Case: Mann v. Mann 2022 SKCA 94(CanLII)
Keywords: disqualification; s. 20(1) of The Court of Appeal Act, 2000, SS 2000, c C-42.1; jurisdiction of single judge in chambers
In the context of a complicated inter-familial shareholder dispute, the Appellant applies for an order disqualifying counsel of record for the Respondent “from continuing to represent the respondent in this court and in any other court”. (See para. 1).
An application is made to Leurer J.A., sitting as a single judge in chambers. Section 20(1) of The Court of Appeal Act, 2000, SS 2000, c C-42.1 provides:
20(1) A single judge sitting in chambers may hear and dispose of an application or motion that is incidental to an appeal or matter pending in the court and that does not involve the decision of the appeal on the merits. [Emphasis added].
Leurer J.A. concludes that, whereas a single judge of the Court of Appeal has no power to make an order disqualifying counsel of record for the Respondent from acting in other courts, there is jurisdiction to disqualify counsel from acting on the appeal. (See paras. 13-14). In this case, Leurer J.A. declines to exercise that jurisdiction; does not disqualify counsel of record for the Respondent. (See para. 43).
When is a matter “incidental to an appeal or matter pending in the court”? Citing Strata Plan 1229 v. Trivantor Investments International Ltd. (1996), 1996 CanLII 986 (BC CA), Leurer J.A. determined that this language refers to matters which,
· play a “minor or subordinate role in relation to the outcome of the appeal”; or
· ensure the “efficient and effective determination of this or any other appeal pending” before the Sask. C.A. (See paras. 9-11; see also Stevenson Estate v. Bank of Montreal, 2009 SKCA 11; Canadian National Railway Company v. SSAB Alabama Inc., 2019 SKCA 33).
For Leurer J.A., an application for the disqualification of counsel in other courts plays “no role whatsoever” in the outcome of the appeal. Similarly, it plays “no role at all” in the efficient and effective determination of this or any other appeal pending in the Court of Appeal. (See para. 11). Accordingly, it is not a proper matter for a single judge of the Court of Appeal to determine.
Importantly, Leurer J.A. summarized “a proper understanding of the role of [the Sask. C.A.]”. The following principles are derived from that summary, as found at paras. 31-33:
· The Court of Appeal reviews decisions “made by other courts and tribunals for error”. (See para. 31).
· Relief requested “for the first time” should be sought in a court or tribunal with “original jurisdiction…not [the Court of Appeal]”. (See para. 31).
· Appeals are “solely creatures of statute”. (See para. 31).
· The primary purpose of The Court of Appeal Act, 2000 is to “confer and give effect to rights of appeal”. (See para. 31; Valley Beef Producers Co-operative Ltd. v. Farm Credit Corp., 2002 SKCA 100 at para. 35)
· The Court of Appeal should be a first-instance decision maker only in “special cases” or “extraordinary circumstances”. (See paras. 32-33).
Based on the foregoing, Leurer J.A. determined that the “proper place” for the Appellant to have the issue of whether counsel of record for the Respondent can act in other courts should be determined by the Court of Queen’s Bench. (See para. 35). Although a single judge may disqualify counsel from acting in an appeal (see para. 14; Shingoose v. Harripersad, 2005 SKCA 102 and Canadian National Railway Company v. SSAB Alabama Inc., 2019 SKCA 33), Leurer J.A. determined that doing so would be inappropriate in this case – “I should not make an order disqualifying [counsel of record for the Respondent] from acting in this or any other court”. (See para. 43).
Counsel for the Appellant: Oluwadamilola Asuni (Farmers of North America, Saskatoon) and James Mann, on his own behalf
Counsel for the Respondents: Robert Hawkes, Q.C. (Jensen Shawa Solomon Duguid Hawkes LLP, Calgary)
Counsel for the Respondents/Non-Parties: Randall Sandbeck, Q.C. (Olive Waller Zinkhan & Waller LLP, Regina)