Case: Gordon Estate v Regina Qu’Appelle Regional Health Authority, 2026 SKCA 83 (CanLII)
Keywords: records; statutory privilege; interlocutory v final; nunc pro tunc
Synopsis:
The Appellant, in his capacity as administrator of the estate of Jean Myrtle Gordon, requests records relating to a critical incident investigation undertaken in accordance with The Regional Health Services Act, SS 2002, c R-8.2 (“RHSA”). The Respondent Regina Qu’Appelle Regional Health Authority withholds the records; takes the position it is not required to disclose because they are protected by statutory privilege under s. 58 of the RHSA or s. 10 of The Evidence Act, SS 2006, c E-11.2 (“Evidence Act”). The Appellant appeals the Health Authority’ decision to withhold pursuant to s. 50 of The Health Information Protection Act, SS 1999, c H-0.021 (“HIPA”). (See paras. 1-2).
A preliminary question arises (i.e., whether the right of access to personal health information is only subject to the exceptions provided by s. 38 of HIPA, or includes other statutory exceptions). Pursuant to the jurisdiction provided by Rule 7-1 of The King’s Bench Rules to hear and determine an issue before trial, the Court of King’s Bench finds s. 38 of HIPA “does not represent a complete code for exceptions that renders all other statutes meaningless” – a decision which provides the Respondent Health Authority more latitude to deny the records request. (See paras. 3-4). The Appellant appeals this decision to the Court of Appeal. The Respondent Health Authority brings an application to quash on the basis that the underlying decision was “interlocutory”, requiring the Appellant to first seek leave. (See para. 5). The Court of Appeal (Tholl, McCreary, and Drennan JJ.A.) quashes the appeal pursuant to Rule 46.1(1)(a) of The Court of Appeal Rules. (See para. 6).
Importance:
The primary question for the Court of Appeal was whether the underlying decision was an “interlocutory” or “final” order. The Appellant’s position: the decision “disposed of the legal question”. For the Court of Appeal, however, the “key issue” (i.e., whether the Appellant gets the records) remains a “live issue” to be determined “later”. Citing Poffenroth Agri Ltd. v Brown, 2020 SKCA 68 at paras. 13-22, the Court of Appeal concluded this was an “interlocutory” decision. (See para. 8).
Although Rule 7-1(5) says determinations made pursuant to this Rule are “final and conclusive for the purposes of the action, subject to the determination being varied on appeal”, the Court of Appeal finds “[i]t is simply incorrect to interpret Rule 7-1(5) as standing for the proposition that any matter decided under the Rule is a determination for which there is a right of appeal without leave”. For the Court of Appeal, “[t]he Rules of the Court of King’s Bench do not confer jurisdiction on the Court of Appeal or supersede The Court of Appeal Act, 2000 to transform something that is interlocutory into something that is not”. (See para. 11). In the context here, the Court of Appeal says the meaning of Rule 7-1(5) is confined to the purposes of the action, not for the purposes of an appeal where the legal character of the underlying decision is particularly weighty to establish the jurisdiction of the Court:
Rule 7-1(5) of The King’s Bench Rules simply states that a matter decided under that Rule is final for the purposes of the action – meaning that during the action the ruling cannot be varied or otherwise changed. It does not mean that, for the purposes of an appeal, an order that would otherwise be interlocutory if decided under a different rule is somehow not interlocutory. (See para. 11).
For the Court of Appeal, Rule 7-1(5) is irrelevant to determine whether the underlying decision was interlocutory or final. In this case, the Court of Appeal says it was “clearly interlocutory”. (See para. 12).
The second question was whether leave should be granted nunc pro tunc – something the Court of Appeal has done previously, even in the absence of a formal application for leave. (See para. 13; Standing Buffalo Dakota First Nation v Maurice Law Barristers and Solicitors (Ron S. Maurice Professional Corporation), 2026 SKCA 11; Maharaj v Rosetown (Town), 2025 SKCA 19; Xiao-Phillips v Thomson, 2024 SKCA 67; and Cowessess First Nation v Phillips Legal Professional Corporation, 2018 SKCA 101).
While the Court of Appeal acknowledged its discretion to “cure certain procedural defects where the interests of justice favour doing so” pursuant to its inherent jurisdiction, it ultimately decided “[t]his is not an appropriate case for the Court to exercise its discretion to grant leave nunc pro tunc”. (See paras. 14-15; Canadian Imperial Bank of Commerce v Green, 2015 SCC 60 at para. 85).
The Court of Appeal affirmed its decision in Saskatoon (City) v The Canadian Nationalist Party Inc., 2021 SKCA 22 at paras. 26-28, which says that “[i]f the Rothmans criteria are not met, then leave to appeal should not be granted nunc pro tunc.” (See para. 17; Saskatoon (City) at para. 26). As summarized by the Court of Appeal, “the Court must first consider whether the proposed appeal is sufficiently meritorious and important to warrant granting leave and, if it is, then consider if it should do so on a nunc pro tunc basis.” (See para. 18). In the circumstances of this case, the Court of Appeal found the proposed appeal lacked “sufficient merit” – there were no arguments which sufficiently called into question the underlying decision as being erroneous such that “the proposed appeal is destined to fail.” (See para. 21). The Court of Appeal indicated that granting leave nunc pro tunc is “done exceptionally” so as to preserve the object of The Court of Appeal Act, 2000 (i.e., to provide the Court of Appeal the power to cull appeals of “interlocutory decisions”). (See paras. 22-23; Miller v Miller Estate, 2024 SKCA 70 at para. 17).
Of further interest, the Court of Appeal provided a window into the practical reality of applying for leave nunc pro tunc. The Court of Appeal acknowledged that the decision to not formally apply “may have been strategic”. (See para. 25). However, the Court of Appeal commented that a single paragraph in the Appellant’s factum indicating that “if necessary, leave should be granted nunc pro tunc” was not accompanied by any written response to the Respondent’s application to quash or the criteria outlined in Saskatoon (City):
While [the Appellant] touched on the criteria in oral argument, his lack of a written reply made it more difficult for the Health Authority to respond, particularly to the argument respecting Rule 7-1(5) which was only raised orally, and was, therefore, less helpful to the Court. (See para. 24).
Bottom line: for this Court of Appeal, obtaining leave nunc pro tunc is exceptional and a more detailed, formal request is required to engage its jurisdiction.
Counsel for the Appellant: Nathan Phillips (Phillips & Co., Regina)
Counsel for the Respondent: Reginald Watson, K.C. and Brooklyn Ireland (Willows LLP, Regina)
Counsel for the Intervenor: Candice Grant (Robertson Stromberg LLP, Regina)