Digest: Saskatchewan Crop Insurance Corporation v McVeigh, 2018 SKCA 76

• Date: September 18, 2019

Reported as: 2018 SKCA 76

Docket Number: CA18075 , CACV 3037

Court: Court of Appeal

Date: 2019-09-18

Judges:

• Richards
• Caldwell
• Schwann

Subjects:

• Civil Procedure � Pleadings � Application to Strike Statement of Claim � Want of Prosecution � Delay
• Civil Procedure � Queen�s Bench Rule 4-44
• Crown � Crown Immunity
• Crown � Proceedings By the Crown
• Statutes � Interpretation � Court of Appeal Act, 2000
• Statutes � Interpretation � Proceedings Against the Crown Act

Digest: The appellant sued the respondents claiming recovery of over $1 million, alleging that the respondents had improperly received crop insurance indemnities based on misrepresentations of crop production and yield information. The statements of claim were issued in 1998. The actions against the separate respondents were consolidated in 2006. In 2015, the respondents applied pursuant to Rule 4-44 of The Queen�s Bench Rules for an order dismissing the action for want of prosecution due to delay. The chambers judge granted the order finding that a delay of 19 years was inordinate, all but four years was inexcusable, and it was not in the interests of justice to continue. The appellant appealed that decision as well as two other fiats made in Queen�s Bench prior to the delay application (�incidental decisions�). The issues on appeal were whether: 1) the chambers judge of an incidental application erred by deferring the appellant�s contempt and spoliation application until after the delay application had been heard; 2) the affidavit material that was struck by a chambers judge pursuant to an incidental decision should have been considered by the chambers judge who heard the delay application; and 3) the chambers judge overlooked or misapprehended material evidence and disregarded material facts to a degree that resulted in an error of law, and whether he erred in law in his interpretation and application of the ICC test, the test in a delay application.
HELD: The appeal was dismissed. The issues were determined as follows: 1) the case management judge did not rule on whether the contempt application should be heard before the delay application; he did not make a binding order. Section 9(5) of The Court of Appeal Act 2000 permits appeals of an incidental decision, however, the court determined that the case management judge�s comments did not meet the definition of decision and therefore could not be appealed. Even if they had jurisdiction, the appeal court indicated that they saw no substantive basis to overturn the fiat; 2) the chambers judge concluded that any material relating to the merit of either party�s case was irrelevant in the delay application. The appeal court also held that the ICC factors did not require an examination of the merits of the statement of claim; and 3) the appeal court agreed with the appellant that the chambers judge erred in his calculation of the length of the delay by ignoring an earlier fiat that directed a period not be considered in the issue of delay. The error changed the delay from 19 years to 18 years, which was not an overriding error. The appeal court disagreed with the appellant that the chambers judge failed to properly note their evidence. The chambers judge also concluded that the matter was not particularly complex, and the appeal court did not find that to be a palpable or overriding error. The chambers judge did consider evidence of the respondents� conduct, contrary to the appellant�s assertion. Another argument of the appellant was that the chambers judge failed to consider how the Rules placed joint responsibility on both the plaintiff and defence counsel to move the litigation...