Docket: 1854 Robert Louis Joseph Stevenson, Stanley Patrick Stevenson v. Glenda Ann Carson in their representative capacities as Executors, 2011 SKCA 51

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 51 Date: 20110429 Between: Docket: 1854 Robert Louis Joseph Stevenson, Stanley Patrick Stevenson and Glenda Ann Carson in their representative capacities as Executors of the Estate of Helen Marion Stevenson (formerly Oleskiw), Deceased Appellants (Plaintiffs) - and - Bank of Montreal First Respondent (Defendant) - and - Canadian Linen & Uniform Service Ltd. Second Respondent (Defendant) Coram: Cameron, Lane and Richards JJ.A.

Counsel: E.F. Anthony Merchant, Q.C. for the Appellants (Plaintiffs) Ronald L. Miller, Q.C. for the First Respondent (Defendant) Ward K. Branch for the Second Respondent (Defendant) Appeal: From: 2009 SKQB 371 Heard: February 28, 2011 Disposition: Leave to appeal denied Written Reasons: April 29, 2011 By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Mr. Justice Cameron The Honourable Mr.

Justice Richards Lane J.A. [ 1 ] This is an appeal from a decision of a Queen’s Bench Chambers judge dismissing the appellants’ application to amend their statement of claim to convert the claim to a class action. The appellants further appeal the Chambers judge’s decision to strike out portions of an affidavit filed in support of their application. The respondents raise the threshold issue of whether the appellants require leave to appeal contending the decision was interlocutory and not final. I am satisfied the respondents are correct on this threshold issue and the appeal should be struck.

These are my reasons. [ 2 ] The matter has been before this Court on a prior occasion ( Stevenson Estate v. Bank of Montreal , 2009 SKCA 105 , 337 Sask. R. 203) and, at that time, the Court upheld a decision refusing to allow an amendment to the statement of claim on the basis the respondents would be prejudiced because of lengthy delay. This is a brief review by way of background. [ 3 ] The original plaintiff, Helen Marion Stevenson , was injured when, on December 31, 1999, she tripped on a mat at the front entrance of a branch of the Bank of Montreal.

Canadian Linen & Uniform Service Ltd. supplied the mat to the Bank. She commenced an action against both of those parties on March 15, 2001. Discoveries were completed in June of 2004. Helen Marion Stevenson passed away on September 3, 2004 and her children became her executors. Numerous applications followed but it is not necessary to review them for the purposes of this appeal. The action has proceeded through pleadings, discovery of documents, examinations for discovery, the aforementioned numerous interlocutory applications, and the earlier appeal.

The action is ready to proceed to pre-trial conference, the last step before trial. It is accepted that the action is at a late stage in the proceedings as noted by the Chambers judge. [ 4 ] It must be further noted The Class Actions Act , S.S. 2001, c. C-12.01 came into force on January 1, 2002. [ 5 ] Since the action was commenced in 2001, the application below was the third application to amend the statement of claim. The first application was consequential to the death of Marion Stevenson.

The second application, which was the subject of the aforementioned appeal, was an attempt by the appellants to add a new claim for punitive damages based on The Consumer Protection Act , S.S. 1996, c. C-30.1 and to add a third defendant. The Court noted that delay had characterized the appellants’ action from its inception. However, on that appeal, the threshold issue of whether leave to appeal was required because of the operation of s. 8(1) of The Court of Appeal Act, 2000 , S.S. 2000, c.

C-42.1 (the “ Act ”) was not raised by the respondents. [ 6 ] Section 8(1) provides: 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 of the court.

Subsection (2) does not apply to this appeal. [7] As stated above, the respondents now argue the decision denying the appellants’ application to amend is an interlocutory decisionand leave to appeal is required by operation of s. 8(1) and no such application for leave having been made, the appeal should be struck. [8] The respondents argue the relevant class action legislation does not create any substantive rights and the amendments sought areonly procedural in nature. They say the decision under appeal does not finally dispose of the rights of the parties and the decision isclearly interlocutory.

They further argue leave to appeal should not be granted nunc pro tunc as that order should be granted sparinglyso as not to defeat the object of s. 8 of the Act. In support of this latter argument, they rely on Grant v. Saskatchewan GovernmentInsurance, 2003 SKCA 17, 227 Sask. R. 316 and Holmes v. Jastek Master Builder 2004 Inc., 2008 SKCA 159, 314 Sask.

R. 267. [9] The appellants argue the decision was final in nature as it affects the rights of potential class members and, in the alternative, ifleave is required, they ask that leave to appeal be granted nunc pro tunc. [10] Former Chief Justice Bayda in Govan Local School Board v. Last Mountain School Division No. 29 (1991), (SKCA), 88 D.L.R. (4th) 658 (Sask. C.A.) at p. 675 said: … Where the order finally disposes of the rights of the parties it is appealable as a final order.

Where it does not finally dispose of theparties’ rights it is appealable as an interlocutory order. [11] The jurisprudence determining whether an order is final or interlocutory is extensive. The issue and jurisprudence were reviewedby Cameron J.A. in Silcorp Ltd. v. KJK Holdings Inc. (1992), (SK CA), 90 D.L.R. (4th) 488 (Sask. C.A.) and I referto other decisions of this Court including B.(

D) v. C.(M)., 2001 SKCA 9, [2001] 5 W.W.R. 617; Stadnyk v. Saskatchewan(Government), 2011 SKCA 30; and Rolls-Royce Canada Ltd. v. LaRonge Aviation Services Ltd. (1996), (SK CA),144 Sask. R. 226 (C.A.). In Rolls-Royce Canada, reference was made to Re BC Power Commission and Nanaimo Duncan Utilities Ltd., (BC CA), [1948] 1 W.W.R. 417 (B.C. C.A.) where Sloan C.J.B.C. said at p. 422: Does the judgment or order as made finally dispose of the rights of the parties? If it does then I think it ought to be treated as a finalorder; but if it does not it is then, in my opinion, an interlocutory order. (Bozson v.

Altrincham Urban Council (No.1), [1903] 1 K.B.547) [12] The Chambers judge noted the unique nature of pleading a class action and noted class actions are procedural in nature. TheSupreme Court of Canada confirmed their procedural nature in Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666: 17 The class action is nevertheless a procedural vehicle whose use neither modifies nor creates substantive rights (Malhab v.Métromédia C.M.R. Montréal inc., (QC CA), [2003] R.J.Q. 1011 (C.A.), at paras. 57-58; Tremaine v. A.H. RobinsCanada Inc., (QC CA), [1990] R.D.J. 500 (C.A.), at p. 507; Y.

Lauzon, Le recours collectif (2001), at pp. 5 and 9). Itcannot serve as a basis for legal proceedings if the various claims it covers, taken individually, would not do so: D. Ferland and B.Emery, eds., Précis de procédure civile du Québec (4th ed. 2003), vol. 2, at pp. 876-77. [13] This position was restated by the Court in Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, [2007] 2 S.C.R. 801: 226 In this case, there is no indication of a legislative intent to give the rules in Book IX on "Class Action" of the C.C.P. public orderstatus.

While art. 1051 C.C.P. states that the provisions of the other books of the C.C.P. that are inconsistent with the rules of Book IXdo not apply, this rule merely intends to remedy practical difficulties in applying procedures that would be unfeasible in the class actioncontext, such as strictly applying the rules on cross-claims and joinder. It does not elevate the right to institute class actions to the statusof a rule of public order that cannot be waived.

Furthermore, this Court's recent decision in Bisaillon, is clear authority that the classaction, while having an important social dimension, is only a "procedural vehicle whose use neither modifies nor creates substantiverights" and can generally be waived (para. 17). It is the legislature, and not the courts, that can create exceptions to this. [14] In the matter before us, it is clear the refusal to allow the proposed amendment had no effect on the rights of the appellants.

Theirclaim in negligence which existed before the application to amend is precisely the same claim which exists after the amendment wasrefused. The only individuals whose rights might arguably have been affected by the refusal to amend are the potential members of theclass on which behalf the appellants sought to act as a representative plaintiff. However, those individuals remain free to sue therespondents in precisely the same way as they could before the amendment was refused. Thus, their rights have not been disposed ofeither.

[ 15 ] The appellants take issue with this and suggest it is not necessarily true of those potential class members whose claims arose long enough in the past that they would be statute barred if an action was commenced today.

In this regard, it points to s. 43 of The Class Actions Act and says this provision has the effect of suspending limitation periods affecting class members in such a way that, if the amendment was allowed, individuals whose claims would otherwise be statute barred would nonetheless be able to recover against the respondents by way of their participation in the class action. [ 16 ] I am not persuaded the appellants can succeed on this line of argument. It involves an aggressive reading of s. 43 which may or may not be correct.

More fundamentally, it is entirely speculative in that the argument simply assumes there will be individuals who may wish to participate in the class action and whose claims would otherwise be out of time. None of these individuals are parties to these proceedings or before the Court in any way. As a result, I do not see how the mere possibility of their existence can be determinative of this appeal. [ 17 ] Nor am I persuaded that leave to appeal should be granted nunc pro tunc . To grant such an order in these circumstances would clearly defeat the object of s. 8 of the Act as argued by the respondents.

The appeal is therefore struck with costs to each of the respondents in the usual manner. DATED at the City of Regina, in the Province of Saskatchewan, this 29 th day of April, A.D. 2011. “LANE J.A.” LANE J.A. I concur “CAMERON J.A.” CAMERON J.A. I concur “RICHARDS J.A.” RICHARDS J.A.