Aecon Mining Construction Services, a division of Aecon Construction Group Inc. Applicant/Prospective Appellant (Plaintiff/Applicant) v. K+S Potash Canada GP, K+S Legacy GP, 2023 SKCA 102

Court of Appeal for Saskatchewan Docket: CACV4116 Citation: Aecon Mining Construction Services, a division of AeconConstruction Group Inc. v K+S Potash Canada GP, 2023 SKCA 102Date: 2023-08-31Between:Aecon Mining Construction Services, a division of Aecon Construction Group Inc.Applicant/Prospective Appellant (Plaintiff/Applicant)AndK+S Potash Canada GP, K+S Legacy GP Inc. and K+S AktiengesellschaftRespondents/Prospective Respondents(Defendants/Respondents)Before: Richards C.J.S., Schwann, Leurer, Kalmakoff and Drennan JJ.A.Disposition: Application dismissedWritten reasons by: The Honourable Chief Justice RichardsIn concurrence: The Honourable Madam Justice Schwann The Honourable Mr.

Justice Leurer The Honourable Mr. Justice Kalmakoff The Honourable Madam Justice DrennanOn application from: QBG-SA-00817-2018 (Sask KB), SaskatoonApplication heard: February 13, 2023Counsel: Matthew Sammon and Kate Costin for the Applicant/Prospective Appellant Shaunt Parthev, K.C., Krista Johanson and Nicola Crema for the Respondents/Prospective Respondents Richards C.J.S. I.

INTRODUCTION [1] Aecon Mining Construction Services [Aecon] seeks leave to appeal a King’s Bench decision denying its application to amendits statement of claim so as to add a particular allegation of conspiracy against the respondents, K+S Aktiengesellschaft [K+S AG] andK+S Potash Canada GP and K+S Legacy GP Inc. [together KSPC]. See: Aecon Mining Construction Services, a division of AeconConstruction Group Inc. v K+S Potash Canada GP (23 November 2022) Saskatoon, QBG-SA-00817-2018 (Sask KB) [ChambersDecision]. [2] Aecon takes the position that the Chambers Decision is final, such that it has a right of appeal.

However, because of someuncertainty in the case law about whether an order denying an amendment to a statement of claim is interlocutory or final, it has filed anapplication for leave to appeal. Aecon says that, if leave is required, it should be granted.

The respondents oppose Aecon’s application,contending that it should not be allowed to proceed in this two-track way, that leave to appeal is required and that leave should be denied. [3] The approach taken by Aecon in seeking leave raises questions about the procedure that should be followed in situationswhere a prospective appellant is unsure whether the Court of King’s Bench decision in issue is interlocutory, meaning that leave to appealis required, or final, meaning that there is a right of appeal. [4] The reality is that it is not always readily apparent whether an order is final or interlocutory.

The decisions of the Court thatdeal with this issue, most particularly Iron v Saskatchewan (Minister of Environment and Public Safety) (1993), (SKCA), 109 Sask R 49 (CA) [Iron], are sometimes understood in a way that puts litigants in a difficult situation when it comes to navigatingthrough this uncertainty. As a result, the governing procedural framework in this area needs to be clarified and confirmed.

This decisionattempts to do that. [5] As for the particulars of Aecon’s application, I conclude that the procedural approach it has taken is acceptable in thecircumstances here, that the Chambers Decision is final, and that it does not need leave to appeal. All of this is explained below. II. BACKGROUND [6] KSPC entered into two contracts with Aecon to build parts of a potash mine and production facility [Project].

The firstcontract is dated October 8, 2014 [CC2210 Contract] and the second is dated March 11, 2015 [CC2341 Contract] [collectively, Contracts]. [7] Aecon commenced an action against KSPC to recover amounts said by it to be owing under the Contracts, including some$147 million under the CC2210 Contract and $33 million under the CC2341 Contract. Aecon alleges that KSPC breached certaincontractual obligations and that those breaches required it to: (

a) revise the sequence, means and methods of performing the work underthe Contracts; (

b) accelerate the work under the Contracts to avoid expanding the contemplated

schedule for construction; and (

c) incursignificant extra cost to complete the work under the new circumstances. [8] In its statement of claim, Aecon alleges that, at least with respect to the CC2210 Contract, KSPC confirmed that these extraacceleration costs would be reimbursed and that it did so to induce Aecon to proceed with the work before being paid. It alleges thatKSPC ultimately did not, and never intended to, pay for the work.

[ 9 ] In its statement of defence, KSPC disputes that amounts are owing under the Contracts and denies that it engaged in bad faith conduct by inducing Aecon to complete work without intending to pay for the increased cost of the work. III. THE PROPOSED AMENDMENTS [ 10 ] K+S AG is the publicly traded German parent company of KSPC. [ 11 ] In October of 2020, KSPC produced documents relating to the litigation. Aecon says that certain of those documents revealed that, contrary to K+S AG’s public reports, the Project had exceeded its budget and was behind schedule. [ 12 ] Aecon also indicates that, through questioning, it learned the following: (

a) K+S AG was responsible for, oversaw, and managed all activities on the Project. (

b) Although K+S AG had represented to the public and capital markets in 2014 that the Project would be built within its anticipated budget (CAD $4.1 billion) and completion date (2016), K+S AG knew these representations were unrealistic at the time they were made because it had been warned by Aecon that, due to a design change selected by K+S AG, the Project would be delayed by at least four months. (

c) By early 2016, the delays anticipated by Aecon materialized. Aecon estimated that there would be cost overruns of more than CAD $430 million and a new completion date of March 2017. (

d) Despite this, in February and March of 2016, K+S AG continued to represent to its shareholders and investors in public financial documents that the budget of the Project and timeline were on track. (

e) Documents prepared contemporaneously to K+S AG’s financial reporting in 2016 confirmed that the Project was not on budget and the completion date would be delayed. (

f) Indeed, by June of 2016, there was only approximately CAD $6 million remaining in the Project budget, with significant work still to be completed. [ 13 ] Aecon says that it uncovered additional evidence on questioning that supported an inference that K+S AG had directed or required KSPC to induce Aecon into accelerating its work but to refrain from paying Aecon for the increased costs of that acceleration, for the purpose of suppressing and concealing the Project’s cost overruns from the public.

More specifically, on September 13, 2016, KSPC entered into an interim agreement with Aecon that required KSPC to assess Aecon’s claim for compensation for the accelerated work and, in the meantime, pay 75 per cent of that claim on a without prejudice basis. Aecon says that the interim agreement was a ploy designed to induce it to complete the work required while concealing K+S AG’s financial misrepresentations. IV.

THE CHAMBERS DECISION [ 14 ] Based on what it says that it learned through questioning, Aecon applied to amend its statement of claim to add K+S AG as a defendant, and to add causes of action in conspiracy and inducing breach of contract against KSPC and K+S AG. This led to the Chambers Decision . [ 15 ] The Chambers judge reproduced the amendments requested by Aecon and then, citing Cupola Investments Inc. v Zakreski , 2021 SKCA 86 , set out the governing principles: (

a) amendments are allowed to enable the court to unearth the true points of controversy that require judicial determination and are to be liberally granted when required for this reason; (

b) an amendment must be a proper pleading and not one that could be struck under Rule 7-9(2) for failing to disclose a reasonable cause of action or other reasons; and (

c) an amendment will be allowed whenever it can be made without injustice to the other side. [ 16 ] The Chambers judge next turned to the application of these principles. He readily concluded that the amendments would allow the court to determine the true points in issue. He then considered whether the proposed amendments could be struck pursuant to Rule 7-9(2). In this regard, he properly noted that he was to ask whether, if Aecon could prove the facts that it alleged, it was nonetheless plain and obvious that Aecon had no reasonable chance of success.

The Chambers judge confirmed that he was not to weigh the competing assertions of fact as between Aecon and K+S AG. Against this background, the Chambers judge found that Aecon’s pleadings claiming inducing breach of contract met the Rule 7-9(2) test. [ 17 ] However, the Chambers judge came to a different conclusion with respect to Aecon’s conspiracy allegations. He had no difficulty sustaining the amendment insofar as it concerned unlawful means conspiracy involving KSPC and K+S AG conspiring to breach the Contracts.

But, with respect to K+S AG’s alleged misrepresentation to the public markets, he wrote as follows: [22] … The applicant acknowledges that in order to establish such an action, among other conditions, the defendants must have engaged in the unlawful conduct, the conduct must have been directed towards the plaintiff, the defendants must have known that the conduct would harm or likely harm the plaintiff, and the plaintiff suffered damages as a result. I agree with that assessment. The difficulty I have is how misrepresentations to the public markets satisfy the notion of unlawful conduct.

The applicant argues that unlawful conduct for the purpose of unlawful means conspiracy can include independent actionable wrongs, including misrepresentation. That is a correct statement of the law. It is not every misrepresentation that necessarily gives rise to an action. I have great difficulty in understanding how a misrepresentation to the capital markets about the progress of the Legacy Project is unlawful conduct directed against Aecon. There is no allegation that the misrepresentation is contrary to any law, and the misrepresentation seems to be directed to the public as opposed to Aecon.

Even if the allegations of misrepresentations are true, that does not satisfy the test establishing a cause of action. In that regard, the allegations are civil conspiracy as they relate to the allegations of misrepresentation to the public are not valid amendments that will be allowed as they do not disclose a reasonable cause of action. Unfortunately, some of the general allegations relating to unlawful

conspiracy can be combined in both the misrepresentation aspect and the inducing breach of contact aspect. It appears to me thatparagraphs 107, 109, 110, 112 and 116 are not allowed. [18] The Chambers judge concluded by saying, “[i]n

summary, Aecon is entitled to amend its statement of claim as proposed exceptfor those paragraphs specifically referred to as they relate to the question of unlawful means conspiracy by misrepresentation to thepublic” (at para 35). [19] I appreciate that there are some questions about exactly how the Chambers Decision plays out with respect to the permittedwording of the amendments. However, that is of no particular significance for present purposes. The point for the moment is that theChambers judge rejected Aecon’s attempt to plead unlawful means conspiracy based on misrepresentations to the public markets. V.

THE APPLICATION FOR LEAVE TO APPEAL [20] Aecon wishes to have this Court overturn the Chambers Decision to the extent that the Chambers judge rejected its proposedamendment dealing with unlawful means conspiracy involving alleged misrepresentations to the public markets. [21] As noted above, Aecon employs something of a two-track approach in its effort to put the Chambers Decision before the Court.To begin, it argues that it has a right of appeal because the Chambers Decision is final and, in terms of broader principles, because ordersdenying leave to amend a statement of claim on the basis that the amendment does not disclose a reasonable cause of action are final inthat they dispose of an issue between the parties.

In this regard, Aecon also emphasizes that it is well settled that an order striking apleading as disclosing no reasonable cause of action is final in nature. Although it has not filed a formal application in this regard, Aeconrequests the Court to provide “directions” that it may appeal as of right. [22] At the same time, and alternatively, Aecon submits that, if it requires leave to appeal, then leave should be granted.

On thisfront, it cites this Court’s well-known test for deciding whether to grant leave and argues that the test is satisfied because the issue itwishes to raise is both meritorious and important. Aecon has submitted a draft notice of appeal indicating under “the source of theAppellant’s right of appeal” both (

a) that leave to appeal was granted, and (

b) that the decision of the Chambers judge was final in that itdisallowed certain amendments on the basis that they did not disclose a reasonable cause of action. [23] For their part, the respondents contend that Aecon’s approach is internally contradictory, and that Aecon should not be allowedto proceed in this way. They suggest that Aecon has applied for leave to appeal and that it must live or die, so to speak, with that decision. [24] The respondents go on to argue that the Chambers judge’s decision is interlocutory, and that leave to appeal is thereforerequired. They then submit that leave should be denied. VI. ANALYSIS A. The “interlocutory” versus “final” issue [25]

Section 7 of The Court of Appeal Act, 2000, SS 2000, c C-42.1 [Court of Appeal Act], provides for a general right of appealfrom decisions of the Court of King’s Bench. However, s. 8 stipulates that, with some narrow exceptions, “no appeal lies to the court froman interlocutory decision of the Court of Queen’s Bench unless leave to appeal is granted by a judge or the court”.

This means that, incontemplating the possibility of an appeal, both a prospective appellant and a prospective respondent must come to grips with the questionof whether leave to appeal is required. [26] This Court has, in a number of rulings, said that an interlocutory decision is one made during the course of a proceeding thatdoes not decide a substantive matter at issue in the proceeding.

See: Beaver Lumber Co. v Cain, (SK CA), [1924] 3WWR 332 (Sask CA); Agri Resource Mgt. 2001 Ltd. v Saskatchewan Crop Insurance Corporation, 2017 SKCA 35 at para 26, [2017] 8WWR 215; Poffenroth Agri Ltd. v Brown, 2020 SKCA 68 at paras 18–22, [2021] 2 WWR 302 [Poffenroth]; and Saskatchewan MedicalAssociation v Anstead, 2016 SKCA 143 at para 56. As well, there are a number of decisions of the Court that have considered variouskinds of orders and made determinations as to whether they are final or interlocutory.

Many of those decisions have been helpfullyinventoried by the Honourable Stuart Cameron in Civil Appeals in Saskatchewan: The Court of Appeal Act & Rules Annotated, 1st ed(Regina: Law Society of Saskatchewan Library, 2015) at 42–50. [27] Nonetheless, situations still arise where it is unclear whether a decision is interlocutory or final. This can put prospectiveappellants, in particular, in a difficult spot. On one hand, they will not want to run the leave-to-appeal gauntlet, and risk being deniedleave, if leave is not necessary.

On the other hand, they will not want to proceed on the basis that they have a right of appeal if there is arisk that the appeal will be struck out on the ground that leave was necessary. All of this is vexing, as well, for prospective respondents, inthat they are obliged to grapple, for example, with questions like whether they should attempt to have an appeal taken as of right struck onthe basis that leave was required and to thereby run the risk of incurring a costs award if they are unsuccessful. [28] The Iron decision is a difficult part of this landscape.

In that case, Norsask Forest Products Inc. [Norsask] and Millar WesternPulp (Meadow Lake) Ltd. [Millar] both commenced applications for leave to appeal from a decision of the Court of Queen’s Bench. Millarsimultaneously also filed a notice of appeal with the Court. This approach of simultaneously pursuing both avenues of appeal wasdescribed as being “standard practise” at the time (see Iron at para 24). [29] At the leave to appeal hearing, Cameron J.A. asked whether Millar was seeking a declaration as to whether the order inquestion was interlocutory or final.

In responding to that question, counsel for Millar replied to the effect that he was seeking leave toappeal and, if leave were granted, he would have no concern about whether an express declaration was made. The hearing then proceededwith a focus on the issue of whether leave to appeal should be granted based on the substance of the proposed appeal rather than on thequestion of whether the order in issue was interlocutory or final. Justice Cameron ultimately concluded that leave should not be granted,

and the applications were dismissed. [ 30 ] Following the dismissal of the applications for leave to appeal, Norsask and Millar attempted to pursue an appeal as of right with Millar relying on the notice of appeal that it had previously filed. The Court dismissed the appeal with the majority speaking through Bayda C.J.S. Three related but different points are embedded in the majority decision. First, the majority said that a litigant cannot approbate and reprobate, and that Millar was therefore estopped from contending both that it should be granted leave to appeal and that it had a right of appeal.

Second, the majority reasoned that Cameron J.A. had, in effect, put counsel for Millar to an election and that Millar, having chosen to seek leave to appeal, could not resile from that election and assert a right to appeal.

Third, the majority expressed a view that the question of whether the order in issue was final or interlocutory had been squarely placed to Cameron J.A., and resolved by him, with the result that the question was res judicata and that Millar and Norsask were not able to relitigate it in new proceedings. [ 31 ] Iron has been read in somewhat different ways since it was rendered and, overall, the Court’s decisions in this area are not as consistent as would be ideal.

At one end of the spectrum, Whitmore J.A., sitting in Chambers in Saskatoon (City) v Walmart Canada Corp. , 2016 SKCA 123 at para 27 , 1 CPC (8th) 380, took it to mean that “an application for leave to appeal constitutes an irrevocable election by the applicant to treat the underlying decision as being interlocutory rather than final”.

Somewhat similarly, in Mann v Hawkins , 2011 SKCA 7 , Klebuc C.J.S., sitting in Chambers, held that, because of Iron , he could not respond to an application for directions on the question of whether the prospective appellant required leave to appeal and held that the prospective appellant had to elect whether to proceed by way of notice of appeal or by way of an application for leave to appeal. [ 32 ] Contrastingly, Chambers judges faced with an application for leave to appeal in circumstances where leave was not required have sometimes worked around the problems posed by a reading of Iron that would make the application for leave an all or nothing proposition.

In some instances, applications for leave have been dismissed on the basis that the Chambers judge has no jurisdiction to grant leave in relation to a final order and this has been done without prejudice to the applicants’ entitlement to file a notice of appeal. See, for example: Felker v Easthill , 2018 SKCA 13 ; and Patel v Whiting , 2020 SKCA 49 . In one case, I chose simply to not deal with an application for leave in circumstances where it was not required. See: Stadnyk v Saskatchewan (Government) , 2011 SKCA 30 . [ 33 ] It is also important to note another piece of this puzzle.

There are cases where the Court has granted leave to appeal nunc pro tunc when faced with a situation where an appellant has erroneously proceeded by filing a notice of appeal and the equities of the situation suggested that the appeal should be heard. There are other cases where the Court has held that the appellant did not require leave to appeal but, if leave had been needed, it would have been granted nunc pro tunc .

See, for example: Poffenroth at para 44 ; Cowessess First Nation v Phillips Legal Professional Corporation , 2018 SKCA 101 , 43 CPC (8th) 237; and Veskovic v Nielson , 2022 SKCA 134 , 80 RFL (8th) 298. Much of this, of course, is difficult to square with Iron and the notion that a decision to seek leave or to proceed on appeal as of right is an irrevocable election. [ 34 ] In light of this state of affairs, it is apparent that some clarification and recalibration of the rules of engagement with respect to the “interlocutory” versus “final” issue would be helpful.

In my view, this exercise should take account of, and be grounded in, three basic considerations. The first is a candid acknowledgment that distinguishing between a final order and an interlocutory order is sometimes a difficult problem with no clear answer. The second is that the process of resolving the “interlocutory” versus “final” question should be as fair and workable as possible. Litigants should not be punished because of the unavoidable uncertainty that can characterize the business of determining whether leave to appeal is required.

The third consideration is that litigants should be encouraged to perform the research and analysis necessary to work through the “interlocutory” versus “final” problem themselves and should be discouraged from, in effect, simply turning such issues over to the Court and asking it to sort them out.

Accordingly, the question for the Court, at the end of the day, is one of how best to allow litigants to fairly and efficiently navigate through this area of Court of Appeal practice. [ 35 ] Having taken account of the Court’s relevant decisions, and having had the benefit of the submissions of Aecon and the respondents, I conclude that the following procedural framework should control how the Court and litigants approach the “interlocutory” versus “final” issue. [ 36 ] First, in the vast majority of cases, the answer to the question of whether leave is required will be straightforward.

A notice of appeal should be filed when it is apparent, by way of established precedent or otherwise, that the King’s Bench decision in issue is final.

An application for leave to appeal should be filed when it is apparent, by way of established precedent or otherwise, that the decision in issue is interlocutory. [ 37 ] Second, if there is some level of genuine uncertainty about whether the decision in issue is final or interlocutory, a prospective appellant is, of course, always entitled to accept the level of procedural risk that is associated with the uncertainty, file a notice of appeal and deal with the question of leave if and when it is raised.

Alternatively, the prospective appellant can seek leave to appeal conditional on a finding that leave is required and, as explained below, also file an allied application for a determination of whether leave is required. Let me put some meat on the bones of those two options. [ 38 ] If the notice of appeal route is chosen, these points should be noted: (

a) A respondent may apply to the Court to have the appeal struck out on the basis that leave is required. As well, the Court itself may raise this issue. In either of these eventualities, the appellant may be well advised to apply, in response and as a matter of precaution, for leave to appeal nunc pro tunc . (

b) If the Court determines that leave to appeal is required, it may grant leave nunc pro tunc if doing so is appropriate and possible. In this regard, the Court will be guided by the principles outlined in decisions such as Saskatoon (City) v The Canadian Nationalist Party , 2021 SKCA 22 at paras 26–28 , 456 DLR (4th) 564. [ 39 ] I turn then to the leave to appeal track—the other way forward for a prospective appellant. If that approach is taken, the following points govern: (

a) The prospective appellant may make the application for leave conditional on a finding that leave is required and include with the application an allied application asking the Chambers judge to make a determination as to whether leave is necessary. A prospective

appellant must not file an application that is in the nature of a free-standing “request for directions”. Further, the application for a determination of the “interlocutory” versus “final” issue must be accompanied by an analysis that refers to the relevant authorities and examines the question of whether the decision in issue is interlocutory or final. The applicant should not apply for directions as a substitute for doing proper legal research on that issue.

Chambers judges can be expected to make costs awards that sanction the bringing of applications for directions that are not properly analyzed and hence not well founded or not warranted. Finally, depending on the relevant circumstances and timelines, the prospective appellant may also want to file an application to extend the time for filing a notice of appeal in order to guard against a situation where the Chambers judge determines, after the appeal period has expired, that the matter must proceed by notice of appeal. (

b) As an aside, it should be noted that, in circumstances where a leave application is filed without an associated application for directions because the proposed appellant believes that leave is required, the Chambers judge may nonetheless, on their own initiative, raise the question of whether leave is needed. The prospective respondent can also raise the issue but, realistically, they will be unlikely to do so. (

c) If the Chambers judge decides that leave is not required, they will dismiss the application on the basis that they have no jurisdiction to grant leave. The prospective appellant can then file a notice of appeal if the applicable appeal period has not expired. If the appeal period has expired, the Chambers judge may, if appropriate and possible, extend the time for filing the notice of appeal. In deciding whether to grant an extension of that sort, the Chambers judge will use the framework typically employed in this regard. See, for example: Ceapro Inc. v Saskatchewan , 2008 SKCA 64 , 314 Sask R 1; MacInnis v Bayer Inc. , 2021 SKCA 160 ; and Hoffart v Carteri , 2019 SKCA 23 . (

d) A prospective appellant should not file both a notice of appeal and an application for leave to appeal in situations where the Court has the authority to extend the time for filing a notice of appeal pursuant to s. 9(6) of The Court of Appeal Act or otherwise.

However, in circumstances where the Court has no ability to extend the appeal period, a prospective appellant may file a notice of appeal to preserve its rights and, simultaneously, file an application for leave to appeal with an accompanying application for directions. [ 40 ] Overall, this approach is intended to provide, to the extent reasonably possible, a predictable set of procedures, fair to both appellants and respondents, that can be applied where there is well-founded uncertainty about whether leave to appeal is required.

Generally speaking, it is consistent with the overall direction of the decisions referred to above at paragraphs 32 and 33.

However, to the extent that this approach might be inconsistent with any of the previous decisions of the Court, and in particular with Iron , or with previous decisions made in Chambers, those decisions should be seen as no longer being good law. [ 41 ] In closing on this point, I note the respondents’ caution that an approach like the one just laid out, i.e., an approach that allows prospective appellants some room to move away from having to make a binding election about whether they do, or do not, require leave to appeal, will open the floodgates to requests for Chambers judges to provide directions.

However, I very much doubt that this will be how things play out. First, in the very large majority of cases, the answer to the “interlocutory” versus “final” question will be clear and there will be no need to seek directions. Second, there will be a consequence in the form of a costs award if an application for leave, with an accompanying request for directions, is made without valid reason. This should serve to deter frivolous or unnecessary requests for directions.

Third, counsel will understand, as they already do, that it is not necessarily a fatal problem if a notice of appeal is filed in circumstances where it turns out that leave is required. In appropriate situations, an appeal can be saved by a grant of leave nunc pro tunc . This too will serve to blunt any perceived need to seek directions in circumstances where the issue of whether leave is required is less than crystal clear. In the end, therefore, I am confident that the framework outlined above will effectively address the potential unfairness that sometimes arises in this corner of Court of Appeal practice. B.

Is leave to appeal required in this case? [ 42 ] As noted above, Aecon has filed an application for leave to appeal from the Chambers Decision but, at the same time, it also argues that the Chambers Decision is final and that leave is not required. While this approach is not fully consistent with what I have said above, it was an acceptable way for Aecon to proceed in light of the somewhat uncertain case law that has been in play. [ 43 ] I turn, therefore, to the question of whether the aspects of the Chambers Decision that is in issue here is final or interlocutory.

As indicated, Aecon submits that it is final and, as a consequence, that it does not require leave to appeal. In this regard, Aecon cites Kashuba v Wilton (Rural Municipality) , 2022 SKCA 37 , 87 CPC (8th) 264 [ Kashuba ]. [ 44 ] The respondents answer by pointing out that the Chambers judge added K+S AG as a defendant. They say that the Chambers judge did not disallow Aecon’s conspiracy claim, and thus did not finally resolve that claim.

In the respondents’ view, the Chambers judge blocked only those paragraphs of the amendment that relate specifically to the question of unlawful means conspiracy by misrepresentation to the public. They characterize these paragraphs as being in the nature of mere “narrative”. The respondents go on to emphasize that the Chambers judge did not take issue with the allegations that K+S AG conspired to have KSPC breach the contracts with Aecon.

In light of this, the respondents say that the conspiracy allegation still stands and that, therefore, the Chambers Decision did not dispose of the “issue in dispute” regarding the conspiracy claim. [ 45 ] I am unable to accept the respondents’ characterization of the amendments. In fact, Aecon seeks to advance not just one claim for conspiracy, but two. The first involves the allegation that KSPC and K+S AG conspired to breach the Contracts. The second, whatever its merits, involves K+S AG’s representations to the public markets.

This is how the Chambers judge understood what was at stake as well. [ 46 ] Given that view of the situation, the decision of the Chambers judge was clearly final. By disallowing the part of the amendments concerning K+S AG’s representations to the public markets, he conclusively determined that issue in the respondents’ favour. Aecon is foreclosed from establishing liability for damages on that basis. [ 47 ] I appreciate that some Chambers decisions suggest that an order refusing an amendment to add a cause of action to a statement of claim is interlocutory in nature.

For example, in Bourgault Industries Ltd. v Canada (Attorney General) , 2011 SKCA 29 , 366 Sask R

312, Klebuc C.J.S. dealt with a situation where Bourgault had been unsuccessful on an application to add a new claim in negligence to its statement of claim. He granted Bourgault leave to appeal but, it should be noted, did so without facing into the question of whether leave was required. Justice Lane did something similar in The Insurance Company of the State of Pennsylvania v Cameco Corporation , 2007 SKCA 76 , 52 CCLI (4th) 14, as did Herauf J.A. in Rekken Estate v Health Region #1 , 2014 SKCA 108 .

That said, I do note that, in Holmes v Jastek Master Builder 2004 Inc. , 2008 SKCA 159 , 314 Sask R 267, Lane J.A. took the express view that the refusal by a Queen’s Bench judge to allow an amendment adding a claim of breach of trust to a statement of claim was an interlocutory order. [ 48 ] However, in my respectful opinion, authorities such as these should not be followed. I agree with Leurer J.A.’s reasoning in Kashuba , at paragraph 58 , to the effect that an order refusing to allow an amendment to a statement of claim stands on the same footing as an order striking an existing pleading.

There are plenty of authorities in support of the notion that such orders are final if they preclude the plaintiff from being able to pursue a cause of action. See, for example: B.(D.) v C.(M.) , 2001 SKCA 129 , 213 Sask R 272. [ 49 ] Thus, if a proposed amendment is disallowed, but the plaintiff is given leave to resuscitate it by, for example, pleading the facts necessary to sustain the cause of action being advanced, the order will be interlocutory in nature.

That is so because it will not have finally resolved the question of whether the plaintiff can succeed against the defendant with respect to that cause of action. If, on the other hand, a proposed amendment to add a cause of action to a statement of claim is disallowed, full stop, the order will be final. That is the case here. The Chambers judge refused to allow Aecon to plead unlawful means conspiracy based on alleged misrepresentations to the public markets.

He thereby made a final determination of that issue, resolving it in favour of the respondents and against Aecon. [ 50 ] Accordingly, and as noted above, the aspect of the Chambers Decision with which Aecon is concerned is final and Aecon does not require leave to appeal. VII. CONCLUSION [ 51 ] I conclude, for the reasons given above, that Aecon’s application for leave to appeal must be dismissed. It has a right of appeal. Aecon may serve and file a notice of appeal on or before September 15, 2023. The costs of this application are reserved to the panel that hears the appeal. “Richards C.J.S.” Richards C.J.S.

I concur. “Schwann J.A.” Schwann J.A. I concur. “Leurer J.A.” Leurer J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Drennan J.A.” Drennan J.A.