City of Saskatoon Applicant (Defendant) v. The Canadian Nationalist Party Inc., 2021 SKCA 22

Court of Appeal for Saskatchewan Docket: CACV3747 Citation: Saskatoon (City) v The Canadian Nationalist Party Inc. , 2021 SKCA 22 Date: 2021-02-09 Between: City of Saskatoon Applicant (Defendant) And The Canadian Nationalist Party Inc. Respondent (Plaintiff) Before: Jackson, Tholl and Kalmakoff JJ.A. Disposition: Application granted; appeal quashed Written reasons by: The Court On application from: QBG 220 of 2020, Saskatoon Application heard: January 22, 2021 Counsel: Alan Rankine for the Appellant Travis Patron for the Respondent The Court I.

INTRODUCTION [ 1 ] The City of Saskatoon [Saskatoon] applies, pursuant to Rule 46.1(1) of The Court of Appeal Rules , to quash an appeal filed by the Canadian Nationalist Party Inc. [CNP]. Saskatoon says CNP was required, and failed, to obtain leave to appeal the decision under appeal. It also contends that CNP’s appeal is manifestly without merit. [ 2 ] For the reasons that follow, we are of the view that Saskatoon’s application must be granted. II.

BACKGROUND [ 3 ] In February of 2020, CNP filed a statement of claim against Saskatoon in the Court of Queen’s Bench, seeking damages under the Canadian Charter of Rights and Freedoms [ Charter ] and a declaration that Saskatoon had infringed its ability to democratically compete in the most recent federal election . CNP alleged that the infringement occurred because Saskatoon had denied its requests to use space in City Hall for the purpose of party-related informational sessions and candidate nomination, while at the same time permitting other political parties to use the space.

CNP said that Saskatoon had denied its requests for “denominational” reasons, thereby violating the Charter and causing CNP to suffer financial costs associated with obtaining federal eligibility and to incur marketing costs associated with promoting its visibility as a political party. [ 4 ] Travis Patron, who is the sole director of CNP, has represented CNP in all court proceedings related to the action thus far. Mr. Patron is not a member of the Law Society of Saskatchewan.

No assertion was made that he is a member of any other law society. [ 5 ] In October of 2020, Saskatoon applied to a Court of Queen’s Bench judge [Chambers judge], under Rule 2-34(2) of The Queen’s Bench Rules , for an order that CNP be represented by a lawyer in the action. The application was adjourned once, at the request of Mr. Patron, and CNP was ordered to serve and file any affidavit materials upon which it intended to rely prior to the return date.

CNP did not serve or file any materials. [ 6 ] The Chambers judge granted Saskatoon’s application, ordering that CNP be represented by a lawyer in the action and also that CNP not be permitted to take any further steps in the action without a lawyer ( Canadian Nationalist Party Inc. v City of Saskatoon (10 December 2020) Saskatoon, QBG 220 of 2020 (Sask QB) [ Chambers Decision ]). He summed up his reasons for granting the order by saying: [12] The subject matter of this action is complex, if only because of the Charter aspect.

To be dealt with without unnecessary complication or substantial lengthening of the proceedings, cases involving the

interpretation and application of the Charter require that the representatives of the litigants have legal training, expertise and objectivity. Typically, it is a lawyer who has those attributes. [13] It is common ground that Mr. Patron is not a lawyer. There is no evidence that he has any such training or expertise. As he is the directing mind of the plaintiff, it is unlikely that he has the objectivity that is sought in such a complex matter. [14] The circumstances of this matter are the kind of circumstances for which Rule 2-34(2) exists.

This is the kind of litigation that requires a corporate party to be represented by a lawyer. The plaintiff in this action must be represented by a lawyer. … [17] The plaintiff must be represented in this action by a lawyer. The plaintiff is not entitled to take any further steps in this action except through a lawyer.

[ 7 ] Four days after the Chambers Decision was rendered, CNP filed a notice of appeal , without seeking leave of this Court to do so . The grounds of appeal are set out as follows: 4. T HAT the appeal is taken upon the following grounds: 1. The Court Of Queen's Bench for Saskatchewan has ruled against granting Travis Patron leave to represent the federally-sanctioned political party he founded and continues to lead. 2.

The Judge presiding over the matter claims Patron is "not a lawyer" and has decided that the current Canadian Nationalist Party Leader, Chief Agent, and Sole Director is not eligible to represent the corporation in a court of law. 3. Mr. Patron holds sole directorship of the corporate entity Canadian Nationalist Party Inc. and is best suited to act on behalf of the organization in public affairs. There is no person better suited than Mr. Patron to act as lawyer on file and make decisions as it pertains to public representation of the Canadian Nationalist Party. 4.

The allegations against current government administration are most serious for the democratic and constitutional integrity of Canadian society. The Canadian Nationalist Party was unconstitutionally excluded from the recent 43 rd Federal Election after requesting and being denied ubiquitously the liberty of being permitted to host a public event and communicate their policies after the issue of the electoral writ (September 11th - October 21st, 2019). The plaintiff maintains that this represents a failure of the Government Of Canada to uphold their democratic mandate . 5. Denying Mr.

Patron the ability to continue serving as lawyer on file could potentially be neglectful of the inherent dignity of the human person and damage public confidence in social and political institutions which are designed to enhance participation in society. 6. Being a member of the Law Society Of Saskatchewan is not an absolute requirement to represent a corporation in a court of law. (Emphasis in original) [ 8 ] By way of relief, CNP seeks an order that Mr. Patron be granted leave to represent it. III. ANALYSIS [ 9 ] Saskatoon applies to quash CNP’s appeal on two bases.

First, it argues that the Chambers Decision was an interlocutory decision and, as such, CNP cannot appeal without obtaining leave. Saskatoon also submits that, in the circumstances of this case, leave should not be granted nunc pro tunc . Second, Saskatoon contends that CNP’s appeal should be quashed pursuant to Rule 46.1(1)(

c) of The Court of Appeal Rules , because it is manifestly without merit. [ 10 ] CNP takes the position that leave to appeal is not required, because (

i) its right to appeal is “inherent”, and (ii) the appeal raises questions that concern “the liberty of an individual” . In the alternative, CNP says that, if leave is required, this Court ought to grant leave nunc pro tunc because the appeal raises questions of national importance regarding the integrity of the electoral process and the right to self-representation . [ 11 ] CNP argues that the Chambers judge was wrong to require it to engage counsel. Mr. Patron submits that, because he is the sole director of CNP, he and the corporation are effectively one legal entity.

He says he has the right to represent CNP because, in essence, it is the same as representing himself. Even though Mr. Patron concedes that he is not a member of a law society, he describes himself as a “practitioner of law” and says he is the only person capable of providing adequate representation for CNP in the action. [ 12 ] As will be explained below, we are of the view that Saskatoon’s application must succeed. The Chambers Decision was interlocutory in nature. As such, CNP did not have a right of appeal without leave.

The circumstances of this case do not warrant the extraordinary step of granting leave nunc pro tunc . A. The Chambers Decision was interlocutory; CNP has no right of appeal without obtaining leave [ 13 ] Contrary to what CNP asserts, the concept of an “inherent” right to appeal is not one that is recognized in Canadian law. The right to appeal from a decision of a lower court exists only where, and to the extent, provided by statute. [ 14 ] In Saskatchewan, the governing statute is The Court of Appeal Act, 2000 , SS 2000, c C-42.1 [ Act ].

Rights of appeal are described in ss. 7 and 8 which read, in relevant part, as follows: Right of appeal 7(2) Subject to subsection (3) and

section 8, an appeal lies to the court from a decision: (

a) of the Court of Queen's Bench or a judge of that court; and (

b) of any other court or tribunal where a right of appeal to the court is conferred by an enactment.

(3) If an enactment provides that there is no appeal from a decision mentioned in subsection (2) or confers only a limited right of appeal, that enactment prevails. Interlocutory appeals

8(1) Subject to subsection (2), no appeal lies to the court from an interlocutory decision of the Court of Queen's Bench unless leave toappeal is granted by a judge or the court.

(2) Leave to appeal an interlocutory decision is not required in the following cases: (

a) cases involving: (

i) the liberty of an individual; … [15] As can be seen, where a Court of Queen’s Bench decision is interlocutory in nature and falls within the scope of the Act, anappeal to this Court is permitted only with leave, unless the case fits into one of the exceptions set out in s. 8(2). [16] At a very general level, an interlocutory decision is one made during the progress of an action or other proceeding that relates tosome intermediate matter in the case, not to the ultimate matter in issue (see The Honourable Stuart J.

Cameron, Civil Appeals inSaskatchewan: The Court of Appeal Act & Rules Annotated, 1st ed (Regina: Law Society of Saskatchewan Library, 2015) at 118[Cameron]). [17] The determination of whether a decision is final or interlocutory in nature turns on whether it effectively disposes of the rightsof the parties, in a final and binding way, with respect to a substantive issue in the action.

If it does, the decision is a final decision (see, forexample, Poffenroth Agri Ltd. v Brown, 2020 SKCA 68 at para 18 [Poffenroth]; PCL Construction Management Inc. v Saskatoon (City),2020 SKCA 12 at paras 59–65, 444 DLR (4th) 433 [PCL Construction]; Stevenson Estate v Bank of Montreal, 2011 SKCA 51 at para 10,371 Sask R 198 [Stevenson Estate]; and B.(D.) v M.(C.), 2001 SKCA 129 at para 8, 213 Sask R 272 [D.B.]). [18] As a general rule, a decision that does not finally resolve the action may be considered final if it determines the substantivemerits of a cause of action or a substantive defence (see, for example, D.B.; PCL Construction; Ball v Donais (1993), (ON CA), 64 OAC 85 (CA); Abbott v Collins (2002), 165 OAC 272 (CA); M.J.

Jones Inc. v Kingsway General Insurance Co. (2003), (ON CA), 233 DLR (4th) 285 (Ont CA); Hopkins v Kay, 2014 ONCA 514) or deals with a matter that is central to theultimate issue between the parties (see Poffenroth at para 22; Cowessess First Nation v Phillips Legal Professional Corporation, 2018SKCA 101, 43 CPC (8th) 237 [Cowessess]; Saskatoon District Health Board v Bryden (1999), (SK CA), 177 Sask R226 (CA)). [19] CNP submits that, even if the Chambers Decision was interlocutory, leave is not required because the case involves “theliberty of an individual”, as set out in s. 8(2)(a)(

i) of the Act. While this argument was not well-developed, it appears to stem from Mr.Patron’s contention that he and the corporate entity CNP are, for all intents and purposes, one and the same. [20] This argument cannot be accepted. The notion that an individual person and a corporate entity are indistinguishable orinterchangeable finds no support in the law. Furthermore, the phrase “liberty of an individual” in s. 8(2)(a)(

i) of the Act is aimed at casesthat engage the sorts of interests implicated when a decision bears on, for example, whether a person will be restrained, confined, orotherwise restricted in their movements. We are not persuaded that it has any application in the circumstances of this case. [21] Applying the decisions of this Court as summarized in Poffenroth and referred to briefly above, it is clear that the ChambersDecision was interlocutory in nature. The order requiring CNP to be represented by counsel is a procedural order. It did not bring thematter to an end.

It did not determine the merits of a cause of action or a defence. It did not dispose of the rights of the parties, in a finaland binding way, with respect to any substantive issue in the action. [22] While not a decision of a panel of this Court, 101149940 Saskatchewan Ltd. v Devries, 2014 SKCA 89, 442 Sask R 176[Devries], is fully in line with this conclusion. In Devries, Whitmore J.A., in Chambers, denied an application for leave to appeal from adecision in which a Court of Queen’s Bench judge had made an order under Rule 2-34(2) of The Queen’s Bench Rules requiring acorporation to obtain legal representation.

The question of whether the underlying decision was final or interlocutory in nature was notexplicitly addressed in Devries, but the fact that Whitmore J.A. engaged with and determined the question of whether leave should begranted supports our conclusion that the underlying Court of Queen’s Bench decision was interlocutory.

If the underlying decision had notbeen interlocutory, this Court would not have had jurisdiction to entertain the request for leave (see Patel v Whiting, 2020 SKCA 49 atparas 24–30). [23] In the result, this is a case where CNP does not have a right to appeal from the Chambers Decision without first obtainingleave. B. Granting leave nunc pro tunc is not appropriate [24] The Court fully understands that CNP’s primary position is that it has an inherent right to appeal. We have addressed thatargument.

As a subsidiary position, CNP indicated that if its primary argument was not accepted, the Court could go on to considerSaskatoon’s argument that leave nunc pro tunc should not be granted. [25] As a first point, there is ample authority for the proposition that the power to grant leave to appeal nunc pro tunc is anextraordinary power.

It is to be used sparingly, so as not to defeat the general purpose of the leave requirement (Cowessess at para 33;Poffenroth at para 44; Grant v Saskatchewan Government Insurance, 2003 SKCA 17 at para 5, 227 Sask R 316). [26] In determining whether to grant leave nunc pro tunc, the first consideration is whether the proposed appeal meets the criteriafor granting leave set out in Rothmans, Benson & Hedges Inc. v Saskatchewan, 2002 SKCA 119, 227 Sask R 121 [Rothmans]. If theRothmans criteria are not met, then leave to appeal should not be granted nunc pro tunc.

If, however, leave would be granted underRothmans, then the Court looks to such considerations as whether the appellant acted reasonably in not seeking leave, and whether therehas been undue delay occasioned by the failure to seek leave (see, for example, Cowessess, at paras 33–34).

[ 27 ] As Rothmans instructs, the determination as to whether leave to appeal should be granted is guided by two key criteria: merit and importance. That is to say, the proposed appeal must be of sufficient merit to warrant the attention of the Court of Appeal and of sufficient importance “to the proceedings before the court, or to the field of practice or the state of the law, or to the administration of justice generally, to warrant determination by the Court of Appeal” ( Verdient Foods Inc. v United Food and Commercial Workers, Local 1400 , 2019 SKCA 137 at para 14 [ Verdient ]; and Poffenroth at para 45 ).

The onus is on the applicant to demonstrate that these criteria, on balance, weigh decisively in favour of leave being granted. [ 28 ] The merit component of the Rothmans test requires the Court to consider whether the proposed appeal is “prima facie frivolous or vexatious” or “prima facie destined to fail in any event”. This question must be addressed in light of the applicable standard of review ( Rothmans at para 6 ; Verdient at para 15 ). [ 29 ] Here, CNP seeks leave to appeal from an order made pursuant to Rule 2-34(2) of The Queen’s Bench Rules.

That Rule reads as follows: 2-34(2) Subject to subrule (3), unless the Court orders otherwise, a party that is a corporation must be represented in a proceeding by a lawyer. [ 30 ] Two things are apparent from the wording of Rule 2-34(2). First, the starting premise is that a corporate litigant must be represented by a lawyer.

The second is that the decision to permit a non-lawyer to represent a corporation involves an exercise of discretion on the part of a Chambers judge. [ 31 ] Accordingly, in order to satisfy the first stage of the Rothmans test, CNP must establish that its appeal is not prima facie destined to fail in light of the standard of review applicable to a discretionary decision ( Devries at para 9 ).

That standard of review is deferential in nature, with appellate intervention permitted only if the Chambers judge erred in principle, disregarded a material matter of fact, failed to act judicially, or rendered a decision that was so plainly wrong as to amount to an injustice ( Rimmer v Adshead , 2002 SKCA 12 at para 58 , [2002] 4 WWR 119; Fauser Energy Inc. v Skjerven , 2019 SKCA 81 at para 55 , [2020] 1 WWR 635; Abrametz v Law Society of Saskatchewan, 2020 SKCA 81 at para 74 ; Smith Street Lands Ltd. v KEB Hana Bank of Canada , 2020 SKCA 41 at para 35 , 446 DLR (4th) 605).

In Kot v Kot, 2021 SKCA 4 , Barrington-Foote J.A. noted that the jurisprudence makes clear that appellate courts will not lightly interfere with discretionary decisions (at para 17). He went on to say: [20] … [T]hese cases confirm that appellate intervention in a discretionary decision is appropriate where the judge made a palpable and overriding error in their assessment of the facts, including as a result of misapprehending or failing to consider material evidence.

Appellate intervention is also appropriate where the judge failed to correctly identify the legal criteria which governed the exercise of their discretion or misapplied those criteria, thereby committing an error of law.

Such errors may include a failure to give any or sufficient weight to a relevant consideration. [ 32 ] In our view, this deferential standard of review means that CNP’s application fails at the first stage of the Rothmans test. [ 33 ] In that regard, it is clear the Chambers judge correctly identified the legal criteria governing the exercise of his discretion in the context of an application under Rule 2-34(2).

A judge faced with an application under that Rule must bear in mind such considerations as the purpose of the Rule, i.e. , to assist in proceedings being conducted in an expeditious and appropriate fashion, and the complexity of the proceedings ( Devries at para 14 ).

Also relevant are the interests of the corporation’s various stakeholders (shareholders, officers, directors, employees, creditors, etc.), the capability of the non-lawyer who proposes to represent the corporation to effectively conduct the legal proceedings, and the potential impact of granting the order on the financial and other interests of the other parties involved ( Howden Bros.

Construction Ltd. v Freshair Enterprises Ltd. , 2014 SKQB 290 at para 18 , 454 Sask R 305). [ 34 ] In this case, the Chambers judge clearly considered such matters as the nature of the proceedings, the facts alleged in the statement of claim, the complexity inherent in the Charter issues raised and the relief sought by CNP. He also considered that, by virtue of being the directing mind of the corporation, Mr.

Patron may not have “the objectivity that is sought in such a complex matter” ( Chambers Decision at para 13). [ 35 ] There can also be no suggestion in this case that the Chambers judge misapprehended or failed to consider relevant evidence or that he made a palpable and overriding error of fact. The Chambers judge quite properly observed that CNP had filed no evidence in support of its position that Mr. Patron should be permitted to represent it. Furthermore, contrary to what Mr.

Patron suggests, the Chambers judge did not hold that being a member of the Law Society of Saskatchewan was an “absolute requirement” to represent a corporation. He simply determined that, in light of all the circumstances, “[t]his is the kind of litigation that requires a corporate party to be represented by a lawyer” (at para 14). [ 36 ] In short, the grounds in CNP’s notice of appeal fail to identify any error on the part of the Chambers judge that would permit intervention by this Court, given the applicable standard of review. The first Rothmans hurdle has not been cleared; the appeal is destined to fail.

Accordingly, leave to appeal cannot be granted nunc pro tunc . [ 37 ] In the result, Saskatoon’s application must succeed. CNP’s appeal must be quashed. [ 38 ] In light of that conclusion, we need not address Saskatoon’s argument that CNP’s appeal is manifestly without merit within the meaning of Rule 46.1. IV. CONCLUSION AND COSTS [ 39 ] Saskatoon’s application is granted. CNP’s appeal is quashed. [ 40 ] In the circumstances, an order for costs in favour of Saskatoon is appropriate. Taking into account the nature and complexity of the application, we fix those costs at $1,500.

CNP is ordered to pay costs to Saskatoon in that amount.

“Jackson J.A.” Jackson J.A. “Tholl J.A.” Tholl J.A. “Kalmakoff J.A.” Kalmakoff J.A.