Docket: 2345 Michael Newell Applicant - v. -, 2012 SKCA 115

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 115 Date: 2012-12-03 Between: Docket: 2345 Michael Newell Applicant - and - 101150089 Saskatchewan Limited Respondent - and - The Director of Community Operations Respondent Before: Cameron J.A. Counsel: Nicole Sarauer and Barbara Bailey for the applicant Randene Zielke and Sharon Pratchler, Q.C. for the respondents

Application: From: 2012 SKQB 441 Heard: November 28, 2012 Disposition: Application Allowed Written Reasons: December 3, 2012 By: The Honourable Mr. Justice Cameron Cameron J.A. [ 1 ] This is an application under Rule 15 of The Court of Appeal Rules for leave to appeal a decision made by Madam Justice McMurtry in the Court of Queen’s Bench. She dismissed a motion brought by Michael Newell pursuant to Rule 173(

e) of The Queen’s Bench Rule to strike out proceedings initiated by the Director of Community Operations. The Director initiated the proceedings by applying to the Court for an order requiring Mr. Newell to vacate the premises in which he lives as a tenant because he was there trafficking in drugs. Mr. Newell then launched a motion to strike out the Director’s application on the ground it constituted an abuse of process. Justice McMurtry decided otherwise. It is against this decision Mr.

Newell wishes to appeal. [ 2 ] The Director of Community Operations is a provincial administrative agent empowered by The Safer Communities and Neighbourhoods Act, S.S. 2004, c. S-O.1, to take certain action on receipt of a complaint that a community or neighbourhood is being adversely affected by activities on or near property located in the community or the neighbourhood.

Among the actions the Director is empowered to take is to apply to the Court of Queen’s Bench for what is called a “community safety order.” This is an order enjoining persons from directly or indirectly engaging in such activities and, potentially at least, terminating a tenancy and requiring the tenant to vacate the property. [ 3 ] The Director applied to the Court of Queen’s Bench for an order of this kind on May 8, 2012, seeking in effect to terminate Mr. Newell’s tenancy and require him to vacate the premises on the ground he was trafficking in drugs.

About a month earlier, on April 8, 2012, the Director had been denied similar relief, based on much the same ground, by the Residential Tenancies Office. On that occasion the Director had applied for a similar order pursuant to The Residential Tenancies Act, 2006 , S.S. 2006, c. R-22.0001. As I understand it, that application was dismissed for the principal reason that, while Mr.

Newell used marijuana on the premises in contravention of the law, his use of it did not constitute trafficking, did not cause any damage to the property, and did not adversely affect the quiet enjoyment, safety, or physical well being of the neighbours. [ 4 ] The Director did not appeal from the decision of the Residential Tenancies Office but kept Mr. Newell’s use of the premises under surveillance in the days that followed. According to the investigator who conducted the surveillance, people were seen coming and going in ways that were said to be consistent with drug trafficking.

This prompted the Director to launch a second application to have Mr. Newell evicted from the premises. But this time the Director applied to the Court of Queen’s Bench under The Safer Communities and Neighbourhoods Act, rather than to the Office of Residential Tenancies under The Residential Tenancies Act, 2006 . It was this that prompted Mr. Newell to move under Queen’s Bench Rule 173(

e) to have the second of the two applications struck out as an abuse of process. [ 5 ] Justice McMurtry decided that the Director’s second application did not constitute an abuse of process, saying in conclusion that, while some of the same issues of fact were in dispute in the two proceedings, “if the second proceeding is not allowed to go forward, the Director is unable to fulfil his mandate with respect to the premises. On balance, and as a matter of fairness, I do not find it an abuse of process to require Mr.

Newell to respond to the [Director’s] application.” [ 6 ] Now, then, the question is whether I ought to grant Mr. Newell leave to appeal from Justice McMurtry’s decision. The underlay of principle at work here is found in Rothmans, Benson & Hedges v. Saskatchewan , 2002 SKCA 119 , 227 Sask. R. 121. Having regard for this, the question is whether the proposed appeal is of sufficient merit and importance to warrant the attention of the Court of Appeal at this interlocutory stage of the proceedings in the Court of Queen’s Bench. [ 7 ] The question is not as straight forward as this, however, at least at the outset.

Indeed, it is considerably more complicated, because the Director maintains that Mr. Newell has no right of appeal from the decision of Justice McMurtry, not even with leave. He has no such right of appeal, so the argument goes, for a number of interrelated reasons. First, the Court of Queen’s Bench has no jurisdiction to make decisions of the kind made by Justice McMurtry.

Section 25 of The Safer Communities and Neighbourhoods Act precludes interlocutory or other proceedings aimed at preventing the making of a community safety order. This means Justice McMurtry

was precluded from acting on Mr. Newell’s motion and I am precluded from acting on his application for leave to appeal her decision. Second, the only conceivable right of appeal Mr. Newell may have is that found in s. 24 of The Safer Communities and Neighbourhoods Act, but this only allows for appeal after the hearing and determination on the merits of an application for a community safety order, not before. That being so, the statutory authority relied upon by Mr. Newell in seeking to appeal, namely ss. 7 and 8 of The Court of Appeal Act, 2000, S.S. 2000, c. C-12.1, does not apply.

Nor does the right of appeal found in s. 24 of The Safer Communities and Neighbourhoods Act apply, not at this stage of the proceedings in the Court of Queen’s Bench. [ 8 ] To be sure this is only a rough account of the position taken by the Director, but it will suffice for the purposes at hand. There a number of problems associated with this position. [ 9 ] First, the idea that Justice McMurtry was precluded from entertaining Mr. Newell’s motion was not raised before her. It was raised for the first time before me.

This is not as it should be, and for that reason arguments raised for the first time on appeal are usually put aside. [ 10 ] Second, this business of whether s. 25 of The Safer Communities and Neighbourhoods Act precludes the Court of Queen’s Bench from entertaining a motion to put a stop to proceedings under this Act on the ground they constitute an abuse of process is complex and far reaching in its implications. Indeed, it is so much so as to suggest that I, as a single judge of the Court of Appeal sitting in chambers, should not be deciding it.

The subject is more appropriately decided by the Court, rather than a single judge in chambers. This is especially so in the context of an application for leave to appeal, for there is no right of appeal from an order granting or denying leave to appeal. [ 11 ] Lest it be though otherwise, I am not here suggesting the Court of Appeal would entertain this business should I grant leave to appeal. That is doubtful, given the fact the matter was not raised in the court of first instance, though this, too, can be a complicated matter in the face of an argument going to jurisdiction.

But, of course, I am not about to go down these paths. All I am saying is that the Director is asking an awful lot of a single judge in chambers whose decision is immune from appeal. Indeed, I am of the respectful view the Director is asking for too much. [ 12 ] Third, and most importantly, the right of appeal found in s. 24 of The Safer Communities and Neighbourhoods Act is a right of appeal from an order made pursuant to this Act . Mr. Newell is not seeking leave to appeal an order made pursuant to this Act.

He seeks leave to appeal a decision made in relation to Queen’s Bench Rule 173(e), which Rule is concerned with the exercise of the inherent jurisdiction of the Court of Queen’s Bench, as a superior court, to prevent the abuse of its process. [ 13 ] The upshot of all this is that I am going to treat Mr. Newell’s application for leave to appeal as having been made on the combined statutory authority of ss. 7 and 8 of The Court of Appeal Act, 2000. I am going to do so on the premise the decision made by Justice McMurtry was made in the context of Queen’s Bench Rule 173(

e) and the exercise by her of the inherent jurisdiction in that Court to oversee proceedings to the end of ensuring the process of the Court is not being abused. I should add, perhaps, that no issue was taken before me regarding the characterization of her decision as interlocutory for these purposes, rather than final, though there is something of an air of finality about it in the limited sense it commits Mr. Newell to participate in a proceeding he regards as an abuse of process. [ 14 ] That being said, I turn to the merit and importance of the proposed appeal in keeping with Rothmans, Benson & Hedges.

In my view the proposed appeal is by no means frivolous or vexations. Nor, is it prima facie predestined to fail having regard for the scope of the right of appeal and the associated appellate standard of review. True, Justice McMurtry made her decision in the exercise of a measure of discretion, which serves to some extent to narrow the scope of appellate review of her decision. The measure of discretion she enjoyed, however, is more limited than is often the case. This is so because she was called upon to decide whether the proceedings amounted to an abuse of process.

In this context, the discretion enjoyed by the decision-maker is rather modest: Insurance Company of the State of Pennsylvania v. Global Aerospace Inc ., 2010 SKCA 96 , [2010] 10 W.W.R. 426. [ 15 ] Moving along, I recognize that the proposed appeal may serve to delay the hearing of the Director’s application in the Court of Queen’s Bench, but not unduly so in my view, given the nature of what is at stake here. Moreover I am of the opinion there is an arguable case against Justice McMurtry’s decision.

The case is not so much arguable on the basis of issue estoppel, perhaps, as on the basis of abuse of process, for the former is a technical doctrine, whereas the latter is more flexible. [ 16 ] In any event, it looks as though the Director’s application to the Court of Queen’s Bench for a community safety order does not rest alone (or even primarily), on the evidence gathered during the most recent surveillance of Mr. Newell’s residence.

Rather, it seems to rest on the combination of this evidence and that adduced during the proceedings before the Residential Tenancies Office, as though this additional evidence, taken in combination with the evidence adduced in those proceedings, were enough to now tip the scales in

favour of the Director. That being so, and since the Director did not appeal the decision of the Residential Tenancies Office, the Director might be taken to be overreaching here. I am not saying this is the case. I am merely saying Mr. Newell appears to have a sufficiently arguable case to suggest I not dismiss his application for leave to appeal on the basis the proposed appeal is of insufficient merit to occupy the attention of the Court of Appeal. [ 17 ] With that, I turn to the question of whether the proposed appeal is of sufficient importance to warrant the attention of the Court.

I am satisfied it is of sufficient importance, particularly generally. I say this for two reasons. First, abuse of process is not so much a matter of private interest as it is a matter of public interest in the proper administration of justice. This includes the public interest in preventing misuse of the means by which disputes are to be resolved and in maintaining the integrity of the adjudicative process. Forum shopping is an off-shoot of this if the purpose be to circumvent an earlier adverse decision.

Second, The Safer Communities and Neighbourhoods Act is a relatively new enactment that appears to overlap with The Residential Tenancies Act, 2006 inasmuch as both provide for the termination of tenancies and the eviction of tenants engaged in illegal activity on the premises, including drug trafficking. The interplay between the two enactments is brought into issue here, at least in these limited respects, and this, too, suggests there is something here of general, as well as specific, importance.

Hence, it looks to me as though the proposed appeal is of sufficient importance all round to warrant the attention of the Court of Appeal. [ 18 ] Indeed, I am satisfied for the whole of these reasons that the proposed appeal is of sufficient merit and importance to warrant the grant of leave to appeal. There will be an order accordingly. I leave the costs of the application to the Court on the hearing of the appeal. Dated, this 3 rd day of December 2012. “Cameron J.A.” ______ Cameron J.A