Docket: CACV2207 Eagle Eye Investments Inc. Appellant - v. -, 2013 SKCA 66

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 66 Date: 2013-06-17 Between: Docket: CACV2207 Eagle Eye Investments Inc. Appellant - and - CPC Networks Corp. Respondent - and - Larry Ayers Motion Applicant - and - Timothy Tkachuk Motion Respondent Before: Richards J.A. (in Chambers) Counsel:

Larry Ayers on his own behalf appearing by telephone Joel Hesje, Q.C. for the respondent appearing by telephone Application: From: 2012 SKCA 20 Heard: June 14, 2013 Disposition: Application dismissed Written Reasons: June 17, 2013 By: The Honourable Mr. Justice Richards Richards J.A. I. Introduction [ 1 ] Larry Ayers filed an application seeking various forms of relief in relation to an order made in Chambers in 2012. He asked that (

a) the order be declared to be of no force or effect, (

b) Timothy Tkachuk, an individual who is said by Mr. Ayers to have sworn a false affidavit in the proceedings underpinning the order, be required to show cause why he should not be committed for contempt of court, (

c) a stay be entered with respect to all enforcement proceedings relating to the order, and (

d) costs be paid to him and Eagle Eye by Mr. Tkachuk. [ 2 ] When the application was argued, Mr. Ayers scaled back his requests for relief to (

a) a request that I in some way initiate contempt-type proceedings against Mr. Tkachuk, and (

b) a request that I order Mr. Tkachuk to pay him costs in the amount of $6,000. Those are the two issues that I must deal with. II. Background [ 3 ] The background of this matter is set out in my reasons for decision in Eagle Eye Investments Inc . v. CPC Networks Corp. , 2012 SKCA 20 , 385 Sask. R. 264. I will not repeat all of the detail recited there. Suffice it to say that Mr. Ayers represented the appellant Eagle Eye. An application was brought by the respondent CPC Networks to have Mr.

Ayers removed as counsel on the grounds both that he was acting against a former client and that he was acting as both witness and counsel in the same proceedings. I granted the application and, in light of the particular features and history of the situation, ordered Eagle Eye to pay costs of $1,500 and Mr. Ayers, personally, to pay costs of $3,000. All of this was done by way of an order (the “Order”) issued on February 29, 2012. The Order was factually grounded on the contents of the affidavit sworn by Mr. Tkachuk but only to the extent that it turned on the notion that Mr.

Ayers was acting against a former client. Mr. Tkachuk’s affidavit was not important to the question of whether Mr. Ayers was attempting to act as both lawyer and witness in the same proceeding. III. The Application [ 4 ] As indicated, Mr. Ayers, who says he is acting only on his own behalf and not for Eagle Eye, sought various forms of relief in relation to the Order. His notice of motion included the following prayer for relief: 1.

A declaratory order that the Order and Reasons obtained by CPC Networks Corp. on the 29 th day of February 2012 was obtained under false pretenses contained in a misleading affidavit made by the said Timothy Tkachuk and submitted to the court in this file; AND

a) An order that a citation be made against Tim Tkachuk commanding him to attend before this court at such time and place as this court might see fit to show cause why he should not be committed for contempt of court for providing a false and misleading affidavit to this court,

b) Or in the Alternative an order that this matter be referred to the Saskatoon City Police for investigation and if warranted the said Tim Tkachuk be charged by indictment or

summary conviction for the offence of obstruction of justice, perjury or such other charges as the Police may see fit. 2. An order declaring the said Order and Reasons, null, void and of no affect;

3. An order that all legal and judicial process for enforcement of the order be stopped and that CPCN remove all liens encumbrances and charges in respect of the above order and that CPCN be ordered to refrain from and desist in the enforcement of that order, 4. An order that the said Timothy Tkachuk pay costs to the said Larry Ayers in the amount of $6,000 and costs to Eagle Eye Investments Inc. in the amount of $3,000. 5. Such further and other order as this honourable court may see fit to make. [ 5 ] In light of his oral submissions, I now understand Mr.

Ayers to be asking only for the relief described in paras. 1 and 4, above. He also suggested that I consider directing the police to investigate Mr. Tkachuk’s conduct. IV. Analysis [ 6 ] I am not prepared to grant the orders sought by Mr. Ayers. Assuming without deciding that he has standing to bring this proceeding, it is nonetheless fundamentally ill-founded. [ 7 ] As noted, the Order was issued on February 29, 2012. When it was argued, on February 22, 2012, Mr. Ayers expressly indicated that he was prepared to proceed.

In fact, paras. 25 and 26 of my reasons for decision in respect of the Order read as follows: [25] Mr. Ayers also indicated that he was prepared to deal immediately with the issue of whether he was entitled to act for Eagle Eye on the motion to remove McDougall Gauley LLP. [26] I should perhaps add here that, well into the oral submissions of this matter, Mr. Ayers (without identifying particulars) suggested he should have an opportunity to file a further affidavit or affidavits. I am not prepared to accede to this suggestion. Mr.

Ayers had more than five weeks to prepare affidavit material and, more importantly, he expressly advised at the outset of the argument that he was ready to proceed and to have the motion determined. [ 8 ] Neither Eagle Eye nor Mr. Ayers attempted to appeal the Order to the Court as they were entitled to do by virtue of s. 20(3) of The Court of Appeal Act, 2000 . It is set out below:

(3) An order made by a judge in chambers, other than an order granting or denying leave to appeal, may be discharged or varied by the court. [ 9 ] Now, some 16 months after the fact, Mr. Ayers has filed affidavits sworn by him and his business associates, Jack Adams and Vicki Richert. They depose that parts of the Tkachuk affidavit which I relied on in making the Order were false. However, nothing in their affidavits is new and all of the information found in those affidavits could have been filed in the context of the 2012 application which gave rise to the Order. [ 10 ] I appreciate that Mr.

Ayers is concerned the Order reflects badly on him as a lawyer and he made it very clear that he believes Mr. Tkachuk did not speak truthfully in his affidavit. Nonetheless, at the end of the day, the material before me reveals nothing more than a difference of opinion or recollection about various issues. Mr. Tkachuk’s version of certain matters is different than the one held by Mr. Ayers, Mr. Adams and Ms. Richert. In itself, this is not novel and, on its face, it is not contemptuous. To the contrary, it is the usual stuff of litigation. Witnesses rarely tell precisely the same stories.

If they did, there would often be no need to go to court in the first place. [ 11 ] The present application is, in substance, an attempt to unravel the factual findings reflected in the reasons for decision underpinning the Order and, at least in relation to the issue of costs, to effectively change the bottom line of the Order. This is problematic because, if Mr. Ayers or Eagle Eye had concerns about Mr. Tkachuk’s affidavit, Mr. Ayers should not have proceeded to argue the application in 2012 without first filing his own affidavit material and/or seeking leave to cross-examine Mr. Tkachuk on his affidavit.

Alternatively, after the Order was delivered, Mr. Ayers or Eagle Eye could have appealed it to the Court. None of this was done. [ 12 ] Given that Mr. Ayers failed to take any of several obvious steps when they might or should have been taken, it would not be appropriate to allow him to now challenge Mr. Tkachuk’s affidavit. For the purposes of the proceedings before this Court on the motion to remove Mr. Ayers as counsel for Eagle Eye, that ship has long since sailed. I understand that there is still litigation ongoing with respect to CPC Networks in the Court of Queen’s Bench. Mr.

Ayers will presumably have an opportunity to attempt to vindicate his concerns about Mr. Tkachuk’s evidence in the context of those proceedings. V. Conclusion [ 13 ] Mr. Ayers’ application is dismissed. He is ordered to forthwith pay costs in the amount of $1,000 to Mr. Tkachuk.

DATED at the City of Regina, in the Province of Saskatchewan, this 17th day of June, A.D. 2013. “Richards J.A.” Richards J.A.