101035403 Saskatchewan Ltd. Appellant (Applicant) v. Westview Holdings Ltd., 2019 SKCA 71

Court of Appeal for Saskatchewan Docket: CACV3289 Citation: 101035403 Saskatchewan Ltd. v Westview Holdings Ltd. , 2019 SKCA 71 Date: 2019-07-30 Between: 101035403 Saskatchewan Ltd. Appellant (Applicant) And Westview Holdings Ltd. Respondent (Respondent) Before: Ottenbreit, Caldwell and Barrington-Foote JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Barrington-Foote On Appeal From: QBG 1945 of 2016, Regina Appeal Heard: June 5, 2019 Counsel: Ryan A. Tulloch for the Appellant Sterling G.

McLean for the Respondent Caldwell J.A. [ 1 ] 101035403 Saskatchewan Ltd. [101035403] appeals against the decision of a Court of Queen’s Bench Chambers judge declining to pay out funds that it had paid into court under The Builders’ Lien Act , SS 1984-85-86, c B-7.1 , which stood in the place of an interest held by Westview Holdings Ltd. [Westview]. [ 2 ] In his fiat dated July 25, 2018 [Fiat], the Chambers judge found he could not determine, in the context of the application before him, whether a limitation period barred Westview’s claim to the funds in court.

In the result, the Chambers judge dismissed 101035403’s application, allowing the matter to proceed summarily to a determination on its merits. [ 3 ] In its appeal, 101035403 concedes the dismissal of its application was within the Chambers judge’s discretion. However, it says the Chambers judge erred in a number of ways when exercising that discretion.

Although several of the grounds of appeal are couched in terms of an error of law, they are all, at root, allegations that the Chambers judge erred in his assessment of the evidence and how that evidence engaged with the limitation period under The Limitations Act , SS 2004, c L-16.1 . They allege errors of fact and of mixed fact and law.

The appellate standard of palpable and overriding error applies to such questions. [ 4 ] Having reviewed the appeal book and the Fiat and having considered the parties’ arguments, I am not persuaded the Chambers judge committed a palpable and overriding error in his assessment of the evidence. As I read the Fiat, the Chambers judge found he could not make the findings of fact necessary to grant 101035403’s application on the basis of the evidence that had been put before him.

Read in this way, the Fiat records the Chambers judge’s determination that he could not grant the relief sought by 101035403 in its interlocutory application, but that the evidentiary issue that prevented him from doing so would be addressed when Westview’s claim was heard on its merits. [ 5 ] In brief terms, I see no reversible error in what the Chambers judge decided. 101035403 has not pointed to anything that persuasively denotes an abuse of discretion, an error in principle, a disregard of a material matter of fact, or a failure to act judicially; nor am I persuaded the result is so plainly wrong as to amount to an injustice ( Rimmer v Adshead , 2002 SKCA 12 at para 58 , [2002] 4 WWR 119).

As such, this Court is not free to override the decision of the Chambers judge, even if we might have decided differently. [ 6 ] For these reasons, I would dismiss the appeal with costs to Westview. “Caldwell J.A.” Caldwell J.A. I concur. “Barrington-Foote J.A.” for Ottenbreit J.A. per authorization I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.