Docket: CACV2544 Saskatchewan College of Psychologists Applicant (Respondent) - v. -, 2014 SKCA 116

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 116 Date: 2014-10-31 Between: Docket: CACV2544 Saskatchewan College of Psychologists Applicant (Respondent) - and - Daniel Sydiaha Respondent (Appellant) Before: Jackson, Ottenbreit and Herauf JJ.A. Counsel: Karen Prisciak, QC for the Applicant (Respondent) Jay Watson for the Respondent (Appellant) Application: From: 2014 SKQB 112 Heard: October 31, 2014 Disposition: Application dismissed (orally)

Written Reasons: November 14, 2014 By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Herauf Jackson J.A. [ 1 ] This application concerns the jurisdiction of this Court to hear an appeal from a decision of the Court of Queen’s Bench when the latter exercises jurisdiction under a statute that is silent as to the right to appeal to this Court.

The particular issue is whether ss. 7(2) and 7(3) of The Court of Appeal Act, 2000 , SS 2000, c C-42.1 permit a member of the Saskatchewan College of Psychologists to appeal a decision of the Court of Queen’s Bench to this Court when The Psychologists Act, 1997 , SS 1997, c P-36.01 is silent on the question, providing as it does for a right of appeal by the member to the Court of Queen’s Bench only. [ 2 ] Dr. Daniel Sydiaha is a non-practising psychologist and a member of the Saskatchewan College of Psychologists.

On April 15, 2014, the Court of Queen’s Bench dismissed his appeal from a decision of the council of the Saskatchewan College of Psychologists finding him guilty of professional misconduct for failing to identify his non-practising status (see Sydiaha v Saskatchewan College of Psychologists , 2014 SKQB 112 ). Shortly thereafter, he filed a notice of appeal in this Court. [ 3 ] The only appeal provisions in The Psychologists Act are as follows:

Interpretation 2 In this Act: … (f) “court” means the Court of Queen’s Bench … Appeal to court 37 A member whose conduct is the subject of an order of the council pursuant to

section 36 may appeal that order to a judge of the court within 30 days after the order of the council, and

section 36 applies with any necessary modification. Reinstatement 40(5) Where, on an application for reinstatement, the council refuses to reinstate the person as a member, the applicant may, within 30 days after the date of the order, appeal the order of the council to a judge of the court, and the judge may allow or disallow the appeal. [ 4 ] On the other hand, The Court of Appeal Act, 2000 provides that “an appeal lies” to this Court from “any judgment, order, decree, verdict or finding” of the Court of Queen’s Bench or a judge of that Court unless an enactment “confers only a limited right of appeal” (ss. 2, 7(2) (

a) and 7(3) ). [ 5 ] The precise provisions of The Court of Appeal Act, 2000 concerning the right of appeal to this Court and its jurisdiction to hear an appeal read as follows:

Interpretation 2 In this Act and the rules of court made pursuant to this Act, except where otherwise provided … “court” means the Court of Appeal for Saskatchewan; “decision” includes any judgment, order, decree, verdict or finding; … Right of appeal 7(1) In this

section and

section 9, “enactment” means: (

a) an Act; (

b) an Act of the Parliament of Canada; or (

c) a regulation made pursuant to

an Act or

an Act of the Parliament of Canada; but does not include this Act.

(2) Subject to subsection (3) and

section 8, an appeal lies to the court from a decision : (

a) of the Court of Queen’s Bench or a judge of that court ; and (

b) of any other court or tribunal where a right of appeal to the court is conferred by an enactment.

(3) If an enactment provides that there is no appeal from a decision mentioned in subsection (2) or confers only a limited right ofappeal, that enactment prevails.[1] … Appellate jurisdiction10 The court has appellate jurisdiction in civil and criminal matters where an appeal lies to the court, with any original jurisdictionthat is necessary or incidental to the hearing and determination of an appeal. (Emphasis added) [6] Asserting that The Court of Appeal Act, 2000 does not enlarge the rights of appeal contained in The Psychologists Act, theCollege applied for an order quashing Dr.

Sydiaha’s appeal. [7] On the day the College’s application was heard, we dismissed the application from the Bench with brief reasons to follow. Theseare those reasons. [8] Prior to the enactment of The Court of Appeal Act, 2000, it was necessary for this Court to consider questions of jurisdiction froma complex and ambiguous legislative base. This Court had to determine whether it had jurisdiction to hear an appeal by construing s. 6 ofThe Court of Appeal Act, RSS 1978, c C-42, repealed, and s. 33 of The

Interpretation Act, RSS 1978, c I-11, repealed. [9]

Section 6 of The Court of Appeal Act of 1978, and its predecessors dating back to The Court of Appeal Act, SS 1915, c 9,grounded its jurisdiction in that of the High Court of Justice or the Court of Appeals in England as of January 1, 1898, “where notspecially changed, altered or provided for” by any enactment of the legislature: Nature and extent of jurisdiction 6 The court shall have all the jurisdiction and powers possessed by the Supreme Court of Saskatchewan en banc immediately priorto the first day of March, 1918, and shall have jurisdiction and power, subject to the rules of court, to hear and determine all applicationsfor new trials, all questions or issues of law, all questions or points reserved for the opinion of the court, all appeals or motions in thenature of appeals respecting any judgment, order or decision of any judge of the Court of Queen’s Bench, or respecting any judgment ordecision of any judge of a court of inferior jurisdiction, sitting in court, where an appeal is given by any Act, all petitions, and all othermotions, matters or things whatsoever which might lawfully be brought before any divisional court of the High Court of Justice or theCourt of Appeals in England on the first day of January, 1898, where not specially changed, altered or provided for by this or any otherAct of Saskatchewan. (The Court of Appeal Act of 1978) [10]

Section 33 of The

Interpretation Act of 1978, and its predecessors, dating back to The

Interpretation Act, SS 1959, c 12, onlytangentially concern the question of when a right of appeal lies from a decision of the judge of the Court of Queen’s Bench to this Court.It declares when a judge of the Court of Queen’s Bench is not sitting as persona designata so as to narrow the circumstances when aright of appeal will not exist.

Section 33 (of 1978) provides as follows: Judge or officer not persona designata 33. Notwithstanding

section 3, where by any Act judicial or quasi-judicial powers are given to a judge or an officer of any court,whether individually or as a member of a class, the judge or officer shall, in the absence of express provision to the contrary, be deemedto exercise the powers in his capacity as judge or officer of the court, as if the court itself had jurisdiction in respect thereof, and not aspersona designata. [11] Without a more direct statement as to when a right of appeal would lie to this Court, it was necessary to consider on a case-by-case basis first, whether the Court had jurisdiction derived from a complex matrix of sources and second, whether the legislature hadenlarged or diminished that jurisdiction.

Notwithstanding the indirect language contained in s. 6 of The Court of Appeal Act of 1978 ands. 33 of The

Interpretation Act of 1978, Sherstobitoff J.A., speaking for the Court, declared in Borrowman v Wickens (1986), (SK CA), 82 Sask R 295 (CA): [6] The issue as to right of appeal and the jurisdiction of this court to hear the appeal, in the absence of specific provision in theLocal Government Elections Act for such an appeal, must be taken to have been conclusively settled by the decision of this court inAttorney General of Canada v. Lees, (SK CA), [1977] 4 W.W.R. 505, and the other decisions of this court referred totherein.

The right of appeal, as well as the jurisdiction of this court to hear the appeal, is found in s. 6 of the Court of Appeal Act, R.S.S.1978, c. C-42. (Emphasis added) [12] Similarly, in Attorney General of Canada v Lees, (SK CA), [1977] 4 WWR 505 (Sask CA), the Court wascalled upon to determine whether a right of appeal exists from a decision of the Court of Queen’s Bench under The Recovery ofPossession of Land Act, RSS 1965, c 122. That Act provided for a right of appeal to a judge of the Court of Queen’s Bench, but was silentabout whether a further appeal lies to the Court of Appeal.

This Court held that s. 6 of The Court of Appeal Act of 1978 conferred ageneral right of appeal from a decision of the Court of Queen’s Bench and that this right of appeal applied in the circumstances of thatcase. [13] In other decisions of this Court, the combination of s. 6 of The Court of Appeal Act of 1978 and s. 33 of The

Interpretation Actof 1978, and a consideration of all relevant principles of statutory

interpretation, resulted in a determination that this Court had nojurisdiction to hear an appeal from the Court of Queen’s Bench. (See, for example, Swanson v Saskatchewan Registered Nurses’Association (1992), (SK CA), 100 Sask R 81 (CA).)

[14] When the legislature enacted s. 7 of The Court of Appeal Act, 2000, it ushered in a new era of clarity with respect to this Court’sjurisdiction to hear appeals from the Court of Queen’s Bench.

Cameron J.A., speaking for the Court in Valley Beef Co-operative Ltd. vFarm Credit Corp., 2002 SKCA 100, 223 Sask R 236, stated: [50] These, then, are the fundamental components of all judicial decision-making, and the judges of the Court of Queen’s Bench, ashighly trained and competent as they are as superior court judges, may on occasion fail in relation to one or more of them, or fail on thewhole to pronounce such judgment or make such order as the quelling of the controversy calls for.

This is why the legislature created theright of appeal found in subsection 7(2)(a), when subject to no legislative limit: To provide parties to proceedings in the Court ofQueen’s Bench with the most comprehensive and effective means of redress possible in relation to such failures.

That is the object of theright, the attainment of which we are bound to strive to achieve when construing and interpreting the provisions of the Act concerningthe right, bearing in mind the right of appeal is subject to no limit except such as may be justifiably implied in keeping with the canons ofconstruction. (Emphasis added) [15] In the present application, the College has asked this Court to interpret s. 7 of The Court of Appeal Act, 2000 in such a manner thats. 7(2) would have no effect, and indeed, would overturn such decisions as Borrowman.

According to the College’s submissions, thestarting point for the analysis is s. 7(3). Relying on s. 7(3), the College argued that The Psychologists Act “confers only a limited right ofappeal” because it is silent with respect to a further right of appeal to this Court, i.e., the absence of a right of appeal to this Court meansthat the enactment confers a limited right of appeal on the member. In that regard, the College relies on Huerto v Saskatchewan (Ministerof Health) (1995), (SK CA), 128 Sask R 208 (CA) and Swanson, which is referred to in Huerto.

In further support ofits position, the College provided a list of statutes dealing with the regulation of the professions, which provides either a right of appealto the Court of Queen’s Bench only or an explicit right of appeal to this Court from a decision of the Queen’s Bench. [16] Since this application presents a question of statutory

interpretation, it is useful to refer to the analytical framework provided by theSupreme Court of Canada to determine the intention of the legislature. According to that framework, a court interpreting legislation mustread the words of the statute in their entire context, in their grammatical and ordinary sense harmoniously within the scheme of thestatute, its objective and the intention of the legislature: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27 at 41(quoting E.

Driedger, Construction of Statutes, 2d ed (Toronto: Butterworths, 1983) at 87). [17] Faced with determining the exact limits of appellate jurisdiction in legislation like The Court of Appeal Act, 2000, a legislature hastwo choices. The legislature could provide that the Court of Appeal has no jurisdiction unless it is specifically granted to the Court by anenactment, or the legislature could spell out the general jurisdiction of the Court, subject to an expression of contrary legislative intentionin any enactment.

Whatever route is chosen, the goal must be clarity so as to avoid, as much as possible, litigation that is centered not onthe merits of the dispute but on whether this Court has the jurisdiction to resolve it. [18] In this application, this Court’s task is to determine which legislative model the legislature intended when it enacted The Court ofAppeal Act, 2000.

In this Court’s view, having regard for what preceded The Court of Appeal Act, 2000 and its provisions, the legislaturehas chosen the second model: the legislature has established a general right of appeal unless there is an expression of legislative will tothe contrary. When enacting legislation, it should be possible to rely on The Court of Appeal Act, 2000 without having to repeat thisCourt’s appellate jurisdiction in every statute that confers original or appellate jurisdiction on the Court of Queen’s Bench.

Only in thecircumstance where the legislature intends to exclude or limit a right of appeal should it need to turn its mind to the jurisdiction of thisCourt. [19] In our view, it is an error to construe s. 7 by asking first whether The Psychologists Act “confers only a limited right of appeal”within the meaning of s. 7(3). Section 7(2) begins with the words “subject to subsection (3),” but it is necessary to consider the generalprovision before considering what is taken from it. [20] Section 7(2)(

a) states that “an appeal lies to the court from a decision … of the Court of Queen’s Bench or a judge of that court.”Reading these words grammatically and giving them their ordinary sense, they indicate that whenever the legislature confers jurisdictionon the Court of Queen’s Bench, and is silent with respect to an appeal from that Court, an appeal lies from it. This meaning is supportedby the objectives and purposes of The Court of Appeal Act, 2000, which are to establish the jurisdiction, powers and duties of the Courtof Appeal and its judges.

The meaning is also supported by a consideration of what s. 7 replaced: a general, albeit ambiguous, right ofappeal conferred by s. 6 of The Court of Appeal Act of 1978 and its predecessors. [21] Section 7(2) is subject to s. 7(3).

Section 7(3) provides that the legislature can take away the right of appeal conferred in s. 7(2) inan enactment, but that enactment must “provide that there is no right of appeal” or “confer only a limited right of appeal.” The Collegesubmits that the lack of an express right of appeal to this Court in The Psychologists Act means that it is an enactment that confers only alimited right of appeal. [22] Clearly, the legislature can convey intent without express words, but if this Court held that the phrase “confers only a limited rightof appeal” is satisfied when no right of appeal is provided in the other enactment, s. 7(2)(

a) would serve no purpose. A right of appealwould have to be found in every other enactment that confers jurisdiction on the Court of Queen’s Bench. [23] In order to properly interpret s. 7, it is necessary to read ss. 7(2) and 7(3) harmoniously together so as to give each provisionmeaning. Having regard for the nature of general appellate legislation like The Court of Appeal Act, 2000, the proper meaning ofs. 7(2)(

a) is that it creates the general jurisdiction of the Court: an appeal lies to the Court from a decision of the Court of Queen’s Bench.Section 7(3) is nothing more than a further expression of what would be the law whether the subsection were there or not: the generalright of appeal to the Court is subject to an expression of legislative will to the contrary in any other enactment, but it requires more thansilence in the other enactment to take away the general right. [24] With this

interpretation of s. 7, it is of little relevance that many of the professional statutes are silent on the question of a right ofappeal to this Court. When the legislature enacted The Court of Appeal Act, 2000, it drew no distinction between professional statutesand others. If this Court were to draw a distinction when the legislature has not, it would fly in the face of what we have found to be the

clear legislative intent proclaimed by s. 7(2) . [ 25 ] Given this

interpretation, it is not strictly necessary to consider Swanson [2] and Huerto other than to note that they are distinguishable. In Huerto , s. 49.21(4) of The Saskatchewan Medical Care Insurance Act , RSS 1978, c S-29 provided that “[t]here is no appeal from the decision of a judge pursuant to this section.” Thus, it concerned an express statement, which would fall into the first part of s. 7(3). [ 26 ] We note as well that following this Court’s decision in Swanson , the legislature enacted The

Interpretation Act , 1993 , SS 1993, c. I-11.1, which added the following: Powers to judges 44(1) Where judicial or quasi-judicial powers are given to a judge or officer of a court, the judge or officer in exercising the powers does so in his or her official capacity and representing his or her court.

(2) Without restricting subsection (1), where an appeal lies from a person, board, commission or other body to a court or judge, an appeal lies from the decision of the court or judge as in the case of any other proceeding in that court or in the court of which the judge is a member . (Emphasis added) [ 27 ] Section 44(1) of The

Interpretation Act , 1993 is a reenactment of s. 33 of The

Interpretation Act of 1978. Section 44(2) of The

Interpretation Act , 1993 , however, is a new provision. It provides support for the proposition that where a Court of Queen’s Bench judge is acting pursuant to a right of appeal to that Court, a further appeal lies to this Court. This provision is repeated in The

Interpretation Act , 1995 , SS 1995, c I-11.1 in the exact same terms. [ 28 ] In conclusion, s. 7(2) (

a) of The Court of Appeal Act, 2000 is a clear expression of legislative intent establishing the general rule that an appeal lies to the Court of Appeal from a decision of the Court of Queen’s Bench or a judge of that Court. Silence alone is not an expression of legislative intent as to whether a further appeal lies to this Court from a decision of the Court of Queen’s Bench. That is the general rule. Section 7(2)(

a) is, of course, subject to the need to obtain leave with respect to interlocutory decisions and to the two exceptions contained in s. 7(3): (

i) when another enactment provides that there is no appeal from a decision of the Court of Queen’s Bench; and (ii) when another enactment confers only a limited right of appeal. In both of these circumstances, the other enactment prevails. [ 29 ] Neither of those last two circumstances pertains to the application before us. The Psychologists Act does not state that there is no appeal from a decision of the Court of Queen’s Bench.

I note that the College does not have a right to appeal from the decision of the council to the Court of Queen’s Bench, but that does not limit the member’s right of appeal from that Court to this one. [ 30 ] For these reasons, the College’s application was dismissed when heard. The question of costs is left for the panel of the Court hearing Dr. Sydiaha’s appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 14 th day of November, 2014. “Jackson J.A.” Jackson J.A. I concur. “Ottenbreit J.A.” Ottenbreit J.A. I concur. “Herauf J.A.” Herauf J.A.