Docket: CACV 2298 Can-American Service Ltd. Prospective Appellant - v. -, 2012 SKCA 89

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 89 Date: 2012-09-10 Between: Docket: CACV 2298 Can-American Service Ltd. Prospective Appellant - and - 101058955 Saskatchewan Ltd. Prospective Respondent Before: Klebuc C.J.S. (in Chambers) Counsel: No one appearing on behalf of Can-American Service Ltd. Richard Carlson on behalf of 101058955 Saskatchewan Ltd.

Application: From: 2012 SKQB 201 Heard: September 10, 2012 Disposition: Application dismissed (orally) Written Reasons: October 5, 2012 By: The Honourable Chief Justice Klebuc KLEBUC C.J.S. I. Introduction [ 1 ] The prospective appellant, Can-American Service Ltd., ("Can-American") applied for an extension of time to appeal from the judgment of Justice B. Scherman in the within action dated May 16, 2012. [ 2 ] Can-American failed to appear by legal counsel or otherwise on the date set for the hearing of its motion.

Based on the written material provided by Can-American, I dismissed its application with reasons to follow. These are my reasons. II. Background [ 3 ] Can-American contracted with the prospective respondent, 101058955 Saskatchewan Ltd. ("Superior Spray") to provide a roof membrane for a commercial building it owned. Can-American refused to pay the contract price due Superior Spray because the roof membrane allegedly had not been properly installed. It further claimed it was not a party to the subject contract, but its principal officer and shareholder, Mervin Stephenson, was. Mr.

Stephenson represented Can-American during the trial. [ 4 ] Justice Scherman heard and evaluated the testimony of several witnesses called by Can-American and Superior Spray, including the evidence of Mr. Stephenson, and based thereon concluded Superior Spray had properly installed the roof membrane. He awarded Superior Spray judgment against Can-American for $41,400.00 with pre-judgment interest. [ 5 ] Can-American failed to appeal from the judgment of Scherman J. within 30 days of the date the judgment was issued.

This resulted in Can-American filing a notice of motion to extend the time to appeal on August 2, 2012 together with what might loosely be described as a “proposed notice of appeal.” In the notice of motion and proposed notice of appeal, Can-American takes issue with numerous findings of fact by the trial judge, the trial judge’s assessment of credibility of the evidence before him and his

interpretation of the whole of the evidence before him. [ 6 ] The affidavit filed by Mr. Stephenson in support of the application for an extension of time does not adequately describe why the notice of appeal was not filed in time. III. Legislation [ 7 ]

Section 9 of The Court of Appeal Act, 2000 , S.S. 2000, c. C-42.1 provides that a notice of appeal must be served on the respondents named therein and filed with this Court within 30 days following the date a written judgment is filed with the registrar, local registrar or Chambers clerk of the Court of Queen's Bench. [ 8 ] Subsection 9(6) provides that upon application of any party, a judge or the court may extend an appeal period if, in the opinion of the judge or the court, it is just and equitable to do so. IV.

Analysis [ 9 ] Although the Court has considerable discretion to grant or not grant an extension of time to appeal from a lower court decision, it traditionally requires the applicant to establish the following: (1) a bona fide intention to appeal prior to the right of appeal having expired by virtue of an effluxion of time; (2) a satisfactory explanation for the delay in serving and filing a notice of appeal; (3) a reasonable chance of success on the appeal, based on the law and/or the evidence presented during the trial; and (4) if an extension of time were granted, the prospective respondent would not experience any greater prejudice than if a notice of

appeal had been served within the prescribed time. [10] In P.G.R. Films Ltd. v. Sooters Studios Ltd. (1994), (SK CA), 123 Sask. R. 301 (C.A.) Jackson J.A. discussedthe manner in which the aforementioned factors are to be considered and applied. At para. 4 she stated: [4] … An application to extend the time to appeal is governed by Rule 7 of the Court of Appeal Rules: 7. The judge delivering the judgment or making the order proposed to be appealed against, or the court, or a judge thereof, may eitherbefore or after the expiration of the time for giving a notice of appeal, enlarge the time for giving such notice.

The principles generally applicable to the exercise of discretion to enlarge an appeal period require consideration of a variety of factors:(

i) bona fide intention to appeal within the time limited for appeal; (ii) demonstration of an arguable case; (iii) explanation for delay; and(iv) no prejudice to the respondent. These various factors were first articulated with some specificity and detail in Cairns v. Cairns, (AB CA), [1931] 3 W.W.R. 335 (Alta. C.A.). This court either as a division or in chambers has referred to these principleson a number of occasions: Joynt v. Topp (No. 2) (1962), (SK CA), 40 W.W.R. (N.S.) 248 (Sask. C.A.) and casesreferred to therein; Royal Bank of Canada v. G.M. Homes Inc. et al (1982), (SK CA), 25 Sask. R. 6 (C.A.); Bank ofNova Scotia v. Saskatoon Salvage Company

(1954) Ltd. (1983), (SK CA), 29 Sask. R. 285 (C.A.); and TreelandMotor Inn Ltd. v. Western Assurance Co. et al (1983), (SK CA), 30 Sask. R. 154 (C.A.). (For representative casesfrom other jurisdictions, see Stevenson & Coté Civil Procedure Guide (Juriliber Limited, 1989), pp. 994 to 999.) As these cases indicate,Rule 7 requires a balancing of all relevant factors and principles keeping in mind the obligation on the Chambers judge to achieve a justresult. In a given case, one or more factors may be more important than another.

For example, in Treeland the minimal prejudice to therespondent coupled with the arguable nature of the case outweighed the lack of intention to appeal during the appeal period. As BaydaC.J.S. said in G.M. Homes (at pp. 6-7): "the only constant rule is that the discretion must be exercised judicially". The provisions of Rule 7 of The Court of Appeal Rules now form part of Rule 9(6) of The Court of Appeal Act, 2000. [11] That said, I turn to the application before me.

The prospective appellant has failed to establish a bona fide intention to appeal thedecision of Scherman J. prior to the time to file an appeal having expired or to provide an acceptable explanation for the delay inattempting to launch an appeal until well after the 30-day appeal period had expired. It also has not presented an arguable case regardingthe merits of its proposed appeal. [12] Having regard to all of the aforementioned principles, I am satisfied that this is not an appropriate case to exercise my discretion byextending the time to file a notice of appeal.

Consequently, the application for an extension of time is dismissed. The prospectiverespondent shall have its taxable costs in the usual manner.