Farms v. Families of North America, 2023 SKCA 113

Court of Appeal for Saskatchewan Docket: CACV3815 Citation: Farms and Families of North America Inc. (Farmers of North America) v AgraCity Crop & Nutrition Ltd. , 2023 SKCA 113 Date: 2023-10-10 Between: Farms and Families of North America Inc. (carrying on business as Farmers of North America) Appellant (Plaintiff/Defendant by Counterclaim/Respondent) And James Mann Appellant (Non-party/Defendant by Counterclaim/Respondent) And AgraCity Crop & Nutrition Ltd.

Respondent (Defendant/Plaintiff by Counterclaim/Applicant) And Jason Mann Respondent (Defendant/Plaintiff by Counterclaim/Non-party) And Robert Friesen Non-party (Non-party/Defendant by Counterclaim/Respondent) Before: Leurer, Tholl and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Mr. Justice Leurer In concurrence: The Honourable Mr. Justice Tholl The Honourable Mr. Justice Kalmakoff On appeal from: QBG 1336 of 2018 (Sask QB), Saskatoon Appeal heard: September 20 and 22, 2023 Counsel: Wendy Kelley and Rajan Bains for Farms and Families of North America Inc.

James Mann on his own behalf Khurrum Awan, Allen Berriault (both days) and Daniel Cherian (September 22) for AgraCity Crop & Nutrition Ltd. Matthew Scott for Jason Mann Leurer J.A. I.

INTRODUCTION [ 1 ] Farms and Families of North America Inc., which does business as Farmers of North America [FNA], and James Mann appeal against an interim order granted by a Court of Queen’s Bench judge without notice to them: Farms and Families of North America Inc. (Farmers of North America) v AgraCity Crop & Nutrition Ltd. (16 April 2021) Saskatoon, QBG 1336 of 2018 (Sask QB) [ Order ]. [ 2 ] When an ex parte order is made, the persons affected by it are entitled to a review hearing, that is, a hearing at which they may seek to have the order set aside or varied.

At the review hearing, the judge is called upon to consider the matter afresh and decide if the order should have been granted. [ 3 ] In this case, a review hearing has not yet been held. For this reason, this appeal must be dismissed. After the review hearing, any party who is dissatisfied with the final decision may then exercise any rights of appeal against it that they may have. II. BACKGROUND [ 4 ] This appeal arises in the context of long-standing, multi-pronged litigation centered around the business affairs of two brothers, James Mann and Jason Mann, and corporations that they own and control.

Much of this litigation has occurred before a single judge of the Court of Queen’s Bench, now the Court of King’s Bench [judge]. [ 5 ] Two corporations, FNA and AgraCity Crop & Nutrition Ltd. [AgraCity], are at the heart of this dispute. James is the sole registered shareholder of FNA and is its operating mind. Jason has no formal role in FNA, but he claims an ownership stake in it. James and Jason are equal shareholders in AgraCity. Although both are also directors and officers of it, for many years, Jason has been responsible for its day-to-day management. [ 6 ] AgraCity’s and FNA’s business affairs intertwine.

In short, AgraCity sells agricultural products. Historically, it has done so

only to farmers who are members of FNA. The business affairs of AgraCity and FNA also involve many other affiliated corporations and business organizations. One of the significant sources of conflict between James and Jason is if, or the extent to which, AgraCity and the affiliates exist to serve only the interests of FNA customers, who are also often called its “members”. [ 7 ] The litigation between the brothers began in 2017. In that year, James took steps to oust Jason from positions of authority within AgraCity.

James’s actions resulted in the grant of an order by Danyliuk J.: Mann v Mann (19 July 2017) Saskatoon, QBG 948 of 2017 (Sask QB) [ Danyliuk Order ]. [ 8 ] One specific term of the Danyliuk Order was that “neither Jason Mann nor James Mann (nor anyone acting on their behalf) shall disparage or undermine the other, or attempt to do so, regarding any employees or management of AgraCity … or any third parties with whom that corporation has business relationships, including customers, suppliers and financiers” (at para 14(3)).

The Danyliuk Order has been understood by the brothers and various judges who have presided over the matters in dispute between them and the companies they own or control as being intended to preserve the status quo of the business arrangements in relation to AgraCity and at least some of the affiliates. [ 9 ] On or around April 9, 2021, FNA published a “Member Guidance Document” addressed to “Dear Farmers of North America Member[s]” [Member Survey]. The evidence placed before the judge was that the survey had been sent to a broad group of people.

The Member Survey offered a $30 membership credit to members of FNA who completed it. It also contained several pages of text under the heading “Background on the FNA membership”, followed by 30 questions. The background information and the questions related not only to the business of FNA and AgraCity, but also to Genesis Grain & Fertilizer GP Inc., Genesis Grain & Fertilizer LP, Genesis Operating GP Inc., Genesis G&F Operating LP, FNA Fertilizer GP Inc., FNA Fertilizer Limited Partnership, NewAgco Inc. and MPower Logistics Ltd.

In this judgment, I will refer to these business organizations, other than FNA and AgraCity, as the “Affiliates”. [ 10 ] On April 15, 2021, AgraCity filed an application without notice [Application]. It requested an interim injunction on the following terms: (

a) enjoining FNA and James from communicating any information about AgraCity or the Affiliates to anyone except their legal or financial advisors without the prior written consent of Jason or further order of the court; (

b) directing FNA and James to deliver to AgraCity, not later than April 16, 2021, a complete list of all persons to whom they had sent the Member Survey [Dissemination List]; (

c) authorizing AgraCity to send a notice in a form attached to the Application [Corrective Letter] to all FNA members, limited partners of Genesis Grain & Fertilizer LP, limited partners of FNA Fertilizer Limited Partnership, AgraCity customers and any other persons disclosed on the Dissemination List; and (

d) authorizing AgraCity to credit any FNA member who can show they completed the Membership Survey with a $30 credit toward the cost of their annual FNA membership. [ 11 ] AgraCity asserted that there was urgency to the situation and that the test for the grant of an injunction on an ex parte basis was met. It based the request for injunctive relief on the proposition that the Member Survey offended the Danyliuk Order because it disparaged AgraCity and undermined its relationship with third parties with whom that corporation has business relationships, including customers, suppliers and financiers.

For this reason, AgraCity said that FNA and James should be prohibited from disseminating the Member Survey and it should be given authorization to distribute the Corrective Letter to “correct the false and misleading information” contained in the Member Survey. [ 12 ] AgraCity supported the Application with an affidavit sworn by Jason and also filed an undertaking as to damages. These materials were placed before the judge. After a review of the matter, the judge endorsed the file with a fiat dated April 16, 2021 [ Fiat ].

The Fiat states in full as follows: This is a Without Notice Application for an injunction and ancillary relief by AgraCity. The order sought is at first blush too wide as it purports to deal with 3rd parties beyond AgraCity. However, the actions of James Mann appear to contradict the Danyliuk Order July 13/2017 [ sic ] Paragraph 3 which includes parties that have business relationships with AgraCity. The survey reads to the court as a veiled attempt to undermine AgraCity’s relationships with its customers and business parties, the latter because of the breadth of distribution.

The draft order to issue with the hearing date for full argument as [to] the continued appropriateness, if any, of the injunction to be May 6/21 @ 1 p.m. by phone. This fiat and order to be served on the respondents by April 19/21 @ 12 noon. [ 13 ] As directed in the Fiat , the Order issued on April 16, 2021. It granted the relief requested by AgraCity and ordered that a “hearing date for full argument on the continued appropriateness, if any, of the injunction” be set down for May 16, 2021. However, the review hearing has never been held.

During the hearing of the appeal, this Court was told that this is partly because, for a time, FNA and James pursued a strategy of attempting to disqualify the judge. In any event, this Court was advised that the review hearing is now scheduled for October 12, 2023. III. ISSUES [ 14 ] Notwithstanding that the review hearing has not yet taken place, FNA and James appeal against the Order . As part of their appeal, they apply under Rule 59(1) of The Court of Appeal Rules for leave to file as evidence in their appeal an affidavit sworn by James.

That affidavit brings forward the evidence that James says should have been considered by the judge before he granted the Order but was not because it was made on an ex parte basis. James’s affidavit also offers evidence of events that have occurred since the Order was made. [ 15 ] As I will explain, the resolution of this appeal is determined by the answers to the following three questions:

(

a) Does the lack of the endorsement required by Rule 10-3(5) of The Queen’s Bench Rules render the Order unenforceable? (

b) Does the fact that the Corrective Letter has been sent render the judge functus officio ? (

c) Although FNA and James have the right to a full review hearing, is it nonetheless appropriate that this Court decide this appeal on its merits? IV. ANALYSIS A.

The lack of a Rule 10-3(5) endorsement does not matter in this case [ 16 ] Rule 10-3(5) of The Queen’s Bench Rules requires that if an order is issued pursuant to an application without notice, “it must be drawn” with the following endorsement included on it: Take notice that, unless the order is consented to by the respondent or a person affected by the order or unless otherwise authorized by law, every order made without notice to the respondent or a person affected by the order may be set aside or varied on application to the Court. You should consult your lawyer as to your rights.

Prior to the major amendments to The Queen’s Bench Rules in 2013, Rule 467(2a) contained a very similar direction in relation to what was, under those rules of court, referred to simply as an ex parte application. [ 17 ] Rule 10-3(5) rests on the principle that a person has a right to be heard in respect of a court order that affects their rights. It is for this reason that a court that makes an order on an ex parte basis retains the jurisdiction to vary it or to set it aside once it has had the benefit of any submissions and evidence that the affected persons bring forward to it for consideration.

In Conexus Credit Union 2006 v B. Bergen Holdings Ltd. , 2011 SKCA 132 at para 8 , 377 Sask R 115 [ Conexus Credit Union ], Caldwell J.A. explained that the “authority of a judge of the Court of Queen’s Bench to set aside an ex parte order of the Court arises from the judge’s inherent jurisdiction” as well as the rules of court. [ 18 ] In this case, the Order did not include the endorsement required by Rule 10-3(5). FNA and James say that, for this reason alone, the Order should be set aside.

While I do not discount the possibility that, in some circumstances, a failure to include the endorsement required by Rule 10-3(5) may have consequences, this is not such an occasion. [ 19 ] I certainly agree that parties should not be encouraged to disregard the rules of court. On the other hand, their purpose is to facilitate the administration of justice, not to frustrate it. It is for this reason Rule 1-6(4) provides that the court “may cure any contravention, non-compliance or irregularity” of The Queen’s Bench Rules if four conditions are met, as follows: (

a) to do so will cause no irreparable harm to any party; (

b) in doing so the Court imposes terms or conditions that will: (

i) eliminate or ameliorate any reparable harm; and (ii) prevent the recurrence of the contravention, non-compliance or irregularity; (

c) in doing so the Court imposes a suitable sanction, if any, for the contravention, non-compliance or irregularity; and (

d) it is in the overall interests of justice to cure the contravention, non-compliance or irregularity. [ 20 ] In Maranda v Co-operative Trust Co. of Canada , 2002 SKCA 10 , 213 Sask R 262 [ Maranda ], among other procedural irregularities, an order allowing for substitutional service failed to include the statement required by Rule 467(2a). This Court was called upon to determine the significance of this omission, as well as other procedural defects, in the context of what was then Rule 5 of The Queen’s Bench Rules .

That Rule provided that, unless the court otherwise ordered, “any procedural defect, including a failure to comply with these rules, shall be treated as an irregularity and shall not nullify a proceeding”. This Court found that the procedural irregularities in that case required “either that the order be set aside, or other provision [be] made to ensure that the appellant has not had his right to full answer and defence diminished” (at para 14).

It went on to state that the “interests of justice require an order which will satisfy the requirements of [ The Queen’s Bench Rules ] and enable both parties to present their respective cases properly”. These objectives were met by setting the order aside and remitting the matter to the Court of Queen’s Bench where “each party will have an opportunity to present its case” (at para 15). [ 21 ] In Hunter v McCorriston , 2016 SKCA 144 , 86 RFL (7th) 260, this Court took note of the differences between Rule 5, under which Maranda was decided, and what is now Rule 1-6(4) of The Queen’s Bench Rules .

Based on several differences between them, Caldwell J.A. found the latter to be “more prescriptive in its language than the old rule” (at para 39). Nonetheless, he concluded that “the case law that developed under Old Rule 5 is still instructive” (at para 40). [ 22 ] Here, the case for finding that the lack of the endorsement in the Order has no practical impact on the parties’ procedural rights is more compelling than it was on the facts in Maranda .

While the Order did not expressly state that it could be “set aside or varied on application to the Court”, it scheduled a “hearing date for full argument on the continued appropriateness, if any, of the injunction”. Therefore, even without the need for an application by either FNA or James, the Order was to be reviewed by the judge. [ 23 ] In argument, FNA and James accepted that this scheduled hearing allowed them to seek to vary or set aside the injunction prohibiting the further distribution of the Member Survey.

Yet, they questioned whether it preserved the judge’s authority to set aside that part of the order that authorized the sending of the Corrective Letter. However, I do not see the jurisdiction that the judge reserved for himself to be restricted in this way. In this regard, the order granting FNA the authority to send the Corrective Letter was part of what

AgraCity described in the Application as a request for injunctive relief. Therefore, the direction given in the Order that there is to be ahearing into the “continued appropriateness, if any, of the injunction” can only mean that the judge intended to leave it open to FNA andJames to argue that all or any part of the Order should be set aside or varied. I would add that, were the Order to be interpreted otherwise,the judge would have been acting contrary to the accepted practice when orders are made on an ex parte basis.

It would take much toconvince me to interpret the Order in this way. [24] All of this means that the judge retained for himself the jurisdiction to set aside or vary any or all parts of the Order, includinghis grant to AgraCity of authority to send the Corrective Letter. It may be, as they assert, that FNA and James did not previouslyunderstand the Order in this way. However, as a result of this judgment, they do now. Since the review hearing has not yet taken place,the lack of the endorsement and any misunderstanding on their part will have caused them no harm.

I add that it is also irrelevant thatFNA and James have not served an application seeking a review of the Order, as the judge has already directed that it be held. [25] For these reasons, the failure to include on the Order the endorsement required by Rule 10-3(5) does not affect its validity. B. The fact that the Corrective Letter has been sent does not change theprocedure to be followed in this case [26] As has been noted, the Order not only enjoined FNA and James from further disseminating the Member Survey, it alsoauthorized AgraCity to send the Corrective Letter.

The parties presented argument on the basis that the Corrective Letter was, in fact,distributed by AgraCity. Considering this reality, FNA and James argue that the “[o]rder in relation to the issuance of the Corrective Letteris a final order and [the judge] is functus officio”. They offer no authority in support of this argument, and it is one I cannot accept on thefacts of this case. [27] Appellate courts do not generally entertain appeals from ex parte orders because the appropriate procedure is to apply for aninter partes hearing.

In Gresham (Bankrupt) v Gresham (1990), (SK CA), 89 Sask R 314 (CA) at para 17 [Gresham],Vancise J.A. went so far as to say that “[i]f an application is made to vary an ex parte order the right of appeal does not come into effectuntil the ex parte order has been reconsidered by a single judge of the court with the power to vary or set aside the initial order” (emphasisadded).

In Conexus Credit Union, Caldwell J.A. stated that old Rule 467(2a) “reflects the longstanding practice in Saskatchewan that aparty who takes issue with an ex parte order should bring the matter back to the Court of Queen’s Bench, preferably before the judge whogranted it” (at para 9). There is authority for the proposition that this general rule or practice does not apply where the party against whomthe order was made says that the judge had no jurisdiction to do so: see Pastuck v Browne Motor Co. (1995), (SK KB),127 Sask R 44 (QB) at para 12 [Pastuck].

However, FNA and James do not appeal on the basis that the judge lacked jurisdiction. [28] In Canadian Broadcasting Corp. v Manitoba, 2021 SCC 33 at para 98, 461 DLR (4th) 635, Kasirer J. explained that one of thereasons why appeals are generally not allowed from ex parte orders is that they “could be rendered moot as a consequence of thatproceeding”. In offering this guidance, Kasirer J. referred to several authorities, including Secure 2013 Group Inc. v Tiger CalciumServices Inc., 2017 ABCA 316, 58 Alta LR (6th) 209.

In that case, Strekaf J.A. reiterated that if a right of review of an ex parte orderexists, that right must generally first be exercised before an appeal can be taken.

She expanded upon the reasons for this general rule,stating as follows: [54] This Court has previously indicated that the appropriate forum to address concerns about without notice orders is a reviewapplication in the Court of Queen’s Bench and not an appeal to this Court. “Normally this court will not entertain appeals from ex parteorders when they can be cured in the court below”: Dahlseide v Dahlseide, 2011 ABCA 237 at para 2, [2011] AJ No 875 (QL).

If thepossibility of a review of an order granted without notice in the Court of Queen’s Bench exists, that must be done before an appeal can belaunched, absent exceptional circumstances: Thompson v Procrane Inc (Sterling Crane), 2016 ABCA 71 at para 6, [2016] AJ No 237(QL). [55] There are good reasons why this practice should be followed, not the least of which is to avoid appeals by some parties and setaside applications by others, or both an appeal and a set aside application by some parties, all of which occurred here.

These overlappingand duplicative proceedings caused confusion and additional expense for everyone and were not an efficient use of court resources. [29] In Chedrawy v Chedrawy, 2021 NSCA 73 at para 13, relying on the English case WEA Records Ltd. v Visions Channel 4 Ltd.,[1983] 2 All ER 589 (CA) [WEA Records], Bryson J.A. suggested that an “attempted appeal following an executed ex parte order mayeven be an abuse of process when the applicant has made no effort to have an inter partes hearing”.

In WEA Records, the Court of Appealdismissed the appeal “not on the merits but on the grounds that it is an abuse of the process of the court”, explaining that it would be“wholly inappropriate” to entertain an appeal from the order of a High Court judge made ex parte “when not only has it been executed, butthe matter has subsequently come back to and is in the process of being considered by other High Court judges”.

Later in its decision,which involved an appeal from an executed Anton Piller order, the Court of Appeal opined that it would be “difficult, if not impossible, tothink of circumstances in which it would be proper to appeal to [that] court against an ex parte order without first giving the judge whomade it or, if he was not available, another High Court judge an opportunity of reviewing it in the light of argument from the defendantand reaching a decision”. I do not need to decide if the characterization of this type of appeal as an abuse of process is applicable on thepresent facts.

It is enough to say that appeal courts generally refuse to hear appeals from ex parte orders, including when that order hasbeen executed. [30] In WEA Records, the Court of Appeal expanded on the reasons why it is important that the judge who made the order withoutnotice should be given the opportunity to review it. The Court stressed that an ex parte hearing, where only one side adduces evidence andmakes submissions, “is no basis for making a definitive order”.

Consequently, the judge “expects at a later stage to be given anopportunity to review” the ex parte order and, potentially, discharge or vary it based on the “evidence and argument adduced by the otherside” (at 593). As I discussed in the previous section, the Order at hand provided as much by scheduling a “hearing date for full argumenton the continued appropriateness, if any, of the injunction”. [31] Against this background, I return to the undisputed fact that the Corrective Letter has already been sent. Of course, a struck bellcannot be unrung.

However, that does not mean that it is not open to the judge to revisit, with the benefit of evidence and submissions

from FNA and James, the question of whether he should have authorized the sending of the Corrective Letter. As stated by McMahon J. inSasol Technology (Proprietary) Ltd. v de Klerk, 2009 ABQB 599 at para 11, the “fact that the order has been executed will not precludean application to vary or vacate the order if, on the de novo hearing, the evidence does not support the granting of the order”. [32] Related to this, the fact that the Corrective Letter has been sent also does not mean that there are not matters requiring thejudge’s determination if he were to conclude that he should not have granted this authority.

In the latter regard, AgraCity has given anundertaking “to pay any costs or damages awarded by a court of competent jurisdiction against it as a result of the granting of an interimand/or interlocutory injunction in its favour” pending a resolution of the dispute between the parties. In short, the proper remedy for anyinjustice caused by an ex parte order is apt to be damages, but this question is appropriately considered by the judge of first instanceseized with the matter.

Only after that judge reaches a decision would an appellate court generally be concerned with the ex parte order. [33] Wrapping all of this up, this Court’s role is typically that of review.

In this case, that means that if this Court is to considerwhether the Corrective Letter should have been sent, it should do so only in the context of the appellate review of a decision by the judgeconcerning whether, having now had the benefit of evidence and argument from the affected parties, he would have made the order he did. [34] For these reasons, the fact that the Corrective Letter has been sent does not compel this Court to decide this appeal on its merits. C.

No good reason exists for this Court to decide this appeal on its meritsbefore the review hearing is held [35] I do not interpret Gresham to mean that this Court should never hear an appeal from an ex parte order before there is a reviewof it. The other cases I have mentioned are not so categorical. Since the decision in Gresham did not turn on whether the prohibitionagainst appealing against an ex parte order is an absolute one, I do not read it as laying down such an unequivocal rule.

To the contrary, Iaccept that in special or exceptional circumstances, it is appropriate for an appeal court to hear an appeal from an order granted on an exparte basis notwithstanding that the order has not been reviewed by the judge who made it: see also Murray v Hagey, 2011 ABCA 190 atpara 2. Given this, the final question that must be answered is whether, although FNA and James have the right to a review hearing, it isnonetheless appropriate that this Court decide this appeal on its merits. [36] Here, FNA and James offered several reasons for why this Court should hear and decide their appeal.

First, they assert in theirfactum that, because AgraCity proceeded on an ex parte basis, they “were not given the opportunity to provide extensive evidence to showwhat the ordinary course of business was, and [why] the [Member] Survey did not offend the Danyliuk Order as purported in Jason’saffidavit”. Related to this, they say that, in deciding to grant the Order, the judge overlooked evidence that was before him because ofprevious proceedings.

They also invite this Court to conclude that the judge was misled by information provided to him by AgraCity, aproposition that they seek to support by referring to the evidence contained in James’s affidavit that they ask to be admitted pursuant toRule 59(1). [37] It is certainly true that FNA and James did not have the opportunity to present evidence and argument to the judge before theOrder was made. However, I do not see in this fact a reason to depart from the usual rule on the circumstances of this case.

In this regard,the purpose for the review hearing is for them to bring their evidence and argument before the judge so that he can assess if the Ordershould have been made at all, or on different terms. [38] I would add that this reasoning explains why FNA and James’s application under Rule 59 must be dismissed. While it is correctto say that it was not possible for them to have brought this evidence forward when the Order was made because they were not givennotice of the Application, they may do so at the review hearing.

Therefore, the admission of the evidence in this appeal would not affecttheir appeal from the Order at this time, which should await the judge’s determination after the review hearing. [39] FNA and James’s second submission is very much related to their first. They say that it is unfair to demand that the judgereconsider the grant of the Order because they are “not able to satisfy the requirements of the law” for him to set aside or vary hisprevious order.

In this regard, they refer to the decision of Tholl J. (as he then was) in Montgomery v Jahnke, 2017 SKQB 374, whichprovides guidance on the factors a court must consider before setting aside or varying its own order or judgment. Justice Tholl explainedthat the “inherent jurisdiction of the court with regard to setting aside judgment[s], declarations or orders obtained on the merits must beused sparingly and only in exceptional circumstances” (at para 29).

He referred to Toronto-Dominion Bank v Tymchak et al (1990), (SK KB), 85 Sask R 192 (QB), as providing examples of when it may be appropriate for a judge to set aside or vary ajudgment which was obtained based on evidence, stating as follows: [7] … Rather the domestic judgments now impugned must be viewed as judgments entered after a hearing at which evidence wasintroduced by both parties. The Queen’s Bench has an inherent power to set aside judgments: Royal Trust Company v. Jones et al. (1962), (SCC), 37 W.W.R. (N.S.) 1 (S.C.C.). It will do so in special circumstances.

For example, where a judgment has beenobtained by fraud the court will set it aside ex debito justitiae. Other categories include: lack of jurisdiction, irregularity, perjury and newevidence. … [40] However, Montgomery is distinguishable. It was concerned with when a judge can set aside or vary an order that was madeafter argument and evidence from both sides of a dispute.

It does not purport to prescribe the test that is to be applied when a judge iscalled upon to decide if an order that was made without notice to an affected party should be set aside or varied. [41] A review of an ex parte order is a hearing de novo. Its very purpose is to assess if the order should have been made at all.Although I have labeled it a review hearing, the judge conducting it is not bound in any way by the previous determination to grant theorder. This is the case whether the review hearing is held before the judge who originally granted the order or whether it occurs before adifferent judge.

In this regard, Dufour J. stated as follows in AgraCity Ltd. v Skinner, 2009 SKQB 362, 341 Sask R 240, aff`d 2013 SKCA7, 405 Sask R 284: [47] An application to set aside an ex parte order is a de novo hearing: Pulse Microsystems Ltd. v. SafeSoft Systems Inc. (1996), (MB CA), 110 Man. R. (2d) 163 (C.A.), para. 12. All of the evidence presented by both parties at the hearing, not just the

evidence that was presented in support of the ex parte application, is to be considered: Capitanescu v. Universal Weld Overlays Inc.(1996), (AB KB), 46 Alta. L.R. (3d) 203 (Q.B.); Canadian Derivatives Clearing Corp. v. EFA Software Services Ltd.,2001 ABQB 425, 294 A.R. 182. [42] Justice Barclay held the same in R.E.L. v J.G-S., 2000 SKQB 74 at para 28, 191 Sask R 204 [R.E.L.].

In doing so, he cited GulfIslands Navigation Ltd. v Seafarers’ International Union of North America (Canadian District) (1959), (BC CA), 18DLR (2d) 625 (BCCA) [Gulf Islands], for the principle that the judge “has [the] power to discharge the order” (quoting Gulf Islands) andheld that “the proper approach is to consider the law and facts de novo”.

This direction was affirmed by Finch J.A. in Bank of Credit andCommerce International (Overseas) Ltd. (Liquidator of) v Akbar, 2001 BCCA 204 at para 30, 86 BCLR (3d) 312, and by Dickson J.A. inMacLachlan v Nadeau, 2017 BCCA 326 at para 37, [2018] 3 WWR 231. [43] In Wilson v The Queen, (SCC), [1983] 2 SCR 594 [Wilson], McIntyre J., writing for the majority, canvassedthe approach for reviewing an ex parte order by both the original and a different judge.

He emphasized the authority of a judge to rescindan ex parte order previously granted and confirmed that the jurisdiction to do so is not that of an appeal or an application (at 607–608): … In civil matters, there is a body of jurisprudence which deals with the review of ex parte orders. There is a widely recognized rule thatan ex parte order may be reviewed by the judge who made it. In Dickie v.

Woodworth (1883), 1883 CanLII 51 (SCC), 8 S.C.R. 192,Ritchie C.J. said, at p. 195: The judge having in the first instance made an ex parte order, it was quite competent for him to rescind that order, on its being shown tohim that it ought not to have been granted, and when rescinded it was as if it had never been granted .... This view is reflected in the words of Mathers C.J.K.B. in the case of Stewart v. Braun, (MB KB), [1924] 3 D.L.R. 941(Man.

K.B.), at p. 945: But it frequently happens that Judges and judicial officers are called upon to make orders ex parte, where only one side is represented andwhere the order granted is not the result of a deliberate judicial decision after a hearing and argument.

An application to rescind or vary anex parte order is neither an appeal nor an application in the nature of an appeal and therefore the Judge or officer by whom such anorder has been made, has since the Judicature Act, as he had before, the right to rescind or vary it …. … The exigencies of court administration, as well as death or illness of the authorizing judge, do not always make it practical or possible toapply for a review to the same judge who made the order. There is support for the proposition that another judge of the same court canreview an ex parte order. See, for example, Bidder v.

Bridges (1884), 26 Ch.D. 1 (C.A.), and Boyle v. Sacker (1888), 39 Ch.D. 249 (C.A.)In the case of Gulf Islands Navigation Ltd. v. Seafarers’ International Union (1959), (BC CA), 18 D.L.R.(2d) 625(B.C.C.A.), Smith J.A. said, at pp. 626-27: After considering the cases, which are neither as conclusive nor as consistent as they might be, I am of opinion that the weight of authoritysupports the following propositions as to one Judge’s dealings with another Judge’s ex parte order:

(1) He has power to discharge theorder or dissolve the injunction; (2) he ought not to exercise this power, but ought to refer the motion to the first Judge, except in specialcircumstances, e.g., where he acts by consent or by leave of the first Judge, or where the first Judge is not available to hear the motion; (3)if the second Judge hears the motion, he should hear it de novo as to both the law and facts involved. (Emphasis added) [44] Although, in R v Garofoli, (SCC), [1990] 2 SCR 1421, the Supreme Court later reversed Wilson and, by sodoing, adopted the dissenting judgment in Wilson, neither that dissent nor the later decision in Garofoli took issue with the generalapproach to ex parte reviews as set out by McIntyre J.

There are many other cases that have confirmed that the review of an ex parte orderis a hearing de novo.

See, for example only: Canadian Derivatives Clearing Corp. v EFA Software Services Ltd., 2001 ABQB 425 atpara 39, 294 AR 182; PricewaterhouseCoopers LLP v Phelps, 2010 ONSC 1061 at paras 8–10 and 43; and Velsoft Training Materials Inc.v Global Courseware Inc., 2011 NSSC 274 at paras 18–19, 305 NSR (2d) 232. [45] Third, FNA and James submit that it is inappropriate to ask the judge to determine if the Order should be set aside or varied.They say that, to have him reconsider if the Order should have been made amounts, in effect, to a direction that he sit in appeal of his owndecision.

However, as Wilson describes, a review hearing is not in the nature of an appeal and the fact that the review hearing will occurbefore the same judge who granted the order is not a reason for this Court to decide this appeal.

To the contrary, there is nothing unusualor untoward about the same judge who granted the order in the first instance reconsidering the matter. [46] In Gresham, Vancise J.A. stated that while in the Court of Queen’s Bench (now the Court of King’s Bench), each judge has theauthority to set aside or vary ex parte orders previously made by other members of the court, “the recommended practise is [a] referenceto the judge who initially made the order” (at para 14). This was reiterated by Caldwell J.A. in Conexus Credit Union (at para 9).

See also:Pastuck at para 12; Gescan Limited v Westburne Industrial Enterprises Limited (1988), (SK KB), 70 Sask R 133 atpara 19 (QB); and R.E.L. at para 26.

In Gulf Islands at 627, Smith J.A. stated that if a request to rehear an order made ex parte comesbefore a judge other than the judge who made the order in the first instance, the second judge “ought not to exercise this power, but oughtto refer the motion to the first judge, except in special circumstances, e.g., where he acts by consent or by leave of the first judge, or wherethe first judge is not available to hear the motion”. [47] As these authorities show, the usual – indeed preferred – practice is that the review hearing be conducted by the same judgewho made the order in the first instance.

I see no reason to depart from that practice here. Apart from the fact that the judge made theOrder, his experience managing the litigation between the parties makes him uniquely situated to assess the importance of anything in therecord that FNA and James claim he overlooked, the additional evidence they want to bring forward, and the arguments they wish tomake in connection with all of this. [48] Lastly, FNA and James argue that it would save the parties time and money if this Court were to decide their appeal on its

merits. However, this proposition is overstated because, as their application to adduce James’s affidavit into this appeal shows, their invitation is for this Court to enter into an analysis of evidence and issues that were not presented to the judge. Were this Court to be the first to consider these materials, it would not be saving the parties time or money. Instead, it would serve simply to shift the costs of their presentation from proceedings in the Court of King’s Bench to proceedings in this Court.

Moreover, the transfer of these expenses would come at the cost of depriving the parties of a right to have their matters first determined on their merits in the Court of King’s Bench, with the associated right to have that court’s determination reviewed by this Court after its final decision has been rendered. [ 49 ] I would wrap up all of these points with a comment that overarches all of the others.

Were this Court to accept FNA and James’s invitation to decide their appeal on its merits before the review hearing is held, it would be acting in a way that is inconsistent with this Court’s role as one of reviewer that does not generally exercise first instance jurisdiction. [ 50 ] Considering all of this, I see no reason to depart from the usual practice that this Court should decline to consider this appeal against the Order because the review hearing has not been held. V. CONCLUSION [ 51 ] The Order was granted on an ex parte basis.

FNA and James had, and continue to have, the right to a review hearing, at which they may ask the judge to set aside or vary the Order . Because this hearing has not yet been held, it is appropriate that this appeal be dismissed. [ 52 ] I would grant to each of AgraCity and Jason one set of costs in relation to this appeal against FNA and James, on a joint and several basis. These costs are to be calculated in accordance with Column 3 of the Tariff of Costs in the Court of Appeal . “Leurer J.A.” Leurer J.A. I concur. “Tholl J.A.” Tholl J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.