Docket: CACV2476 Kim Sinclair v. the Estate of John James Sinclair, Deceased, 2013 SKCA 112

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 112 Date: 2013-10-25 Between: Docket: CACV2476 Kim Sinclair and the Estate of John James Sinclair, Deceased Appellants (Defendants) - and - Bernice Anne Hlady Respondent (Plaintiff) Before: Richards C.J.S. (in Chambers) Counsel: Bonnie D. Missens for the appellants John D. (Jack) Hillson for the respondent Application: From: Q.B.G. No. 294 of 2013, J.C. of Saskatoon Heard: October 23, 2013 Disposition: Application denied; appellant ordered to perfect

Written Reasons: October 25, 2013 By: The Honourable Chief Justice Richards Richards C.J.S. I. Introduction [ 1 ] This is an application by the respondent, Bernice Hlady, to lift the stay of proceedings in this matter. The stay is presently in place by virtue of the operation of Rule 15 of the Court of Appeal Rules . [ 2 ] I have decided that the stay cannot be lifted. However, that said, the appeal should be expedited. My reasons for coming to these conclusions are set out below. II. Background [ 3 ] Ms.

Hlady was in a common-law relationship with Jim Sinclair for 23 years prior to his death on November 9, 2012. [ 4 ] Beginning in 2002, Ms. Hlady and Mr. Sinclair lived in a house at Kinookimaw Beach, near Regina Beach, Saskatchewan. They, as tenants, entered into a lease agreement with Kinookimaw Beach Association, a Saskatchewan incorporated company.

The Association had leased various properties located on the Muskowekwan First Nation Reserve from the Federal Crown and the Muskowekwan Band had authorized the Minister of Indian and Northern Affairs Canada to grant the Association the right to lease the properties. The lot in question was registered in the Indian Lands Register in the names of Mr. Sinclair and Ms. Hlady as joint tenants. I will refer to the lot and the house on it as the “Property.” [ 5 ] Mr. Sinclair became ill with cancer in 2011. By early 2012, it became clear that he was unlikely to recover. Ms. Hlady says that Mr.

Sinclair’s children, including the appellant Kim Sinclair, moved onto the Property in October of 2012, ostensibly to assist with Mr. Sinclair’s care because it was agreed that Ms. Hlady “needed a break.” [ 6 ] Ms. Sinclair tells a different story. She deposes that Ms. Hlady had taken financial advantage of Mr. Sinclair during his illness and had, in effect, abandoned him. She says that she and her family moved into the Property to care for Mr. Sinclair and that, before his death, Mr. Sinclair reconciled with Ms.

Sinclair’s mother and expressed a desire that his family remain on the Property. [ 7 ] In any event, after Mr. Sinclair’s death in November of 2012, Ms. Hlady instructed her lawyer to write to Ms. Sinclair, requesting that she vacate the Property immediately after the holidays. [ 8 ] Ms. Sinclair refused to leave the Property. This led Ms. Hlady to bring an application in the Court of Queen’s Bench. Ms. Sinclair, in the course of that proceeding, argued that the Court of Queen’s Bench had no jurisdiction to make an order concerning what she characterized as a right of possession in relation to reserve land.

Out of concern about this issue, Mills J. did no more than issue a declaration to the effect that Ms. Hlady was the surviving joint tenant of the Property. Ms. Sinclair did not appeal his decision. [ 9 ] Ms. Hlady then brought an application in the Federal Court asking for an order directing Ms. Sinclair to vacate the Property. At this point, Ms. Sinclair did an about-face. She argued that the Federal Court had no authority to deal with the matter and that, as a result, Ms. Hlady should be in the Court of Queen’s Bench. Manson J. held that the Federal Court had no jurisdiction to make the orders sought by Ms.

Hlady. In so doing, he found that Ms. Sinclair had abused the process of the Court and had been duplicitous in playing one court off against the other. [ 10 ] This led Ms. Hlady back to the Court of Queen’s Bench. She again sought an order that Ms. Sinclair vacate the Property and an allied order that the Sheriff assist in the enforcement of the order. On August 28, 2013, Allbright J. granted Ms. Hlady the relief she had requested. His order was, in effect, clarified by a September 25, 2013 order made by Dovell J. In the end, Dovell J.’s order was as follows: 1.

That the Defendant, Kim Sinclair, deliver to the Plaintiff, Bernice Anne Hlady, the lands and premises at Lots 41, 42, and 43, Block 7, Plan 72R29510, Kinookimaw Beach, Saskatchewan (registered with Indian Lands Registry system as Lots 41-43, Block 7, Plan CLSR57647); 2. That the Sheriff, Judicial Centre of Regina is directed to place the said lands and premises in the possession of the Plaintiff Bernice Anne Hlady; [ 11 ] Ms. Sinclair then filed a notice of appeal stating that Dovell J.’s order was being contested on the following grounds:

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i) That the Judge erred in granting [Ms. Hlady] possession of a home and land located of reserve land as described in the IndianAct. (ii) That the Judge erred in ordering the Sheriff to enter upon reserve land, as described in the Indian Act, and place the lands andpremise in the possession of the respondent. (iii) That the Judge erred in waiving Rule 10-4 of the Queens’ Bench Rules. (iv) That the Judge should not have granted costs in the application. [12] The only relief sought by Ms. Sinclair in this Court is an order setting aside the order made by Dovell J.

III. analysis [13] The principles to be applied in adjudicating an application to lift a stay are well settled. The underlying objective is to preventinjustice and to ensure that the result is as fair and equitable as possible for all sides. As stated by Lane J.A. in Ochapowace First Nationv. Araya and Shepherd (1994), (SK CA), 123 Sask.

R. 311 (C.A.) at para. 11, “[t]he purpose [of lifting a stay] is tominimize prejudice pending the appeal and to balance the competing interests of the respondent who has been successful against those ofan appellant who ought not to be prejudiced simply by appealing.” [14] The peculiar aspect of this application is that lifting the stay of Dovell J.’s order would render Ms. Sinclair’s appeal wholly moot,i.e. if the stay is lifted so that Ms. Sinclair is required to deliver the Property to Ms.

Hlady and so that the Sheriff is required to assist Ms.Hlady to take possession of the Property, there will be no point in arguing whether Dovell J. erred in ordering Ms. Sinclair to deliver theProperty and requiring the Sheriff to put the Property in Ms. Hlady’s hands. As a result, I do not see how I can lift the stay. As JacksonJ.A. said in Farm Credit Canada v. Agristar Produce (Sask.) Ltd., 2005 SKCA 36, 269 Sask. R. 55 at para. 10, “The Chambers judgemust not…render the appeal nugatory by the act of lifting the stay.” [15] That said, I am troubled by Ms.

Sinclair’s approach to the litigation concerning the Property. She has not appealed the decision ofMills J. declaring that Ms. Hlady is the surviving joint tenant. However, so it would seem, she now seeks to prevent Ms. Hlady fromenforcing her rights as surviving joint tenant. In this regard, it appears that Ms. Sinclair somehow intends to argue that Dovell J. had noauthority to make her order but, at the same time, she has not appealed Manson J.’s decision to the effect that the Federal Court had nojurisdiction to make such an order. IV. conclusion [16] The best that can be done for Ms.

Hlady, in my view, is to expedite these proceedings so that this appeal can be resolved as quicklyas reasonably possible. Consequently, I order that Ms. Sinclair perfect her appeal by filing a factum and appeal book on or beforeNovember 25, 2013. If she fails to perfect the appeal, Ms. Hlady may, on five days’ notice, move to strike the appeal for want ofprosecution. The costs of this application will be left to the discretion of the panel hearing Ms. Sinclair’s appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 25th day of October, A.D. 2013. “Richards C.J.S.” Richards C.J.S.