Docket: CACV2285 J.C. Akin Architect Ltd. v. Jim Cemil Akin, 2013 SKCA 60

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 60 Date: 2013-05-29 Between: Docket: CACV2285 J.C. Akin Architect Ltd. and Jim Cemil Akin Appellants - and - Todd Michael Rosenberg and MacPherson Leslie Tyerman LLP Respondents - and - Thomas Daniel Reisinger, MP Equities Ltd., Albert Michael Reisinger, Zsar Holdings Ltd., RDL Capital Corp., Riverbend Developments Ltd., Matt Mann, and Roman Bergerman Defendants/Non-parties Coram: Jackson, Ottenbreit and Caldwell JJ.A. Counsel: Robert L. Stevenson for the appellants Timothy J. Brown for the respondents Appeal: From: 2012 SKQB 225 Heard: May 29, 2013 Disposition: Dismissed (orally)

Written Reasons: June 4, 2013 By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Ottenbreit Caldwell J.A. [1] The appellants appealed from the whole of the judgment of Madam Justice Dovell dated June 4, 2012 (see 2012 SKQB 225). Inher judgment, Madam Justice Dovell (

i) struck the appellants’ amended statement of claim as against Todd Michael Rosenberg andMacPherson Leslie Tyerman LLP pursuant to Rule 173(

a) of The Queen’s Bench Rules on the basis that it plainly and obviously failed todisclose a reasonable cause of action against the respondents, (ii) dismissed the amended statement of claim as against the respondentspursuant to Rules 173(

c) and (

e) on the basis that it was scandalous, frivolous, vexatious and otherwise an abuse of the court’s process,and (iii) awarded costs in favour of the respondents. We dismissed the appeal orally for reasons which are substantively reproducedherein. [2] To start, notwithstanding our general agreement with the broad statements of law and principle articulated by the appellants, thisappeal is and always has been about the application of the law to the facts. In this regard, we found no error whatsoever on the part ofMadam Justice Dovell.

In fact, we are of the unanimous opinion that the within appeal must be dismissed in its entirety for the veryreasons given by Madam Justice Dovell in her judgment. [3] In dismissing the appeal, we emphasize we are in complete agreement with Madam Justice Dovell’s findings. It is plain andobvious that to have allowed the action to proceed against Mr. Rosenberg and MacPherson Leslie Tyerman LLP would have been topermit the respondents to be “vexed” and would therefore have amounted to the very kind of abuse of the court’s process that Rule 173was meant to prevent (Hunt v.

Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959, at p. 975). Moreover, we find ourselvesin complete agreement with Madam Justice Dovell in her conclusion that the claims made against Mr. Rosenberg and MacPherson LeslieTyerman LLP are scandalous, frivolous, vexatious and otherwise an abuse of process for the purposes of Rules 173(

c) and (e). [4] Finally, in light of Madam Justice Dovell’s clear findings of fact to the effect that the allegations with respect to Mr.

Rosenbergand MacPherson Leslie Tyerman LLP, as contained in the amended statement of claim, “clearly and obviously lack any meritwhatsoever” and “will lead to no practical result” and that these “vague, inconsistent and ultimately unsupportable serious allegations”were made “without any factual support”, we echo her obiter comments as follows: [59] … Lawyers and law firms are not above the law and should be given no special considerations by the Court other than torecognize their unique position when it comes to their clientele.

There is nothing which would distinguish Rosenberg’s conduct from theexpected conduct of any other lawyer in the Province of Saskatchewan or for that matter anywhere in Canada in the normal course ofperforming his or her duties. [60] It is conceivable that if the action against Rosenberg and MLT was ever allowed to stand, then in any case where a lawyer’srepresentation of a client adversely affected the interests of another party, the lawyer would become part of a triable conspiracy, if soalleged.

This is obviously untenable in an adversarial system of justice and, therefore, not a pattern of conduct to be encouraged ortolerated by our Court. [5] The appeal is dismissed. The order of Madam Justice Dovell striking out and dismissing the appellants’ amended statement ofclaim as against Mr. Rosenberg and MacPherson Leslie Tyerman LLP is confirmed. In the circumstances, we order that Mr. Rosenbergand MacPherson Leslie Tyerman LLP shall have one set of costs paid by the appellants, to be taxed on Column 4.