Double Diamond Distribution Ltd. Applicant/Appellant (Respondent) v. Garman Turner Gordon LLP, 2021 SKCA 152

Court of Appeal for Saskatchewan Docket: CACV3653 Citation: Double Diamond Distribution Ltd. v Garman Turner GordonLLP, 2021 SKCA 152Date: 2021-11-26Between:Double Diamond Distribution Ltd.Applicant/Appellant (Respondent)AndGarman Turner Gordon LLPRespondent/Respondent (Applicant)Before: Ottenbreit, Leurer and Barrington-Foote JJ.A.Disposition: Application dismissedWritten reasons by: The CourtOn application from: 2021 SKCA 61Application heard: October 29, 2021Counsel: Tom Stepper for the Applicant Andrew Stead for the Respondent The Court I.

Introduction [1] On April 14, 2021, this Court issued a judgment dismissing an appeal by Double Diamond Distribution Ltd. [DoubleDiamond] from an order enforcing a judgment of a Nevada Court: Double Diamond Distribution Ltd. v Garman Turner Gordon LLP,2021 SKCA 61 [Appeal Decision]. [2] Double Diamond has applied for a rehearing. In our view, this application must be dismissed. These are our reasons. II. Analysis A. Basic principles [3] This Court may, in its discretion, rehear an appeal, provided that formal judgment has not issued.

This power is, however,exercised only in special or unusual circumstances: Storey v Zazelenchuk (1985), (SK CA), 40 Sask R 241 (CA) at para5. In Armco Canada Ltd. v PCL Construction Ltd. (1986), (SK CA), 52 Sask R 100 (CA) at para 6, Tallis J.A. tooknote of Re Payment of Compensation to Civil Servants Under Art. 10 of Agreement for a Treaty Between Great Britain and Ireland, [1929]AC 242 (PC) at 252, which described a rehearing as an “indulgence” and “of the nature of an extraordinarium remedium”, that is, anextraordinary remedy.

The principal reason that the bar for a rehearing is set so high relates to the important policy objective that theremust be finality to litigation: Shaw v Regina (City), (SK CA), [1944] 1 WWR 433 (Sask CA) at 449. [4] What constitutes special or unusual circumstances “must be determined on a case-by-case basis” (101115379 SaskatchewanLtd. v Saskatchewan (Financial and Consumer Affairs Authority), 2019 SKCA 50 at para 13, [2019] 7 WWR 700 [101115379]).Nonetheless, it assists in the identification of when such circumstances may exist by reviewing where such applications have been grantedor refused.

In 101115379, Ryan-Froslie J.A. provided the following helpful

summary: [14] A rehearing has been granted: (

i) where a relevant point of law involving the construction of a statute was not argued (Shaw vRegina (City), (MB CA), [1945] 1 WWR 433 (Sask CA)); (ii) where a subsequent decision of a higher court might affectthe outcome (Harrison v Harrison, [1955] 1 Ch 260); and (iii) when a relevant statutory provision that governs the case was not broughtto the Court’s attention (Glebe Sugar Refining Company, Limited v Trustees of Part and Harbours of Greenock, [1921] 2 AC 66). [15] A rehearing was not granted: (

i) on the basis the decision was wrong (Storey at para 8; [Borowski v Stefanson, 2015 SKCA 140,472 Sask R 107] at para 9; Whatcott v Canadian Broadcasting Corporation, 2016 SKCA 51, 395 DLR (4th) 294 [Whatcott]; HDLInvestments Inc. v Regina (City), 2008 SKCA 59 at para 3); (ii) where counsel sought further

interpretation of a contract on a questionalready covered in the judgment (Canadian Utilities Ltd. v Mannix Ltd. (1960), (AB CA), 21 DLR (2d) 269 (Alta CA));(iii) on the ground the decision was not warranted on the evidence (Metx v Marshall (1922), (SK CA), [1923] 1 DLR367 (Sask SC)); (iv) where there was a dissent or split decision of the Court (Armco at 625); (

v) because of the public importance of thedecision (Storey at para 10; Armco at 626); (vi) on the basis the judgment created uncertainty in the law (Storey at para 9); (vii) where thedecision established new facts giving rise to other claims (Peter Ballantyne Cree Nation v Canada (Attorney General), 2017 SKCA 5,[2017] 5 WWR 84); or (viii) where there was an alleged error in the judgment (Chutskoff Estate v Ruskin Estate, 2011 SKCA 47). [5] Finally, in this brief review of basic principles, we would reiterate, as Ryan-Froslie J.A. observed, that the authorities “do notstand for the proposition that, in the circumstances identified in each of those cases, a rehearing will always either be granted or denied”.Instead, “the cases underscore the discretionary nature of the relief requested and illustrate the difficulty of obtaining a rehearing”(101115379 at para 16).

B. Analysis [ 6 ] The sole issue is whether there exist special or unusual circumstances to justify a rehearing. Our reasons may be more clear if they are put in the context of the proceedings leading to the Appeal Decision and the Appeal Decision itself before turning to Double Diamond’s arguments as to why it says a rehearing should be ordered. [ 7 ] The matter before this Court originates in proceedings in the United States Bankruptcy Court for the District of Nevada [Nevada Court] involving an entity called USA Dawgs, Inc. Garman Turner Gordon LLP [GTG] represented USA Dawgs.

It is uncontested that Double Diamond, w hich marketed Dawgs brand footwear in Canada, guaranteed payment of the fees and expenses that might become owing to GTG by USA Dawgs. [ 8 ] On January 31, 2018, GTG filed

Chapter 11 bankruptcy proceedings in the Nevada Court on behalf of USA Dawgs [Nevada Proceedings]. Double Diamond was represented by legal counsel and participated in these proceedings. [ 9 ] Later in the Nevada Proceedings, GTG brought an application for the allowance of compensation for professional services rendered and reimbursement of expenses incurred in its representation of USA Dawgs in the Nevada Proceedings [Nevada Application]. In that context, it also sought judgment against Double Diamond.

On August 21, 2018, the Nevada Court granted judgment in favour of GTG against Double Diamond . [ 10 ] GTG applied to the Court of Queen’s Bench for Saskatchewan for an order enforcing the Nevada judgment pursuant to The Enforcement of Foreign Judgments Act , SS 2005, c E-9.121 [ EFJA ].

A Court of Queen’s Bench Chambers judge granted an order recognizing the Nevada judgment and directing Double Diamond to pay GTG: Garman Turner Gordon LLP v Double Diamond Distribution Ltd. (11 May 2020) Regina, QBG 3578 of 2018 [ Chambers Decision ]. [ 11 ] Before the Chambers judge, Double Diamond had opposed the enforcement of the Nevada judgment on four grounds. All four grounds were rejected by the Chambers judge. In this Court, Double Diamond alleged error by the Chambers judge with respect to only two of those grounds.

Only one of those continues to be relevant, namely, Double Diamond’s contention that “the Nevada Court lacked jurisdiction to make an order against it in the Nevada Proceedings” ( Appeal Decision at para 16). The Court was unanimous in concluding that Double Diamond’s arguments on this point lacked merit and therefore dismissed its appeal. [ 12 ]

Section 8 of the EFJA sets out six different circumstances in which a foreign court will be recognized, in the context of proceedings to enforce that court’s judgment in this province, as having jurisdiction in a civil proceeding. The existence of any one of these circumstances is sufficient to ground the jurisdiction of the foreign court. The majority proceeded on the basis that s. 8 (

b) was applicable in this case. Justice Ottenbreit concluded that the jurisdiction of the Nevada Court existed under s. 8 (a). [ 13 ] All of Double Diamond’s arguments for a rehearing reduce to the proposition that the majority judgment of this Court erred in grounding the original jurisdiction of the Nevada Court in s. 8 (

b) of the EFJA as it was not a defendant within the meaning of that provision. Double Diamond was asked about the application of s. 8 (

b) in the course of oral argument at the hearing of the appeal. In response, it argued only that it had not submitted to the jurisdiction of the Nevada Court in relation to a claim against it as guarantor and that it did not appear voluntarily. Indeed, s. 8 was not even mentioned by Double Diamond in its factum. [ 14 ] Leaving aside the brief exchange arising from the Court’s questions as to the application of s. 8(b), Double Diamond’s arguments related to the jurisdiction of the Nevada Court were based on the substantive and procedural laws of Nevada.

Those arguments were rejected at paragraphs 29 to 42 of the majority judgment. The following passage captures the core of the majority’s reasons in this regard: [38] Because the enforcing court’s focus is not on the substantive or procedural law on which the Nevada judgment is based, the arguments made by Double Diamond in this Court and in the Court of Queen’s Bench had no place in the analysis as to whether that judgment should be registered in this province.

It appears that, in substance, the Chambers judge sought to express this central principle of foreign judgments enforcement when he stated that Double Diamond’s arguments amounted to a collateral attack on the Nevada judgment. [ 15 ] This analysis is not impacted by which part of s. 8 was applicable. Indeed, Double Diamond did not suggest otherwise. [ 16 ] In these circumstances, Double Diamond is asking for a rehearing at which it would completely reframe the issues in this appeal from what had been presented by it in first instance. It is seeking the equivalent of a litigation mulligan or “do-over”.

To allow Double Diamond a rehearing in these circumstances would offend, in the most basic way, the principle of the finality of judgments. [ 17 ] Given these conclusions, we find no special or unusual circumstance justifying the grant of the extraordinary remedy of a rehearing. Double Diamond’s application must be dismissed. III. Conclusion [ 18 ] We see no reason to grant the extraordinary remedy of a rehearing. [ 19 ] GTG requests that it be granted costs on a solicitor-client basis.

It bases this request in its agreement with Double Diamond, which provides in part that Double Diamond “agree[d] to pay the fees, costs and expenses related to preservation and pursuit of [GTG’s] claims against [it] and collecting the debt, including court costs, filing fees, and reasonable attorney fees and costs”. Costs on this basis had not been requested at the time the appeal was first argued.

We are not prepared to order costs on this basis now. [ 20 ] GTG did not comply with Rule 47(5) of The Court of Appeal Rules , which required that it file its respondent’s memorandum replying to Double Diamond’s rehearing application within 10 days after the service of Double Diamond’s notice of motion and memorandum of argument. None of GTG’s explanations for this failure rise above the notion that it did not expect to be held to the requirements of the Rules of Court. While we grant to GTG an order allowing this late filing, its dilatoriness has been considered when

fixing costs. [ 21 ] In all the circumstances, we order Double Diamond to pay costs to GTG, which we would fix at $2,000. “Ottenbreit J.A.” Ottenbreit J.A. “Leurer J.A.” Leurer J.A. “Barrington-Foote J.A.” Barrington-Foote J.A.