Garden v. Rizos et al., (2014) 442 Sask.R. 180 (CA)

• Judge: Whitmore, J.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: August 25, 2014
• Jurisdiction: Saskatchewan
• Citations: (2014), 442 Sask.R. 180 (CA);2014 SKCA 90

Garden v. Rizos (2014), 442 Sask.R. 180 (CA);

    616 W.A.C. 180

MLB headnote and full text

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

Laurel O'Connor (proposed appellant/defendant) v. John Garden (proposed respondent/plaintiff)

(CACV2561; 2014 SKCA 90)

Indexed As: Garden v. Rizos et al.

Saskatchewan Court of Appeal

Whitmore, J.A.

August 25, 2014.

Summary:

Garden claimed that the defendants, including O'Connor, breached their fiduciary duty to him as a shareholder, and commenced an oppression action against the defendants. O'Connor applied for an order vacating the notice of pending litigation registered by Garden against certain of her properties.

The Saskatchewan Court of Queen's Bench, in a decision reported at [2014] Sask.R. TBEd. JL.045, dismissed the application. O'Connor applied for leave to appeal.

The Saskatchewan Court of Appeal, per Whitmore, J.A., dismissed the application for leave to appeal.

Practice - Topic 8877

Appeals - Leave to appeal - Grounds for refusal to grant leave - The plaintiff (Garden) claimed that the defendants, including O'Connor, breached their fiduciary duty to him as a shareholder, and commenced an oppression action against the defendants - O'Connor applied for an order vacating the notice of pending litigation registered by Garden against certain of her properties - The Chamber judge dismissed the application - O'Connor applied for leave to appeal - Her argument focused on the Chamber judge's failure to provide a full analysis of how a fiduciary relationship could arise between O'Connor and Garden - The Saskatchewan Court of Appeal, per Whitmore, J.A., dismissed the application - O'Connor had failed to meet either part of the test set out in Rothmans - The Chamber judge was alive to the decision in Fisher v. Campbell Custom Homes Ltd. et al. (2007) (Sask.C.A.) and applied it to the facts as pleaded - Granting leave to appeal would also unduly delay and unduly add to the cost of the proceedings - Hearing the appeal on the notice of pending litigation would further delay the trial to hear the action against the remaining defendants - More importantly, should the Court grant leave to appeal, its ultimate decision would not have any effect on the disposition of the underlying proceeding - The notice of pending litigation was collateral to the oppression action - Neither was the proposed appeal of sufficient importance to warrant the Court's intervention - The appeal, if successful, would not dispose of the litigation - Vacating the notice would not have any effect on whether or not O'Connor and the other defendants acted oppressively by breaching an alleged fiduciary duty owed to Garden - Finally, the proposed appeal did not raise a new, controversial, or unusual point of practice or a new or uncertain point of law.

Cases Noticed:

Rothmans, Benson & Hedges Inc. v. Saskatchewan (2002), 227 Sask.R. 121; 287 W.A.C. 121; 2002 SKCA 119, refd to. [para. 6].

Tsatsi v. Merchant (2013), 417 Sask.R. 120; 580 W.A.C. 120; 2013 SKCA 73, refd to. [para. 7].

Harding v. Harding (2013), 417 Sask.R. 111; 580 W.A.C. 111; 2013 SKCA 71, refd to. [para. 7].

G.L. v. Canada (Attorney General) et al. (2004), 254 Sask.R. 286; 336 W.A.C. 286; 2004 SKCA 137, refd to. [para. 8].

Fisher v. Campbell Custom Homes Ltd. et al., [2007] Sask.R. Uned. 109; 2007 SKCA 109, appld. [para. 10].

Clements et al. v. Preece (2014), 438 Sask.R. 223; 608 W.A.C. 223; 2014 SKCA 64, refd to. [para. 16].

R.J.G. v. Canada (Attorney General) et al., [2002] Sask.R. Uned. 196; [2002] 28 C.P.C.(5th) 287; 2002 SKCA 132, refd to. [para. 16].

International Corona Resources Ltd. v. LAC Minerals Ltd., [1989] 2 S.C.R. 574; 101 N.R. 239; 36 O.A.C. 57, refd to. [para. 19].

Counsel:

Karen Prisciak, Q.C., for the proposed appellant;

Andrea Rohrke, for the proposed respondent.

This application for leave to appeal was heard in Chambers before Whitmore, J.A., of the Saskatchewan Court of Appeal, who delivered the following judgment and written reasons for judgment, dated August 25, 2014.