6517633 Canada Ltd. Applicant/Appellant (Plaintiff) v. Clews Storage Management Keho Ltd., 2019 SKCA 140

Court of Appeal for Saskatchewan Docket: CACV3447 Citation: 6517633 Canada Ltd. v Clews Storage Management Keho Ltd. , 2019 SKCA 140 Date: 2019-12-20 Between: 6517633 Canada Ltd.

Applicant/Appellant (Plaintiff) And Clews Storage Management Keho Ltd. and Dan Davis Respondents/Respondents (Defendants) Before: Jackson J.A. (in Chambers) Disposition: Application dismissed On Application From: 2019 SKQB 152 , Regina Application Heard: October 23, 2019 Counsel: Sterling McLean for the Appellant Adam Ailsby for the Respondent Jackson J.A. [ 1 ] This application raises the issue of whether a person who has obtained a judgment for a money sum may register it in the personal property and land registry systems of this province according to the procedures set out in The Enforcement of Money Judgments Act , SS 2010, c E-9.22 [ Enforcement Act ], and The Land Titles Act, 2000 , SS 2000, c L-5.1 [ Land Titles Act ], notwithstanding the filing of an appeal of the judgment in this Court. [ 2 ] On June 19, 2019, Clews Storage Management Keho Ltd. [Clews] successfully obtained a

summary judgment dismissing a claim that 6517633 Canada Ltd. [Canada Ltd.] had brought against it: see 6517633 Canada Ltd. v Clews Storage Management Keho Ltd. , 2019 SKQB 152 [ Chambers Decision ]. The Chambers Decision awarded Clews its costs against Canada Ltd. [ 3 ] On July 17, 2019, Canada Ltd. filed a notice of appeal of the Chambers Decision with this Court.

On August 8, 2019, the bill of costs was settled by the local registrar of the Court of Queen’s Bench in the amount of $4,328 payable by Canada Ltd. to Clews. [ 4 ] On August 16, 2019, Clews registered an enforcement charge in the judgment registry established under s. 18 of the Enforcement Act and registered an interest based on its judgment (for the costs awarded to it) against some 14 separate titles to land held by Canada Ltd. under s. 171 of the Land Titles Act , at a registration cost of $780. [ 5 ] On October 17, 2019, Canada Ltd. applied in Chambers for an order pursuant to Rule 15 of The Court of Appeal Rules directing that the interests registered against the 14 titles be removed and that no enforcement of the $4,328 judgment, and the $780 in registration costs, be permitted while its appeal is pending.

In the alternative, Canada Ltd. submitted that, if for any reason Rule 15 should not apply, a judge of the Court may nevertheless be empowered to grant relief analogous to that contemplated by Rule 15, using the Court’s inherent jurisdiction to control its own process. I will address the application of Canada Ltd. under Rule 15 first. [ 6 ] Canada Ltd. takes the position that, as a result of the service and filing of its notice of appeal on July 17, 2019, Clews was precluded from taking any other step to enforce the judgment other than to have its costs taxed and its judgment issued.

In support of its arguments, Canada Ltd. relies on Rule 15(1) and (4) of The Court of Appeal Rules : Stay 15 (1) … Unless otherwise ordered by a judge, the service and filing of a notice of appeal stays the execution of any other judgment or order pending the disposition of the appeal. …

(4) Where the execution of a judgment or order is stayed pending an appeal, all further proceedings in the action, other than the issue of the judgment and the taxation of costs under the judgment, are stayed unless otherwise ordered. [1] [ 7 ] According to Canada Ltd., the judgment held by Clews constitutes “any other judgment” under Rule 15(1) such that the act of registering the judgment in the judgment registry or against the title to land must constitute an execution of the judgment. [ 8 ] Turning to the Enforcement Act ,

Part IV of that Act provides for the “Registration of Judgments”. It establishes the judgment registry (s. 18(1)) and indicates that the “personal property registry continued pursuant to The Personal Property Security Act, 1993 may be used as the Judgment Registry” (s. 18(2)). The judgment registry “consists of all judgments that are registered or are deemed to be registered in the registry” (s. 19(1)). [ 9 ] Significantly for this appeal, s. 21(2) (

b) of the Enforcement Act permits registration of a judgment in the judgment registry while an appeal is pending with respect to the judgment: Registration of judgment

21(1) A judgment creditor may register a judgment in the registry in the prescribed manner.

(2) A judgment may be registered in the registry notwithstanding that: (

a) an application for leave to appeal with respect to the judgment has been filed; (

b) an appeal is pending with respect to the judgment; or (

c) the time for appeal of the judgment has not expired. (Emphasis added) [10]

Section 22 of the Enforcement Act provides that registration in the judgment registry “creates an enforcement charge” on “allexigible property existing at the date of registration” (s. 22(1)(a)) plus “all exigible property acquired by the judgment debtor after theregistration and before the discharge of the registration” (s. 22(1)(b)). The Enforcement Act provides, “An enforcement charge relating toa judgment that is reversed on appeal is deemed to have never existed” (s. 22(8)).

Subsection 28(2) requires a judgment creditor todischarge or amend a registration in certain circumstances but, specifically, excludes the circumstance where a judgment has beenrendered unenforceable as a result of “(

i) an order staying enforcement of the judgment; or (ii) an order made pursuant to

section 81 of TheQueen’s Bench Act, 1998”. Subsection 81(4) of The Queen's Bench Act, 1998, RSS 1978, c Q-1.01, confers jurisdiction on a judge of theCourt of Queen’s Bench, to give directions “with respect to enforcement of the judgment by seizure or sale of the exigible property of thejudgment debtor”. Subsection 81(5) provides that, notwithstanding s. 81(4), the “judgment creditor may register the judgment” asprovided by s. 171 and s. 173 of the Land Titles Act. [11] Division 3 of

Part XVIII of the Land Titles Act (Registration of Judgments and Maintenance Orders) establishes the interfacebetween the Enforcement Act and the land titles system. Subsection 172(1) of the Land Titles Act provides that on or after the registrationof a judgment in the judgment registry established by the Enforcement Act, “any title subsequently issued, or interest subsequentlyregistered in the land titles registry, in the exact name of the debtor must include and be subject to the registration of an interest based onthe judgment”.

Importantly for this appeal, s. 171(2) of the Land Titles Act provides for the registration of an interest based on a judgmentregistered in the judgment registry against “those titles or interests identified by the applicant”.

Section 173 provides that an interest basedon a judgment “creates an enforcement charge with respect to the amount recoverable on the land included in the title or the supportinginterest of the judgment debtor existing at the date of registration” and such charge is “an interest for the purposes of clause 14(a)”. Clause14(

a) declares that every title is subject to “any interest that is registered against the title pursuant to this Act or any other Act or law”. [12] By virtue of the definition of property in s. 17(

b) of the Enforcement Act, s. 22(1)(

a) of the Enforcement Act is a reference to theeffect of registration on personal property only. Nonetheless, the definition of enforcement charge in the Enforcement Act recognizes theinterface between the judgment enforcement system for land and for personal property. Thus, enforcement charge is defined in theEnforcement Act to encompass charges created by registration against land as well as with respect to personal property:

Interpretation 2(1)(n) “enforcement charge” means: (

i) with respect to personal property, a charge in the personal property registry created by registration of a judgment in the registry; and (ii) with respect to land, a charge created by registration of an interest based on a judgment against a title or against another interest in theland titles registry … . (Emphasis added) [13] Ronald C.C. Cuming and Donald H. Layh, Saskatchewan Enforcement of Money Judgments Act, Commentary and Analysis(Regina: Queen’s Printer, 2012) at 15 [Commentary], describe the effect of registration in the two systems: E.

Enforcement Charges [Part IV of the Enforcement Act] … gives to judgment creditors the opportunity to convert a money judgment into a statutory enforcementcharge on the judgment debtor’s exigible personal property simply by registering the judgment in the judgment registry. The enforcementcharge is equivalent for priority purposes (under provincial law) in relation to other interests in personal property (not including otherjudgment enforcement charges) to a perfected security interest created under the PPSA.

Where land is involved, registration of thejudgment results in an automatic charge on any future interests in land acquired by the judgment debtor. A charge on a judgment debtor’sexisting interest in land requires the additional step of registering the charge against the interest in the land titles registry. [14] Thus, registration of a judgment against a title to land or an interest in land is an enforcement charge, with all the attendantrights that the Legislature has conferred on such a device.

In practical terms, the creation of an enforcement charge on land will notdirectly lead to payment of the judgment but will restrict an appellant debtor’s rights to the land – and can thereby put pressure on theappellant debtor to pay the judgment, or to make some other arrangement, such as paying the money into Court pending an appeal – withall the potential issues that can arise in relation to that exercise.

Given this potential effect on its business affairs, Canada Ltd. applies tothis Court for a remedy. [15] The analytical framework provided by the Supreme Court in Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1SCR 27 at para 21, requires a court interpreting legislation to read the words of the statute in their entire context, in their grammatical andordinary sense harmoniously within the scheme of the statute, its objective and the intention of the Legislature.

Viewing the provisions ofthe Enforcement Act and the Land Titles Act through this lens, it is plain that the Legislature intended with the enactment of thislegislation that a creditor with a money judgment may take immediate steps to register, and secure, the judgment by registering it in thejudgment registry. The provisions of the Enforcement Act, and, in particular s. 21(2)(b), are a clear answer to the claim that the filing of anappeal precludes the registration of a judgment in the judgment registry – if such judgment has not already been registered. Registration of

a judgment in the judgment registry has the automatic effect of attaching any new interest in land acquired by the debtor (s. 172(1) of theLand Titles Act). [16] This conclusion, however, is not a complete answer to Canada Ltd.’s submissions. Canada Ltd. submits that if the directregistration against a title to land, as opposed to registering it in the judgment registry, is permitted before a notice of appeal is filed, it isnot permitted after a notice of appeal is filed.

Canada Ltd. argues that the filing of a notice of appeal precludes any further step on the partof the respondent to an appeal as it concerns land. This aspect of Canada Ltd.’s submissions requires an analysis of what execution means,as it used in Rule 15, and a closer look at the changes brought about by the Enforcement Act. [17] In C.R.B. Dunlop, Creditor–Debtor Law in Canada, 2d ed (Toronto: Carswell, 1995), Professor Dunlop indicates thatexecution may be interpreted in at least three ways: (

a) broadly – “any process of enforcement of the judgment” (at 248), which would be “wide enough to include most if not allpost-judgment enforcement processes” (at 249); (

b) more narrowly – “it may be used in contrast with garnishment to identify common law and equitable remedies againstproperty other than book debts” (at 249); and (

c) even more narrowly – “other cases would restrict its use still further to common law processes like fi. fa. and elegit, butexcluding equitable relief, statute-created remedies like the charging order, or distress by a chattel mortgagee” (footnotes omitted, at 249).

Decrying the lack of precision with respect to the use of the word execution, Professor Dunlop continues, “In this welter of conflictingusages, the only conclusion one can draw is the unhelpful one that the meaning of the term will usually depend on the intention of thedrafter of the statute or rule in question taken as a whole. … The issue must always be what the drafter intended by the term in theparticular legislation under examination” (footnotes omitted, at 250). [18] Professor Dunlop is clearly correct to note the variety of ways in which the word execution has been interpreted.

Cases existthat exemplify each way in which he has described the word, and court decisions can be found taking diametrically different views to eachother as to what constitutes execution, even when the same subject matter is being considered. In priority competitions among creditors, inthe bankruptcy context and otherwise, the widest variation of meaning can be found. [19] At the broad end of the spectrum, Professor Dunlop cites Re Overseas Aviation Engineering (G.B.) Ltd., [1963] Ch 24 (CA)[Overseas Aviation].

In this case, a creditor received a judgment against a debtor corporation and then, in a separate proceeding, obtained acharging order from the High Court against a particular piece of leasehold property owned by the debtor. The charging order was thenregistered against the leasehold land by means of a caution. The debtor went into liquidation. The liquidators argued that the value of theleasehold should be shared among all creditors. The creditor with the charging order submitted that it held a species of interest that left itimmune from such a claim. Resolution of the issue in the appellate court turned on the

interpretation of s. 325(1) of the Companies Act,1948, c 38, which would have allowed the creditor with the charging order to succeed only if it could persuade the appellate court that ithad not “issued execution against the goods or lands of a company” (Overseas Aviation at 39). Lord Denning for the majority held that,“when a judgment creditor obtains a judgment charge on specific land of a company, he thereby issues ‘execution’ against the land of thecompany” (at 39). He went on to say the following (at 39–40): The word “execution” is not defined in the Act.

It is, of course, a word familiar to lawyers. “Execution” means, quite simply, the processfor enforcing or giving effect to the judgment of the court; and it is “completed” when the judgment creditor gets the money or other thingawarded to him by the judgment. … Applying this meaning of the word “execution,” I should have thought it plain that when a judgment creditor gets a charge on the debtor’sproperty, it is a form of “execution”: for it is a means of enforcing the judgment. [20] But, in a similar context, there are cases that narrowly interpret what execution means in order to confer the status of a securedcreditor on a judgment creditor holding a charging order, with the issue being whether such an instrument could be considered execution.In J.J.H.

McLean Company v Newton, (MB CA), [1927] 1 DLR 183 (Man CA) [Newton], the judgment creditor hadobtained an order from the King’s Bench, charging money that had been paid into court by a garnishee. The Manitoba Court of Appealhad to determine whether the charging order made the creditor a secured creditor under s. 2(gg) of the Bankruptcy Act, SC 1919, c 36(repealed): secured creditor means “a person holding a mortgage, hypothec, pledge, charge, lien or privilege on or against the property ofthe debtor, or any part thereof, as security for a debt due or accruing to him from the debtor”.

The alternative was to find the chargingorder as falling within a list encompassing “all other attachments, executions or other process against property” (s. 11(1)(b)). [21] Two judges of the Manitoba Court of Appeal held, in brief reasons, that the charging order constituted a charge within themeaning of s. 2(gg), making the holder a secured creditor, thereby allowing the appeal in favour of the judgment creditor. Two otherjudges, under the pen of Trueman J.A., analyzed the matter extensively.

Justice Trueman held that execution and other process meantattachment or execution “by means of which payment of a judgment debt is enforced by seizure and sale by an officer of the Court ofproperty of the debtor.

It necessarily connotes process which may be completely executed by payment to the creditor” (Newton at 191). (Afifth judge wrote, concurring in the result – which was in favour of the judgment creditor achieving the status of a secured creditor.) Thus,in this decision, execution was interpreted narrowly. [22] In another context, where it was necessary to determine whether the directors of a company could be liable for unpaid wages ofan employee of the company that had been placed in receivership, the court took a narrow view of the meaning of execution, preventingrecovery of the employee’s wages: Pearce v McKeever (1988), 1988 ABCA 322 , 53 DLR (4th) 155 (Alta CA)[Pearce]. [23] In Pearce, the receiver–manager terminated the employment of an employee.

The employee obtained an order from theEmployment Standards Branch of the Department of Labour. The receiver–manager did not comply with that order, which then became,by the words of the statute, “enforceable as an order or judgment of the Court of Queen’s Bench” (Employment Standards Act, RSA 1980,c E-10.1, s 99(b) (repealed)). Following receipt of the order of the Queen’s Bench, the receiver–manager said it “did not have sufficient

funds to satisfy the claims of the debenture holder and that accordingly the claims of other creditors would remain completely unsatisfied”(Pearce at para 6). Under the Companies Act, RSA 1980, c C-20 (repealed), the directors would only be liable for such a debt if “anexecution against the company is returned unsatisfied in whole or in part” (s. 91(b)).

Interpreting execution in this provision (Pearce atpara 22), the Court held that it cannot be said that obtaining the administrative order, filing it as a judgment of the Court of Queen’s Bench, sending it on to thereceiver–manager with a request for payment amounted to an execution. There could be no resulting charge on the property of thejudgment debtor. The filing of the administrative order which had the effect of transforming it into a judgment of the Court of Queen’sBench simply gave the respondent access to the practice and procedure of the court to enforce or to execute the judgment.

The respondentwould have had to avail himself of whatever remedies are available in the Court of Queen’s Bench to enforce the judgment. Withoutenforcement of the judgment there cannot be execution. (Emphasis added) [24] The Court in Pearce relied on Hughes v Sharp (1968), (BC CA), 67 WWR 120 (BCCA) [Hughes]. InHughes, the British Columbia Court of Appeal dealt with a motion by the appellant for an order preventing the respondent from enteringfinal judgment.

In dismissing the motion, the Court stated as follows (at 121): [I]n my opinion the signing of final judgment in pursuance of the order under appeal is not “execution” under that order within themeaning of sec. 32. While I do not attempt an exhaustive definition of the word “execution” for the purposes of that section, I deriveassistance from Foley v. Webster (1892). 2 BCR 251. In that case the judgment debtor provided security for the full amount of a moneyjudgment awarded against him. The security provided in the form of a bond was approved by a judge.

After this security had beenprovided the judgment creditor registered a certificate of the judgment in a land registry office and thereby created a charge against landsof the judgment debtor. The debtor, who wished to raise money by mortgage of the land, applied to a divisional court consisting of Begbie,C.J. and Drake, J. The application was dismissed. Begbie, C.J. said at p. 260: If any attempt were made to enforce the lien pending the appeal, the Court would interfere.

In my opinion the proceeding by way ofregistration of certificate of judgment is not a proceeding by way of execution; to my mind it is only execution, i.e. some proceeding forraising the money and satisfying the debt whether by fi. fa. or by action for foreclosure or sale, etc., which is restrained by

section 47” [ofthe Supreme and Exchequer Courts Act, RSC, 1886, ch. 135]. Drake, J. said at p. 261: Execution means enforcement by writ, not registering a judgment or lis pendens. In order to issue execution against lands here, the step isby action, or fi. fa., but the registration itself is not an execution. A guide to

interpretation of the word “execution” in sec. 32 is also found, I think, in sec. 33(1) which reads: 33.

(1) When the security has been perfected and allowed, any Judge of the Court appealed from may, subject to the Rules of Court, issuehis fiat to the Sheriff to whom any execution on the judgment appealed from has issued to stay the execution, and the execution shall bethereby stayed whether a levy has been made under it or not.

In my opinion, this provision indicates that some step such as seizure or sale of property is involved, and not the mere signing of formaljudgment. (Emphasis added) [25] Both Overseas Aviation and Hughes were cited by this Court in Prince Albert Credit Union v Diehl (1985), (SK CA), 43 Sask R 296 (CA) at para 16 [Diehl]. In Diehl, during the stay period effected by Rule 15 of The Court of Appeal Rules, athird party issued a garnishee summons against the debt owing from the appellant to the respondent. This Court found that execution inRule 15 included enforcement by way of garnishment.

It held that there was no debt due or accruing due to the respondent that could beattached by the third party because the judgment had been stayed pending appeal at a time when the garnishee summons was issued. [26] Finally, in this survey of cases, Bayview Estates Ltd., Re (1980), 28 Nfld & PEIR 225 (WL) (Nfld SC) [Bayview], is alsorelevant. In this decision, Mahoney J. considered the meaning of the word execution and concluded as follows: [44] The process of execution is one continuing act.

The service of the process by the sheriff by notice to the defendant (the judgmentdebtor) and by affixing a notice to the land which is the subject-matter of the writ of fi. fa. is not enough to constitute execution in itself.Seizure is required in the above defined sense, that is, taking the property into the custody of the law in order to sell it and thereby havethe money due under the judgment in order to satisfy the judgment.

Anything short of that cannot be execution. (Emphasis added) [27] In terms of doctrinal works, I note that in Victor Di Castri, Registration of Title to Land, loose-leaf (Rel 3, 2007) vol 2(Toronto: Thomson Carswell, 1987) [Land Titles], the author cites Hughes; McDonald (Re) (1969), (BC SC), 8 DLR(3d) 666 (BCSC); and Hallmark Homes Ltd. v Crown Trust Company (1983), (BC SC), 49 BCLR 250 (BCSC), asauthority for the proposition that registration is not equivalent to execution: “An application to register a certificate of judgment in theland titles office is not a proceeding by way of execution.

Some further step, such as seizure or sale, is required to constitute execution”(citations omitted, Land Titles at 21-7 at para 9.31). [28] Applying this body of case law and principle to Canada Ltd.’s application before the Court, I acknowledge there is case lawtaking a broad view of the word, such that Rule 15 could be read as precluding the filing of a judgment interest against the title to land oran interest in land after an appeal is filed.

For example, under Lord Denning’s conception of execution in Overseas Aviation, the creationof an enforcement charge on land pursuant to the Enforcement Act and the Land Titles Act would clearly constitute a form of execution.

[ 29 ] On the other hand, there is case law, such as Hughes and Bayview , that define execution more narrowly. As Professor Dunlop has observed, resolution of any individual dispute, as to the meaning of execution, depends on the proper construction and application of the legislative provision to the particular problem presented to a court. In the legislative context before me, I conclude that the registration of an interest based on a judgment against land does not constitute execution in the context of Rule 15(1) for essentially four reasons. [ 30 ] First, an

interpretation that narrows the reach of the word execution in Rule 15(1) is consistent with the thrust of the Enforcement Act and the Land Titles Act . In Ruth Sullivan, Sullivan on the Construction of Statutes , 6th ed (Markham, Ont: LexisNexis, 2014) at 337, the author notes that courts typically try to avoid conflict between different enactments: s. 11.2 Governing Principle : It is presumed that the provisions of legislation are meant to work together, both logically and teleologically, as parts of a functioning whole.

The parts are presumed to fit together logically to form a rational, internally consistent framework; and because the framework has a purpose, the parts are also presumed to work together dynamically, each contributing something toward accomplishing the intended goal. s. 11.3 The presumption of coherence is also expressed as a presumption against internal conflict.

It is presumed that the body of legislation enacted by a legislature does not contain contradictions or inconsistencies, that each provision is capable of operating without coming into conflict with any other. [ 31 ] Here, of course, I am not asked to resolve a conflict between the Enforcement Act and the Land Titles Act . Neither Act speaks directly to the issue I am deciding at this point, which concerns the direct registration of a judgment against a title to land or an interest in land after an appeal is filed. Nonetheless, in my view, the Legislature has sent a clear message by its enactment of s. 21(2) (

b) of the Enforcement Act – the registration of a judgment is a preliminary step to execution. [ 32 ] To draw a distinction between the period before an appeal is filed and after an appeal is filed would create a strange technicality within the enforcement system. According to the Enforcement Act , a judgment creditor can create a charge against any personal property through registration in the judgment registry, and thereby automatically charge any newly issued title to land or other interest held in the name of the debtor.

A judgment creditor can also register an interest against any existing title to land or an interest in land – if the registration can be effected prior to the appeal being filed. A broad

interpretation of execution in Rule 15, however, would mean that a judgment creditor could not register the judgment against any existing title or interest in land after an appeal has been filed – thus setting up a dichotomy between interests registered before and those registered after an appeal is filed. I can see no principled reason as to why the Legislature would have intended such a result in the Enforcement Act or the Land Titles Act . [ 33 ] Second, I also note that within the confines of the Enforcement Act , an enforcement charge is distinguished from an enforcement measure , which specifically “does not include registration of a judgment” (s. 2(p)).

Part V of the Enforcement Act provides for the “Initiation of Enforcement”: “Unless otherwise ordered by the court, a judgment confers on the sheriff the authority to implement enforcement measures with respect to property of the judgment debtor located anywhere in Saskatchewan” (s. 30(1)). The sheriff’s actions are governed by the enforcement instruction that is received from an enforcing judgment creditor or the court. An enforcement instruction requires an enforcing judgment creditor to provide the sheriff with specific instructions as set out in s. 31 of the Enforcement Act .

This distinction between an enforcement charge and an enforcement measure dovetails with the reasoning of the courts in such judgments as Hughes , which draw a distinction between registration against a title and enforcement steps that would lead to the sale of the land in question.

Also see Commentary at 24–25, paras 2-21 to 2-23, as to the difference between enforcement charge and enforcement measure . [ 34 ] Third, under the law as it existed prior to the coming into force of the Enforcement Act on May 28, 2012, if a writ had not already been registered in the Saskatchewan Writ Registry, it was mandatory for the sheriff – a provincial official – to register the writ ( The Executions Act , RSS 1978, c E-12 , s 26(1) (repealed upon the coming into force of the Enforcement Act on 28 May 2012).

As with the Enforcement Act , once registered, s. 26(2) of The Executions Act provided that “the writ binds and forms a lien and charge on any future acquired titles or interests of the debtor …”. Further, on the direction of the execution creditor, the sheriff “shall … register an interest based on a writ of execution in the Land Titles Registry against any title owned or interest held by the execution debtor” (s. 26(3)).

Similar provisions existed in The Land Titles Act , RSS 1978, c L-5 , s 180 (repealed upon the coming into force of the Land Titles Act on 25 June 2001). [ 35 ] None of these provisions required the sheriff to wait for the appeal period to expire or put the work of the sheriff on pause in the event an appeal had been filed.

Indeed, it had never been the practice under the law as it existed before the Land Titles Act to wait for the appeal period to expire before obtaining a writ of execution or before taking steps to forward the writ to the sheriff whose jurisdiction extended to the particular land registration district where the debtor’s land was located. Thus, under Rule 15(3) an appellant debtor could “obtain a certificate from the registrar” of the Court of Appeal staying the writ of execution: Stay 15

(3) Where a writ of execution has been issued but is stayed after being issued because of an appeal, the appellant is entitled to obtain a certificate from the registrar that the execution of the writ has been stayed pending the appeal.

On the deposit of the certificate with the sheriff, the execution of the writ is stayed but the execution debtor shall pay the sheriff’s fees, and the amount so paid shall be allowed to the execution debtor as part of the costs of the appeal. [ 36 ] Rule 15(3) was obviously adopted prior to the enactment of the Enforcement Act , but it confirms that, under the prior law, a writ of execution could be obtained and automatically filed with the sheriff who, as the previous

section indicates, would register that writ with the land titles system. Hence, the need for the registrar of this Court to issue a certificate to further stay the enforcement of the writ of execution. [ 37 ] With commendable candour, counsel for Canada Ltd. advised the Court that it is still the practice to register judgment interests in the judgment registry as soon as the judgment is obtained – and register against any known land.

Practice cannot dictate the law, but it is some measure of how those most implicated by the law’s effect have interpreted it. [ 38 ] Fourth, Rule 15 is not directed to determining the rights of any of the parties to the litigation in any final manner or in setting

the priorities among competing creditors of the same or different rank. It is directed to maintaining the status quo to ensure success in this Court will not be a pyrrhic victory for the appellant because the judgment under appeal has already been irrevocably satisfied. In this respect, permitting the registration of a judgment interest against personal property and land is consistent with the purpose of Rule 15. [ 39 ] In

summary, I have concluded that Rule 15 does not preclude the registration of a judgment interest against the title to land after an appeal is filed. Based on my review of the case law – although

interpretations of execution have varied in breadth – in my view, in order for some act to be an execution of the judgment for the purposes of Rule 15 it must be a step taken that will lead to the judgment being satisfied, traditionally through the actual seizure of property or the garnishment of a debt. [ 40 ] I note this

interpretation is consistent with Riley v Riley , 2010 SKCA 88 at para 6 , 359 Sask R 128 [ Riley ], and Smysniuk v Stecyk , 2013 SKCA 106 at para 8 , 423 Sask R 259 [ Stecyk ]. Riley predates the Enforcement Act and Stecyk succeeds it. They both imply that a writ of execution (in the case of Riley ) and an interest based on a judgment (in the case of Stecyk ), could be filed against the title to land, notwithstanding the filing of an appeal. [ 41 ] There are two remaining issues.

By making this application, Canada Ltd. submits that a single judge sitting in Chambers would have the authority under Rule 15 to direct the Registrar of Titles to remove the interest registrations filed by Clews. Canada Ltd. also submits that, even if Rule 15 does not apply, a single judge in Chambers would have the authority to make an order “preserving the status quo, pending the determination of the appeal so as to prevent the frustration of the appeal ” (emphasis in original, applicant’s memorandum of law at 7).

The status quo that Canada Ltd. requests be maintained is that which existed before Clews filed against the 14 titles to land. In support of its submissions, Canada Ltd. relies on the inherent jurisdiction of the Court and the discussion in The Honourable Stuart J. Cameron, Civil Appeals in Saskatchewan: The Court of Appeal Act and Rules Annotated (Regina: Law Society of Saskatchewan Library, 2015) at 143–148. [ 42 ] My decision that Rule 15 did not preclude Clews from proceeding as it did is a complete answer to both of these issues.

Having found that Clews had the legal right to register against the land of Canada Ltd., it would be an inappropriate exercise of the inherent jurisdiction of the Court to take away that right – assuming, of course, that the Court’s inherent jurisdiction would extend to granting the relief that Canada Ltd. seeks. Similarly, I do not need to decide whether a Chambers judge would have the authority to make an order to enforce the terms of Rule 15. [ 43 ] To be clear, I understand the problems that have arisen as a result of the registration of a costs judgment in the amount of $4,328 against 14 titles to land.

In affidavit evidence filed with this Court, Canada Ltd. indicates that the land is valued at more than $1.6 million dollars. According to this evidence, the principal of Canada Ltd. is concerned about the potential effect on mortgage financing.

Nonetheless, I have concluded that if a remedy exists to address these issues it cannot be found in Rule 15 or the Court’s inherent jurisdiction. [ 44 ] In conclusion, I dismiss the application in its entirety. [ 45 ] On the question of costs before me, I am certain that this application would not have been brought but for the registration of the judgment against 14 titles to land. Thus I make no order as to costs. “Jackson J.A.” Jackson J.A.