Koroluk v KPMG Inc., 2020 SKCA 106

Court of Appeal for Saskatchewan Docket: CACV3680 Citation: Koroluk v KPMG Inc., 2020 SKCA 106Date: 2020-08-28 Between:Randy KorolukApplicant/Prospective Appellant (Applicant/Respondent/Plaintiff)And KPMG Inc.Respondent/Prospective Respondent (Respondent/Applicant/Defendant)AndPrimeWest Mortgage Investment Corporation, Dan Anderson, Tom Archibald, Francis Bast, Doug Frondall, Mike Hough, Wilson Olive,Tom Robinson, Irene Seiferling, Ernst & Young Inc. Respondents/Prospective Respondents (Defendants)AndDirector of Corporations, Canada Revenue Agency, P.I.

Financial, Donald Zealand, Granite Enterprises, Debbie Gloria BurwashNon-parties (Non-parties)Before: Barrington-Foote J.A. (in Chambers)Disposition: Application dismissedWritten reasons by: The Honourable Mr. Justice Barrington-FooteOn application from: QBG 1455 of 2019, SaskatoonApplication heard: August 26, 2020Counsel: E.F. Anthony Merchant, Q.C., for Randy Koroluk Michael Russell and Nicholas Conlon for KPMG Inc. Amanda Quayle, Q.C., for Dan Anderson, Tom Archibald, Francis Bast, Doug Frondall, Mike Hough,Wilson Olive, Tom Robinson, and Irene Seiferling Donald Hanna for Ernst & Young Inc.

No one appearing for PrimeWest Mortgage Investment Corporation Barrington-Foote J.A. [1] On July 23, 2020, Randy Koroluk filed a notice of appeal naming KPMG Inc., PrimeWest Mortgage Investment Corporation,Ernst & Young Inc. and several individuals as respondents (CACV3678). The notice of appeal alleged that a Chambers judge erred bygranting an order [QB order] to include a proposed class action (QBG 1727 of 2018) which had been commenced in the Court of Queen’sBench in voluntary liquidation and dissolution proceedings relating to PrimeWest (QBG 1455 of 2019). When he filed the notice ofappeal, Mr.

Koroluk’s counsel had been advised by counsel for KPMG Inc. that it was their position that leave to appeal was required. [2] On August 7, 2020, Mr. Koroluk filed a notice of motion in this Court which applied for a declaration that leave to appeal theQB order was not required and, in the alternative, that leave be granted if it was required. The notice of motion was filed under a coverletter to the Registrar from counsel for Mr.

Koroluk, which explained that the application sought confirmation of the validity of the appealas filed, and alternative relief. [3] A second file (CACV3680) was opened by the Registrar relating to Mr. Koroluk’s application, which I heard on August 26,2020. In his written submissions, counsel for Mr. Koroluk discussed principles that would, in his view, support the grant of leave toappeal. However, he also confirmed that the application was not an application for leave, as leave was not required. He pointedlyreaffirmed that position at the hearing of the application.

Indeed, he submitted that I should first decide whether leave was required andhear submissions as to whether leave should be granted only if I first decided it was. [4] The question of whether leave is required may be decided by a Chambers judge in the course of an application for leave.However, there has been no such application. Nor has there been an application by any of the respondents in CACV3678 asserting thatleave is required. For that reason, I have no jurisdiction to grant the declaratory relief – essentially, an opinion as to an issue which has notbeen engaged – for which Mr.

Koroluk has applied. [5] A prospective appellant must decide whether they believe leave to appeal is necessary. Mr. Koroluk concluded it was not, andfor that reason, filed the notice of appeal despite having been advised that KPMG Inc. was of a different mind.

His counsel confirmed thathe did not seek leave after having filed a notice of appeal, as he was concerned with the potential impact of the reasoning in Iron vSaskatchewan (Minister of the Environment and Public Safety) (1993), (SK CA), 103 DLR (4th) 585 (Sask CA) [Iron],and related decisions of this Court. [6] That concern was understandable in light of the reasoning in Iron and subsequent cases, including Saskatoon (City) v WalmartCanada Corp., 2016 SKCA 123, 1 CPC (8th) 380.

I note the useful canvass of these authorities in Patel v Whiting, 2020 SKCA 49[Patel], where Leurer J.A. dismissed an application for leave to appeal because leave was not required but granted the prospectiveappellant an extension of time to appeal. The prospective appellant requested that alternative relief at the hearing of his application. JusticeJackson applied Patel in Re Harmon International Industries Inc., 2020 SKCA 95. [7] Here, Mr. Koroluk sought to resolve the question as to whether leave is required by having his cake and eating it too. He is not

entitled to do so in this fashion. In the result, his application is dismissed with costs in the usual way. “Barrington-Foote J.A.” Barrington-Foote J.A.