Mann v Mann, 2022 SKCA 138

Court of Appeal for Saskatchewan Docket: CACV3505 Citation: Mann v Mann , 2022 SKCA 138 Date: 2022-11-18 Between: James Mann Applicant/Appellant (Applicant) And Jason Mann and 101187148 Saskatchewan Ltd. Respondents/Respondents (Respondents) And Peter T. Bergbusch, K.C. and Miller Thomson LLP Respondents/Non-Parties (Non-Parties) Before: Richards C.J.S., Tholl and McCreary JJ.A. Disposition: Application dismissed (orally) Written reasons by: The Court On appeal from: QBG 692 of 2019, Saskatoon Appeal heard: November 18, 2022 Counsel: E.F.

Anthony Merchant, K.C., and Oluwadamiola Asuni for James Mann Robert Hawkes, K.C. for Jason Mann Randall Sandbeck, K.C. for 101187148 Saskatchewan Ltd., Peter T. Bergbusch, K.C., and Miller Thomson The Court [ 1 ] This is an application by James Mann [James] to overturn an August 11, 2022, Chambers decision wherein Leurer J.A. dismissed James’s application for an order disqualifying Peter Bergbusch, K.C., and Miller Thomson LLP from representing Jason Mann [Jason] and 101187148 Saskatchewan Ltd. [7148] in this or any other court.

We dismissed James’s application following oral argument with a promise of brief confirmatory written reasons to follow. We indicated, as well, that we would deal with the issue of costs in the written reasons. These are those reasons. [ 2 ] Justice Leurer held that, as a Chambers judge, he had no jurisdiction to make an order with respect to proceedings in other courts. That part of his decision has not been challenged. Justice Leurer went on to find that he had jurisdiction to grant relief in respect of this appeal.

However, he determined that he should not exercise that jurisdiction and hence dismissed James’s application. In doing all of this, Leurer J.A. very deliberately avoided making any comment about whether Mr. Bergbusch and Miller Thomson LLP are, in fact, in a conflict of interest situation. [ 3 ] James now applies pursuant to s. 20(3) of The Court of Appeal Act, 2000 , SS 2000, c C-42.1 [ Act ], to discharge or vary the order made by Leurer J.A. This means that the first question before the Court is whether Leurer J.A. made a reviewable error when he decided not to exercise his jurisdiction.

Only if that question can be answered in the affirmative would the analysis turn to the merits of James’s allegations about the alleged conflict of interest. [ 4 ] The standard of review applicable here is deferential. We may interfere with Leurer J.A.’s decision only if he made an error in principle, disregarded or misapprehended material matter of fact or failed to act judicially or rendered a decision so plainly wrong as to amount to an injustice.

See: Kowalczyk v Saskatchewan Government Insurance , 2015 SKCA 47 at para 9 . [ 5 ] James argues that Leurer J.A. erred in principle by endorsing the proposition that the Court, and accordingly judges in Chambers, should exercise original jurisdiction only in extraordinary or special circumstances and then by proceeding to dismiss his application on the basis that there was nothing special or extraordinary in the situation before him. [ 6 ] Whatever merit there might or might not be in James’s proposition, we find that Leurer J.A.’s bottom-line conclusion is in any event correct and independently justified by the factual circumstances of this case.

Those circumstances are outlined in paragraph 40 of his decision: [40] The evidence before me is unequivocal that James had ample opportunity to apply in the Court of Queen’s Bench before seeking the relief that he has requested that I grant in the context of the application before me. Specifically, since at least the time of the 2019 Disqualification Application, James has been aware of the same basic facts as those which stand behind the request he has made in this Court. He was aware of these facts when the argument was first made in connection with the application leading to the appeal assigned CACV3505.

He was aware of these facts when the argument was made in connection with the orders made in the Court of Queen’s Bench leading to the other appeals to this Court. Notwithstanding this knowledge, after he was told that the 2019 Disqualification Application would not be heard, he did not press ahead with his disqualification application in the Court of Queen’s Bench until sometime in 2022. Nothing in any of this presents a special case or extraordinary circumstance that would justify me making a decision about this in first instance. [ 7 ] In short, we see no error in declining to consider whether Mr.

Bergbusch and Miller Thomson LLP should be removed from this file and disqualified from acting on this appeal when: (

a) James knew of the relevant facts since at least 2019; (

b) James did not raise

the conflict of interest issue when the proceeding underlying this appeal was addressed in the Court of Queen’s Bench; (

c) James had not pressed this issue in other Queen’s Bench proceedings; and (

d) there were proceedings in the Court of Queen’s Bench where this same issue was at play. [ 8 ] We also note that an additional complicating consideration, one no doubt anticipated and foreseen by Leurer J.A., has come to pass. Justice Mills of the Court of King’s Bench has now rendered a decision on what is accepted as being the same arguments and largely the same subject as are raised in this application by James. He found that Mr. Bergbusch and Miller Thomson LLP should not be prohibited from acting for Jason.

That decision has been appealed to this Court and therefore parallels or duplicates the proceedings in this case.

It is apparent, therefore, that Leurer J.A.’s decision was also justified on the basis that it served to avoid the overlap and duplication that would have arisen if he had chosen to exercise his jurisdiction and decided the conflict of interest issue. [ 9 ] In the end, therefore, James’s application under s. 20(3) of the Act must be dismissed. [ 10 ] James also took issue with the fact that Leurer J.A. awarded costs in favour of Jason and, indeed, appeared to take issue with Jason’s participation in these proceedings. There is no merit in that submission.

Jason was named as a respondent by James in the application made to Leurer J.A. He was therefore entitled to participate in those proceedings and to an award of costs on being successful. [ 11 ] Jason asks for an enhanced order of costs on this application and, in so doing, makes reference to what are described as duplications in the materials filed by James as well as what are said to be misstatements of law and unfounded allegations of wrongdoing against him and others. There would appear to be some merit in these various concerns but we are not persuaded that they warrant an elevated costs award.

With an eye to the Tariff and to the fact that this application unfolded in many ways as would an appeal, we award costs of $5,000 to Jason and $5,000 to 7148, Mr. Bergbusch and Miller Thomson LLP.