Docket: CACV 2392 Dale Beare Appellant - v. -, 2013 SKCA 44

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 44 Date: 2013-04-26 Between: Docket: CACV 2392 Dale Beare Appellant - and - Kirby Enterprises Inc., David Kirby and Rural Municipality of Sherwood No. 159 Respondents Before: Caldwell J.A. (in Chambers) Counsel: Fred Zinkhan for the appellant Russell Hart for the respondents, Kirby Enterprises Inc. and David Kirby Daniel Kwochka for the respondent, Rural Municipality of Sherwood No. 159 Application: From: Q.B.G. No. 1037 of 2012, J.C. Regina

Heard: April 24, 2013 Disposition: Application dismissed Written Reasons: April 26, 2013 By: The Honourable Mr. Justice Caldwell Caldwell J.A. [1] The Appellant has appealed from the decision of a Queen’s Bench chambers judge denying him an injunction which, if granted,would have prohibited the Respondent rural municipality from constructing culverts across a municipal roadway. The appeal is not yetperfected. In the meantime, however, the Respondent rural municipality has constructed just such a culvert.

This will, apparently, havethe effect of allowing the now imminent spring runoff to flow where it would otherwise have not: toward the Appellant’s property andaway from the Respondent corporation’s property. The Appellant therefore seeks an interim order of this Court, in the nature ofinjunctive and mandamus relief, to prevent this from happening. More particularly, the Appellant seeks the following: (

a) an order pursuant to section 20(1) of The Court of Appeal Act, 2000, S.S. 2000, c. C-42.1 and Rule 48 of The Court of Appeal Rules,to restrain the Respondents from taking any steps to alter or modify the existing drainage upon the lands in question or the municipalroadways and road allowances bordering the same, pending the hearing or determination of the within appeal; (

b) an order that the Respondent rural municipality immediately remove a 24-inch diagonal culvert installed on the roadway junctionwhere the said lands meet and restore the same to the condition it was in prior to installation of such culvert; however, in argument, theAppellant allowed that an order that the Respondent rural municipality cap the culvert or weld it shut would suffice; (

c) an order setting the within appeal down for hearing on an expedited basis; and (

d) an order that the Appellant have the costs of this application in any event of the cause on a substantial indemnity basis. [2] The Respondents oppose the application on grounds that the Court lacks jurisdiction to grant the relief sought because it is not“incidental to an appeal”. Alternatively, if the matter is within jurisdiction, the Respondents say the Court ought not to exercise itsdiscretion to grant the relief sought in the circumstances of this matter.

They also ask for their costs in this application. [3] I start by noting the Appellant has characterised the nature of the relief sought as an order to preserve the status quo untildisposition of the appeal proper. While this is a particularly narrow characterisation of what the status quo is in these circumstances, forthe purposes of this analysis I will assume it is correct.

With that assumption, this matter reduces to the question of whether a judge ofthis Court in chambers has the authority to grant relief in the nature of that sought by the Appellant. [4] A judge in chambers certainly has the authority to make an order with a view to preserving the status quo so as to preventprejudice pending the determination of an appeal (see: Re Blackwoods Beverages Ltd. v. Dairy Employees (1956), (SKCA), 3 D.L.R. (2d) 529 (Sask. C.A.); but, this authority is generally exercised in the context of an application under Rule 15 to lift orimpose a stay (see, for example: T.E.T. v.

J.D.L., 2004 SKCA 76, 249 Sask. R. 218), which Rule is not applicable where the appeal isfrom a denial of injunctive relief in the Court of Queen’s Bench, because there is no order to be stayed. [5] Nevertheless, the Appellant correctly notes that s. 20(1) of The Court of Appeal Act, 2000 empowers a judge in chambers to hearand dispose of any matter incidental to an appeal which does not involve the decision of the appeal on the merits, and, presumably, thiswould encompass relief in the nature of that which he seeks. Of course, a judge’s authority in s. 20(1) is not unrestricted.

The provisionhas been interpreted as authorizing orders which play “a minor or subordinate role in relation to the outcome of the appeal proper” (see:Stevenson Estate v. Bank of Montreal, 2009 SKCA 11, 320 Sask.

R. 168 at para. 10 (per Wilkinson J.A. (as she then was) in chambers)).But, apropos this application, s. 20(1) does not empower a judge in chambers to make an order which will substantively determine anappeal on its merits as that power is undoubtedly reserved to a quorum of the Court (see: ss. 15 and 20 of The Court of Appeal Act, 2000). [6] The jurisprudence also suggests that a judge in chambers may be empowered in the exercise of the inherent jurisdiction of theCourt to grant relief to preserve the status quo pending appeal. In that respect, Taylor v. Eisner (1989), (SK CA), 80Sask.

R. 84 (C.A., per Gerwing J.A. in chambers), is directly on point because the appellant had there sought interim injunctive relieffrom a judge in chambers pending disposition of an appeal from a Queen’s Bench decision which had denied him that very sameinjunctive relief at first instance. In her reasons for dismissing the application, Gerwing J.A. said: [10] A Chambers judge of this court sitting alone cannot, of course, grant the entire relief to be granted by the court on the appealproper.

There are dicta which suggest that an order can be made by the Chambers judge to preserve the status quo, but an order of thekind suggested, ordering the cow elk to be bred with a Manitoba bull to be provided by the appellant, when this is contrary to the wishesof the respondents, is in my view outside the power of a judge sitting in Chambers in this court. [7] Applied to the circumstances of this matter, regardless of whether examined under s. 20(1) or under the inherent jurisdiction ofthe Court, the relief requested by the Appellant is undoubtedly beyond the authority of the Court.

I say this, first, because I amcompelled to conclude that the broad relief sought here is not incidental to the appeal, even on an interim basis. This is so because, giventhe imminence of the spring runoff and the current status of the appeal proper, the interim injunctive and mandamus relief sought by theAppellant would render the appeal moot by the time it could be heard and, thereby, substantively determine the appeal. Second,

assuming (without deciding) that a judge in chambers is empowered to grant relief in the nature of that sought by the Appellant under the inherent jurisdiction of the Court, in the circumstances of this matter, the relief sought would undoubtedly fall outside that power because the Appellant’s application seeks to obtain more in the way of relief than does his appeal.

The Appellant’s application for relief in the nature of injunctive and mandamus relief is therefore dismissed. [ 8 ] As to the Appellant’s request for an order setting the within appeal down for hearing on an expedited basis, the Appellant advised he is in a position to file his Factum and Appeal Book by May 6, 2013. When speaking to this issue before me, the parties seemed to be in general agreement that they could adequately police perfection of the appeal in accordance with the Rules.

As such, I make no order in this regard. [ 9 ] The Respondents shall each have their costs paid by the Appellant, in the usual manner. Dated at the City of Regina, in the Province of Saskatchewan, this 26 th day of April, A.D. 2013. ___ “Caldwell J.A.” ________________ Caldwell J.A.