2021 MBCA 56, 2021 MBCA 56

Citation: Kuny v Pullan Kammerloch Frohlinger et al, Date: 20210528 2021 MBCA 56 IN THE COURT OF APPEAL OF MANITOBA Docket: AI20-30-09529 ) BETWEEN : ) ) DOUGLAS J. KUNY ) D. J. Kuny ) on his own behalf (Plaintiff) Appellant ) (via teleconference) ) - and - ) ) PULLAN KAMMERLOCH FROHLINGER ) A. J. Meyers ) for the Respondents (Defendant) Respondent ) (via teleconference) ) - and - ) ) Docket: AI20-30-09530 ) Chambers motions heard and BETWEEN : ) Decision pronounced: ) January 14, 2021 DOUGLAS J.

KUNY ) ) (Plaintiff) Appellant ) ) Written reasons: - and - ) May 28, 2021 ) PITBLADO LLP ) ) (Defendant) Respondent ) COVID-19 NOTICE: As a result of the COVID-19 pandemic and pursuant to r 37.2 of the MB, Court of Appeal Rules , MR 555/88R , these motions were heard remotely by teleconference. BEARD JA [ 1 ] These matters proceeded as motions for stays pending appeal of the judgments and costs orders in these two matters. The motions were granted at the hearing and orders were made staying the judgments, including the costs orders, pending the outcome of the appeals, with reasons to follow.

These are those reasons. [ 2 ] In the underlying proceedings, the plaintiff (Mr. Kuny) had sued the defendants in separate actions, alleging negligence and professional misconduct. The defendants filed motions for

summary judgment to have the claims dismissed, which the motion judge ordered would be heard together. On January 23, 2020, the motion judge issued his decision granting judgments in favour of the defendants and dismissing Mr. Kuny’s claims. Costs were awarded against Mr. Kuny in the amounts of $8,174 in favour of the defendant Pitblado LLP and $14,360 in favour of the defendant Pullan Kammerloch Frohlinger. [ 3 ] After obtaining leave to extend the time to file his appeals (see 2020 MBCA 114 ), Mr.

Kuny filed appeals of the judgments dismissing his claims and the costs orders, and he also applied to the motion judge for stays of the orders pending the determination of his appeals. On December 10, 2020, the motion judge granted conditional stays of the judgment in each claim, including costs, the condition being that he pay the sum of $1,500 into court on each claim within 30 days of the stay orders. [ 4 ] Mr. Kuny then filed motions in chambers in this Court regarding stay orders pending appeal.

There was then a question as to the nature of the chambers proceeding and whether there should be deference afforded to the motion judge’s stay orders. [ 5 ] While a single judge from this Court in chambers (a chambers judge) has concurrent jurisdiction with a judge of the Court of Queen’s Bench (a QB judge) to hear a motion to stay a QB judge’s order pending appeal, a chambers judge does not have jurisdiction to review or determine the correctness of an order of a QB judge. That jurisdiction lies with the Court of Appeal, and must

be determined by a panel of at least three judges of the Court (see The Court of Queen’s Bench Act, CCSM c C280 at

section 89(a); andThe Court of Appeal Act, CCSM c C240 at sections 7(1), 14; see also Canada (Attorney General) v Courchene, 2010 MBCA 4 at para3.) Thus, these matters proceeded as motions to stay the judgments and costs orders pending appeal. [6] The concurrent jurisdiction of a chambers judge to grant a stay pending appeal can be exercised both in the firstinstance (see Powell v Guttman, 1977 CarswellMan 85 (CA (in Chambers)); Zimmerman v Zimmerman, 1985 CarswellMan 302 (CA (inChambers)); Gaston v P & V Painting & Decorating Co (1988), (MB CA), 50 DLR (4th) 179 (Man CA (inChambers)); Granite Mortgage Corporation v Jurcevic, 2011 MBCA 59 (in Chambers)) and after a stay has been refused by the QBjudge (see Shaward v Shaward, 1986 CarswellMan 251 (CA (in Chambers)); Gateway Packers Ltd v Greyhound Canada TransportationCorp, 2004 MBCA 38 (in Chambers); Zenyk Estate v Zenyk, 2008 MBCA 83 (in Chambers); Bank of Montreal v Superior ManagementLtd et al, 2010 MBCA 72 (in Chambers); Labossiere et al v The Estate of Remi Joseph Labossiere, 2011 MBCA 38 (in Chambers)). [7] These cases demonstrate that the test applied by a chambers judge, whether hearing a stay application in the firstinstance or after a stay application has been determined by a QB judge, is the tripartite test for granting a stay set out in RJR —MacDonald Inc v Canada (Attorney General), (SCC), [1994] 1 SCR 311 (see also Chicago Blower Corp v 141209Canada Ltd, 1990 CarswellMan 127 (CA (in Chambers))). [8] A review of the jurisprudence shows that, where a QB judge has already heard and determined a stay application, thetest is applied without deference to the QB judge’s reasoning.

In Child and Family Services of Western Manitoba v KB, 2006 MBCA 48(in Chambers), Freedman JA noted that “[t]he usual practice . . . is to apply first to the judge who made the original order” (at para 37),but he went on to say that “the criteria to be applied on a stay application would, of course, be the same whether applied by the [QB]judge, or by a judge of this court” (at para 40). [9] While, in one decision, this Court indicated that a stay decision was discretionary and the QB judge’s decision shouldbe accorded deference, on closer reading, it appears that that matter was determined as an appeal from the QB judge’s decision on thestay application, rather than as a stay application pursuant to the Court’s concurrent jurisdiction (see Yes Forex Ltd et al v WildcatExploration Ltd et al, 2008 MBCA 124, which was a decision of a panel of the Court). [10] Research subsequent to this motion being heard disclosed this Court’s decision in Laufer v Bucklaschuk, 1998CarswellMan 464 (CA (in Chambers)).

In that decision, Monnin JA acknowledged that a chambers judge has concurrent jurisdiction andcan entertain a request for a stay even where that request has been heard and denied by a QB judge. Without citing any authority for thedistinction between a QB judge’s finding denying a stay and one granting a stay, he found that there is no jurisdiction or authority for achambers judge to set aside a stay order granted by a QB judge.

He held that, if the QB judge granted a stay order, the concurrentjurisdiction held by the chambers judge was spent and any application to set aside the stay order would have to be heard by a panel ofthe Court.

While this case has been cited only once, not on this point, and there do not appear to be any other cases that stand for thesame proposition, it remains the law in Manitoba. [11] In the Zenyk Estate case, the trial judge had granted a limited duration stay, and the appellant applied to a chambersjudge, rather than back to the trial judge, for a further stay just before the trial judge’s stay was to expire. The chambers judge granted afurther stay with no discussion of Laufer or whether he had jurisdiction to vary the stay order of the trial judge.

That said, in my view,Laufer sets out the law in Manitoba on this issue. [12] Neither Laufer nor the issue of jurisdiction was raised by either party at the hearing; they are new issues that arose inthis case at the Court’s instance, after the decision was pronounced.

As there has been no order or certificate taken out, this Court is notfunctus officio (see, for example, Ridout v Ridout, 2003 MBCA 61 at para 12 (in Chambers)). [13] Where a new issue is disclosed after a decision has been pronounced but before an order or certificate of decision issigned, the practice would be to notify the parties and have a rehearing under r 46.2 of the MB, Court of Appeal Rules, MR 555/88R,giving the parties the opportunity to address that new issue before issuing reasons.

I would have followed that practice in this case, but arehearing of this motion is not available due to r 46.2(12), which states, “There shall be no rehearing on an application for leave or amotion” (see also Mujagic v Kamps, 2015 ONCA 360 at paras 6-11). [14] Thus, the stay orders as pronounced at the chambers hearing remain in effect. [15] There will be no costs on the motions to any party. JA