Docket: 705 Span West Farms Ltd. Proposed Appellant - v. -, 2003 SKCA 035

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2003 SKCA 035 Date: 20030326 Between: Docket: 705 Span West Farms Ltd. Proposed Appellant - and - Bank of Nova Scotia Proposed Respondent Before: Cameron J.A. Counsel: William F.J. Hood for Proposed Appellant Joel A. Hesje for the Proposed Respondent

Application: Heard: March 26, 2003 Disposition: Dismissed Reasons By: The Honourable Mr. Justice Cameron CAMERON J.A. [ 1 ] This is an application for leave to appeal an order made by a judge of the Court of Queen’s Bench. [ 2 ] The application was brought by Span West Farms Ltd. pursuant to section 8(1) of The Court of Appeal Act, 2000 , [1] asking for leave to appeal an order made by Mr. Justice Kyle. He made an order on the authority of section 45(2) of The Arbitration Act , 1992 [2] granting the Bank of Nova Scotia leave to appeal to the Court of Queen’s Bench from a decision of a Board of Arbitration.

The Board of Arbitration had been called upon to determine the rent payable under a lease between the Bank and Span West Farms. It did so, but the Bank was not satisfied it had done so correctly. Hence, it applied for leave to appeal to the Court of Queen’s Bench, as contemplated by section 45(2) of The Arbitration Act, 1992 , which allows for appeal to that Court on a question of law, subject to obtaining leave from a judge of the Court. [ 3 ] The application before me rests on the premise Mr.

Justice Kyle granted leave to appeal to the Bank on a badly decided premise: That the Bank, should it be given leave to do so, was entitled to appeal from the decision of the Board of Arbitration notwithstanding the terms of the lease and

section 4 of The Arbitration Act 1992 . This

section enables persons to contract out of much of the Act. It is said that, having regard for this

section and the terms of the lease, Mr. Justice Kyle erred in finding that the Bank had not contracted out of its entitlement to appeal the decision of the Board of Arbitration. [ 4 ] The application falls to be addressed along the lines identified from time to time by judges of this Court, which for ease of reference in practice are drawn together and set forth as a whole in Rothmans, Benson & Hedges Inc. v. Saskatchewan , 2002 SKCA 119 .

In the light of this, if the application is to succeed it has obviously to overcome a number of hurdles, not the least of which is that posed by the nature of an application to obtain leave to appeal to the Court of Appeal in relation to a decision of a judge of the Court of Queen’s Bench granting leave to appeal to that Court. See, for example, Lane v. Esdaile , [1891] A.C. 210 (H.L.) ; Industrial Acceptance Corp . v. Smith and Hogan Ltd. (Trustee of) , 1931 CanLII 67 (SCC) , [1931] S.C.R. 652 ; Canadian Utilities v. Deputy Minister of National Revenue, 1963 CanLII 88 (SCC) , [1964] S.C.R. 57 ; Ernewein v.

Canada (Minister of Employment & Immigration ), 1979 CanLII 185 (SCC) , [1980] 1 S.C.R. 639 ; and Denison Mines Ltd. v. Ontario Hydro (2001), 2001 CanLII 5681 (ON CA) , 56 O.R. (3d) 181 (Ont. C.A.) . [ 5 ] I must say the applicant has overcome a number of the hurdles—more than I initially thought possible—and I may well have granted leave were it not for this: Should leave be granted the issues making up the whole of the dispute between the parties would then fall to piecemeal determination, more protracted and costly than is desirable or necessary.

I think there is a better way, and that lies in dismissing the application, but on a set of clear understandings. [ 6 ] First, Mr. Justice Kyle is not to be taken as having conclusively determined the issue of whether the Bank had contracted out of the appeal provisions of The Arbitration Act, 1992 .

He expressed a view upon this issue and others, in the context of whether he should exercise his discretionary power to grant leave, but he prefaced all he had to say with this reservation: “I do not wish my tentative conclusions to bind the judge hearing the appeal proper....” So it seems this issue remains extant and falls to be determined by the judge who hears the appeal. If that be so, and it seems to be, then there is no need for this question to be referred to this Court for decision. Indeed, that would be premature. [ 7 ] Second, even if Mr.

Justice Kyle should be thought to have conclusively determined the issue, I rather think that his decision to grant leave is interlocutory [3] and that his decision on this issue is incidental, within the contemplation of section 9(5) of The Court of Appeal Act, 2000 . In effect, this was raised as a threshold issue, quite apart from those centred on the provisions of section 45(2) (

a) and

(

b) of the Arbitration Act, 1992 , which contain the statutory criteria governing the exercise of the discretionary power to grant leave. It was also raised independently of the issues centred on the decision of the Board of Arbitration. If his decision in this regard be incidental, then the applicant’s right of appeal to this Court in relation thereto is preserved until the determination of the main issues in the appeal before the Court of Queen’s Bench. [ 8 ] Third, Mr. Justice Kyle is not to be seen as having granted leave to appeal on a specific ground or set of grounds. He simply granted leave to appeal.

Having regard for the provisions of section 45(2) of The Arbitration Act, 1992 , limiting the entitlement to appeal, if leave be granted, to “a question of law”, the Bank may only found its appeal on such grounds. Whether it does so, which is to say whether each of the grounds it relies upon before the judge who hears the appeal, raise only a question of law is for the judge to determine. In light of the express language of section 45(2) , we can be sure Mr.

Justice Kyle, in granting leave at large, did not purport to clothe the Bank with authority to appeal on any but a question of law. [ 9 ] In the light of these considerations, and on these understandings, I have decided to dismiss the application for leave to appeal to this Court. In the circumstances, I leave the costs of the application as costs in the cause as ultimately determined. [1] S.S. 2000, c. C-42.1 [2] S.S. 1992, c. A-24.1 [3] Had he denied leave to appeal his decision would likely have been final rather than interlocutory, as in Denison Mines Ltd . v.

Ontario Hydro (2001), 2001 CanLII 5681 (ON CA) , 56 O.R. (3d) 181 (Ont. C.A.) .