Patel v Saskatchewan Health Authority, 2020 SKCA 100

Court of Appeal for Saskatchewan Docket: CACV3679 Citation: Patel v Saskatchewan Health Authority , 2020 SKCA 100 Date: 2020-08-17 Between: Dr. Satyam Patel Applicant/Prospective Appellant (Plaintiff/Applicant) And E.F. Anthony Merchant, Q.C. Applicant/Prospective Appellant (Non-party) And Saskatchewan Health Authority (formerly the Regina Qu’Appelle Regional Health Authority) Respondent/Prospective Respondent (Defendant/Respondent) Before: Caldwell J.A. (in Chambers) Disposition: Application for leave to appeal dismissed; extension of time to appeal granted Written reasons by: The Honourable Mr.

Justice Caldwell On application from: 2020 SKQB 194 , Regina Application heard: August 13, 2020 Counsel: E.F. Anthony Merchant, Q.C. for the Applicants Ryan Kitzul, Brian Lunde and Karen Prisciak, Q.C., for the Respondent Caldwell J.A. [ 1 ] In their application to obtain leave to appeal against only the costs order made in Patel v Saskatchewan Health Authority , 2020 SKQB 194 [ Chambers Decision ], Dr. Satyam Patel and E.F. Anthony Merchant, Q.C. [Applicants] seek the following relief: (

a) an order that the Queen’s Bench Chambers judge has lost jurisdiction to hear an application for leave to appeal under s. 38 of The Queen’s Bench Act, 1998 , SS 1998, c Q-1.01 , due to his decision to recuse himself in the proceedings in the Court of Queen’s Bench, and “that this Court will act in his stead”; and (

b) an order granting leave to appeal the costs order only; or (

c) an order that leave to appeal against the costs order only is not required in this case because the Chambers judge ordered costs on a wrong principle; and (

d) any other relief that which this Court deems just; and (

e) an order pursuant to Rule 52 of The Court of Appeal Rules that the costs of this application be costs in the cause. [ 2 ] The threshold question in this application is whether, as a single judge sitting in Chambers, I have the jurisdiction to grant the relief and alternate relief sought by the Applicants. I am unable to conclude that I have that jurisdiction. However, I grant the Applicants’ oral request for an extension of time to file a notice of appeal against the costs order.

The Applicants shall have until 4:00 p.m. on August 24, 2020, to file a notice of appeal from the costs order only under the Chambers Decision . [ 3 ] Although litigants have a general right to appeal from decisions of the Court of Queen’s Bench under s. 7(2) of The Court of Appeal Act, 2000 , SS 2000, c C-42.1 , that right is limited by s. 7(3) of that Act and by s. 38 (

b) of The Queen’s Bench Act, 1998 in circumstances where the litigant seeks to appeal against an order of costs alone. Where no one has appealed or cross-appealed against the substantive parts of a Court of Queen’s Bench decision, a litigant’s right to appeal against only the costs order made by the judge is subject to that judge granting leave to appeal ( Semchyshen v Semchyshen , 2016 SKCA 108 , 402 DLR (4th) 623 [ Semchyshen ]; Holmes v Jastek Master Builder 2004 Inc. , 2017 SKCA 50 , 11 CPC (8th) 293 [ Holmes ]).

Section 38 (

b) of The Queen’s Bench Act, 1998 sets out the limitation in these terms: No appeal of certain judgments without leave 38 Except with leave of the judge giving the judgment or making the order, the following judgments and orders are not subject to appeal: … (

b) subject to the rules of court, judgments given or orders made by a judge as to costs only that, by law, are left to the discretion of the judge. [ 4 ] In short, no appeal lies to this Court from a costs order alone if leave to appeal has not been granted by the Court of Queen’s Bench judge who made the order. [ 5 ] In this case, the Chambers judge has not granted leave to appeal from the costs order under the Chambers Decision . This is because the Applicants have not sought leave from the Chambers judge. They say they have not done so because the costs order followed

on Dr. Patel’s successful application before the Chambers judge, seeking his recusal from the role of case management judge in theactions Dr. Patel had brought against the respondent Saskatchewan Health Authority in the Court of Queen’s Bench. In the ChambersDecision, the Chambers judge ruled that he was not disqualified from continuing in that role, but he nonetheless decided to recuse himselfout of “an abundance of caution” (at para 109). The Applicants argue that, when he recused himself, the Chambers judge lost thejurisdiction to grant leave under s. 38 of The Queen’s Bench Act, 1998.

Given his loss of jurisdiction, they submit that I should assumejurisdiction and grant them leave to appeal. I am not persuaded to do that. [6] By statute, the jurisdiction to grant or deny leave to appeal against a costs order resides with the judge who made the order. Ido not need to decide whether or how the Chambers judge’s recusal affects the leave requirement under s. 38 of The Queen’s Bench Act,1998.

Even though the same statutory leave requirement has been in place in Saskatchewan for over a century (see s. 49 of the SupremeCourt Judicature Act, 1873, 36 & 37 Vict c 66), the Applicants have not pointed to any statutory authority, rule of court, jurisprudence orgeneral principle of law that would allow me to stand in the shoes of a Court of Queen’s Bench judge for the purposes of granting leave toappeal from a costs order alone. [7] At best, s. 5(1) of The Court of Appeal Act, 2000 might be said to confer broad jurisdiction and authority on judges of thisCourt, but it seems antithetical to the appellate role of this Court to say that s. 5(1) applies in this circumstance as it provides: Duties and powers of judges 5(1) The chief justice and the other judges are also, by virtue of their office, judges of the Court of Queen’s Bench and: (

a) for all purposes, have all the powers, rights, privileges and immunities of judges of the Court of Queen’s Bench; and (

b) are eligible to preside over trials of criminal and civil cases in the Court of Queen’s Bench, to sit in chambers as judges of that courtand to hear and determine all applications that may properly be made to a judge of that court sitting in chambers. [8] The provision is rarely invoked and, when it is, judges of this Court have exercised their duties and powers under s. 5(1) ofThe Court of Appeal Act, 2000 to preside over trials and Chambers applications in the Court of Queen’s Bench at the request of that Court.In Baynton v Mills, 2008 SKQB 108, 313 Sask R 266, Richards J.A. (as he then was, ex officio) presided over a Court of Queen’s BenchChambers application involving a sitting judge of that Court.

In R v Hahn, 2015 SKQB 88, among other citations, Ottenbreit J.A. (exofficio) presided over a criminal trial regarding the harassment of a Court of Queen’s Bench judge by a family law litigant, where judges ofthat Court were witnesses. Aside from a request from the Court of Queen’s Bench, another commonality in these cases is the existence ofcircumstances that disqualified or made it awkward for judges of the Court of Queen’s Bench to preside over the proceedings taking placein their own court.

Those are not the circumstances of this case. [9] I found only one instance where the equivalent of s. 5(1) of The Court of Appeal Act, 2000 had been relied upon by this Courtin a matter brought before it.

In R v Sterling (1993), (SK CA), 84 CCC (3d) 65 (Sask CA), in circumstances where noright of appeal could be found at law, Bayda C.J.S. and Cameron J.A. (Wakeling J.A. wrote separately, concurring in the result) relied onthe equivalents of s. 5(1) under The Court of Appeal Act, RSS 1978, c C-42 (repealed), to assume the jurisdiction necessary to quash ordersmade by a Court of Queen’s Bench judge, which they had deemed to be nullities.

That is also not the circumstance of this case. [10] Here, the Applicants have asked a single Court of Appeal judge sitting in Chambers to assume jurisdiction over a matter ofQueen’s Bench jurisdiction under statute. As I see it, this request runs counter to the appellate role and the function of a Court of AppealChambers judge. While s. 5(1) grants broad jurisdiction and powers, other provisions of The Court of Appeal Act, 2000 militate against theassumption of Court of Queen’s Bench jurisdiction by a single Court of Appeal judge.

For example, s. 10 recognises that “[t]he court hasappellate jurisdiction in civil and criminal matters where an appeal lies to the court, with any original jurisdiction that is necessary orincidental to the hearing and determination of an appeal” (emphasis added).

Section 11 states: “The court may, in its discretion, exerciseoriginal jurisdiction to grant relief in the nature of a prerogative writ” (emphasis added). Section 12(1)(

d) provides that, on an appeal, thecourt may “make any decision that could have been made by the court or tribunal appealed from”. The use of the word court in thesejurisdiction conferring provisions is important. Under s. 15(2), a decision of the court requires the majority of a quorum of three judges. [11] Moreover, the jurisdiction and authority of a single Court of Appeal judge sitting in Chambers is expressly limited by s. 20 ofThe Court of Appeal Act, 2000.

In that regard, I do not interpret s. 20(2), which states that “[a] single judge sitting in chambers may hearand dispose of an application for leave to appeal”, as applying to the circumstances at hand.

More importantly, I do not interpret theapplication before me as “an application or motion that is incidental to an appeal or matter pending in the court” (s. 20(1)), as no appeallies to this Court until the s. 38 leave requirement has been satisfied. [12] In short, I am unable to conclude that I have the jurisdiction necessary to grant the relief sought in this application. [13] I recognise the foregoing conclusion seems to give rise to a catch-22 in this circumstance because the Applicants have chosennot to seek leave from the Chambers judge given his recusal.

However, in their submissions, the Applicants also observe that the Courthas addressed appeals against costs orders without leave having first been granted by the Queen’s Bench judge who made the order. InHolmes, Ottenbreit J.A. examined a longstanding “principled exception” to s. 38 of The Queen’s Bench Act, 1998 (at para 9; see alsoUniversity of Saskatchewan v Fireman’s Fund Insurance Co. of Canada (1998), (SK CA), 172 Sask R 305 (CA) atpara 4; Union Bank v Meloff, (SK CA), [1924] 1 DLR 556 (WL) (Sask CA) at paras 11 and 18–19).

In Semchyshen,Ryan-Froslie J.A. stated the principled exception, expressed a general concern about its soundness but, being bound by the jurisprudence,nonetheless applied it in the context of that case. In doing so, Ryan-Froslie J.A. dispelled the notion that the Applicants are in a catch-22.She did so because her reasons identify an avenue of appeal from the costs order under the Chambers Decision without the necessity ofobtaining leave from the Chambers judge or from a Court of Appeal Chambers judge.

She wrote: [74] On a number of occasions, this Court has held that where a judge’s order for costs is based on a wrong principle, it is notnecessary to obtain leave to appeal (see Western Trust Co. v Canadian Northern Railway Company, (SK CA), [1919] 3WWR 815 (Sask SC); Union Bank v Meloff, (SK CA), [1924] 1 WWR 298 (Sask SC); Boychuk v Korzenowski, (SK CA), [1924] 2 WWR 750 (Sask SC); Arnold v Hepting, (SK CA), [1930] 2 WWR 473 (Sask SC); Leier

v Shumiatcher and Luboff (1962), (SK CA), 39 WWR (NS) 446 (Sask CA) at para 2; University of Saskatchewan vFireman’s Fund Insurance Co. of Canada (1998), (SK CA), 172 Sask R 305 (CA)). [75] While I have concerns with the approach historically adopted by this Court, I feel bound by it.

Thus, as the trial judge erred inprinciple, leave to appeal his order as to costs was not required. [76] Having determined the trial judge erred in principle in assessing costs and that leave to appeal is not required, it falls to this Courtto determine the appropriate costs award. [14] In the result, I am not persuaded that I have the jurisdiction to grant the relief requested in this application. When I raised this asa potential issue in Chambers, the Applicants orally sought an extension of time to file a notice of appeal against the costs order as a finalorder, i.e., one that does not require leave.

Given the circumstances, I hereby grant an extension of time to the Applicants until 4:00 p.m.on August 24, 2020, to file a notice of appeal from the costs order only under the Chambers Decision. [15] I leave the matter of costs in this application to the panel of the Court that hears the appeal. “Caldwell J.A.” Caldwell J.A.