Digest: Fiesta Barbeques Ltd. v Andros Enterprises Ltd., 2018 SKCA 32

• Date: April 27, 2018

Reported as: 2018 SKCA 32

Docket Number: CACV 3217 , CA17143

Court: Court of Appeal

Date: 2018-04-27

Judges:

• Whitmore

Subjects:

• Civil Procedure � Appeals � Leave to Appeal

Digest: The applicants and proposed appellants, Fiesta Barbeques and Wolfedale Engineering, sought an extension of time and leave to appeal the first decision of a Queen�s Bench judge that had dismissed their application to add Vomar Industries as a defendant under Queen�s Bench rule 3-84 (see: 2017 SKQB 234) and sought leave to appeal a subsequent decision (the second decision) of another Queen�s Bench judge that dismissed their application to add Vomar as a third party under Queen�s Bench rule 3-31 and rule 3-32 and s. 7 of The Contributory Negligence Act (see: 2018 SKQB 67).
HELD: The court dismissed the application to extend the time to appeal of the first decision made by one Queen�s Bench judge, but granted the application for leave to appeal the second decision. With respect to the application to extend the time to appeal, the court reviewed the factors set out in Bank of Nova Scotia v Saskatoon Salvage Company and found that it could not grant an extension for the following reasons: Vomar would be prejudiced; the proposed appellant had not intended to appeal the first decision within the appeal period; and the proposed appellants did not have an arguable case because they sought to appeal the reasons of the first decision, not the judgment, which was that Vomar should not be added as a defendant. With respect to the application to grant leave to appeal the second decision, the court found that the proposed appeal had sufficient merit because the proposed appellants� grounds included that the second decision was based upon a misapprehension of evidence or improperly found based on the findings of the judge in the first decision that could lead to appellate intervention. The appeal was of significance because it raised issues regarding the relationship between the tests for adding a defendant as opposed to adding a third party.

Statutes Considered:

• Contributory Negligence Act, RSS 1978, c C-31, s 7
• Court of Appeal Act, 2000, SS 2000, c C-42.1, s 9(6)
• Limitations Act, SS 2004, c L-16.1, s 20
• Limitations Act, SS 2004, c L-16.1, s 20(a)

Rules Considered:

• QB Rule 3-31
• QB Rule 3-32
• QB Rule 3-72
• QB Rule 3-84

Cases Considered:

• Andros Enterprises Ltd. v Fiesta Barbeques Ltd., 2017 SKQB 234, 283 ACWS (3d) 184
• Andros...