Docket: CACV2582 Shirley Mae deBalinhard Appellant (Respondent) - v. -, 2014 SKCA 95

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 95 Date: 2014-09-15 Between: Docket: CACV2582 Shirley Mae deBalinhard Appellant (Respondent) - and - John Canagy deBalinhard Respondent (Petitioner) Before: Caldwell J.A. (in Chambers) Counsel: Gerald Heinrichs, for the appellant Thomas Campbell, for the respondent Application: From: 2014 SKQB 239 Heard: September 10, 2014 Disposition: Dismissed Written Reasons: September 15, 2014

Caldwell J.A. [1] Shirley Mae deBalinhard wishes to appeal from the decision of the chambers judge (indexed as 2014 SKQB 239), made pursuantto s. 47 of The Queen’s Bench Act, 1998, SS 1998, c Q-1.01, not to vacate a certificate of pending litigation registered on behalf of herestranged husband, John Canagy deBalinhard, against title to certain lands. [2] Mr. deBalinhard is deceased and his estate is represented by his executors. Just prior to his death, Mr. deBalinhard filed apetition for the division of family property. When he died, his solicitors filed the certificate of pending litigation.

Ms. deBalinhardsubsequently transferred the lands into her own name and then entered into an agreement to sell them, which sale will not proceed untilthe certificate of pending litigation is vacated. [3] When Ms. deBalinhard filed her notice of appeal, she did not consider whether the order appealed from was interlocutory or finalin nature. She subsequently filed a notice of motion seeking either leave to appeal or directions from a chambers judge that leave was notrequired.

Accordingly, as a preliminary matter, Ms. deBalinhard was put to elect either to proceed with her appeal or to proceed with herleave application, as she may not do both (see: Mann v Hawkins, 2011 SKCA 7 (per Klebuc C.J.S. (as he then was) in chambers)).

Sinceshe had filed her notice of appeal and application before reasons were made available in O’Connor v Garden, 2014 SKCA 90 (whereWhitmore J.A., in chambers, dealt with an application for leave to appeal from a decision not to vacate a certificate of pending litigation),she elected to seek leave to appeal and, with no objection from counsel for the respondent, her application proceeded on that basis alone,with her notice of appeal deemed to be a “draft” notice of appeal. [4] The power to grant or withhold leave to appeal, as contemplated by s. 8(1) of The Court of Appeal Act, 2000, SS 2000, c C-42.1,is exercised on the basis of the criteria set forth in Rothmans, Benson & Hedges Inc. v Saskatchewan, 2002 SKCA 119, 227 Sask R 121,where Cameron J.A. said: [6] The power to grant leave has been taken to be a discretionary power exercisable upon a set of criteria which, on balance, must beshown by the applicant to weigh decisively in favour of leave being granted: Steier v.

University Hospital Board, (SKCA), [1988] 4 W.W.R. 303 (Sask. C.A., per Tallis J.A., in Chambers). The governing criteria may be reduced to two — each of whichfeatures a subset of considerations — provided it be understood that they constitute conventional considerations rather than fixed rules,that they are case sensitive, and that their point by point reduction is not exhaustive.

Generally, leave is granted or withheld onconsiderations of merit and importance, as follows: First: Is the proposed appeal of sufficient merit to warrant the attention of the Court of Appeal? • Is it prima facie frivolous or vexatious? • 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 thelaw, 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) [5] Turning to the first criterion, given the circumstances of this matter the proposed appeal is not prima facie frivolous or vexatious.Nor can I say the proposed appeal is apt to unduly delay the proceedings, although an interlocutory appeal necessarily adds to the overallduration of an action.

In addition, given what is at stake, an appeal would not, relatively speaking, add unduly or disproportionately to thecost of the proceedings.

[6] However, as Whitmore J.A. noted in O’Connor v Garden, orders of the nature under consideration in this matter arediscretionary orders. This means there is a genuine question as to whether the proposed appeal is prima facie destined to fail by reason ofthe nature of the adjudicative framework pertaining to the exercise of discretionary powers.

Cameron J.A. set out that adjudicativeframework in Rimmer v Adshead, 2002 SKCA 12, [2002] 4 WWR 119, where he said: [58] In turning to this issue, it is necessary to bear in mind that the powers in issue are discretionary and therefore fall to be exercisedas the judge vested with them thinks fit, having regard for such criteria as bear upon their proper exercise. The discretion is that of thejudge of first instance, not ours. Hence, our function, at least at the outset, is one of review only: review to determine if, in light of suchcriteria, the judge abused his or her discretion.

Did the judge err in principle, disregard a material matter of fact, or fail to act judicially?Only if some such failing is present are we free to override the decision of the judge and do as we think fit. Either that, or the result mustbe so plainly wrong as to amount to an injustice and invite intervention on that basis. (See, for example, McKinnon Industries Ltd. v.Walker, (UK JCPC), [1951] 3 D.L.R. 577, at 579 (P.C.) and Saskatchewan Power Corporation v. John Doe, (SK CA), [1988] 6 W.W.R. 634 (Sask.

C.A.)). [7] Ms. deBalinhard’s draft notice of appeal could be interpreted as setting out two grounds of appeal that appear to allege thechambers judge either committed an error in principle or disregarded material facts when he decided not to vacate the certificates ofpending litigation against the lands in question. However, the draft notice of appeal is not confined, as it should be, to whether thechambers judge exercised his discretion within the criteria which bear upon the proper exercise of his judicial discretion.

Rather, thebroadly-framed draft notice of appeal invites the Court to retry matters and, to some extent, reweigh evidence so as to supplant thechambers judge’s findings and conclusions. Appellate review of a discretionary decision is one of review for vitiating error; it is not ahearing de novo.

So while the proposed appeal might be of sufficient merit, the draft notice of appeal would have to be revised to framethe grounds of appeal as falling within the adjudicative framework applicable to appeals from discretionary orders. [8] Turning to considerations of importance, I am hard pressed to conclude the proposed appeal is of sufficient importance to theproceedings before the Court of Queen’s Bench, or to the field of practice or the state of the law, or to the administration of justicegenerally, to warrant determination by a panel of the Court of Appeal. [9] At its heart, the proposed appeal would involve revisiting an interlocutory order that preserves the status quo pending a finaldecision after trial.

The proposed appeal does not raise a new or controversial or unusual issue of practice. Nor does it raise a new oruncertain or unsettled point of law; albeit the proposed appeal may raise a valid question of law based on the facts of this matter, it doesnot transcend the particular in its implications. Further, given the nature of the impugned order, it does not bear heavily or potentiallyprejudicially upon the course or outcome of the action.

I understand money realised from the sale of other lands formerly subject to thecertificate of pending litigation will be held for the benefit of the parties pending the trial in the within action. I presume then that if thelands in question are later sold for less than the price at which Ms. deBalinhard proposes to sell them, or if later sold at that price and it isfound to be less than fair market value, the party suffering the loss might have ready recourse to set off the loss.

In sum, while there maybe legitimate issues raised in the prospective appeal, on the whole, I find the issues would be better resolved by a judge of the Court ofQueen’s Bench after hearing viva voce evidence at trial. [10] In short, while the proposed appeal might be of sufficient merit, it is not of sufficient importance to warrant determination by apanel of this Court. The application for leave is dismissed. The Registrar may close the appeal file opened upon the filing of the nowdraft notice of appeal. [11] As to costs, Ms. deBalinhard shall pay Mr. deBalinhard’s costs in this application, in the usual manner.

DATED at the City of Regina, in the Province of Saskatchewan, this 15th day of September, A.D. 2014. “Caldwell J.A.” Caldwell J.A.