Digest: Veolia Water Technologies, Inc. v K+S Potash Canada General Partnership, 2018 SKCA 61

• Date: August 18, 2019

Reported as: 2018 SKCA 61

Docket Number: CACV 3268 , CA17172

Court: Court of Appeal

Date: 2019-08-18

Judges:

• Ottenbreit

Subjects:

• Civil Procedure � Appeal � Application Incidental to Appeal
• Injunction � Interlocutory Injunction
• Statutes � Interpretation � Court of Appeal Act, 2000, Section 20(1)

Digest: The appellant appealed the decision of a Queen�s Bench chambers judge dismissing its application for an interlocutory order enjoining the respondent from drawing on two letters of credit. It then applied to the Court of Appeal for an interim order enjoining the respondent from drawing on the letters until the court rendered its decision on the appeal. The applicant argued that the appeal was bona fide and that a single judge in chambers had jurisdiction to hear the application based on s. 20(1) of The Court of Appeal Act, 2000. The relief it sought, which was not the same as the relief sought on the appeal proper, was incidental to its appeal and if granted would enable the appeal to proceed and be decided on its merits. Granting the application would preserve the rights of the parties because if the respondent was not enjoined from drawing down on the letters, its appeal for an injunction to prevent that from happening would be moot. The decision regarding the application would not decide the appeal.
HELD: The application was granted. The court was satisfied that the applicant had met the three-part test for injunctive relief and the respondent should be enjoined from drawing on the letters pending appeal. The court directed that the appeal should be expedited. The court held that whether a judge should exercise the power to determine incidental matters, preserve the status quo and prevent the frustration of an appeal is fact specific. In this case, the application differed from the appeal and the relief requested was incidental and subordinate to the appeal.

Statutes Considered:

• Court of Appeal Act, 2000, SS 2000, c C-42.1, s 20(1)

Rules Considered:

• CA Rule 15

Cases Considered:

• Beare v Kirby Enterprises Inc., 2013 SKCA 44, 414 Sask R 66
• Blackwoods Beverages Ltd. v Dairy Workers (1956), 3 DLR (2d) 529, 18 WWR (NS) 481
• Haug v Dorchester Institution, 2016 SKCA 55, [2016] 10 WWR 484
• Kim v University of Regina, 85 Sask R 166
• Loraas v Loraas (Unreported), SaskCA, CACV3244, May 15/18, Ryan-Froslie JA
• Manitoba (Attorney General) v Metropolitan Stores (MTS) Ltd., [1987] 1 SCR 110, 73 NR 341, 38...