Dr. Satyam Patel v. E.F. Anthony Merchant,, 2022 SKCA 84

Court of Appeal for Saskatchewan Docket: CACV3679 Citation: Patel v Saskatchewan Health Authority, 2022 SKCA 84Date: 2022-07-28 Between:Dr. Satyam Patel and E.F. Anthony Merchant, Q.C.Applicants(Appellants) (Plaintiffs/Applicants)AndSaskatchewan Health Authority(formerly the Regina Qu’Appelle Regional Health Authority)Respondent (Respondent)(Defendant/Respondent) Before: Jackson, Schwann and Barrington-Foote JJ.A. Disposition: Application dismissed Written reasons by: The Honourable Madam Justice JacksonIn concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice Barrington-Foote On review of: Patel v SHA (2 March 2021) Regina, CACV3679 andPatel v SHA (26 January 2022) Regina, CACV3679 (Sask CA)Application heard: April 12, 2022 Counsel: Satyam Patel on his own behalf No one appearing for E.F. Anthony Merchant, Q.C.Jeffery Deagle for the Saskatchewan Health Authority Jackson J.A. I. Introduction [1] The Court is asked to invoke its authority under s. 20(3) of The Court of Appeal Act, 2000, SS 2000, c C-42.1 to vary aninterlocutory order made under s. 20(1) of that Act, as a means of challenging a taxation of costs under Rule 54.1 of The Court of AppealRules.

The distinguishing feature of the case is that the appeal proper to which the interlocutory order pertains has been resolved such thatthere is no longer an appeal pending in this Court. [2] Assuming without deciding that The Court of Appeal Act confers the authority on the Court to vary an interlocutory order insuch circumstances, it should not be exercised here. Since I would not vary the order, the application for review under Rule 54.1 must bedismissed. II. Background A. General [3] Dr.

Satyam Patel and the Saskatchewan Health Authority [SHA] have been involved in extensive litigation over several years.Their ongoing disagreement regarding professional discipline has resulted in a series of decisions in the Court of Queen’s Bench andappeals to this Court. The full background to all of this is set out in Patel v Saskatchewan Health Authority, 2021 SKCA 115, leave toappeal to SCC refused, [Appeal Proper]. [4] A chronology of some key events shows the factual background leading to the present application: (

a) On July 22, 2020, a Court of Queen’s Bench Chambers judge awarded $5,000 in costs against Dr. Patel and $5,000 againstE.F. Anthony Merchant, Q.C: Patel v Saskatchewan Health Authority, 2020 SKQB 194 [QB Costs Decision]. (

b) In the fall of 2020, both Dr. Patel and Mr. Merchant appealed the QB Costs Decision with Mr. Merchant acting in his personalcapacity and on behalf of Dr. Patel.

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c) On February 9, 2021, Dr. Patel and Mr. Merchant, each as an individual appellant and applicant and named as such in the style of cause, filed an application for leave to amend their joint notice of appeal and factum. (

d) On March 2, 2021, a Chambers judge dismissed the application to amend the notice of appeal and factum: Patel v Saskatchewan Health Authority (2 March 2021) Regina, CACV3679 (Sask CA) [ 2021 Fiat ]. In dismissing the application, the Chambers judge awarded costs as follows: “SHA shall have its costs against the appellants in the usual manner in any event of the cause” (at para 15). (

e) On August 31, 2021, this Court issued its decision in the Appeal Proper dismissing Dr. Patel’s appeal from the QB Costs Decision , but allowing Mr. Merchant’s appeal. In the result, this Court ordered Dr. Patel to pay to the SHA the full $10,000 in costs that had been ordered in the QB Costs Decision . [ 5 ] To be clear, the Appeal Proper did not address the matters raised in the 2021 Fiat , including the costs ordered in that fiat. B. Recovery of costs of the 2021 Fiat [ 6 ] After the decision in the Appeal Proper was released, the SHA sought to recover its costs as ordered under the 2021 Fiat.

The bill of costs, which was prepared by the SHA on Column 1 of the Court of Appeal tariff, sought costs for total fees and disbursements in the amount of $1,261, including the preparation of the bill of costs and its taxation in the amount of $170. [ 7 ] When the parties could not agree as to the costs or who would pay them, the SHA served a notice of appointment for taxation of costs on both Mr. Merchant and Dr. Patel. [ 8 ] A judge of this Court, on a referral from the Registrar under Rule 54(7)(

e) of The Court of Appeal Rules , approved the bill of costs with respect to the 2021 Fiat . In doing so, the Chambers judge ordered that “both Dr. Patel and Mr. Merchant are liable for that order of costs” ( Patel v Saskatchewan Health Authority (26 January 2022) Regina, CACV3679 (Sask CA) [ 2022 Taxation Order ]). C. Application before this Court [ 9 ] Following receipt of the 2022 Taxation Order , Dr. Patel, who is self-represented on this matter, applied to this Court. He brought his application as a review of the 2022 Taxation Order under Rule 54.1 of The Court of Appeal Rules .

As one means of challenging the 2022 Taxation Order , he also indicated he was applying under s. 20(3) of The Court of Appeal Act to vary the 2021 Fiat so that the costs of that application would be awarded against Mr. Merchant only. [ 10 ] Dr. Patel submits that the application to amend the factum and the notice of appeal, which resulted in the 2021 Fiat , were not brought for his benefit. They were intended to provide a basis for Mr. Merchant to argue that the Court of Queen’s Bench costs should not have been awarded against him and had nothing to do with whether Dr. Patel should pay such costs.

In such circumstances, Dr. Patel asserts that it is unfair that the SHA should have the option to seek costs from him without recourse to Mr. Merchant, when only the latter could have benefitted if the amendment application had been granted. As such, he asks that this Court correct what he claims was either an error or an oversight in the 2021 Fiat . If the 2021 Fiat were amended, the 2022 Taxation Order would also have to be amended to reflect the correct order of costs, which would be against Mr. Merchant only. [ 11 ] Dr.

Patel also applies for a review of the taxation pursuant to Rule 54.1 of The Court of Appeal Rules . He argues that the bill of costs should not have been approved for much the same reasons he asserts that the 2021 Fiat should be varied. III. Analysis [ 12 ] Dr. Patel’s application under Rule 54.1 of The Court of Appeal Rules depends for the most part on whether the Court should invoke the authority of s. 20(3) of The Court of Appeal Act . As such, I will begin with that issue. A. Application to vary the 2021 Fiat under s. 20(3) [ 13 ]

Section 20 of The Court of Appeal Act provides as follows: Judge in chambers 20

(1) A single judge sitting in chambers may hear and dispose of an application or motion that is incidental to an appeal or matter pending in the court and that does not involve the decision of the appeal on the merits.

(2) A single judge sitting in chambers may hear and dispose of an application for leave to appeal.

(3) An order made by a judge in chambers, other than an order granting or denying leave to appeal, may be discharged or varied by the court . (Emphasis added) [ 14 ] The essential issue is whether this Court should exercise its authority under s. 20(3) to vary an interlocutory order made under

s. 20(1), i.e., the 2021 Fiat , after the appeal to which the application was incidental, i.e., the Appeal Proper , has been decided. [ 15 ] Section 20(1) of The Court of Appeal Act is limited by its terms to matters that are “incidental to an appeal or matter pending in the court” (emphasis added). After an appeal has been heard and decided, a judge in Chambers does not have the jurisdiction to resolve any matter. This is logical and grounded in common sense. If a matter is no longer pending in the Court, nothing could be remaining for a Chambers judge to decide.

That brings us to s. 20(3). [ 16 ] Section 20(3) contains no time limit as to when an application to vary or discharge may be brought. That is to say, s. 20(3) does not state that the Court may vary or discharge an order made in Chambers only while an appeal or matter is pending in the Court. However, the essential tenor of s. 20 is that it is directed to the resolution of matters incidental to an appeal prior to the main appeal being heard.

If an order is made under s. 20(1), it is generally expected that a dissatisfied litigant would apply to vary or discharge such an order before the appeal is heard or at least contemporaneously with the hearing of the appeal. After the appeal is decided, in the interests of finality and judicial economy, it would be anticipated that the jurisdiction of the Court would have come to an end. [ 17 ] That said, however, it is not necessary to decide the issue on this occasion.

Assuming that there is authority to vary an order made under s. 20(1) after the resolution of the appeal proper, I would not exercise it in this case for two reasons. [ 18 ] First, this is an appeal of a costs order alone. Dr. Patel does not take issue with what the Chambers judge decided in substance, i.e., not to allow Mr. Merchant to allege the existence of a limited retainer. Rather he contests the costs order against him only.

Courts are historically reluctant to intervene in such appeals. [ 19 ] Second, the application to vary under s. 20(3) is a direct challenge to the documents that were filed with the Court and which resulted in the 2021 Fiat . The notice of motion and supporting documentation named each of Dr. Patel and Mr. Merchant as applicants. The Chambers judge made the costs order by relying on those documents. He was entitled and indeed required to do so. Nothing was presented to him that would have allowed him to conclude otherwise. [ 20 ] Further, the Chambers judge was clearly aware that Mr.

Merchant was appearing before him in his personal capacity and as the lawyer for Dr. Patel. In the style of cause of that fiat, the “Applicants/Appellants (Applicants)” were shown as Dr. Satyam Patel and E.F. Anthony Merchant, Q.C. At the end of the fiat, where the Court recorded who appeared for whom, Mr. Merchant was noted as acting “on his own behalf and for Dr. Satyam Patel”. [ 21 ] Dr. Patel now asserts that Mr. Merchant was acting for himself only. He says that only Mr. Merchant stood to benefit from the application to amend the notice of appeal and factum. That may be so, but Dr. Patel chose Mr.

Merchant as his lawyer and there is nothing before the Court that would allow us to assess the whole of that relationship to determine whether on one interlocutory application that was ostensibly brought on behalf of both appellants, only one of them was represented. In short, Dr. Patel seeks to draw the SHA and the Court into the relationship between him and Mr. Merchant with only the barest of materials and assertions. [ 22 ] Regrettably, Mr.

Merchant did not appear at the hearing of this matter even though he had been served, but the Court also acknowledges that he was served as an “Appellant”, i.e., someone seeking a benefit, and not as a respondent, i.e., someone against whom relief had been sought. Further, when asked whether the Court should adjourn the matter to hear from Mr. Merchant, Dr. Patel resisted the Court’s suggestion. This reinforces my conclusion that the payment of the SHA’s bill of costs is a matter for Dr. Patel to sort out with Mr. Merchant. B.

Review under Rule 54.1 of The Court of Appeal Rules [ 23 ] The 2022 Taxation Order follows the 2021 Fiat . Dr. Patel argues that the 2021 Fiat did not impose joint and several liability, but this submission too must be rejected. On its terms, the 2021 Fiat permits the SHA to pursue one or the other of the two applicants whose motion had been dismissed. It is perhaps unfortunate that the SHA chose to assert its claim against Dr.

Patel only at this time, but this Court has no authority to direct how the SHA should conduct its affairs when the 2021 Fiat clearly gave it the option to pursue whomever it chooses. [ 24 ] Since I have concluded that there is no basis for this Court to vary the 2021 Fiat , there is similarly no footing upon which the 2022 Taxation Order could be modified. A judge hearing a taxation of costs under Rule 54(7)(

e) has all of the powers of the Registrar under Rule 54 but, like the Registrar, would not have authority to change a costs order made by a judge or the Court. The Registrar must be faithful to the terms of the costs order that they are taxing: Mark M. Orkin & Robert G. Schipper, Orkin on the Law of Costs , loose-leaf (Rel No 2, April 2022) 2d ed (Toronto: Thomson Reuters, 2022) at §6:25. IV. Conclusion [ 25 ] The application is dismissed. There will be no order as to costs. “Jackson J.A.” Jackson J.A. I concur. “Schwann J.A.” Schwann J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A.