KKS Holdings Ltd., Floyd Young, v. Lorraine Young, 2017 SKCA 105

Court of Appeal for Saskatchewan Docket: CACV3045 Citation: KKS Holdings Ltd. v Foam Lake Savingsand Credit Union Limited, 2017 SKCA 105Date: 2017-12-07Between:KKS Holdings Ltd., Floyd Young, and Lorraine YoungAppellantsAndFoam Lake Savings and Credit Union Limited and William J. Klebeck, Carrying on business under the law firm name of Klebeck Law OfficeRespondentsBefore: Caldwell, Whitmore and Schwann JJ.A.Disposition: Appeal dismissedWritten reasons by: The Honourable Mr. Justice WhitmoreIn concurrence: The Honourable Mr.

Justice Caldwell The Honourable Madam Justice SchwannOn Appeal From: QBG No 2573 of 2014, ReginaAppeal Heard: November 23, 2017Counsel: Ryan Kitzul and Brian Lunde for the Appellants T. Joshua Morrison and Jared Biden for Foam Lake S&C Limited Nicholas Cann for William J. Klebeck Whitmore J.A. [1] The appellants commenced an action against Foam Lake Savings and Credit Union Limited [Credit Union] and some timelater applied to the Court of Queen’s Bench to add Mr. Klebeck as a party to the action. The Chambers judge declined to addMr. Klebeck as a party and the appellants now seek to appeal from that decision.

However, they have a procedural hurdle to thisproposed appeal. [2] This matter was brought before us without leave being sought or granted pursuant to s. 8 of The Court of Appeal Act, 2000,SS 2000, c C-42.1: Interlocutory appeals 8(1) Subject to subsection (2), no appeal lies to the court from an interlocutory decision of the Court of Queen’s Bench unless leave toappeal is granted by a judge or the court.

(2) Leave to appeal an interlocutory decision is not required in the following cases: (

a) cases involving: (

i) the liberty of an individual; (ii) the custody of a minor; (iii) the granting or refusal of an injunction; or (iv) the appointment of a receiver; (

b) other cases, prescribed in the rules of court, that are in the nature of final decisions. [3] The Credit Union and Mr. Klebeck argue the decision of the Chambers judge was interlocutory and, as such, requires leave.The appellants, on the other hand, submit the Chambers judge’s decision is a final order. [4] In Saskatchewan Medical Association v Anstead, 2016 SKCA 143, this Court noted the following: [56] It has long been the law in this jurisdiction that orders which do not finally dispose of the “substantive issue” in an action are notfinal but interlocutory: Beaver Lumber Co.

Ltd. v Cain, (SK CA), [1924] 3 WWR 332 (Sask CA), per Martin J.A. (ashe then was) at 334. Conversely, an order is final when, if allowed to stand, it finally disposes of the rights of the parties: AlexanderHamilton Institutes v Chambers (1921), (SK CA), 65 DLR 226 (Sask CA), per Turgeon J.A. (as he then was) at 228.

InSilcorp Ltd. v KJK Holdings Inc. (1992), (SK CA), 90 DLR (4th) 488 (Sask CA), this Court approved the view thatorders may be final for one purpose but interlocutory for another (per Cameron J.A. at 489). [5] In Civil Appeals in Saskatchewan: The Court of Appeal Act and Rules Annotated (Regina: Law Society of SaskatchewanLibrary, 2015), the Honourable Stuart Cameron concluded that an application to add parties to an action is interlocutory in nature, citing

Lombard General Insurance Company of Canada v Stomp Pork Farm Ltd ., 2008 SKCA 146 , [2009] 4 WWR 505. [ 6 ] In Birrell v Providence Health Care Society , 2007 BCCA 573 , 248 BCAC 21, the Court held the following: [13] Generally speaking, I would have regarded an order adding parties to an action as a procedural and interlocutory order which does not directly engage the merits of the action. That is, I would have been inclined to view the order as one falling within the definition of an interlocutory order under s. 7(1)(

b) of the Court of Appeal Act … . … [16] … The fact that a limitation period was involved was a factor which was prominent in that application but, in my view, it did not change the essential character of the application which was to add parties under Rule 15(5). [ 7 ] The appellants argue that the fact they may proceed against Mr. Klebeck in a separate action does not make the order interlocutory and, for this, they rely on the decision in West Central Pelleting Ltd. v Agracity Ltd. , 2010 SKCA 145 , [2011] 3 WWR 683 [ Agracity ].

Agracity does address how a plaintiff’s ability to proceed with another action affects the determination of whether an order is final or interlocutory under Rule 3-72 of The Queen’s Bench Rules , but holds the availability of other proceedings does not change the character of the order. Agracity does not concern the nature of an order adding or declining to add a party to an action and is not of assistance in determining the issue before us. [ 8 ] Having considered these cases and authorities, I am of the opinion the decision of the Chambers judge was an interlocutory order.

Therefore, it was necessary for the appellants to obtain leave to appeal. As they have not done so, the appeal is not properly constituted and is not properly before us. In the alternative, the appellants seek leave nunc pro tunc . [ 9 ] In Grant v SGI , 2003 SKCA 17 at para 5 , 227 Sask R 316, this Court described the power to grant leave on a nunc pro tunc basis as an extraordinary power that is used sparingly so as not to defeat the object of

section 8 of The Court of Appeal Act, 2000 . That object lies in allowing for appeals of interlocutory decisions to be culled in advance for the purpose of avoiding needless expense and delay. They are culled along the lines identified in Rothmans, Benson & Hedges Inc. v. Government of Saskatchewan , 2002 SKCA 119 . Ordinarily, the purpose of the

section can only be realized by timely application for leave to appeal. [ 10 ] The submissions of the appellants and the circumstances of this case do not persuade me this is a case where such an extraordinary power should be utilized and I would decline to grant leave on that basis. The appeal ought to be dismissed. [ 11 ] The proposed appeal could not have been successful in any event. The order made by the Chambers judge was made by him in the exercise of a discretionary power. Consequently, a deferential standard of review is applicable: Rimmer v Adshead , 2002 SKCA 12 at para 58 , [2002] 4 WWR 119.

An appellate court should not interfere with a discretionary decision, unless the judge making the decision acted upon a wrong principle of law, took into consideration irrelevant factors, overlooked or misapprehended material evidence, failed to act judicially, or the decision is so clearly wrong it results in an injustice. [ 12 ] In my view, the Chambers judge made no error that would enable this Court to intervene.

In particular, I am not persuaded the Chambers judge misapprehended the evidence such that he overlooked the appellant’s claim of negligent misrepresentation or applied the wrong test under Rule 3-84 of The Queen’s Bench Rules . Further, the Chambers judge was alive to the fact that a separate action against Mr. Klebeck may be commenced and the avoidance of a multiplicity of proceedings was not a sufficient reason to add Mr. Klebeck as a party.

As stated in Scharnagl (Litigation Guardian of) v Tomlin , 2005 SKCA 121 , 269 Sask R 259, the party seeking to add a party has “a positive obligation to show why it was necessary to add the respondents as parties” (at para 20). The appellants have failed to discharge that obligation before the Chambers judge. [ 13 ] That is to say, in consideration of the test for granting leave as set out in Rothmans, Benson and Hedges Inc. v Saskatchewan , 2002 SKCA 119 at para 6 , 227 Sask R 121, the proposed appeal is destined to fail and, thus, does not satisfy the first branch of the test.

Further, while the proposed appeal may have importance to the parties, it does not transcend the particulars of this case. It does not raise a new or unsettled point of law, and therefore also fails the second branch of the test. [ 14 ] The question of whether the claim against Mr. Klebeck is statute barred was not considered by the Chambers judge and it is unnecessary to consider it here. [ 15 ] I would dismiss the appeal with costs to both respondents to be taxed. “Whitmore J.A.” Whitmore J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Schwann J.A.” Schwann J.A.