Pimicikamak et al v Manitoba et al, 2016 MBCA 106

Citation: Pimicikamak et al v Manitoba et al, 2016 MBCA 106 Date: 20161102 Docket: AI16-30-08671 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : PIMICIKAMAK and THE CROSS LAKE ) C. Guirguis BAND OF INDIANS ) for the Applicants ) (Applicants) Applicants ) D. G. Guénette and ) S. Bahir ) for the Respondent - and - ) Her Majesty the Queen ) in Right of the Province ) of Manitoba HER MAJESTY THE QUEEN IN RIGHT ) OF MANITOBA and THE MANITOBA ) M. L. Grande HYDRO-ELECTRIC BOARD ) for the Respondent ) The Manitoba Hydro- ) Electric Board (Respondents) Respondents ) ) J. G.

Collins ) for the Respondent - and - ) The Incorporated ) Community of Cross ) Lake THE INCORPORATED COMMUNITY ) OF CROSS LAKE ) Chambers motion heard: ) October 20, 2016 ) (Intervener) Respondent ) Decision pronounced: ) November 2, 2016 BURNETT JA [ 1 ] The applicants seek an order extending the time for filing a notice of appeal and, if granted, a further order consolidating the appeal which they propose to file with a pending appeal.

Both orders are opposed by the respondents and the intervener. [ 2 ] On July 8, 2014, the application judge in the Court below (the application judge) delivered reasons for his preliminary decision (the preliminary decision) to strike, among other things, 11 affidavits from the evidentiary record. An order reflecting the preliminary decision was filed April 1, 2015. Thereafter, on June 21, 2016, the application judge delivered reasons for his final decision (the final decision) in which he dismissed the application for judicial review.

An order reflecting the final decision was filed August 15, 2016. [ 3 ] No appeal was taken from the preliminary decision. [ 4 ] A notice of appeal from the final decision (the pending appeal) was filed on September 13, 2016, within the time requirements of r 11(1) of the Manitoba, Court of Appeal Rules , Man Reg 555/88R.

The first ground of appeal in that notice of appeal states that: The [application judge] erred in his decision to exclude evidence that is necessary, relevant and material in a preliminary determination (pronounced on July 8, 2014 and filed on April 1, 2015) forming part of the said judgement [ sic ], to strike 11 affidavits of the Appellants in their entirety. . . . The decision to exclude and the subsequent failure to consider necessary, relevant and material evidence is an error

of law, and is reviewable on a correctness standard. [5] The applicants wish to file a second notice of appeal in relation to the preliminary decision.

In their writtensubmission, the applicants say: The question that the Court must answer is whether it is appropriate to order an extension of time to allow the Applicants to file aseparate Notice of Appeal with respect to the [preliminary decision]. [6] In my view, the answer to that question is no. [7] The parties agree that the test to be applied when deciding whether to extend the time to appeal is set out in KildonanVentures Ltd v MacKenzie, 2006 MBCA 52, 205 ManR (2d) 114 (at paras 14-15): Three criteria must normally be satisfied before an extension of time for the filing of a notice of appeal, or, as in this case, a notice ofmotion seeking leave to appeal, will be granted: 1. the applicant must demonstrate it had a continuous intention to seek leave to appeal from a time within the period when the leavemotion should have been filed; i.e., within 30 days of the Board’s orders; 2. the applicant must offer a reasonable explanation for the delay; and 3. the applicant must establish that it has an arguable ground of appeal.

See, e.g. Elias v. Wolf (2004), 2004 MBCA 99 , 190 Man.R. (2d) 40; 335 W.A.C. 40; 2004 MBCA 99, Pelisek v. Pelisek(2003), 2003 MBCA 55 , 173 Man.R. (2d) 192; 293 W.A.C. 192; 2003 MBCA 55, Bohemier et al. v. CIBC Mortgages Inc.(2001), 2001 MBCA 161 , 160 Man.R. (2d) 39; 262 W.A.C. 39; 2001 MBCA 161. See also Hunter v. Hunter (2000), 2000MBCA 134 , 150 Man.R. (2d) 291; 230 W.A.C. 291; 2000 MBCA 134, where Scott, C.J.M., said, inter alia, that the applicantfor an extension of time must also establish “that it is right and just in all of the circumstances that time ... be extended” (at para. 6).

These and other decisions of this Court suggest that consideration should also be given as to whether any prejudice suffered by the otherparty can be addressed if the extension is granted (see, for example, Zalizniak v Zalizniak, 2006 MBCA 161 at para 22, 212 ManR (2d)114). [8] I will briefly address each of the criteria. [9] In this case, the first two criteria, a continuous intention to appeal and a reasonable explanation for the delay, areinterconnected.

The applicants submit that their intent was always to appeal the preliminary decision when they received the finaldecision, that is to say, to appeal the preliminary decision with the final decision. According to the applicants, this intention rests uponjurisprudence from this Court and others which discourages the appeal of preliminary and interim orders until a final determination ismade.

In this regard, reference was made to the decisions in Martin v Orris, 2010 MBCA 59, 255 ManR (2d) 126; Mercury v Manitoba(Minister of Government Services) (1995), (MB CA), 102 ManR (2d) 280 (CA); and Wing Construction Ltd et al vSakgeeng First Nation, 2004 MBCA 94. [10] The respondents and intervener correctly observe that the applicants have provided no evidence of a continuousintention to appeal. They also say that an intention to appeal should not be imputed. While that might be so, in my view, the applicantshave provided a reasonable explanation for the delay.

In Mercury, this Court concluded that, “The longstanding and eminently sensiblepractice is that rulings made in the course of a trial should not be the subject of separate appeals” (at para 5).

In that decision, Philp JAnoted that the practice was explained in Newterm Ltd v St John’s (City) (1988), (NL CA), 74 Nfld & PEIR 328 (NfldCA), where Goodridge CJN said (at paras 36-37): The accepted practice is for the unsuccessful party in the trial process to appeal to the Court of Appeal from the adverse decision and toraise as grounds for appeal the rulings made during the course of the trial by the trial judge which the appellant considers to be wrong. This applies equally to procedural matters which cannot from a practical point of view be separated from the trial process.

[11] The Court in Mercury also referred to the decision in Prince Albert Credit Union Ltd v Diehl and Diehler’s ChoiceSteak and Lobster Ltd (1986), (SK CA), 47 SaskR 284 (CA), as follows (at para 2): In our respectful view, the appeal is improper. A ruling by a trial judge on an evidentiary matter, a procedural matter, or upon anapplication for leave to amend pleadings is but part of the trial. Such rulings are ordinarily subsumed in the judge’s final judgment andare appealable as part of that judgment. . . . They are not appealable in their capacity as separate decisions.

There are exceptions to thisrule but the present case does not fall within the ambit of those exceptions. To this I would add that I see no reason to depart from the accepted practice whether the proceedings are commenced by statement ofclaim followed by a trial or by way of notice of application followed by a hearing.

Generally speaking, except in exceptionalcircumstances, appeals of procedural or evidentiary rulings made during the course of civil proceedings should be addressed in theappeal from the final determination and should not be undertaken on a piecemeal basis by way of interlocutory appeals. [12] With respect to the third criterion, Chartier CJM in Boryskiewich v Stuart, 2014 MBCA 77, concluded that (at para 9): [O]nly some preliminary consideration of the grounds and some preliminary assessment of the standard of review are necessary whenthe arguable merits of the grounds are being considered by the chambers judge. [13] In the Court below, the applicants sought judicial review of the Crown’s decision to enter into the Cross LakeCommunity Settlement Agreement with the respondent The Manitoba Hydro-Electric Board and the intervener The IncorporatedCommunity of Cross Lake.

As noted by the application judge in the final decision (at para 1), he was required to determine whether theCrown met its duty of consultation to the applicants when making the decision to enter into the Settlement Agreement. [14] The applicants say that the arguable ground of appeal is that the application judge erred in his decision to excludeevidence that is necessary, relevant and material by striking the 11 affidavits in their entirety. They submit that the 11 affidavits areadmissible, extrinsic evidence that should be considered when the Crown’s duty to consult is at issue.

As noted previously, theapplicants suggest that the standard of review applicable to this ground of appeal is the correctness standard. [15] Significantly, the arguable ground of appeal proposed by the applicants mirrors the first ground of appeal in the noticeof appeal from the final decision. [16] The respondents and the intervener submit that the 11 affidavits are additional extrinsic evidence not before the originaldecision-maker, that the general rule is that only material considered by the decision-maker in coming to its decision is relevant onjudicial review and that there is no arguable ground of appeal.

However, in written argument, Manitoba acknowledges that extrinsicevidence has been allowed in some Crown consultation cases, while in others it has not, and that, while trends have been emerging, thelaw in this area is not settled. [17] In these circumstances, and on a preliminary consideration and assessment, I am persuaded that there is an arguableground of appeal. [18] Finally, I turn to whether it is in the interests of justice to grant the extension.

In their written submission the applicantsargue that, if the extension of time is not granted, they will suffer prejudice because they will be denied the opportunity to challenge thepreliminary decision. I disagree. The preliminary decision is the first ground of appeal in the notice of appeal from the final decision,and it will be “appealable as part of that judgment”. See Bentley et al v Police Complaint Commissioner (BC) et al, 2012 BCCA 514 atparas 10, 16, 331 BCAC 178.) In other words, the preliminary decision of the application judge is subsumed in his final decision andforms part of the pending appeal.

The parties will therefore be at liberty to make any submissions that they feel are appropriate inrelation to the preliminary decision at the hearing of the pending appeal. A second notice of appeal is simply not necessary. [19] For the foregoing reasons, and having weighed all of the criteria, I am not persuaded that an extension of time to file asecond notice of appeal is right and just in the circumstances. [20] The applicants’ motion is therefore dismissed. JA