Docket: CACV2516 Robert Preece (Defendant) Appellant - v. -, 2014 SKCA 113

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 113 Date: 2014-10-31 Between: Docket: CACV2516 Robert Preece (Defendant) Appellant - and - David Clements, Tom Morton and Georgina Morton (Plaintiffs) Respondents - and – Government of Saskatchewan (Third Party) Respondent Coram: Jackson, Ottenbreit and Herauf JJ.A. Counsel: Bruce Wirth for the applicant Nicholas Stooshinoff for the respondent s Appeal: From: Q.B. 304 of 2007, J.C. of Battleford Heard: October 31, 2014 Disposition: Motion dismissed Written Reasons: November 4, 2014

By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Ottenbreit Herauf J.A. (orally) [ 1 ] The defendant, Robert Preece, applied by motion in Queen’s Bench for an order pursuant to former Queen’s Bench Rule 215(1) to have the plaintiff, David Clements, provide further and better production of documents. [ 2 ] The motion was one of three motions that came before Maher J. on April 18, 2013. Justice Maher made certain oral rulings after hearing submissions from counsel. Maher J. also reserved on other matters, including the application in question.

With respect to Mr. Preece’s application for Mr. Clements to provide further and better production of documents, Maher J. noted at para. 28 of his January 15, 2014 fiat ( 2014 SKQB 6 ) dealing with the reserved matters that “the matter was disposed of in my oral fiat of April 18, 2013.” [ 3 ] Mr. Preece filed a notice of appeal that, amongst other grounds, appeals the “failing to grant the Defendant’s application pursuant to Rule 215(1) of the Queen’s Bench Rules of Practice …”. [ 4 ] The application before us today relates to Mr.

Clements’ motion to quash “the appeal insofar as it relates to the order failing to grant the defendant’s application requiring the plaintiff, David Clements, to make further and better production of documents.” Mr. Clements launched this application on the footing that Mr. Preece had failed to obtain leave to appeal from this order which he contends is interlocutory.

Section 8 of The Court of Appeal Act, 2000 , SS 2000, c C-42.1, requires that leave be obtained in order for this Court to have jurisdiction to hear the appeal. [ 5 ] We find that we do not have to make any determination as to whether the order in question is interlocutory or final. As indicated by Mr. Preece in his notice of appeal, Maher J. did not address this matter in his oral fiat of April 18, 2013 or his written fiat of January 15, 2014. [ 6 ] Our jurisdiction to entertain an appeal requires that there be a “decision” from which to appeal (see: s. 7 of The Court of Appeal Act, 2000 ).

A decision is defined in s. 2 of The Court of Appeal Act, 2000 as a “judgment, order, decree, verdict or finding.” Since there is no decision to appeal from, it follows that the motion to quash must be dismissed. However, the fact there is no decision permits this Court to strike ground #4(

d) of the notice of appeal filed on February 19, 2014 as a nullity. We do so without prejudice to the parties to return this matter to the Court of Queen’s Bench by contacting the Local Registrar at the appropriate judicial centre to request that this issue be heard and determined. [ 7 ] Since the Court has granted the applicant’s relief, albeit on grounds not requested, there will be costs of this motion in the amount of $500 payable by Mr. Preece to the applicant, Mr. Clements.