Prestige Commercial Interiors (1992) Ltd. v. Graham Construction & Engineering Inc., 2008 SKCA 27

• Judge: Wilkinson, J.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: February 13, 2008
• Jurisdiction: Saskatchewan
• Citations: 2008 SKCA 27;(2008), 307 Sask.R. 134 (CA)

Prestige Com. Interiors v. Graham Constr. (2008), 307 Sask.R. 134 (CA);

      417 W.A.C. 134

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. MR.004

Prestige Commercial Interiors (1992) Ltd. (prospective appellant/plaintiff/defendant by counterclaim) v. Graham Construction & Engineering Inc. (prospective respondent/defendant/plaintiff by counterclaim)

(1582; 2008 SKCA 27)

Indexed As: Prestige Commercial Interiors (1992) Ltd. v. Graham Construction & Engineering Inc.

Saskatchewan Court of Appeal

Wilkinson, J.A.

February 26, 2008.

Summary:

The plaintiff's proper officer did not reply to undertakings given during discovery. The defendant applied under rules 231 and 232 for an order striking the plaintiff's claim. The chambers judge ordered that the undertakings be provided within one month and that failure to do so would result in the plaintiff's claim and defence to counterclaim being struck (October 11 order). The plaintiff failed to provide the undertakings and now claimed that both it and its counsel misunderstood the time period. The defendant sought an order striking the claim and defence to counterclaim. The plaintiff applied to enlarge the time period to appeal the October 11 order.

The Saskatchewan Court of Appeal, per Wilkinson, J.A., dismissed the application. The plaintiff failed to satisfy the court that the order was arguably wrong and, in any event, the plaintiff did not have a bona fide intention to appeal the decision during the time period allowed for doing so.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - The plaintiff's proper officer did not reply to undertakings given during discovery - The defendant applied under rules 231 and 232 for an order striking the plaintiff's claim - The chambers judge ordered that the undertakings be provided within one month and that failure to do so would result in the plaintiff's claim and defence to counterclaim being struck (October 11 order) - The plaintiff failed to provide the undertakings and now claimed that both it and its counsel misunderstood the time period - The defendant sought an order striking the claim and defence to counterclaim - The plaintiff applied to enlarge the time period to appeal the October 11 order - The Saskatchewan Court of Appeal, per Wilkinson, J.A., dismissed the application - The plaintiff failed to satisfy the court that the order was arguably wrong and, in any event, the plaintiff did not have a bona fide intention to appeal the decision during the time period allowed for doing so.

Cases Noticed:

Wood v. Wood (2001), 203 Sask.R. 82; 240 W.A.C. 82 (C.A.), refd to. [para. 9].

Firemaster Oilfield Services Ltd. v. Safety Boss (Canada) (1993) Ltd. et al., [2001] 4 W.W.R. 256; 2000 ABQB 929, refd to. [para. 11].

Crane Canada Inc. v. 4-S Mechanical Ltd., Schmitt and Schmitt (1985), 42 Sask.R. 277 (Q.B.), refd to. [para. 11].

Huery v. Huery (2004), 252 Sask.R. 273 (Q.B. Fam. Div.), refd to. [para. 11].

Madison Development Group Inc. v. Phoenix Enterprises Ltd. et al. (1991), 96 Sask.R. 88 (Q.B.), refd to. [para. 16].

Samuels v. Linzi Dresses Ltd., [1980] 1 All E.R. 803 (C.A.), refd to. [para. 18].

R. v. Bloomsbury and Marylebone County Court; Ex parte Villerwest Ltd., [1976] 1 W.L.R. 362 (C.A.), refd to. [para. 18].

Jokai Tea Holdings, Re, [1992] 1 W.L.R. 1196 (C.A.), refd to. [para. 18].

Symbol Yachts Ltd. et al. v. Pearson et al. (1995), 102 F.T.R. 215 (T.D.), refd to. [para. 18].

Statutes Noticed:

Rules of Court (Sask.), Queen's Bench Rules, rule 231 [para. 14].

Counsel:

Stephen D. McLellan, for the prospective appellant;

Patrick A. Kelly, Q.C., for the prospective respondent.

This application was heard on February 13, 2008, before Wilkinson, J.A., of the Saskatchewan Court of Appeal, who delivered the following judgment on February 26, 2008.