Beare v. Kirby Enterprises Inc. et al., (2013) 414 Sask.R. 66 (CA)

• Judge: Caldwell, J.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: April 24, 2013
• Jurisdiction: Saskatchewan
• Citations: (2013), 414 Sask.R. 66 (CA);2013 SKCA 44

Beare v. Kirby Ent. Inc. (2013), 414 Sask.R. 66 (CA);

    575 W.A.C. 66

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. MY.012

Dale Beare (appellant) v. Kirby Enterprises Inc., David Kirby and Rural Municipality of Sherwood No. 159 (respondents)

(CACV 2392; 2013 SKCA 44)

Indexed As: Beare v. Kirby Enterprises Inc. et al.

Saskatchewan Court of Appeal

Caldwell, J.A.

April 26, 2013.

Summary:

The appellant's application for an injunction to prohibit the respondent rural municipality from constructing culverts across a municipal roadway was denied. He appealed. Before the appeal was perfected, the respondent constructed a culvert that would have the effect of allowing imminent spring runoff to flow toward the appellant's property. The appellant applied for an interim order restraining the respondent from taking any steps to alter or modify the existing drainage, and requiring the respondent to remove the installed culvert.

The Saskatchewan Court of Appeal, per Caldwell, J.A., dismissed the application.

Courts - Topic 2110

Jurisdiction - Appellate jurisdiction - Single appellate judge - [See Injunctions - Topic 1784 ].

Courts - Topic 8204

Provincial courts - Saskatchewan - Court of Appeal - Jurisdiction - Single appellate judge - [See Injunctions - Topic 1784 ].

Injunctions - Topic 1610

Interlocutory or interim injunctions - Circumstances when injunction will not be granted - [See Injunctions - Topic 1784 ].

Injunctions - Topic 1784

Interlocutory or interim injunction - Preservation of status quo - Pending outcome of appeal - The appellant's application for an injunction to prohibit the respondent rural municipality from constructing culverts across a municipal roadway was denied - He appealed - Before the appeal was perfected, the respondent constructed a culvert that would have the effect of allowing imminent spring runoff to flow toward the appellant's property and away from the respondent's property - The appellant applied for an interim order restraining the respondent from taking any steps to alter or modify the existing drainage, and requiring the respondent to remove the installed culvert - The Saskatchewan Court of Appeal, per Caldwell, J.A., dismissed the application - Whether pursuant to s. 20(1) of the Court of Appeal Act or under the inherent jurisdiction of the court, the requested relief was beyond the authority of the judge in chambers for two reasons - First, the broad relief sought was not incidental to the appeal, even on an interim basis - Given the imminence of the spring runoff and the current status of the appeal, the relief sought would render the appeal moot by the time it could be heard and therefore substantively determine the appeal - Second, the application sought to obtain more in the way of relief than the appeal did.

Injunctions - Topic 1934

Interlocutory or interim injunction - Practice - Appeals - General - [See Injunctions - Topic 1784 ].

Cases Noticed:

Blackwoods Beverages Ltd., Re (1956), 3 D.L.R.(2d) 529 (Sask. C.A.), refd to. [para. 4].

T.E.T. v. J.D.L. (2004), 249 Sask.R. 218; 325 W.A.C. 218; 2004 SKCA 76, refd to. [para. 4].

Stevenson Estate v. Bank of Montreal et al. (2009), 320 Sask.R. 168; 444 W.A.C. 168; 2009 SKCA 11, refd to. [para. 5].

Taylor v. Eisner et al. (1989), 80 Sask.R. 84 (C.A.), refd to. [para. 6].

Counsel:

Fred Zinkhan, for the appellant;

Russell Hart, for the respondents, Kirby Enterprises Inc. and David Kirby;

Daniel Kwochka, for the respondent, Rural Municipality of Sherwood No. 159.

This application was heard in Chambers, on April 24, 2013, before Caldwell, J.A., of the Saskatchewan Court of Appeal, who delivered the following reasons on April 26, 2013.