Leonard Borowski Appellant (Applicant) v. Lyndon Ricky Stefanson, Sharolyn, 2015 SKCA 140

Court of Appeal for Saskatchewan Docket: CACV2407 Citation: Borowski v Stefanson, Prisiak, and Emerald (Rural Municipality) , 2015 SKCA 140 Date: 2015-12-15 Between: Leonard Borowski Appellant (Applicant) And Lyndon Ricky Stefanson, Sharolyn Prisiak, and Rural Municipality of Emerald Respondent (Respondent) Before: Richards C.J.S., Jackson and Ryan-Froslie JJ.A.

Disposition: Application Dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Madam Justice Jackson The Honourable Madam Justice Ryan-Froslie On Appeal From: 2013 SKQB 133 , J.C. of Wynyard Heard: 8 December 2015 Counsel: Leonard Borowski on his own behalf William Johnson, Q.C. for the Respondents Richards C.J.S. I. Introduction [ 1 ] Mr. Borowski ran unsuccessfully for election to the Council of the Rural Municipality of Emerald. He then challenged the validity of the election pursuant to s. 19 of The Controverted Municipal Elections Act , RSS 1978, c C-33 [ Act ].

After various procedural steps and court orders, a Queen’s Bench judge ultimately ruled that Mr. Borowski’s attempt to have the election results overturned must fail. See: Borowski v Stefanson , 2013 SKQB 133 , 418 Sask R 177. Mr. Borowski then appealed to this Court. [ 2 ] By way of a decision dated June 19, 2015, this Court allowed Mr. Borowski’s appeal and spelled out in some detail the various procedural steps that had to be taken to successfully get the question of the validity of the election before a Queen’s Bench judge for consideration on its merits.

See: Borowski v Stefanson , 2015 SKCA 70 , 37 MPLR (5th) 187. This was done to make the process as straightforward as possible for the parties and to minimize the chances of further unproductive and costly court proceedings. [ 3 ] As part of that exercise, the Court set out, in Appendix A of its decision, the form of the recognizance that Mr. Borowski was required to provide pursuant to the terms of s. 19 of the Act if he wished to pursue his challenge to the election.

The body of that recognizance is as follows: I, Leonard Borowski, understand that s. 19 of The Controverted Municipal Elections Act , SS 1978, c C-33 requires that I enter into a recognizance as a condition of being able to serve notice of motion in the nature of quo warranto to challenge the legality of the election of Lyndon Stefanson to the Council of the R.M. of Emerald. I hereby acknowledge that, in the event (

a) I fail to move my application forward to a hearing with dispatch, or (

b) I fail to pay any award of costs made against me and in favour of the respondents, I will owe $200 to Her Majesty the Queen and such amount may be levied on my real and personal property. [ 4 ] Notwithstanding his success before this Court on the appeal, Mr. Borowski filed a notice of motion on September 21, 2015, seeking relief that included the following: 2.

An Order granting the appellant’s Judicial Review and/or Reconsideration be held out of Province due to Conflict of Interests, Inequality and ensure Substantive Due Process is afforded to all parties. (Manitoba or Alberta) [ 5 ] The Registrar referred Mr. Borowski’s application to the same panel of the Court as had heard his appeal. [ 6 ] In the course of his oral submissions, Mr. Borowski explained that he was asking for “reconsideration of Appendix A” of the Court’s June 19, 2015 decision.

At the same time, and paradoxically, he expressly denied that he was seeking a “rehearing” with respect to Appendix A. [ 7 ] As explained to Mr. Borowski during oral argument, this application is highly unusual. When a party is unsatisfied with a decision of the Court of Appeal, the normal course of action is to seek leave to appeal to the Supreme Court of Canada. In the circumstances here, the only possible way in which this Court could alter the substance of its June 19, 2015 decision would be by way of a rehearing. It simply has no jurisdiction to “reconsider” the decision. [ 8 ] Despite Mr.

Borowski’s position, I see no material difference between a “reconsideration” and a “rehearing.” Accordingly, in

order to put matters on the footing most favourable to Mr. Borowski, I am prepared to characterize his application as being one for arehearing with respect to the content of Appendix A as per Rule 47 of The Court of Appeal Rules. [9] That said, rehearings are not granted for the asking. Considerations of cost and finality dictate that a rehearing should begranted in only special or unusual circumstances. An allegation that the decision is wrong is not enough to trigger a rehearing.

See:Storey v Zazelenchuk (1985), (SK CA), 40 Sask R 241 (CA) at 243–44; HDL Investments Inc. v Regina (City), 2008SKCA 59 at para 3. [10] Mr. Borowski considers Appendix A to be something that, if sworn, would involve him committing “fraud” or signing a“false document.” These concerns are misplaced. Appendix A is nothing more than a simple recognizance contemplated by s. 19 of theAct. It means only that Mr. Borowski would owe $200 to the Crown in the event he (

a) failed to move his application forward to ahearing with dispatch, or (

b) failed to pay any award of costs made against him in favour of the respondents. There is nothing untoward inany of that. It is simply a requirement of s. 19 of the Act. [11] In the end, Mr. Borowski’s application must be dismissed. There are no special or unusual circumstances here that wouldjustify a rehearing. [12] The R.M. of Emerald is entitled to costs in the amount of $500. [13] I might also add that, to the extent Mr. Borowski is concerned that he be seen to have exhausted all of his possible remedies inthis Court, he has now clearly crossed that threshold. “Richards C.J.S.” Richards C.J.S.I concur. “Jackson J.A.” Jackson J.A.I concur. “Ryan-Froslie J.A.” Ryan-Froslie J.A.