Docket: CACV2319 Julie Ann Takhar, Julie Ann Takhar as litigation guardian of Lily Sydney Lincoln, Leif Jarvis Lincoln, Hope Meadow Lincoln, Jateil Amber Takhar, Shummi Payne Takhar, v. Jacob Young, 2012 SKCA 114

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 114 Date: 2012-11-29 Between: Docket: CACV2319 Julie Ann Takhar, Julie Ann Takhar as litigation guardian of Lily Sydney Lincoln, Leif Jarvis Lincoln, Hope Meadow Lincoln, Jateil Amber Takhar, Shummi Payne Takhar, and Jacob Young Applicants (Prospective Appellants) - and - Helicopter Transport Services (Canada) Inc., Heli-Transport Inc., Heli-Max Limited, Yves Olivier, MD Helicopters Inc., McDonnell Douglas Helicopter Systems, McDonnell Douglas Helicopter Company, and John Doe 1 through John Doe 3 Respondents (Proposed Respondents) Before: Cameron J.A.

Counsel: William Selnes and Jamie Thornback for the applicant Bruce Garrow for the proposed respondent

Application for Leave to Appeal: From: 2012 SKQB 334 Heard: November 28, 2012 Disposition: Dismissed Reasons: November 29, 2012 Cameron J.A. [ 1 ] This is an application under Rule 15 of The Court of Appeal Rules for leave to appeal an interlocutory order made in the Court of Queen’s Bench by Mr. Justice Scherman.

He ordered a stay of proceedings in an action for damages arising out of a helicopter crash in Saskatchewan pending determination by the Workers’ Compensation Board of whether the action as against the registered operator of the helicopter is barred by s. 44 of The Workers’ Compensation Act,1979 , S.S. 1979, c. W-17.1. [ 2 ] The action was brought by Julie Ann Takhar and Jacob Young against a number of corporations, including three closely associated companies that appear to be the principal targets of the action, namely Heli-Transport Services (Canada) Inc., Heli-Transport Inc., and Heli-Max Limited.

I was informed during argument that the helicopter that crashed belonged at the time to Heli-Transport Inc. (its registered operator) under lease from Heli-Max Limited (its owner) and was being flown by Yves Olivier, an employee of Heli- Transport Inc. Hence, Heli-Transport Inc. seems to be the primary target of the action.

I was also informed during argument that this company has admitted that its pilot was negligent and that it is vicariously liable for his negligence. [ 3 ] As I understand it, it is Heli-Transport Inc. that applied to the Workers’ Compensation Board for a determination of whether the action, at least as against it, is statute barred. Only the Board, to the exclusion of the Court of Queen’s Bench, can make that determination. So, Justice Scherman decided to place the proceedings in the action on hold until the Board makes its determination.

The effect of the stay is to put discovery in the action on hold until that happens. It is this that troubles the plaintiffs. And is this that promoted them to apply for leave to appeal his decision. They want to get on with discovery, and want to do so for the reason in particular of furnishing the Board with the evidence it needs to make its determination. [ 4 ] Having regard for the circumstances, together with the underlay of principle at work here as set out in Rothmans, Benson & Hedges v. Saskatchewan , 2002 SKCA 119 , 227 Sask.

R. 121, I am not satisfied the proposed appeal is of sufficient merit or importance to warrant leave to appeal. I say this for the following reasons. [ 5 ] As for the merit of the proposed appeal, I note that the impugned order was made in the exercise of discretionary power and on the basis of established principle, which suggests that the chances of success on appeal are limited. They are limited because the standard of appellate review of discretionary decision-making is limited.

This is particularly so in this case, for the order appears to have been made on the basis of a settled body of principle governing the stay of proceedings, meaning that for the most

part it is only the application of that body of principle to the circumstances of the case that would seem to be in issue on the appeal. [ 6 ] I note, too, that on the face of the matter it appears to make good sense to put the proceedings in the action on hold until the Board decides if the action against Heli-Transport is barred. I say this because the action seems to be aimed primarily at this company as the registered operator of the helicopter and the employer of the pilot.

It might also be asked why the discovery machinery of the Court of Queen’s Bench should be expected to carry the mail in relation to the application before the Board to determine whether the action against this company is barred.

The Board has its own powers to the end of getting at the relevant facts; and determinations of this kind are hardly foreign to the Board. [ 7 ] So, I am hard pressed to see sufficient merit in the proposed appeal to warrant the attention of this Court. [ 8 ] I also have difficulty with the question of whether the proposed appeal is of sufficient importance to warrant the attention of the Court.

I am unable to see any unusual or controversial point of law or practice at issue here, so in my opinion the proposed appeal appears to be of little or no general significance. [ 9 ] Its general significance is said to lie in the fact lower courts sometimes allow discovery to proceed in circumstances such as these, and sometimes do not. I am unaware of any authority to that effect, but assuming this is so I am not sure what one might make of this as a matter of general principle, especially in relation to interlocutory stays.

It strikes me that about all one could say of this is that it is a matter for the judges of the court to determine on a case by case basis in the proper exercise of their discretion, bearing in mind that the underlay of principle governing the stay of proceedings appears to be settled. [ 10 ] This is not to say the subject of the proposed appeal is of little or no significance to the parties in this case, especially the plaintiffs.

But the impugned order is only interlocutory in the sense the proceedings have been stayed pending the determination by the Workers’ Compensation Board of whether the action is barred in whole or in part by s. 44 of the Act . It follows that the action is not in any peril should the Board decide it is not barred. In that event the action can proceed to discovery and beyond. Should the Board decide otherwise, the action cannot proceed, at least not to the extent the Board should find that it is barred. So, in reality, all that is at stake here is time and cost.

As for time, it will have to run its course I am afraid, for only the Board can make this decision. And as for cost, it seems to me the most cost-efficient course is that which flows from the stay. [ 11 ] Thus I am not convinced the proposed appeal is of sufficient merit or importance to warrant the attention of this Court at this stage of the proceedings. On the whole, then, and for essentially these reasons, I have decided to dismiss the application. There will be an

order for costs in the usual way. Dated this 29 th day of November, 2012. “Cameron J.A.” Cameron J.A.