Granitewest Developments Ltd. v. Saskatchewan (Minister of Highways and Infrastructure) et al.,

JurisdictionSaskatchewan
JudgeRichards
Neutral Citation2016 SKCA 3
Citation2016 SKCA 3,(2016), 472 Sask.R. 251 (CA),472 SaskR 251,(2016), 472 SaskR 251 (CA),472 Sask.R. 251
Date09 December 2015
CourtCourt of Appeal (Saskatchewan)

Granitewest Dev. v. Sask. (2016), 472 Sask.R. 251 (CA);

    658 W.A.C. 251

MLB headnote and full text

Temp. Cite: [2016] Sask.R. TBEd. JA.003

Granitewest Developments Ltd. (prospective appellant/respondent) v. Government of Saskatchewan, as represented by the Minister of Highways and Infrastructure (prospective (respondent/applicant)

Granitewest Developments Ltd. (prospective appellant/respondent) v. Government of Saskatchewan, as represented by the Minister of Highways and Infrastructure (prospective respondent/applicant) and Peter Lawrek, 625605 Saskatchewan Ltd., Craig Hellings, Craig E. Hellings Appraisals Ltd., William Brunsdon and Brunsdon Junor Johnson Appraisals Ltd. (prospective respondents/respondents)

(CACV2788; 2016 SKCA 3)

Indexed As: Granitewest Developments Ltd. v. Saskatchewan (Minister of Highways and Infrastructure) et al.

Saskatchewan Court of Appeal

Richards, C.J.S.

January 13, 2016.

Summary:

Granitewest Developments Ltd. commenced two actions against the Government of Saskatchewan as a result of the Government's expropriation of lands owned by Granitewest. The Government applied to amend its statement of defence.

The Saskatchewan Court of Queen's Bench, in a decision reported at [2015] Sask.R. Uned. 118, allowed the application. Granitewest applied for leave to appeal.

The Saskatchewan Court of Appeal, per Richards, C.J.S., dismissed the application.

Expropriation - Topic 2212

Practice and procedure - Appeals - Leave to appeal - [See all Practice - Topic 8877 ].

Practice - Topic 2105

Pleadings - Amendment of pleadings - Prejudice or presumed prejudice - [See second Practice - Topic 8877 ].

Practice - Topic 2123.1

Pleadings - Amendment of pleadings - Statement of defence - Adding new defence - [See first and second Practice - Topic 8877 ].

Practice - Topic 8877

Appeals - Leave to appeal - Grounds for refusal to grant leave - Granitewest Developments Ltd. commenced an expropriation action and a conspiracy action against the Government of Saskatchewan after the Government expropriated its lands for the construction of an intermodal transportation facility - The Government applied to amend its statement of defence in both actions by raising the doctrines of ex dolo malo and ex turpi causa based on allegations that (i) Granitewest's president (Granatier) owed a fiduciary duty to the Government by virtue of his position as a director of the Regina Regional Economic Development Authority (RREDA), and (ii) Granatier breached that duty by purchasing the disputed land after learning through his RREDA office that it would be used for the transportation facility - The chambers judge allowed the amendments - Granitewest applied for leave to appeal, arguing that the effect of the amendments was to improperly introduce common law considerations into the "complete code" established by the Expropriation Act - The Saskatchewan Court of Appeal, per Richards, C.J.S., dismissed the application - The conspiracy action was grounded entirely in the common law - Concerns about a "complete code" therefore had no relevance to that proceeding - Although there were some arguable weaknesses in the defences as they related to the expropriation action, the present issue was whether it was "plain and obvious" that the defences would fail, not whether they would in fact fail - As a result, the proposed appeal was not as strong as Granitewest suggested - See paragraphs 16 and 19.

Practice - Topic 8877

Appeals - Leave to appeal - Grounds for refusal to grant leave - Granitewest Developments Ltd. commenced an expropriation action and a conspiracy action against the Government of Saskatchewan after the Government expropriated its lands for the construction of an intermodal transportation facility - The Government applied to amend its statement of defence in both actions to include allegations that (i) Granitewest's president (Granatier) owed a fiduciary duty to the Government by virtue of his position as a director of the Regina Regional Economic Development Authority (RREDA), and (ii) Granatier breached that duty by purchasing the disputed land after learning through his RREDA office that it would be used for the transportation facility - The chambers judge allowed the amendments - Granitewest applied for leave to appeal, arguing that the amendments would cause significant prejudice because it would be forced to commence proceedings against Granatier, retain separate counsel, undertake further questioning, and the trial would be lengthened and complicated - The Saskatchewan Court of Appeal, per Richards, C.J.S., dismissed the application - The chambers judge considered all of the points raised by Granitewest and found them to be unpersuasive - He found that: (i) it was Granatier's choice if he decided to "apply to be added as a party, retain separate counsel, put existing counsel in a conflict of interest and conduct his own questioning"; (ii) Granitewest and/or Granatier could be compensated in costs if the amendments were ultimately shown to be without merit; and (iii) delay was not a significant issue because additional questioning and disclosure should not be extensive where both parties were familiar with the facts outlined in the amendments and the transactions in question were already under review in the actions - Granitewest significantly overstated the strength of its proposed appeal - See paragraphs 20 to 23.

Practice - Topic 8877

Appeals - Leave to appeal - Grounds for refusal to grant leave - Granitewest Developments Ltd. commenced an expropriation action and a conspiracy action against the Government of Saskatchewan after the Government expropriated its lands for the construction of an intermodal transportation facility - The Government applied to amend its statement of defence in both actions by raising the doctrines of ex dolo malo and ex turpi causa based on allegations that (i) Granitewest's president (Granatier) owed a fiduciary duty to the Government by virtue of his position as a director of the Regina Regional Economic Development Authority (RREDA), and (ii) Granatier breached that duty by purchasing the disputed land after learning through his RREDA office that it would be used for the transportation facility - The chambers judge allowed the amendments - Granitewest applied for leave to appeal, arguing that the issues raised were of profound significance to the law of expropriation because the Expropriation Act was a self-contained system that should not be compromised by the sorts of common law qualifications reflected in the amendments - The Saskatchewan Court of Appeal, per Richards, C.J.S., dismissed the application - The court accepted that the question of whether doctrines like ex dolo malo and ex turpi causa had a place in the expropriation context was one of general importance - However, it was more appropriate to deal with those issues in the context of appeals from the trial decision - See paragraphs 24 to 26.

Cases Noticed:

International Minerals & Chemicals Corp. (Canada) Ltd. et al. v. Commonwealth Insurance Co. et al. (1990), 85 Sask.R. 304 (Q.B.), refd to. [para. 12].

Boisvert et al. v. Milton No. 292 (Rural Municipality) (2015), 464 Sask.R. 283; 33 M.P.L.R.(5th) 87; 2015 SKQB 2, refd to. [para. 13].

Rothmans, Benson & Hedges Inc. v. Saskatchewan (2002), 227 Sask.R. 121; 287 W.A.C. 121; 2002 SKCA 119, refd to. [para. 14].

Harvey et al. v. Western Canada Lottery Corp. (2015), 465 Sask.R. 1; 649 W.A.C. 1; 2015 SKCA 75, refd to. [para. 15].

Counsel:

Fred Zinkhan, for the applicant;

Michael Morris, for the respondent;

Peter Bergbusch, for the respondent.

This application for leave to appeal was heard on December 9, 2015, before Richards, C.J.S., of the Saskatchewan Court of Appeal, who delivered the following judgment on January 13, 2016.

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1 practice notes
  • Zelinski v Pidkowich, 2020 SKCA 42
    • Canada
    • Court of Appeal (Saskatchewan)
    • April 15, 2020
    ...fraud. IMC was cited with approval by Richards C.J.S. in Granitewest Developments Ltd. v Saskatchewan (Highways and Infrastructure), 2016 SKCA 3 at para 12, 472 Sask R 251 [Granitewest [43] Other decisions have limited the examination of the merits of proposed amendments to a determination ......
1 cases
  • Zelinski v Pidkowich, 2020 SKCA 42
    • Canada
    • Court of Appeal (Saskatchewan)
    • April 15, 2020
    ...fraud. IMC was cited with approval by Richards C.J.S. in Granitewest Developments Ltd. v Saskatchewan (Highways and Infrastructure), 2016 SKCA 3 at para 12, 472 Sask R 251 [Granitewest [43] Other decisions have limited the examination of the merits of proposed amendments to a determination ......

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