Mann v Mann, 2023 SKCA 73

Court of Appeal for Saskatchewan Docket: CACV3986 Citation: Mann v Mann , 2023 SKCA 73 Date: 2023-06-22 Between: James Mann Appellant (Applicant) And Jason Mann Respondent (Respondent) And AgraCity Crop & Nutrition Ltd. Respondent (Defendant) Before: Caldwell, Leurer and Tholl JJ.A. Disposition: Appeal dismissed as abandoned Written reasons by: The Court On appeal from: QBG-SA-00948-2017 (Sask QB), Saskatoon Appeal heard: June 15, 2023 Counsel: James Mann on his own behalf Robert Hawkes, K.C. for Jason Mann Khurrum Awan and Allen Berriault for AgraCity Crop & Nutrition Ltd. The Court I.

Introduction [ 1 ] James Mann [James] appeals against a decision of a Court of King’s Bench judge sitting in Chambers: Mann v Mann (21 December 2021) Saskatoon, QBG-SA-00948-2017 (Sask QB) [ Chambers Decision ]. However, he has done nothing to move this appeal forward and has been summoned to show cause why this appeal should not be dismissed as abandoned. [ 2 ] This appeal meets the definition of an expedited appeal within the meaning of Rule 43(1) of The Court of Appeal Rules [ Rules ].

Also, it has been under case management, in which context James has been twice ordered to perfect his appeal by a specified date but, on both occasions, he has failed to do so. [ 3 ] We have concluded that James has not met the onus resting on him to show why his appeal should be allowed to proceed. His appeal must, therefore, be dismissed as abandoned. Our reasons follow. II. Background A. Proceedings in the Court of King’s Bench [ 4 ] The application giving rise to the Chambers Decision pertained to the calling and content of meetings of the directors of AgraCity Crop & Nutrition Ltd. [AgraCity].

James and his brother, Jason Mann [Jason], are equal shareholders in AgraCity. Both are also directors and officers of that corporation; Jason is its president while James is its secretary-treasurer. [ 5 ] In 2017, 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. of the Court of Queen’s Bench on July 19, 2017 [Danyliuk Order].

The Danyliuk Order was later affirmed by an order made by Gabrielson J. on December 21, 2017. [ 6 ] In substance, the Danyliuk Order preserves the status quo of the business arrangements between the brothers in relation to AgraCity and certain other entities they control while matters in dispute are litigated. One specific part of this is to leave Jason as “director and managing director of AgraCity” ( Chambers Decision at para 9). [ 7 ] Since the Danyliuk Order was made, James and Jason, and entities that each control, have been involved in litigation on many fronts.

The dispute that gave rise to this appeal is somewhat of a sideshow in the broader dissension between the two brothers. [ 8 ] AgraCity’s bylaws allow for a director to summon a meeting of that corporation’s directors. The application leading to the Chambers Decision arose after James began calling frequent directors’ meetings with extremely detailed agendas and also held what were purported to be meetings of AgraCity’s directors in Jason’s absence.

Jason’s view was that all of this amounted to conduct that was “oppressive or unfairly prejudicial to or that unfairly disregards” his interests in AgraCity, as those terms are used in s. 234(2) of The Business Corporations Act , RSS 1978, c B-10 . He applied for an order declaring this, as well as that directors’ meetings, purportedly held in his absence and any resolutions purportedly adopted at such meetings, were null and void.

[ 9 ] The Chambers judge found that there was nothing oppressive about the items that James had put on the agenda for the directors’ meetings he had requisitioned. However, the Chambers judge found the relationship between the brothers to be “tortured” (at para 17) and concluded that, in the context of the “toxic atmosphere” that existed between them, “it cannot be realistically expected that weekly or monthly directors’ meetings serve any purpose” (at para 19).

He found that in “the current operating situation, a call of meeting by James is oppressive to Jason as it defeats his reasonable expectation of his ability to manage operations in a timely and efficient fashion as directed by Danyliuk J.” (at para 20). [ 10 ] The Chambers judge also dealt with 24 directors’ resolutions passed at what James purported were valid directors’ meetings.

The Chambers judge described their overall effect to be to “serve to overturn the in-force orders made by Danyliuk J., Gabrielson J. and [him]self on these actions, which run to the heart of the court supervision of the current relationship between the parties” (at para 25). The Chambers judge found that “parties to an action can agree to have court orders not enforced if they so desire.

It is their action after all, but James purports to change the court orders by way of corporate resolutions without the consent of Jason and without any evidence that Jason had any notice of what was purportedly to be accomplished at these board meetings”. He determined that this was “oppressive conduct which attempts to use board of directors meetings as a means of achieving control over AgraCity and bypass the existing court actions between Jason and James”.

For this reason, he found it to be “just and equitable that a remedy be provided to prevent this from occurring in the future” (at para 25). [ 11 ] After making these and several other findings, the Chambers judge made a series of orders that provided for the holding of bi- monthly meetings of AgraCity’s board of directors, as well as for urgent business, declaring that any resolutions passed at directors’ meetings held in Jason’s absence to be of no force and effect and requiring Jason to provide James with certain reports given to Jason by AgraCity’s senior management. B.

Proceedings in this Court [ 12 ] As noted earlier, the Chambers Decision is dated December 21, 2021. On March 9, 2022, Richards C.J.S. granted an order extending the time for James to appeal from it. Although James’s notice of appeal alleges that the Chambers judge committed many errors, the grounds themselves contain few particulars. [ 13 ] James’s appeal came under the case management of Leurer J.A., along with several other appeals brought by James and entities he controls in relation to other orders made by judges of the Court of King’s Bench.

Justice Leurer allowed the appellants in all of these appeals to delay their prosecution to allow James to make an application to him for an order disqualifying Miller Thomson LLP from acting for a respondent in several appeals and in the Court of King’s Bench [CA Disqualification Application]. [ 14 ] The CA Disqualification Application was dismissed by Leurer J.A. on August 11, 2022: Mann v Mann , 2022 SKCA 94 . James applied for a review of Leurer J.A.’s decision on this point under s. 20(3) of The Court of Appeal Act, 2000 , SS 2000, c C-42.1 .

That application was dismissed by the Court: Mann v Mann (18 November 2022) Regina, CACV3505 (Sask CA). With this, Leurer J.A. resumed case management of the appeals. [ 15 ] While all this was taking place, James pursued an application in the Court of King’s Bench to disqualify Miller Thomson LLP from acting for one of the respondents in several actions [KB Disqualification Application]. The KB Disqualification Application was dismissed on October 3, 2022 [ KB Disqualification Decision ]. James appealed from the KB Disqualification Decision .

That appeal, which has been designated as CACV4091, also came under Leurer J.A.’s case management. [ 16 ] In a fiat dated December 13, 2022, in addition to addressing several other matters, Leurer J.A. reminded James that he had not filed a factum in this, and several other appeals, and indicated that he intended to discuss this at the next case management meeting.

By this time, there were nine separate appeals by James and entities that he controlled then pending in this Court, all under the case management of Leurer J.A. [ 17 ] At a case conference on January 25, 2023, and reiterated in a fiat issued the following day, Leurer J.A. scheduled the hearing of the appeal from the KB Disqualification Decision but also stated that the “parties should not assume that the scheduling of a hearing of CACV4091 means that I agree with the appellants’ submission that it is appropriate that all other appeals should effectively be stayed pending the outcome of that appeal” (at para 12).

He also “remind[ed] the appellants of their obligation to diligently prosecute all of these appeals” and that “each of these appeals is an expedited appeal, within the meaning of Rule 43”, which he then explained.

He also noted that he saw “no reason why the challenge that the appellants continue to mount to the involvement of Miller Thomson LLP affects their ability to fulfil this requirement, in relation to all of the appeals” (at para 13). [ 18 ] On February 21, 2023, Leurer J.A. ordered James to serve and file his appeal books in this appeal no later than 4:00 p.m. on March 31, 2023, unless this appeal was abandoned prior to that date.

James did not meet this deadline. [ 19 ] On April 24, 2023, Leurer J.A. granted James an extension of time to May 15, 2023, to perfect this appeal, so that it could be heard in conjunction with two other appeals on June 15, 2023. Justice Leurer also ordered that if James failed to meet this deadline, the hearing to be held on June 15, 2023, would be for the purposes of James showing cause as to why this appeal should not be dismissed because of delay. [ 20 ] James did not meet the May 15, 2023, deadline for perfecting this appeal.

Instead, on that day, he applied for an order under s. 20(3) to set aside Leurer J.A.’s case management order of April 24, 2023. This application was dismissed by a panel of this Court on June 6, 2023. III. Analysis [ 21 ] After a show cause hearing, an appeal will stand dismissed as abandoned unless the appellant has persuaded the Court that it is in the interests of justice that the appeal be allowed to proceed. The onus of persuasion in a show cause hearing is on the appellant.

[ 22 ] The principles to be applied in a context such as this are summarized in Maurice Law, Barristers & Solicitors v Sakimay First Nation , 2016 SKCA 92 , 484 Sask R 131 [ Maurice Law ], 6517633 Canada Ltd. v Norton (Rural Municipality) , 2019 SKCA 45 [ 6517633 Canada ], and Barth v McDougall Gauley LLP , 2022 SKCA 67 [ Barth ]. In the briefest of terms, James must satisfy us that it is in the interests of justice that this appeal be allowed to proceed. [ 23 ] There are two aspects to the analysis of whether this onus has been met.

First, the Court must assess the appeal to determine if it is “manifestly without merit” ( 6517633 Canada at para 16). If an appeal is manifestly without merit, “that is the end of the matter” and no further inquiry is required because “it is not in the interests of justice that an appeal that is destined to fail be allowed to continue” ( Barth at para 14 ).

On the other hand, where it cannot be said that the appeal is manifestly without merit, the Court is required to examine other factors to determine if it is in the interests of justice that the appeal be allowed to proceed. [ 24 ] In this case, most of James’s grounds of appeal attack the Chambers judge’s findings of fact. The palpable and overriding error standard will be applicable to these grounds.

Given this, and the general nature of the allegations of error of law found in James’s notice of appeal, we are left to conclude that the odds of James’s appeal succeeding on its merits are long. [ 25 ] Nonetheless, it is important to understand that the merits inquiry in a case like this is not a deep one. Its purpose is to save the parties, and the judicial system as a whole, from any further time and expense of an appeal that is destined to fail. Chief Justice Richards put this colourfully when he said that a show cause hearing is not a “dress rehearsal of the appeal proper” ( 6517633 Canada at para 14).

In Maurice Law , he said that show cause hearings are not “ major proceedings” and are intended to be “both to the point and expeditious” (at para 16). [ 26 ] Given the limits to the examination of the merits of an appeal in a context like this one, we are not able to conclude that James’s appeal is manifestly without merit.

This conclusion leads us to consider the second part of the applicable test. [ 27 ] Maurice Law and 6517633 Canada identify the same non-exhaustive list of considerations that the Court is likely to weigh and consider as bearing on the question as to whether it is in the interests of justice that the appeal be allowed to proceed, as follows (at para 14 and para 16, respectively): (

a) the adequacy of the appellant’s reason for the delay in moving matters forward; (

b) the extent, if any, that the respondent has expressed concern about the delay or attempted to have the appellant advance the appeal; (

c) the progress, if any, the appellant has made in preparing the materials necessary to perfect the appeal; (

d) whether, and the extent to which, the respondent has been prejudiced by the appellant’s failure to move the appeal forward or will be prejudiced if the appeal is allowed to proceed; and (

e) whether the appellant has the willingness and the capacity to comply with the deadlines that might be imposed by the Court in relation to the perfection of the appeal. [ 28 ] An examination of these factors, as well as accounting for the broader context that has brought this matter before us, leads us to conclude that it is not in the interests of justice that James be allowed to proceed with this appeal. [ 29 ] We begin our explanation of this conclusion by pointing out that James has not filed any evidence in support of his request that he be allowed to proceed with this appeal.

Instead, he offered oral submissions, which contained various assertions of fact as to his reasons why he did not perfect his appeal as required by the Rules and twice failed to meet the deadlines imposed by Leurer J.A. [ 30 ] A party seeking to show cause is expected to file evidence where they are relying on reasons that exist outside of what is apparent from the existing Court record. Nonetheless, we are prepared to accept James’s unsworn statements as evidence in this matter because (

a) the respondents did not object; (

b) at least some of what James has said is corroborated by matters that are in evidence before the Court; and (

c) even accepting James’s representations to be true in every respect, they do not provide a sufficient justification for his failure to perfect this appeal. We emphasize these three reasons for accepting James’s unsworn evidence to be clear that allowing James to proceed without actual evidence for his assertions is not intended by us to create a precedent to litigants who may find themselves in a similar situation in the future. [ 31 ] In his submissions, James emphasized that he has been willing to perfect his appeal and to comply with the deadlines set by Leurer J.A.

However, he said that he has been unable to do so. The reasons he gives for this are multiple, but may be summarized as falling within three broad categories: (

a) financial constraints on his ability to pay for staff and lawyers caused by the many orders under appeal; (

b) unexpected staff departures; and (

c) the competing demands placed on his own time, and the time of the staff and lawyers that he has been able to afford, caused by the many other court proceedings that exist between the parties. James advises that he now has the staff and resources to move ahead with this appeal, but that he has several matters that will occupy these resources over the next several weeks.

However, he says that, if the Court were to allow him more time to perfect this appeal, he could accomplish this task by mid-July, after he meets the filing deadlines that have been established to allow several other appeals to be heard in September of this year. [ 32 ] James’s submissions largely speak to the first and fifth considerations that bear on the interests of justice issue – that is, “the adequacy of the appellant’s reason for the delay in moving matters forward” and “whether the appellant has the willingness and the capacity to comply with the deadlines that might be imposed by the Court in relation to the perfection of the appeal”.

However, they do not address these considerations in a way that is persuasive to us. [ 33 ] James’s explanations for his past failures to perfect this appeal do not account for the fact that it has always been his responsibility, as the appellant, to file an appeal book and factum. He assumed this obligation the moment that he filed his notice of appeal. It strains credulity to suggest that sometime over the last 15 months these steps could not have been taken.

The fact that he was pursuing the disqualification of Miller Thompson LLP for part of this time is beside the point, since even were he to be successful in the ultimate outcome of that application, it would not affect his obligation to perfect this appeal. To the extent that James presents more recent demands on his time and resources as providing an explanation for his failure to perfect this appeal, his submissions ignore that he has

found the time and other resources to mount many different legal proceedings in this Court and in the Court of King’s Bench. [ 34 ] In other words, properly understood, James’s argument is not that he lacked the resources to meet the requirements imposed by the Rules and two Court orders to perfect this appeal. Instead, his submission reduces to the suggestion that it was in the interests of justice that he prioritized the other commitments that he faced ahead of those that related to the prosecution of this appeal. However, we are not persuaded by this reasoning.

We say this for two reasons. [ 35 ] First, notwithstanding that James says that he did not have the resources to perfect this appeal, in the last several months alone, he has initiated new proceedings in the Court of King’s Bench. James offered no explanation as to why these other proceedings are more important than this appeal. [ 36 ] Second, one of the proceedings that James initiated after the April 24, 2023, order of Leurer J.A. was made was an application to review that order itself. This review application was filed on May 15, 2023, that is, the deadline date for the perfection of this appeal.

James is not to be punished or penalized for exercising his right to request a review of that order.

However, the fact that he had the time and resources to dedicate to what amounts to an appeal from it, speaks against his contention that he did not have sufficient resources to commit to perfecting this appeal. [ 37 ] Considering all of this, James’s explanations for his failure to perfect this appeal contribute little to the suggestion that it is in the interests of justice that his appeal be allowed to move forward. [ 38 ] The second factor that bears on whether it is in the interests of justice to allow a stale appeal to move forward is “the extent, if any, that the respondent has expressed concern about the delay or attempted to have the appellant advance the appeal”.

Here, both Jason and AgraCity have consistently attempted to press ahead with this and the other outstanding appeals. [ 39 ] The third factor is “the progress, if any, the appellant has made in preparing the materials necessary to perfect the appeal”. Here, nothing has been done.

Even after James’s application to review the April 24, 2023, order was dismissed, James has not taken even the minimal step of filing an appeal book in relation to this appeal. [ 40 ] The fourth factor is “whether, and the extent to which, the respondent has been prejudiced by the appellant’s failure to move the appeal forward or will be prejudiced if the appeal is allowed to proceed”. Here, James’s continued procrastination has caused the respondents to incur additional expenses associated with appearing and speaking to this matter at multiple case management conferences and now the show cause hearing.

These expenses could be compensated for in an order for costs, although the award would need to be at an amount that exceeded the normal tariff to make the respondents whole. [ 41 ] The fifth factor is “whether the appellant has the willingness and the capacity to comply with the deadlines that might be imposed by the Court in relation to the perfection of the appeal”. James tells us that, if he is given a further extension, he is prepared to commit to filing appeal books and a factum by a date in mid-July.

However, as we have reviewed, on December 13, 2022, and January 25, 2023, James was reminded that the Rules required him to perfect this appeal, but he did not do so. On February 21, 2023, he was ordered to do so by March 31, 2023. Notwithstanding that he missed this deadline, he was given a second opportunity to perfect his appeal by the order dated April 24, 2023. It was only after the failure to meet these deadlines that James was summoned to show cause why this appeal should not be dismissed because of delay. Given this history, we are unconvinced that, if a new deadline is set, James will meet it.

However, this history is of significance for a reason that goes beyond whether he would meet a new deadline, should he be given a further extension of time. [ 42 ] The five factors referred to in Maurice Law and 6517633 Canada are not exhaustive of the considerations that may bear on whether it is in the interests of justice that an appeal be allowed to proceed when there is delay.

An additional factor at play in this case is that James has not only failed to comply with the requirement in the Rules to perfect his appeal, but he has twice failed to do so in the face of orders that he do so. [ 43 ] The “ proper administration of justice requires that individuals involved in litigation before this Court move matters forward with reasonable dispatch and, more importantly, that they move matters forward as directed by orders of the Court ” ( Thiessen v Hoknes , 2014 SKCA 65 at para 13 , 438 Sask R 226, emphasis added). This is an important consideration in the context of this case.

If this Court were to ignore the fact that James has not once, but twice, failed to meet an ordered deadline for perfecting this appeal, it will foster the view that court orders may be ignored with impunity. This weighs heavily against his request that he be given yet more time to perfect his appeal. [ 44 ] The final matter of which we take note is the importance of this appeal. Because the orders made in this appeal do not lie at the heart of the issues that divide James and Jason, the disposition of this appeal is unlikely to affect the substantive rights between them in a material way.

This perhaps explains why James has failed to attach any urgency to the prosecution of it. The relative insignificance of this appeal therefore mitigates against allowing this appeal to go forward. [ 45 ] Considering all these matters cumulatively, we are satisfied that it is not in the interests of justice that James be allowed to proceed with this appeal. IV. Conclusions [ 46 ] James has not met the onus resting on him to show why his appeal should be allowed to proceed. His appeal must, therefore, be dismissed as abandoned. [ 47 ] Jason and AgraCity are both entitled to the costs of this appeal.

We would fix these costs at $2,000 for each respondent. “Caldwell J.A.” Caldwell J.A.

“Leurer J.A.” Leurer J.A. “Tholl J.A.” Tholl J.A.