Sawatsky v Isfeld, 2021 SKCA 141

Court of Appeal for Saskatchewan Docket: CACV3774 Citation: Sawatsky v Isfeld , 2021 SKCA 141 Date: 2021-10-29 Between: Calvin Sawatsky Applicant/Appellant (Respondent) And Billie Rae Isfeld Respondent/Respondent (Petitioner) Before: Whitmore, Schwann and Barrington-Foote JJ.A. Disposition: Fresh evidence application granted, appeal allowed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Mr.

Justice Whitmore In dissent: The Honourable Madam Justice Schwann On appeal from: FLD 409 of 2019, Saskatoon Appeal heard: June 1, 2021 Counsel: Melissa Nelson for the Appellant Richard Gabruch for the Respondent Barrington-Foote J.A. I. INTRODUCTION [ 1 ] On January 13, 2021, Acton J. of the Court of Queen’s Bench heard an application brought by Billie Rae Isfeld for an interim distribution of family property pursuant to ss. 21 and 22 of The Family Property Act , SS 1997, c F-6.3 . Justice Acton did not decide that application.

He instead instructed the parties to attempt to agree on the terms of a consent order, and if they were unable to do so, to each submit a draft order for his consideration. He also adjourned an application for production of documents to January 27, 2021. [ 2 ] The parties did not reach an agreement. On January 27, they appeared before Clackson J., who decided that Acton J. was not seized of the family property application. He proceeded to hear that application and, rather than granting the relief sought by Ms. Isfeld, ordered that the parties proceed to an expedited pre-trial [Clackson order]. [ 3 ] Ms.

Isfeld did not appeal the Clackson order. Her counsel instead wrote to the Registrar asserting that Clackson J. should not have dealt with the family law application, as Acton J. was seized of it. They requested that Acton J. “amend the fiat as necessary”. On February 8, 2021, Acton J. granted an order for the sale of the family home, the family cabin, and the equal distribution of family property [Acton order]. He did not seek further submissions from counsel before doing so and did not address the Clackson order. [ 4 ] Calvin Sawatsky has appealed the Acton order.

He now agrees that Acton J. was seized of the matter but submits that the Clackson order nonetheless governs. For the reasons explained by my colleague Schwann J.A., I agree that Acton J. was seized. However, I conclude that Clackson J. acquired jurisdiction to hear the family property application and that the Clackson order remains valid and effective. [ 5 ] The appeal must accordingly be allowed. My reasons for that conclusion follow. II.

BACKGROUND [ 6 ] The procedural history of the documents and family property applications in the Court of Queen’s Bench is summarized in the reasons of my colleague Schwann J.A. Except as is discussed below in relation to the audio recording of the January 13, 2021, hearing before Acton J., I agree with that

summary and need not repeat it. I would, however, highlight the following facts: (

a) When the parties appeared before Clackson J. in Chambers, the question of whether Acton J. was seized with the family property matter was argued. Counsel for Ms. Isfeld submitted that Clackson J. should not hear the family property application, as Acton J. was seized. Counsel for Mr. Sawatsky disagreed, arguing that Acton J. was not seized and noting that they had been so advised by the Registrar. The correspondence with the Registrar which made that point was provided to Clackson J. (

b) The Clackson order was in the form of a “flyleaf fiat” – an endorsement on the Queen’s Bench file – which provides as follows: The issues in the Application for distribution of property is to be set down for pre-trial as well as the issue of whether or not interim child support should be made and if so, in what amount. I’m going to ask the Registrar, if possible, to give scheduling of that pre-trial some priority. … [ Isfeld v Sawatsky (27 January 2021) Saskatoon, FLD 409 of 2019 (Sask QB)] (

c) Counsel for Ms. Isfeld advised that the decision not to appeal the Clackson order was a tactical decision.

[7] Like Schwann J.A., it is also my opinion that Mr. Sawatsky’s fresh evidence application should be granted, as it satisfies thetest specified in R v Palmer, (SCC), [1980] 1 SCR 759. [8] There is also the matter of the audio recording of the January 13, 2021, Chambers hearing before Acton J. As Schwann J.A.explains in her reasons, a memory stick containing that audio recording was taped to the Queen’s Bench file. The parties had not heard therecording and were unable to say why it was there. Further, neither party applied to adduce the audio recording as fresh evidence on thisappeal. [9] Ms.

Isfeld urged the panel to listen to the recording. Mr. Sawatsky did not object to that suggestion. I have concluded that itwould nonetheless be inappropriate to treat the audio recording as evidence. Neither counsel claimed to have been given permission toaccess the recording. Indeed, counsel for Ms. Isfeld was denied access.

That is consistent with the practice in the Court of Queen’s Bench,which generally treats recordings of Chambers proceedings as solely for the use of the judges of that Court: see Rule 9-34 of The Queen’sBench Rules. [10] In these circumstances, I am not prepared to admit the audio recording as evidence. [11] Further, access to the recording is not required, as there is sufficient evidence to decide this appeal without it. The issue inrelation to the January 13 hearing is whether Acton J. became seized of the family law application.

The parties agree as to the substance ofwhat transpired at the January 13 hearing. The matters on which they agree, together with the endorsement on the Queen’s Bench file, aresufficient to confirm that Acton J. was seized. Further, as noted above, Mr. Sawatsky conceded that point on this appeal. III. ANALYSIS [12] I agree that Acton J. was seized of the family property application. That being so, neither Clackson J. nor any other judge of theCourt of Queen’s Bench had the jurisdiction to dispose of the application.

If Clackson J. had simply granted the Clackson order withoutdeciding whether Acton J. was seized, it would be arguable that his order that the file proceed to an expedited pre-trial was a nullity, andthat as a result, Acton J. had jurisdiction to grant the Acton order despite his failure to deal with the intervening Clackson order. [13] With the greatest respect to my colleague Schwann J.A., it is my opinion that the answer to this jurisdictional question – whichwas not fully addressed in any depth by the parties – is not clear. However, it is not necessary to decide that issue, as that is not whatoccurred.

Justice Clackson held that Acton J. was not seized. Having made that determination, he proceeded to hear and decide the familyproperty issue. Neither his finding that Acton J. was not seized nor his finding to send the matter to pre-trial were appealed. That being so,the Clackson order remains valid and effective despite the fact that Clackson J. was incorrect when he held that Acton J. was not seized.The fact a judge errs does not mean they lacked jurisdiction to decide the question.

The principle engaged in these circumstances wasexplained by McIntyre J. in R v Wilson, (SCC), [1983] 2 SCR 594 at 599: …It has long been a fundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding andconclusive unless it is set aside on appeal or lawfully quashed.

It is also well settled in the authorities that such an order may not beattacked collaterally—and a collateral attack may be described as an attack made in proceedings other than those whose specific object isthe reversal, variation, or nullification of the order or judgment. … [14] Justice Iacobucci affirmed and described the limits of this principle in R v Litchfield, (SCC), [1993] 4 SCR 333at 348, commenting as follows in relation to the rule against collateral attack: …This rule holds that “a court order, made by a court having jurisdiction to make it,” may not be attacked “in proceedings other thanthose whose specific object is the reversal, variation, or nullification of the order or judgment” (Wilson v.

The Queen, (SCC), [1983] 2 S.C.R. 594, per McIntyre J., at p. 599). The lack of jurisdiction which would oust the rule against collateral attack wouldbe a lack of capacity in the court to make the type of order in question, such as a provincial court without the power to issue injunctions.However, where a judge, sitting as a member of a court having the capacity to make the relevant type of order, erroneously exercises thatjurisdiction, the rule against collateral attack applies. See, e.g., B.C. (A.G.) v. Mount Currie Indian Band (1991), (BCSC), 54 B.C.L.R. (2d) 129 (S.C.), at p. 141, and R. v.

Pastro (1988), (SK CA), 42 C.C.C. (3d) 485 (Sask. C.A.), at pp.498-99, per Bayda C.J.S. Such an order is binding and conclusive until set aside on appeal. [15] Ms. Isfeld argued in the alternative that if this Court found that Clackson J. had the jurisdiction to decide the family propertyapplication, his order and the Acton order could stand together. Mr. Sawatsky, on the other hand, took the position that the two ordersconflict. I agree with Mr. Sawatsky.

Justice Clackson decided the family property application by refusing to grant the relief sought by Ms.Isfeld and directing that it be dealt with at a pre-trial conference. At that point, the application had been disposed of, and there was noapplication to be decided by the Court of Queen’s Bench. [16] Justice Acton accordingly erred in law by making the Acton order, which must be set aside.

It is difficult to understand why heconcluded he could make that order, given that the endorsement relating to Clackson J.’s order specifically stated that “[t]he issues in theApplication for distribution of property is [sic] to be set down for pre-trial”. Regrettably, as a result of all of this, both litigants haveincurred unnecessary costs and this matter has been unnecessarily delayed. IV. CONCLUSION [17] In the result, I would allow Mr. Sawatsky’s appeal. His counsel advised at the hearing of the appeal that she did not seek anaward of costs.

Accordingly, none are awarded. “Barrington-Foote J.A.” Barrington-Foote J.A.

I concur. “Whitmore J.A.” Whitmore J.A. Schwann J.A. (in dissent) I. INTRODUCTION [1] I have had the opportunity to read the reasons of my colleague, Barrington-Foote J.A., with which Whitmore J.A. concurs, inthe within matter but, respectfully, find myself unable to agree with their decision. As discussed below, I would dismiss Mr. Sawatsky’sappeal. [2] This appeal presents a unique, and hopefully infrequent, set of facts that raises issues about matters of procedure andjurisdiction in the Court of Queen’s Bench.

The facts that give rise to this appeal are unusual: it involves two conflicting fiats made by twodifferent Queen’s Bench judges at two different times in response to the same family law application. The specific question raised by thisappeal is whether the first judge was seized with the application and, if so, whether the second judge could determine the matter. [3] I conclude that the first judge was seized with the application, but, unlike the majority, I find the second judge lacked thejurisdiction to determine the court application afresh.

In the result, the decision made by the second judge is of no force and effect; and, assuch, there is no basis for appellate intervention with respect to the order made by the first judge. Accordingly, the appeal must bedismissed. II. BACKGROUND [4] Calvin Sawatsky and Billie Rae Isfeld are spouses within the meaning of The Family Property Act, SS 1997, c F-6.3. Theybegan residing together in May of 2002 and separated in April of 2019. Ms. Isfeld petitioned for a division of their family property andspousal support in December of 2019. [5] Mr. Sawatsky owns and operates two corporate entities.

In her effort to obtain financial information from him about hisbusiness interests, Ms. Isfeld served Mr. Sawatsky with a notice to disclose in February of 2020. Mr. Sawatsky provided Ms. Isfeld withpartial disclosure in response to that demand, with the promise of more to come. [6] Concerned with Mr. Sawatsky’s dilatory response, Ms. Isfeld served him with an appearance day notice for a court ordercompelling him to produce the documents she had listed in her notice to disclose. Once again, Mr.

Sawatsky provided a partial response inJuly of 2020, followed by a second reply in August of 2020. [7] Dissatisfied with those results, Ms. Isfeld brought a second appearance day notice returnable in December of 2020. Ms. Isfeldalso applied for an interim distribution of the family property and for an order directing the following: (

a) the sale of the family home andcabin, (

b) payment of the balance owing on the mortgage and vehicle debts from the sale proceeds, (

c) registration of the Jeep into hername, (

d) equal division of their furniture and household goods, and (

e) that the remaining proceeds be held in trust pending further courtorder or agreement of the parties. [8] In Ms. Isfeld’s affidavit, which accompanied her application, she deposed that, following their separation, Mr. Sawatsky hadretained possession of almost all of the family property, including the family home and cabin [real property], and that they had significantjoint debts. Ms. Isfeld expressed a strong desire to settle the property dispute, address their pressing debt issues and move on, butMr. Sawatsky refused to meaningfully engage in that discussion. [9] In his response affidavit, Mr.

Sawatsky expressed reluctance to sell the real property and was confident that he would be ableto obtain financing to satisfy any equalization payment that may be owed to Ms. Isfeld. [10] Ms. Isfeld’s appearance day notice and notice of application were adjourned by consent to January 13, 2021, when both matterscame before Acton J. At the time of that Chambers hearing, the parties first addressed the outstanding disclosure issues. Mr. Sawatsky’slegal counsel informed the court (mistakenly as it turned out) that the remaining disclosure had been served on counsel for Ms. Isfeld.Since counsel for Ms.

Isfeld was unaware of this development, Acton J. adjourned that part of the application to January 27, 2021, tomonitor for compliance and give counsel time to review the disclosure. [11] That issue resolved, the parties turned their attention to Ms. Isfeld’s family property application. Counsel made extensivesubmissions in connection with the evidence under the framework of Conley v Conley (1985), (SK KB), 44 Sask R 76(QB), leave to appeal to Sask CA refused (1985), (SK CA), 47 Sask R 279 (CA) [Conley]. Justice Acton perceived theparties to be close to a resolution and urged them to work toward a consent order.

If that was not possible, he said they were to each submita draft order for his consideration. The endorsement on the flysheet of the Queen’s Bench file reads as follows: “Counsel are to each drafta consent order for my approval for issuance. This application is adjourned sine die brought back on 7 days’ notice” (Isfeld v Sawatsky (13January 2021) Saskatoon, FLD 409 of 2019 (Sask QB) [Acton endorsement]). [12] Legal counsel for the parties were unable to arrive at a consent order. Accordingly, they each submitted a draft order for ActonJ.’s consideration – on January 19, 2021 (Mr.

Sawatsky), and on January 20, 2021 (Ms. Isfeld). Although no court proceedings took placeon January 19, 2021, a deputy local registrar endorsed the Queen’s Bench file on that date to read as follows: “Entire matter will now bedealt with on January 27/21 since counsel can’t agree, as per Acton, J”. [13] On January 27, 2021, both the appearance day notice and Ms. Isfeld’s family property application came before Clackson J. in

Chambers. Counsel for Ms. Isfeld strenuously objected to the matter proceeding before Clackson J. because, as far as he was concerned,Acton J. was seized with the application and the parties were awaiting his decision on it. Counsel for Mr. Sawatsky did not go quite thatfar; however, he described what had transpired before Clackson J. in his factum in this way: “There was some confusion at this Chambersappearance whether Acton J., was seized with the application”. [14] Justice Clackson took the view that Acton J. was not seized and proceeded to hear Ms. Isfeld’s application afresh.

In a shortflyleaf fiat, he determined as follows: “The issues in the Application for distribution of property is to be set down for pre-trial as well asthe issue of whether or not interim child support should be made and if so, in what amount.

I’m going to ask the Registrar, if possible, togive scheduling of that pre-trial some priority” (Isfeld v Sawatsky (27 January 2021) Saskatoon, FLD 409 of 2019 (Sask QB) [Clacksonorder]). [15] Following the January 27, 2021, Chambers hearing, counsel for both parties engaged in an email exchange between themselvesand with the local registrar concerning whether Acton J. was seized. That email exchange is the subject of Mr.

Sawatsky’s fresh evidenceapplication, which is discussed below. [16] On February 8, 2021, without hearing further submissions from the parties, Acton J. granted an order permitting the sale of thereal property along the same terms as had been proposed by Ms. Isfeld in her draft order [Acton order]. The fiat that accompanied thatorder read as follows: “The attached Draft Order may issue with the amendments made to paragraph Number 7” (Isfeld v Sawatsky (8February 2021) Saskatoon, FLD 409 of 2019 (Sask QB)). [17] Mr. Sawatsky appeals from the Acton order. Ms. Isfeld did not appeal the Clackson order. III.

FRESH EVIDENCE [18] Mr. Sawatsky applies, pursuant to Rule 59 of The Court of Appeal Rules, to adduce fresh evidence on appeal. The proposedevidence principally consists of correspondence between legal counsel and the local registrar, which was exchanged both before and afterthe Clackson order was issued. While the parties dispute the effect and significance of the proposed fresh evidence, and how it advancestheir respective positions, Ms.

Isfeld concedes that the criteria set out in R v Palmer, (SCC), [1980] 1 SCR 759, is met andthat this Court ought to consider the proposed fresh evidence on appeal. [19] I am satisfied that the fresh evidence could not have been adduced prior to the first Chambers hearing before Acton J. and thatit is both credible and relevant to the issue at hand. While only some of the proposed evidence could be said to affect the result, givenMs. Isfeld’s consent, I am prepared to admit all of it on appeal. IV.

THE AUDIO RECORDING FROM THE JANUARY13, 2021, CHAMBERS HEARING [20] Curiously, neither party applied to adduce the audio recording of the January 13, 2021, Chambers hearing as fresh evidence onappeal or to obtain a transcript from that recording. However, a memory stick containing the audio component of that hearing wasuncharacteristically taped to the front cover of volume I of the Queen’s Bench file. How and when it got there, or for what purpose it wasintended, is not evident from the file nor was it explained by the parties on appeal. [21] At the time of the appeal hearing, counsel for Ms.

Isfeld urged the panel hearing this appeal to listen to the recording. Counselfor Mr. Sawatsky did not object; in fact, she embraced the idea. Given the parties’ position, the fact that no issue is taken with respect tothe accuracy or authenticity of the recording and that it is relevant to a procedural, as opposed to a substantive issue regarding theunderlying application, I conclude that I am not prevented from listening to it. [22] Having listened to that recording, I would summarize what transpired before Acton J. in this way: (

a) He first dealt with Ms. Isfeld’s appearance day notice, adjourning it for two weeks to ensure that Mr. Sawatsky fulfilled thepromised disclosure. (

b) Counsel for Ms. Isfeld addressed the Court at length on her application for the sale of the real property in the context of theConley factors. (

c) Counsel for Mr. Sawatsky resisted the sale of the real property, describing it as an unnecessary move. He suggested theparties focus on resolving their issues at a pre-trial conference, where offers could be exchanged. At the very least, counsel forMr. Sawatsky said the order should include a right of first refusal that allowed him to purchase the real property. Counsel for Ms. Isfelddid not oppose that suggestion. (

d) Justice Acton told the parties that “it was time to move on” and described their impasse as ridiculous. (

e) Counsel for Mr. Sawatsky suggested the parties work toward a consent order, failing which, each side would submit a draftorder “to guide the court”. Ms. Isfeld’s counsel agreed with that proposal. (

f) Justice Acton closed the proceedings by encouraging the parties to work toward a consent order. He went on to say that if aconsent order was not attainable, they were to give him some options, and, as he put it, “I will attend to it immediately and get back toyou”. Justice Acton then adjourned the matter sine die, with the instruction that “submissions [are] to be directed to me”.

V. ANALYSIS A. Acton J. was seized [23] The Court of Queen’s Bench has “original jurisdiction throughout Saskatchewan, with full power and authority to consider,hear, try and determine actions and matters” (The Queen’s Bench Act, 1998, SS 1998, c Q-1.01, s 9(1)).

This provision is understood tomean that the jurisdiction conferred on that court “belongs to the court as a whole, not to any particular judge of that court” (Halsbury’sLaws of Canada (online), Civil Procedure, “Introduction: Courts: Jurisdiction: Equitable Jurisdiction” (I.4(4)(b)(iv)) at HCV-17“Becoming seized of matter” (2021 Reissue) [Halsbury’s]). [24] The exercise of jurisdiction by a judge of that Court is subject to the general principle that “once a judge becomes seized of amatter no other judicial officer may act in regard to the matter” (Linda S. Abrams and Kevin P.

McGuinness, Canadian Civil ProcedureLaw (Markham, Ont: LexisNexis Inc, 2008) at §2.35). Precisely when a judge becomes seized of a matter is discussed in Halsbury’s inthese terms: HCV-17 … Generally, a judge becomes seized of the proceeding at the commencement of the trial (of an action) or the hearing (of anapplication). In a complex proceeding, a judge may become seized at an interlocutory stage with respect to particular orders made inconnection with the proceeding, where evidence is heard in relation to those orders.

A judge may also decide to remain seized of aparticular proceeding in the interests of efficiency and consistency, or be assigned to case manage the proceeding. So, for instance, a judgein Ontario may direct a reference of a trial to a case management master, subject to the proviso that the judge will remain seized of thematter (or share management responsibilities with the master), with the case management master being directed to report back to thejudge. (Footnotes omitted) [25] While this principle is easy to state, it is often challenging to apply.

In W.(R.) v British Columbia (Superintendent of Family andChild Service), (BC SC), [1991] WDFL 424 (WL) (BCSC) [W.(R.)], the court offered no bright line nor set firmboundaries as to when a judge is said to be seized with a matter: “the mere calling of substantive evidence did not in itself result in a judgebeing seized of the case. Something more is required. A threshold test of ‘sufficient’ substantive evidence must first be met before a judgeis ‘seized’” (at para 33).

R v Hatton (1978), (ON CA), 39 CCC (2d) 281 (Ont CA), referred to in W.(R.), described thatthreshold as being the point where the validity and integrity of a fair and just trial would be compromised if that judge did not continue (at292, quoting 23 Cor Jur Sec at 884–885). [26] Of course, adjudicative proceedings are varied and will present differently. In the case of a trial, for instance, a judge is mostlikely seized with the action when witnesses are called to give evidence, and the judge is required to grapple with matters of credibilityand weight.

Further, as the Court of Appeal for Ontario pointed out in MacKay v Proprietary Mines Ltd., (ON CA),[1938] OWN 174 (QL) (CA), when judgment is reserved after trial, the trial judge typically has “authority to pronounce judgment in theaction …” (at para 8). [27] Determining when that threshold is met in the case of motions and applications that proceed on affidavit evidence is a morechallenging exercise; but, even in that scenario, “a point could be reached where a judge is effectively seized of the matter” (W.(R.) atpara 37).

To repeat, W.(R.) establishes that a judge may be seized of a case when “sufficient substantive evidence is heard by a judge, orsufficient submissions or rulings of substance are made” (emphasis added, at para 35).

The court continued: “The situation would not be ascritical where affidavit, commission or exhibit evidence is presented, but depending on its nature and extent and whether submissions weremade concerning the same, a point could be reached where a judge is effectively seized of the matter” (emphasis added, at para 27). [28] The Court of Appeal for Newfoundland revisited the jurisprudence in connection with this issue in Newfoundland and Labrador(Treasury Board) v Newfoundland and Labrador Association of Public and Private Employees, 2004 NLCA 58, 245 DLR (4th) 234[NAPE].

On the question of when a judge becomes seized, NAPE arrived at this formulation of the test: [40] Following the approach in Hatton, in W.(R.) and in Doyle [2002 PESCAD 18], I would conclude that a judge becomes seized whenthe actions of the judge in hearing evidence or making rulings has the potential to affect, if that judge is not to be the trial or hearing judge,the integrity of the full and fair trial or hearing to which the parties are entitled. As Martin J.A. decided in Hatton, that would include anyruling that “may interfere with the discretion of the judge before whom the proceedings are continued”.

I would express the standard, insimple terms, to be when a judge hears evidence or makes a decision that could, directly or indirectly, impact the substantive decision, orthe making of the substantive decision, that is to be made by the judge who is seized, or will become seized, of the matter. [29] That said, as the Court in NAPE went on to clarify, routine matters of a procedural nature (e.g., adjournments) do not offend thisprinciple so long as they do not, either directly or indirectly, have an impact on the “substantive decision, or the making of a substantivedecision …” (at para 43). [30] Ms.

Isfeld is resolute in her position that Acton J. was seized with her application for property division as evidenced by thesubmissions of counsel before him, what Acton J. said at the time of the Chambers hearing, and the direction he provided to counsel onJanuary 13, 2021. She believes counsel for Mr. Sawatsky must have had the same understanding, based on the submissions he madebefore Acton J., and by his filing of a draft order for Acton J.’s consideration on January 19, 2021. [31] For his part, Mr.

Sawatsky contends that once Clackson J. concluded that Acton J. was not seized, Clackson J. was free to hearthe application afresh and make his own determination. As I read his factum, Mr. Sawatsky asserts that, given the fluidity of whattranspired after January 13, 2021, it was evident that (

a) Clackson J., not Acton J., was seized, (

b) once Clackson J. issued his fiat, therewas nothing left to determine, and (

c) Acton J. erred by re-engaging on the file and issuing an order on February 8, 2021. [32] However, at the time of the appeal hearing, counsel for Mr. Sawatsky (not the same counsel who argued the matter in the

Court of Queen’s Bench nor the same counsel who prepared the factum for this Court) took a more nuanced stance. She concedes that Acton J. was seized ; but says that, since the local registrar had subsequently informed the parties that he was not, the parties were free to argue the matter before Clackson J. As such, she argues, it follows that the Clackson order stands and the Acton order must be set aside. [ 33 ] Counsel was wise to make that concession.

Having listened to the audio recording from the January 13, 2021, Chambers hearing, I am satisfied that, in the minds of Acton J. and the parties , he had seized himself with Ms. Isfeld’s application, notwithstanding that he did not say so in express terms. The tenor of the discussion between Acton J. and counsel left no room for doubt that he would make an order, preferably on a consent basis (which the parties had led him to believe was possible); failing which, he would grant an order. To that end, he asked the parties to submit separate draft orders for his consideration.

This understanding was underscored by the instruction he gave to counsel: “if you can’t agree, give me some options and I will attend to it immediately and get back to you”. That direction is confirmed by the January 13, 2021, endorsement on the flysheet, which states, “Counsel are to each draft a consent order for my approval for issuance” (Acton endorsement). [ 34 ] Further, I am satisfied from the record that counsel for the parties were not confused with Acton J.’s direction. This is exemplified by the January 19, 2021, letter to the local registrar from Mr.

Sawatsky’s counsel, which states, “Further to the parties’ appearance in Chambers before the Honourable Mr. Justice M.D. Acton on January 13, 2021 and his Lordship’s direction that the parties submit either a consent order or draft orders setting forth their respective position, I advise the parties were not able to consent to terms of an order”.

He closed his letter by stating, “I enclose my draft order setting out my client’s position on resolving the matters for his Lordship’s consideration ” (emphasis added). [ 35 ] As the case law makes clear, what constitutes sufficient substantive evidence, submissions or ruling for a judge to be seized will vary in each case. I am satisfied from the record that the threshold had been crossed at the time of the Chambers hearing on January 13, 2021, and that Acton J. was seized with Ms. Isfeld’s application. B. Acton J. did not unseize himself [ 36 ] Mr.

Sawatsky submits that even if Acton J. was seized, that finding is inconsequential because, prior to the January 27, 2021, Chambers date, he had unseized himself. Mr. Sawatsky says he only proceeded with the application afresh before Clackson J. after being informed by the local registrar that Acton J. was not seized of the matter. He goes so far as to suggest that either Acton J. or the local registrar had told Clackson J. that the former was not seized of the matter.

He says his counsel proceeded before Clackson J. with that understanding in mind and should not be faulted for doing so. [ 37 ] Of course, this argument proceeds on the assumption that a judge who is seized of a matter or proceeding can unseize themself. There is some support for this proposition: see, for example, Bort v Derworiz , 2001 BCSC 926 at para 5 ; R v Balfour and Young , 2019 MBQB 167 at para 54 , [2020] 6 WWR 716; R v Le Francois , 2010 BCSC 779 at para 12 ; and T. v D. , 2019 ONSC 644 at para 58 .

That said, none of these authorities delved into the issue to any great extent, nor did they involve a situation where the second judge proceeded to re-hear an application on its merits while it was under reserve with the first judge.

The common thread running through the case law where this has happened is that the unseizing of the judge has been done either in the presence of the parties, or was expressly communicated to the parties after the fact and without any objection, involved the concept of seizure in the broader sense of the term (i.e., remaining seized of a file in the interest of efficiency and consistency), or was not a situation where a determination of the matters still remained in the hands of the first judge. [ 38 ] Admittedly, the January 19, 2021, file endorsement may have led to some confusion.

However, there is no evidence that this flysheet entry was drawn to Clackson J.’s attention or that he had been informed by the local registrar that Acton J. was not seized. Even if there was some confusion on this issue, it makes no difference to the outcome: either Acton J. was seized or he was not. A misunderstanding does not alter the jurisdictional landscape. [ 39 ] Neither, for that matter, does counsel’s misunderstanding make any difference to the question of whether Clackson J. had jurisdiction.

As discussed below, when a judge is seized with a proceeding, and a second judge deals with that same matter on a substantive basis, the second judge is said to have acted without jurisdiction. C. Clackson J. did not have jurisdiction to issue the fiat [ 40 ] There are two possible ways in which it could be said that Clackson J. had jurisdiction to issue the fiat: (

a) Acton J. was not seized or, if he was, he became unseized, or (

b) the Clackson order involved a routine, procedural, or non-substantive matter that could have been dealt with by a non-seized judge. Neither argument can succeed. [ 41 ] I have already addressed the first scenario above. As discussed, the parties made extensive submissions on the Conley factors in relation to the facts at hand; and, following those submissions, Acton J. instructed them to each submit a draft order for his consideration if they were unable to reach a consensus. As I concluded above, the parties’ submissions and Acton J.’s instruction demonstrate that he was seized of the matter.

I also determined that Acton J. did not unseize himself. [ 42 ] The second possibility is that Clackson J.’s direction to proceed to a pre-trial conference was of a procedural, non-substantive nature and, therefore, did not overstep the jurisdiction of Acton J. NAPE confirms that a non-seized judge may make orders that do not involve a matter of substance (at para 42).

Such orders can include the following: [ 43 ] Adjournments, routine procedural matters, and perhaps other such matters not involving substance , are decisions or rulings that are of such a nature that they could not, directly or indirectly, impact the ultimate outcome of the matter. In my view, decisions by a judge not seized of a matter must be limited to such minor, although necessary, non substance aspects that could not possibly impact, directly or indirectly, either the substantive decision, or the making of the substantive decision, to be made in the matter. (Emphasis in original)

[43] In the normal course, directing a dispute to a pre-trial conference could conceptually be viewed as a routine procedural matter,but the order in the circumstances of this case directly affected the outcome of Ms. Isfeld’s application. As I discussed above, the Clacksonorder is the type of order that had an impact on, albeit indirectly, Acton J.’s ability to make a substantive decision on the family propertyissue.

An order setting a matter for a pre-trial conference – particularly one which does not narrow or limit the issues separating the partiesin that forum – had to be understood as sending all of the parties’ family property issues to pre-trial. Doing so effectively deprived ActonJ. (being the judge seized of Ms. Isfeld’s application) from making an order concerning the interim distribution of family property. [44] For these reasons, I am satisfied that Clackson J. did not have the jurisdiction to make the order that he did. [45] My decision that Acton J. had jurisdiction and was seized in relation to Ms.

Isfeld’s application effectively means that ClacksonJ. did not have jurisdiction. In consequence, even though the Clackson order is not directly before this Court on appeal, it is before us byimplication. The result of all of this is that the Clackson order has no force and effect and cannot be acted upon. D. This Court can deal with the Clackson order [46] Ms. Isfeld argues that, absent jurisdiction, the Clackson order is a nullity and cannot stand. Conversely, Mr. Sawatsky assertsthat even if Acton J. was seized, this Court has no jurisdiction to deal with the Clackson order because it was not appealed by Ms.

Isfeld. Ineed not address this argument, given my conclusion above. However, if I am in error, there is some authority that would permit this Court– in the unique circumstances of this case – to address the Clackson order more directly, even though it was not appealed. [47] In R v Wilson, (SCC), [1983] 2 SCR 594 [Wilson], the Supreme Court held that “[i]t has long been afundamental rule that a court order, made by a court having jurisdiction to make it, stands and is binding and conclusive unless it is setaside on appeal or lawfully quashed” (at 599).

Ogema District Credit Union Ltd. v Schenher, (SK KB), [1984] 3 WWR423 at para 14 (Sask QB) [Ogema], followed Wilson. It confirms that the ratio in Wilson is contingent upon the judge who madethe order having had jurisdiction to make it.

Ogema holds that, if the court did not have jurisdiction to make an order, then that order canbe declared a nullity; but, if the court did have jurisdiction, that order must stand unless directly appealed: see also SaskatchewanGovernment Insurance v Gorguis, 2013 SKCA 32, 360 DLR (4th) 607 [Gorguis]. [48] A similar, albeit slightly different, conclusion was reached in NAPE, where the court held that what is really meant by theprinciple – a superior court order is not a nullity – is that a superior court order is “never to be treated as a nullity, unless and untildetermined to be so by the court having appellate jurisdiction in the matter” (at para 55). [49] What then is the effect of a decision subsequently made by a second judge who lacked the jurisdiction to make it?

NAPEextensively canvassed the applicable jurisprudence on this issue, concluding that courts are divided on whether the decision is a nullity oran irregularity. In Re Sproule (1886), 1886 CanLII 51 (SCC), 12 SCR 140 [Sproule]; R v O’Leary (1991), (NL CA), 97Nfld & PEIR 314 (NLSC); and Doyle v Doyle, 2002 PESCAD 18, 216 Nfld & PEIR 301 [Doyle], are examples of decisions where anorder was found to be a nullity in circumstances where a judge was found to have lacked jurisdiction.

On the other side of the ledger,Canadian Transport (U.K.) Ltd. v Alsbury, (BC CA), [1953] 1 DLR 385 (BCCA), has been taken to stand for theproposition that, however wrong or irregular an order made by a second judge (who lacked jurisdiction) may be, it is still binding and hasfull force and effect until reversed on appeal. [50] NAPE settled on the former approach: [58] As was decided in W.(R.) when one judge is seized of a proceeding any substitution of another judge, to deal with substantive issues,in the absence of covering statutory authority, results in a loss of jurisdiction.

Barry J. being seized of the matter, the substitution ofThompson J., in circumstances other than expressly authorized by statute, resulted in loss of jurisdiction. Even though the legal merit ofthe conclusions of Thompson J. has not been considered and, therefore, those conclusions have not been found to be erroneous in law, hisdecision cannot be allowed to stand. An examination of the impact of the decision of Thompson J., on the ruling of Barry J., demonstratesthe logic of that position in this case.

As noted above, the underpinning for the decision of Barry J., determining that “the arbitrator’s notesform part of the record …” and “should, therefore, be considered by the Court”, was the third Williams affidavit and the first Hanlonaffidavit which the decision of Thompson J. ordered “excluded from the record”. As well, Barry J., or any other judge who may becomeseized of the judicial review, could well conclude that such affidavits not only should be admitted but may be essential to proper conductof the judicial review.

If the decision of Thompson J. cannot be reversed or varied because it has not been found to be erroneous in law, itcan only be set aside because it is a nullity. That must be the result in this case. (Emphasis added) The Federal Court implicitly adopted the reasoning in NAPE in Saudi Arabian Airlines Corp. v Canada (Transportation Appeal Tribunal),2019 FC 1378.

See also Doyle at para 18. [51] This brings me to the more direct question of the effect of declaring a judgment to be a nullity and this Court’s authority to doso. [52] An early decision – Sproule – established the following principle with respect to the effect of a judgment being declared anullity: “Where, as here, a judge having a limited jurisdiction exercises a jurisdiction which does not belong to him, his decision, or hisacts, amount to nothing and do not create any necessity for an appeal … .

A proceeding so taken is a complete nullity, nullity of non esse[not said]” (emphasis added, at 242). [53] In Primewest Mortgage Investment Corporation v Waynert, 2017 SKQB 360 [Waynert], the court noted that an order declaredto be a nullity rendered it void ab initio “and regarded as if it never existed. As such, a court has no power to amend or correct thenullifying deficiency. Rather, the court’s power is simply limited to declaring the matter a nullity and dismissing it” (at para 46).

Eventhough the issue in Waynert concerned a statutory nullity by operations of provisions under The Saskatchewan Farm Security Act, SS1988-89, c S-17.1, the ratio from this decision holds true more generally for judgments, orders and other legal proceedings deemed to benullities.

[54] In Gorguis, this Court declared a judgment of the lower court to be a nullity, set it aside, and remitted it to the Court of Queen’sBench for a rehearing. [55] In Saskatchewan, the issue of this Court’s jurisdiction to declare an order a nullity for want of jurisdiction was addressed inVolhoffer v Volhoffer, (SK CA), [1925] 3 DLR 552 (Sask CA) [Volhoffer]: [25] From these authorities, the law would appear to be that if a tribunal which has jurisdiction over a subject-matter, provided a givenstate of facts exists, makes an order in respect of that subject-matter in the absence of the existence of that state of facts, and, therefore,without jurisdiction, such order must be treated as valid and binding until it is reversed upon an appeal, and, generally speaking, it cannotbe attacked in a collateral proceeding.

But where the tribunal has not been given any jurisdiction over the subject-matter, no matter whatstate of facts may exist, an order made in respect of it is a nullity, and need not be appealed against, and its invalidity may be set up as ananswer in any proceeding taken under it. (Emphasis added) [56] What I take from the above excerpt is that where a court or tribunal makes an order when it did not have jurisdiction to do so,the order is a nullity and need not be appealed for this Court to make an order to that effect.

That approach does not engage the principle inWilson that superior court orders are valid and binding until set aside on appeal. [57] This Court recently invoked Volhoffer in Moore v Hurst, 2021 SKCA 27, 59 CCPB (2nd) 167 [Moore], in exercising itsinherent jurisdiction to set aside an order made by a Queen’s Bench judge. In Moore, even though there was no right of appeal to thisCourt in the circumstances of that matter, this Court concluded that the Chambers judge did not have the jurisdiction to make the order hehad made.

As the proceedings in the Court of Queen’s Bench and the order made by a judge of that Court were found to be a nullity, theCourt concluded that “[i]t is therefore in the interests of the administration of justice that this Court exercise its inherent jurisdiction as asuperior court of law to set aside the order” (at para 16). [58] Moore is relevant to the present appeal since it posits the question of whether this Court can make such an order – i.e.,declaring the Clackson order to be a nullity – given that it is only sitting on appeal from the Acton order.

Moore affirms this Court’sinherent jurisdiction to declare an order to be a nullity, even in circumstances where the impugned order is not properly the subject of anappeal to this Court.

In the end result, whether the Clackson order can be declared a nullity ultimately boils down to if it was, in fact, anullity. [59] Another decision of note is R v Sterling, (SK CA), [1993] 8 WWR 623 (Sask CA) [Sterling], which wasconcerned with whether three pre-trial orders made by a Chambers judge in advance of a trial were nullities because the trial judge, notthe Chambers judge, should have been the one to decide the matters.

Directly addressing the jurisdiction of the appellate court to entertainthe appeal, this Court said as follows: [49] And so this Court and its judges also enjoy the jurisdiction and substantive powers of the Court of Queen’s Bench.

And this Court,too, is a court of competent jurisdiction under the Charter, in both its appellate and original capacities, a jurisdiction which, of course,falls to be exercised according to the usual procedural patterns, including those customarily associated with the doctrine of ex debitojustitiae which empower the Court to act in relation to nullities however they come to the attention of the Court. (Emphasis added) [60] The emphasized words can be read as endorsing the conclusion that this Court has the power “to act in relation to nullitieshowever they come to the attention of the Court”.

This, to me, lends support for a finding that the Clackson order is a nullity, even thoughno appeal was taken against that decision. Ultimately, Moore and Sterling provide authority for this Court to declare an order that was notappealed to be a nullity as something that falls within its duties and responsibilities in the proper administration of justice and in theexercise of its inherent jurisdiction.

These decisions reinforce the Court’s responsibility and duty to set aside decisions, orders andjudgments that offend the administration of justice. [61] Returning to the matter at hand, and based on the above authorities, I find the Clackson order to be a nullity and, as such, asthough it never existed. In consequence, the subsequently issued Acton order was not in conflict with it; and, therefore, Acton J. did not errin law by making an inconsistent order as alleged by Mr. Sawatsky. [62] Before leaving this issue, I have considered whether this appeal raises the doctrine against collateral attack. Donald J.

Lange inThe Doctrine of Res Judicata in Canada, 4th ed (Markham, Ont: LexisNexis, 2015) [Lange], quoting R v Perreault (1922), (CA EXC), 66 DLR 671 (Exch Ct), described the doctrine of collateral attack as follows: “‘It is well settled that judgments of a courtof competent jurisdiction are not subject to collateral attack, unless they are void, and by ‘void’ is meant that they are an absolutenullity’”(emphasis added, Lange at 466–467).

Lange states that “[t]he entire premise of the doctrine of collateral attack is that the courtmaking the judgment has jurisdiction to do so, that is, there is a valid and binding judgment. Where the judgment is attacked for lack ofjurisdiction, there is no collateral attack because the validity of the judgment, and its binding effect, is in question” (emphasis added,footnotes omitted, at 466). Lange emphasizes that where the want of jurisdiction is apparent on a reading of the judgment, it ought to bedeclared a “nullity in the collateral proceedings” (footnotes omitted, at 467).

See also Iverson v Westfair Foods Ltd., (AB KB), [1996] 7 WWR 520 (Alta QB), aff’d 1998 ABCA 337, leave to appeal to the SCC refused, [1999] 2 SCR vii. [63] Ms. Isfeld, as the respondent in this appeal, does not seek to attack the correctness or legal force of the Clackson order; rather,the focus of Mr. Sawatsky’s appeal is on the validity of the Acton order. As such, it is my view that the doctrine against collateral attack isnot implicated because the present appeal does not seek to collaterally attack the correctness or legal force of the Clackson order. E. The interim distribution of family property [64] Mr.

Sawatsky argues that even if Acton J. did not lack the jurisdiction to make an order on February 8, 2021, that order should,nonetheless, be set aside because he (

a) failed to properly apply the Conley factors and proceeded on an insufficient evidentiary

foundation, (

b) failed to give reasons, and (

c) granted an order for the sale of real property that is akin to a final order and contrary to this Court’s jurisprudence in Parsons v Burkart , 2021 SKCA 2 [ Parsons ]. Taken together, he argues this makes the Acton order manifestly unjust. 1. Appellate deference is the standard of review [ 65 ] Before turning to Mr. Sawatsky’s arguments, I find it useful to orient this appeal around the applicable standard of review. This was an interim family law order of a discretionary nature that is subject to appellate deference.

To succeed on appeal from a discretionary decision, an appellant must demonstrate that the Chambers judge erred in principle, disregarded a material matter of fact or failed to act judicially: see Rimmer v Adshead , 2002 SKCA 12 at para 58 , [2002] 4 WWR 119 [ Rimmer ], and Hall v Hall , 2011 SKCA 86 at para 3 , 337 DLR (4th) 89. 2.

The absence of reasons [ 66 ] There is a general obligation on the part of judges to provide reasons for their decisions: R v Sheppard , 2002 SCC 26 at para 28 , [2002] 1 SCR 869; R v Hoskins , 2021 SKCA 23 at para 79 ; and Scobie v Thiessen , 2021 SKCA 47 at para 33 , 54 RFL (8th) 256. Reasons serve several useful purposes: they justify and explain the result, clarify to the losing party why they lost, and facilitate effective appellate review. [ 67 ] In the matter at hand, Acton J. provided no reasons whatsoever for his order.

That said, the complete absence of reasons is not, on its own, a basis for appellate intervention: see Gebert v Wilson , 2015 SKCA 139 at para 21 , [2016] 5 WWR 656 [ Gebert ]. Lengthy decisions arising from a Chambers application are often “neither practical nor warranted”, so long as the rationale can be gleaned from the record ( Gebert at para 20 ). [ 68 ] As discussed above, the audio recording confirms that counsel filtered their submissions and the evidence through the Conley factors. Mr. Sawatsky does not assert that Acton J. failed to consider Ms.

Isfeld’s application through the appropriate legal lens or that he erred in principle. On the whole of it, having regard to the record and the submissions of the parties, notably their perceived willingness to sell the real property, provided that Mr. Sawatsky had a right of first refusal, I am satisfied that Acton J. was alert to their positions and that the absence of reasons is therefore not a basis for appellate intervention in this case. 3. Parsons v Burkart [ 69 ] Mr.

Sawatsky points to this Court’s recent decision in Parsons as authority for the proposition that an interim order directing the sale of the family home is, for all intents and purposes, a final order and, as such, should not be made on an interim basis. With respect, Mr. Sawatsky overstates or misunderstands this Court’s reasoning in Parsons . [ 70 ] In Parsons , on an application for interim distribution of family property, the Chambers judge had ordered the sale of the family home. That decision was overturned on appeal for two reasons.

First, the Chambers judge had failed to consider the criteria relevant to the making of such an order and appeared to have based his decision solely on what he described as a triggering event. While this Court did not say so expressly, I take it to have held that the Chambers judge erred in principle by disregarding the applicable legal test. The second reason given for setting aside that decision was this Court’s finding that, in the circumstances of that case , the decision was unjust and plainly wrong.

True, the Court noted how an order concerning the sale of a major family asset is akin to a final order that is generally best left to settlement or trial, but I do not interpret those reasons to mean that an interim order directing the sale of the family home is unavailable and will always warrant appellate intervention. Rather, it was the facts and circumstances of that case that led to the interim order being overturned. In other words, Parsons is distinguishable on its facts. [ 71 ] I see no error in principle here. 4.

There was sufficient evidence for Acton J. to have made the order [ 72 ] The appropriate reference point is the following oft-quoted passage from Rimmer , where Cameron J.A. had this to say about the function of an appellate court sitting in review of a discretionary decision: [58] In turning to this issue, it is necessary to bear in mind that the powers in issue are discretionary and therefore fall to be exercised as the judge vested with them thinks fit, having regard for such criteria as bear upon their proper exercise. The discretion is that of the judge of first instance, not ours.

Hence, our function, at least at the outset, is one of review only: review to determine if, in light of such criteria, the judge abused his or her discretion. Did the judge err in principle, disregard a material matter of fact, or fail to act judicially? Only if some such failing is present are we free to override the decision of the judge and do as we think fit. Either that, or the result must be so plainly wrong as to amount to an injustice and invite intervention on that basis. [ 73 ] Mr. Sawatsky asserts that Acton J. erred by exercising his discretion without a proper evidentiary foundation.

He suggests that an up-to-date appraisal for the real property was required, as well as further and better evidence about the nature and value of the household goods. [ 74 ] I am not persuaded by this argument. To begin with, there is a certain disingenuity with Mr. Sawatsky’s position. It does not go unnoticed that he was content, if not enthusiastic, to make the same argument on the same evidence before Clackson J. as he did before Acton J.

As such, one wonders how the evidentiary foundation was insufficient when the matter was first argued on January 13, 2021, yet seemed to have been adequate on January 27, 2021, when he made his submissions before Clackson J. [ 75 ] Moreover, it is significant that the Acton order does not contemplate a payout of cash to Ms. Isfeld or determine the amount of an equalization payment.

She had proposed the sale of their real property by listing and that, after payment of the liabilities associated with those assets (mortgage, real estate commissions, legal fees, taxes) and payment of amounts owing on their respective vehicles, that the remaining balance would be held in trust. With regard to the household goods, the order simply contemplates an in specie division. If the

parties were unable to agree on how that would be done, nothing prevented them from applying for further directions. [ 76 ] Mr. Sawatsky took the position that he should be given an opportunity to buy out Ms. Isfeld’s interest in the real property.

However, his position does not sit comfortably with the uncontradicted evidence about the parties’ significant debts, his income (approximately $44,000) and the fact he was less than keen on resolving property issues. [ 77 ] To conclude, based on a careful review of the evidence, and the test established in Conley , I am satisfied that there was a sufficient evidentiary foundation for Acton J. to have made the order he did. As such, this ground of appeal cannot succeed. VI. CONCLUSION [ 78 ] I would dismiss Mr. Sawatsky’s appeal from the Acton order with costs to Ms. Isfeld in the usual way.

In consequence, since Acton J. was seized of the matter, the Clackson order is of no effect and is not to be acted upon. “Schwann J.A.” Schwann J.A.