6517633 Canada Ltd. Appellant (Plaintiff) v. Gibson Creek Farms Ltd., Hard Acres, 2023 SKCA 19

Court of Appeal for Saskatchewan Docket: CACV3804 Citation: 6517633 Canada Ltd. v Gibson Creek Farms Ltd. , 2023 SKCA 19 Date: 2023-02-01 Between: 6517633 Canada Ltd. Appellant (Plaintiff) And Gibson Creek Farms Ltd., Hard Acres Farms Inc. and 4 Lazy S Farms Ltd. Respondents (Defendants) Before: Leurer J.A. (in Chambers) Disposition: Appeal allowed in part Written reasons by: The Honourable Mr. Justice Leurer On appeal from: QBG 2037 of 2020, Regina Appeal heard: January 12, 2023 Counsel: Todd Parlee for the Appellant Stephen Schuck for the Respondents Leurer J.A. I.

INTRODUCTION [ 1 ] This appeal concerns the right of a landlord to terminate a lease of farmland before its expiry. [ 2 ] Gibson Creek Farms Ltd., Hard Acres Farms Inc. and 4 Lazy S Farms Ltd. [Tenants] were long-time tenants of farmland owned by 6517633 Canada Ltd. [Landlord]. In 2020, the Landlord applied for an order for a writ of possession under The Landlord and Tenant Act , RSS 1978, c L-6 . This request was rejected by a Court of Queen’s Bench judge in Chambers: 6517633 Canada Ltd. v Gibson Creek Farms Ltd. (9 March 2021) Regina, QBG 2037 of 2020 (Sask QB) [ Chambers Decision ].

In addition to dismissing the Landlord’s application, the Chambers judge made a substantial costs award against it. [ 3 ] The Landlord appeals from the Chambers Decision . I see no merit in its appeal from the order dismissing its application for a writ of possession. I agree with the Landlord, however, that the Chambers judge erred in making the costs award that he did. To this extent only, the Landlord’s appeal must be allowed. My reasons follow. II. BACKGROUND A.

The dispute [ 4 ] Although the landlord-tenant relationship predates this, most recently, the Landlord rented 13 quarter sections of farmland to the Tenants pursuant to a written lease dated February 20, 2020. The lease was for the 2020 and 2021 crop years and expired on November 30, 2021. This means that, by the time this appeal came before me, the lease had come to an end. [ 5 ] In 2020, that is during the first year of the lease, disagreements arose between the Landlord and the Tenants.

On July 20, 2020, the Landlord served a “Demand for Possession and Notice to Tenant of Intention to Apply for a Writ of Possession” dated July 17, 2020, in the form prescribed by The Landlord and Tenant Act [Demand for Possession]. The Demand for Possession referred to the Tenants’ alleged failure to “farm the farm land in a proper and husband like manner” and expressed the Landlord’s intention to apply for a writ of possession if the Tenants did not vacate the lands. [ 6 ] The Tenants requested particulars of the allegation that they had farmed the lands other than in a proper and husband-like manner.

They also advised the Landlord of its obligation to provide them with an opportunity to remedy any alleged breach, under s. 10(2) of The Landlord and Tenant Act . [ 7 ] The Landlord replied by letter dated July 24, 2020, which also threatened that a lawsuit would be commenced seeking early termination of the lease and damages. It further stated that the damages for which the Landlord intended to claim could be reduced if the Tenants took certain remedial steps, including if they, “in the next few days”, delivered “properly and reasonably cleaned up grain bins” located on the leased lands.

The Landlord followed this up with another letter, dated July 28, 2020, confirming that the Tenants could indeed store their grain in the bins, but only if they signed an agreement to terminate the lease effective October 15, 2021. [ 8 ] The Tenants responded on July 29, 2020. They refused to vacate the farmland and denied that they had breached the lease or had otherwise acted illegally.

They did, however, confirm that they would complete the cleanout of the grain bins located on the leased lands by August 7, 2020. [ 9 ] On October 14, 2020, the Landlord demanded that, within seven days, the Tenants spray six quarters of the leased lands with “Round up or another product containing glyphosate at a minimum of 1 liter per acre to control the Canada Thistle currently growing thereon”. The letter further advised that the Tenants’ failure to apply this herbicide would be considered by the Landlord “to be a breach of the current farmland lease requirements”.

[ 10 ] The next day, the Tenants arranged for the lands to be inspected by an agrologist, Chantal Bauche. Ms. Bauche later prepared a report that explained “why a post-harvest glyphosate application is not recommended”. She also described the suggestion that this herbicide be applied at this time as being “irresponsible”. Her reasons were largely based on her observation that, because the weather had turned, the weeds were no longer actively growing. Consistent with Ms.

Bauche’s advice, the Tenants did not spray the land with a glyphosate-based herbicide, as the Landlord had demanded. [ 11 ] The Landlord commenced these proceedings on December 2, 2020. In its originating application, it sought an order “cancelling” the lease and directing the Tenants to give up possession of the leased lands.

The parties commonly understand that this was a request for a writ of possession pursuant to s. 50 of The Landlord and Tenant Act . [ 12 ] The Landlord’s originating application stated that it was seeking “a declaration that the leasehold interest and charge on [the leased lands] has been effectively cancelled by the [Landlord] as a result of the non-husband like farming methods which the [Tenants] carried [ sic ] in their farming operation during the 2020 crop year”. [ 13 ] In support of its application, the Landlord filed several affidavits.

One, sworn by its principal, Stan Sheppard, appended as an exhibit a report that had been prepared for the Landlord by an agrologist, Marilyn Kot. Ms. Kot’s report related to the growth of Canada Thistle on the farmland, including as she found them on a site visit conducted on October 4, 2020. The Tenants filed several affidavits, including one sworn by Ms. Bauche and another by a different agrologist, largely based on Ms. Bauche’s report, but also replying to Ms.

Kot’s report. [ 14 ] In their response to the Landlord’s application, the Tenants asked not only that the Landlord’s application be dismissed, but that “solicitor client costs be awarded against the [Landlord] on a full indemnity basis in the amount of $25,933.70”. B. The Chambers Decision [ 15 ] The Chambers judge found that the Landlord had attempted to terminate the lease as early as its July 17, 2020 letter. The Chambers judge concluded that this letter failed to provide sufficient details to allow the Tenants to properly respond.

He also determined that these prior complaints did not relate to the breach that was finally alleged in the Landlord’s originating application, that is, the Tenants’ failure to apply a glyphosate-based herbicide. [ 16 ] The Chambers judge found that the only arguable breach of the lease was the Tenants’ failure to apply a glyphosate-based herbicide in the fall of 2020. He rejected the Landlord’s arguments that this justified the grant of a writ of possession.

In the result, the Chambers judge dismissed the Landlord’s application. [ 17 ] The Chambers judge also ordered that the Landlord pay $25,933.70 to the Tenants , which he characterized as the “necessary cost to respond to its application” (at para 28). In this appeal, the parties agree that this was an award of solicitor and client costs. III.

JURISDICTION AND ISSUES [ 18 ] At the time Landlord’s appeal was launched, s. 55 of The Landlord and Tenant Act provided that an appeal “from the order of the judge [of the Court of Queen’s Bench] granting or refusing a writ of possession” lies to a “judge of the Court of Appeal sitting in Chambers”. I note this only because s. 55 was amended after this matter was initiated, and now provides that such an appeal is “to the Court of Appeal” and not to a judge of this Court sitting in Chambers.

See: The Miscellaneous Statutes (Appeal Provisions) Amendment Act, 2021 , SS 2021, c 19 , s 18. [ 19 ] The Landlord challenges both the dismissal of its application for a writ of possession and the order of costs made against it. Although the lease has expired, it maintains that the question of whether a writ of possession should have been issued is still alive, because a finding that the Chambers judge erred in dismissing its application will affect the award of costs made against it. As I will explain, the outcome of the Landlord’s appeal is resolved by the answers to the following three questions: (

a) Did the Chambers judge err in finding that the Landlord had provided inadequate notice to the Tenants of their alleged breaches of the lease? (

b) Did the Chambers judge err by deciding the application based on affidavit evidence alone? (

c) Did the Chambers judge err in ordering that the Landlord pay solicitor and client costs? IV. ANALYSIS A.

Did the Chambers judge err in finding that the Landlord had provided inadequate notice to the Tenants of their alleged breaches of the lease? [ 20 ] According to s. 9(1) of The Landlord and Tenant Act , in every lease, “unless it is otherwise agreed, there shall be deemed to be included an agreement that … if default is made in the performance of any covenant or agreement on the part of the lessee, whether express or implied, and the default is continued for two calendar months, the landlord may at any time thereafter re-enter into and upon the demised premises, or any part thereof in the name of the whole, and again have, repossess and enjoy the premises as of his former estate”. [ 21 ] The right given in s. 9(1) is qualified by several other provisions of The Landlord and Tenant Act .

Most directly relevant in this appeal is s. 10, which provides in part as follows:

Restrictions on and relief against forfeitures of leases 10(2) A right of re-entry or forfeiture under a proviso or stipulation in a lease, for a breach of any covenant or condition in the lease otherthan a proviso in respect of the payment of rent, shall not be enforceable by action or otherwise, unless and until: (

a) the lessor serves on the lessee a notice specifying the particular breach complained of and if the breach is capable of remedy requiringthe lessee to remedy the breach, and, in any case, requiring the lessee to make compensation in money for the breach; and (

b) the lessee fails, within a reasonable time thereafter, to remedy the breach, if it is capable of remedy, and to make reasonablecompensation in money to the satisfaction of the lessor for the breach. Relief against forfeiture

(3) Where a lessor is proceeding by action or otherwise to enforce a right of re-entry or forfeiture, whether for non-payment of rent or forother cause, the lessee may in the lessor’s action, if any, or if there is no such action pending, then in an action brought by himself, orupon

summary application to a judge of the Court of Queen’s Bench, apply to the court or judge for relief.

(4) The court or judge may grant relief to the lessee who applies under subsection (3) and on such terms as to payment of rent, costs,expenses, damages, compensation, penalty or otherwise, including the granting of an injunction to restrain any like breach in the future, asit or he deems just having regard to the proceedings and conduct of the parties under the foregoing provisions of this

section and to all theother circumstances. [22] As can be seen from s. 10(2), a landlord seeking an early termination of a lease based on a breach of the lease’s term, other thanthe non-payment of rent, must provide to its tenant a notice identifying the specific breach that it alleges has occurred, and also extend tothe tenant an opportunity to remedy that breach.

By ss. 10(3) and 10(4), even if the tenant is in breach of the lease and proper notice isgiven to it, it may ask the court to grant relief “on such terms as to payment of rent, costs, expenses, damages, compensation, penalty orotherwise” as may be “just having regard to the proceedings and conduct of the parties … and to all the other circumstances”. [23] In McDougall v 101048690 Saskatchewan Ltd., 2004 SKCA 11 at para 29, 241 Sask R 116 [McDougall], Cameron J.A.described s. 9(1) as providing “a right of re-entry to determine the lease” and as “a right of re-entry or forfeiture” (emphasis in original).He further made clear that the process set out in The Landlord and Tenant Act must be followed prior to the determination or forfeiture ofthe lease, and that the right of a landlord to determine or forfeit the lease is directly related to the concomitant right of a tenant to requestthat the court grant relief against that forfeiture.

Although the breach in McDougall involved the non-payment of rent, Cameron J.A.distinguished the right of re-entry on that basis to that which is based on a breach of other covenants, in which case he stated that it was“incumbent on the landlord to give notice of the breach under subsection 10(2) so as to allow the tenant to cure the breach and avoid theforfeiture” (at para 38). [24] While McDougall was not decided on the basis of s. 10(2), it accords with jurisprudence from other provinces with similarlegislation.

In this regard the Chambers judge referred to the frequently cited decision in 780046 Ontario Inc. v Columbus Medical ArtsBuilding Inc. (1994), (ON CA), 118 DLR (4th) 609 (WL) (Ont CA). In that case, Laskin J.A. considered s. 19(2) of theLandlord and Tenant Act, RSO 1990, c L.7 (now the Commercial Tenancies Act), which is materially identical to s. 10(2) of The Landlordand Tenant Act. He explained the provision as follows: [23] Notice is a protection to the tenant.

Its purpose is to warn the tenant that its leasehold interest is at risk, and to give the tenant anopportunity to preserve that interest by remedying the breaches complained of, and, where necessary, by compensating the landlord.Because courts have not looked favourably upon the remedies of re-entry, forfeiture, and termination, they have insisted that landlordsstrictly comply with the notice requirement in s. 19(2) of the Act. See Ellis v. Breslin (1974), (ON SC), 2 O.R. (2d) 532(H.C.), and Mount Citadel Ltd. v. Ibar Developments Ltd. (1976), (ON SC), 14 O.R. (2d) 318 (H.C.), andKoumoudouros v.

Marathon Realty Co. (1978), (ON SC), 21 O.R. (2d) 97 (Div. Ct.). [24] Mr. Givertz submitted that the appellant can neither remedy the beaches nor provide adequate compensation because there hasbeen a breakdown of the good-faith relationship between the parties that can never be restored. I took his submission to mean that noticewas therefore unnecessary. I doubt that it is fair to conclude that the breaches alleged cannot be remedied, but even if that is so, it does notdo away with the notice requirement. In Mount Citadel Ltd. v.

Ibar Developments Ltd. supra, Estey C.J.H.C. said at p. 327: The notice requirement would seem to apply whether or not the breach is capable of remedy but is not free from doubt. However, thesection goes on to state, “... and, in any case requiring the lessee to make compensation in money for the breach ...”, which indicates alegislative intent to make the subsection applicable to all breaches whether capable of remedy or otherwise.

Justice Laskin found that the landlord’s failure to notify the tenants was fatal to their application for re-entry and did not merely afford thetenant a prima facie right to relief from forfeiture.

In this province, see also: Suffern Lake Regional Park Authority v Wildman, 2020 SKQB147; Embee Diamond Technologies Inc. v Prince Albert (City), 2018 SKCA 44, 74 MPLR (5th) 179; Subway Franchise Restaurants ofCanada Ltd. v Mattison, 2005 SKQB 339 at para 16, 268 Sask R 260; and Innes v Kotylak, 2018 SKQB 325 at paras 92–96. [25] In this case, the Chambers judge found that the Landlord had provided inadequate notice to the Tenants of their allegedbreaches of the lease, and thus failed to satisfy the requirements of The Landlord and Tenant Act.

I see no error in his conclusion on thisissue. [26] According to s. 10(2)(

a) of The Landlord and Tenant Act, a landlord must give notice of “the particular breach complained of”so the tenant can take steps to remedy it. Here, the Landlord’s notice on July 17, 2020, contained no particulars, other than to refer to theTenants’ alleged failure to “farm the farm land in a proper and husband like manner”. Given the vagueness of this statement in a context ofa lease involving 13 quarter sections of land, it is impossible to discern the farming practice or practices that the Landlord was calling intoquestion.

Accordingly, given this vagueness, there was also no possible way for the Tenants to have remedied any particular breach thatthe Landlord had in mind. The Landlord did not contend otherwise in this appeal.

[ 27 ] The Chambers judge entertained the possibility that the Landlord’s July 24, 2020 letter could be considered as providing the required particulars. In that letter, the Landlord referred to the presence of flax on land not subject to the lease, alleged “theft/vandalism/tampering” of farm equipment owned by the Landlord and referred to inadequacies as to how the Tenants had cleaned up grain bins that they had been permitted to use.

However, the Chambers judge concluded that these complaints were “wholly unrelated to the breaches set out in the landlord’s demand for possession as well as the landlord’s pleadings and materials” (at para 10). [ 28 ] I see no error in this analysis. As the Chambers judge determined, the concern expressed about flax being found on the Landlord’s land was in relation to “land not governed by this lease”. Similarly, the unproven allegations of criminal vandalism by the Tenants was, on the evidence at least, “totally unfounded” (at para 11).

The Landlord did not challenge the Chambers judge’s conclusion that these actions did not involve an allegation of a breach of the lease. As for the Tenants’ failure to clean up grain bins – the Tenants did exactly this after receiving the demand that it do so.

Therefore, even if the Tenants had breached the lease by not cleaning the bins, which seems doubtful at best, they cured that breach, obviating the ability of the Landlord to rely on this as a basis to seek its termination. [ 29 ] Lastly, and in any event, as the Chambers judge also observed, when the matter was brought forward into court, the Landlord did not plead any of these matters as providing a justification for terminating the lease and as a basis for the grant of a writ of possession.

The Landlord’s originating application stated that the lease had been “effectively cancelled by the [Landlord] as a result of the non- husband like farming methods which the [Tenants] carried in [ sic ] their farming operation”. These were particularized as relating to the Tenants’ failure to control Canada Thistle on the leased lands through the application of a glyphosate-based herbicide.

In this regard, the originating application provided the following “summary of the material facts”: 5. [The Landlord] says that the failure by the [Tenants] to take reasonable steps to control the Canada thistle on the property subject to the lease after clear notice from the [Landlord] is a breach of the basic requirement of all farm leases that the land be farmed in a husband like manner. 6.

The [Tenants] had a clear opportunity in the fall of 2020 after completion of their combining of the said lands to apply Roundup or a similar glyphosate product to control the Canada Thistle at a reasonable cost and chose not to do so. 7.

As a result of the failure by the [Tenants] to spray in the fall of 2020 they have created a severe limitation in the cropping options for the land in 2021. [ 30 ] These allegations relate to the Landlord’s October 14, 2020 demand that the Tenants spray six quarters of the leased lands with “Round up or another product containing glyphosate at a minimum of 1 liter per acre to control the Canada Thistle currently growing thereon”.

The Chambers judge rejected the Landlord’s request for a writ of possession based on this alleged breach for several independent reasons. [ 31 ] First, the Chambers judge determined that the notice given by the Landlord of this alleged breach of the lease was inadequate. He based this conclusion on several findings.

In this regard, he found that, on the evidence, it was “virtually impossible” for the Tenants to comply with the glyphosate herbicide demand because of sub-freezing temperatures and an early snowfall, making any such application impossible or at least fruitless, because it “would not do anything to control the Canadian [ sic ] thistle” (at para 16).

He also observed that the timing of the Landlord’s notice had made it impossible for the Tenants to have applied the herbicide at a time when it would have had agronomic effect: [17] As stated by the agrologist to the tenants, precipitation and above zero temperatures are required for a post-harvest application for glyphosate because there must be regrowth of volunteer grain and wheat to ensure the chemical is absorbed by the plant and translocated to its root. This was totally impossible by mid-October. [18] Had the issue been raised with the tenants in mid-September, it would, in all likelihood, have occurred.

Even so, because of the drought and insufficient regrowth to be effective, the chemical would just have been spraying on the dirt. The Chambers judge concluded that the Landlord’s “delay deprived the tenants of their ability to satisfy the requirement of the landlord and by s. 10(2) of [ The Landlord and Tenant Act ] the lease cannot be allowed to be terminated in a manner sought by the landlord” (at para 20).

Finally, he found that, since it was a cash lease situation, the Landlord’s revenue was unaffected whether weeds were controlled in the fall of 2020 or in 2021 and, since the lease did not expire until the end of the next farming season, there was “sufficient time in 2021 to make an application of glyphosate prior to expiration” of the lease (at para 21). [ 32 ] The Landlord did not identify a legal error in this part of the Chambers judge’s analysis. The Landlord is left to challenge the Chambers judge’s finding of fact. I can find no palpable and overriding error in his analysis of this issue.

In this regard, his conclusions are all well grounded in the evidence, including that given by the Tenants’ agrologists. Considering that the evidence of Ms. Kot, the Landlord’s agrologist, was based on a site visit some ten days before its October 14, 2020 notice, the Landlord had filed no evidence that stood in contradiction in the Tenants’ evidence on this point. [ 33 ] The Chambers judge gave other reasons why the Landlord could not terminate based on the Tenants’ failure to apply a glyphosate-based herbicide after receiving the October 14, 2020 demand.

As I read his reasons, he found there to be no implied term of the lease that fall glyphosate herbicide be applied. He also doubted whether the failure to apply glyphosate would, in the circumstances before him, constitute a breach of a more general implied term, such as to farm the land in a non-husband-like manner.

In regard to these matters, the Chambers judge observed that “no evidence was provided of it being in the lease and no evidence was provided of [the Landlord] having provided any earlier written notice to the tenants in this regard in spite of the numerous years during which they had farmed the land” (at para 19). He later added that there was no evidence “of anything in writing that would establish that this was, in fact, a condition of the lease nor constitute cultivation in a non-husband-like manner” (at para 22).

The Chambers judge also concluded that, in any event, “a fall application of glyphosate is preferred … it is not something that is done dogmatically” (at para 23, quoting from the Tenants’ memorandum of submissions). Finally, he noted that the evidence of the Tenants’ agrologist was that weeds were present, but “not in a high density across the entire field but concentrated in small local patches” (at para 27). [ 34 ] I see no need to examine whether any part of his analysis on these additional points contained error, because the Chambers

judge’s finding that the notice given by the Landlord of the Tenants’ alleged breach of the lease was inadequate was independently sufficient to justify his dismissal of the Landlord’s application. [ 35 ] For the foregoing reasons, the Chambers judge did not err in finding that the Landlord had provided inadequate notice to the Tenants of their alleged breach of the lease. B. Did the Chambers judge err by deciding the application based on affidavit evidence alone? [ 36 ] The Landlord asserts that the Chambers judge erred by deciding a complex matter, involving conflicting evidence, based on affidavits.

He says that a trial should have been ordered. [ 37 ] The Landlord and Tenant Act clearly “allows for

summary proceedings” ( McDougall at para 32 , emphasis in original). As stated by Cameron J.A. in McDougall , the “object is to allow for

summary proceedings geared toward the end of recovering possession of leased premises from tenants who wrongfully refuse to go out of possession, which is to say the main object is to provide a less complex, time consuming, and expensive mode of proceeding than would otherwise be required” (at para 32). See also Kuderewko v Kuderewko , 2020 SKCA 22 at para 18 . [ 38 ] All of this is evident from ss. 50 and 52, which state in material part as follows: Application to court against overholding tenant 50

(1) Where a tenant after his lease or right of occupation, however created, has expired or been determined, either by the landlord or by the tenant, by a notice to quit or notice pursuant to a proviso in any lease or agreement in that behalf, or has been determined by any other act whereby a tenancy or right of occupancy may be determined or put an end to, wrongfully refuses or neglects upon demand made in writing to go out of possession of the land demised to him or which he has been permitted to occupy, his landlord may apply by notice of motion to a judge of the Court of Queen’s Bench sitting at the judicial centre nearest to which the land or part of the land is situated for an order for a writ of possession directed to the sheriff acting at the judicial centre nearest to which the land or part of the land is situated commanding him forthwith to place the landlord in possession of the land. … In case of appearance 52

(2) If the tenant appears the judge shall, in a

summary manner, hear the parties and their witnesses, and examine into the matter, and if it appears to the judge that the tenant wrongfully holds against the right of the landlord and that the right to possession may properly be determined in a proceeding under this Part, he may order the issue of the writ. … Refusal of writ

(5) If the judge hearing the application finds that the tenant wrongfully holds against the right of the landlord but, nevertheless, is of opinion that the right to possession should not be determined in a proceeding under this Part, he may refuse the writ and the landlord may in that case proceed by action for the recovery of possession. (Emphasis added) [ 39 ] In this case, it is not clear to me that the Landlord argued before the Chambers judge that he should not decide matters before him based only on the affidavit evidence the parties had filed.

If this position was not taken before the Chambers judge, then this is a new argument first made in this appeal and it might be dismissed on that basis alone. See, generally: Meier v Saskatchewan Institute of Agrologists , 2016 SKCA 116 at para 28 , 405 DLR (4th) 506.

However, there is a more basic reason to reject it; that is, that there was no triable controversy on any material issue. [ 40 ] Although the Landlord identified several conflicts in the evidence, none of these had anything to do with the alleged breach that was referred to in its originating application; that is, the Tenants’ failure to apply a glyphosate-based herbicide. On that, while Ms. Kot reported on the growth of Canada Thistle on the farmland and spoke to the desirability of a fall application of glyphosate, it is evident from her report that this was based on a site visit on October 4, 2020.

As I have explained, given the timing of her visit, there is no contradiction between her report and the evidence from the Tenants’ agrologists. The Landlord’s factum effectively concedes this point when it states that there was a “significant snow fall after the October 14, 2020 notice which made it difficult at best or impossible at the worst for the [Tenants] to spray after that notice”. [ 41 ] Considering all of this, the Chambers judge did not err by deciding the application based on affidavit evidence alone. C.

Did the Chambers judge err in ordering that the Landlord pay solicitor and client costs? [ 42 ] As I have noted, the Chambers judge ordered that the Landlord pay to the Tenants $25,933.70. Although this monetary award was not expressly described by the Chambers judge as one of solicitor and client costs, before me, both parties took the position that this was the basis for it. The Landlord’s position is that the circumstances did not justify an order against it for solicitor and client costs.

The Tenants say that the Chambers judge’s “decision to award solicitor-client costs was reasonable and should be afforded deference”.

[43] Many cases have emphasized the broad discretion that trial courts have on matters of costs. The discretionary nature of a costsaward directly impacts the standard to be applied in any review of such an order.

To quote one of many authorities on this point, inWongstedt v Wongstedt, 2017 SKCA 100 at para 41, [2018] 4 WWR 82, Caldwell J.A. referred to Benson v Benson (1994), (SK CA), 120 Sask R 17 (CA), and noted that, because of the discretionary nature of a costs award, “the appellate court looks to seewhether the judge misapplied some governing principle or rule or disregarded some critical fact or other consideration or whether thecosts award is itself ‘so obviously unjust as to invite intervention’”.

See also: McNabb v Cyr, 2018 SKCA 51 at para 31; and Tysseland vTysseland, 2022 SKCA 39 at para 14. [44] Although I recognize the deference that is normally shown to an award of costs, the exceptional nature of an order of solicitorand client costs means that they “must not be awarded casually”, and “never without reasons as to why they are being awarded and anidentification of the conduct which is said to warrant them” (Hope v Pylypow, 2015 SKCA 26 at para 48, 384 DLR (4th) 255).

In thiscase, the Chambers judge gave no reasons why he made the order of costs that he did, other than to recite that they had made a claim forthe “necessary cost to respond” to the Landlord’s application (Chambers Decision at para 28). Within the principles that apply when arequest is made to make an order of solicitor and client costs, this statement constitutes no reasons at all. [45] The absence of any reasons for ordering solicitor and client costs requires me to consider the matter afresh.

In doing so, I beginwith a consideration of some basic principles. [46] While courts have a general discretionary jurisdiction to award costs, solicitor and client costs are reserved for exceptionalcircumstances: Strand v Gilewich, 2007 SKCA 34 at para 14, 293 Sask R 48. Appellate courts are “concerned to ensure that solicitor-client costs are awarded rarely” (Phillips Legal Professional Corporation v Vo, 2017 SKCA 58 at para 150, [2017] 12 WWR 779).Solicitor and client costs are justified only in “a relatively narrow set of circumstances” (Lynch v Hashemian, 2006 SKCA 126 at para 31,[2007] 2 WWR 52).

These were summarized by Jackson J.A. in Siemens v Bawolin, 2002 SKCA 84 at para 118, [2002] 11 WWR 246[Siemens]: 1. solicitor and client costs are awarded in rare and exceptional cases only; 2. solicitor and client costs are awarded in cases where the conduct of the party against whom they are sought is described variously asscandalous, outrageous or reprehensible; 3. solicitor and client costs are not generally awarded as a reaction to the conduct giving rise to the litigation, but are intended to censurebehaviour related to the litigation alone; 4. notwithstanding point 3, solicitor and client costs may be awarded in exceptional cases to provide the other party completeindemnification for costs reasonably incurred. [47] In this Court at least, the Tenants justified the award of solicitor and client costs due to both the Landlord’s conduct within thelitigation, and that which precipitated it.

I will consider both possibilities as providing a justification for the award made by the Chambersjudge, although I would reiterate that in doing so, I am undertaking an analysis that the Chambers judge did not carry out himself. [48] Beginning first with the Landlord’s conduct within the litigation, the Tenants referred to the Landlord bringing forward“frivolous and baseless” allegations.

However, while none of the Landlord’s arguments met with success before the Chambers judge, andmany may be described as being misconceived, I do not view any of them as being as scandalous, outrageous or reprehensible within anyordinary understanding of those terms. Certainly, I see nothing in the Chambers Decision that signifies that the Chambers judge had anyview as to the conduct of the Landlord other than that it brought forward arguments that he could not accept. [49] I also cannot see a justification for an order for solicitor and client costs based on the Landlord’s pre-litigation conduct.

AsSiemens describes, solicitor and client costs are awarded in rare and exceptional cases only. Since they are generally intended to censureconduct within the litigation, it must follow that they are even more rarely awarded for conduct that precipitates the litigation or otherwiseoccurs outside of its confines.

I see nothing that the Landlord did before the litigation was commenced that would meet this mark. [50] For these reasons, I would set aside the order for solicitor and client costs and substitute, in its place, an order that the Landlordpay the Tenants’ party and party costs in the Court of Queen’s Bench, taxed in the usual way. As part of this, the Tenants are entitled totheir experts’ fees in the amount of $3,150. [51] I have analyzed this ground of appeal by accepting the parties’ shared premise – that is, that the Chambers judge made an orderfor solicitor and client costs.

Several of the costs items he identified as the justification for the monetary award he granted might, moreproperly, have been considered as damages that the Tenants suffered by reason of the Landlord’s breach, or anticipated breach, of theTenants’ right to quiet enjoyment of the leased lands. I would not want these reasons to be understood as commenting on the Tenants’right to claim these expenses as damages, in the proper procedural context. V. CONCLUSION [52] For the reasons I have given, the Landlord’s appeal from the order dismissing its application for a writ of possession isdismissed.

The Landlord’s appeal from the order that it pay $25,933.70 to the Tenants is allowed. In its place, I substitute an ordergranting the Tenants their taxable costs in the Court of Queen’s Bench, which costs shall include their experts’ fees in the amount of$3,150. [53] Because there was divided success in this appeal, no party shall be entitled to costs in this Court. “Leurer J.A.” Leurer J.A.