Docket: CACV2287 Kelvin Mark Rekken v. Susan Louise Rekken, administrators of the Estate of Bowan Karl Rekken, and Kelvin Mark Rekken and Susan, 2012 SKCA 86

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 86 Date: 2012-09-21 _ Between: Docket: CACV2287 Kelvin Mark Rekken and Susan Louise Rekken, administrators of the Estate of Bowan Karl Rekken, and Kelvin Mark Rekken and Susan Louise Rekken, in their individual capacities Respondents (Appellants) - and - Health Region #1, Dr. J.F. Malan and Dr. P.J. Greyling Applicants (Respondents) - and - The Royal Canadian Mounted Police (as represented by the Attorney General of Canada) Respondent (Respondent) Coram: Lane, Caldwell and Herauf JJ.A.

Counsel: John Epp for the Applicant, Health Region #1 Mervin Phillips for the Respondents, Kelvin Mark Rekken and Susan Louise Rekken David Thera, Q.C. for the Respondents, Dr. J.F. Malan and Dr. P.J. Greyling Application: From: 2012 SKQB 248 Heard: September 21, 2012 Disposition: Application Allowed (orally) Written Reasons: October 2, 2012 By: The Honourable Mr. Justice Lane In Concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Herauf Lane J.A. [ 1 ] The respondents and co-respondents apply to strike the appellants’ notice of appeal on the basis the appeal is of an interlocutory decision and requires leave pursuant to s. 8(1) of The Court of Appeal Act, 2000 , S.S. 2000, c. C-42.1.

The appellants seek to appeal the dismissal of their application, pursuant to Rule 236 , requesting a third-party, The Royal Canadian Mounted Police, to produce the entire contents of its file pertaining to the death of Bowan Karl Rekken whose death on November 20, 2003 is the subject of the action commenced in 2004 by the appellants against the respondents. The RCMP were served with their application and provided a sealed box containing their file and further documents to the Court of Queen’s Bench.

The RCMP took no position before this court. [ 2 ] The Chambers judge noted Rule 236(1) does not grant an automatic right to demand production of third-party property and, in particular, the files of police agencies. He relied on Courchaine v. Saskatchewan Government Insurance et al. , 2007 SKCA 106 , 286 D.L.R. (4 th ) 755 at paragraphs 26 , 27 and 30 for guidance on the application of the Rule.

He noted the party seeking the third-party’s documents should, in its supporting material, provide a breakdown of the information sought and should clearly outline how the document or information sought relates to a specific matter or matters in the civil action to avoid a “fishing expedition” (paragraph 32 of the Chambers judge’s decision). He ruled the now appellants did not provide any breakdown of the information they sought and their supporting material did not assist him in getting an understanding of what was being requested.

He ruled that to open up the RCMP file on the basis of the material provided would be a “fishing expedition” which was cautioned against in Courchaine . He referred to the now appellants’ “speculative desire”. [ 3 ] As stated earlier, the appellants filed a notice of appeal of the resulting order and the respondents then brought an application to quash the appeal contending the decision below was an interlocutory decision requiring leave to appeal and no leave to appeal was obtained. Their application was supported by the co-defendants (also referred to herein as the co-respondents) who filed supporting material.

They rely on s. 8 of The Court of Appeal Act which reads as follows: 8(1) Subject to subsection (2), no appeal lies to the court from an interlocutory decision of the Court of Queen’s Bench unless leave to appeal is granted by a judge or the court.

(2) Leave to appeal an interlocutory decision is not required in the following cases: (

a) cases involving: (

i) the liberty of an individual; (ii) the custody of a minor; (iii) the granting or refusal of an injunction; or (iv) the appointment of a receiver; (

b) other cases, prescribed in the rules of court, that are in the nature of final decisions. [ 4 ] The respondents and co-respondents argue the decision was clearly interlocutory as it does not determine the main dispute between the parties, or any element thereof, and rely on the principles governing such a determination as set out by this Court in Silcorp

Ltd. v. KJK Holdings Inc. (1992), (SK CA), 90 D.L.R. (4th) 488. [5] They further argue the appellants’ alternative position, that if leave to appeal is required they ought to be granted leave in anyevent, should not be entertained because the appellants ought not to be allowed to approbate and reprobate relying in support for this principle on Iron v.

Saskatchewan (Minister of the Environment & Public Safety) (1993), (SK CA), 103 D.L.R. (4th)585, a decision of this Court. [6] The co-respondents make a further argument contending the appellants’ supporting affidavit of Leane Phillips, one of thesolicitors for the appellants, raises items which are not formal or uncontroverted and thus contravenes this Court’s Civil PracticeDirective No. 1. The impugned affidavit refers to instructions received by the appellants’ counsel, reference to research, reference tounnamed independent legal advice, and matters of law, argument and opinion.

They argue the affidavit should be struck. [7] The appellants rely on several authorities but in particular this Court’s decision in Popowich v. Saskatchewan (1999), (SK CA), 174 D.L.R. (4th) 336 (Sask. C.A.) wherein there was in fact an order for disclosure of certain documents in thehands of a third-party.

The court ruled the order was final and determinative of the issue of disclosure between the parties and thereforewas not interlocutory. [8] We are all of the view the application to dismiss the appeal should be granted as the order below is clearly interlocutory, thusleave to appeal was required and the appellants failed to attain the same. We recognize the question of whether a determination is “final”or “interlocutory” is uncertain, often leading to seemingly inconsistent decisions and much will depend on the facts of each particularcase. As Richards J.A. stated in paragraph 4 of Stadnyk v.

Saskatchewan, 2011 SKCA 30: 4 The question of whether a Queen's Bench decision is interlocutory, as opposed to final, is not always easy to answer. In SilcorpLtd. v. KJK Holdings Inc. (1992), (SK CA), 90 D.L.R. (4th) 488 (Sask. C.A.), at p. 490, Cameron J.A. referred toSalter Rex & Co. v. Ghosh, [1971] 2 All E.R. 865 (C.A.), at p. 866: This question of "final" or "interlocutory" is so uncertain, that the only thing for practitioners to do is to look up the practice books andsee what has been decided on the point. Most orders have now been the subject of decision.

If a new case should arise, we must do thebest we can with it. There is no other way. [9] I also refer to the comments of Cameron J.A. in Silcorp Ltd. v. KJK Holdings Inc. (1992), (SK CA), 90 D.L.R. (4th) 488 (Sask. C.A.): As noted in Halsbury's Laws of England (3rd ed.), vol. 22, p. 742, orders may be final for one purpose but interlocutory for another, andfour different tests have been articulated to determine whether they are this or that for the purpose of appeal:

(1) Was the order made upon an application such that a decision in favour of either party would determine the main dispute?

(2) Was itmade upon an application upon which the main dispute could have been decided?

(3) Does the order, as made, determine the maindispute?

(4) If the order in question is reversed, would the action have to go on? [10] Popowich can be distinguished because in that case the court ordered access to the documents after having made a decision on themerits of the application.

It must be noted Popowich must be looked at in the context of the facts of the case wherein in the policeactivities themselves were central to the ultimate issue between the parties, i.e. malicious prosecution. [11] It is open to the appellants to make a further application for the sought after documents provided they establish a more substantivefoundation which they failed to do in their application below. [12] With regard to the appellants’ alternative argument that if the determination is found to be a final order they make an applicationfor leave to appeal, we are not prepared to entertain such alternative argument.

It is not open to the appellants to both approbate andreprobate, for the reasons articulated in Iron. [13] The challenged affidavit clearly contravenes Civil Practice Directive No. 1. In principle, a lawyer is required to abstain fromappearing as an advocate in a proceeding where he has submitted his own affidavit. However, a lawyer is permitted to depose to a matterwhich is purely a formal one or where the matter deposed to is uncontroverted, that is, not in issue. All of which is clearly set out in thePractice Directive.

The affidavit is struck. [14] The respondents and co-respondents’ application to strike the notice of appeal is successful and each shall have their costs in theusual manner.