Docket: 1952 Tim Selenski v. The Green Canvas Ltd., 2011 SKCA 18

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 18 Date: 20110203 Between: Docket: 1952 Tim Selenski and The Green Canvas Ltd. Appellants - and - Rod Kempa, 101029792 Saskatchewan Ltd., Dr. K. Govender, Cathedral Medical Professional Corporation Respondents Coram: Klebuc C.J.S., Lane and Caldwell JJ.A. Counsel: Tim Selenski, on his own behalf Alisha Yashcheshen, a representative of The Green Canvas Ltd. Robert D. Skinner, for Rod Kempa and 101029792 Saskatchewan Ltd. Kenneth J. Karwandy, for Dr. K. Govender and Cathedral Medical

Professional Corporation Appeal: From: Q.B.G. 114 of 2010, J.C. Regina Heard: February 3, 2011 Disposition: Dismissed (orally) Written Reasons: February 10, 2011 By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Chief Justice Klebuc The Honourable Mr. Justice Lane Caldwell J.A. [ 1 ] Tim Selenski, on his own behalf, and Alisha Yashcheshen, on behalf of The Green Canvas Ltd., appealed from the May 5, 2010 judgment of the Court of Queen’s Bench under which McMurtry J. ordered the issuance of a Writ of Possession (pursuant to s. 50 of The Landlord and Tenant Act, R.S.S. 1978, c.

L-6) with respect to certain commercial space leased by the appellants, ordered the immediate removal of any interests registered by the appellants against title to such leased property, and ordered that the appellants pay costs to the respondents. The appeal was dismissed with written reasons to follow.

These are those reasons. [ 2 ] In the course of her judgment, McMurtry J. found the respondents had established that the appellants had held a month-to-month lease which had been properly terminated, and had received written notice to surrender possession, but had refused to do so. [ 3 ] This appeal is the second appeal before this Court involving the same litigants and subject matter.

In each case, the court below made the same findings as to the nature of the tenancy and its termination. [ 4 ] In Court of Appeal Chambers, on the appellants’ successful application for an extension of time to appeal the decision of McMurtry J., the Chambers judge cautioned the appellants that this appeal would not be viable if they were unsuccessful on their first appeal. In response, the appellants advised the Chambers judge that they would not pursue this appeal in that event (see: 2010 SKCA 87 ).

This Court subsequently dismissed that first appeal and thereby affirmed that the appellants had held a month-to-month lease and that the lease had been properly terminated (see: 2010 SKCA 141 ). The first judgment, upheld on appeal, also ordered the discharge of all interests registered by the appellants against title to the leased property. We are bound by that decision. [ 5 ] Notwithstanding the tangential arguments made by the appellants in this appeal, the issue before this Court was simply whether the Writ of Possession had properly issued upon the application of the respondents.

In that respect, we are all agreed that McMurtry J. properly found on the evidence before her that: (

i) the lease in question was a month-to-month lease; (ii) the lease had been properly terminated; (iii) the appellants had received written notice to surrender possession; and (iv) the appellants had refused to surrender possession. We are further satisfied that McMurtry J. made no error in her analysis of the applicable law or in her application of the law to the facts. In other words, the order issuing the Writ of Possession was properly made. [ 6 ] We do note, however, that McMurtry J.’s findings and orders were made while the appeal of the first judgment was still pending.

This, of course, was not in accordance with the proper progression of court proceedings. Furthermore, the discharge of interests registered by the appellants against title to the leased property was not a matter properly before the judge in a landlord and tenant proceeding.

Regardless, these incongruities, while to be assiduously avoided in the future, were procedural in nature or could not otherwise have given rise to substantive rights as against the respondents and, given the facts and this Court’s decision in 2010 SKCA 141 , did not have, and could not have had, an effect on the inevitable outcome of this case. [ 7 ] We again point out that this appeal dealt with the issuance of the Writ of Possession only and in no way prejudices any tangential claims the appellants may otherwise have as against the respondents. [ 8 ] We therefore dismissed the appeal with costs against the appellants, which we fixed at $2,000.00 for each counsel for the

respondents, to be paid forthwith.