Clements et al. v. Preece, 2014 SKCA 64

• Judge: Whitmore, J.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 26, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKCA 64;(2014), 438 Sask.R. 223 (CA)

Clements v. Preece (2014), 438 Sask.R. 223 (CA);

    608 W.A.C. 223

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. JN.015

David Clements, Tom Morton and Georgina Morton (prospective appellants/plaintiffs) v. Robert Preece (prospective respondent/defendant) and Government of Saskatchewan (non-party/third party)

(CACV2510; 2014 SKCA 64)

Indexed As: Clements et al. v. Preece

Saskatchewan Court of Appeal

Whitmore, J.A.

June 2, 2014.

Summary:

The Saskatchewan Court of Queen's Bench dismissed the plaintiffs' application to strike the defendant's amended statement of defence. The plaintiffs applied for leave to appeal.

The Saskatchewan Court of Appeal, per Whitmore, J.A., granted leave to appeal.

Practice - Topic 8875

Appeals - Leave to appeal - From interlocutory ruling - [See Practice - Topic 8876 ].

Practice - Topic 8876

Appeals - Leave to appeal - Grounds for granting leave - At issue was the plaintiffs' access to their property - The plaintiffs obtained an interlocutory injunction requiring the defendant to remove a roadway obstruction - An order was also granted restraining the defendant from obstructing the roadway - The defendant was given leave to amend his statement of defence, which he subsequently served and filed - A Chamber judge, in a brief and general statement, dismissed the plaintiffs' application to strike the amended statement of defence - The plaintiffs applied for leave to appeal - The Saskatchewan Court of Appeal, per Whitmore, J.A., granted leave to appeal - "I cannot say that the applicants' argument that the reasons are insufficient is predestined to fail or is frivolous or vexatious. As for the second branch of the test, the matter under appeal is of importance to the applicants. If the appeal is successful, the action will be at an end. ... The proposed appeal also raises the issue as to the appropriate test for determining whether the implied undertaking rule has been breached and what the appropriate remedy should be for breach of that rule. It is arguable that on this basis the proposed appeal is of general importance."

Cases Noticed:

Rothmans, Benson & Hedges Inc. v. Saskatchewan (2002), 227 Sask.R. 121; 287 W.A.C. 121; 2002 SKCA 119, refd to. [para. 10].

Authors and Works Noticed:

Brown, Raymond E., Civil Appeals (2009) (Looseleaf), vol. 1, para. 4:3243 [para. 12].

Counsel:

Bruce Wirth, for the prospective appellants, plaintiffs;

Nicholas Stooshinoff, for the prospective respondent, defendant.

This application for leave to appeal was heard on May 26, 2014, before Whitmore, J.A., in Chambers, of the Saskatchewan Court of Appeal, who delivered the following written reasons for decision, dated June 2, 2014.