Docket: CACV2597 Thomas Gehlen v. Resource Management Inc., 2014 SKCA 117

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 117 Date: 2014-11-17 Between: Docket: CACV2597 Thomas Gehlen and Resource Management Inc. Prospective Appellants (Defendants by Counterclaim) - and - Brian Bryden and Bryden Construction & Transport Co. Inc. Prospective Respondents (Plaintiffs by Counterclaim) Before: Whitmore J.A. (in Chambers) Counsel: Kenneth Reh for the Prospective Appellants Jared Epp for the Prospective Respondents Application: From: QB No. 699 of 2012, J.C. of Saskatoon Heard: November 12, 2014 Disposition: Leave to appeal denied

Written Reasons: November 17, 2014 By: The Honourable Mr. Justice Whitmore Whitmore J.A. I. Introduction [ 1 ] The prospective appellants, Thomas Gehlen and Resource Management Inc. (the applicants), seek leave to appeal the decision of the Court of Queen’s Bench judge in Chambers dismissing their application for a

summary judgment with respect to the counterclaim brought by the prospective respondents, Brian Bryden and Bryden Construction & Transport Co. Inc. (the respondents). [ 2 ] The background is set out in the decision of the Chamber judge at para. 2 of his judgement: [2] Thomas Gehlen, Steven Gehlen and Resource Management International Inc. (“Resource Management”) issued a claim on May 2, 2012 suing Brian Bryden and Bryden Construction & Transport Co. Inc. (“Bryden Construction”) for defamation and claiming damages. The action arose out of an email sent by Mr.

Bryden to Cindy Schreiber, the administrator for the Rural Municipality of Frenchman Butte, on July 13, 2011 that was critical of the services provided by the plaintiffs for the RM. Ms. Schreiber invited Thomas Gehlen to comment on the email so she could put the response on file in case any councillor wanted the engineers’ perspective on Mr. Bryden’s concerns. Thomas Gehlen responded by sending an email dated July 23, 2011 replying to Mr. Bryden’s email. Mr. Gehlen’s response was critical of Mr. Bryden. Mr.

Bryden and Bryden Construction took exception to this response email and counterclaimed for defamation against Thomas Gehlen and Resource Management. (August 26, 2014, Fiat, Keene J.) [ 3 ] The Chamber judge dismissed the applicants application for dismissal of the respondent’s counterclaim on the basis he was not able to reach a “fair and just determination” (Fiat at para. 17) based on affidavit evidence.

In addition, the Chamber judge was of the opinion that the application would not result in a savings of time or expense inasmuch as the evidence required to establish and defend the counterclaim would be the same as that necessary for the original claim. II. Jurisdiction [ 4 ] The authority to grant leave is matter for the discretion of a judge of this Court in Chambers. The criteria to grant such an application is set out in Rothmans, Benson and Hedges Inc. v Saskatchewan , 2002 SKCA 119 , 227 Sask R 121 and is comprised of two main questions that must be satisfied in order to grant leave: (

a) First, is the proposed appeal of sufficient merit to warrant the attention of the Court of Appeal? (

b) Second, is the proposed appeal of sufficient importance to the proceedings before the Court or to the field of practice, or the state of the law, or to the administration of justice generally, to warrant determination of the Court of Appeal? [ 5 ] Dealing with the first question—that is whether the appeal has merit—the applicant argues that the Chamber judge erred in failing to apply the proper legal test for

summary judgment. It appears to me the Chamber judge reviewed the correct test. On the evidence before him, however, he was unable to conclude the applicant had made out his case. The threshold to satisfy the Court on this factor however, is admittedly low. While I am not completely convinced by the applicant’s position, I cannot say the appeal must fail. Moreover, the appeal, if successful, would not unduly delay the proceedings or add unduly to the cost of the proceedings.

Accordingly, in my view, the applicant has met the threshold on the first branch of the test. [ 6 ] To turn to the second question that must be satisfied, I am of the view this decision does not bear heavily on the proceedings. While the matter under appeal is of importance to the applicants, and while it is true the counterclaim would be at an end, the original claim will nevertheless go forward and that claim involves much the same evidence as is required for the counterclaim.

Thus, this application, if successful, would not decide the matters between the parties. [ 7 ] Further, the question does not raise a new or controversial or unusual issue of practice and neither does it raise new or uncertain or unsettled points of law. III. Conclusion [ 8 ] For these reasons, the application for leave to appeal is dismissed, with costs to the respondent. DATED at the City of Regina, in the Province of Saskatchewan, this 17 th day of November, A.D. 2014. “Whitmore J.A.” _____________________

Whitmore J.A.