Case: Rodgers v Thompson, 2018 SKCA 33 (CanLII)

Keywords: Third Party Claim; Leave to Appeal; Bail Hearing


Mr. John Thompson is arrested and denied bail for a period beginning August 19, 2014 (the date of his show cause hearing) and ending September 12, 2014, when he is granted judicial interim release by a judge of the Court of Queen’s Bench.

Mr. Thompson is eventually acquitted of all charges. He then commences an action for malicious prosecution against three members of the RCMP and the Crown prosecutor, Ms. Rogers. He also alleges the RCMP engaged in negligent investigation.

Specifically, he alleges that three members of the RCMP misrepresented facts in a report to the Judge at the show cause hearing. With respect to Ms. Rodgers, Crown prosecutor at the show cause hearing, he alleges that, although she was notified about the false information, she refused to correct the record – that her failure to intervene led to his continued incarceration.

Ms. Rodgers applies to have Mr. Thompson’s defense counsel added as a third party and asserts that he was negligent in his representation of Mr. Thompson at the show cause hearing. Relying on Chernesky v Armadale Publishers Limited, 1974 CanLII 984 (SK CA) and its consideration of The Contributory Negligence Act, RSS 1978, c C-31, the Chambers Judge concludes Ms. Rodgers is not permitted, as an intentional tortfeasor, to pursue a claim for contribution or indemnity against Mr. Burlington, as he is accused of negligence. He also determines the application constitutes a collateral attack and an abuse of process.

Ms. Rodgers seeks leave to appeal pursuant to s. 8 of The Court of Appeal Act, 2000, SS 2000, c C-42.1. The Court of Appeal grants leave.


As per Sapsford v Fry, 2010 SKCA 124 (CanLII), leave is required for appeals on applications to add third parties. For leave to be granted, the proposed appeal must be of sufficient “merit and importance”. (See para. 12).

With respect to the application of Chernesky and its interaction with s. 7 of the The Contributory Negligence Act, RSS 1978, c C-31, Ms. Rodgers argued the Chambers Judge erred in applying the case. The Court of Appeal concluded that, for the same reasons that leave was granted in “Sound Stage Entertainment Inc. v Burns” (a similar case on the application of Chernesky), there was sufficient merit and importance raised by Ms. Rodgers’ grounds of appeal on this point.

Ms. Rodgers also argued there was sufficient merit resulting from fundamental ‘unfairness’ arising from the Chambers Judge’s consideration of the collateral attack/abuse of process issue:

She submits she was not given the opportunity to respond to the collateral attack and the abuse of process issue and argues these issues were raised for the first time in the Chambers Decision. She further submits that in his decision on those issues, the Chambers judge effectively created two sets of rules: Mr. Thompson is allowed to challenge the show cause hearing, while she is not – and this creates a fundamental injustice. Further, even if the collateral attack issue were properly before him, she was not challenging the appropriateness of the show cause decision as she was alleging only negligence in the representation of Mr. Thompson by Mr. Burlingham. (See para. 14).

On this point, the Court of Appeal concluded there is “…at the very least, an arguable case” since the Chambers Judge “…ruled on matters that were not before him”. (See para. 18). Citing the recent decision in Kirk v Kirk, 2017 SKCA 97 (CanLII), the Court of Appeal noted that a judge’s right to grant unsolicited remedies is limited by the principle that a fair hearing requires that parties know the case to meet and have an adequate opportunity to present evidence and submissions in relation to it. (See para. 19).

Counsel for the Applicant: Carol Kraft (Justice (SK), Min. of. Regina)

Counsel for the Respondent Burlingham and acting as agent for Thompson: Ian Wagner (Wagner Law, Saskatoon)

Counsel for the Respondents Kletzel et al.: Christopher Bernier (Justice Canada, Saskatoon)

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