Court of Appeal for Saskatchewan Docket: CACV4086 Citation: A.C. Forestry Ltd. v Big River First Nation , 2023 SKCA 96 Date: 2023-08-18 Between: A.C. Forestry Ltd. Appellant (Applicant/Respondent) And Big River First Nation Respondent (Respondent/Applicant) Before: Richards C.J.S., Jackson and Drennan JJ.A.

Disposition: Appeal allowed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice Drennan On appeal from: QBG-SA-00350-2021 (Sask KB), Saskatoon Appeal heard: May 1, 2023 Counsel: Mark Ebert for the Appellant Glenn MacKay for the Respondent Jackson J.A. I. Introduction [ 1 ] This appeal concerns when it is appropriate to grant a

summary judgment with respect to part of an action. [ 2 ] On an application made by A.C. Forestry Ltd. [A.C. Forestry] to summarily dismiss an action brought by Big River First Nation [Big River], a King’s Bench Chambers judge granted Big River part of what it had been claiming in its action: Big River First Nation v A.C. Forestry Ltd. (27 September 2022) Saskatoon, QBG-SA-00350-2021 (Sask KB) [ Chambers Decision ]. The effect of the Chambers Decision was to accord Big River a partial

summary judgment. A.C. Forestry appeals from the Chambers Decision . [ 3 ] For the reasons that follow, I have concluded that the Chambers judge erred by granting a

summary judgment on a partial basis in the circumstances of this case. II. Background [ 4 ] The exact nature of the relationships between the parties remains contested. Given this, I will say as little as possible about the evidence. That said, the essential background may be described briefly. [ 5 ] A.C. Forestry has three shareholders: (

a) Big River, which owns 500 Class “A” common shares; (

b) Pelican Lake First Nation [Pelican Lake], which owns 500 Class “A” common shares; and (

c) Witchekan Lake First Nation [Witchekan Lake], which owns 500 Class “A” common shares. [ 6 ] Neither Pelican Lake nor Witchekan Lake were parties to the appeal, nor were they parties to the application that was made in the Court of King’s Bench. I will refer to Big River, Pelican Lake and Witchekan Lake collectively as the Member Nations. [ 7 ] Up until 2020, A.C.

Forestry had been allocating the proceeds from the harvesting of timber [timber royalties] on a per capita basis to the Member Nations according to what is now a contested Royalty Agreement between it and the Member Nations. [ 8 ] The Royalty Agreement is a two-page document entitled “Agreement between A.C. Forestry Ltd. and Big River First Nation, Pelican Lake First Nation, Witchekan Lake First Nation, dated October 26/2010”.

The Royalty Agreement reads, in its entirety, as follows: This agreement is to establish the process in which Royalties (monies that are generated by the sale of the FMA Allocation timber) are distributed to the above named First Nations. – All Royalties that are generated in a full harvest year, April 1 to March 31, will be accounted for in a separate bank account with AC Forestry (separate from regular operations account). These Royalties will be used for disbursements to the above-stated First Nations only, unless directed to do so by the A.C.T.C.

Board of Directors . – These Royalties shall be paid out three times per harvest year, once on July 1 of each harvest year, once on November 1 of each harvest

year and the remaining amounts fully paid out on March 31 of each harvest year. – The per capita pay out of Royalties shall be as follows: each year AC Forestry Ltd. will acquire from the First Nations and Métis Relations Department (the Government of Saskatchewan) numbers of the above-stated First Nations membership for the previous year (this is the same distribution formula used to distribute S.I.G.A.

Dollars). – AC Forestry will forward per capita Royalties by cheque and the First Nations agree to send confirmation of the receipt of the said Royalties. (Emphasis added) [ 9 ] The Royalty Agreement appears to indicate that it was signed on November 8, 2010.

There are five signatories and one witness, but neither the names nor the status of the individuals who signed the Royalty Agreement appear on it. [ 10 ] It will be noted that, in addition to providing for a per capita distribution, the Royalty Agreement also indicates that timber royalties will be used for disbursements to the Member Nations only “unless directed to do so by the A.C.T.C. Board of Directors”. This latter reference is to the Board of Directors of the Agency Chiefs Tribal Council [Agency Chiefs].

As of 2020, Big River was a member of the Agency Chiefs. [ 11 ] In a letter dated March 9, 2020, legal counsel for the Agency Chiefs informed Big River that the timber royalties for the period between April 1, 2020, and March 31, 2021, were to be paid to the Member Nations in equal shares, rather than on a per capita basis. [ 12 ] Big River has the largest population of the Member Nations. Given this, it received the largest share of the timber royalties under a per capita distribution.

Its revenues were significantly reduced by the decision of the Agency Chiefs to pay the timber royalties according to the amount of shares each Member Nation holds. [ 13 ] Big River accepted its reduced allocation of the timber royalties under protest and commenced legal proceedings, which leads now to the appeal before this Court. III.

Procedural history [ 14 ] On March 26, 2021, and March 31, 2021, Big River applied in the Court of Queen’s Bench by way of two originating applications, both of which asked for an order “confirming that the payments are to be made on a per capita basis” and not on an equal one-third basis. The fact that there were two originating applications, rather than one, is an irrelevant consideration for the purposes of the appeal.

It is mentioned here because of the references by the parties and the Chambers judge to the fact of there being two applications. [ 15 ] On May 18, 2021, the originating applications were heard by the Chambers judge who directed that there will be a trial of the issues raised in them. [ 16 ] On September 7, 2021, however, A.C. Forestry applied pursuant to Rules 7-2 and 7-5 of The Queen’s Bench Rules for (

a) an order that Big River’s “Originating Applications” be summarily dismissed, and (

b) a declaration that the Royalty Agreement is “unenforceable and void ab initio”. [ 17 ] Big River did not file an application asking for

summary judgment in its favour. Rather, in its brief of law, dated February 11, 2022, it asked for the relief it had requested in the originating applications, i.e., a determination that it is entitled to a per capita distribution of the timber royalties. In the alternative, it requested that the Court “direct this action to pre-trial and trial to allow for full and proper disclosure”. IV. Chambers Decision [ 18 ] The Chambers judge reviewed Rules 7-2 and 7-5 of The Queen’s Bench Rules with respect to granting

summary judgments. He also considered Hryniak v Mauldin , 2014 SCC 7 at para 49 , [2014] 1 SCR 87 [ Hryniak ], and Tchozewski v Lamontagne , 2014 SKQB 71 at para 30 , [2014] 7 WWR 397 [ Tchozewski ]. He squarely placed the application in the context of

summary judgments. [ 19 ] The Chambers judge then described the issues as follows ( Chambers Decision ): [16] The central issue in dispute is whether the Agreement is valid and enforceable. ACF [A.C. Forestry] says that it is neither. More particularly, ACF takes the position that the Agreement was not properly executed and there was no consideration paid to [Pelican Lake] and [Witchekan Lake] for the Agreement.

Thus, the Agreement is not valid. [17] Alternatively, ACF argues that even if the Agreement is valid, it violates the statutory and common law rule that equal shareholders share equally in dividends declared by the corporation and is thus unenforceable. [ 20 ] The Chambers judge went on to split his analysis into two parts, considering first whether the Royalty Agreement was valid and then whether it was enforceable. On the question of validity, he reviewed the parties’ arguments regarding the execution of the Royalty Agreement and the consideration given by the Member Nations for entering into it.

In accordance with his analysis on these two points, he concluded that no trial was necessary to resolve the question of the Royalty Agreement’s validity. [ 21 ] With respect to the enforceability of the Royalty Agreement, he determined that, on the evidence before him, he could not resolve whether a per capita distribution was contrary to The Business Corporations Act , RSS 1978, c B-10 or “the common law principle that equal shareholders share equally in dividends” ( Chambers Decision at para 33).

He summed up his conclusion in this way: “I find that the Agreement is valid but its enforceability cannot be determined on the evidence presented. [A.C. Forestry’s] application for

summary

judgment is therefore dismissed but without prejudice to either party to reapply” (at para 34). [ 22 ] The formal order taken out to reflect the Chambers Decision reads as follows: This Honourable Court hereby orders: l. That A.C. Forestry’s application for

summary judgment is dismissed, without prejudice to either party to reapply; 2. That the royalty agreement made in October 2010 between Big River, Pelican Lake First Nation and Witchekan Lake First Nation is a valid agreement and no trial is necessary to resolve the question of the agreement’s validity; 3. That the enforceability of the royalty agreement made in October 2010 between Big River, Pelican Lake First Nation and Witchekan Lake First Nation cannot be determined on the evidence presented; and 4. That Big River shall receive one set of costs in any event of the cause. V. Analysis A. A.C. Forestry’s arguments [ 23 ] In its factum, A.C. Forestry puts these points in issue: (

a) Did the Learned Chambers Judge err in granting partial

summary judgment; (

b) Did the Learned Chambers Judge err in finding the 2010 Agreement was properly executed; (

c) Did the Learned Chambers Judge err in finding the 2010 Agreement was valid despite being unable to determine if the 2010 Agreement involves trust property; and (

d) Can this Honourable Court find that the 2010 Agreement is invalid? [ 24 ] Since I have concluded that the Chambers judge erred by granting partial

summary judgment, it is unnecessary to consider issues (b), (

c) or (d). They are subsumed in the process of answering point (

a) in the affirmative. It should be noted that A.C. Forestry does not appeal the Chambers judge’s decision to dismiss its application for

summary judgment. [ 25 ] The only question on appeal is, Did the Chambers judge err by granting Big River partial

summary judgment with respect to its originating actions? [ 26 ] I will now proceed to provide my reasons indicating why I have answered that question affirmatively. B. Partial

summary judgment should not have been granted in this case 1. Procedural considerations [ 27 ] A complicating feature of this appeal is that neither A.C. Forestry nor Big River expressly asked for partial

summary judgment. However, in fairness to the Chambers judge, as I have indicated, A.C. Forestry applied for (

a) an order that Big River’s application be summarily dismissed and (

b) a declaration that the Royalty Agreement is unenforceable and void ab initio . Further, A.C. Forestry cast its arguments in the alternative: (

a) find the Royalty Agreement invalid or (

b) find the Royalty Agreement unenforceable. [ 28 ] To be clear, A.C. Forestry was entitled to argue that there was no genuine issue for trial on the question of whether the Royalty Agreement was invalid or unenforceable. If no genuine issue existed to send either issue to trial, A.C. Forestry would have been granted

summary dismissal of Big River’s actions. However, by introducing the notion that it was requesting a declaration, i.e., a final disposition on those questions, and making alternative arguments in the way it did, A.C. Forestry blurred the lines of what it was seeking. [ 29 ] Big River added its own procedural complication. As indicated, it did not make a formal application for

summary judgment with respect to its originating applications. Rather, it put such a request in its written submissions. In other words, Big River sought a determination that the Royalty Agreement was valid or enforceable not solely as a means of defeating the application for

summary dismissal, but as a means of obtaining the relief it had sought in its originating applications – without having complied with

Part 7 of The Queen’s Bench Rules . [ 30 ] There is nothing on the record saying that the parties agreed to Big River’s relaxed procedure of using its submissions to obviate the necessity of bringing its own application or that the parties had agreed on a partial resolution of their dispute. A.C. Forestry’s application for

summary dismissal of Big River’s actions was the only matter before the Chambers judge. [ 31 ] The procedural problems go deeper than this. On the face of the Chambers Decision , one might be able to argue that, in response to the confusing nature of what had been presented to him, the Chambers judge was in fact invoking the authority of Rule 7-1. However, the Chambers judge did not advert to that rule. Further, on appeal, the parties did not suggest that what they had placed before the Chambers judge was in reality or effect an application to dispose of an issue under Rule 7-1. The appeal was argued only on the question of whether the Chambers judge erred by granting a partial

summary judgment on the issue of validity. This is the basis upon which I have approached the resolution of this appeal. 2. Principles to apply

[ 32 ] Rules 7-2 and 7-5(6) of The Queen’s Bench Rules permit a court to grant

summary judgment with respect to any or all issues or matters in dispute: Application for

summary judgment 7-2 A party may apply, with supporting affidavit material or other evidence, for

summary judgment on all or some of the issues raised in the pleadings at any time after the defendant has filed a statement of defence but before the time and place for trial have been set. Disposition of application 7-5

(6) If the Court is satisfied there are one or more genuine issues requiring a trial, the Court may nevertheless grant

summary judgment with respect to any matters or issues the Court decides can and should be decided without further evidence. [ 33 ] In Tchozewski , Barrington-Foote J., as he then was, confirmed that, following Hryniak , the possibility of partial

summary judgment is one of the questions to be asked in determining the appropriate order on a

summary judgment application: [31(5)] … The relevant factors may include, but are not limited to: … (

h) whether the application could dispose of an important claim against a key party, thereby reducing cost and delay. This Court adopted Tchozewski in Holmes v Jastek Master Builder 2004 Inc. , 2019 SKCA 132 at para 82 , [2020] 6 WWR 386 . The Court in Holmes also commented that “a

summary judgment need not address the entire claim” (at para 192). [ 34 ] Nonetheless, in Hryniak , the Supreme Court sounded a note of caution about the use of the new fact-finding powers to grant partial

summary judgment. Justice Karakatsanis wrote on this issue: [60] The “interest of justice” inquiry goes further, and also considers the consequences of the motion in the context of the litigation as a whole. For example, if some of the claims against some of the parties will proceed to trial in any event, it may not be in the interest of justice to use the new fact-finding powers to grant

summary judgment against a single defendant. Such partial

summary judgment may run the risk of duplicative proceedings or inconsistent findings of fact and therefore the use of the powers may not be in the interest of justice. [ 35 ] Since the advent of the expanded

summary judgment powers for trial courts, and most notably since Hryniak , courts in Canada, particularly the Ontario courts, have written extensively about when it may or may not be appropriate to render

summary judgment in a partial fashion. In that regard, the parties directed the Court’s attention to the following decisions: Baywood Homes Partnership v Haditaghi , 2014 ONCA 450 , 120 OR (3d) 438; Butera v Chown, Cairns LLP , 2017 ONCA 783 , 418 DLR (4th) 657 [ Butera ]; Service Mold + Aerospace Inc. v Khalaf , 2019 ONCA 369 , 146 OR (3d) 135 [ Service Mold ]; O ntario Securities Commission v Money Gate Mortgage Investment Corporation , 2020 ONCA 812 at para 63 , 153 OR (3d) 225; and Malik v Attia , 2020 ONCA 787 , 29 RPR (6th) 215 [ Malik ]. Given the similarity between the Ontario and Saskatchewan

summary judgment rules, the Ontario jurisprudence is relevant law. I will refer specifically to passages from Butera , Service Mold and Malik . [ 36 ] In Butera , the Court reviewed its prior jurisprudence and indicated what it perceived to be the problems with granting partial

summary judgment: [30] First, such motions cause the resolution of the main action to be delayed. Typically, an action does not progress in the face of a motion for partial

summary judgment. A delay tactic, dressed as a request for partial

summary judgment, may be used, albeit improperly, to cause an opposing party to expend time and legal fees on a motion that will not finally determine the action and, at best, will only resolve one element of the action. At worst, the result is only increased fees and delay. There is also always the possibility of an appeal. [31] Second, a motion for partial

summary judgment may be very expensive. The provision for a presumptive cost award for an unsuccessful

summary judgment motion that existed under the former

summary judgment rule has been repealed, thereby removing a disincentive for bringing partial

summary judgment motions. [32] Third, judges, who already face a significant responsibility addressing the increase in

summary judgment motions that have flowed since Hryniak , are required to spend time hearing partial

summary judgment motions and writing comprehensive reasons on an issue that does not dispose of the action. [33] Fourth, the record available at the hearing of a partial

summary judgment motion will likely not be as expansive as the record at trial, therefore increasing the danger of inconsistent findings. [34] When bringing a motion for partial

summary judgment, the moving party should consider these factors in assessing whether the motion is advisable in the context of the litigation as a whole. A motion for partial

summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manne r. Such an approach is consistent with the objectives described by the Supreme Court in Hryniak and with the direction that the Rules [ of Civil Procedure , RRO 1990, Reg 194 ] be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits. [35] Lastly, I would observe the obvious, namely, that a motion for partial

summary judgment differs from a motion for

summary judgment. If the latter is granted, subject to appeals, it results in the disposal of the entire action. In addition, to the extent the motion judge considers it advisable, if the motion for

summary judgment is not granted but is successful in part, partial

summary judgment may be ordered in that context. [ 37 ] In Butera , the motions judge had granted the applicants a partial

summary judgment on the issue of misrepresentation. The effect of the decision was to leave claims for negligence and breach of contract for trial. The Court of Appeal allowed the appeal, saying

that the motions judge had not considered the effect of partial judgment on the litigation as a whole, including the possibility of“inconsistent results” (at para 38). [38] Clearly, what was said in Butera reinforces the caution expressed in Hryniak about the use of the

summary judgment processwhen only partial relief will be granted. This has been a consistent theme in the Ontario jurisprudence. [39] Thus, in Service Mold, the Court of Appeal allowed an appeal from a decision granting partial judgment and confirmed whathad been said in Butera, adding its own comments: [14] The principles that guide whether partial

summary judgment is appropriate are, however, more complex than those that apply tosummary judgment motions generally. In Hryniak [v. Mauldin, 2014 SCC 7 , [2014] 1 S.C.R. 87, [2014] S.C.J. No. 7], atpara. 60, Karakatsanis J. recognized that partial

summary judgment may “run the risk of duplicative proceedings or inconsistent findingsof fact” at trial. There is also the risk that partial

summary judgment can frustrate the Hryniak objective of using

summary judgment toachieve proportionate, timely and affordable justice. If used imprudently, partial

summary judgment can cause delay, increase expenseand increase the danger of inconsistent findings at trial made on a more complete record: Butera v. Chown, Cairns LLP (2017), 137 O.R.(3d) 561, [2017] O.J. No. 5267, 2017 ONCA 783, at paras. 29–33. These risks, which require careful consideration by motion judges,were known before Hryniak and Butera, as illustrated by this court’s decision in Corchis v. KPMG Peat Marwick Thorne, [2002] O.J. No.1437, [2002] O.T.C. 475 (C.A.), at para. 3. For this reason, while partial

summary judgment has its place, it “should be considered to be arare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealtwith expeditiously and in a cost effective manner”: Butera, at para. 34. (Emphasis added) [40] Then, in Malik, the Court of Appeal offered this additional guidance about how and when partial

summary judgment should begranted: [61] Yet, the risk of inconsistent findings is only one of several matters that a motion judge must consider when asked to entertain amotion for partial

summary judgment. Reduced to its essence, the decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87promoted

summary judgment as a procedural tool that offers the prospect, when used in the right circumstances, to provide litigants withtimely and affordable access to the civil court system: at paras. 2–5. Given that simple objective, before embarking on hearing a motionfor partial

summary judgment a motion judge must determine whether, in the circumstances, partial

summary judgment will achieve theobjectives of proportionate, timely, and affordable justice or, instead, cause delay and increase expense: Butera v. Chown, Cairns LLP,2017 ONCA 783, 137 O.R. (3d) 561, at paras. 29–34; Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, 146 O.R. (3d) 135, atpara. 14. [62] When faced with a request to hear a motion for partial

summary judgment, a motion judge should make three simple requests ofcounsel or the parties: (

i) Demonstrate that dividing the determination of this case into several parts will prove cheaper for the parties; (ii) Show how partial

summary judgment will get the parties’ case in and out of the court system more quickly; (iii) Establish how partial

summary judgment will not result in inconsistent findings by the multiple judges who will touch the dividedcase. [41] In Malik, a Chambers judge had granted partial

summary judgment on the issue of liability, leaving the issues of forfeiture anddamages to the trial judge. On appeal, the Court of Appeal found that the “risk of inconsistent verdicts or findings” were minimal (atpara 63). However, by applying for partial

summary judgment, the respondent on the appeal had increased “the overall costs of litigatingthis case and delay” (at para 63) and had employed a procedure that was disproportionate to the amount of money involved, i.e., $100,000.The Court of Appeal expressed its disapproval of the use of the

summary judgment process in this context but went on to dismiss theappeal, nevertheless saying, “To set aside the judgment solely on the basis that the process added cost and delay would, in its own turn,only add more cost and delay” (at para 67): see also Stanley v Lucchese, 2023 ONCA 357 at para 31, where on a proposed application toextend the time to appeal from a partial

summary judgment, the Chambers judge stated that adding to the cost and length of theproceeding would not justify appellate intervention. [42] I adopt the cautious approach taken by the Ontario Court of Appeal as outlined in the above decisions. While not the onlyfactors to consider, as Butera demonstrates, the key factors in determining whether partial

summary judgment should be granted are (a)whether there is a risk of duplicative or inconsistent findings at trial, (

b) whether making a partial order is advisable in the context of thelitigation as a whole, and (

c) whether there will be any saving of costs or time. [43] These questions dovetail with the roadmap set out in Tchozewski at paragraph 31 for considering whether to grant

summaryjudgment, which includes an assessment of the following factors: (a) “whether better evidence will be available at trial than on the application” (at para 31(5)(e)). (b) “whether

summary judgment would resolve all claims against all parties, or whether a trial will be necessary in any event,raising, among other things, the possibility of duplicative proceedings or inconsistent findings of fact” (at para 31(5)(g)); and (

c) whether “cost and delay” would be reduced (at para 31(5)(h)). Tchozewski also requires the Chambers judge to “consider proportionality in the context of the litigation as a whole” (at para 31(5)), whendeciding whether there is a genuine issue requiring trial. [44] Having said that, there is no prohibition against granting partial

summary judgment. Rule 7-2 and Rule 7-5(6) confirm this.Partial

summary judgment is an important remedy in the judicial tool box: see NDrive, Navigation Systems S.A. v Zhou, 2022 ONCA 602,

472 DLR (4th) 736, and Feltz Design Build Ltd. v Larson , 2022 ONCA 150 , where appeals from partial

summary judgments were dismissed. The Court of King’s Bench in this jurisdiction has also commented upon the utility of such judgments and granted them in Aero Mortgages & Investments Ltd. v Wilderness Roofing Ltd ., 2018 SKQB 268 , 35 CPC (8th) 258; Wilson v Welch , 2019 SKQB 62 ; Pavement Scientific International Inc. v Saskatoon (City) , 2019 SKQB 254 , 4 CLR (5th) 208; and Soiseth v Hill , 2021 SKQB 109 . The Court of King’s Bench appears to have granted partial judgment rarely, but as the Ontario Court of Appeal observed in Service Mold , “partial

summary judgment has its place” (at para 14). [ 45 ] Obviously, the cautious approach outlined above does not mean that whenever a partial

summary judgment is granted success on appeal is assured. All appellate intervention is limited by the applicable standard of review. In that regard, the Supreme Court in Hryniak set the standard of review with respect to decisions made under the new

summary judgment process: [81] In my view, absent an error of law, the exercise of powers under the new

summary judgment rule attracts deference. When the motion judge exercises her new fact-finding powers under Rule 20.04(2.1) and determines whether there is a genuine issue requiring a trial, this is a question of mixed fact and law. Where there is no extricable error in principle, findings of mixed fact and law should not be overturned absent palpable and overriding error: Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235, at para 36 . [82] Similarly, the question of whether it is in the “interest of justice” for the motion judge to exercise the new fact-finding powers provided by Rule 20.04(2.1) depends on the relative evidence available at the

summary judgment motion and at trial, the nature, size, complexity and cost of the dispute and other contextual factors. Such a decision is also a question of mixed fact and law which attracts deference. [83] Provided that it is not against the “interest of justice”, a motion judge’s decision to exercise the new powers is discretionary. Thus, unless the motion judge misdirected herself, or came to a decision that is so clearly wrong that it resulted in an injustice, her decision should not be disturbed. Broadly speaking, this standard of review applies to a decision granting or refusing a partial

summary judgment. [ 46 ] An appellant must demonstrate an error in principle in order to appeal successfully from a decision refusing or granting such a judgment. Only errors in principle that had a material impact on the decision under appeal will attract appellate intervention. It might also be, although the point need not be decided here one way or the other, that, as in Malik , considerations relating to the overall efficiency of the litigation process might serve as a basis for denying an appeal in the

summary judgment process. 3. Application of the partial

summary judgment principles [ 47 ] To begin, the Chambers judge’s reasons do not address whether this was an appropriate case to grant partial

summary judgment. Having taken on the issue, it was incumbent upon the Chambers judge to consider and determine whether this case was an appropriate one to grant a partial judgment in Big River’s favour – understanding all the while that what he had before him was an application brought by A.C. Forestry. [ 48 ] In that regard, it was necessary for the Chambers judge to turn his mind to the effect of finding that the Royalty Agreement is valid and leaving the question of its enforceability to a trial judge. The Chambers Decision does not show that the Chambers judge engaged in this sort of analysis.

As the Court of Appeal held in Butera , it is an error in principle not to consider “whether partial

summary judgment was appropriate in the context of the litigation as a whole” (at para 38). [ 49 ] The issue of the validity of the Royalty Agreement is largely intertwined with the question of its enforceability, and the two questions cannot be bifurcated. There is only one document to be analyzed, i.e., the Royalty Agreement, for which validity and enforceability must be tested. The two issues overlap and will be decided based on a review of some of the same evidence. With that being the case, a final decision on validity at this stage risks the possibility of inconsistent findings on key issues of fact, with the potential of creating an appearance of injustice. [ 50 ] Further, to grant

summary judgment declaring that the Royalty Agreement is valid, only to leave the issue of enforceability to trial, provides minimal, if any, time or economic efficiency. The action will have to proceed to trial on the key issue of whether the Royalty Agreement binds A.C. Forestry to distribute timber royalties per capita or not. [ 51 ] The correct holding should have been that A.C. Forestry failed to discharge its burden to prove that there is no genuine issue for trial with regards to the validity and enforceability of the Royalty Agreement. When the Chambers judge concluded that he could not grant A.C. Forestry

summary judgment, he needed to have resisted deciding whether the Royalty Agreement was valid and left all issues for trial. VI. Conclusion [ 52 ] The appeal is allowed. The Chambers judge’s decision on the validity of the Royalty Agreement should be set aside with this issue being left for trial. I would not, however, disturb the award of costs made in favour of Big River in the Court of King’s Bench or award A.C. Forestry or Big River costs of the appeal proper in this Court. I arrive at these conclusions for the following reasons. [ 53 ] A.C.

Forestry has been successful on this appeal in that it now has another opportunity to make its arguments that the Royalty Agreement is invalid and unenforceable. In order to succeed in this Court to this extent, A.C. Forestry was required to argue and, indeed, admit that its application for

summary judgment in the Court of King’s Bench should have been dismissed, and that this was the only order that should have been made. Given this, it would not be appropriate to award A.C. Forestry its costs of this appeal. [ 54 ] Understandably, Big River sought to sustain the judgment under appeal, largely for the reasons of the Chambers judge. Allowing this appeal means that Big River has not been successful with respect to its arguments either.

[ 55 ] In these circumstances, I would make no order as to costs in this Court for the appeal proper to either party. [ 56 ] There were two Chambers matters in this Court for which costs were left to the panel hearing the appeal. In the first application, A.C. Forestry applied for leave to appeal the Chambers Decision . The Chambers judge found that leave was not required, as the Chambers Decision constituted a final order. Given that A.C. Forestry erred by applying for this order, I would award costs to Big River on Column 2. [ 57 ] With respect to the second application, A.C.

Forestry applied for an order allowing it to include additional documents in its appeal book. The principal addition were briefs of law that had been filed with the Chambers judge. As I have not found that these materials were relevant to the question on appeal, I would again grant Big River its costs of this application on Column 2. “Jackson J.A.” Jackson J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Drennan J.A.” Drennan J.A.