6517633 Canada Ltd. Appellant (Plaintiff/Respondent) v. Rural Municipality of Norton No., 2019 SKCA 45

Court of Appeal for Saskatchewan Docket: CACV3098 Citation: 6517633 Canada Ltd. v Norton (Rural Municipality) , 2019 SKCA 45 Date: 2019-05-24 Between: 6517633 Canada Ltd. Appellant (Plaintiff/Respondent) And Rural Municipality of Norton No. 69, Leon Van De Walle and Harold Larson Respondents (Defendants/Applicants) Before: Richards C.J.S., Caldwell and Barrington-Foote JJ.A. Disposition: Appeal dismissed as abandoned Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Barrington-Foote On Appeal From: Q.B.G.

No. 617 of 2016, Regina Appeal Heard: December 11, 2018 Counsel: Sterling McLean for the Appellant Virgil Thomson for the Rural Municipality of Norton No. 69 Richards C.J.S. I. Introduction [ 1 ] 6517633 Canada Ltd. [651 Canada] filed a notice of appeal in this matter but then failed to advance the proceedings. As a result, it has been called upon, pursuant to Rule 46(2) of The Court of Appeal Rules , to show cause why its appeal should not be dismissed as abandoned. [ 2 ] In my respectful view, 651 Canada has failed to show cause. As explained below, its appeal must be dismissed as abandoned.

II. background [ 3 ] 651 Canada is wholly owned by Stan Sheppard. It owns land in the Rural Municipality of Norton No. 69 [R.M.]. [ 4 ] A slough cuts through the road allowance that provides access to 651 Canada’s land. In order to reach the land, it is necessary to skirt the slough by leaving the road allowance and travelling over land owned by Harold Larson. Mr. Sheppard and Mr. Larson entered an agreement whereby Mr. Larson undertook to install gates to provide access to his land so as to accommodate travel around the slough. [ 5 ] Issues arose with respect to the operation of the gates.

Those issues led 651 Canada to commence an action against Mr. Larson and the R.M. 651 Canada alleged that Mr. Larson had failed to leave the gates open, as agreed, when there were no cattle on his land. 651 Canada also alleged that the R.M. had failed to investigate its complaints against Mr. Larson with sufficient diligence and had failed to notify Mr. Larson of his obligation to keep the gates open when his cattle were not grazing. 651 Canada sought orders directing that the gates be kept open at all times, that the land around the slough be expropriated, that Mr.

Larson relocate his fences and that the R.M. be obliged to answer a series of 17 questions Mr. Sheppard had put to the R.M. council. [ 6 ] 651 Canada and Mr. Larson settled the issues between them. For its part, the R.M. brought an application to strike 651 Canada’s claim on the basis that it disclosed no cause of action. 651 Canada then amended its statement of claim to seek relief including (

a) an order that the R.M. answer Mr. Sheppard’s questions, (

b) an order overturning an R.M. council resolution to the effect that the R.M. would not answer Mr. Sheppard’s questions, (

c) an order removing Leon Van De Walle as Reeve of the R.M., (

d) an order removing from office all R.M. council members who had voted in favour of the resolution not to answer Mr. Sheppard’s questions, and (

e) an indemnification of 651 Canada for legal expenses incurred in its proceedings against Mr. Larson. [ 7 ] A Queen’s Bench Chambers judge granted the R.M.’s application to strike 651 Canada’s claim. In dealing with the issues as they were presented to him, the Chambers judge found that (

a) the R.M. had no obligation to answer the questions Mr. Sheppard had put to it, (

b) the R.M. had no authority to direct when Mr. Larson’s gates should be open, (c) 651 Canada had failed to meet the statutory time requirements and the form requirements for a proceeding aimed at quashing a municipal council resolution, (

d) Mr. Van De Walle could not be removed from office because he was no longer Reeve, and (

e) the conduct of the councillors who had voted for the resolution at issue was not conduct that could lead to their removal from office. [ 8 ] 651 Canada filed a notice of appeal on July 5, 2017. Its grounds of appeal were specified as follows:

a) The JUDGMENT is contrary to the law, the evidence and the weight of evidence.

b) The Learned Judge … erred in granting the motion striking out the Claim of 6517633 CANADA LTD. pursuant to Q.B. Rule 7 on the basis that there was no merit in any of the claims and no genuine issue for trial.

c) The Learned Judge … erred in granting the Defendants’ application for dismissal of the entire action pursuant to Q.B. Rule 7 when there was a material misrepresentation made by the Rural Municipality of Norton No. 69 that it would take all steps necessary to deal with Harold Larson to arrange for access by the Plaintiff to its land which was relied upon by the Plaintiff to its detriment and in fact took no reasonable steps. [ 9 ] On August 23, 2017, the R.M.’s counsel emailed counsel for 651 Canada to ask when its factum and the appeal book would be served.

On September 21, 2017, counsel for 651 Canada advised that “the materials for the Appeal Book have been prepared and it will be printed in the very near future”. He also advised that the factum would be finalized “within the next few days”. [ 10 ] 651 Canada’s factum and appeal book were not completed as its counsel had indicated. On December 12, 2017, counsel for the R.M. emailed counsel for 651 Canada to advise that, if the factum and appeal book were not received forthwith, he expected to receive instructions to take steps to have the appeal struck.

There was no reply to this email and the factum and appeal book were neither served nor filed. [ 11 ] On October 3, 2018, the Registrar gave 651 Canada notice, pursuant to Rule 46(2) of The Court of Appeal Rules , to show cause why its appeal should not be dismissed as abandoned. III. analysis [ 12 ] Rule 46(2) allows the Registrar to step in when appeals languish. It reads as follows:

(2) If an appeal has not been set down for hearing within one year after the notice of appeal has been filed, the registrar may, upon notice to the parties, refer the matter to the court to be dismissed as abandoned. Notice shall be given in Form 9, and the parties shall have 15 days to apply to the court to show cause why the appeal should not be dismissed. [ 13 ] Maurice Law, Barristers & Solicitors v Sakimay First Nation , 2016 SKCA 92 , 484 Sask R 131 [ Maurice Law ], examined the approach to be followed in deciding whether an appeal should be dismissed pursuant to Rule 46(2).

Writing for the Court, I concluded as follows: [13] … there is a broad common theme in the case law to the effect that the bottom line inquiry in deciding whether an appeal should be struck for failure to move it forward is a question of whether it is in the interests of justice to do so.

It is also broadly agreed that the answer to the interests of justice question is one that should be informed by considerations such as the reasons for the delay, the merits of the appeal and the prejudice to the parties from striking the appeal or allowing it to proceed. … [ 14 ] In my view, the general kind of approach used by other appeal courts in this area recommends itself in Saskatchewan as well. The root question in deciding whether to dismiss an appeal as abandoned pursuant to Rule 46(2) should be whether it is in the interests of justice to make such an order.

In coming to this determination, the Court will want to weigh and consider the full range of relevant factors. These will generally include, but not necessarily be limited to: (

a) the adequacy of the appellant’s reason for the delay in moving matters forward; (

b) the extent, if any, that the respondent has expressed concern about the delay or attempted to have the appellant advance the appeal; (

c) the progress, if any, the appellant has made in preparing the materials necessary to perfect the appeal; (

d) whether, and the extent to which, the respondent has been prejudiced by the appellant’s failure to move the appeal forward or will be prejudiced if the appeal is allowed to proceed; and (

e) whether the appellant has the willingness and the capacity to comply with the deadlines that might be imposed by the Court in relation to the perfection of the appeal. [14] With the benefit of hindsight, it might have been useful to indicate somewhat more clearly that the merits of an appeal also play a role in the decision as to whether it should be dismissed as abandoned. In saying this, I do not suggest a show cause hearing should involve an in-depth examination of the strength of the appellant’s case or that such a hearing should be a dress rehearsal of the appeal proper.

I mean only that the interests of justice will not be served by allowing an appeal to move forward if it cannot succeed. [ 15 ] Rule 46.1(1)(

c) of The Court of Appeal Rules engages this same basic point by providing that any party to an appeal may apply to have the appeal quashed if it is “manifestly without merit”. This is a high threshold that is satisfied only where it is “entirely clear the appeal is destined to fail and where, conversely, there is no possibility that any ground of appeal might succeed”. See: Jardine v Hyggen , 2018 SKCA 38 at para 19 , [2018] 7 WWR 713. In my view, the same “manifestly without merit” standard should be applied in the context of show cause hearings.

There is no point in authorizing or requiring the ongoing investment of resources in an appeal if it is clearly and obviously destined to fail. [ 16 ] Accordingly, as something of a restatement of the approach described in paragraph 14 of Maurice Law , let me confirm that the core question in deciding whether to dismiss an appeal as abandoned pursuant to Rule 46(2) is whether it is in the interests of justice to make such an order. If an appeal is manifestly without merit, that will be determinative of the inquiry. Otherwise, the full range of relevant factors should be weighed and considered.

Those factors will generally include, but not necessarily be limited to: (

a) the adequacy of the appellant’s reason for the delay in moving matters forward; (

b) the extent to which the respondent has expressed concern about the delay or attempted to have the appellant advance the appeal;

(

c) the progress, if any, the appellant has made in preparing the materials necessary to perfect the appeal; (

d) whether, and the extent to which, the respondent has been prejudiced by the appellant’s failure to move the appeal forward or will be prejudiced if the appeal is allowed to proceed; and (

e) whether the appellant has the willingness and the capacity to comply with the deadlines that might be imposed by the Court in relation to the perfection of the appeal. [ 17 ] Two other points from Maurice Law are also important to note here. First, except for the question of whether the appeal is manifestly without merit, no one of the factors just listed is necessarily or wholly determinative of the question of whether an appeal should be dismissed or abandoned.

Second, the appellant has the onus of persuading the Court it is in the interests of justice that the appeal should not be dismissed as abandoned, i.e., that it should be allowed to proceed. [ 18 ] With this clarification made, I turn now to the situation in this case. Let me begin with the question of whether the appeal is manifestly without merit. 651 Canada advises that, from its point of view, there are now only two live issues in this appeal. The first is whether the R.M. should be required to compensate 651 Canada for the legal fees it incurred in pursuing its claim against Mr. Larson.

The amount in issue is described as being the difference between 651 Canada’s expenditures on legal services and the $2,500 it received from Mr. Larson by way of a settlement payment. There is no even arguable merit in this ground of appeal. As presented, it involves a clear conflation of the separate concepts of “costs” and “damages”. The second issue in the appeal is said to be the question of whether the R.M. council should have been directed to answer the questions posed to it by Mr.

Sheppard. 651 Canada is unable to cite any authority to support its position on this issue or to otherwise make a potentially workable argument that the Chambers judge erred in finding the R.M. was under no legal duty to answer the questions. It follows that 651 Canada’s appeal is manifestly without merit. [ 19 ] This is enough to determine the question of whether 651 Canada’s appeal should be allowed to proceed but I note, in addition, that the same result would follow regardless of the merit of the appeal.

I say this because (a) 651 Canada acknowledges that there is no real explanation for why the appeal has been allowed to languish, (

b) the R.M. has expressed concern about 651 Canada’s lack of progress in advancing the appeal in that its counsel inquired about the status of 651 Canada’s factum and appeal book in August of 2017 and, when the factum and the appeal book were not served by December of 2017, its counsel raised the prospect of an application to strike the appeal, and (

c) no progress has been made on the finalization of the appeal book since September of 2017 and 651 Canada’s factum has not yet been drafted. In the circumstances of this case, these considerations lead to the conclusion that the appeal should not be allowed to go forward even though the R.M. acknowledges that it would not be prejudiced if this were to happen. IV. conclusion [ 20 ] 651 Canada’s appeal is dismissed as abandoned. [ 21 ] The R.M. is entitled to costs which I fix in the amount of $750. “Richards C.J.S.” Richards C.J.S. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.