to be transmitted abroad for service in a state pursuant to the Hague Convention, it must be filed with the local registrar and must be accompanied by: (a) a Request in Form 12-12A; (b) a Summary in Form 12-12B; (c) a translation of each document in the official language or one of the official languages of the state in which service is to be effected; (d) a duplicate copy of each document; (e) a request that the local registrar transmit each document and the translation in duplicate to the state in which service is to be effected; and
Appendix III Queen’s Bench Rules 337 R. 12-13
(f) a deposit for fees and disbursements in an amount satisfactory to the local registrar . (3) If the local registrar receives the documents, supporting material and deposit mentioned in subrule (2), the local registrar shall forward all material to the appropriate authority for service as provided for or permitted by the Hague Convention . (4) A Certificate in Form 12-12C completed and signed by the Central Authority of a state, or the designated authority for a state, is proof of service when it shows that service has been effected by: (a) personal service; or (b) if service cannot be made personally, by a method that is consistent with the practice and usage of the state . (5) If a Certificate in Form 12-12C is not received, judgment may be given under the conditions stated in Article 15 of the Hague Convention, and, in the case of urgency, the Court may order any provisional or protective measures . 2015 CanLIIDocs 293
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DIVISION 6 Effective Date of Service
Effective date of service 12-13(1) Notwithstanding the following subrules, service of a document by any mode where a signed acknowledgment of service has been received is effective on the date specified in the acknowledgment of service . (2) Service of a document by any mode between 4:00 p .m . and midnight or on a Saturday, Sunday or holiday is effective on the next day that is not a Saturday, Sunday or holiday . (3) Service of a document by registered mail is effective on the date specified in the post office confirmation of delivery to the person to be served or, if no date is specified, on the date the sender receives the confirmation of delivery . (4) Service of a document by ordinary mail is effective on the seventh day after the document is delivered by the sender to the post office for mailing . (5) Service of a document by fax is effective on the date of transmission . (6) Service of a document by electronic transmission is effective on the date set out in the electronically transmitted acknowledgment of receipt or,
338 Civil Appeals in Saskatchewan R. 12-14
if no date is specified, on the date the sender receives the acknowledgment of receipt . (7) Deemed service of a document pursuant to subrule 12-2(5) is effective on the date the person to be served files a statement of defence or takes any other action in the proceeding .
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DIVISION 7 Proof of Service
Acknowledgment or certificate of service 12-14(1) Service of a document may be proved by filing an acknowledgment of service that complies with subrule 12-3(2) . (2) Service of a document effected by a sheriff, his or her deputy or a bailiff 2015 CanLIIDocs 293 may be proved by filing a certificate of service in Form 12-14 that clearly identifies the document served . (3) An acknowledgment of service or a certificate of service may be endorsed on or attached to an original or true copy of the document served, except where the document served is already on the Court file . (4) No affidavit of service is required if service is proved by an acknowledgment of service or a certificate of service .
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Affidavit of service 12-15(1) Subject to rule 12-14, service of a document must be proved by an affidavit of service stating: (a) the mode of service; (b) the date, time and place the document was served; (c) the person who effected service; and (d) the person who was served . (2) An affidavit of service must be in Form 12-15 . (3) If service is effected other than at the address for service of the person to be served, the deponent completing the affidavit of service shall
Appendix III Queen’s Bench Rules 339 R. 12-16
state the basis of his or her information respecting the current address of the person served . (4) An original or true copy of the document served must be exhibited to the affidavit of service except where the document is already on the Court file . (5) The following documents must be exhibited to the affidavit of service if they are relied on for proof of service: (a) a copy of a post office confirmation of delivery to the person served; (b) a copy of a fax confirmation; or (c) a hard copy of an electronically transmitted acknowledgment of receipt .
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Service Outside Saskatchewan
12-16 If service has been effected outside Saskatchewan, proof of service 2015 CanLIIDocs 293 may be made in the manner provided by: (a) these rules; (b) the law of the jurisdiction where service was made; or (c) rule 12-12 .
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PART 13 Technical Rules
DIVISION 4 Filed Documents
Subdivision 2 Form and Contents of Affidavits and Exhibits
Affidavit to be on knowledge or belief 13-30(1) Subject to subrule (2), an affidavit must be confined to facts that are within the personal knowledge of the person swearing or affirming the affidavit .
340 Civil Appeals in Saskatchewan R. 13-31
(2) In an interlocutory application, the Court may admit an affidavit that is sworn or affirmed on the basis of information known to the person swearing or affirming the affidavit and that person’s belief . (3) If an affidavit is sworn or affirmed on the basis of information and belief in accordance with subrule (2), the source of the information must be disclosed in the affidavit . (4) The costs of every affidavit that unnecessarily sets forth matters of hearsay or argumentative matter, or copies of or extracts from documents, must be paid by the party filing the affidavit . (5) If an affidavit based on information and belief is filed and does not adequately disclose the grounds of that information and belief, the Court may direct that the costs of the affidavit shall be paid personally by the lawyer filing the affidavit . (6) An affidavit filed in a subsequent proceeding for the same action must not repeat matters filed in earlier affidavits, but may make reference to earlier
affidavits containing those matters . 2015 CanLIIDocs 293
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Requirements for affidavits 13-31(1) In addition to complying with rule 13-20, an affidavit pursuant to these rules must comply with all of the following: (a) be in Form 13-31; (b) state, on the front page, the style of cause of the proceeding and the full name of the person swearing or affirming the affidavit; (c) state the place of residence of the person swearing or affirming the affidavit; (d) be written in the first person; (e) be divided into paragraphs, consecutively numbered, and as nearly as may be, each paragraph must be confined to a distinct portion of the subject; (f) subject to rule 13-35, be signed or acknowledged, and sworn or affirmed, before a person empowered to administer oaths and affirmations, whether that person prepared the affidavit or not; (g) contain a statement of when, where and before whom the affidavit was sworn or affirmed;
Appendix III Queen’s Bench Rules 341 R. 13-32
(h) be signed by the person administering the oath or taking the affirmation . (2) Affidavits sworn or affirmed in Saskatchewan must be sworn or affirmed before a judge, local registrar, deputy local registrar, notary public, justice of the peace or commissioner empowered to administer oaths or affirmations . (3) An affidavit is not invalid or otherwise improper solely because it was sworn or affirmed before a commencement document was filed . (4) No costs are to be allowed for any affidavit substantially departing from this rule .
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Alterations in affidavits 13-32 Without leave of the Court, no affidavit must be read or made use of in any matter pending in Court if the affidavit has in the jurat or body any 2015 CanLIIDocs 293 interlineation, alteration or erasure, unless the interlineation, alteration or erasure is authenticated by the initials of the officer taking the affidavit .
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Scandalous matter 13-33 The Court may order any matter that is scandalous to be struck out from any affidavit .
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Requirements for exhibits to an affidavit 13-34(1) Subject to subrule (3), any document referred to in an affidavit need not be annexed to the affidavit but may be referred to and marked as an exhibit . (2) Unless the Court orders otherwise, if a document that is marked as an exhibit is not annexed to the affidavit, the document need not be filed, but must be left for the use of the Court and must be delivered on determination of the application to the party leaving the document . (3) Unless the Court orders otherwise, if an affidavit in any proceeding refers to a document as an exhibit and the original or true copy of the document is already a part of the Court file: (a) the exhibit must not be attached or annexed to the affidavit; and
342 Civil Appeals in Saskatchewan R. 13-35
(b) following the reference to the exhibit in the affidavit, the following words must appear: “an original or true copy of which was filed in Court on the ______day of ______, 20______”. (4) Every certificate on an exhibit referred to in an affidavit and not annexed to it must be marked with the style of cause . (5) If the total number of pages of an affidavit and attached exhibits is 25 or more: (a) the exhibits must be separated by tabs, and the pages within each tab must be numbered consecutively; or (b) the pages of the affidavit and all exhibits must be consecutively numbered using a single series of numbers .
• 2015 CanLIIDocs 293
Affidavits by the visually impaired or those unable to read 13-35(1) If it seems to the person administering the oath or taking the affirmation that the person swearing or affirming the affidavit is visually impaired or unable to read, the person administering the oath or affirmation must: (a) read the affidavit to the person swearing or affirming the affidavit; and (b) certify that: (i) the affidavit was read to the person; (ii) the person seemed to understand it; and (iii) the person signed the affidavit or made the person’s mark in the presence of the person administering the oath . (2) The affidavit must not be used in evidence without the certification mentioned in subrule (1) unless the Court is satisfied that the affidavit was read to, and appeared to be understood by, the person swearing or affirming it .
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More than one individual swearing or affirming an affidavit 13-37(1) An affidavit may be made by 2 or more individuals, and that fact must be stated in the statement of when, where and before whom the affidavit was sworn or affirmed .
Appendix III Queen’s Bench Rules 343 R. 13-38
(2) An affidavit referred to in subrule (1) must: (a) be sworn or affirmed by each of the individuals separately; and (b) indicate that the individuals have been sworn or affirmed in the manner required by clause (a) .
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Use of filed affidavits 13-38(1) All affidavits that have been made and filed in any cause or matter may be referred to and used at any stage of the proceedings in any application in chambers . (2) The Court may: (a) receive any affidavit sworn or affirmed for the purpose of being used in any cause or matter, notwithstanding any defect by mis-description of
parties or otherwise in the title or jurat, or any other irregularity in the 2015 CanLIIDocs 293 form of the affidavit; and (b) direct a memorandum to be made on the document that it has been so received . (3) If a special time is limited for filing affidavits, an affidavit filed after that time must not be used unless by leave of the Court . (4) On applications founded on affidavits, either party may, by leave of the Court, make affidavits in answer to the affidavits of the opposite party as to new matters arising out of those affidavits .
344 Civil Appeals in Saskatchewan Appendix IV Tariff of Costs
SCHEDULE I “A” IN THE COURT OF APPEAL FOR SASKATCHEWAN 2015 CanLIIDocs 293 Effective April 1, 2006
Tariff Items Fees Column Column Column Column 1 2 3 4 Not $50,000 $100,000 $300,000 exceeding to to or more $50,000 $100,000 $300,000 1 . Motion for Leave to Appeal $1,000 $1,500 $2,000 $2,500 (including brief and argument) 2 . Notice of Appeal (appellant or $300 $400 $500 $600 cross-appellant only) 3 . Fee to Respondent on receipt of $100 $125 $150 $200 Notice of Appeal 4 . Simple Motions $250 $375 $500 $625 5 . Complex Motions (a) opposed $1,000 $1,500 $2,000 $2,500 (b) unopposed $500 $750 $1,000 $1,250 6 . Agreement as to Contents of $100 $200 $300 $400 Appeal Book 7 . Preparation of Appeal Book $250 $500 $750 $1,250 8 . Preparation of Factum $1,000 $2,000 $3,500 $5,000
Appendix IV Tariff of Costs 345 Tariff Items Fees Column Column Column Column 1 2 3 4 Not $50,000 $100,000 $300,000 exceeding to to or more $50,000 $100,000 $300,000 9 . All Other Preparation for $500 $750 $1,000 $1,250 Hearing 10 . Appearance to Present Argument $300 $400 $500 $600 on Appeal before Court of Appeal (for each ½ day) Second Counsel (when allowed $150 $200 $250 $300 by the Court, for each ½ day) 11 . Preparing Formal Judgment or $100 $200 $300 $400 Order 12 . Correspondence $100 $200 $300 $400
13 . Preparation of Bill of Costs $100 $150 $200 $250 2015 CanLIIDocs 293 14 . Taxation of Bill of Costs $50/ $75/ $100/ $125/ hour hour hour hour 15 . For all other services, not otherwise provided for the same fees as are authorized by the tariff of solicitors’ fees in the court from which the appeal is brought 16 . All necessary disbursements for which there are proper vouchers
346 Civil Appeals in Saskatchewan Appendix V The Court of Appeal Fees Regulations, 2000
being
Chapter C-42 .1 Reg 1 (effective November 1, 2000) as amended by Saskatchewan Regulations 122/2002 and 16/2011 . 2015 CanLIIDocs 293
NOTE:
This consolidation is not official . Amendments have been incorporated for convenience of reference and the original statutes and regulations should be consulted for all purposes of interpretation and application of the law . In order to preserve the integrity of the original statutes and regulations, errors that may have appeared are reproduced in this consolidation .
Appendix V The Court of Appeal Fee Regulations, 2000 347 CHAPTER C-42.1 REG 1 The Court of Appeal Act, 2000
Title 1 These regulations may be cited as The Court of Appeal Fees Regulations, 2000 .
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Registrar’s fees 2(1) The fee payable to the registrar for a service set out in Column 1 of Table 1 of the Appendix is the fee set out opposite the service in Column 2 .
(2) The fee payable to the registrar for a service not set out in Table 1 of the 2015 CanLIIDocs 293 Appendix is the fee payable to the registrar for the same service pursuant to section 9 of The Queen’s Bench Regulations . (3) Notwithstanding subsections (1) and (2): (a) no hearing fee is payable to the registrar; (b) no fee is payable to the registrar: (i) by counsel representing the Minister of Justice and Attorney General; or (ii) by a person who has been issued a needy person’s certificate within the meaning of The Queen’s Bench Rules; and (c) no fee is payable to the registrar for any of the services mentioned in Items 1 to 9 of Column 1 of Table 1 of the Appendix if the appeal involves a criminal matter .
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Fees payable in advance 3 All fees payable to the registrar are payable in advance unless other arrangements are made with the registrar .
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348 Civil Appeals in Saskatchewan R.R.S. c.C-42 Reg 1 repealed 4 The Court of Appeal Fees Regulations are repealed .
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Coming into force 5(1) Subject to subsection (2), these regulations come into force on the day on which section 21 of The Court of Appeal Act, 2000 comes into force . (2) If these regulations are filed with the Registrar of Regulations after the day on which section 21 of The Court of Appeal Act, 2000 comes into force, these regulations come into force on the day on which they are filed with the Registrar of Regulations .
• 2015 CanLIIDocs 293
APPENDIX
Table 1 [Section 2]
Registrar’s Fees
Column 1 Column 2 Service Fee 1 Filing a notice of appeal $125 2 Filing an appellant’s appeal book and factum 100 3 Issuing a formal judgment 20 4 Filing a notice of motion 25 5 Filing a cross-appeal 25 6 Certifying a document 10 7 Certifying a case on appeal to the Supreme Court 50 of Canada 8 Setting down for pre-trial conference 75 9 Entering an order 20 10 Appointment for taxation of costs 20 11 Issuing a certificate of taxation of costs 20
Appendix V The Court of Appeal Fee Regulations, 2000 349 Column 1 Column 2 Service Fee 12 On search of a file by the Registrar that was closed 20 five or fewer years before the date of the search request, per name used in search (no search fee is payable by parties to a proceeding or their lawyers) 13 On search of a file by the Registrar that was closed $40 more than five years before the date of the search request, per name used in search (no search fee is payable by parties to a proceeding or their lawyers) 14 If the request for a search mentioned in item 12 20 or 13 also requests that the search be conducted on the day of the request (in addition to the fee required by item 12 or 13) 15 Providing a search certificate respecting a search of 20 a file (in addition to the fee required by item 12, 13 or 14) 16 Photocopying charge, per page 0 .50 2015 CanLIIDocs 293 17 Retrieving and researching a file that was closed 20 plus $50 for each 20 or fewer years before the date of the request to hour required retrieve the file to retrieve and research the file 18 Retrieving and researching a file that was closed 50 plus $50 for each more than 20 years before the date of the request to hour required retrieve the file to retrieve and research the file 19 Receiving a faxed document from inside 1 Saskatchewan, per page 20 Receiving a faxed document from outside 1 .25 Saskatchewan, per page
350 Civil Appeals in Saskatchewan Table of Cases
586903 Saskatchewan Ltd. v Dube Investments Ltd. (1994), 123 Sask R 315 (CA) ...... 200 604598 Saskatchewan Ltd. v Saskatchewan Liquor and Gaming Licensing Commission (1997), 152 Sask R 201 (CA)...... 94
627360 Saskatchewan Ltd. v Bellrose, 2007 SKCA 23, 293 Sask R 164 ...... 41, 58, 60 2015 CanLIIDocs 293 Aalbers v Aalbers, 2011 SKCA 156, 385 Sask R 141...... 136, 142, 143 Abouabdallah v College of Dental Surgeons of Saskatchewan, 2013 SKCA 120, 427 Sask R 23...... 47 Ackerman v Ackerman, 2014 SKCA 86, 442 Sask R 113...... 80, 230 Affinity Credit Union v United Food and Commercial Workers, Local 1400, 2014 SKCA 70, 438 Sask R 296 ...... 65, 230 Affinity Credit Union v United Food and Commercial Workers, Local 1400, 2014 SKCA 114, 446 Sask R 204 ...... 93 AgraCity Ltd. v Skinner (sub nom West Central Pelleting Ltd. v AgraCity Ltd.), 2010 SKCA 145, 362 Sask R 301...... 49 Agricultural Credit Corp. of Saskatchewan v Belcheff Farms Ltd., 2006 SKCA 25 ...... 225 Aitken and Aitken v Regina (City) (1987), 60 Sask R 57 (CA)...... 45 Alexander Hamilton Institutes v Chambers (1921), 65 DLR 226, [1921] 3 WWR 520 (Sask CA)...... 35 Altec Management Ltd. v Great-West Life Assurance Co. (1996), 141 Sask R 167 (CA) ...... 47 Anderson v Canada (Attorney General) (sub nom Lukiwski v Anderson), 2004 SKCA 115, 254 Sask R 242...... 45 Andres v Derbowka, 2003 SKCA 129...... 185 Aquino v First Choice Capital Fund Ltd. (1995), 134 Sask R 241 (CA)...... 131 Arlo Investments Ltd. v Prince Albert (City), 2007 SKCA 26...... 47 Armco Canada Ltd. v P.C.L. Construction Ltd. (1986), 33 DLR (4th) 621, 52 Sask R 100 (CA)...... 86, 205 Atchison v Atchison, 2001 SKCA 89, 213 Sask R 221...... 135 Attorney General of Canada v Lees, [1977] 4 WWR 505 (Sask CA)...... 23, 28 Austman v Royal Bank of Canada, [1991] SJ No 564 (QL) (CA)...... 37 Avco Financial Services Canada v Little (Bankrupts) (1990), 85 Sask R 1 (CA)...... 43 Bachorcik v Bachorcik, 2011 SKCA 46...... 136 Bader v Styranka, 2004 SKCA 55...... 135 Baert v Graham, 2011 SKCA 21, 371 Sask R 1...... 21, 77
Table of Cases 351 Bahinipaty v College of Physicians and Surgeons of Saskatchewan (1985), 44 Sask R 110 (CA)...... 47 Balasch v Balasch (1986), 55 Sask R 12 (CA)...... 134 Bank of Montreal v Hildebrand, [1988] 4 WWR 363 (Sask CA) ...... 43 Bank of Montreal v Kergen (1988), 70 Sask R 166 (CA)...... 55 Bank of Montreal v McCammon, 1994 CanLII 4548 (Sask CA)...... 43 Bank of Nova Scotia v Diamond-T Cattle Co. (1994), 123 Sask R 125 (CA) ...... 43 Bank of Nova Scotia v Omni Construction Ltd. (1981), 14 Sask R 81 (CA)...... 126, 129, 131 Bank of Nova Scotia v R & R Wood Preservers Ltd., [1985] SJ No 583 (QL) (CA)...... 48 Bank of Nova Scotia v Saskatoon Salvage Company (1954) Ltd. (1983), 29 Sask R 285 (CA)...... 56, 57 Bank of Nova Scotia v Span West Farms Ltd., 2003 SKCA 35, 232 Sask R 279 ...... 43 Bartok v Shokeir (1998), 168 Sask R 280 (CA)...... 42 Bast v Bast (1990), 89 Sask R 264, 30 RFL (3d) 181 (CA)...... 128 Baynton v Mills, 2008 SKQB 108, 313 Sask R 266...... 13 Beare v Kirby Enterprises Inc., 2013 SKCA 44, 414 Sask R 66...... 146 Beaver Lumber Co. Ltd. v Cain, [1924] 3 WWR 332 (Sask CA) ...... 34
Beier v Beier, 2011 SKCA 71...... 196 2015 CanLIIDocs 293 Bell Telephone Co. of Canada v The Toronto, Hamilton and Buffalo Railway Co., [1932] SCR 54...... 173 Bencze v Archer, 2004 SKCA 92...... 229 Benson v Benson (1994), 123 Sask R 122, 4 RFL (4th) 164 (CA)...... 225 Bison Properties Ltd. v Regina (City), 2007 SKCA 135 ...... 66 Blackwoods Beverages Ltd. v Dairy Employees, Truck Drivers and Warehousemen, Local No. 834 (No. 1) (1956), 3 DLR (2d) 529, 18 WWR 481 (Sask CA)...... 143, 144, 145, 146, 147 Blass v University of Regina Faculty Association, 2011 SKCA 48, 371 Sask R 158...... 130 Bogdan v Bogdan, 2003 SKCA 29...... 191 Borowski v Canada (Attorney General), [1989] 1 SCR 342...... 64 Borrowman v Wickens (1986), 50 Sask R 124 (CA)...... 205 Borrowman v Wickens (1986), 82 Sask R 295 (CA)...... 23, 28 Bourgault Industries Ltd. v Canada (Attorney General), 2011 SKCA 29, 366 Sask R 312...... 37, 44 Boyko v Broomfield (1993), 113 Sask R 291 (CA) ...... 37, 45 Boyko v Sitter; Re Hawrish (1964), 49 DLR (2d) 464, 50 WWR 616 (Sask CA)...... 221, 222 Brail v Fayerman Bros. Ltd., [1987] 1 WWR 518, 53 Sask R 204 (CA)...... 44 Brand v College of Physicians & Surgeons of Saskatchewan (1990), 72 DLR (4th) 446, 86 Sask R 18 (CA) ...... 154, 157 Brears v Brears (1989), 74 Sask R 47 (CA) ...... 119 Brisebois v Chabot (1987), 61 Sask R 202 (CA) ...... 139 British Columbia (Minster of Forests) v Okanagan Indian Band, 2003 SCC 71, [2003] 3 SCR 371...... 212 Brooks v Canada (Attorney General), 2010 SKCA 55, 350 Sask R 261 ...... 49 Budd v Pioneer Co-Operative Association Ltd. (1986), 49 Sask R 306 (CA)...... 43 Burlock v Bethune, [1985] 5 WWR 288, 44 Sask R 79 (CA)...... 227
352 Civil Appeals in Saskatchewan Bzowy v Grover, 2005 SKQB 241, 264 Sask R 243...... 143 C.R.H. v D.G., 2010 SKCA 127, 362 Sask R 261...... 80 Cameco Corp. v Insurance Co. of the State of Pennsylvania, 2007 SKCA 76...... 44 Cameco Corp. v Insurance Co. of the State of Pennsylvania, 2009 SKCA 15, 324 Sask R 46...... 42 Canada (Attorney General) v Saskatchewan Water Corp., [1991] 2 WWR 614, 92 Sask R 295 (CA) ...... 155 Canadian Imperial Bank of Commerce v Shinkaruk, [1986] SJ No 114 (QL) (CA)...... 47 Canadian Pioneer Petroleums Inc. v Federal Deposit Insurance Corp., [1984] 3 WWR 765, 34 Sask R 51 (CA)...... 127, 128 Causevic v Causevic, 2007 SKCA 91, 304 Sask R 274 ...... 137, 142 Ceapro Inc. v Saskatchewan, 2008 SKCA 64, 314 Sask R 1...... 48, 56, 58 Cedar Meadows Condominium v Regina (City) (1990), 89 Sask R 242 (CA)...... 194 Chase Bryant Inc. v Polymicron Technologies Inc., 2013 SKCA 105, 423 Sask R 254...... 216 Chatfield v Bell Mobility Inc., 2013 SKCA 117...... 49 Cherry v Hindmarsh (1987), 64 Sask R 220 (CA) ...... 35, 48 Chubak v Blais, 2004 SKCA 4...... 46
Chutskoff Estate v Ruskin Estate, 2011 SKCA 47 ...... 205 2015 CanLIIDocs 293 Clements v Preece, 2014 SKCA 63, 438 Sask R 222 ...... 45, 93 Clements v Preece, 2014 SKCA 113 ...... 18, 19 Cochet v Cochet (1989), 74 Sask R 219 (CA) ...... 94 Collis v Saskatchewan Government Insurance, 2002 SKCA 64, 219 Sask R 211...... 48 Connecticut Fire Insur. Co. v Kavanagh, [1892] AC 473...... 122 Co-operative Trust Co. of Canada v Maranda, 2002 SKCA 10, 213 Sask R 262...... 106, 187 Cook v Orr, [1924] 3 DLR 808, [1924] 2 WWR 1131 (Sask CA)...... 214 Cosgrove v South Saskatchewan Hospital Centre (1991), 91 Sask R 159 (CA)...... 46 Coulthard v Coulthard, [1952] 5 WWR (NS) 662 (Sask CA)...... 106 Croft Aviation Ltd. v Dunbar Airmotive Ltd., 2004 SKCA 67...... 161, 167 D & S Developments Inc. v Gamble, 2009 SKCA 82, 337 Sask R 114...... 43 D.B. v M.C., 2001 SKCA 129, 213 Sask R 272...... 48 D.M.M. v H.R.M., 2009 SKCA 103, 337 Sask R 180 ...... 135 Dagenais v Canadian Broadcasting Corp., [1994] 3 SCR 835...... 8, 16, 110 Dagenais v Dagenais (sub nom Mueller v Dagenais), 2007 SKCA 31, 293 Sask R 39...... 42 Daniels v Canada (Attorney General), 2003 SKCA 25, 232 Sask R 64...... 59 Daniels v Daniels (1989), 79 Sask R 62 (CA) ...... 65 Darichuck Estate, Re (1988), 70 Sask R 215 (CA) ...... 151 Dawe v Canada (1994), 174 NR 1 (FCA)...... 107 deBalinhard v deBalinhard, 2014 SKCA 95, 442 Sask R 296...... 38, 44 Devries v 101149940 Saskatchewan Ltd., 2014 SKCA 89, 442 Sask R 176 ...... 44 Diamond v Western Realty Co., [1924] SCR 308 ...... 46 Dimitrijevic v Trainor (1989), 61 DLR (4th) 741, [1989] 6 WWR 186 (Sask CA)...... 19 Director of Community Operations v 101150089 Saskatchewan Ltd., 2013 SKCA 110, 423 Sask R 276...... 29 Domco Construction Inc. v Aliva Holdings Inc., 2004 SKCA 62...... 133
Table of Cases 353 Dominion Bridge Inc. v Routledge (1999), 173 DLR (4th) 624, 177 Sask R 114 (CA) ...... 156 Dormuth v Untereiner (1963), [1964] SCR 122 ...... 229 Dureault’s Allied Sales Ltd. v Courtyard Inns Ltd. (1988), 70 Sask R 77 (CA)...... 28, 29, 39 Dutchak v Dutchak, 2009 SKCA 89, 337 Sask R 46...... 30, 47, 60 Duzs v Duzs (1973), 35 DLR (3d) 310, [1973] 3 WWR 394 (Alta CA)...... 107 Eftoda v Eftoda (1987), 61 Sask R 206 (CA)...... 133 Elias v Elias, 2008 SKCA 101, 311 Sask R 183 ...... 136 Ellis-Don Ltd. v Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 SCR 221...... 75 Empire Drywall Ltd. v Meridian Special Projects Corp., 2014 SKCA 62, 438 Sask R 217...... 44 Ethier v Skrudland, 2011 SKCA 17, 366 Sask R 203...... 74 F.M.I. Developments Ltd. v 1269917 Alberta Ltd., 2011 SKCA 94, 375 Sask R 175...... 130, 200 F.R. v D.T., 2011 SKCA 103, 385 Sask R 41...... 43 Farden v Farden (1996), 141 Sask R 178 (CA)...... 39 Farm Credit Canada v Agristar Produce (Sask.) Ltd., 2005 SKCA 36, 269 Sask R 55...... 129, 131 Farm Credit Corp. v Valley Beef Producers Co-operative Ltd.
[Valley Beef], 2002 SKCA 100, 218 DLR (4th) 86...... 9, 17, 21, 23, 25, 2015 CanLIIDocs 293 ...... 31, 72, 74, 75 Farmers of North America Inc. v Bushell, 2013 SKCA 65, 417 Sask R 91...... 214, 215 Fehr v Turta, 2014 SKCA 91, 446 Sask R 1...... 30, 39 First City Trust Co. v Woodlawn Properties Ltd., [1987] SJ No 494 (QL) (CA)...... 46 Fletcher Challenge Energy Canada Inc. v Sulz, 2001 SKCA 11, 203 Sask R 115...... 193 Ford Credit Canada Ltd. v Percival Mercury Sales Ltd. (1986), 50 Sask R 268 (CA)...... 225 Frank v Linn, 2014 SKCA 87, 442 Sask R 126...... 66, 80 Frey v BCE Inc., 2010 SKCA 32 ...... 49, 50 Freyberg v Fletcher Challenge Oil and Gas Inc., 2003 ABCA 208, 330 AR 130...... 216 Friends of the Oldman River Society v Canada (Minister of Transport), [1992] 1 SCR 3...... 76 G.L. v Canada (Attorney General), 2004 SKCA 137, 254 Sask R 286 ...... 45 Garden v Rizos (sub nom O’Connor v Garden), 2014 SKCA 90, 442 Sask R 180...... 44 Gehlen v Bryden, 2014 SKCA 117 ...... 46 Geller v Saskatchewan (1985), 48 Sask R 239 (CA)...... 68 Geller v Saskatchewan (1987), 44 DLR (4th) 245, 59 Sask R 168 (CA)...... 210 Gerski v Gerski, 2006 SKCA 66, 285 Sask R 121...... 129, 130 Gilewich v Strand, 2007 SKCA 34, 293 Sask R 48...... 29, 56 GMRI Canada Inc. v Saskatoon (City), 2007 SKCA 39...... 37 Goodtrack v Waverly (Rural Municipality No. 44), 2013 SKCA 137, 427 Sask R 147...... 220 Goudy v Malbeuf, 2005 SKCA 144...... 128, 223 Graff v Bennett, [1995] 9 WWR 609, 134 Sask R 161 (CA)...... 70 Grant v Saskatchewan Government Insurance, 2003 SKCA 17, 227 Sask R 316...... 34, 35, 37, 43
354 Civil Appeals in Saskatchewan Great Sandhills Terminal Marketing Centre Ltd. v J-Sons Inc., 2008 SKCA 16, 307 Sask R 295...... 74, 75 Gresham (Bankrupt) v Gresham (1990), 89 Sask R 314, 30 RFL (3d) 133 (CA) ...... 145 Grosvenor Fine Furniture (1982) Ltd. v Terrie’s Plumbing and Heating Ltd. (1993), [1994] 1 SCR xi...... 228 Grosvenor Fine Furniture (1982) Ltd. v Terrie’s Plumbing and Heating Ltd. (1993), [1994] 1 WWR 275, 113 Sask R 105 (CA) ...... 226, 228 Gulka Enterprises v Bayer CropScience Inc., 2009 SKCA 68, 331 Sask R 280 ...... 45 H.F. v M.R., 2008 SKCA 26...... 138 H.L. v Canada (Attorney General), 2005 SCC 25, [2005] 1 SCR 401 ...... 71, 72, 83 Hamilton v Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 SCR 303...... 219 Hamm v Stagman (1984), 12 DLR (4th) 25, [1984] 5 WWR 148 (Sask CA)...... 28 Hannah v Warner, 2008 SKCA 39, 307 Sask R 316...... 139 Hartwig v Saskatchewan (Minister of Justice), 2007 SKCA 41 ...... 69, 187 Hashemian v Wilde, 2006 SKCA 126, 289 Sask R 105 ...... 220 Hawkeye Tanks & Equipment Inc. v Farr-Mor Fertilizer
Services Ltd., 2002 SKCA 44, 219 Sask R 148...... 66 2015 CanLIIDocs 293 Hawrish v Lakner, [1988] 4 WWR 334, 68 Sask R 41 (CA)...... 48 Hayden v Dahl, 2008 SKCA 30, 307 Sask R 274...... 135 HDL Investments Inc. v Regina (City), 2008 SKCA 59...... 205 He v Chen, 2010 SKCA 29, 346 Sask R 274...... 59, 93, 189 Hendricks v Swan, 2007 SKCA 46, 293 Sask R 158 ...... 191 Hickey v Hickey, [1999] 2 SCR 518...... 79 Hill v Huskie Athletics Sports Medicine Centre, 2009 SKCA 90, 337 Sask R 43...... 59 Hippsley v Saskatchewan Government Insurance, 2008 SKCA 14, 307 Sask R 160...... 58, 59 Hitchings v P.S.S. Professional Salon Services Inc., 2007 SKCA 149, [2008] 5 WWR 440...... 73 Hoffman v Monsanto Canada Inc., 2002 SKCA 86, 223 Sask R 232 ...... 49 Hoffman v Monsanto Canada Inc., 2005 SKCA 105, [2006] 5 WWR 400 ...... 49 Hoffman v Monsanto Canada Inc., 2006 SKCA 132, 289 Sask R 32 ...... 156, 157 Hoknes v Thiessen, 2014 SKCA 65, 438 Sask R 226...... 197 Holmes v Jastek Master Builder 2004 Inc., 2008 SKCA 159, 314 Sask R 267 ...... 37, 44 Horseshoe Creek Farms Ltd. v Sterling Structures Co. Ltd. (1982), 15 Sask R 54 (CA)...... 132 Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235...... 74, 75 Houston v Western Trust Co., [1939] 4 DLR 751, [1939] 3 WWR 155 (Sask CA)...... 214 Howell v Stagg, [1937] 2 WWR 331 (Sask CA) ...... 66, 122 Hrycyk v Jeannotte (1993), 113 Sask R 62 (CA)...... 120 Huerto v Saskatchewan (Minister of Health) (1995), 128 Sask R 208 (CA) ...... 22, 27 Idziak v Canada (Minister of Justice), [1992] 3 SCR 631...... 25 International Brotherhood of Electrical Workers, Local Union 2085 v Winnipeg Builders’ Exchange, [1967] SCR 628...... 65 International Harvester v Baschuk (1985), 44 Sask R 228 (CA)...... 144, 146
Table of Cases 355 International Minerals & Chemical Corp. (Canada) Ltd. v Commonwealth Insurance Co. (1988), 71 Sask R 306 (CA) ...... 45 Investment Dealers Association of Canada v MacBain, 2007 SKCA 24...... 157 IPC Insurance Strategies Inc. v Sawa, 2009 SKCA 80...... 46 Iron v Saskatchewan (Minister of the Environment and Public Safety) (1993), 103 DLR (4th) 585, 109 Sask R 49 (CA)...... 35, 38 Iron v Saskatchewan (Minister of the Environment and Public Safety), [1993] 3 SCR vii ...... 35 Jochems v Jochems, 2013 SKCA 53, 414 Sask R 201...... 136 Jochems v Jochems, 2013 SKCA 81, 417 Sask R 232...... 136 Jordan v Saskatchewan Securities Commission (1968), 64 WWR 121 (Sask CA)...... 61, 107 Jorgenson v ASL Paving Ltd., 2007 SKCA 25, 289 Sask R 281 ...... 45 Joynt v Topp (1962), 36 DLR (2d) 591, 40 WWR 248 (Sask CA)...... 56 Judd v Judd, 2007 SKCA 13...... 136 K and P Holdings Ltd. v Saskatchewan Government Insurance (1989), 81 Sask R 314 (CA)...... 45 Kachur v Lanigan Creek-Dellwood Brook Watershed Association, 2006 SKCA 81, 285 Sask R 180...... 93 Kachur v Lanigan Creek-Dellwood Brook Watershed Association,
2006 SKCA 117, 285 Sask R 307...... 31 2015 CanLIIDocs 293 Kannata Highlands Ltd. v Kannata Valley (Village) (1987), 61 Sask R 292 (CA)...... 194 Kapacila Estate v Otto, 2009 SKCA 107...... 215 Kelly v Kelly, [1986] 5 WWR 558, 50 Sask R 101 (CA)...... 225 Kelvin Energy Ltd. v Lee, [1992] 3 SCR 235 ...... 29 Kennibar Resources Ltd. v Saskatchewan (Minister of Energy and Mines) (1990), 90 Sask R 127 (CA) ...... 128, 130 Kidd v Flad, 2007 SKCA 130...... 44 Kieling v Saskatchewan Wheat Pool, [1989] SJ No 525 (QL) (CA) ...... 44 Kim v University of Regina (1990), 85 Sask R 166 (CA) ...... 145 Knutson v Saskatchewan Registered Nurses’ Association (1990), 87 Sask R 89 (CA)...... 145 Kodellas v Saskatchewan (Human Rights Commission), [1987] 3 WWR 558, 56 Sask R 149 (CA) ...... 150, 151 Kotelmach v Mattison (1987), 61 Sask R 207 (CA) ...... 39 Kourtessis v M.N.R., [1993] 2 SCR 53...... 8, 16, 18, 24, ...... 25, 63, 110 Kowalski v Royal Ford Lincoln Mercury Sales Ltd. (1993), 116 Sask R 73 (CA)...... 227 Lajeunesse v Tastad Enterprises Inc . (1999), 180 Sask R 264 (CA)...... 59 Lamirande v Metis Society of Saskatoon, Local 11 (1987), 63 Sask R 239 (CA)...... 46 Lemare Lake Logging Ltd. v 3L Cattle Co. Ltd., 2013 SKCA 90, 423 Sask R 54...... 41 Lensen v Lensen, [1987] 2 SCR 672...... 83 Leskovar v Saskatchewan Government Insurance Office (1964), 51 DLR (2d) 190 (Sask CA)...... 129 Lowery v Anchorage Counselling & Rehabilitation Services Inc., 2007 SKCA 19...... 44 Lund v Board of Police Commissioners of Estevan (City), [1996] 9 WWR 440, 144 Sask R 308 (CA) ...... 46 Luzny v Craik (Town), 2013 SKCA 94, 423 Sask R 116...... 66
356 Civil Appeals in Saskatchewan MacDonald, Re (1928), [1929] 2 DLR 265, [1929] 1 WWR 193 (Sask CA)...... 61 MacKay Construction Ltd. v Potts Construction Co. (1983), 25 Sask R 81 (CA)...... 129, 131 Madech Mortgage Corp. v Kensington Developments Inc., 2000 SKCA 54...... 127 Maitland v Drozda, [1983] 3 WWR 193, 22 Sask R 1 (CA)...... 229 Manitoba (Attorney General) v Metropolitan Stores (MTS) Ltd., [1987] 1 SCR 110...... 145 Mann Family Trust (Trustee of) v Hawkins, 2011 SKCA 7...... 38 Mann Motor Products Ltd. v Hlewka, 2004 SKCA 163...... 45 Mann v KPMG Inc., 2001 SKCA 24, 203 Sask R 267...... 92, 93, 166, 167, ...... 173, 174, 232 Mannix v McKay, 2007 SKCA 93, 307 Sask R 154...... 30, 47, 60 Marathon Realty Co. v Regina (City) (1989), 64 DLR (4th) 241, 80 Sask R 53 (CA)...... 194 Maurice v Priel (1987), 46 DLR (4th) 416, 60 Sask R 241 (CA)...... 69 May v Saskatchewan, 2006 SKCA 65, 285 Sask R 131...... 49 Mayrand v Mayrand (1982), 20 Sask R 263 (CA) ...... 126, 127, 128 Mercer Human Resource Consulting Ltd. v Farm Credit Canada, 2008 SKCA 98, 311 Sask R 209...... 45
Merchant v Law Society of Saskatchewan, 2002 SKCA 60, 2015 CanLIIDocs 293 213 DLR (4th) 457...... 230 MIF AG Services Ltd. v Sotkowy, 2014 SKCA 69...... 219 Mitchell v Mitchell (1996), 144 Sask R 223 (CA) ...... 48 Molly Lenhardt Art Society v Melville (City), 2005 SKCA 151...... 215 Montreal Lake Cree Nation v Mamczasz Electrical Ltd., 2009 SKCA 30...... 46 Montreal Trust Co. of Canada v Toronto-Dominion Bank, 2003 SKCA 14...... 58, 61 Mubili v Chona, 2009 SKCA 34, 324 Sask R 152...... 43 Murphy v Saskatchewan Government Insurance, 2008 SKCA 57, 310 Sask R 149 ...... 23, 25, 31 Muzichuk v Buchanan Conservation and Development Area Authority, 2004 SKCA 158 ...... 195 National Trust Co. v Larsen and Remai Financial Corp. (1988), 68 Sask R 207 (CA)...... 43 Naylor Group Inc. v Ellis-Don Construction Ltd., 2001 SCC 58, [2001] 2 SCR 943...... 78 Neumann v Saskatoon (City) (1994), 125 Sask R 181 (CA) ...... 146 Newgrade Energy Inc. v Kubota America Corp. (1991), 97 Sask R 32 (CA)...... 43 Noble Holdings Ltd. v Basler Holdings Ltd., 2005 SKCA 4...... 46, 196 Nova Scotia (Minister of Community Services) v B.F., 2003 NSCA 125, 219 NSR (2d) 67...... 130 O.K. Economy Stores v Retail, Wholesale and Department Store Union, Local 454 (1994), 118 DLR (4th) 345, 123 Sask R 245 (CA) ...... 65 O’Brien v O’Brien Estate (1998), 172 Sask R 80 (CA)...... 146, 192 Ochapowace First Nation v Araya (1994), 123 Sask R 311 (CA) ...... 126, 129 Ochapowace Indian Band v Saskatchewan (Minister of Justice), 2006 SKCA 70...... 175 Olver v Winnipeg (City) (1914), 6 WWR 161, 24 Man R 25 (CA)...... 122 Orr v Bzowey, 2005 SKCA 86, 262 Sask R 310...... 128, 142
Table of Cases 357 Owen v Thomas (1988), 67 Sask R 84 (CA) ...... 94 Owens v Saskatchewan (Human Rights Commission), 2005 SKCA 103...... 156, 157 Panayiotou v Sony Music Entertainment (UK) Ltd., [1994] 1 All ER 755 (Ch)...... 107 Pankiw v Chiropractors’ Association of Saskatchewan, 2011 SKCA 142, 377 Sask R 237...... 62, 123 Pearlman v University of Saskatchewan, 2006 SKCA 105, 273 DLR (4th) 414...... 69 Pedigree Poultry Ltd. v Saskatchewan Broiler Hatching Egg Producers’ Marketing Board, 2011 SKCA 39, 371 Sask R 79...... 43 Peepeetch v Canada (Attorney General), 2006 SKCA 40...... 47 Pilot Butte (Town) v Aaron Enterprises Inc., 2014 SKCA 119...... 41 Pisiak v Wadena Credit Union Ltd. (1992), 97 Sask R 241 (CA)...... 46 Pitney Bowes of Canada Ltd. v Norm’s Hauling Ltd. (Trustee of), [1992] 3 WWR 217 (Sask CA)...... 173 Pivotal Capital Advisory Group Ltd. v NorAmera BioEnergy Corp., 2008 ABCA 279 ...... 216 Popoff v Popoff, 2000 SKQB 151, 193 Sask R 51...... 196 Popowich v Saskatchewan (1999), 174 DLR (4th) 336, 177 Sask R 226 (CA) ...... 48
Potash Corp. of Saskatchewan Inc. v Allendale Mutual Insurance Co. 2015 CanLIIDocs 293 (1993), 109 Sask R 144 (CA)...... 45 Potash Corp. of Saskatchewan Inc. v Crown Investments Corp. of Saskatchewan, 2002 SKCA 68, 223 Sask R 226...... 227 Prestige Commercial Interiors (1992) Ltd. v Graham Construction & Engineering Inc., 2008 SKCA 27, 307 Sask R 134...... 60 Primeau v Primeau, 2004 SKCA 149, 257 Sask R 66...... 139 Prince Albert Credit Union Ltd. v Diehl, [1986] 3 WWR 543, 47 Sask R 284 (CA)...... 55, 56 Profico Energy Management Ltd. v Watson, 2005 SKCA 57, 262 Sask R 235 ...... 41 Progressive Conservative Party of Saskatchewan v Emsley (sub nom Saskatchewan Party v Progressive Conservative Party of Saskatchewan), 2008 SKCA 155...... 42 Propp v Propp, 2013 SKCA 126, 427 Sask R 47...... 133 Prud’homme v Prud’homme, 2002 SCC 85, [2002] 4 SCR 663...... 75 Qually v Qually (1986), 53 Sask R 161 (CA)...... 45, 48 Qually v Qually (1987), 61 Sask R 188 (CA)...... 133 Québec (Communauté urbaine) v Services de santé du Québec, [1992] 1 SCR 426...... 106 Quintal v Datta, [1988] 6 WWR 481, 68 Sask R 104 (CA)...... 77, 228 R.M.S. v P.J.M., 2007 SKCA 14, 293 Sask R 3...... 136 R v Church of Scientology of Toronto (1985), 13 OAC 17, 25 CCC (3d) 149...... 147 R v Daniels (1991), 92 Sask R 293 (CA) ...... 155 R v Hayes, [1989] 1 SCR 44...... 227 R v Hemlock Park Co-operative Ltd., [1974] SCR 123...... 107 R v Homestake Mining Company, [1977] 3 WWR 629 (Sask CA)...... 19 R v Latimer (1995), 128 Sask R 195 (CA)...... 155, 156, 157 R v Law Society of Saskatchewan (1983), 25 Sask R 135 (CA)...... 65 R v McCullough, 2000 SKCA 128, 199 Sask R 229...... 142 R v McMartin, [1964] SCR 484...... 229 R v Meltzer, [1989] 1 SCR 1764 ...... 8, 16
358 Civil Appeals in Saskatchewan R v Palmer, [1980] 1 SCR 759...... 229 R v Perka (sub nom Perka v The Queen), [1984] 2 SCR 232...... 20, 122 R v S. (T.), [1994] 3 SCR 952...... 8, 16, 110 R v Sterling (1993), 84 CCC (3d) 65 (Sask CA)...... 13 R v Zurowski, 2003 ABCA 174, [2003] 9 WWR 400...... 147 Rask v Hus, 2006 SKCA 29...... 46, 56 Raymond v Raymond Estate, 2010 SKCA 86, 359 Sask R 123 ...... 60, 151 Redl v Nolan (sub nom Redl Estate, Re), 2009 SKCA 106, 337 Sask R 189 ...... 167 Reekie v Messervey, [1990] 1 SCR 219...... 106 Reference re Goods and Services Tax, [1992] 2 SCR 445...... 158 Reference re Marriage Commissioners Appointed Under The Marriage Act, 1995, 2011 SKCA 3, 327 DLR (4th) 669...... 157 Regina (City) v Kivela, 2006 SKCA 2...... 139 Regina (City) v Laing Property Corp. (1994), [1995] 3 WWR 551, 128 Sask R 29 (CA)...... 194 Regina Steam Laundry Ltd. v Saskatchewan Government Insurance Office (1970), 15 DLR (3d) 121 (Sask CA)...... 129 Reimer v Reimer (1985), 47 RFL (2d) 442 (Sask CA) ...... 137 Rieger v Burgess (1986), [1987] 1 WWR 285, 53 Sask R 201 (CA) ...... 132 Rieger v Burgess, [1988] 4 WWR 577, 66 Sask R 1 (CA)...... 132
Rekken Estate v Health Region No. 1, 2012 SKCA 86, 399 Sask R 241...... 35, 45 2015 CanLIIDocs 293 Rekken Estate v Health Region No. 1, 2014 SKCA 108...... 44 Riley v Riley, 2010 SKCA 88, 359 Sask R 128...... 134 Riley v Riley, 2011 SKCA 5, 366 Sask R 110...... 134 Rimmer v Adshead, 2002 SKCA 12, [2002] 4 WWR 119 ...... 37, 76 Rimmer v Adshead, 2003 SKCA 19, 224 DLR (4th) 372...... 29, 39 RJR-MacDonald Inc. v Canada (Attorney General), [1994] 1 SCR 311...... 130 Rollheiser v Lockwood, 2006 SKCA 57, 279 Sask R 113...... 42 Roman v Law Society of Saskatchewan (1984), [1985] 2 WWR 765, 37 Sask R 252 (CA) ...... 65 Ross v Ross (1984), 37 Sask R 290 (CA)...... 133 Ross v Saskatchewan, 2014 SKCA 96, 446 Sask R 6...... 49 Rothmans, Benson & Hedges Inc. v Saskatchewan, 2002 SKCA 119, 227 Sask R 121...... 35, 40, 45, 49, 209 Royal Bank of Canada v G.M. Homes Inc. (1982), 25 Sask R 6 (CA)...... 58, 150 Royal Bank of Canada v Paulsen & Son Excavating Ltd., 2012 SKCA 101, 399 Sask R 283...... 41 Royal Bank of Canada v Rak, 2004 SKCA 61...... 192 Royal Canadian Mounted Police v Saskatchewan (Commission of Inquiry), [1992] 6 WWR 62, 100 Sask R 313 (CA)...... 69 Rutherford v Husky Oil Operations Ltd., 2014 SKCA 118...... 41 S.J.D. v J.S., 2001 SKCA 51, 207 Sask R 112 ...... 214 S.T. v Canada (Attorney General), 2001 SKCA 88...... 46 SAISU Technologies Inc. v Thelander, 2005 SKCA 74, 275 Sask R 98 ...... 41 Salter Rex & Co. v Ghosh, [1971] 2 All ER 865 (CA)...... 35 Sandstrom & Scott v United Chemicals Ltd., [1989] 5 WWR 690, 74 Sask R 59 (CA)...... 220 Sapsford v Fry, 2010 SKCA 124, 359 Sask R 309 ...... 44 Saskatchewan Federation of Labour v Saskatchewan (Attorney General), 2010 SKCA 27, 317 DLR (4th) 127...... 123 Saskatchewan Federation of Labour v Saskatchewan (Attorney General), 2013 SKCA 61, 417 Sask R 50 ...... 11
Table of Cases 359 Saskatchewan Federation of Labour v Saskatchewan, 2013 SKCA 43, 390 Sask R 196...... 158 Saskatchewan (Minister of Social Services) v R.S., 2008 SKCA 115, 314 Sask R 35...... 41 Saskatchewan Municipal Board v First City Trust Co. (1996), 144 Sask R 56 (CA)...... 195 Saskatchewan Trust Co. (Liquidator of) v Coopers & Lybrand Inc., 2003 SKCA 75, 238 Sask R 191...... 45 Saskatchewan Trust Co. v Darwall Enterprises Ltd. (1995), 134 Sask R 68 (CA)...... 146 Saskatchewan Union of Nurses v Sherbrooke Community Centre (1996), 141 Sask R 161...... 128, 130 Saskatchewan Wheat Pool v Canada (Attorney General) (1993), 131 Sask R 243 (CA) ...... 145 Saskatchewan Wheat Pool v Feduk, 2002 SKCA 24, 217 Sask R 131...... 132 Saskatoon (City) v North Ridge Development Corp., 2013 SKCA 62, 417 Sask R 64...... 41 Saskatoon Sound City (Bankrupt), Re (1989), 80 Sask R 226 (CA)...... 131 Sattva Capital Corp. v Creston Moly Corp., 2014 SCC 53, [2014] 2 SCR 633...... 75 Schafer v Island View (Resort Village), 2009 SKCA 104,
337 Sask R 208 ...... 60, 231 2015 CanLIIDocs 293 Schatz v Doust, 2002 SKCA 129, 227 Sask R 1...... 230 Schnell v Schnell, 2001 SKCA 123, 21 RFL (5th) 197...... 62 Schroeder v Korf (1996), 144 Sask R 229 (CA)...... 45 Schwab v Waterer, [1996] 4 WWR 433, 137 Sask R 315 (CA)...... 25 Scrimshaw v Holy Family Hospital, [1987] SJ No 42 (QL) (CA) ...... 43 Sebastian-Hansen v Hansen, 2000 SKCA 62, 199 Sask R 16...... 161 Sekerbank T.A.S. v Arslan, 2014 SKCA 105...... 48 Seven Oaks Inn Partnership v Directcash Management Inc., 2014 SKCA 106, 446 Sask R 89...... 75 Sherwood (Rural Municipality No. 159) v Regina (City), 2000 SKCA 4...... 9, 25 Shields (Resort Village) v Toronto-Dominion Bank (1988), 67 Sask R 79 (CA)...... 45 Shingoose v Harripersad, 2005 SKCA 102, 275 Sask R 125...... 128 Siemans v Bawolin, 2002 SKCA 84, 219 Sask R 282...... 219, 220 Silcorp Ltd. v KJK Holdings Inc. (1992), 90 DLR (4th) 488, 100 Sask R 143 (CA) ...... 28, 35, 46 Silver Developments Ltd. (Trustee of) v Investors Group Trust Co., [1999] SJ No 301 (QL) (QB)...... 143 Sinclair v Hlady, 2013 SKCA 112, 427 Sask R 1...... 129 Sinclair v Webb, 2011 SKCA 90 ...... 200 Singh v Singh, [1987] SJ No 487 (QL) (CA) ...... 47 Société des Acadiens du Nouveau-Brunswick Inc. v Association of Parents for Fairness in Education, Grand Falls District 50 Branch, [1986] 1 SCR 549...... 7, 19 Sordsdahl v Royal Bank of Canada, [1991] 4 WWR 730, 92 Sask R 299 (CA)...... 108 Sorotski v CNH Global N.V., 2006 SKCA 77, 285 Sask R 125...... 20 Sparvier v Canada (Attorney General), 2007 SKCA 21...... 175 St. Cyr v St. Cyr Estate, 2000 SKCA 75 ...... 200, 215 St-Jean v Mercier, 2002 SCC 15, [2002] 1 SCR 491...... 74, 75 Stadnyk v Saskatchewan, 2011 SKCA 30...... 35, 48
360 Civil Appeals in Saskatchewan Stavric v King, 2008 SKCA 139...... 192 Stecyk v Smysniuk, 2013 SKCA 106, 423 Sask R 259...... 132 Steen v Stewart, [1942] 3 DLR 775 (Sask CA) ...... 214 Steeves v English (1995), 137 Sask R 76 (CA)...... 214 Steier v University Hospital Board, [1988] 4 WWR 303, 67 Sask R 81 (CA)...... 45 Stevenson Estate v Bank of Montreal, 2011 SKCA 51, 371 Sask R 198 ...... 37, 49 Stevenson v Saunders, 2005 SKCA 99 ...... 137 Stochmanski v Stochmanski, 2005 SKCA 58, 262 Sask R 232...... 135 Stomp Pork Farm Ltd. v Lombard General Insurance Co. of Canada, 2008 SKCA 146, 314 Sask R 175...... 44 Storey v Zazelenchuk (1985), 40 Sask R 241 (CA)...... 86, 202, 205 Strudwick v Lee, 2007 SKCA 11, 289 Sask R 269...... 187 Sundown Theatre Co. Ltd. v Ro-Edd Agencies Ltd., 2009 SKCA 78, 337 Sask R 111 ...... 93 Sundown Theatre Co. Ltd. v Ro-Edd Agencies Ltd., 2009 SKCA 114...... 47 Sunnyvale Farming Enterprises Ltd. v Lloyds Bank Canada (1991), 90 Sask R 33 (CA)...... 20, 47 Swanson v Saskatchewan Registered Nurses’ Association (1992), 100 Sask R 81 (CA)...... 27
Sydiaha v Saskatchewan College of Psychologists, 2014 SKCA 116, 2015 CanLIIDocs 293 446 Sask R 196 ...... 23, 30 T.E.T. v J.D.L., 2004 SKCA 76, 249 Sask R 218...... 93, 146, 148 Tanouye v Tanouye (1994), 121 DLR (4th) 315, 128 Sask R 48 (CA)...... 177 Taylor v Eisner (1989), 80 Sask R 84 (CA) ...... 145 Tekarra Properties Ltd. v Saskatoon Drug and Stationery Co. (1985), 17 DLR (4th) 155, 37 Sask R 286 (CA) ...... 128, 129, 132 Thatcher v Lindskog (1983), 1 DLR (4th) 763, 27 Sask R 68 (CA)...... 20 The “Tasmania” (1890), 15 AC 223 (HL)...... 66, 122 Thompson Lands Ltd. v Henry Kelly Tractor Ltd. (1984), 34 Sask R 246 (CA)...... 45 Thompson v Thompson, 2007 SKCA 83, 304 Sask R 227...... 157 Thompson v Thompson, 2007 SKCA 142, 288 DLR (4th) 344 ...... 230 Thompson v Wall, 2006 SKCA 116, 289 Sask R 7...... 22, 32 Toneguzzo-Norvell (Guardian ad litem of) v Burnaby Hospital, [1994] 1 SCR 114...... 73 Toronto Dominion Bank v Burgon (1993), 109 Sask R 122 (CA)...... 222 Trail-Rite Flatdecks Ltd. v Larcon Investments Ltd. (1987), 61 Sask R 163 (CA)...... 120, 130 Treeland Motor Inn Ltd. v Western Assurance Co. (1983), 4 DLR (4th) 370, 30 Sask R 154 (CA)...... 57 Tucker v Lester, 2002 SKCA 85...... 138 Turbo Resources Ltd. v Gibson (1987), 60 Sask R 221 (CA) ...... 94, 159, 167, 229 U.E.S. v D.H., 2005 SKCA 102, 275 Sask R 125...... 92 United Food and Commercial Workers, Local 1400 v Wal-Mart Canada Corp., 2012 SKCA 2, 385 Sask R 130...... 146 University of Saskatchewan v Van Oder (1974), 49 DLR (3d) 313 (Sask CA)...... 107 Van De Geer Estate v Penner, 2005 SKCA 1, 257 Sask R 72...... 227 Van de Perre v Edwards, 2001 SCC 60, [2001] 2 SCR 1014 ...... 80 Wakaluk v Leibel, 2008 SKCA 109...... 138 Wallace Construction Specialties Ltd. v Manson Insulation Inc. (1993), 106 DLR (4th) 169, [1993] 8 WWR 502 (Sask CA)...... 228
Table of Cases 361 Wal-mart Canada Corp. v Saskatchewan (Labour Relations Board), 2006 SKCA 142, 289 Sask R 20...... 230 Waters v DaimlerChrysler Services Canada Inc., 2011 SKCA 53, 371 Sask R 153 ...... 222 Wernicke v Quirk, 2011 SKCA 95, 385 Sask R 7...... 187 Whatcott v Saskatchewan (Human Rights Tribunal), 2008 SKCA 95 ...... 157 Whatcott v Saskatchewan (Human Rights Tribunal), 2008 SKCA 114 ...... 157 Whatcott v Saskatchewan Association of Licensed Practical Nurses, 2007 SKCA 49...... 157 White v White (1999), 189 Sask R 152 (CA)...... 46 Wiegers v Gray, 2007 SKCA 30...... 134 Wilk v Wilk, (24 June 1987) (Sask CA) [unreported]...... 138 Woelk v Halvorson, [1980] 2 SCR 430...... 78 Wood v Wood, 2001 SKCA 2, 13 RFL (5th) 216...... 59, 189 Wotherspoon v Growers International Organic Sales Inc., 2014 SKCA 48...... 41 Wuttunee v Merck Frosst Canada Ltd., 2008 SKCA 80, 311 Sask R 146 ...... 50 Wuttunee v Merck Frosst Canada Ltd., 2008 SKCA 125, 314 Sask R 90...... 67, 123 Wutzke v Bittner, 2012 SKCA 15, 385 Sask R 235...... 136
Young v Young (1990), 75 DLR (4th) 46, 50 BCLR (2d) 1 (CA)...... 221 2015 CanLIIDocs 293 Young v Young, [1993] 4 SCR 3...... 219, 222 Zuidema Farms Inc. v Gritzfeld, 2008 SKCA 12...... 43 Zuidema Farms Inc. v Gritzfeld, 2009 SKCA 51, 331 Sask R 63...... 230
362 Civil Appeals in Saskatchewan Table of Statutes
Federal Statutes
Bankruptcy and Insolvency Act, RSC 1985, c B-3...... 41, 43, 116, 131 Constitution Act, 1867 (UK), 30 & 31 Victoria, c 3...... 4, 7 Controlled Drugs and Substances Act, SC 1996, c 19...... 89 2015 CanLIIDocs 293 Criminal Code, RSC 1985, c C-46 ...... 89 Divorce Act, RSC 1985, c 3 (2nd Supp)...... 29, 39, 59, 79, 111, 12, 189 Judges Act, RSC 1985, c J-1...... 11 Supreme Court Act, RSC 1985, c S-26...... 130 Youth Criminal Justice Act, SC 2002, c 1...... 89
Provincial Statutes
The Arbitration Act, 1992, SS 1992, c A-24 .1 ...... 43 The Automobile Accident Insurance Act, RSS 1978, c A-35...... 31, 59, 112 The Business Corporations Act, RSS 1978, c B-10...... 131 The Child and Family Services Act, SS 1989-90, c C-7 .2...... 41 The Class Actions Act, SS 2001, c C-12 .01...... 49, 50, 123, 156 The Constitutional Questions Act, 2012, SS 2012, c C-29 .01...... 95, 153, 165 The Court Jurisdiction and Proceedings Transfer Act, SS 1997, c C-41 .1 ...... 43 The Court of Appeal Act, SS 1915, c 9 (repealed)...... 4, 10, 81 The Court of Appeal Act, RSS 1978, c C-42 (repealed) ...... 26, 27, 28, 96 The Court of Appeal Act, 2000, SS 2000, c C-42 .1 ...... 4, 5, 7, 17, 19, 26, 29, 30, 31, ...... 32, 39, 40, 58, 62, 80, 104, ...... 105, 110, 111, 112, 113, 115, ...... 117, 118, 119, 120, 121, 124, ...... 148, 150, 159, 166, 172, 173, ...... 198, 201, 205, 210, 226, 239 The Court of Appeal Fees Regulations, 2000, RRS c C-42 .1 Reg 1...... 95, 345 The Court Officials Act, 2012, SS 2012, c C-43 .101 ...... 6 The Enforcement of Money Judgments Act, SS 2010, c E-9 .22...... 48, 132, 141 The Family Maintenance Act, SS 1990-91, c F 6 1. (repealed)...... 120 The Family Maintenance Act, 1997, SS 1997, c F-6 .2...... 111, 120 The Family Property Act, SS 1997, c F-6 3...... 29, 30, 39, 111, 152
Table of Statutes 363 The Infants Act, RSS 1978, c I-9 (repealed)...... 28, 47 The Interpretation Act, 1995, SS 1995, c I-11 .2...... 123, 237, 340 The Judicature Act, SS 1907, c 52 (repealed)...... 7 The Labour Standards Act, RSS 1978, c L-5 (repealed)...... 41, 156 The Legal Profession Act, RSS 1978, c L-10 (repealed)...... 48 The Legal Profession Act, 1990, SS 1990-91, c L-10 .1...... 112 The Limitation of Civil Rights Act, RSS 1978, c L-16...... 43 The Local Government Election Act, SS 1982-83, c L-30 .1 ...... 28 The Medical Profession Act, 1981, SS 1980-81, c M-10 .1...... 112 The Municipal Board Act, SS 1988-89, c M-23 .2 ...... 40, 41, 112 The Personal Property Security Act, SS 1979-80, c P-6 .1 (repealed)...... 28 The Personal Property Security Act, 1993, SS 1993, c P-6 .2...... 30, 46 The Queen’s Bench Act, 1998, SS 1998, c Q-1 .01...... 18, 19, 28, 30, 111, 119 The Recovery of Possession of Land Act, RSS 1965, c 122 (repealed)...... 27 The Safer Communities and Neighbourhoods Act, SS 2004, c S-0 .1...... 29 The Saskatchewan Farm Security Act, SS 1988-89, c S-17...... 146 The Saskatchewan Human Rights Code, SS 1979, c S-24 .1 ...... 111 The Saskatchewan Medical Care Insurance Act,
RSS 1978, c S-29...... 27 2015 CanLIIDocs 293 The Securities Act, RSS 1965, c 396 (repealed)...... 107 The Small Claims Act, 1997, SS 1997, c S-50 .11...... 40, 41, 112, 113 The Surface Rights Acquisition and Compensation Act, RSS 1978, c S-65 ...... 41, 193 The Trade Union Act, RSS 1965, c 237 (repealed) ...... 107 The Trade Union Act, RSS 1978, c T-17 (repealed) ...... 112 The Urban Municipality Act, RSS 1978, c U-11 ...... 139 The Water Appeal Board Act, SS 1983-84, c W-4 .01 ...... 31, 112
364 Civil Appeals in Saskatchewan Index
abandonment, 161, 195–196, 197 administration of justice, 4, 7, 11, 17, 36, 105, notice of abandonment (Form 8), 264 106, 197, 222 notice to show cause (Form 9), 265 expeditious, 105, 197 recovery of costs, 195 administrative tribunals . See tribunals
abuse of process, 7, 63, 67–68, 76, 198, 199, 200, advocacy, appellate, 26, 42, 114, 172 2015 CanLIIDocs 293 221, 222 affidavits, 46, 56, 60, 156, 164, 166, 206, 207, 243 prevention of, 199, 200, 221 applications, 206–207 accounts, 16, 22, 47, 78, 131, 132, 133, 160, contents of, 210, 211 189, 230 evidence, 74, 137, 138, 139, 159, 217, 230 interest-bearing, 131, 132, 133 service of, 206 act, definition, 105 agreements re appeal actions agreed statement of facts, 163, 189, 191 adding parties to, 44 as to appeal book, 162–164, 167, 169, 191, cause of, 31, 42, 48, 50, 156 231, 232, 239, 241, 242 class, 49–50, 156, 222 where no agreement required, 163, 167, commencement of, 43, 48, 64 241, 242 conversion of, 49 as to common book of authorities, 181 decisions, final vs interlocutory, 34 as to dates, 186 definition, 19 as to judgment/order, 223–224 . See also dismissal of, 42, 43, 44, 56, 146, 192, 230 Appendix I in negligence, 75, 106 as to transcript of evidence, 159–161, 167, proceeding with, 42–44 191, 239 removal of counsel from, 48 by counsel, 187 stay of proceedings in, 43, 125, 127, 142 by parties, 132, 135, 160, 161, 181, 186, 207, 224 striking out, 42, 48 contingency, 157 address draft, 162, 163, 239 for service, 109, 209, 234–235, 243 . See also failure to agree, 44, 131, 159, 160, 163, 164, Appendix II, No . 3 190, 224 illusory or fictitious information, 235 filing of, 159, 161, 186 adjournments, 151, 156, 183, 184–186, 206, service of, 162, 163 222, 231 written, 159, 160, 168, 186 grounds for, 149, 150, 185 amendments indefinite, 128 applications to amend, 52, 56, 122–123 notice of, 184–185 certification order, 50 request for, 184, 185 cross-apeals, 122 sine die, 138 notice of appeal, 67, 122–123
Index 365 amendments (continued) appellate (continued) pleadings, 44, 56, 165, 227 jurisdiction, 6, 8, 9, 10, 18, 21, 62–68, 113, rules of court, 214, 244 114, 147 statements of claim, 49 definition, 6, 7, 8, 9, 63 appeal book, 91, 158–170, 174, 177, 185, 187 review, 21, 72, 75, 76, 77, 78, 79, 80, 170, 227 agreement as to, 162–164, 167, 169, 191, 231, scope of, 80, 92, 113 232, 239, 241, 242 applications . See also leave to appeal: applications completion of, 162, 242 abandonment of, 195–196 contents of, 163–167, 190, 191, 241, 242 affidavits, 206–207 disputes, 91, 163–164, 166–167, 190 briefs of law, 206 draft agreement, 162, 163, 239 by notice of motion, 41, 206, 207, 209, 228 filing of, 93, 159, 169–170, 178, 190, 191, certiorari, 69, 143, 144, 147, 209 197, 239, 240, 243 chambers . See chambers: applications form of, 168, 233 costs, 211–213, 216 index, 164, 166 Crown Practice, 209–210 page numbering of, 165 decisions incidental to, 50–51, 56 record from court below, 167 definition, 105 required, 158–159, 231, 232 dismissal, 45, 49, 128, 134, 144, 146, 191, requirements, 94 197, 198, 230, 235 sealing of, 91, 93 draft orders, 208 service of, 169–170, 178, 190, 191, 197, 240 entered for hearing, 88, 90
transcript of evidence, 159, 160, 162 expedited appeal, 191 2015 CanLIIDocs 293 appeal periods, 50–62, 115, 121, 124, 128, 239 . filing, 59, 206, 207, 208, 209 See also time for directions, 138, 167, 180, 192 appeals . See also cross-appeals; notices: of appeal; form of, 53, 54, 205–208 right of appeal; time fragmentation of, 55 abandonment, 195–196 grounds for, 201, 206, 208 by stated case, 192, 193 hearing of costs, 211–213 by registrar, 94–95, 117, 231, 232 criminal, 62, 142 Court of Queen’s Bench, 13 entering an appeal for hearing, 182–183 judicial review, 143, 144 expedited, 61, 138, 162, 163, 189–192, 193, leave 231, 232, 240, 242 to amend, 56, 122–123 frivolous/vexatious, 36, 59, 198–200, 212 to appeal, to Supreme Court, 185 from court of first instance, 9 to file factum late, 180 from divorce judgments, 18, 29, 59, 111, to intervene, 152, 157, 158 188–189 to raise additional arguments, 182 from incidental decisions/orders, 50, 121 “made”, meaning of, 52 from lower courts/tribunals, 15, 16, 17, opposing, 206 23–26, 32, 34, 110, 111–112, 193 pre-hearings, 187–188 from matrimonial/family property judgments, re-hearings, 86, 201, 203, 205 176–177 relief sought, 145, 146, 206, 207, 208, from Queen’s Bench, 15, 16, 17, 18–23, 26, 27, 209, 210 28, 32, 39, 51, 82, 110–111 security for costs, 213, 214, 234 grounds for, 8, 28, 37, 39, 63, 71, 72, 80, 82, service of, 206, 207 109, 110, 113–114, 122, 160, 163–164, summary judgment, 46, 56 166, 172, 194, 227 time for, 50, 51, 52–53, 58, 118, 119, 239, 242 initiating, 60, 90, 91, 108–114 extension of, 51, 54, 55, 58, 59, 60, 63, 188, interlocutory, 18, 28, 30, 32–50, 60, 61, 119, 231, 234, 239, 240 140, 196 to adduce fresh evidence, 60, 205, 229, 230 perfecting, 37, 158–175, 182, 196–198, 207, 240 to amend, 52, 56, 122–123 properly constituted, 8, 9, 63, 70 to dispense with appellate appeal book, 158–159 advocacy, 26, 42, 114, 172 transcript of evidence, 160
366 Civil Appeals in Saskatchewan applications (continued) burden/onus of proof, 8, 31, 73, 74 to intervene, 152, 157, 158 to lift a stay, 136, 140, 142, 192 • to perfect appeal, 196, 197 to preserve status quo, 145 case book, 192 to prohibit commencement of proceedings, certificates 199–200 guaranteed investment, 131 to quash appeal, 198–200 of divorce, 189 to restrict media reporting, 243 of service (Form 12), 236, 279 to review taxation of costs, 220 of stay of execution, 125, 141 to set aside filing of documents, 235 of taxation of costs (Form 11d), 218, 220, to settle disputes 223, 278 re appeal book, 163–164, 190 certification, 49, 50, 123, 156, 222 re factum, 173–175 certiorari, 68, 69, 143, 144, 147, 209, 210 to stay chambers execution, 137 applications proceedings, 145, 146, 191 disposing of, 91, 148, 198, 230 to strike, 173–174, 198 for leave to appeal, 32, 38, 91, 92, 120, to the registrar, 159, 187, 231–232 154, 156–157, 199, 241–242 to vary child custody/support, 46, 56, 230 for leave to intervene, 154, 156, 157 argument form of, 205–208
constitutional, 67, 123 . See also for summary judgment, 56 2015 CanLIIDocs 293 constitutional questions hearing of, 50, 54, 55, 56, 91, 92, 116, 121, memorandum of, 201 122, 148, 206, 207 no opportunity to present, 227 interlocutory or final, election, 37–38 oral, 153, 156, 186, 187, 224 made to single judge, 12, 122, 129–139, points of, 172 158–159, 170–175, 180, 196, 200, raising additional argument, 182 213, 220, 238 raising new argument, 20–21, 66–67, postponing right of appeal, 54, 55 122–123, 157 to alter content of factum, 173 written, 172, 174, 180, 186 to extend time, 150, 151, 231 authorities to lift stay of execution, 129–133, 143–148 books of, 156, 172, 181, 243 . See also to vary child custody, 56 Appendix II, No . 2 decisions made in, 38, 41, 53, 54, 56, 92, citation of, 171, 181, 182, 243 . See also 121–122, 146, 149, 151, 159, 163, Appendix II, No . 7 191, 229, 230, 231 authority . See also jurisdiction; right of appeal: discharge of orders, by judge in, 38, 41, 91, 92 source of expedited appeal from, 163, 189–192 of a judge in chambers, 143, 145, 146, 147, 233 judge in, powers of, 35, 58, 91–94, 120, 126, of a lower court/tribunal, 8, 63 143, 145, 146, 147, 148, 154, 173, 198, of a superior court, 7, 8, 111 199, 200, 233 of the court, 7, 8, 27, 63, 111, 188, 233 Queen’s Bench, 55 of the registrar, 94–95, 231, 233, 240 review of orders in, 92 awards, 70, 77, 133, 139 sittings, 12, 35, 91, 94, 95, 145, 148, 206 cost, 106, 133, 160, 212, 213, 215, 216, 218, chief justice 219, 220, 221–222 duties and powers of, 6, 10, 11, 12–13, 14–15, damage, 77, 78, 131–132 85, 87, 89, 154, 183, 187, 188, 192, 193 monetary relief, 139, 143 of Queen’s Bench, 13, 44, 87 support, 79 child custody and access appellate standard of review for, 77, 79, 80 • expedited appeals, 163, 190, 191 interlocutory appeals, 32, 33, 38, 118 bill of costs (Form 11b), 156, 181, 216, 217, 275 joint custody, 136 books of authorities . See authorities: books of leave to appeal, 118 briefs of law, 174, 206, 207
Index 367 child custody and access (continued) costs (continued) orders, 56, 79, 128, 134–138, 142, 191, 230 payment stay of execution, 134–135, 137, 138, 142, 191 by lawyer, 150, 221 variation of, 46, 56, 128 into court, 37, 47, 129, 132, 134, 145, child maintenance/support, 47, 93, 124, 127, 213, 215 138, 139, 146, 148, 191, 214 purpose and practice re, 212–213 Citation Guide for the Courts of Saskatchewan, 243 . recovery of, 195, 196, 215 See also Appendix II, No . 7 review of, 48 citation of authorities . See authorities: citation of security for, 47, 59, 132, 213–216, 234 “Civil Appeals to the Court of Appeal”, by set-off of, 223 Cameron J .A ., 26, 42, 76, 114, 172, 198 solicitor-client, 60 civil practice directives, 104, 105, 154, 169, 170, 178, tariff of, 95, 215, 216, 218 . See also 181, 235, 237, 242–243 . See also Appendix II Appendix IV claims to enforce compliance, 106, 149–151, 160, counterclaims, 60 183, 196, 233 cross-claims, 46 non-compliance, 106 small, 18, 40, 41, 59, 112, 113 counsel statement of, 19, 49, 58, 60 conduct of, 222 statute-barred, 61 contingency agreement, 157 class actions, 49–50, 156, 222 disqualified, 92 “clear day”, definition, 207 duties of, 176, 182, 186, 188, 236
compliance, 47, 52, 60, 167, 180, 208, 214 failing to appear, 222 2015 CanLIIDocs 293 enforcing, 106 lawyers, 92, 106, 115, 157, 176, 180, 188, 221, non-compliance, 106, 107, 132, 150, 197, 222, 234, 241, 242, 243 213–215, 233 non-compliance by, 106 waiving, 106, 191 obtaining, 55 with the Rules, 106, 150, 210, 211, 232, 233 order for costs against, 150 conditions (on a judgment/order) payment of costs by, 221–222 examples of, 37, 59, 92, 129–131, 132, 133, precluded from acting, 128 134, 137, 139, 146, 156, 157, 179, 207 proof of service, 236 prescribing terms and conditions, 69, 70, 93, removal of, 48 152, 153, 232–233 requesting convenient time for hearing, conferences 183, 186 pre-hearing, 28, 157, 158, 187–188 required, 55 pre-trial, 47, 56, 136 withdrawal of, 188, 222, 241, 242 teleconference, 207, 231 court, definition, 5, 105 conflicts of interest, 92, 128 court, powers of . See also jurisdiction; constitutional questions, 10, 65, 67, 95, 123, standards of review 153, 157, 158, 165 adjournment, 149 contempt of court, 48, 221, 222 allowing appeal, 80, 82, 83 correctness, standard of review, 59, 70, 74, 75, 77 appellate, 13, 15–16, 63, 69–80, 147 costs . See also taxation of costs as superior court, 6, 7, 67, 68 as discretionary power, 212, 219 conferred by enactment, 29, 32, 34, 39, 40, avoiding undue, 10, 34, 36, 89, 160, 184, 185, 52, 63, 112, 116, 119, 120, 193 186, 199, 200 discretionary, 8, 21, 24, 57, 71–72, 75, 76, awards of, 133, 160, 212–213, 215, 218 202, 212, 219 bill of (Form 11b), 216, 217, 275 dismissing appeals, 70, 196, 198, 213 interest, 129 exercise of, 71, 225–228 “in the usual way”, definition, 219 granting/denying of proceedings, 95, 132 intervener status, 158 order for, 106, 134, 151, 196, 211–213, 214, leave, 120, 144, 152, 199, 228–231, 241 215, 216, 221, 222, 223 issuing practice directives, 242–243 special order, 149, 150 of lower courts/tribunals, 23–24, 74 without order, 195 of Queen’s Bench, 18–19, 22, 68
368 Civil Appeals in Saskatchewan court, powers of (continued) Court of Appeal Act, 2000, The: by reference to ordering section number (continued) costs, 149, 211–212, 213, 219, 221, 223 s . 12 (Powers of the court), 13, 63, 69–80, expedited appeals, 191 81, 82, 83, 84, 172, 226 new trial, 84, 225, 226, 227 s . 13 (Motions against decision of judge), payment of costs by lawyer, 221–222 13, 63, 81, 82, 84 pre-hearing conference, 187–183 s . 14 (Powers of court re evidence), 13, re-hearing of appeal, 201–205, 225 63, 81–84 repayment, 108 s . 15 (Quorum), 14, 84–85 security for costs, 213–216 s . 16 (Re-hearings), 14, 85–86, 201, 202, 205 terms and conditions, 232–233 s . 17 (Queen’s Bench judges assisting in place of sitting, 10, 89, 90 court), 5, 87 quashing appeal, 198–200 s . 19 (Sittings), 88–90 reassessing damages, 70 s . 20 (Judge in chambers), 35, 38, 41, re evidence, 81–84 91–94, 105, 120, 148, 173, 198 re-hearing, 202 s . 21 (Registrar), 94–95, 117, 159, 166, 173 remedial, 9, 70, 71, 106, 107 s . 22 (Rules of court), 6, 95–96, 104 review, 71–80 enactment of, 4, 5, 7, 10, 15, 16, 26, 81, 82, setting aside judgment, 225 86, 104, 121, 124 to extend time, 52, 53, 54–62, 238–240 historical background, 4–5, 7, 10, 15–16, vs powers of a judge, 198 26, 89
waiving compliance, 106 in relation to rules of court, 5, 104 2015 CanLIIDocs 293 court appealed from, definition, 105 jurisdiction of, 7 Court of Appeal . See also chambers; jurisdiction; right of appeal conferred by, 29, 30, 31, 39, 119 right of appeal time periods, 239 as superior court of record, 6, 7 Court of Appeal Fees Regulations, 2000, The, 95 . authority/powers of, 7, 8, 12–13, 16, 27, 63, See also Appendix V 94, 111, 233 Court of Appeal Rules, The remedial powers, 9, 70, 71, 106–107 adoption of, 5 oath of office, 12 by reference to rule number (bold indicates the quorum, panel of judges, 84–85 Rule reproduced in full) size of, 10–11 R . 1 (Title), 104–105, 242 standards of review, 71–80 R . 3 (Purpose of rules), 105, 197 Court of Appeal Act, The R . 6 (Notice of appeal), 52, 108 1915 (repealed), 4, 10, 81 R . 7 (Style of cause in notice), 52, 108–109 1978 (repealed), 7, 15–16, 26, 27, 28, 96 R . 8 (Contents of notice of appeal), 22, 52, Court of Appeal Act, 2000, The 109–114 by reference to section number (bold indicates R . 9 (Serving notice of appeal), 52, section reproduced in full) 114–116, 124 s . 2 (Interpretation), 5, 17, 19, 33, 89 R . 10 (Filing notice of appeal), 116–117, s . 3 (Court continued), 5, 6–12, 62, 63, 67, 231, 232, 239, 240 88, 89, 113, 147 R . 11 (Appeals requiring leave), 42, s . 5 .1 (Judgment by former judge), 14, 84 118–120, 140, 207, 209 s . 7 (Right of appeal), 15–32, 33, 39, 51, 62, R . 15 (Stay), 91, 124–148, 191, 207 70, 81, 82, 110, 111, 112, 113, 120, 150 R . 16 (Cross-appeal), 148–152, 239 s . 8 (Interlocutory appeals), 15, 17, 18, 19, R . 17 (Intervention), 152–158, 207 29, 30, 32–50, 52, 92, 112, 113, 118, R . 18 (Appeal book required), 158–159, 232 119, 120, 209 R . 19 (Agreement as to transcript of s . 9 (Appeal periods), 15, 50–62, 91, evidence), 159–161, 167, 191, 239 115–116, 121–122, 124, 239 R . 20 (Contents of transcript), 161, 167 s . 10 (Appellate jurisdiction), 9, 10, 13, 21, R . 21 (Transcript), 161–162, 167, 239 62–68, 113, 122–123, 147 R . 22 (Agreement as to contents and s . 11 (Original jurisdiction), 10, 68–69, completion of appeal book), 91, 162– 82, 113, 210 164, 167, 169, 191, 232, 239, 242
Index 369 Court of Appeal Rules, The: by reference to rule Court of Appeal Rules, The: by reference to rule number (continued) number (continued) R . 23 (Contents of appeal book), 164–167 R . 65 (Address for service), 109, 209, R . 24 (Form of appeal book), 167, 168, 233 234–235 R . 25 (Transmittal of file from court R . 67 (Service), 52, 115, 236, 240 below), 169, 167 R . 71 (Extension of time), 91, 207, 238–240 R . 26 (Service and filing of appeal book), R . 74 (Practice directives), 104, 242–243 167, 169–170, 177, 178 compliance with, 52, 53, 54, 84 R . 27 (Factum required), 167, 170 forms, 5, 104, 108, 124, 195, 196, 208, 216, R . 28 (Contents of factum), 80, 91, 167, 217, 223, 233–234, 238 . See also 170–175, 176, 232 Appendix I R . 29 (Form of factum), 167, 176, 233 historical background, 104–105, 121, 124, R . 30 (Factum dealing with matrimonial 141, 149, 150, 154, 159 property), 176–177, 181 relationship to governing statute, 5, 104, 107 R . 32 (Service and filing of factum), Court of Queen’s Bench . See Queen’s Bench 177–178, 186, 239 court/tribunal of first instance, 8, 9, 16, 18, 63, R . 33 (Factum in reply on cross-appeal), 68, 71, 72, 74, 76, 78, 87, 225, 227 178, 239 credibility, 72, 216, 229, 230 R . 33 .1 (Factum in rely in other cases), criminal appeals, 62, 142 179–180, 240 cross-appeals R . 34 (Late filing of factum), 180, 232, 240 abandonment of, 195
R . 39 (Entering and fixing time for against favourable decision, 20 2015 CanLIIDocs 293 hearing), 182–183, 184 amendments, 122 R . 39 .1 (Adjournments), 184–186, 231 costs, 149, 211 R . 41 (Pre-hearing conference), 158, division of family property, 152 187–188 factum in reply on, 178 R . 43 (Expedited appeal), 162, 163, 189– in chambers, 230 192, 232, 240, 242 notice of (Form 1b), 19, 60, 108, 122, 148, 149, R . 44 (Stated case), 192–195 150, 151, 152, 153, 165, 226, 227, 239, 250 R . 46 (Dismissal for want of prosecution), 91, proof of service, 148 138, 196–198, 207, 240 service of, 60, 148–150, 151, 152, 153, 239 R . 46 .1 & 46 .2 (Prohibiting vexatious variation, 148–149, 226, 227 proceedings), 68, 198–200 cross-claims, 46 R . 47 (Re-hearing), 86, 201–205 Crown practice applications, 209–210 R . 48 (Form of applications), 42, 53, 54, Crown Practice Rules, The, 144, 147 120, 154, 205–208, 231 custody . See child custody and access; R . 49 (Applications for leave to appeal), dependent adults 42, 53, 120, 207, 208–209 R . 50 (Crown Practice applications), 208, • 209–210 R . 52 (Costs), 211–213, 218 damages R . 53 (Security for costs), 213–216 assessment of, 69, 70, 71, 77, 78, 81 R . 54 (Taxation of costs), 212, 213, 216–220 awards of, 77, 78, 131–132 R . 55 (Payment of costs by lawyer), double recovery, 228 221–222, 223 judgment, stay of execution, 131–132 R . 57 .1 (Taking out judgments and orders), quantum of, 70, 71, 77, 220 223–225, 231, 240 setting aside, 69 R . 58 (Powers exercised by the court), 84, dates . See also time 149, 225–228 appeal books, completion of, 162, 163, 169 R . 59 (Fresh evidence), 167, 228–231 appeal periods, 50–62, 115, 121, 122, 124, R . 60 (Powers of registrar), 94, 95, 117, 159, 128, 239 164, 166, 172, 173, 180, 231–232, 240 extension of, 54–55, 151, 239 R . 62 (Material to be legible and to comply from incidental orders, 121–122 with rules), 232, 233 applications, 206, 207, 220
370 Civil Appeals in Saskatchewan dates (continued) decisions (continued) factums, filing and service of, 156, 183 of first instance, 8, 9, 16, 71, 205 . See also hearings, 90, 182, 183, 184, 185, 186, 191, judge of first instance; original 192, 206, 207, 222, 224 jurisdiction leave to appeal of judge sitting without jury, 82, 226, 228 application for, 50, 51, 52, 53, 118, 119, 228 of panel of judges, quorum, 84–85 required, 50, 118–120 pending appeal, 32, 33, 48–49, 91, 95 notice of appeal precedential value, 75 filing of, 50, 116–117, 123 pronouncement of, 50, 51, 81, 83, 84, 85, service of, 50, 51, 52, 114–116, 117, 118, 123, 134 140, 162, 188 reasons for, no appeal from, 20 notice of motion, 206, 207, 228 reasons not found in, 179 of decision, definition, 50, 51–52 reserved, 14, 86, 173 of filing, 237 review of, 9, 69, 70, 71–80, 83, 87 of judgment, 115, 116, 117 setting aside, 83, 84 definition, 123–124 split, 147, 202, 204 mistaken, 58, 59 stated case, 192–194 perfected appeals, 196, 197 sustaining, 20 pre-trial conferences, 47 tribunals, appeals from, 15, 16, 17 right of appeal, exercise of, 53, 54 varying of, 20, 38, 41, 46, 56, 79, 91, 92, 128, sittings, schedule of, 10, 90 148, 149, 150, 151, 204, 226, 227, 230
decisions . See also chambers; judgments; wrong, unfair or unreasonable, 17, 84, 173 2015 CanLIIDocs 293 Queen’s Bench; right of appeal deference, 72, 74, 75, 79 . See also standards after trial, 50, 54, 121, 122 of review appeal from decision not reasons, 19–21, definitions of terms, references to 113, 150 . See also right of appeal act, 105 citations, 171, 181 . See also Appendix II, No . 7 action, 19 date of, 50, 51–52, 116, 124 appellate jurisdiction, 6, 7, 8, 9, 63 decision-makers, 14, 68, 71, 72, 74, 75, 193 application, 105 decision-making, 9, 71, 75, 77, 113 chief justice, 5, 14 definition, 5, 17, 18, 19, 33 clear day, 207 disciplinary, 30, 128, 145, 154, 157, 230 conclusive proof, 189 discretionary, 9, 21, 24, 75–76, 77, 78, 79, 220 costs in the usual way, 219 final, 32, 33, 48–49, 95, 184 court, 5, 105 definition, 33 court appealed from, 105 leave to appeal, 32, 33, 37–38, 92 date, 50, 51, 123, 124 vs interlocutory decisions, 33, 34, 35, 37, decision, 5, 17, 19, 33 38, 40, 112, 118, 119 discretion, 75 incidental, 50, 51, 53–54, 55–56, 88, 90, 91, enactment, 15, 17, 110 116, 121–122, 194, 198, 218 expedited appeal, 189, 190 definition, 53, 55–56, 121 file, 105 made in chambers, 53–54 final decision, 33 service of notice, 50, 51, 53 incidental decision, 53, 55–56, 121 interlocutory, 18, 32, 33, 34–35, 37, 38, inherent jurisdiction, 7 42–48, 92 interlocutory decision, 33, 34–35 definition, 33, 34–35 judge, 5, 105 leave to appeal required, 18, 28, 30, 32, 33, judgment, 105 37, 38, 40, 112, 118, 119 local registrar, 105 leave to appeal not required, 32, 38–39, 118 “made”, 52 no right of appeal, 33 maintenance, 139 source of right to appeal, 30, 33, 34 matter, 5 vs final decisions, 33, 34, 35, 37–38, 40, moot, 64 112, 118, 119 motion, 105 motions against, 81 northern centre, 5, 89
Index 371 definitions of terms, references to (continued) dispositions original jurisdiction, 8, 9, 63 final, 93 perfecting appeal, 182 re incidental decisions, 53, 56, 116, 121, 198 recoverable without order, 195 re motions incidental to appeal, 91 registrar, 6, 105 stay of execution, pending appeal, 43, 124, rules of court, 6 126, 127, 132, 140–141, 142 scope of right of appeal, 26 without oral hearing, 186–187 special circumstances, 59, 214 divorce, 18, 29, 59, 128, 188–189 superior court of record, 6, 7–8, 9 documents “takes effect”, 189 disclosure of, 30, 48 terms and conditions, 153 filing of, 235, 237, 243 unless otherwise ordered, 218 formatting of, 234 where an appeal lies to the court, 9 marking as exhibits, 211 without recourse to the client, 221 placing before the court, 167 deputy registrar, 6, 94 production of, 30, 45 discharge of orders, by judge in chambers, 38, receipt by fax, 237 41, 91, 92 return of, 49 discipline service of, 236, 237 decisions, 154, 230 disciplinary body, 30, 157, 230 • proceedings, 128, 145
discretion . See also standards of review electronic filing, 162, 169–170, 178, 243 . 2015 CanLIIDocs 293 definition, 75 See also Appendix II, No . 3 exercise of, by appellate court, 31, 61, 63, 64, enactments . See also right of appeal; statutes 65, 72, 86, 113 appeal by stated case, 192–193 original jurisdiction, 8, 68, 71 conferring right of appeal, 8, 9, 15, 16, 23, 34, powers 112, 116, 119, 120 of extension, 57, 150 from lower court/tribunal, 17, 23, 34, 110, to award costs, 212, 219 111–112, 193 to grant leave, 36 from Queen’s Bench, 17, 39, 110–111 to lift or impose a stay, 128 no procedure specified, 107 re-hearings, 201, 202 to the Queen’s Bench, 18, 30 review of, 9, 21, 24, 75–76, 77, 78, 79, 220 conflicting provisions, 51, 54–55, 61–62, 104 scope of power, 76 definition, 15, 17, 110 dismissal enabling, 23–25, 112 as abandoned, 161, 196–198 leave to appeal required, 40–42, 92, 112, by judge in chambers, 151 119, 120 of action, 56, 146, 192 no right of appeal, 15, 17, 22, 24, 27, 31, 32, 93 of appeal, 27, 46, 69, 70, 93, 154, 213, 214, from the Queen’s Bench, 22 215, 235 of The Court of Appeal Act, 2000, 4, 5, 7, 10, 15, of application, 45, 49, 123, 128, 134, 142, 16, 26, 81, 82, 86, 104, 121, 124 192, 230 prevailing, 15, 17, 22, 32, 51, 54, 61, 112 for leave to appeal, 144, 185, 219 scope of right of appeal, 15, 17, 23–26, 27, to adduce fresh evidence, 229, 231 31, 34, 39, 110 to extend time, 59, 60, 151 time limits, 52, 54, 55, 58, 59, 61, 62, 116, to re-hear, 202, 204–205 237, 239 to stay enforcement, 191 enforcement . See also stays for want of prosecution, 138, 195, 196–198, by costs, 106, 211 207, 230, 240 of judgments, 126, 223, 132, 141, 142, notice of motion to dismiss appeal 211, 223 (Form 7), 263 of the Rules, 106, 175 notice to show cause (Form 9), 265 proceeds of, 132 orders declining, 42, 43, 44 stay of, 126, 128, 141, 142, 191
372 Civil Appeals in Saskatchewan error exhibits, 164, 165, 166, 167, 169, 211 appellate review of, 9, 71, 73, 74, 77, 78, 80, 113, ex parte orders, 44, 128, 145, 159, 209, 222 114 . See also standards of review expedited by solicitor, 59, 221 appeal, 138, 162, 163, 189–192, 193, 231, decisions of first instance, 71, 72 232, 240, 242 in findings of fact, 72, 73, 83, 84 definition, 189, 190 in law, 73, 74, 78, 79, 80 hearing, 138, 139, 188 material, 70, 79, 80 proceedings, 138 notice of appeal, 113–114 trial, 138 ordering new trial based on, 84 extension of time . See time: extension of palpable and overriding, 72, 74, 75, 83, 84 upholding judgments despite, 179–180 • evidence admissible/relevant, 8, 73, 160 facts . See also evidence affidavit, 74, 137, 138, 139, 159, 217, 230 application of law to, 24, 31, 71, 75, 113 amending notice of appeal, 122, 123 as found, re appeal, 21, 24, 25, 31, 193 assessment of, 72, 73, 78, 79, 80 inference of, 72, 73, 81, 83, 84 circumstantial, 72 material, 8, 31, 76, 113 credible, 72, 216, 229, 230 disclosure of, 222 documents excluded from, 167 matters of, 9, 17, 23, 73, 76, 174, 194 fresh/new, 20, 60, 94, 138, 156, 167, 205, definition of, 5
228–231 vs questions of law, 9, 17, 23, 25, 31, 75 2015 CanLIIDocs 293 improper rejection of, 21, 113, 226 mixed, 75 oral, 159, 160, 163, 189, 191 review of powers of court re, 81–84 re findings of, 72, 73, 74, 83, 84 re incidental decisions, 55–56 re jury verdicts, 77 re raising new argument, 20, 66, 67, 122, 174 role of jury re, 21, 77 review of, 72–74, 78, 195 setting aside, 72 summary trial, 56 statement of, 163, 171, 189, 191 sufficiency of, 21, 72, 81 summary of, 171, 172, 174 transcript of, 159–161, 162, 163, 165, 190, factum 191, 197, 227, 239, 243 as basis for determining appeal, 186–187 weight of, 8, 31 content and form of, 93, 94, 170–175, ex debito justiciae, 13 176, 177 execution of judgments/orders . See stays disputes re, 91, 93, 173–174, 231–232 exercise of power, 13, 58, 71, 93, 225–228 expedited appeals, 190, 191 allowing an appeal, 72, 80, 120 filing of . See filing: factums awarding costs, 212, 219, 221 in reply, 178, 179–180 discretion, 8, 9, 21, 24, 36, 57, 61, 68, 71, 72, length of, 153, 157, 172, 173, 175 75–76, 77, 78, 79, 86, 128, 210, 219 disputes re, 175 extending time limits, 61 not required from unrepresented party, 180 jurisdiction, 8, 13, 22, 35–36, 37, 63–68, 69, of interveners, 155, 156, 157 83, 107, 143, 144, 147, 187 page numbering of, 171 lifting a stay, 129 perfecting appeal, 182, 183 limits on right of appeal, 18, 24, 110, 119 preparation of, 164, 167, 172, 176 of registrar, 94–95, 166, 220 raising additional arguments, 182 ordering a new trial, 84, 225, 226, 227, 228 re foreclosure, judicial sale, bankruptcy, or re-hearing, 202 insolvency, 177 remedial, 70, 71 re family property, 176–177 setting aside judgments, 225, 227, 228 sealing of, 91, 93 standards of review, 71–80 service of . See service: factums exercise of right of appeal, 16, 18, 19, 25, 33, 34, standard of review, 80 51, 53, 54, 55, 107–108, 116, 119 stated case, 192
Index 373 family law, 77, 79–80, 191 “first instance” (continued) child custody and access, 32, 33, 38, 56, 77, decision-maker of, 71, 74 79–80, 118, 134–138 decision-making of, 72 child maintenance/support, 47, 93, 124, 127, fact-finder of, 72, 74 138, 139, 146, 148 judge of, 76, 87, 225 expedited appeals, 137, 138, 139, 163, 191, 192 questions raised at, 67, 123 possession of family home, 30, 39 form/format property, 18, 29, 30, 39, 47, 60, 133–134, 142, appeal book, 165, 166, 168, 170 152, 160, 225, 229 applications, 53, 205–208 division of, 152 book of authorities, 243 factum, 176 compliance with Rules, 233 status quo, 93, 136, 146, 148 factum, 93, 174, 176, 178 stay of execution, 124, 133–139 file from court, 169 support, 46, 77, 79, 80, 128, 134, 138–139, legibility, 233 191, 214 notice of appeal, 52, 108 fees, 94, 95, 105, 125, 216 . See also tariff of costs transcripts, 161, 162 fees regulations, 95 . See also Appendix V forms, for The Court of Appeal Rules, 5, 104, 108, file, transmittal from court below, 169 124, 195, 196, 208, 216, 217, 223, 233–234, filing 238 . See also Appendix I address information, 234–235 . See also fresh evidence, 60, 94, 138, 167, 205, 228–231 Appendix II, No . 3 frivolous/vexatious appeals, 36, 59, 198–200, 212
appeal book, 93, 159, 169–170, 178, 190, 191, 2015 CanLIIDocs 293 197, 239, 240, 243 • application for leave to appeal, 208–209 book of authorities, 181 . See also Appendix II, garnishee summons, 46 No . 2 “Going Fishing”, by Richards C .J .A ., 26, 42, “clear days”, definition, 207 114, 172 date of, 50, 123, 237 grounds for variation, 149, 150, 152 definition, 105 grounds of appeal . See appeal: grounds for electronic, 162, 169–170, 178, 243 . See also Appendix II, No . 3 • factums, 151, 155, 156, 157, 177–178, 179, 180, 186, 243 . See also Appendix II, No . 3 hearings in reply, 178–179 adjournments of, 149, 150, 183, 184–186, time for, 157, 180, 191, 239, 240 231–232 judgment or order appealed against, 117 delays, 156, 157 late filing, 117, 180 entering an appeal for, 182–183 legibility, 233 estimate of time for, 181 notice of abandonment, 195 expedited, 138, 188, 191, 192 notice of appeal, 88, 116–117, 126, 231–232 fixing time and place for, 182, 183, 184–185, notice of motion, 206–207, 228 186, 191, 192, 196, 224, 240 original documents, 237 time limits for, 196, 197 proof of service, 116, 169, 183 incidental original jurisdiction, 62, 63, 113, 147 re divorce judgments, 188–189 of applications time period for, 116–117 in chambers, 50, 54, 55, 56, 91, 92, 116, with registrar, 50, 51, 88, 89, 105, 120, 123, 133, 121, 122, 148, 206, 207 162, 169, 177, 181, 186, 208–209, 223, incidental to appeal, 88, 91 224, 236 oral, 137, 142, 157, 186 written agreements, 159, 186 dispositions without, 186–187 written arguments, 180 place of sitting, 88–90, 109, 182 findings of fact, 21, 72–74, 77, 83, 84, 216 pre-hearing conference, 28, 157, 158, “first instance” 187–188 court or tribunal of, 8, 16, 18, 63, 68, 78 preparation for, 157, 166, 184, 185, 192 decision of, 9, 70, 71, 83, 227 re-hearings, 14, 71, 85–86, 201–205, 225
374 Civil Appeals in Saskatchewan hearings (continued) interveners, 152, 153, 155, 156, 157, 158, 169, show cause (Form 9), 197, 265 176, 177, 207, 234, 236 stated case, 192–193 intervention, 76, 152–158 viva voce, 135 human rights tribunals, 139, 156, 157 •
• judges absent, 84, 85, 86, 87 incidental decisions . See decisions: incidental appointment of, 7–8, 14 inferences, of fact, 72, 73, 81, 83, 84 chambers, single judge sitting in, 35, 91–94, inherent jurisdiction 120, 143, 147, 148, 154, 198, 200 definition, 7 scope of power, 92 leave nunc pro tunc, 37 definition, 5, 105 of single judge in chambers, 91 duties of, 12–13, 184, 185 of superior court of record, 7, 10, 13, 19, 67 holding office, 14 preservation of status quo, 91, 143–148, 192 number of, for re-hearing, 86 preventing abuse of process, 199, 200, 221 of first instance, 76, 87, 225 where no provision, 107, 108 powers of, 7, 12, 13, 15, 18, 22, 23, 58, 63, “Inherent Jurisdiction of the Court, The”, 68, 70, 92, 93, 94, 128, 198, 211–212, by I .H . Jacob, 7 221–222, 224, 232, 238–240 . injunctions See also jurisdiction
ex parte, 128 preparation for hearing, 184, 185 2015 CanLIIDocs 293 granting/refusal of, 32, 33, 38, 118, 126 Queen’s Bench, 12, 31 interlocutory, 13, 32, 33, 146 quorum, panel, 84–85 mandatory, 60, 146 resignation of, 14, 84 preserving status quo, 145 retirement age, mandatory, 11 pre-trial, 192 salaries of, 8 relief, 130, 146 supernumerary, 5, 6, 10, 11–12, 87 stayed, 130 tenure of, 8 interim orders trial, 81 child custody and access, 134–138, 142 vacancies, 87 family property, 30, 47, 60 judgments . See also appeals; decisions; leave to maintenance, 39, 47, 146, 148 appeal preserving status quo, 143, 144, 146, 148 after trial, 145, 163, 167, 187, 189, 191, 229 interlocutory . See also leave to appeal allowing appeal and granting appellant appeals, 18, 28, 30, 32–50, 60, 119, 140 judgment below (Form 10b), 268 abandoned, 196 allowing appeal and ordering new trial extension of time, 60–61 (Form 10d), 272 applications allowing appeal and varying judgment below dismissal of, 128, 219 (Form 10c), 270 for leave to appeal, 92 appeal book contents, 165 decisions, 18, 32, 33, 34–35, 38, 42–48 by former judge, 14 definition, 33, 34–35 date of, 50, 51, 115, 116, 117, 118, 121, 122, leave to appeal required, 18, 28, 30, 32, 33, 151, 188 37, 38, 40, 112, 118, 119 definition of, 123–124 leave to appeal not required, 32, 38–39, 118 exercising right of appeal after, 53, 54, no right of appeal, 33 55, 56 source of right to appeal, 30, 33, 34 mistaken, 58, 59 vs final decisions, 33, 34, 35, 37–38, 40, definition, 5, 17, 18, 19, 33, 105 112, 118, 119 dismissing appeal (Form 10a), 266 injunctions, 13, 130, 146 divorce, appeals from, 18, 29, 59, 111, 128, orders, 30, 34, 35, 38, 39, 41, 42–48, 60, 125, 188–189 130, 139, 140, 141, 146, 196, 219 enforcement of, 132, 141, 223 stay of proceedings re, 125, 139–141 expedited appeal from, 163, 189–192
Index 375 judgments (continued) jurisdiction (continued) filing of, 117, 120, 208, 209 superior court of record, 13, 18, 67, 68, final judgment, 56, 144 111, 147 foreign, registration of, 48 supervisory, 68, 69, 95, 144, 147, 194 formal judgment, 21, 201–202, 223 to grant/deny leave to appeal, 35, 36, 60, 120, in chambers, 53, 149, 159, 163, 229, 230 156, 197 issued, 209 when not an appeal, 13 non-suit, 58 jurisprudence, preserving existing, 104, 125, notice of appeal, requirements, 109 152, 154 oral, 161, 227 “just and equitable”, 51, 54, 56 payment of, 132, 133, 160–161 justice pronouncement of, 50, 51, 81, 83, 84, 85, administration of, 4, 7, 11, 17, 36, 105, 106, 123, 134 197, 222 reasons for, 20, 28, 79, 85, 161, 165, 171, 177, “substantial wrong or miscarriage of”, 84, 179, 208, 209, 225 226, 227, 228 reserved, 85, 86, 173 set-off in, 223 • setting aside, 43, 46, 69, 70, 72, 83, 84, 128, 222, 225, 226, 227, 228, 235 law stay of execution of . See stays: of execution application and identification of, 8, 9, 17, 21, and proceedings 24, 25, 31, 40, 71, 72, 77, 113
summary, 46, 56, 225 review re, 74–75 2015 CanLIIDocs 293 “taking out”, 223–225 . See also Appendix I briefs of, 174, 206, 207 trial, appeal from, 50 common, 18, 73, 74 varying, by cross-appeal, 148–150 family . See family law written reasons, 20, 50, 51, 123, 219 interpretation of, 8, 17, 21, 31, 74, 113 judicial centres . See also sittings points of law, 45, 48, 171, 181, 204 northern, 5, 88, 89, 90 questions of, 9, 17, 23, 24, 25, 26, 31, 37, definition, 5, 89 40, 41, 74, 75, 110, 112, 113, 155, Regina, 6, 10, 88, 89, 90, 109, 183, 206 193, 194 Saskatoon, 6, 10, 88, 89, 90, 109, 183, 206 vs matters of fact, 9, 17, 23, 25, 31, 75 transfer to another centre, 89, 90, 127, 128 Law of Costs, The, by Mark M . Orkin, 222 judicial review, 46, 69, 143, 144, 210 lawyers . See counsel: lawyers judicial sale, 177, 192 leave judiciary . See also judges to adduce fresh evidence, 228 authority of, 7 to amend notice of appeal/cross-appeal, decision-making of, 9, 72, 75, 113 122–123 deference, 72, 74, 75, 79 to appeal discretion of, 75, 128 applications for, 30, 35, 37–38, 40, 41, 47, duties of, 6, 7, 11, 14–15 49, 50, 51, 52–53, 55, 58, 59, 60, 61, independence, 8, 10 91, 92, 118, 119, 120, 124, 130, 185, renewal of, 11 208–209 juries, 21, 43, 70, 77, 82, 161, 226, 228 by notice of motion, 41–42, 239 jurisdiction form of, 207, 208–209 ancillary, 10, 147 interlocutory order, 30 appellate, 6, 8, 9, 10, 18, 21, 62–68, 113, 114, 147 once made are final, 37–38, 92 exercise of, 63–68 time for, 52–53, 54–55, 58–61, 119, inherent, 7, 10, 13, 19, 37, 67, 91, 107, 108, 124, 234 143–148, 199, 200, 221 to a single judge in chambers, 91–92, 120 original, 8–9, 10, 13, 18, 62, 63, 68–69, 113, to Supreme Court, 130, 185 144, 147, 187, 210 by successful party, 47 statutory, 8, 9, 16, 18, 23, 24, 25, 26, 29, 32, class actions, 49 39, 61, 62, 63, 107, 108, 110, 115, 118, conditional, 37, 119 119, 123, 147, 192, 239 final decisions/orders, 32, 37–38, 48, 144
376 Civil Appeals in Saskatchewan leave: to appeal (continued) motions (continued) granting/denying, 34, 35–36, 37, 38, 41, 42, against decision of judge, 81 43, 44, 49–50, 66, 140, 194 definition, 105 by single judge in chambers, 91–92 excessive, 221 nunc pro tunc, 37 incidental to appeal, 91, 148, 198 grounds, 208–209 for leave to adduce fresh evidence, 167 interlocutory decisions/orders, 32, 33, forms, 108 . See also Appendix I 37–38, 39, 42–48, 112, 125, 139, for new trial, 81 140, 219 notice of . See notice: of motion merit and importance, 35, 36, 40, 56, 58, staying, 48 60, 91, 92, 93, 144, 148, 198, 199, to extend time 200, 209, 212, 215, 231 for appeal, 58, 59, 234 obtaining, 24, 37, 40, 42, 119 for application for leave to appeal, 60, 234 on a question of law, 41 for service, 59, 62 selective leave, 37 to quash, 200, 222 to cross-appeal, 20 written, 58 to intervene, 152, 153, 154, 155, 156, 157 • to withdraw as council, 188, 241–242 when leave not required, 28, 30, 32, 33, 38, 39, negligence, 75, 106, 221, 228 48–49 non-parties, 19, 48, 94, 109, 153 . See also parties when leave required, 24, 25, 28, 32, 33, non-suit, 48, 56, 58 40–42, 49, 50, 52, 92, 93, 110, 112, notices 2015 CanLIIDocs 293 118–119, 126, 239 of abandonment (Form 8), 195, 196, 264 limitation periods, 48 of adjournment, 184–185 local registrar, 50, 105, 123, 169, 188, 189, 223 of appeal (Form 1a), 108, 249 definition, 105 amendments, 67, 122–123 filing with, 189 appeal book, 165 contents of, 22, 109–114, 121, 172 • draft, 120, 208, 209 exercising right of appeal by, 19 maintenance filing . See service and filing of arrears of, 139 form of, 52, 88 child, 47, 93, 124, 127, 146, 148 identifying source of right of appeal, 22, 108, definition, 139 109–112 dependent adult, 124 service and filing of, 37, 50, 51, 52, 88, interim, 39, 148 114–117, 118, 119, 126, 140, orders, 127 152–153, 191 spousal, 124 from divorce judgments, 188–189 Maintenance Enforcement Office, 128 from incidental decision, 50, 51, 53–54 mandamus, 68, 124, 126, 209, 210 interveners, 152–153 matrimonial property . See family law: property stay of execution, 124, 126, 130, 140 matters of fact . See facts: matters of time for, 54–55, 58, 59, 62, 115–116, memorandums, 120, 162, 171, 201, 208, 209 117, 118, 124, 150, 151, 239, 240 “merit and importance”, of appeal, 35, 36, 40, striking out, 93 56, 58, 60, 91, 92, 93, 144, 148, 198, 199, of appointment for taxation of costs 200, 209, 212, 215, 231 (Form 11a), 216, 274 “miscarriage of justice”, 84, 226, 227, 228 of cross-appeal (Form 1b), 19, 108, 148–150, monies, payment into court, 37, 47, 129, 132, 152, 153, 165, 226, 250 134, 145, 213, 215 amendments, 122 by lawyer, without recourse to the client, 221 omission to serve, 149 “mootness”, 63, 64–65, 129 of motion definition, 64 for leave to adduce fresh evidence, 167, motions 174, 228 adjournment of, 185 for leave to appeal, 41, 53, 58
Index 377 notices: of motion (continued) orders: for costs (continued) for leave to intervene, 154 security for, 214, 215, 216 form of, 201, 206–207 granting/refusing leave to appeal, 25, 38, 41, service of, 228 43, 91, 118, 140, 194 to adduce fresh evidence, 228 incidental to appeal, 50, 51, 53–54, 55–56, to apply for prerogative relief/writ, 88, 90, 91, 116, 121–122, 194, 198, 218 209–210 in class actions, 49–50 to dismiss appeal for want of prosecution interim, 30, 39, 47, 60, 115, 131, 134, 135, (Form 7), 196, 263 136, 138, 143, 144, 146, 147, 148 to extend time for appeal (Form 3a), 234, interlocutory, 30, 34, 35, 38, 39, 41, 42–48, 60, 238, 251 125, 130, 139, 140, 141, 146, 196, 219 to lift stay of execution (Form 5a), 124, 257 stay of proceedings re, 125, 139–141 to obtain leave to appeal (Form 4a), 41, made by Queen’s Bench, 13, 27, 27, 39, 117 53, 208, 254 mandamus, 68, 124 to perfect appeal (Form 6a), 196, 261 pending appeal, 145, 146 to request re-hearing, 201 preservation, 48 to vary, 149 preserving status quo, 91, 93, 136, 143–148 to show cause (Form 9), 196, 265 prohibition, 68, 69, 144, 147, 198–200, 209, to take out an appointment for taxation 210, 230 (Form 11c), 217, 277 pursuant to the Act, 30, 39 notification, 162, 182–185, 189, 190, 222, quashing, 143, 198, 209
236–237 re-hearing, 201 2015 CanLIIDocs 293 by registrar, 183, 236 required after expiration of time limits, 117 methods of, 236–237 review of, 92, 93, 143 set-off of judgments or costs, 223 • setting aside, 43 stay of execution, 125–126, 127, 128, 130, oath of office, 12 131, 133, 134, 137, 138, 139, 140, 144 orders stay of proceedings, 125–126, 139, 142, 144 amending pleadings, 44, 56, 165, 227 striking out, statement of claim, 58, 60 Anton Pillar, 49 support, 79–80, 128, 139, 191, 214 application for leave to appeal from, taking out, 223–225 . See also Appendix I 208–209 transcript of evidence, 161 by judge in chambers, 38, 41, 56, 91, 92, 93, “unless otherwise ordered”, definition, 218 94, 145, 146, 148 variation, 150 certification, 50 vesting, 130–131 certiorari, 68, 69, 143, 144, 147, 209, 210 original jurisdiction, 8–9, 10, 13, 18, 62, 63, child custody and access, 79–80, 128, 134, 68–69, 113, 144, 147, 187, 210 135, 136, 137, 138, 142 definition of, 8, 9, 63 disclosure, 30, 47, 48, 60, 142 discretionary . See Appendix II, No . 6 • dispensing with a transcript, 161 draft, 208 . See also Appendix I “Palmer criteria”, 229 enforcement of, 142 parties execution of, when stayed, 124 agreements by, 132, 135, 159, 160, 161, 181, ex parte, 44, 128, 145, 159, 209, 222 186, 207, 224 filing of, 117, 189 “any person interested”, 152, 153 final, 35, 38, 41, 48–49, 60, 92, 134, 135, 136, conduct of, 219–220 142, 144 corporate party, 44 for custody, 134, 135, 136, 142 duties of, 50–51, 53, 80, 114, 137, 159–160, vs interim order, 134 162–163, 169, 170, 177–178, 181, fixing time periods, 240 182, 195, 196, 206–208, 223–225, for costs, 106, 134, 149, 150, 151, 183, 211, 234–235 212, 214, 215, 216, 221, 222, 223 in default, 106, 150, 180, 195–197, 235
378 Civil Appeals in Saskatchewan parties (continued) proceedings (continued) interveners, 152, 153, 155, 156, 157, 158, 169, cost of, 36, 38, 132 176, 177, 207, 234, 236 criminal, 142 non-party, 19, 48, 94, 109, 153 custody, 191 prejudice against . See prejudice definition, 141 responsible for taking out judgments, delay to, 36 223–225 disciplinary, 128, 145 self-represented, 58, 167, 182, 187 enforcement, 191 service of notice on, 114–115, 116 ex parte, 222 style of cause, 108–109 foreclosure, 146 substitution of, 123 fragmentation of, 53, 54, 55 successful party, right of appeal, 20, 47 garnishee, 46 third party, 44, 45, 49, 131 intervention of, 152–158 to an action, 19, 44 ongoing, 20 unrepresented, 180 original, 19 payment of costs, 8, 31, 37, 47, 60, 129, 132–134, prohibiting commencement of, 198–200 139, 145, 213, 215, 221–222 quashing, 209 repayment, 107, 108, 139 stay of, 29, 43, 46, 124–148 perfecting appeal summary, 46, 56, 225 appeal book, 158–170 third party, 44 conditions for, 93 transcripts of, 161–162
definition, 182 vexatious, 68, 198–200, 212 2015 CanLIIDocs 293 delay in, 93 prohibition orders, 68, 69, 144, 147, 198–200, draft order to perfect appeal (Form 6b), 262 209, 210, 230 expedited appeal, 192 vexatious proceedings, 198–200 factum, 170–182 pronouncement, oral, 50, 51, 123 leave to appeal granted on condition of, 37 proof notice of motion to perfect appeal burden/onus of, 8, 31, 73, 74 (Form 6a), 261 conclusive, definition, 189 order for timely perfection, 91, 196–198 of service, 116, 117, 148, 150, 169, 177, 178, re sittings, 90 183, 195, 206, 217, 223, 224, 236 time period for, 196, 197, 240 filing of, 116, 169, 183 pleadings, 44, 50, 56, 165, 227 notice of cross-appeal, 148 powers of the court . See court, powers of property practice directives, civil, 104, 105, 154, 169, family, 18, 29, 30, 39, 47, 60, 133, 134, 142, 170, 178, 181, 235, 237, 242–243 . 152, 160, 176, 225, 229 See also Appendix II other, 18, 134, 139, 176–177 pre-hearing conference, 28, 157, 158, 187–188 Provincial Court, 4, 40 “prejudice”, 20, 47, 56–59, 61, 126, 129, 133, 139, 151, 155, 157, 228, 243 • prescribing terms and conditions, 232 preservation order, 48 quantum meruit, 220 preserving quantum of damages, 70, 71, 77, 220 existing jurisprudence, 104, 125 quashing, 13, 31, 32, 55, 68, 69, 93, 143, 146, status quo, 91, 93, 136, 143–148 198, 199, 200, 209, 222 pre-trial Queen’s Bench conference, 47, 56, 136 appeals from, 18–23, 27, 121, 146, 158, 187 injunction, 192 appeals to, 43 points of law, 45, 48 appellate jurisdiction of, 18 procedure, not specified, 107 chief justice of, 13, 87 proceedings class actions, 49–50 civil, 19, 243 Court of Appeal judges, duties in, 12–13 class action, 49, 222 expedited appeals, from judgments made in conduct vs disposition of, 53, 56, 116, 121 chambers, 191
Index 379 Queen’s Bench (continued) reasons (continued) final decisions of, 48–49, 112, 144 transcript, contents of, 161 interlocutory decisions, 18, 32–50, 42–48, written, 20, 50, 51, 123, 218, 219 92, 112, 197, 219 receiver/inspector, appointment of, 32, 33, 38, leave to appeal 118, 131 granted, 37 recording devices, mechanical, 242 not required, 38, 39 recoverable without order, definition, 195 required, 18, 33, 118, 119 registrar leave to appeal, other enactments, 39, 40–42 appeal book, 159, 164, 166, 168, 169–170, 173 local registrar, 50, 105, 123, 169, 188, 189, 223 appeals judges entering of, 182–183 assisting in Court of Appeal, 87 hearings, 191, 196 definition, 5 applications to, 117, 159, 187, 188, 231, 240 duties of, 31 book of authorities, re, 181 notice of appeal, 115–116, 117 certificates from, 125, 141 original jurisdiction, 8, 18 definition of, 6, 94, 105 re-hearings, 86 deputy registrar, 94 right of appeal, 15, 16, 17, 18–23, 26–32, 82, discretion, 220 110–111 duties, 88, 89, 90, 95, 141, 184–185, 188, 197, limitations of, 112–113 217, 218 no right of appeal, 18, 32, 33, 113 factum, re, 173, 177, 179, 180
source of, 33, 110 fees, 94, 95, 105 2015 CanLIIDocs 293 stays, examples, 130, 134, 135, 136, 137, 139, filing with, 50, 51, 88, 89, 105, 120, 123, 133, 142, 143, 144, 145 162, 169, 177, 181, 186, 208–209, 223, verdicts, 77, 82 224, 236 Queen’s Bench Act, 1998, The, 18, 19, 28, 30, by fax, 237 111, 119 electronic, 162, 170, 178 Queen’s Bench Rules, The, 18, 28, 29, 30, 44, 45, late, 180 47, 48, 111, 154, 196, 189, 211, 236, 240, original copies, 237 241–242 rejection of, 178, 179, 180, 223, 224, to apply to Court of Appeal, 210–211, 236, 233, 235 241–242 . See also Appendix III local registrar, 50, 105, 123, 169, 188, questions 189, 223 constitutional, 10, 65, 67, 95, 123, 153, 157, notification by, 162, 182, 185, 188, 189, 190, 158, 165 236–237 of law vs matters of fact, 9, 17, 23, 31, 41 powers of, 94–95, 117, 159, 166, 173, 184–185, quorum, 84–85 188, 196–197, 206, 231–232, 233, 240 exceptions, 172 • referral to judge or court, 159, 164, 184, raising arguments 196–197, 224, 231–232 additional, 182 requests for new, 20–21, 66–67, 122–123, 157 adjournment, 184, 185 reasonable cause, 42, 198, 200 hearing dates, 186 “reasonableness”, standard of review, 70, 72, 74, place of sitting, 88, 90 77, 83, 84 resolving issues with, approach to, 174, reasons, 19, 20, 28, 171 227, 232 ambiguity in, 225 scheduling by, 90, 183, 184–186, 191 appeal from decision not reasons, 19–20, stated case, 192, 193 113, 150 submission to, proposed judgment/order, applications, contents of, 120, 208, 209 223–224 concurring/majority, 28 taxation of costs, 216–219, 220 errors, 79, 179 transmittal of file from court below, 169, 208 not found in decision, 171, 179 regulating practice, 95 split decisions, 204 re-hearings, 14, 71, 85–86, 201–205, 225
380 Civil Appeals in Saskatchewan relief right of appeal (continued) applications for, 145, 146, 206, 207, 208, 209, 210 from decision not reasons, 19–21 automatic stays, exceptions to, 126–127, 129, 130 general rights, 16, 17, 19, 21, 22, 23, 27, 28, determined by 29, 30, 31, 33, 110 registrar, 94, 117 overridden by enactment, 32 single judge in chambers, 91, 145, 146 historical background, 16, 26–29 injunctive, 126, 130, 145, 146 incidental decisions, 53, 55–56 interim, 141 in first instance, 27 monetary, 143 interlocutory appeals, 18, 32–34 non-monetary, taxation of costs, 216, 218 leave to appeal required, 18, 25, 28, 32, 33, prerogative, 68, 187, 208, 210 40–42, 118, 119 preserving status quo, 143, 145 no right of appeal, 8, 9, 13, 16, 17, 18, 19, 22, right to pursue, 215 24, 25, 27, 31, 61, 62, 63, 93, 110, 112, sought, notice of appeal/factum, 109–110, 198, 199 114, 149, 150, 171, 177 purpose of, 17 to prevent prejudice, 57 scope of, 9, 17, 21, 22, 24–25, 26, 30–32, 36 remedies, 9, 70, 71, 95, 106, 107, 195, 227 conferred by enactment, 24–26, 31 representation . See also counsel definition, 26 by lawyer, 188, 234, 241–242 limited/restricted, 9, 15, 17, 22–23, 24–25, by self, 58, 167, 182, 187 29, 31, 40, 112–113 unrepresented party, 180, 234 silence re, 22–23, 27, 28, 30
res judicata, 20 unlimited/unrestricted, 9 2015 CanLIIDocs 293 review source of, 22, 24, 26, 28, 29–30, 33, 80, 109, appellate, scope of, 9, 21, 92, 113 110, 170 application for, 144 specific rights, 17, 22, 23, 28, 29, 30, 34 assessing damages, 77–79 to the Queen’s Bench, 18, 30 by judge of first instance, 87 “where an appeal lies to the court”, certiorari, 69, 143, 144, 147, 209, 210 definition, 9 decisions of first instance, 9 rules of court, generally, 6, 95, 96, 105 . See also exercise of discretion, 75–76 Court of Appeal Rules, The; Queen’s Bench family law orders, 79–80 Rules, The findings of fact, 72–74, 83 • for error, 9, 71, 73, 74, 77, 78, 80, 113, 114 identification/application of law, 74–75 Saskatchewan Gazette, The, 96, 104, 125 jury decisions/verdicts, 21, 77, 82, 226 scheduling, by registrar, 90, 183, 184–186, 191 orders in chambers, 92 seal of the court, 6 standards of . See standards of review security for costs, 47, 59, 132, 213–216, 234 taxation of costs, 48, 220 failure to pay, 215, 216 right of appeal . See also enactments; leave to non-compliance, 213, 214 appeal “special circumstances”, 214, 215 conferred by enactment/statute, 8, 9, 15, 16, self-represented parties, 58, 167, 180, 182, 187 22, 23, 32, 34, 39, 40, 52, 63, 112, 116, service 119, 120, 193 address for, 109, 209, 234–235, 243 . See also exercise of, 16, 18, 19, 25, 33, 34, 51, 53, 54, Appendix II, No . 3 55, 107–108, 116, 119 . See also time: affidavits, 206 appeal periods appeal book, 162, 163, 169–170, 178, 190, postponing, 55 191, 197 where no provision, 107–108 applications, 52, 119, 201, 205–208 from decision of book of authorities, 181 court of first instance, 9 brief of law, 206 lower court/tribunal, 15, 16, 17, 23–26, certificate of, (Form 12), 236, 279 32, 34, 110, 111–112, 193 copy of proposed judgment or order, 223 Queen’s Bench, 15, 16, 17, 18–23, 26, 27, date of decision, 50, 124 32, 39, 51, 82, 110–111 expiration of time, 117
Index 381 service (continued) statutes . See also enactments factums, 156, 157, 177–178, 180, 181, 186, conferring right of appeal, 8, 16, 18, 23, 24, 190, 191 25, 26, 29, 31, 61, 62, 63, 110, 118, 123 in reply, 178–180 jurisdiction of, 7, 8, 9, 13, 16, 18, 23, 24, 25, judgment or order, 223–224 26, 29, 32, 39 notice not required, 117 leave required by, 48 notice of abandonment (Form 8), 195, 196, no procedure specified, 107 264 statute-barred claims, 61 notice of appeal, 114–116, 118, 126, 130, 140, statutory immunity, 43 149, 151, 153, 159, 162 statutory time limits, 44, 61, 62, 123, 192, time for, 50, 51, 52–55, 58, 59, 62, 238, 239 115–116, 118, 124, 239 table of, contents of factum, 171 notice of appointment for taxation of costs “where an appeal lies to the court”, 9, 15, 16, (Form 11a), 216, 274 17, 18, 19, 23, 30, 32, 33, 39, 62, 63, 113 notice of cross-appeal, 60, 148, 149, 150, 153 where no provision, 107, 108 notice of hearing, 182 where statute prevails, 39, 107, 115, 118 notice of intention to vary, 149 statutory jurisdiction, 61, 62, 63, 107, 108, 110, notice of motion, 201, 206–207, 228 115, 118, 119, 123, 147, 192, 239 not required, 117 stays . See also status quo obtaining leave, 37 automatic, 126, 127, 129, 130, 131, 134, 139, proof of, 116, 117, 148, 150, 169, 177, 178, 140, 141, 142
183, 195, 206, 217, 223, 224, 236 conditional, 129 2015 CanLIIDocs 293 proposed judgment/order, 223–224 draft order to lift stay (Form 5b), 259 Queen’s Bench Rules apply, 236 . See also filing notice of appeal, 124–125, 130 Appendix III interlocutory orders, 139–141 stay of execution upon, 124, 126, 130, 140 lifting of, 91, 126, 128, 129–131, 132, 133, time for, 52, 53, 54–55, 58, 59, 60, 62, 88, 90, 134–137, 138, 139, 141, 142, 191, 192 115–117, 118, 119, 124, 148, 149, 150, notice of motion to lift stay (Form 5a), 257 190, 239 of disciplinary proceedings, 145 extension of, 54–55, 150 of enforcement, 126, 128, 141 set-off, 212, 217, 223 of execution and proceedings, 29, 46, 54, 91, setting aside, 43, 46, 69, 70, 72, 83, 84, 128, 222, 124–148, 191, 192, 207 225, 226, 227, 228, 235 stay of execution vs stay of proceedings, severance, 46, 128 125 show cause hearing (Form 9), 197, 265 of motion of contempt, 48 sittings of writ of execution, 125, 141 in chambers, 12, 35, 91, 94, 95, 145, 148, 206 pending appeal, 47, 91, 125, 127, 129, 132, place of, 10, 88 137, 141, 142, 143, 146 judicial centres, 5, 88–89, 128, 188, 189 pending trial of an issue, 46 request for judicial centre, 88–89, 90 power of judge to lift or impose, 127, 128, schedule of, 10 129, 130 without a jury, 82, 226 refusal of, 43 small claims court, 18, 59 striking out “special circumstances”, definition, 59, 214 actions, 42, 48 Spousal Support Advisory Guidelines, 80 appeal, 29, 198, 199 standards of review, 5, 21, 71–80, 113, 157, 170 factum, 173 “correctness”, 59, 70, 74, 75, 77 notice of appeal, 93 “reasonableness”, 70, 72, 74, 77, 83, 84 statement of claim, 58, 60 stated case, 192–194 style of cause, 108–109, 168, 176, 234 . See also statements Appendix II, No . 7 of claim, 19, 49, 58, 60 “substantial wrong or miscarriage of justice”, of defence, 43 84, 226, 227, 228 of facts, 163, 171, 189, 191 superior court of record status quo, 91, 143–148, 192 definition, 6, 7–8, 9
382 Civil Appeals in Saskatchewan superior court of record (continued) time (continued) significance of, 6, 7–8, 9, 10, 11 expiration of, 58, 61, 117, 123, 161, 180, 189, jurisdiction of, 13, 18, 67, 68, 111, 147 238, 240 supernumerary judges, 5, 6, 10, 11–12, 87 extension of supervisory jurisdiction, 68, 69, 95, 144, 147, 194 appeal periods, 51, 54, 56–60, 62, 115, support orders, 46, 77, 79, 80, 128, 134, 123, 189, 231, 238 138–139, 191, 214 application for leave, 52, 53, 119 appellate standard of review for, 79, 80 conflicts with enactments, 61–62 child, 46, 79, 138–139, 191, 214 draft order (Form 3b), 238, 253 obligations, 77, 79, 139 fixed time periods, 239–241 spousal, 80, 128, 134, 139, 191 granted, 58–59 Supreme Court incidental motions, 91 application for leave to appeal to, 185 notice of motion to extend time for appeal of Canada, 16, 57, 65, 66, 71, 78, 79, 130, 185 (Form 3a), 234, 238, 251–252 of Saskatchewan, 7, 15 refused, 59–61 Supreme Court Reports (SCR), 171, 181 statutory time limits, 44 to file notice, 151, 160 • to serve notice, 54–55, 58, 60, 62, 150, 151 fixing time for hearing, 182 tariff of costs, 95, 212, 215, 216, 218 . See also for filing, 116–117, 151, 160 Appendix IV; costs for service, 52, 53, 54–55, 58, 59, 60, 62,
taxation of costs, 48, 212, 213, 216–220 . See 88, 90 2015 CanLIIDocs 293 also costs limits, 44, 51–52, 54–55, 59, 91, 117, 150, between party and party, 212, 218, 219 163, 192, 239 between solicitor and client, 213, 216, notice of appeals, 50, 114, 124 219–220 transcript of evidence bill of costs (Form 11b), 216, 217, 275–276 agreement as to, 159–161, 163, 190, 191 certificate of taxation of costs (Form 11d), contents of, 160, 161, 165 218, 220, 223, 278 expedited appeals, 163 non-monetary relief, 216 filing of, 162, 243 notice of appointment for taxation of costs format of, 162 (Form 11a), 216, 217, 274 gaps in, 227 notice to take out an appointment for praecipe for, 162 taxation (Form 11c), 217, 277 time periods for, 161, 190, 191, 197, 239 registrar’s duties re, 217, 218 Transcript Services, 161, 162 review of, 220 transmittal of file from court below, 169 service of notice, 217 trials . See also juries set-off, 217 adducing evidence at, 20, 66, 122, 139, 229 taxes, arrears, 130, 215 appellate review of, 78–80, 82–84, 225–227 teleconferences, 207, 231 expedited, 138 “terms and conditions”, 69, 70, 152, 153, 232 . incidental decisions, 50, 53, 55–56, 121–122 See also conditions judge’s powers re, 12, 13, 56, 73, 79 definition, 153 judgments after trial, 187, 189, 191, 229, 230 third parties, 44, 45, 49, 131 mode of, 77 time new trial, ordering, 69, 70, 81, 82–84, 225, abridgment of, 238, 240 226, 227, 228 appeals from incidental orders, 121 powers of the court re, 82–84 appeal periods, 50–62, 115, 121, 124, 128, pre-trial 239 conference, 47, 56, 136 application for leave, 50, 118, 119, 120 determination, 45, 48 calculating, 50–55, 124, 207, 237–238 injunction, 192 enlargement of . See extension of raising new argument, 122–123 estimate of time for hearing, 181 retrial, 71 expedited appeals, 190, 191 right to appeal, 21, 81, 82
Index 383 trials (continued) verdicts right to trial by jury, 21, 70, 77 jury, 21, 228 setting down for, 44 review of, 77, 226 summary, 56 right to appeal from, 21, 226 transcripts, 161, 227 setting aside, 228 without a jury, 81, 82, 226 vesting order, 130 tribunals vexatious proceedings, prohibiting, 36, 59, administrative, 193, 230 198–200, 212 appeals from, 8, 15, 16, 17, 18, 23–26, 62, 63, 69, 70, 105, 115 • notice of appeal, 115, 116 appeals, by stated case, 193 “where an appeal lies to the court”, 9, 15, 16, 17, human rights, 139, 156, 157 18, 19, 23, 30, 32, 33, 39, 62, 63, 113 jurisdiction of, 8, 23–24 definition, 9 leave to appeal, 34, 39, 40, 92, 112, 118, 119 witnesses matters of fact in dispute, 73–74 credibility, 72, 216 original jurisdiction, 8, 63, 68 examination by registrar, 217 right of appeal, 15, 23–26, 32, 34, 110, re contents of appeal book, 164, 165 111–112, 113, 116, 118 re decision-maker of first instance, 72, 74 trust, held in, 130, 131, 132, 133 writs of certiorari, 209
• of execution, 125, 134, 141 2015 CanLIIDocs 293 of habeas corpus, 209 vacating, 44, 128, 145 of mandamus, 209 variation prerogative, 68, 209, 210 child custody/support orders, 46, 56, 128 written cross-appeals, 148–152 agreements, 159, 160, 186 notice to vary, 149, 150, 151 arguments, 172, 174, 180, 186, 187 of a decision, generally, 20, 149, 150, reasons, 20, 50, 51, 123, 219 226–227 submissions, 207, 224 orders made in chambers, 38, 41, 91, 92 specifying grounds for, 149, 150, 152
384 Civil Appeals in Saskatchewan