Poffenroth Agri Ltd. Appellant (Plaintiff/Respondent) v. Garret Brown, 2020 SKCA 121

Court of Appeal for Saskatchewan Docket: CACV3601 Citation: Poffenroth Agri Ltd. v Brown 2020 SKCA 121 Date: 2020-10-27 Between: Poffenroth Agri Ltd. Appellant (Plaintiff/Respondent) And Garret Brown Respondent (Defendant/Applicant) Before: Richards C.J.S., Caldwell and Kalmakoff JJ.A. Disposition: Appeal Dismissed Written reasons by: The Honourable Mr. Justice Caldwell In concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Kalmakoff On appeal from: 2020 SKQB 31 , Regina Appeal heard: October 7, 2020 Counsel: Roger J. Baker for the Appellant Ryan D.

Kitzul for the Respondent Caldwell J.A. [ 1 ] Poffenroth Agri Ltd. [Poffenroth] appeals against the decision of a Chambers judge of the Court of Queen’s Bench that struck a notice of discontinuance of the claim it had brought against Garret Brown [Brown] ( Poffenroth Agri Ltd. v Brown , 2020 SKQB 31 [ Decision ]). I would dismiss the appeal, largely for the reasons given by the Chambers judge, with costs to Brown. [ 2 ] As background, Poffenroth commenced proceedings against Brown in Saskatchewan [Saskatchewan Action] and, later, in Alberta [Alberta Action].

The statements of claim in the two proceedings are nearly identical. After filing his statements of defence in the two Actions, Brown moved to have the Alberta Action struck. While that motion was pending before the Court of Queen’s Bench for Alberta, Brown applied to the Court of Queen’s Bench for Saskatchewan for, and received, an order compelling Poffenroth to produce its Affidavit of Documents in the Saskatchewan Action.

A few weeks later, on December 11, 2019, Yamauchi J. of the Alberta Court of Queen’s Bench ordered orally a stay of the Alberta Action [ Alberta Ruling ]: So on its face, the commencement of the Alberta action is an abuse of process, but does that result in my striking the Alberta action? And I think the answer is no, that is not the result. Why? I think it would be unfair for the plaintiff if I were to strike the action at this moment because we still need a proper determination of forum non conveniens or forum conveniens, as the case may be.

The difficulty that we have in this case is that there is an extant Saskatchewan action and, granted, the plaintiff has said that it will provide an undertaking to this Court to discontinue that action in Saskatchewan or whatever it's going to do. However, counsel for the defendant has said to me that he's going to contest that discontinuance, it's not going to be a simple consent order where you discontinue by consent. That is going to be a contested hearing. So what does that mean? What that means is that the Saskatchewan Courts are going to have to wrestle with the forum non conveniens issue.

And so what I'm going to rule is that the Alberta action is stayed. The plaintiff will do one of two things, it will make an application to the Saskatchewan Courts to discontinue its action in Saskatchewan or, in the alternative, will make an application under The Court Jurisdiction and Proceedings Transfer Act . If that application is successful, then the Alberta action, the stay will be lifted and the action will continue.

If the application is unsuccessful in Saskatchewan, then the claim in Alberta will be struck. [ 3 ] In material part, the formal order taken out by the parties in the Alberta Action on the basis of the foregoing ruling of Yamauchi J. reads as follows [Alberta Order]: 1. This Action is stayed subject to the following: (

a) The Plaintiff may bring an application to the Court of Queen's Bench for Saskatchewan in Saskatchewan Action styled QBG 1212 of 2019, for an order granting: (

i) leave to discontinue or withdraw the Statement of Claim in that action; and/or, (ii) a transfer of the proceedings of that action to the Court of Queen's Bench of Alberta in accordance with the Court Jurisdiction and Proceedings Transfer Act (Saskatchewan) (

b) If the Plaintiff is granted leave to withdraw, discontinue or transfer proceedings of Action QBG 1212 of 2019 in the Court of Queen's Bench for Saskatchewan then the Stay of this Action shall be lifted, (

c) If the Plaintiff is unsuccessful in seeking leave to withdraw. discontinue or transfer proceedings of Action QBG 1212 of 2019 in the Court of Queen's Bench for Saskatchewan, then this Action shall be struck[.] [ 4 ] No appeal has been taken against the Alberta Order and the period for doing so has elapsed.

[ 5 ] In January, 2020, Brown applied to the Court of Queen’s Bench for Saskatchewan seeking to have Poffenroth ordered to apply “for leave to discontinue” the Saskatchewan Action or, alternatively, seeking an order under Rule 4-4 of The Queen’s Bench Rules “for a conference between the parties… to resolve the issue of what Poffenroth requires to conclude the Saskatchewan Action”. After being served with Brown’s application, Poffenroth filed a notice of discontinuance of the Saskatchewan Action, without seeking leave to do so.

This filing caused Brown to amend his notice of application to seek an order setting aside the notice of discontinuance or, alternatively, a pre-trial conference under Rule 4-4 on “the issue of jurisdiction with respect to the Saskatchewan Action”. [ 6 ] In his Decision on Brown’s amended application, the Chambers judge concluded the notice of discontinuance was an abuse of process and had been filed contrary to the Alberta Order. A

summary of the Decision is contained in Poffenroth Agri Ltd. v Brown , 2020 SKCA 68 , granting Poffenroth leave to appeal in this matter, where Kalmakoff J.A. wrote: [ 7 ] Mr. Brown’s application was heard on February 4, 2020. The Chambers judge granted the application ( Chambers Decision ), holding that, even if it were assumed Rule 4-49(1)(

a) entitled [Poffenroth] to file a notice of discontinuance in the [Saskatchewan Action], such entitlement did not equate to an absolute right to discontinue. Relying on Rule 1-4(3), the Chambers judge determined that “[t]he court retains an inherent jurisdiction to depart from and even deviate from The Queen’s Bench Rules ” in order to prevent an abuse of its process (at para 15). He found that the discontinuance filed by [Poffenroth] was an attempt to evade the Alberta Order and, thus, was “improper and an abuse of process” (at para 28). As a result, he struck [Poffenroth’s] notice of discontinuance and directed the Queen’s Bench Registrar to

schedule a hearing to determine whether the appropriate forum for the adjudication of [Poffenroth’s] claim was the Court of Queen’s Bench for Saskatchewan or the Court of Queen’s Bench for Alberta. [7] Poffenroth now challenges the Decision by submitting that Yamauchi J. had unknowingly predicated his Alberta Order on an error of fact, namely, an error as to whether leave was required under the Saskatchewan Queen’s Bench Rules to discontinue the Saskatchewan Action. Poffenroth also asserts the Chambers Judge erred because the discontinuance of the Saskatchewan Action had not caused Brown any actual prejudice.

Lastly, Poffenroth says the Chambers Judge exceeded his jurisdiction because striking the notice of discontinuance had the effect of forcing it to pursue matters in Saskatchewan, which it does not wish to do. Having considered these allegations, I can see no error in how the Chambers judge approached or determined the matter before him. [ 8 ] At the root of this appeal is the proper

interpretation of the Alberta Order. I acknowledge the text of the Alberta Order leaves just enough room for Poffenroth to make its arguments in this appeal, but no more than that.

Given the interpretive assistance provided by the Alberta Ruling , I have no hesitation concluding that the Chambers judge correctly interpreted the Alberta Order as directing Poffenroth to pursue the question of forum conveniens before the Court of Queen’s Bench for Saskatchewan either in the context of seeking leave to discontinue the Saskatchewan Action or making an application pursuant to The Court Jurisdiction and Transfer of Proceedings Act , SS 1997, c C-41.1 .

When interpreting the Alberta Order, the Chambers judge wrote: [5] The defendant [Brown] brought an application in the Alberta Court of Queen’s Bench to strike or stay proceedings on the Alberta action. This application was heard by Justice Yamauchi of the Court of Queen’s Bench on December 11, 2019 in Calgary, Alberta. A transcript of that hearing has been filed with this Court. At the conclusion of that hearing, Justice Yamauchi stayed the Alberta action pending a hearing of an application by this Court.

In his concluding remarks, at lines 4 – 6, page 39 of the transcript, he said: So the order will read in the final analysis that the Alberta action will be stayed and that the parties will return to the Saskatchewan Courts to hear the application with respect to whether it is the most convenient forum, most appropriate forum, to deal with this matter. … [6] I recognize that Justice Yamauchi, in his decision, did not strike the Alberta action or decline jurisdiction for the Alberta court, but rather deferred the question of jurisdiction to the Saskatchewan court. [ 9 ] As such, the Chambers judge found that Poffenroth had acted contrary to the Alberta Order by filing its notice of discontinuance without leave because that effectively took the question of forum conveniens away from the Court of Queen’s Bench for Saskatchewan.

In the Chambers judge’s assessment, this circumstance was reason enough to warrant the exercise his inherent jurisdiction to strike the notice of discontinuance as improper and an abuse of process. I find no reversible error in the Chambers judge’s analysis in that regard, or in his ruling on the matter before him.

More pointedly, the issues Poffenroth has raised in this appeal, namely, whether leave to discontinue is required by the Queen’s Bench Rules , whether Brown had suffered any prejudice from the discontinuance, and whether Poffenroth was being forced to pursue matters in Saskatchewan, do not undercut the correctness of the Chambers judge’s

interpretation of the Alberta Order and do not address the consequences of that

interpretation. [ 10 ] Accordingly, I would dismiss Poffenroth’s appeal with costs payable to Brown. “Caldwell J.A.” Caldwell J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Kalmakoff J.A.” Kalmakoff J.A.