Winnipeg Airports Authority Inc. v. Date:, 2011 MBCA 51

Citation: Winnipeg Airports Authority Inc. v. Date: 20110616 EllisDon Corp., 2011 MBCA 51 Docket: AI 11-30-07499 IN THE COURT OF APPEAL OF MANITOBA B E T W E E N : WINNIPEG AIRPORTS AUTHORITY INC. ) S. J. Hammel and ) D. A. Chicoine (Appellant) Applicant ) for the Applicant ) ) P. D. Rasmussen and - and - ) J. G.

Edmond ) for the Respondent ) ELLISDON CORPORATION ) Chambers motion heard: ) April 14, 2011 (Respondent) Respondent ) ) Decision pronounced: ) June 16, 2011 SCOTT C.J.M. 1 The applicant (WAA) applies for leave to appeal from a Court of Queen’s Bench judgment which affirmed the decision of Arbitrator Robert A. Dewar, as he then was. The arbitration award was appealed to the Queen’s Bench pursuant to s. 44(2) of The Arbitration Act , C.C.S.M., c. A120 (the Act ). This provision authorizes an appeal to the Queen’s Bench on a question of law with leave.

WAA now applies for leave to appeal pursuant to s. 48 of the Act , which permits a further appeal to this court. While s. 48 of the Act , unlike s. 44(2) , does not state that leave can only be granted on a question of law alone, it is common ground that such is the case, in which event this court’s traditional criteria for granting leave to appeal on a question of law apply, namely:

(1) Is the question on appeal one of law alone?

(2) Does the question on appeal have a reasonable chance of success?

(3) Is the question on appeal of sufficient importance to warrant consideration by the province’s highest court? See Pelchat v. Manitoba Public Insurance Corp. , 2006 MBCA 90 , 40 C.C.L.I. (4th) 46, and Shier v. Manitoba Public Insurance Corp. , 2007 MBCA 76 , 51 C.C.L.I. (4th) 169. 2 The essential facts are not in dispute. WAA and the respondent (EllisDon) entered into a major construction contract to build a new terminal building and related infrastructure at the Winnipeg James Armstrong Richardson International Airport.

One of the early stages of the construction of the terminal building involved substantial temporary excavation work to permit the placement of piles, caissons and foundation of the building. 3 These excavations were planned to be approximately four metres deep; EllisDon intended to slope the sides of the excavation utilizing a 1:1 ratio (45-degree slope). 4 Shortly after the excavation began, EllisDon unexpectedly experienced significant difficulties with the stability of the excavation slopes; ultimately, it was obliged to design and implement a sheet-piling support structure.

It seeks to recover from WAA the extra costs, amounting to many millions of dollars, associated with the stabilization of the various excavations. 5 Pursuant to the provisions of the construction contract, the issue of whether EllisDon’s planned construction method was prescribed or permitted under the construction contract was referred to arbitration, with the question of liability to be determined first and the damages, if need be, to be resolved at a later date. 6 The central issue before the arbitrator concerned the

interpretation of s. 26.15 and s. 26.16 of the Workplace Safety and

Health Regulation , Man. Reg. 217/2006 (the regulation). In a nutshell, the narrow question then and now is whether the regulation required EllisDon to install a support structure that was designed by a professional engineer in all excavations that exceeded three metres, regardless of the type or slope of the excavation. 7 The arbitrator specifically found that EllisDon relied on engineering drawings and soil reports that were part of the tender package in coming to the conclusion that 1:1 slopes in the sides of the excavation would be effective.

To put the regulation into context, the arbitrator also had regard to a guideline prepared by the provincial Workplace Safety and Health Division, which advised that 1:1 slopes were safe for excavations beyond three metres. 8 The arbitrator eventually concluded, and the Queen’s Bench judge agreed, that the regulation did not require EllisDon to install support structures if the excavation was sloped at an angle not greater than 45 degrees.

Since EllisDon had therefore complied with the legal and contractual requirements with respect to construction of the terminal building, it was entitled to be paid extra for its work in installing the support structures. The Relevant Provisions of the Regulation 9 At the relevant time, ss. 26.15 and 26.16 of the regulation read, in part, as follows: Support structures 26.15(1) If a worker is required or permitted to enter an excavation that is more than 1.5 m deep, an employer must ensure that a support structure is installed in the excavation, unless (

a) the excavation is cut in solid rock or other equally stable material, excluding frozen ground; (

b) the walls of the excavation are sloped at an angle not greater than 45 º measured from the horizontal plane; or (

c) a combination of slope and vertical face is used for stabilizing the walls of the excavation where the vertical face is not more than one metre high and the remaining walls are sloped at an angle not greater than 45 º measured from the horizontal plane. 26.15(2) If shoring is used in an open excavation that is more than 1.5 m deep but no more than 4.5 m deep, the employer must ensure that the shoring is constructed of components that meet the minimum requirements for the applicable soil conditions set out in the

Schedule to this Part. Design by professional engineer 26.16(1) If a worker is required or permitted to enter an excavation that is more than 3 m deep, an employer must ensure that a support structure is installed in the excavation that is designed and certified by a professional engineer and constructed, installed, used, maintained and dismantled in accordance with the professional engineer’s specifications. 10 With respect to the application of these provisions, WAA argues that the arbitrator and the Queen’s Bench judge erred in their

interpretation of the combined provisions of the regulation. Simply stated, counsel asserts that s. 26.16(1) is a stand-alone provision which requires that every excavation deeper than three metres requires a professionally engineered support structure to be installed in the excavation. For excavations between 1.5 and three metres, s. 26.15 applies – thus permitting a 1:1 slope – but if the excavation is greater than three metres, s. 26.15 is simply not applicable. The

interpretation accepted by the arbitrator and the Queen’s Bench judge wrongly makes applicable to all excavations, regardless of the depth, the exceptions set out in s. 26.15(1). 11 On the other hand, EllisDon says that, on a plain reading of the regulation, a support system is not mandated for an excavation deeper than 1.5 metres if any of the exceptions in s. 26.15(1)(a), (

b) or (

c) apply. WAA’s

interpretation, EllisDon argues, results in s. 26.16(1) being in conflict with s. 26.15(2), the latter standing for the proposition that support is not mandated if the depth in the excavation is no more than 4.5 metres. Only if the exceptions found in s. 26.15(1) are not applicable is a support structure required. In that event, a support structure must be designed and certified by a professional engineer if the excavation exceeds three metres. The

interpretation contended for by WAA results, counsel says, in conflict or an absurdity between s. 26.15 and s. 26.16 , contrary to the modern approach to statutory

interpretation. Should Leave to Appeal be Granted? 12 As we have seen, there are three criteria that must be satisfied before leave to appeal will be granted in circumstances such as those before me. The criteria, earlier referred to, are extensively reviewed and explained in the recent decision of Rolling River School Division v. Rolling River Teachers’ Association of the Manitoba Teachers’ Society et al. , 2009 MBCA 38 , 236 Man.R. (2d) 249, where a leave application, like this one under s. 48 of the Act , was being considered. The chambers judge wrote (at paras. 11-13): Unlike s. 44(2) of the Arbitration Act , this

section does not state the criteria that must be met before leave to appeal will be granted. In my view, it cannot be meant to be easier to get leave from the highest court in the province than it would be to get permission to appeal the arbitration award to a judge of the Court of Queen’s Bench under s. 44 of the Arbitration Act . Indeed, there is good reason for a higher threshold: the parties have already exercised their right of appeal. The arbitration award has already been reviewed by a judge of the Court of Queen’s Bench. That court is the primary appellate court to review arbitration award matters.

Here, the request for leave to our court could entail a second appeal. That is why a higher threshold is called for (see Iness v. Canada Mortgage and Housing Corp.

et al. (2002), (ON CA), 166 O.A.C. 38; 220 D.L.R. (4th) 682 (C.A.) (in Chambers)). Therefore, the criteria to be met before leave is granted are, first, the question must be a pure question of law or jurisdiction. Unless alegal question can be identified without the court involving itself in reweighing or reconsidering factual issues, leave to appeal will not begranted (see 3391397 Manitoba Ltd. v. Winnipeg City Assessor (1998), (MB CA), 126 Man.R. (2d) 63; 167W.A.C. 63 (C.A.) (in Chambers)). Second, that question must have arguable merit in the sense that it has a reasonable prospect ofsuccess.

Third, it must involve a matter of public interest that is of sufficient importance to warrant consideration by the province’shighest court (see Manitoba Housing Authority v. Bertram (2006), 2006 MBCA 49 , 205 Man.R. (2d) 61; 375 W.A.C. 61;2006 MBCA 49 (in Chambers), and Pelchat v. Manitoba Public Insurance Corp. et al., [2006] Man.R. (2d) Uned. 60; 2006 MBCA 90, 40 C.C.L.I. (4th) 46; 2006 MBCA 90 (in Chambers)). Recognizing this very high threshold, leave to appeal should be granted sparingly, yet judiciously. Usually, all of the above criteria mustbe met.

However, from time to time, an exceptional set of circumstances may present itself where it may be judicious to grant leaveeven though one or more of the three criteria are not met. Such a circumstance is when the denial of leave would result in an injustice(see Carpenter Fishing Corp. et al. v. Canada, [2002] B.C.A.C. Uned. 47; 2002 BCCA 104 (in Chambers), and 4784881 ManitobaLtd. v. Khidir (2008), 2008 MBCA 49 , 228 Man.R. (2d) 81; 427 W.A.C. 81; 2008 MBCA 49 (in Chambers)). See also, Pelchat and Shier. 13 With this decision in mind, I now turn to consideration of the three criteria.

(1) Is the issue upon which leave is sought a question of law? 14 The answer to this query is clearly in the affirmative, as acknowledged by counsel for both parties. Statutory

interpretationis always a question of law (see Dias v. Manitoba Public Insurance Corp., 2005 MBCA 60 at para. 6, 23 C.C.L.I. (4th) 164).

(2) Does the question have arguable merit; that is to say, is there a reasonable prospect of success? 15 On this question, the parties firmly disagree. 16 The precise question that must be addressed in answering this criterion has been described by this court and others in anumber of similar ways. For example, in Lejins v. Manitoba Public Insurance Corp., 2003 MBCA 95, 50 C.C.L.I. (3d) 1, the test wasexpressed as follows (at para. 11): “An arguable case of substance” denotes a case which has a reasonable prospect of success.

Leave to appeal is required by thelegislation not only to ensure that a genuine point of law is raised, but also to serve “as a check to unnecessary or frivolous appeals” (perLord Halsbury L.C. in Lane v. Esdaile, [1891] A.C. 210 (U.K. H.L.) at 212). 17 In A B Kung Ltd. v. Augusto, 2009 MBCA 66, MacInnes J.A. wrote “the applicant must have an arguable case on themerits, one which has a reasonable prospect of success” (at para. 15). 18 It is helpful to consider how other jurisdictions in Canada have dealt with this issue. 19 According to Donald J.M.

Brown, Q.C., Civil Appeals, looseleaf (Toronto: Canvasback Publishing Inc., 2009) vol. 2, ch. 4,while there are references in some Ontario authorities, when applying the second criterion, to whether there is reason to doubt thecorrectness of the award, the preferred and potentially broader test in Canada is whether the point in issue is “reasonably arguable” (atpara. 4:8230): Satisfying the statutory criteria of importance or significance to the parties does not automatically mean that leave will be granted.

Rather, those criteria are conditions precedent to the court’s exercise of its discretion to grant or deny leave, which will bring into playthe usual discretionary bars, any indication by the parties as to whether an appeal was intended, and considerations of the “seriousness”of the alleged error.

And although this latter consideration has been expressed in terms of reason to doubt the correctness of the award,the generally-held view is that it is sufficient that the point be “reasonably arguable.” …. 20 And further (at para. 4:3541): To have “good reason to doubt the correctness” of a decision does not, however, require that the judge hearing the motion be persuadedthat the order in question is wrong, or even probably wrong.

Rather, all that need be shown is that the order is open to very seriousdebate, or in other words, that it raises an “arguable” issue. 21 While this formulation of the test arguably sets the hurdle for the applicant a bit lower than some of the other expressions ofthe criterion, in the end, they all, it seems to me, amount to the same thing, namely, whether there is a reasonable prospect that the appealwill succeed.

22 WAA argues, in keeping with the modern approach to statutory

interpretation (see Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, and Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601), that the onlyviable

interpretation is that every excavation deeper than three metres requires an engineer-certified support structure. Support for thisinterpretation is to be found, WAA argues, in a very recent amendment to the regulation on February 1, 2011 (likely motivated by thecircumstances of this dispute), which, it says, confirms its view of the meaning and intent of the language used in the earlier versionbefore us. The amendment, while not of great weight WAA concedes, is useful evidence of prior legislative intention. 23 Not so, says EllisDon. Section 48(2) of The

Interpretation Act, C.C.S.M., c. I80, is a complete answer to WAA’s relianceon the after-the-fact amendment of the relevant regulation since it clearly provides that: Amendment does not imply a change in the law 48(2) The amendment of

an Act or regulation does not imply a declaration that the law under that Act or regulation before theamendment was different – or was considered by the Legislature or other body or person who made it to have been different – from thelaw under the amendment. 24 EllisDon argues that WAA has failed to provide any basis to conclude that the arbitrator and the Queen’s Bench judge werewrong in their

interpretation of the regulation. It therefore says that the

interpretation accepted by the Queen’s Bench judge, whichmakes the exceptions contained in s. 26.15(1) of the regulation applicable to all excavations, is not only logical, but the onlyinterpretation that avoids conflict or an absurdity. The arbitrator and the Queen’s Bench judge were entirely correct in having regard todepartmental guidelines (supportive of EllisDon’s

interpretation) which evidenced how the division interpreted and applied theregulation with respect to this particular project (see Francis v. Baker, (SCC), [1999] 3 S.C.R. 250, and Nowegijick v.The Queen, (SCC), [1983] 1 S.C.R. 29). This extrinsic evidence, in particular the department’s administrative approvalof the methodology that EllisDon proposed to use (the 1:1 slopes), was described by the Queen’s Bench judge as “one of the mostsignificant factors which influenced the arbitrator in his

interpretation of the current regulation” (at para. 36). And, as noted inNowegijick (at p. 37): Administrative policy and

interpretation are not determinative but are entitled to weight and can be an “important factor” in case of doubtabout the meaning of legislation: …. …. What weight should be given is, of course, another matter. 25 Does WAA have a reasonable prospect of success (are the points in issue reasonably arguable) with respect to theinterpretation it seeks of s. 26.15 and s. 26.16 of the regulation? Whatever different phrasing one wishes to use to explain the test, itamounts, in the end, simply to this, “Is there a reasonable prospect that the appeal will succeed?” 26 In this instance, I answer this question in the affirmative.

(3) Is the question of law of sufficient importance to engage the province’s highest court? 27 To answer this issue, a detailed examination of authorities from this court and others that have grappled with this moreelastic concept is required.

Indeed, it is the key issue on this application. 28 WAA advances three reasons why the application is of sufficient importance for leave to be granted: (1) resolution of the legal issue will be largely determinative of the proceedings; (2) the project, being a significant public undertaking, is a matter of public interest; and (3) although the relevant regulation was amended in February 2011, there may well be other similar claims not yet resolved. 29 WAA places heavy reliance on Herda v.

Manitoba Public Insurance Corp., 2004 MBCA 57, 10 C.C.L.I. (4th) 186, wherethe chambers judge granted leave to appeal on the basis that the answer to the question posed “could well be of significance to the entiredetermination, review and appeal process, and, therefore, the matter merits the attention of this court” (at para. 14).

Should WAAultimately be successful before this court, it says the legal position of the parties will have been effectively established. 30 WAA also asserts that the development of the new terminal building, being a publicly funded project on public land, movesthe issue out of the realm of the purely private interests of the parties to one of public importance. This is especially so, counsel says,since the public will ultimately bear the cost of any award made.

WAA also points out that even where the issue is one where only theinterests of the parties are significantly affected, leave to appeal has, on occasion, been granted. See Mockford v. Manitoba PublicInsurance Corp., 2003 MBCA 14, where the chambers judge reasoned (at para. 15): …. Because of the significance of this issue to the applicant’s future income, I am of the view these questions of law are of sufficientimportance to justify a hearing before this court. 31 EllisDon’s emphatic response to the question whether the legal question is determinative of the issue between the parties isthat it is not.

This is because, counsel says, the true impact of this court’s decision will still need to be determined in a further arbitration

hearing. 32 Next, counsel for EllisDon cites Pelchat, which, in turn, quotes from Wuziuk v. Director of Social Services (No. 2) (1979), (MB CA), 3 Man.R. (2d) 81 (C.A.) (Pelchat, at para. 2): 2. …. “The issue must be one of importance; not just for the immediate case, but in determining other similar disputes whichare apt to arise in [the] future” (Wuziuk v. Manitoba (Director of Social Services) (No. 2) (1979), (MB CA), 3 Man.R.(2d) 81 (Man. C.A.), at para. 7).

Counsel for EllisDon observes that the reasoning in Pelchat (Wuziuk), as well as the decision in Shier, seem to be at odds with thereasoning in Herda, as earlier quoted (see para. 29 above), with its emphasis on the importance of the issue to that particular case. 33 With respect to whether we are dealing with a “public project,” EllisDon notes that WAA is not a government agency;rather, it is engaged in an ordinary commercial endeavour at arms-length to government.

The fact that it may be funded in large measureby special fee arrangements ultimately payable by the public is not determinative. 34 In Director of Employment Standards Division (Man.) v. Shier et al., 2007 MBCA 63, 214 Man.R. (2d) 189, the regulationsunder review had ceased to exist many years before the application for leave was made. Counsel submits that the chambers judge wasappropriately skeptical – as, it is argued, I should be here – when she was asked to simply assume that there were “many cases in thepipeline to which the old legislation would still apply” (at para. 34).

EllisDon notes that there is no evidence before this court of anyother similar disputes “in the pipeline.” The chambers judge denied the application for leave to appeal in terms particularly relevant,EllisDon says, to the case at bar (at paras. 33, 36): Of key importance to me in my decision is this case’s lack of precedential value. …. I appreciate the argument of the Director that the issues are still of importance to the 288 employees involved, that the monies involvedin this matter are not of a trifling nature and that the Board was not unanimous in its finding.

With respect, issues in any litigation arealways important to the parties involved, regardless of the dollar amount at stake, but importance to the parties in a case is not, in and ofitself, sufficient to attract the attention and resources of this court. 35 Finally, WAA’s attempt to add to the record by filing affidavit material before this court should be summarily rejected (seePelchat, at para. 18). 36 The important issue raised by this application is the precise characterization of the test for the third criterion and therelevance of any “public interest” in the proceedings.

Does the mere fact that the airport terminal project is a public project (if it is)move the issue out of the realm of the purely private interests of the individual parties and satisfy the “is it of sufficient importance”criterion? 37 I am attracted to EllisDon’s argument that no matter how interested the local “public” may generally be in the well-knowncontroversy surrounding the extensive delays in the completion of the new airport terminal facility, we are dealing with what isessentially a private commercial dispute with little, if any, precedential value beyond the peculiar facts of this case.

Nonetheless, as wehave seen, the traditional criteria have not always prevented the court from granting leave where, as noted in Rolling River SchoolDivision, the chambers judge senses that an injustice might otherwise occur, or given its importance to the parties (see Herda andMockford). 38 It will be recalled that in Rolling River School Division, it was said that the third criterion “must involve a matter of publicinterest that is of sufficient importance” (emphasis added) (at para. 12). This is not the first reference to a public component within thiscriterion; in Jeffrys v.

Veenstra, 2004 MBCA 6, the chambers judge noted “the question must also be one of sufficient public importanceto warrant the attention of this court” (at para. 2), citing, inter alia, Wuziuk. To the same effect, see Manitoba Housing Authority v.Bertram, 2006 MBCA 49, 205 Man.R. (2d) 61. 39 Concerning this third criterion, “Is the question of sufficient importance?,” Brown writes (at para. 4:3231): The caselaw is replete with references to the “importance” of the point or points upon which the application for leave is based.

It issometimes stated in terms of importance to the public; in other contexts, it is importance to the practice. Or it may be viewed in terms ofits future importance to the parties.

In each such instance, however expressed, the court is seeking to determines [sic] whether anappellate court decision on the point is desirable for purposes of “precedent.” In other words, the appellate court is asking itself whetherthe issue is one that it ought to hear in furtherance of its “law-making” role. 40 Brown observes that where the order in question does not dispose of the issue, the odds that leave to appeal will be grantedare not high (at para. 4:3244): Where the order in question does not dispose of the issue on appeal, however, it will be much less likely to be viewed as of sufficientimportance to the parties to warrant leave to appeal, and will be more readily outweighed by possible prejudice or hindrance to theproceedings.

For example, leave has rarely been granted from a decision dismissing a motion for a

summary trial, or in connection withinterim custody or support orders. Similarly, where the issue is more appropriately the subject of a trial, leave will likely be refused.

41 It would appear in Ontario that the “is it of sufficient importance” criterion is applied somewhat rigidly, but, in some instances, there is a “public importance” component to the criterion, in that the test is construed not only with respect to the importance of the issue to the litigants, but beyond the dispute between the litigants to the public at large. For example, “importance” has been held to include public interest when a court is asked to order expenditure of public money (see Burrows (Litigation guardian of) v. Ontario , [2004] O.J.

No. 3217 at para. 29 (S.C.J.) (QL) (leave granted to appeal interim mandatory order to maintain benefits for autistic children)). 42 Brown notes however that in a number of our Canadian provinces, including Manitoba, leave to appeal criteria do not usually include a “public importance” component (at para. 4:8221): Typically, the leave to appeal criteria are conjunctive and … do not include “public importance” as a consideration. Rather, the criteria address the consequences of an award on the parties, both in the particular case and for the future. ….

Even then, some courts have apparently included public importance as a relevant consideration in exercising the court’s residual jurisdiction, although it is often not specifically adverted to. 43 “[T]he net effect is that an appeal will not lie solely to correct an error of law application. … [G]enerally leave will be granted only in circumstances where the judge is of the view that clarification of the law is desirable” (Brown, at para. 4:3551).

Nonetheless, as we have seen, there are examples of leave being granted where the court simply had doubts about the correctness of the judgment in question (at para. 4:3552): Given the impact of some orders for interim relief, such as an interlocutory injunction, an order for payment of a large amount of money into court or as security for costs, a stay of proceedings, or an order providing interim relief involving the interests of children, some judges have been inclined to find that the “importance” test has been met when they have doubts about the correctness of the order in question. 44 In my opinion, the question of “public interest,” looked at in its most general sense, may be a factor to be considered in determining whether the matter upon which leave is being sought is of sufficient importance to warrant consideration by the court.

It all depends on the particular circumstances of the proposed appeal. In this instance, as in Rolling River School Division , there has already been an appeal to a judge of the Queen’s Bench on a question of law; this is a reality that needs to be taken into account. While there will be a variety of factors that this court, and others, may need to take into account from time to time when considering the often critical third criterion, none should be adopted as if they were part of a code or mandatory checklist. As the chambers judge in Director of Employment Standards Division ( Man. ) v.

Shier et al. pointed out, “[t]he granting of leave is discretionary. …. What will engage the attention of this court? No full answer can or should be given to that question given the multitude of circumstances that might arise in the future” (at paras. 31-32). 45 The leading authority from this court, Wuziuk , was decided over 30 years ago and in its essence has stood the test of time.

While the various factors that may be relevant in the particular circumstances are of obvious importance, ultimately, the chambers judge, at this final stage, should not be shackled by rigid or mandatory criteria. 46 This includes, in my opinion, the reference in the second part of Wuziuk to the importance of the issue extending “not just for the immediate case, but … other similar disputes which are apt to arise in [the] future” (at para. 7).

While this is a striking example of a factor that might ordinarily be decisive in deciding the importance of the issue in question, it is nonetheless just that – an example; it does not denigrate from the strength of the Wuziuk definition, namely, its generality. 47 This conclusion, which, in my view, simply affirms our existing jurisprudence, maintains the court’s ability to give an application for leave one last look to consider whether, in all the circumstances, the justice of the case requires that leave be given.

In my opinion, this is as it should be. 48 To summarize, the existing criteria for the granting of leave to appeal by this court can be succinctly stated as follows:

(1) Is the question upon which leave is sought one of law alone?

(2) Is there a reasonable prospect that the appeal will succeed?

(3) Is the question of sufficient importance to warrant consideration by the province’s highest court? 49 In this instance, I would answer the last question in the negative. The fact that a great deal of money is involved in the dispute and that there is considerable public curiosity about it does not cross the “is it of sufficient importance” threshold. In the end, this is simply a conventional commercial dispute that has already been reviewed by an experienced arbitrator and a Queen’s Bench judge. 50 The application for leave to appeal is dismissed with costs. ____________________________ C.J.M.