Double Diamond Distribution Ltd. Applicant/Appellant (Respondent) v. Garman Turner Gordon LLP, 2021 SKCA 89

Court of Appeal for Saskatchewan Docket: CACV3653 Citation: Double Diamond Distribution Ltd. v Garman Turner GordonLLP, 2021 SKCA 89Date: 2021-06-09Between:Double Diamond Distribution Ltd.Applicant/Appellant (Respondent)AndGarman Turner Gordon LLPRespondent/Respondent (Applicant)Before: Leurer J.A. (in Chambers)Disposition: Application dismissedWritten reasons by: The Honourable Mr.

Justice LeurerOn application from: 2021 SKCA 61, ReginaApplication heard: May 26, 2021Counsel: Tom Stepper and Katelyn Rath for the Appellant Andrew Stead and Kritika Sharma for the Respondent Leurer J.A. [1] By judgment dated April 14, 2021, this Court dismissed an appeal by Double Diamond Distribution Ltd. [Double Diamond]from an order of a judge of the Court of Queen’s Bench which allowed the respondent, Garman Turner Gordon LLP [GTG], to register aNevada judgment as a judgment of the Court of Queen’s Bench: Double Diamond Distribution Ltd. v Garman Turner Gordon LLP, 2021SKCA 61 [Court of Appeal Decision]. [2] Double Diamond has applied for a re-hearing pursuant to Rule 47(2) of The Court of Appeal Rules [Rules].

This applicationwill not be heard until sometime later in 2021. [3] In the meantime, Double Diamond has requested an order stating that the Court of Appeal Decision “shall be stayed and noenforcement [of the Queen’s Bench judgment] shall take effect until such time [as] the re-hearing is heard and a formal judgment isissued”. However, it is important to note that Double Diamond is not requesting that I order a stay of execution of the Queen’s Benchjudgment.

Rather, it requests that I provide a declaration that the effect of the service by it of its application for a re-hearing is to continuethe stay of execution that was put in place by the operation of its original notice of appeal. [4] The syllogism of Double Diamond’s argument in support of this requested relief is as follows: (

a) Pursuant to Rule 15(1) of the Rules, the filing of its notice of appeal stayed the execution of the Queen’s Bench judgment“pending the disposition” of its appeal. (

b) There has been no “disposition” of its appeal. Rather, this Court remains seized with the appeal and is “not functus officio”pending the outcome of Double Diamond’s re-hearing application. As a result, this Court can reconsider, vary or revoke the Court ofAppeal Decision. In association with this argument, Double Diamond observes that, pursuant to Rule 47(6), this Court’s “formal judgmentshall not be issued until an application requesting a re-hearing has been disposed of”. (

c) Since this Court remains seized (or is not functus officio) because no formal judgment has been issued, the automatic stayprovided for in Rule 15 remains in place. [5] GTG opposes Double Diamond’s application. Its position is that, read purposively, Rule 15 operated to stay the execution ofthe Queen’s Bench judgment only until the issuance of the Court of Appeal Decision, which disposed of the appeal.

It points out that a re-hearing has not been ordered and that Rule 47, pursuant to which Double Diamond can apply for a re-hearing, does not say anything aboutthe continuation of the stay of execution pending the disposition of such an application. GTG further says that it has not attemptedexecution of the Queen’s Bench judgment. Instead, it says its steps have been preliminary to this only and that Double Diamond’sobjective is to avoid GTG’s attempts to investigate how the judgment may later be executed.

It invokes the statement made by JacksonJ.A. in 6517633 Canada Ltd. v Clews Storage Management Keho Ltd., 2019 SKCA 140 at para 39, 48 CPC (8th) 35 [6517633Saskatchewan], that, “in order for some act to be an execution of the judgment for the purposes of Rule 15 it must be a step taken that willlead to the judgment being satisfied, traditionally through the actual seizure of property or the garnishment of a debt” (italicized emphasisin original; underlined emphasis added). [6] It is my conclusion that Double Diamond’s application must be dismissed.

I will briefly explain why this is the case. [7] Section 20(1) of The Court of Appeal Act, 2000, SS 2000, c C-42.1, allows a single judge in Chambers to “hear and dispose ofan application or motion that is incidental to an appeal or matter pending in the court and that does not involve the decision of the appealon the merits”. I am prepared to accept that this would allow me to make an order granting a stay of execution of the Queen’s Benchjudgment. However, Double Diamond’s counsel was clear that it is not seeking such an order.

To the contrary, its counsel candidlyacknowledged that it could not meet the test for a stay as set out in RJR-MacDonald Inc. v Canada (Attorney General), (SCC), [1994] 1 SCR 311, as it is not facing irreparable harm. Instead of seeking an order for a stay, what Double Diamond is requestingis a legal opinion. In essence, it is seeking a declaration.

[ 8 ] In oral argument, Double Diamond’s counsel could point to no authority for a single judge in Chambers to provide such a declaration. I gave leave to both sides to file written submissions on this point. Double Diamond’s supplemental submissions repeated many of the arguments first made by it, but on this point referred only to authority as to the Court’s inherent jurisdiction. However, a single judge sitting in Chambers is not the Court (s. 15, The Court of Appeal Act, 2000 ). [ 9 ] I find myself in a similar position to that faced by Barrington-Foote J.A. in Koroluk v KPMG Inc. , 2020 SKCA 106 [ Koroluk ].

In that case, the applicant sought an order declaring that he did not require leave to appeal a decision of a judge of the Court of Queen’s Bench. Justice Barrington-Foote concluded that he could not grant that relief in those circumstances: [4] The question of whether leave is required may be decided by a Chambers judge in the course of an application for leave. However, there has been no such application. Nor has there been an application by any of the respondents in CACV3678 [a companion matter] asserting that leave is required.

For that reason, I have no jurisdiction to grant the declaratory relief – essentially, an opinion as to an issue which has not been engaged – for which Mr. Koroluk has applied. [ 10 ] Whether viewed as a matter of jurisdiction, as Koroluk would suggest, or simply as an exercise of discretion, I find this reasoning apposite in the present context.

In this regard, even were I to accept Double Diamond’s submission that I have jurisdiction to grant declaratory relief in the context of an application such as this, I would not do so because of the absence of an evidentiary record as to the proceedings being taken in the Court of Queen’s Bench. [ 11 ] 6517633 Saskatchewan stands for the proposition that not every step that is preliminary to active judgment enforcement is prohibited by Rule 15, when that Rule is engaged. In this case, I have no evidence of the proceedings in the Court of Queen’s Bench since the Court of Appeal Decision was rendered.

Double Diamond has filed the affidavit of Steven Mann sworn May 13, 2021. Mr. Mann provides evidence that is, as I understand it, intended to support the arguments Double Diamond wishes to make at its re-hearing application. However, his affidavit says nothing about what steps have been taken that might amount to the execution of the Queen’s Bench judgment. It is, therefore, impossible for me to say if anything is occurring that would be contrary to Rule 15, if it is applicable at all. Mr.

Mann’s affidavit also says nothing about whether it would be appropriate to order a stay (which I would again emphasize was not requested by Double Diamond). [ 12 ] I would contrast the situation here to what occurred in 6517633 Saskatchewan . In that case, Jackson J.A. was asked to order the discharge of the registration of a Court of Queen’s Bench judgment from lands pending the hearing of an appeal from that judgment. The application was brought pursuant to Rule 15(4). She dismissed that application and gave as reasons that the registration was not prohibited by Rule 15.

She made this determination with the benefit of an evidentiary record that I lack. The situation here is also different than what occurs when a judge or the court interprets a Rule or statute as part of the reasoning in support of the grant or refusal of an order, as was the case in Patel v Whiting , 2020 SKCA 49 , and Re Harmon International Industries Inc. , 2020 SKCA 95 , 81 CBR (6th) 1.

I would add that it is open to a judge of the Court of Queen’s Bench to interpret this Court’s Rules and determine if actions being taken by GTG in that Court are appropriate given Double Diamond’s outstanding application for a re-hearing. If this occurs, the judge will have the benefit of a factual record that I am presently lacking. [ 13 ] I therefore dismiss Double Diamond’s application. GTG is entitled to its costs in connection with this application. “Leurer J.A.” Leurer J.A.