Borowski v. Stefanson et al., (2015) 472 Sask.R. 107 (CA)

• Judge: Richards, C.J.S., Jackson and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: December 08, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 472 Sask.R. 107 (CA);2015 SKCA 140

Borowski v. Stefanson (2015), 472 Sask.R. 107 (CA);

    658 W.A.C. 107

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. DE.071

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

(CACV2407; 2015 SKCA 140)

Indexed As: Borowski v. Stefanson et al.

Saskatchewan Court of Appeal

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

December 15, 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, in a decision reported at (2015), 467 Sask.R. 71; 651 W.A.C. 71, 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 and as set out in Appendix A of the court's decision. 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. Borowski moved for an order granting judicial review and/or reconsideration to be held out of Province due to conflict of interests and inequality, and to ensure substantive due process was afforded to all parties. In the course of his oral submissions, Borowski explained that he was asking for "reconsideration of Appendix A" of the court's decision, and expressly denied that he was seeking a "rehearing" with respect to Appendix A.

The Saskatchewan Court of Appeal stated that the only way it could alter the substance of its decision would be by way of a rehearing. To put matters on the footing most favourable to Borowski, the court characterized the application as being one for a rehearing with respect to the content of the Appendix as per rule 47 of the Court of Appeal Rules. The court dismissed the application where there were no special or unusual circumstances that justified a rehearing.

Practice - Topic 9136

Appeals - Hearing of appeal - Rehearing or reconsideration - When available - Borowski, an unsuccessful candidate in a municipal election, challenged the election's validity pursuant to s. 19(1) of the Controverted Municipal Elections Act - After various procedural steps and court orders, a Queen's Bench judge dismissed the challenge - The Court of Appeal allowed Borowski's appeal and provided details of the steps that had to be taken to get the question of the election's validity before a Queen's Bench judge for consideration on its merits - As part of that exercise, the court set, in Appendix A of its decision, the form of the recognizance that Borowski had to provide under s. 19 - Borowski moved for an order granting him judicial review and/or reconsideration - In the course of his oral submissions, Borowski explained that he was asking for "reconsideration of Appendix A", but denied that he was seeking a "rehearing" - The Saskatchewan Court of Appeal stated that the only way it could alter the substance of its decision would be by way of a rehearing - There was no material difference between a "reconsideration" and a "rehearing" - To put matters on the footing most favourable to Borowski, the court characterized the application as being one for a rehearing of Appendix A as per rule 47 of the Court of Appeal Rules - An allegation that the decision was wrong was not enough to trigger a rehearing - Borowski was concerned that the impugned recognizance, if sworn, would involve him committing "fraud" or signing a "false document" - Those concerns were misplaced - Appendix A was not nothing more than a simple recognizance contemplated by s. 19 - There were no special or unusual circumstances that justified a rehearing.

Cases Noticed:

Storey v. Zazelenchuk (1985), 40 Sask.R. 241 (C.A.), refd to. [para. 9].

HDL Investments Inc. et al. v. Regina (City) et al., [2008] Sask.R. Uned. 22; 2008 SKCA 59, refd to. [para. 9].

Counsel:

Leonard Borowski on his own behalf;

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

This motion was heard on December 8, 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 December 15, 2015.