Borowski v. Stefanson et al., 2015 SKCA 70

• Judge: Richards, C.J.S., Jackson and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 19, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKCA 70;(2015), 467 Sask.R. 71 (CA)

Borowski v. Stefanson (2015), 467 Sask.R. 71 (CA);

    651 W.A.C. 71

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JN.043

Leonard Borowski (appellant) v. Lyndon Ricky Stefanson, Sharolyn Prisiak, and Rural Municipality of Emerald (respondents)

(CACV2407; 2015 SKCA 70)

Indexed As: Borowski v. Stefanson et al.

Saskatchewan Court of Appeal

Richards, C.J.S., Jackson and Ryan-Froslie, JJ.A.

June 19, 2015.

Summary:

Borowski, an unsuccessful incumbent candidate in an election for a municipal councillor, filed an affidavit and a draft notice of motion seeking authorization to serve a notice of motion in the nature of quo warranto to determine the validity of the election pursuant to s. 19(1) of the Controverted Municipal Elections Act. The filings were not placed before a judge for adjudication. Eleven days later, he applied ex parte to preserve election materials and for leave to proceed with his s. 19 motion.

The Saskatchewan Court of Queen's Bench, per Kraus, J., ordered the preservation of election materials and directed Borowski to forthwith serve all materials on the respondent Prisiak. Borowski faxed the registrar, enclosing a copy of the order for issuance and requesting that the registrar draw to the attention of Kraus, J., that the Act required the court to endorse the fiat with the words "recognizance allowed" prior to service of the notice of motion.

The Saskatchewan Court of Queen's Bench, per Kraus, J., issued an additional fiat stating "The form of the ex p. order complies with the fiat. It may issue". The court did not deliver a fiat regarding s. 19, nor did it endorse anything on the draft notice of motion on file. Borowski served his notice of motion and materials as if the court had issued the authorization to proceed with a s. 19 application. Borowski moved for production of election material.

The Saskatchewan Court of Queen's Bench, per Kraus, J., in a decision reported at 418 Sask.R. 177, dismissed the quo warranto application for noncompliance with s. 19 and awarded the respondents costs fixed at $2,500. The court dismissed the motion for production as moot. Borowski appealed.

The Saskatchewan Court of Appeal allowed the appeal. The court held that there were grounds for authorizing Borowski to serve a notice of motion in the nature of a quo warranto and the requirement for recognizances of two sureties had been met. However, for the matter to proceed Borowski had to enter into a recognizance as required by s. 19. The court set out how the proceedings in the Court of Queen's Bench should unfold. The court set aside the award of costs made against Borowski in the Queen's Bench, but denied him costs of the appeal. The court ordered Borowski to pay the costs of a show cause hearing.

Elections - Topic 7872

Controverted elections - Invalid elections - Procedure for determining - Borowski, an unsuccessful candidate in a municipal election, filed an affidavit and a draft notice of motion seeking authorization to serve a notice of motion in the nature of quo warranto to determine the validity of the election pursuant to s. 19(1) of the Controverted Municipal Elections Act - He subsequently applied ex parte to preserve election materials and for leave to proceed with his s. 19 motion - An applications judge ordered the preservation of materials and directed Borowski to forthwith serve all materials on the respondent Prisiak - The judge did not deliver a fiat regarding s. 19, nor did the judge endorse anything on the draft notice of motion on file - Borowski served his notice of motion and materials - The respondents opposed the application on the basis that Borowski had not obtained the judicial authorization required by s. 19 to proceed with the motion and, therefore, the proceedings were out of time and a nullity - The motions judge held that the time ran from the date that the election results were published - However, s. 19 contemplated an ex parte application which was never filed by Borowski - The filing of an application with supporting affidavit, together with filing sufficient sureties, were also prerequisites to proceeding with quo warranto via notice of motion - Without a fiat on all of those points, the motion could not proceed - The undue and unexplained delay was fatal and could not be saved by rule 5 of the Queen's Bench Rules - The Saskatchewan Court of Appeal affirmed that no fiat had been issued pursuant to s. 19 - However, the motions judge erred in not applying rule 5 - This was a proceeding commenced by way of wrong originating documents - The material filed by Borowski on or before the six week deadline touched the important basis found in rule 441A for an ex parte application - The respondents were not prejudiced by the error and justice required that Borowski's right to challenge the election results not be defeated by a procedural misstep of no real bottom-line consequence - See paragraphs 17 to 35.

Elections - Topic 8165

Controverted elections - Practice - Limitation periods - [See Elections - Topic 7872 ].

Elections - Topic 8165

Controverted elections - Practice - Limitation periods - Section 19 of the Controverted Municipal Elections Act set out a procedure whereby a Queen's Bench judge first determined whether there were reasonable grounds for supposing an election was not conducted legally - If such grounds existed, the judge then issued a fiat authorizing the service of a notice of motion in the nature of quo warranto to determine the merits of the challenge to the election - Proceedings under s. 19 had to be commenced by a relator within six weeks of the election - The Saskatchewan Court of Appeal rejected an assertion that s. 19 should be read as also requiring that the decision authorizing service of a notice of motion in the nature of quo warranto had to be made within six weeks - The better view was that s. 19 required a relator to file his or her affidavit(s) within six weeks of the election - A judge faced with that sort of ex parte application would no doubt appreciate the need to decide the matter quickly so as not to leave the election results in doubt any longer than absolutely necessary - However, there was no requirement that the fiat be issued within six weeks of the election date - See paragraphs 32 and 33.

Elections - Topic 8169

Controverted elections - Practice - Costs - Borowski served a notice of motion in the nature of quo warranto to determine the validity of an election pursuant to s. 19(1) of the Controverted Municipal Elections Act - The motions judge dismissed the motion for noncompliance with s. 19 and awarded the respondents costs fixed at $2,500 - Borowski, representing himself, appealed - The Saskatchewan Court of Appeal allowed the appeal and set aside the award of costs below - With respect to appeal costs, the court stated that a self-represented litigant was entitled to costs in an appropriate case - This was not such a case - Borowski made no apparent effort to prepare his written materials in a way that complied with the Court of Appeal Rules - That led counsel for the respondent municipality to file an "Appeal Book on Behalf of the Respondents" in a helpful effort to bring some order to the matter - Borowski sought relief far beyond what was available in the proceedings - His written materials and oral submissions were "shot through" with highly unfair and inflammatory language insulting to the motions judge, the respondents' counsel and seemingly everyone who had taken a position contrary to him - He had to be cautioned several times during his oral submissions to temper his comments - In short, he succeeded in spite of himself - The court also ordered Borowski to pay $500 for the costs of a show cause hearing - That hearing had been necessitated because Borowski had not moved his appeal forward in a timely manner - See paragraphs 42 to 44.

Practice - Topic 2389

Writ of summons, endorsements, originating summons and originating notices - Nullities and irregularities - What constitutes a nullity - [See Elections - Topic 7872 ].

Practice - Topic 2808

Curative provisions - For wrong commencement procedure or document - [See Elections - Topic 7872 ].

Practice - Topic 3085

Applications and motions - Applications - Ex parte - When appropriate - [See Elections - Topic 7872 ].

Practice - Topic 7029.3

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Delay or prolonging proceedings - [See Elections - Topic 8169 ].

Practice - Topic 8327.5

Costs - Appeals - Costs of appeal - Noncompliance with rules - [See Elections - Topic 8169 ].

Practice - Topic 8342

Costs - Appeals - Cases where costs of appeal refused - Conduct - [See Elections - Topic 8169 ].

Cases Noticed:

Bassett v. McMillan (1983), 29 Sask.R. 272 (C.A.), refd to. [para. 8].

Coulthard v. Coulthard (1952), 5 W.W.R.(N.S.) 662 (C.A.), refd to. [para. 24].

Parslow v. Masters et al. (1993), 119 Sask.R. 253 (Q.B.), refd to. [para. 34].

Mariash Estate, Re (2010), 364 Sask.R. 36; 2010 SKQB 367, refd to. [para. 34].

Turcot v. Slade - see Mariash Estate, Re.

Caragata v. Old Post No. 43 (Rural Municipality) (1982), 21 Sask.R. 124; 142 D.L.R.(3d) 180 (Q.B.), refd to. [para. 34].

Point2 Technologies Inc. et al. v. Vendasta Technologies Inc. et al., [2009] 10 W.W.R. 306; 345 Sask.R. 357; 2009 SKQB 199, refd to. [para. 34].

Canadian Imperial Bank of Commerce v. Borowskig-Warner Acceptance Canada Ltd. (1985), 43 Sask.R. 311 (C.A.), refd to. [para. 34].

Hope v. Pylypow et al. (2015), 457 Sask.R. 55; 632 W.A.C. 55; 2015 SKCA 26, refd to. [para. 42].

Statutes Noticed:

Controverted Municipal Elections Act, R.S.S. 1978, c. C-33, sect. 19 [para. 5].

Rules of Court (Sask.), Queen's Bench Rules, rule 5 [para. 24].

Counsel:

Leonard Borowski, appearing on his own behalf;

F. William Johnson, Q.C., for the respondents.

This appeal was heard on May 19, 2015, by Richards, C.J.S., Jackson and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. Richards, C.J.S., delivered the following judgment for the court on June 19, 2015.