Docket: CACV2188 Precision Contractors Ltd. Prospective Appellant (Plaintiff) - v. -, 2012 SKCA 57

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 57 Date: 20120525 Between: Docket: CACV2188 Precision Contractors Ltd. Prospective Appellant (Plaintiff) - and - Government of Saskatchewan Prospective Respondent (Defendant) Before: Lane J.A. (in Chambers) Counsel: E.F.A. Merchant, Q.C. and Casey Churko for the Prospective Appellant

Sharon Pratchler, Q.C. and Andrew Reeson for the Prospective Respondent Application: From: 2011 SKQB 407 Heard: May 9, 2012 Disposition: Leave Granted Written Reasons: May 25, 2012 By: The Honourable Mr. Justice Lane Lane J.A. [1] This application for leave to appeal arises from an order by a Queen's Bench judge in chambers dated October 27, 2011 adjourningthe prospective appellant’s application to have an action certified as a class action.

The chambers judge on the certification applicationordered the central issue, which is the constitutionality of provincial sales tax legislation as it is calculated on out-of-provinceconstruction contractors which bring mainly heavy equipment into the province temporarily for commercial purposes, to be decided byway of judicial review rather than as part of the class action.

He reasoned that an application to have the legislation challenged could bemade by the proposed representative plaintiff without the machinery of a class action and was the preferable procedure. [2] The prospective appellant contends the chambers judge erred by bifurcating the action which effectively means the judge ignoredthe interests of the proposed class and considered the preferable procedure only from the interests of the prospective appellant (theproposed representative plaintiff). [3] The prospective respondent contends the chambers judge’s decision on the preferable procedure was in the discretion of the judgeand further the Court of Queen's Bench has the right to control its own processes.

It adds that if the central constitutionality issue isdecided on an application for judicial review in favour of the prospective Appellant, the operation of the governing legislation (s. 56 ofThe Revenue and Financial Services Act, S.S. 1983, c.

R-22.01, providing for refunds of overpayments) allows other taxpayers to takeadvantage of the ruling as decided on a case-by-case basis. [4] The prospective respondent raised a preliminary objection noting the prospective appellant did not raise until this application theissue the chambers judge considered only the interest of the prospective appellant (and proposed plaintiff) and not the interests of theproposed class. [5] Neither party takes issue with the standard of review which applies on leave to appeal applications. Both rely on Rothmans, Benson& Hedges Inc. v.

Saskatchewan, 2002 SKCA 119, 227 Sask.R. 121 para. 6 which reads: 6 The power to grant leave has been taken to be a discretionary power exercisable upon a set of criteria which, on balance, must beshown by the applicant to weigh decisively in favour of leave being granted: Steier v. University Hospital, (SK CA),[1988] 4 W.W.R. 303 (Sask. C.A., per Tallis J.A. in chambers).

The governing criteria may be reduced to two-each of which features asubset of considerations-provided it be understood that they constitute conventional considerations rather than fixed rules, that they arecase sensitive, and that their point by point reduction is not exhaustive. Generally, leave is granted or withheld on considerations of meritand importance, as follows: First: Is the proposed appeal of sufficient merit to warrant the attention of the Court of Appeal? • Is it prima facie frivolous or vexations?

• Is it prima facie destined to fail in any event, having regard to the nature of the issue and the scope of the right of appeal, for instance, or the nature of the adjudicative framework, such as that pertaining to the exercise of discretionary power? • Is it apt to unduly delay the proceedings or be overcome by them and rendered moot? • Is it apt to add unduly or disproportionately to the cost of the proceedings?

Second : Is the proposed appeal of sufficient importance to the proceedings before the court, or to the field of practice or the state of the law, or to the administration of justice generally, to warrant determination by the Court of Appeal? • does the decision bear heavily and potentially prejudicially upon the course or outcome of the particular proceedings? • does it raise a new or controversial or unusual issue of practice? • does it raise a new or uncertain or unsettled point of law? • does it transcend the particular in its implications? [ 6 ] I am satisfied the proposed appeal is of sufficient importance to the proceedings before the Court to warrant determination by the Court. [ 7 ] I note the preliminary objection of the prospective respondent; however, it is certainly open to the prospective appellant to raise the issue which arises from material already before the prospective respondent. [ 8 ] The prospective appellant argues because the class action has not been certified that if the prospective appellant is successful on the application for judicial review and the tax is unconstitutional it will end its participation, and a completely new application for certification would have to be commenced with a new representative plaintiff.

The procedure ordered by the chambers judge could quite conceivably have this result as I see little advantage to the prospective appellant from proceeding any further if successful on judicial review. [ 9 ] The prospective appellant also submits, that assuming success on the application for judicial review, not all of the proposed class would benefit. The Government concedes that although the practical effect of a successful application for judicial review would allow other taxpayers to apply for a refund for the amount of any overpayment, such specific application would be decided on a case-by-case basis.

The result is not all of the class may benefit because of an individual's specific review but also because many taxpayers (the members of the proposed class) may not be aware the provision has been declared unconstitutional. [ 10 ] I am satisfied on these bases alone the matter should be heard by the Court and leave to appeal is granted. Costs will be left to the discretion of the panel hearing the appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 25 th day of May, A.D. 2012. “Lane J.A.” Lane J.A.