Docket: CACV2300 Paulsen & Son Excavating Ltd. Appellant - v. -, 2012 SKCA 101

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 101 Date: 2012-10-31 Between: Docket: CACV2300 Paulsen & Son Excavating Ltd. Appellant - and - Royal Bank of Canada Respondent Before: Richards J.A. (in Chambers) Counsel: Peter V. Abrametz for the appellant Mike Russell for the respondent Application:

From: 2012 SKQB 267 Heard: October 15, 2012 Disposition: Dismissed Written Reasons: October 31, 2012 By: The Honourable Mr. Justice Richards Richards J.A. I. Introduction [ 1 ] Paulsen & Son Excavating Ltd. (“Paulsen”) takes issue with the taxation of an account rendered by a receiver in proceedings pursuant to the Bankruptcy and Insolvency Act , R.S.C., 1985, c. B-3 (the “ Act ”). II. Background [ 2 ] The Royal Bank was a secured creditor of Paulsen. An order appointing MNP Ltd. as receiver of Paulsen’s assets was made on the Bank’s application.

The order was later amended to permit MNP to manage Paulsen’s business. [ 3 ] MNP was ultimately discharged. In the discharge order, the Court of Queen’s Bench approved and confirmed its accounts and fees, including its solicitor’s fees. This was done subject to Paulsen’s right to apply for taxation. [ 4 ] Paulsen then sought a taxation. It questioned the work of MNP and its legal counsel in various ways. [ 5 ] A taxation hearing was held. The Queen’s Bench judge addressed and dealt with each of the issues raised by Paulsen.

She held that the fees and disbursements of both MNP and its counsel were fair and reasonable and, therefore, she passed the account. [ 6 ] Paulsen now seeks to appeal the taxation decision. III. Analysis [ 7 ] This matter comes before me against the background of a somewhat unusual set of circumstances. Paulsen originally proceeded on the basis that it had a right of appeal and, because it had missed the applicable appeal period, it sought an extension of the time in which to file its notice of appeal.

When that matter came before one of my colleagues in Chambers, a question arose as to whether Paulsen could, in fact, appeal as of right or whether it needed leave to appeal. The proceedings were adjourned and Paulsen then filed an application for leave to appeal. As a result, I am faced with both an application for leave to appeal and an application to extend the time for filing a notice of appeal. [ 8 ] There is obviously an issue here about whether Paulsen can proceed on both the “leave to appeal” track and the “right to appeal” track at the same time.

Nonetheless, in view of my conclusions with respect to the substantive merits of the two applications before me, I have chosen not to address that point or to comment on whether Paulsen does or does not have a right of appeal. (Accordingly, this decision should not be read as being either an endorsement or a disapproval of the two track approach taken by Paulsen.

I have merely decided not to deal with that issue.) Simply put, and as explained below, if Paulsen needs leave to appeal I would deny leave and, if Paulsen has a right of appeal but needs to extend the time for filing a notice of appeal, I would deny the application for the extension. [ 9 ] Paulsen’s rights of appeal are prescribed by s. 193 of the Act . It reads as follows: 193 Unless otherwise expressly provided, an appeal lies to the Court of Appeal from any order or decision of a judge of the court in the following cases: (

a) if the point at issue involves future rights; (

b) if the order or decision is likely to affect other cases of a similar nature in the bankruptcy proceedings; (

c) if the property involved in the appeal exceeds in value ten thousand dollars; (

d) from the grant of or refusal to grant a discharge if the aggregate unpaid claims of creditors exceed five hundred dollars; and (

e) in any other case by leave of a judge of the Court of Appeal.

[Emphasis added] [10] A notice of appeal must be filed within 10 days after the decision being appealed from was rendered. [11] Having canvassed that bit of background, let me begin with the application for leave to appeal. Counsel suggested that my decisionin this regard should be made with reference to the considerations explored in cases such as Fiber Connections Inc. v. SVCM Capital Ltd. (2005), (ON CA), 10 C.B.R. (5th) 201(Ont.

C.A., Chambers) which deal specifically with granting leave to appeal inbankruptcy matters. [12] I prefer, however, to proceed on the basis of the well-known and frequently endorsed principles laid out by Cameron J.A. inRothmans, Benson & Hedges Inc. v. Saskatchewan, 2002 SKCA 119, 227 Sask. R. 121 at para. 6. It would not be useful, in my view, toset off on the path of establishing special tests for granting leave to appeal for distinct subject matters or practice areas.

The generalapproach formulated by Cameron J.A. is broad enough to capture all of the relevant considerations both in this case and in others. [13] Accordingly, the issue of whether leave to appeal should be granted in the matter at hand must be resolved with reference to (a)whether the proposed appeal has sufficient merit to warrant the attention of the Court, and (

b) whether the proposed appeal is ofsufficient importance to proceedings before the Court, or the field of practice or the state of the law, or to the administration of justicegenerally to warrant determination by the Court. [14] I turn first to the merits of the proposed appeal. This, I think, is a problem for Paulsen. It points to three alleged defects in thedecision of the Chambers judge: (

a) MNP’s account is so large as to be unreasonable, (

b) MNP billed for time expended on the filebefore the receivership order was formally in place, and (

c) MNP billed for some work done during a period when matters were stayedbecause of an appeal to this Court. [15] Each of these concerns would have to be approached by this Court on a very deferential standard of review. All aspects of MNP’saccount, including the three points raised here by Paulsen, were considered and reviewed with some care by a Chambers judge who hasconsiderable experience in this field. In her opinion, MNP’s account was reasonable and she had no problem with the work done by itbefore the receivership order was formally issued and during the stay.

On the basis of the submissions I have received, I am unable tosee a basis on which this Court might be convinced to take issue with her assessment of the situation. [16] As well, I am not convinced that the proposed appeal raises issues of the sort which warrant the attention of the Court. In my view,the disposition of this case would ultimately turn very much on its own particular facts.

Paulsen attempts to draw some points of generalprinciple out of the proceedings but, in the end and to repeat, I believe the results of appeal would be fact specific. [17] Thus, considering both the merits and the importance of the proposed appeal, I would not grant leave to appeal. [18] I turn, therefore, to Paulsen’s application to extend the time for filing a notice of appeal. This issue is governed by the factorsidentified in Bank of Nova Scotia v. Saskatoon Salvage Co. (1954) (1983), (SK CA), 29 Sask. R. 285 (Sask. C.A.). They were summarized as follows in Dutchak v. Dutchak 2009 SKCA 89, 337 Sask.

R. 46 at para. 12 : [12] According to these decisions, in determining whether leave should be granted the applicant must persuade the Court that: (i)there is a reasonable explanation for the delay; (ii) he or she possessed a bona fide intention to appeal within the time limited for appeal;(iii) there is an arguable case to be made to a panel of the Court; and (iv) there will be no prejudice to the respondent, if leave is grantedbeyond what would be incurred in the usual appeal process.

In any given case, one or more factors may be more important than another. [19] Three of the points identified in Dutchak pose little difficulty for Paulsen. First, its counsel explains the delay by candidlyadmitting that he overlooked the special appeal period which operates in this case. On the facts here, I accept this as being a satisfactoryexplanation. Second, although the affidavit material is very thin, it does establish that Paulsen intended, from the outset, to appeal thetaxation decision.

Third, there is no suggestion MNP will be prejudiced if an appeal goes forward. [20] That leaves the issue of whether Paulsen has an arguable case. This, in my view, is a hurdle that it cannot clear. Of course,Paulsen has points that it proposes to make on appeal but, in my assessment, they are not meritorious enough to permit a conclusion thatPaulsen has an “arguable case” within the meaning of the applicable case law. As a result, I would not grant Paulsen’s request to extendthe time for filing its notice of appeal.

IV. conclusion [21] Paulsen’s applications for leave to appeal and for extending the time for filing a notice of appeal are dismissed, both with costs inthe usual way. DATED at the City of Regina, in the Province of Saskatchewan, this 31st day of October, A.D. 2012. “Richards J.A.”_____________________

Richards J.A.