Whitefox Air Inc. v. Canada (Attorney General) et al., (2010) 357 Sask.R. 239 (QB)

• Judge: Acton, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: July 19, 2010
• Jurisdiction: Saskatchewan
• Citations: (2010), 357 Sask.R. 239 (QB);2010 SKQB 251

Whitefox Air v. Can. (A.G.) (2010), 357 Sask.R. 239 (QB)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. AU.008

Robert Gunderson (appellant) v. Whitefox Air Inc. and Whitefox Technologies U.S.A., Inc. (respondents)

(2009 Q.B.G. No. 106; 2010 SKQB 251)

Indexed As: Whitefox Air Inc. v. Canada (Attorney General) et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Melfort

Acton, J.

July 19, 2010.

Summary:

A businessman (Gunderson), affiliated with the Whitefox corporations, flew a plane to a Saskatchewan airport. The aircraft was seized by the RCMP to investigate whether the aircraft had been taken without permission (Criminal Code, s. 490). When it was determined that the aircraft was no longer required for the purposes for which it was seized, the businessman and Whitefox each filed notices of motion relying on affidavit evidence, claiming possession of the aircraft. In addition to the possession issue, preliminary issues arose as to whether the applications should be determined on affidavit evidence only and whether the court could or should order cross-examination on a supporting affidavit filed by Whitefox.

The Saskatchewan Provincial Court, in a decision reported 354 Sask.R. 104, held that it would determine the matter on the basis of the affidavit material. While the court could order cross-examination on the supporting affidavit, it declined to do so in this case. The court was unable to determine whether the businessman's possession of the aircraft at the time of seizure was lawful or unlawful. However, the court was satisfied that Whitefox was the lawful owner of the aircraft. The court stated that, given these competing claims, it would exercise its discretion in favour of the owner. Therefore Whitefox's application was allowed and the businessman's dismissed. The court stated that any possessory or ownership rights which the businessman might assert as shareholder, director, or trust protector remained available to him in the appropriate forum. The businessman appealed.

The Saskatchewan Court of Queen's Bench dismissed the appeal.

Criminal Law - Topic 3170

Special powers - Power of seizure - Detention or return of things seized - A businessman, affiliated with the Whitefox corporations, flew a plane to a Saskatchewan airport - The aircraft was seized by the RCMP to investigate whether the aircraft had been taken without permission (Criminal Code, s. 490) - When it was determined that the aircraft was no longer required for the purposes for which it was seized, the businessman and Whitefox each filed notices of motion relying on affidavit evidence, claiming possession of the aircraft - Whitefox sought return of the aircraft under ss. 490(10) and (11) asserting title to the aircraft pursuant to a trust deed and the Federal Aviation Administration certificate of registration - The businessman relied on ss. 490(7) and (9), claiming that his possession was lawful at the time the aircraft was seized from him - The Saskatchewan Provincial Court discussed how it should deal with competing claims of this nature under s. 490 - The court stated that despite the fact that these applications were argued together, they remained separate - Each claim was to be assessed separately; i.e., neither party started with a presumption that the other party had to rebut - The court was unable to determine whether the businessman's possession of the aircraft at the time of seizure was lawful or unlawful - However, the court was satisfied that Whitefox was the lawful owner of the aircraft - The court stated that in assessing the competing claims to possession between the person who claimed the right of possession to the aircraft in light of his rights as a member of the corporation that owned it, and the corporation itself, the court should exercise its discretion in favour of the owner - The Saskatchewan Court of Queen's Bench dismissed an appeal by the businessman - See paragraphs 1 to 24.

Criminal Law - Topic 3170

Special powers - Power of seizure - Detention or return of things seized - A businessman flew a plane to a Saskatchewan airport where it was seized by the RCMP in furtherance of a criminal investigation into allegations that the aircraft had been taken without permission - When it was determined that the aircraft could be released (Criminal Code, s. 490), the businessman and a corporation (Whitefox), filed notices of motion claiming possession of the aircraft, relying on affidavit evidence - One of the supporting affidavits filed by Whitefox (the Blum affidavit) claimed that the businessman had been president of Whitefox US, but had resigned and therefore was wrongfully using the aircraft for his personal use - Issues arose as to whether these applications should be heard by way of affidavit only (i.e., without oral testimony) and whether the businessman should be allowed to cross-examine Blum on the affidavit - A provincial court judge held that this matter could proceed on affidavit material - Further, while the court could grant leave to cross-examine on the affidavit, it would not do so in this case - The businessman appealed, arguing that the provincial court judge erred in refusing him the right to cross-examine Blum - The Saskatchewan Court of Queen's Bench dismissed the appeal - See paragraphs 25 to 31.

Practice - Topic 3687

Preliminary inquiry - Evidence - Affidavits - Use of - Cross-examination - The Saskatchewan Court of Queen's Bench noted that under Queen's Bench Rule 317 the court "may" grant an order requiring a person to attend for cross-examination on an affidavit - The court stated that rule 317 was very clear in the use of the word "may" - Therefore the right to cross-examine was not inherent or automatic in Saskatchewan, but purely discretionary - The court referred to authority which established that leave to cross-examine should be sparingly given - The court also noted that the Saskatchewan practice differed from some other jurisdictions - See paragraphs 25 to 31.

Practice - Topic 3687

Evidence - Affidavits - Use of - Cross-examination - [See second Criminal Law - Topic 3170 ].

Cases Noticed:

R. v. Kimmie (N.) (2006), 285 Sask.R. 186; 378 W.A.C. 186; 212 C.C.C.(3d) 127; 2006 SKCA 87, refd to. [para. 8].

R. v. Leitner (S.B.) (1998), 173 Sask.R. 269 (Q.B.), refd to. [para. 8].

R. v. Carpenter (L.) (2005), 272 Sask.R. 31; 2005 SKQB 432, refd to. [para. 8].

Zuidema Farms Inc. v. Gritzfeld et al. (2009), 331 Sask.R. 63; 460 W.A.C. 63; 2009 SKCA 51, refd to. [para. 8].

R. v. Horner (V.K.) (2004), 248 Sask.R. 240; 2004 SKQB 201, refd to. [para. 9].

R. v. Laporte (R.A.) (1995), 129 Sask.R. 315; 1995 CanLII 6020 (Q.B.), refd to. [para. 20].

Broadcast News Ltd. v. General Broadcasting Ltd. et al. (1985), 43 Sask.R. 172 (Q.B.), refd to. [para. 28].

Bank of Nova Scotia v. R. (1983), 24 Sask.R. 312 (Q.B.), refd to. [para. 29].

Hall v. Hall (2000), 188 Sask.R. 293; 2000 SKQB 35 (Fam. Div.), refd to. [para. 30].

Hoffman et al. v. Monsanto Canada Inc. et al. (2003), 242 Sask.R. 286; 2003 SKQB 564, refd to. [para. 31].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 490(10) [para. 7].

Queen's Bench Rules (Sask.) - see Rules of Court (Sask.), Queen's Bench Rules.

Rules of Court (Sask.), Queen's Bench Rules, rule 317 [para. 26].

Counsel:

Melvin R. Annand, Q.C., for the appellant;

Deron A. Kuski, for the respondents;

James M. Streeton, for Chase Bryant Inc.;

Bruce W. Gibson, for R.C.M.P.

This appeal was heard before Acton, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Melfort, who delivered the following judgment on July 19, 2010.