Docket: CACV2510 David Clements, Tom Morton v. Georgina Morton, 2014 SKCA 64

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 64 Date: 2014-06-02 Between: Docket: CACV2510 David Clements, Tom Morton and Georgina Morton Prospective Appellants (Plaintiffs) - and - Robert Preece Prospective Respondent (Defendant) - and - Government of Saskatchewan Non-Party (Third Party) Before: Whitmore J.A. (in Chambers) Counsel: Bruce Wirth , for the prospective appellants/plaintiffs Nicholas Stooshinoff, for the prospective respondent/Defendant

Application: From: Q.B. 304 of 2007, J.C. of Battleford Heard: May 26, 2014 Disposition: Leave to appeal granted Written Reasons: June 2, 2014 By: The Honourable Mr. Justice Whitmore Whitmore J.A. I. Introduction [ 1 ] This is an application by David Clements, Tom Morton and Georgina Morton, the prospective appellants (hereafter referred to as “the applicants”), for leave to appeal the decision of the Queen’s Bench judge in Chambers in which he dismissed the applicants’ application to strike the proposed respondent’s (hereafter referred to as “the respondent”) Amended Statement of Defence. II.

Background [ 2 ] The applicants commenced an action against the respondent in 2007 seeking an interlocutory and permanent injunction requiring the respondent to remove a roadway obstruction and restore the roadway to the condition it was prior to the obstruction being dug out and placed on the road. At issue was the applicants’ access to their lake property, for which they had to cross lands leased by the respondent from the Government of Saskatchewan.

The applicants also sought an order preventing the respondent or his agents from impeding or molesting the applicants’ access to a roadway on the property in question. [ 3 ] An interim injunction was granted in 2007 requiring the respondent to remove the obstruction. An order was also granted restraining the respondent from obstructing the roadway until a trial of the issues or until further order of the Court. [ 4 ] In April 2011, the respondent was given leave to amend his statement of defence.

He served his Amended Statement of Defence on March 5, 2012 and filed it with the Court on March 23, 2012. [ 5 ] In May 2011, the Court of Queen’s Bench allowed an application by the respondent to strike the entire statement of claim. That order was reversed by this Court in December 2011. [ 6 ] At some point in these proceedings, the Crown commenced criminal proceedings against the respondent.

In April 2013, the Queen’s Bench judge in Chambers ordered the Crown to provide disclosure of the matters in the criminal proceedings that were required in the civil proceedings and also ordered that the examination for discovery of the respondent be concluded within 120 days of the applicants receiving the disclosure. [ 7 ] There were other applications before the Court.

The respondent applied inter alia for an order that the applicants make further and better disclosure of documents, and the applicants applied inter alia to strike the respondent’s Amended Statement of Defence dated March 5, 2012. [ 8 ] The application before me relates to the Chamber judge’s dismissal of the applicants’ application to strike the respondent’s Amended Statement of Defence. III.

The Decision Below [ 9 ] The portion of the Chamber judge’s Fiat that relates to the subject matter of the application for leave to appeal is brief and is as follows: The plaintiff in my opinion has failed to satisfy the requirements for striking of a statement of defence. It is important for the substantive issues in this matter all to be before the court by way of pleadings.

The court has inherent jurisdiction to manage its process and to see through the pleadings that the proper relief claim and defences are before the court. (para. 36) [ 10 ] The test for leave was established by this Court in Rothmans, Benson & Hedges Inc. v. Saskatchewan , 2002 SKCA 119 , 227 Sask. R. 121 .

The two main questions to be satisfied are whether the proposed appeal is of sufficient merit to warrant the attention of the Court and whether the proposed appeal is 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 by the Court. [ 11 ] The brief and rather general statement of the Chamber judge above is testament that he did, in fact, deal with the issue.

However, the threshold is low in determining the merit of the matter for which leave to appeal is sought: all the applicants must show is that the appeal is not frivolous, vexatious, or destined to fail. I cannot say that the applicants’ argument that the reasons are insufficient is predestined to fail or is frivolous or vexatious. [ 12 ] As for the second branch of the test, the matter under appeal is of importance to the applicants. If the appeal is successful, the action will be at an end.

Brown, in Civil Appeals , loose-leaf, vol. 1 (Toronto: Canvasback Publishing, 2009), at 4:3243 observes that where a successful result on appeal would likely dispose of the litigation, leave to appeal may be granted.

[ 13 ] The proposed appeal also raises the issue as to the appropriate test for determining whether the implied undertaking rule has been breached and what the appropriate remedy should be for breach of that rule. It is arguable that on this basis the proposed appeal is of general importance. [ 14 ] I am of the view, therefore, that leave to appeal should be granted in this matter. [ 15 ] Costs shall be in the cause. DATED at the City of Regina, in the Province of Saskatchewan, this 2nd day of June, A.D. 2014. “Whitmore J.A.” Whitmore J.A.