Docket: CACV2560 101149940 Saskatchewan Ltd. Prospective Appellant - v. -, 2014 SKCA 89

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 89 Date: 2014-08-25 Between: Docket: CACV2560 101149940 Saskatchewan Ltd. Prospective Appellant - and - Gordon John Devries and Jessica Ryan Devries Prospective Respondent - and - Ronald Mantyka Defendant/Plaintiff by Counterclaim Plaintiff by Cross-Claim - and - Red Truck Stucco Ltd. Defendants/Defendants by Cross-Claim Before: Whitmore J.A. in Chambers Counsel: Ronald Mantyka for himself and for the prospective appellant Candice D. Grant for the prospective respondent

Application: From: Q.B.G. No. 49 of 2013, J.C. of Saskatoon Heard: August 13, 2014 Disposition: Application dismissed Written Reasons: August 25, 2014 By: The Honourable Mr. Justice Whitmore Whitmore J.A. I. Introduction [ 1 ] 1011499490 Saskatchewan Ltd. (the Corporation) applies for leave to appeal the decision of the Queen’s Bench Chamber judge requiring the Corporation to obtain legal counsel pursuant to Rule 2-34(2) of The Queen’s Bench Rules . II. Background [ 2 ] The prospective respondents, Gordon John Devries and Jessica Ryan Devries, purchased a home from the prospective appellant, the Corporation.

The defendant, Ronald Mantyka, is a director and sole voting shareholder of the Corporation and the Devrieses’ primary contact with respect to the purchase. [ 3 ] There were apparently some issues with respect to the stucco on the home and the Devrieses commenced an action against the Corporation, Ronald Mantyka, and the stucco contractor. [ 4 ] The Corporation and Mr. Mantyka had originally retained counsel, but counsel withdrew on August 16, 2013. Since that time, neither the Corporation nor Mr.

Mantyka has been represented by counsel, despite counsel for the Devrieses requesting the Corporation to do so. [ 5 ] The Devrieses then made an application to the Court of Queen’s Bench for an order pursuant to Rule 2-34 of The Queen’s Bench Rules requiring the Corporation to obtain legal representation. III. The Decision [ 6 ] The Chambers judge referred to Rule 2-34(2) and stated the following: [6] It is my view that this rule is to be applied in as consistent a fashion as is reasonably possible.

In this instance, the issues which are disclosed through the various pleadings, and there are several pleadings, are not what could fairly be described as simplistic. There are nuances and a degree of complexity to the litigation. The rule is designed to ensure that where a body corporation is a party to litigation, that legal counsel will be in a position to direct the proceedings in an expeditious and appropriate fashion. [ 7 ] I am not persuaded in this instance that the corporate defendant should be exempted from the requirements of Rule 2-34.

The exceptions set forth in subrule (3) do not apply to this instance, and failing the court exercising its discretion in what I would consider to be the requirement of exceptional circumstances, a corporate litigant is to be represented by counsel in the proceedings. [7] The trial judge concluded by ordering the Corporation to secure legal counsel within 30 days. It is from this decision the Corporation seeks leave to appeal. IV. Analysis [ 8 ] The test for leave was set out by this Court in Rothmans, Benson & Hedges Inc. v. Saskatchewan , 2002 SKCA 119 at para. 6 , 227 Sask.

R. 121: First : Is the proposed appeal of sufficient merit to warrant the attention of the Court of Appeal? • Is it prima facie frivolous or vexations? • Is it prima facie destined to fail in any event, having regard to the nature of the issue and the scope of the right of appeal, for instance, or the nature of the adjudicative framework, such as that pertaining to the exercise of discretionary power? • Is it apt to unduly delay the proceedings or be overcome by them and rendered moot? • Is it apt to add unduly or disproportionately to the cost of the proceedings?

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 by the Court of Appeal? • does the decision bear heavily and potentially prejudicially upon the course or outcome of the particular proceedings?

• does it raise a new or controversial or unusual issue of practice? • does it raise a new or uncertain or unsettled point of law? • does it transcend the particular in its implications? [emphasis in original] I will address the two parts of the Rothmans test in turn. [9] Where a prospective appellant seeks leave to appeal a discretionary order of a Chamber judge, the standard of review is relevantto determining the merit of the proposed appeal (see Tsatsi v. Merchant, 2013 SKCA 73, 417 Sask. R. 120).

Accordingly, in order tosatisfy the first stage of the Rothmans test, the Corporation must establish that the appeal is not prima facie destined to fail in light of theapplicable standard of review. [10] As articulated in L.(G.) v. Canada (Attorney General), 2004 SKCA 137 at para. 17, 254 Sask. R. 286, the standard of review of adiscretionary decision made by a Chamber judge is that of deference: [17] … Only if the chambers judge abused his discretion by acting on some wrong principle, by disregarding some material matter offact, or by failing to act judicially, is the Court of Appeal at liberty to interfere.

Either that or the result must be so plainly wrong as toinvite intervention on that basis: Rimmer v. Adshead, 2002 SKCA 12, [2002] 4 W.W.R. 119. [11] Of the numerous grounds of appeal cited by the Corporation in its draft notice of appeal, the only true ground of appeal is thatlisted as item 4(h) (the first of three items listed as 4(h)) in which the Corporation claims that the Chamber judge’s order was an abuse ofprocess and contravenes s. 29 of The Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01. Mr. Mantyka takes the position that the orderdeprives him of the right to represent himself.

This argument is without merit. The Chamber judge’s order relates only to theCorporation. Mr. Mantyka may still represent himself. [12] There is no support for the argument that the Chamber judge improperly exercised his discretion. The purpose of Rule 2-34 is setout at para. 29 of the prospective respondents’ brief: 29. The rationale for this requirement has been described by courts of this province as follows: The rule requires that, unless otherwise ordered, a corporation must be represented by a lawyer.

The effect of the rule is that – at leastwhere corporations are concerned – some professional skill and judgment must be brought to bear upon a problem before courtproceedings are undertaken. Hopefully, this will help to focus the issues and insulate, to some extent, courts and prospective litigantsfrom the burden of specious suits [emphasis added by prospective respondents]. (Creighton Enterprises Ltd v. Creighton Holdings Ltd(1988), (SK KB), 72 Sask. R. 110 at para. 3 (QB)) [13] The equivalent to current Rule 2-34(2) was also considered in R. v.

Grover Holdings Ltd., 2005 SKQB 101 at para. 11, 260 Sask.R. 91: [11] The rule relating to representation provides a broad discretion to the Court as to allowing a corporate litigant to be represented ina proceeding by someone other than a lawyer. The starting presumption under the rule is that a corporation shall be represented in anappropriate proceeding by a lawyer.

The rule then provides the discretion as noted to the Court to move from the presumptive positionand allow a non-lawyer’s appearance on behalf of a corporation. [14] The Chambers judge considered the complexity of the proceedings, considered that the Rule should be applied consistently, andthat the purpose of the Rule is to assist in the proceedings being conducted in an expeditious and appropriate fashion. There was no errorby the Chamber judge in the manner in which he exercised his discretion. The appeal is predestined to fail.

The first part of theRothmans test has not been satisfied. [15] I turn now to the second part of the Rothmans test. The decision on whether to appoint counsel does not bear heavily upon thecourse of the proceedings and is not prejudicial to the Corporation. It raises no new, controversial, or unusual areas of practice, nor doesit raise a new or uncertain or unsettled point of law.

In short, the proposed appeal meets neither the first nor the second branch of theRothmans test. [16] It should be noted that the Corporation filed no materials for the Queen’s Bench Chamber application, so the Chamber judge didnot have evidence to support the Corporation’s contention that it had no assets and that Mr. Mantyka was the sole shareholder and thusthe same party as the Corporation. I do not view those arguments as persuasive, in any event. [17] The application is dismissed with costs in the cause.

DATED at the City of Regina, in the Province of Saskatchewan, this 25th day of August, 2014. “Whitmore J.A.” Whitmore J.A.