Herold v Wasserman, 2021 SKCA 142

Court of Appeal for Saskatchewan Docket: CACV3871 Citation: Herold v Wasserman , 2021 SKCA 142 Date: 2021-11-01 Between: Adam Herold by his Administrator ad litem Russell Herold, Russell Herold, Raelene Herold Jaxon Joseph by his Administrator ad litem Chris Joseph, Chris Joseph, Andrea Joseph, Logan Hunter by his Administrator ad litem Shauna Nordstrom, Peter Snaterse, Jacob Leicht by his Administrator ad litem Kurt Leicht, Celeste Leicht, Mark Cross by his Administrator ad litem Brad Cross, Brad Cross and Marilyn Cross Applicants/Appellants (Respondents) And Jacob Wasserman, Carol Brons and Lyle Brons, The Government of Saskatchewan, as represented by the Ministry of Highways and Infrastructure, and Her Majesty the Queen, as represented by the Attorney General for Saskatchewan, the Government of Alberta, as represented by the Ministry of Transport; Her Majesty the Queen, as represented by the Attorney General for Alberta; Her Majesty the Queen of Canada, as represented by the Attorney General of Canada; Jaskirat Singh Sidhu; Adesh Deol Trucking Ltd.; Sukhmander Singh; Answer Trailer Rentals & Leasing Ltd., Charlie’s Charters Ltd., NFI Group Inc. operating as Motor Coach Industries; Premier Horticulture LTEE/Premier Horticulture Ltd.; and Saskatchewan Government Insurance.

Respondents/Respondents (Applicant) Before: Kalmakoff JJ.A. (in Chambers) Disposition: Application granted Written reasons by: The Honourable Mr. Justice Kalmakoff On application from: QBG 1960 of 2018, Regina Application heard: October 28, 2021 Counsel: Kevin Mellor and Sharon Fox for the Appellants Anthony Leoni for the Respondents Kalmakoff J.A. I.

INTRODUCTION [ 1 ] This fiat concerns an application by the appellants in this matter (collectively, the Herold Plaintiffs) for orders permitting them to amend their notice of appeal (or, in the alternative, extending the time to appeal and granting leave to appeal) and extending the time for them to file their factum. II. BACKGROUND [ 2 ] The Herold Plaintiffs are family members and administrators ad litem of five young men who lost their lives in the awful crash that occurred on April 6, 2018, between a bus carrying the Humboldt Broncos hockey team and a tractor-trailer unit driven by Jaskirat Singh Sidhu.

In the aftermath of that tragic event, the Herold Plaintiffs commenced a civil action [Herold Action] against a number of defendants, including Mr.

Sidhu, the trucking company for whom he was driving, the Government of Saskatchewan (Ministry of Highways and Infrastructure), and various others. [ 3 ] Jacob Wasserman, Carol Brons and Lyle Brons [Brons Plaintiffs] are the representative plaintiffs in a proposed class action, arising out of the same event, that has been filed in the Court of Queen’s Bench against several of the same defendants [Brons Action]. [ 4 ] On March 5, 2021, the Brons Plaintiffs applied to a judge of the Court of Queen’s Bench for an order staying the Herold Action until a determination is made regarding the Brons Action’s certification as a class action.

That application was granted under written reasons dated July 20, 2021 ( Wasserman v Saskatchewan (Highways and Infrastructure) , 2021 SKQB 204 [ July 20 Decision ]). [ 5 ] At the hearing of the application that led to the July 20 Decision , the Herold Plaintiffs had also applied to the judge for an order striking various portions of two affidavits filed by the Brons Plaintiffs in support of their application for a stay [strike application]. The July 20 Decision contained no ruling on, or any reference to, the strike application. [ 6 ] The Herold Plaintiffs sought leave to appeal against the July 20 Decision .

One of their proposed grounds of appeal alleged as follows: That the learned Chambers Judge erred by not determining the [Herold Plaintiffs’] application to strike the [Brons Plaintiffs’] affidavit evidence for hearsay, speculation, argument and contrary to the Code of Conduct of Saskatchewan by relying upon legal assistants affidavits in controverted applications. [ 7 ] On September 8, 2021, leave to appeal was granted on 6 grounds, including the ground reproduced above ( Herold v Wasserman (8 September 2021) Regina, CACV3871 (Sask CA) [ Leave Decision ]).

Pursuant to that decision, the Herold Plaintiffs filed their notice of appeal with this Court on September 16, 2021. After that had been done, they learned that the Queen’s Bench judge had, in fact, rendered a separate fiat ruling on the strike application. That fiat, which was dated March 31, 2021, had effectively dismissed the strike application and ruled that most of the evidence to which the Herold Plaintiffs had objected was admissible ( Wasserman v Saskatchewan (Highways and Infrastructure (31 March 2021) Regina, QBG 789/2020 (Sask QB) [ March 31 Fiat ]).

[8] Because of a clerical error at the Court of Queen’s Bench, the parties were not notified of the release of the March 31 Fiat, orprovided with a copy of it, in the usual manner. In fact, the Herold Plaintiffs did not become aware of the existence of the March 31 Fiatuntil October 6, 2021. [9] The Herold Plaintiffs then sought leave to amend their notice of appeal. In particular, they sought to amend the ground ofappeal relating to the Queen’s Bench judge’s treatment of the strike application.

Rather than alleging that the judge erred by failing todetermine the strike application, they wished to assert that he failed to properly determine it. [10] In the alternative, the Herold Plaintiffs sought an extension of time to apply for leave to appeal and an order granting themleave to appeal against the March 31 Fiat. They also sought an order granting them an extension of time to file their factum. [11] The Brons Plaintiffs did not oppose the application.

However, in light of all the circumstances, which include time pressuresresulting from the impending certification hearing, they also sought an extension of time to file their factum. None of the other respondentstook a position on the application. [12] At the conclusion of the hearing in Chambers, I granted the Herold Plaintiffs’ application and made the following order: (

a) the application for an extension of time to apply for leave to appeal against the March 31 Fiat is granted; (

b) the application for leave to appeal against the March 31 Fiat is granted; (

c) the application to amend the notice of appeal is granted; (

d) the application for an extension of time until November 30, 2021, to serve and file the appellants’ appeal book and factum isgranted; (

e) the respondents shall have until January 17, 2022, to file their factum(s); and (

f) the parties shall bear their own costs for this application. [13] I indicated that I would issue written reasons explaining how I arrived at that conclusion. These are those reasons. III. ANALYSIS [14] As a starting point, it is important to bear in mind that the March 31 Fiat and the July 20 Decision, although related, areseparate decisions that arose from separate applications. Both are interlocutory in nature, meaning that no appeal to this Court is permittedwithout leave.

In the circumstances at hand, the temporal and logistical requirements for the exercise of rights of appeal from thesedecisions are governed by s. 9(5) of The Court of Appeal Act, 2000, SS 2000, c C-42.1 [Act].

It provides as follows: 9(5) Where a decision is made during or after the hearing of an application in chambers and the decision is only incidental to theapplication and does not dispose of the matter in issue, a notice of appeal from the incidental decision must be served not later than 15days after the date of the judgment on the matter in issue in the application, and a party appealing from the judgment may include in thenotice of appeal of the judgment an appeal from the incidental decision. [15] Proper treatment of s. 9(5) in this case begins from the understanding that the “matter in issue” between the parties in the Courtof Queen’s Bench was the Brons Plaintiffs’ application for a temporary stay of the Herold Action.

The July 20 Decision is, therefore, a“judgment” within the meaning of s. 9(5), as it disposed of the “matter in issue”. The March 31 Fiat, which contained the judge’s rulingon the strike application, dealt only with whether certain evidence was admissible on the stay application. It is properly seen as an“incidental decision” of the sort referred to in that subsection.

Because incidental decisions—such as rulings on evidentiary matters—arein most instances subsumed in the ultimate judgment, they are not subject to appeal until the judgment is rendered (see: Prince AlbertCredit Union Ltd. v Diehl and Diehler’s Choice Steak and Lobster Limited, (SK CA), [1986] 3 WWR 543 (Sask CA);and Rask v Hus, 2006 SKCA 29 at para 3). [16] All of this means that the clock did not start to run with respect to the exercise of a right of appeal in relation to the March 31Fiat until July 20, 2021, when the July 20 Decision was rendered.

It also means that an appeal by the Herold Plaintiffs against the March31 Fiat is properly included as part of the appeal against the July 20 Decision. [17] That said, the fifteen-day window for seeking leave to appeal against the March 31 Fiat had obviously expired long before theHerold Plaintiffs brought the present application. This brings s. 9(6) of the Act into play. Under s. 9(6), a judge of this court may extend anappeal period where it is “just and equitable to do so”. The question of whether it is appropriate to extend the time for filing an appeal isassessed by considering the following four factors: (

i) whether there is a reasonable explanation for the delay; (ii) whether the appellantspossessed a bona fide intention to appeal within the applicable time limit; (iii) whether there is an arguable case to be made to a panel ofthe Court; and (iv) whether there will be prejudice to the respondent, if leave is granted, beyond what would be incurred in the usualappeal process (Dutchak v Dutchak, 2009 SKCA 89 at para 12, 337 Sask R 46 [Dutchak]).

In order to succeed, the applicant for such anorder must show that, taking these factors into account, it is just and equitable to extend the time for appeal (Taheri v Vujanovic, 2018SKCA 40 at para 22, 36 CPC (8th) 82). [18] In this case, consideration of the Dutchak factors leads me to the conclusion that it would be just and equitable to grant anextension of time for the appellants to seek leave to appeal. There is a reasonable explanation for the delay; the Herold Plaintiffs did notbecome aware of the existence of the March 31 Fiat until after the time limit for applying for leave to appeal had expired.

The recordclearly demonstrates that they had a bona fide intention to seek leave to appeal against that aspect of the judge’s ruling within the timelimit. There is also an arguable case to be made as, in my view, there is at least some chance that the Herold Plaintiffs may succeed inpersuading a panel of this Court that some or all of the impugned affidavit evidence should not have been admitted. Finally, there has been

no suggestion that the Brons Plaintiffs or any of the other respondents will suffer prejudice if the time to appeal against the March 31 Fiat is extended. [ 19 ] Turning to the question of whether leave to appeal should be granted in relation to the proposed amended ground of appeal, and applying the test set out in Rothmans, Benson & Hedges Inc. v Saskatchewan , 2002 SKCA 119 , 227 Sask R 121, I am satisfied that it is appropriate to grant leave.

The Herold Plaintiffs have raised an arguable point about whether affidavit evidence from a legal assistant should have been admitted in relation to controversial or contested matters. As such, it cannot be said that their argument is prima facie destined to fail. Nor, in my view, will granting leave on that ground of appeal, as amended, delay proceedings or add unduly or disproportionately to their cost.

The proposed ground of appeal, as amended, also raises a point of law that, in my respectful view, is not settled and is of importance to the practice in general. [ 20 ] Accordingly, I find that it is appropriate to grant an extension of time for the Herold Plaintiffs to seek leave to appeal from the March 31 Fiat . I also grant leave to appeal. [ 21 ] In light of that, I am also satisfied that it is appropriate to permit the Herold Plaintiffs to amend the notice of appeal. Rule 13 of The Court of Appeal Rules provides that a notice of appeal may be amended at any time with the leave of the Court or a judge.

As noted by Richards C.J.S. in Phillips Legal Professional Corporation v Vo , 2016 SKCA 82 at para 27 , 480 Sask R 311 , the Court usually takes a liberal approach to proposed amendments of notices of appeal. In broad terms, amendments are generally allowed unless they involve a new ground or argument in relation to which it might have been necessary to adduce evidence in the court below or unless they would otherwise prejudice the respondent.

Neither of those considerations weigh against permitting the proposed amendment in this case. [ 22 ] Finally, considering all of the circumstances, including the slight change in approach that has resulted from the delayed provision of the March 31 Fiat to the parties and the time pressures faced by the respondents as a result of the impending certification hearing in the Brons Action, I am also persuaded that it is appropriate, pursuant to Rule 71, to grant the parties’ requests for extension of time to file their materials. [ 23 ] Noting that this is an expedited appeal and, thus, governed by Rule 43, I order that the Herold Plaintiffs serve and file their appeal book and factum no later than November 30, 2021.

In my oral ruling, I indicated that the respondents would have until January 15, 2022, to serve and file their factum(s). That was an error; January 15, 2022, is a Saturday. Accordingly, the respondents shall have until Monday, January 17, 2022, to serve and file their factum(s). IV. CONCLUSION [ 24 ] The application is granted and an order as set out in paragraph 12 above shall issue. “Kalmakoff J.A.” Kalmakoff J.A.