J.D. KOCH THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 110 Date: 2013-10-23 Between: Docket: CACV2345 Michael Newell and The Director of Community Operations and 101150089 Saskatchewan Ltd. Coram: Richards C.J.S., Ottenbreit and Herauf JJ.A. Counsel: Nicole Sarauer and Barbra Bailey for the appellant Alan Fern for the respondent, The Director of Community Operations Appeal: From: 2012 SKQB 441 (CanLII) Heard: April 9, 2013 Disposition: Appeal dismissed Written Reasons: October 23, 2013 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Chief Justice Richards The Honourable Mr. Justice Herauf OTTENBREIT J.A. [1] Michael Newell appeals the decision of the Chambers judge dismissing his application under Rule 173(e) of The Queen’s Bench Rules of Court and the inherent jurisdiction of the Court to strike out or stay the application of the Director of Community Operations for community safety order under The Safer Communities and Neighbourhoods Act, S.S. 2004, c. S-0.1 (“SCAN”), because the Director’s application constituted multiplicity of proceedings and was therefore an abuse of process. [2] Leave to appeal was granted in decision found at 2012 SKCA 115 (CanLII) on the provisional basis that there was authority to appeal in ss. and of The Court of Appeal Act, 2000, S.S. 2000, c. C-42.1, and on the premise that the decision of the Queen’s Bench Chambers judge was made in the context of Queen’s Bench Rule 173(e) and the exercise of the court’s inherent jurisdiction to prevent abuse of its process. [3] For the reasons hereinafter set forth, Mr. Newell’s appeal is dismissed. I. Facts and Background [4] Mr. Newell has, since March of 2001, resided as tenant at house at 1333 Wascana Street in Regina, Saskatchewan. In March of 2012, the Director, acting as the agent of Mr. Newell’s landlord, applied for an order terminating Mr. Newell’s tenancy pursuant to ss. 68 and 70 of The Residential Tenancies Act, 2006, S.S. 2006, c. R-22.0001, on the grounds that Mr. Newell was trafficking drugs. [5] The Residential Tenancies Act hearing officer determined that Mr. Newell was more likely than not trafficking in marihuana but found the evidence insufficient to make determination that Mr. Newell was trafficking from the house. Accordingly, he did not find that the activity caused or was likely to cause damage to the landlord’s property or that it would adversely affect the quiet enjoyment, security, safety or physical well-being of Mr. Newell’s neighbours as required to terminate tenancy under s. 68 of The Residential Tenancies Act. The landlord’s application was dismissed with written reasons dated April 9, 2012. There was no appeal filed by the Director. [6] The Director then filed motion with the Court of Queen’s Bench on May 8, 2012, against the landlord for community safety order pursuant to s. of SCAN. The proposed community safety order also sought the termination of Mr. Newell’s tenancy at the house. The material filed by the Director in support of this application included the evidence presented at the earlier residential tenancies hearing dealt with by the hearing officer, as well as new evidence of further surveillance of the house conducted on April 25, 26 and 27, 2012. The landlord of the house agreed with the Director’s application but did not participate in it. [7] Mr. Newell then applied to be added as party to the proceedings under Queen’s Bench Rule 39 as well as to strike the Director’s motion as an abuse of process pursuant to Queen’s Bench Rule 173(e) as well as the inherent jurisdiction of the court. II. Decision of the Court Below [8] The Chambers judge’s decision can be found at 2012 SKQB 441 (CanLII). She determined that Mr. Newell had met the criteria set out in Rule 39 and added him as party. [9] Mr. Newell argued that the Director’s application was an abuse on the basis that it was relitigation of the Director’s previous action under The Residential Tenancies Act respecting the same subject matter. The Director argued that it was fresh litigation in the interests of justice. [10] The Chambers judge determined that Mr. Newell’s application would be better understood when viewed not only with respect to abuse of process but also in the context of issue estoppel and the rule against collateral attack despite that neither party had dealt with nor argued the last two issues before her. [11] After reviewing the law germane to issue estoppel, she determined that two of the three preconditions, final judicial decision and identity of parties or privies had been met. She found identity of issue to be arguable. She concluded: 41 have spent considerable time on the doctrine of issue estoppel because, in my mind, the complaint made by Mr. Newell fits neatly within its parameters. Mr. Newell claims the Director’s complaint against him was considered and decided by the Hearing Officer and he should not have to return to court to face the same complaint again. agree that it is arguable the same issue is before the court as was heard by the Hearing Officer. However, as held by Binnie J. in Danyluk, supra, meeting the three tests of (a) the same party; (b) the same issue and (c) previous final judicial decision, is not enough. In order to satisfy the doctrine of issue estoppel, court must still decide whether fairness is better achieved by applying issue estoppel, or by refusing to apply it. As Mr. Newell did not request the application of issue estoppel, and as it was not argued by the parties, will consider the fairness issue in the context of abuse of process. [12] The Chambers judge then moved on to the issue of collateral attack and said: 43 Again the issue of fairness is raised. As the parties did not consider the issue of collateral attack, will discuss the balancing of “fairness to the parties with the protection of the administrative decision-making process” (ibid., para. 21) in the context of abuse of process. [13] The Chambers judge then turned to the issue of abuse of process. She reviewed the governing law respecting abuse of process as explained in Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, 2003 SCC 63 (CanLII), [2003] S.C.R. 77, at paras. 35, 37, 42, 43, 44, 51, 52 and 53. She determined the following: 50 The end result of both an application for an order for possession under the RTA and for CSO is the eviction of the resident(s) from the Premises. However, the purposes behind the power to grant this relief are dissimilar. The focus of the order for possession is the removal of tenant for failure to comply with certain of the rights given to landlords under the Act. The rationale behind removing resident under the SCNA is to protect communities and neighbourhoods from certain activities that may adversely affect them. 51 In C.U.P.E. Local 79 Arbour J. suggested that relitigation may enhance rather than impeach the integrity of the judicial system “when fairness dictates that the original result should not be binding in the new context”. (para. 52) It may be assumed that the Legislature expected, when drafting the SCNA, that the processes under it and the RTA would overlap from time to time. However, the Legislature did not provide that recourse to one prohibited recourse to the other. 52 The circumstances that gave rise to the application before the Hearing Officer have been significantly supplemented by incidents that post date that application. As the Director does not seek to overturn factual determinations made by the Hearing Officer, simply that the Director seeks to rely on the same facts that were before the Hearing Officer, supplement those facts with new evidence, and ask different decision maker to reach different conclusion. 53 The application before the court requires that Mr. Newell respond to some of the same facts again. However, if the second proceeding is not allowed to go forward in the interests of finality, the Director is unable to fulfil his mandate with respect to the Premises. On balance, and as matter of fairness, do not find it an abuse of process to require that Mr. Newell respond to the Director’s application. [14] Having resolved the fairness issues respecting issue estoppel and collateral attack as part of the abuse of process analysis, she accordingly dismissed the application for stay or striking out of the SCAN application. III. Standard of Review [15] Both parties accept that the decision of the Chambers judge is discretionary. The standard of review generally in such case is set forth in Rimmer v. Adshead, 2002 SKCA 12 (CanLII), [2002] W.W.R. 119, at para. 58 In turning to this issue, it is necessary to bear in mind that the powers in issue are discretionary and therefore fall to be exercised as the judge vested with them thinks fit, having regard for such criteria as bear upon their proper exercise. The discretion is that of the judge of first instance, not ours. Hence, our function, at least at the outset, is one of review only: review to determine if, in light of such criteria, the judge abused his or her discretion. Did the judge err in principle, disregard material matter of fact, or fail to act judicially? Only if some such failing is present are we free to override the decision of the judge and do as we think fit. Either that, or the result must be so plainly wrong as to amount to an injustice and invite intervention on that basis. [emphasis added] IV. Points in Issue [16] Mr. Newell raises five issues in support of his grounds in his notice of appeal. They are framed in his factum as: issue estoppel vs. abuse of process; abuse of process; issue estoppel; policy considerations; and, no undue delay, cost or prejudice to the Director. These may all be addressed under the rubric of whether the Chambers judge erred in finding there was no abuse of process. [17] The Director also raises two issues related to the jurisdiction of this Court to hear the appeal based on issues which were not argued before the court below. V. Analysis [18] will begin by dealing with the jurisdictional issues. [19] The Director urges the Court to deal with preliminary argument that this Court does not have jurisdiction to entertain this appeal because it is an interlocutory appeal from decision which is part of an application under SCAN. [20] This is so, the Director’s argument goes, because of ss. 24(1) and 25(1)(a) and (2)(b) of SCAN. These sections read as follows: 24(1) An order of the court made pursuant to this Part may be appealed to the Court of Appeal: (a) on question of law; and (b) with leave of judge of the Court of Appeal. 25(1) Subject to subsection (2), no action or proceeding shall be commenced or maintained: (a) to prevent the making of community safety order; (2) Subsection (1) does not apply to: (b) an appeal pursuant to section 24. The Director argues these provisions both prohibit interlocutory applications which have the effect of preventing SCAN order and confer only limited right of appeal of determination under SCAN. The Director argues that those limited appeal rights are recognized by s. 7(3) of The Court of Appeal Act, 2000, which reads as follows: 7(3) If an enactment provides that there is no appeal from decision mentioned in subsection (2) or confers only limited right of appeal, that enactment prevails. Therefore, according to the Director, this limited right of appeal takes priority over the general rights of appeal set out in ss. and of The Court of Appeal Act, 2000. In short, the Director argues that SCAN only allows appeals of orders under Part II of SCAN but not of interlocutory orders. [21] The Director submits that Mr. Newell’s application respecting abuse of process in the court below had the effect of preventing SCAN order and that it should not have been made and there is therefore no jurisdiction to hear his appeal from such an application. It is common ground the alleged prohibition against interlocutory applications was not argued before the Chambers judge. [22] Mr. Newell’s position respecting this argument is that this Court is not limited by any provisions of SCAN because the application before the Chambers judge originated as Rule 173(e) application and an application pursuant to the court’s inherent jurisdiction and therefore, the source of his right to appeal is grounded in ss. and of The Court of Appeal Act, 2000. Furthermore, he argues that because leave was granted to appeal the decision on that basis, this Court has jurisdiction to hear his appeal. [23] agree with the Director that the granting of leave does not dispose of whether this Court has jurisdiction to deal with this appeal. However, the jurisdiction to hear this appeal is not dependent on his argument respecting any attenuated right under SCAN to make interlocutory applications in the court below. The issue of whether Mr. Newell’s application was contrary to s. 25(1)(a) of SCAN was not raised or argued in the court below. The usual practice of the Court is not to extend its inquiry on appeal into an entirely new matter argued for the first time on appeal (R. v. Perka, 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232; Farr-Mor Fertilizer Services Ltd. v. Hawkeye Tanks & Equipment Inc., 2002 SKCA 44 (CanLII), 291 Sask. R. 148). I see no reason in the circumstances of this case to depart from the Court’s usual practice. The issue deserves full argument and submissions by the parties and analysis by court at first instance. Accordingly, this issue will not be addressed on this appeal and plays no part in determining this Court’s jurisdiction to hear this appeal. [24] The jurisdiction to hear this appeal can be found in the Court’s general jurisdiction under ss. 7 and 8 of The Court of Appeal Act, 2000. Part II of SCAN sets out in some detail the nature and potential terms of Part II orders. The order being appealed is by its terms not an order under Part II. What is being appealed is in the nature of a procedural order under Queen’s Bench Rule 173 and/or the inherent jurisdiction of the Court, therefore s. 24 of SCAN does not apply. As such this Court has jurisdiction to hear the appeal of such an order in the circumstances of this case. [25] The Director argues as an alternative that if this Court is inclined to hear the appeal at all then it should not deal with it on the basis of either issue estoppel or collateral attack because neither were argued below by the parties. [26] Given the reasons which follow, it is not necessary to approach the appeal on the basis of whether the Chambers judge correctly dealt with the issues of estoppel and collateral attack. For the purposes of my analysis, will accept the Chambers judge’s analysis on these two issues as it informs the issue of abuse of process. [27] This appeal therefore turns on whether the Chambers judge erred in determining in all the circumstances that there was no abuse of process and that stay was not appropriate. Did the Chambers Judge Err in Determining there was No Abuse of Process [28] Mr. Newell brought his application in the court below on the basis that it should be struck because it was an abuse of process within the meaning of Rule 173(e) or stayed or dismissed pursuant to the court’s inherent jurisdiction. therefore begin with the overarching principle applicable to this case; that the jurisdiction to strike or stay claim must only be exercised in plain and obvious cases where the matter is beyond doubt. [29] In Sagon v. Royal Bank of Canada (1992), 1992 CanLII 8287 (SK CA), 105 Sask. R. 133 (C.A.), Sherstobitoff J.A., at paras. 18 and 19, states: 18 Striking out an entire claim on the ground that it is frivolous, vexatious or an abuse of process of the court is based on an entirely different footing. Instead of considering merely the adequacy of the pleadings to support reasonable cause of action, it may involve an assessment of the merits of the claim, and the motives of the plaintiff in bringing it. Evidence other than the pleadings is admissible. Success on such an application will normally result in dismissal of the action, with the result that the rule of res judicata will likely apply to any subsequent efforts to bring new actions based on the same facts. Odgers on Pleadings and Practice, 20th Ed. says at pp. 153-154: If, in all the circumstances of the case, it is obvious that the claim or defence is devoid of all merit or cannot possibly succeed, an order may be made. But it is jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases. Its exercise would not be justified merely because the story told in the pleadings is highly improbable, and one which it is difficult to believe could be proved. [footnotes omitted] 19 Finally, separate mention should be made of the power of the court to prevent abuse of its process, power which is inherent as well as conferred under rule 173. Bullen and Leake defines the power as follows at pp. 148-149: The term ‘abuse of the process of the court’ is term of great significance. It connotes that the process of the court must be carried out properly, honestly and in good faith; and it means that the court will not allow its function as court of law to be misused but will in proper case, prevent its machinery from being used as means of vexation or oppression in the process of litigation. It follows that where an abuse of process has taken place, the intervention of the court by the stay or even dismissal of proceedings, ‘although it should not be lightly done, yet it may often be required by the very essence of justice to be done’. The term ‘abuse of process’ is often used interchangeably with the terms ‘frivolous’ or ‘vexatious’ either separately or more usually in conjunction. [footnotes omitted] [30] Mr. Newell accepts that the Chambers judge correctly stated the governing law respecting the court’s jurisdiction to prevent abuse found in the following cases: Englund v. Pfizer Canada Inc., 2007 SKCA 62 (CanLII), 284 D.L.R. (4th) 94, at paras. 33 and 34; Insurance Co. of the State of Pennsylvania v. Global Aerospace, Inc., 2010 SKCA 96 (CanLII), [2010] 10 W.W.R. 426 at paras. 63, 97 and 98; and C.U.P.E. Local 79. [31] Richards J.A. in Bear v. Merck Frosst Canada Co., 2011 SKCA 152 (CanLII), 345 D.L.R. (4th) 152, also recently summarized the law as follows: 36 The doctrine of abuse of process reflects the inherent power of judge to prevent an abuse of his or her court’s authority. It is flexible concept not restricted by the requirements of issue estoppel, such as those relating to privity. The doctrine can be engaged by variety of circumstances including what might be called those concerning the “re-litigation” of issues or claims. 37 Goudge J.A., in Canam Enterprises Inc. v. Coles (2000), 2000 CanLII 8514 (ON CA), 194 D.L.R. (4th) 648 (Ont. C.A.), dissenting but approved at 2002 SCC 63 (CanLII), [2002] S.C.R. 307, explained the applicable concepts as follows at paras. [55] The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in way that would be manifestly unfair to party to the litigation before it or would in some other way bring the administration of justice into disrepute. It is flexible doctrine unencumbered by the specific requirements of concepts such as issue estoppel. See House of Spring Gardens Ltd. v. Waite, [1990] W.L.R. 347 (C.A.) at 358. [56] One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate claim which the court has already determined. 38 The need to maintain the integrity of the adjudicative process sits at the heart of the concept of abuse of process. The Supreme Court of Canada explained this point as follows in Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CanLII), [2003] 51 Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality. See also: Cameco Corp. v. Insurance Co. of State of Pennsylvania, 2010 SKCA 95 (CanLII), [2010] 10 W.W.R. 385 per Cameron J.A. at paras. 47-50. [32] The focus of the Chambers judge at the outset before her examination of issue estoppel and collateral attack was the proper framing of the Director’s actions as either relitigation of the same issues or fresh litigation in the interests of justice as alluded to by Abella J. in British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52 (CanLII), [2011] S.C.R. 422, at para. 1. [33] Abella J. in Figliola describes the harm that the general bar to relitigation is designed to prevent: 30 In other words, the harm to the justice system lies not in challenging the correctness or fairness of judicial or administrative decision in the proper forums, it comes from inappropriately circumventing them (Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 (CanLII), [2003] S.C.R. 77, at para. 46). She goes on to discuss the availability of the doctrine of abuse of process and the common thread of preventing unfairness running through the concepts of abuse of process, issue estoppel, collateral attack and res judicata. 33 Even where res judicata is not strictly available, Arbour J. concluded, the doctrine of abuse of process can be triggered where allowing the litigation to proceed would violate principles such as “judicial economy, consistency, finality and the integrity of the administration of justice” (para. 37). She stressed the goals of avoiding inconsistency and wasting judicial and private resources: [Even] if the same result is reached in the subsequent proceeding, the relitigation will prove to have been waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality. [para. 51] (See also R. v. Mahalingan, 2008 SCC 63 (CanLII), [2008] S.C.R. 316, at para. 106, per Charron J.) 34 At their heart, the foregoing doctrines exist to prevent unfairness by preventing “abuse of the decision-making process” (Danyluk, at para. 20; see also Garland, at para. 72, and Toronto (City), at para. 37). Their common underlying principles can be summarized as follows: It is in the interests of the public and the parties that the finality of decision can be relied on (Danyluk, at para. 18; Boucher, at para. 35). Respect for the finality of judicial or administrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings (Toronto (City), at paras. 38 and 51). The method of challenging the validity or correctness of judicial or administrative decision should be through the appeal or judicial review mechanisms that are intended by the legislature (Boucher, at para. 35; Danyluk, at para. 74). Parties should not circumvent the appropriate review mechanism by using other forums to challenge judicial or administrative decision (TeleZone, at para. 61; Boucher, at para. 35; Garland, at para. 72). Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources (Toronto (City), at paras. 37 and 51). [34] The flexibility of the doctrine of abuse of process and its purpose of insuring that the administration of justice is not brought into disrepute was recently re-affirmed in Behn v. Moulton Contracting Ltd., 2013 SCC 26 (CanLII), 357 D.L.R. (4th) 236, at paras. [35] Mr. Newell’s argument that the Chambers judge misapplied the law with respect to issue estoppel and collateral attack because having found an issue estoppel she failed to determine that the broader test for abuse of process had been met cannot succeed. In my view, the Chambers judge merely used the estoppel and collateral attack analysis to assist her in clarifying the issues in play with respect to relitigation and multiplicity of proceedings but acknowledged that she could not make final decision on either basis because neither was argued before her. She reviewed the elements of issue estoppel as part of the abuse of process analysis and moved directly to the issue of fairness in the context of abuse of process. [36] The fairness analysis with respect to abuse of process referred to by the Chambers judge is explained in C.U.P.E. Local 79, at paras. 52 and 53, where Justice Arbour observes that discretionary factors that apply to prevent the doctrine of issue estoppel from operating are also available to prevent the doctrine of abuse of process from achieving similar undesirable result: 52 There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para. 80. 53 The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or tainted original process may all overcome the interest in maintaining the finality of the original decision (Danyluk, supra, at para. 51; Franco, supra, at para. 55). Relitigation may therefore enhance the credibility and effectiveness of the adjudicative process in some cases “when fairness dictates that the original result should not be binding in the new context”. [37] The Chambers judge appropriately balanced the factors respecting the fairness of allowing relitigation and determined that in all the circumstances it would not be unfair to Mr. Newell to allow the SCAN application to succeed. She gave cogent and sustainable reasons why there was no abuse of process and why she refused to exercise her discretion to enter stay. They were: (i) that both The Residential Tenancies Act and SCAN have process for obtaining an order for the tenant to vacate and neither is the exclusive forum; (ii) although the two processes are similar, SCAN implicitly has a wider ambit than The Residential Tenancies Act; (iii) the purpose of each legislation is different, The Residential Tenancies Act being private in nature and determination of rights between landlord and tenant, and SCAN being community based and concerned with the protection of the public; (iv) because each legislation has different purposes, fairness dictates that the result of the original matter should not be binding in the new legislative context; (v) knowing that the two Acts would overlap, the Legislature did not prohibit proceeding under SCAN where there had already been proceeding under The Residential Tenancies Act (The Residential Tenancies Act, s. 67(5)); (vi) the SCAN application was not merely relitigation of the same facts but rather reliance on the previous factual findings in The Residential Tenancies Act proceeding supplemented by new evidence (19 short term visits to the premises believed to be consistent with drug trafficking) using different process; and (vii) although Mr. Newell will be required to respond to some of the same facts again, staying the application will not achieve the interests of finality or allow the Director to fulfill his mandate. [38] All of these reasons accord with the SCAN legislation which allows for repeated complaints which trigger the Director’s statutory mandate to investigate. SCAN contemplates multiple applications respecting the same residence given that the orders have only 90 day duration. [39] It may be inferred that in this case the Chambers judge concluded for all those reasons that the integrity of the judicial decision making process and the interests of justice had not been compromised. In my view, she properly identified and balanced the considerations in play based on the governing law. [40] Her analysis, as whole, addresses the germane issues of judicial economy, consistency, finality and the integrity of the administration of justice which might militate against relitigation. take her conclusion to be that there would not be real injustice in the particular case and the SCAN application was not clearly an abuse. [41] I cannot say based on the applicable standard of review that the Chambers judge improperly exercised her discretion and erred in refusing to grant the stay requested. [42] As final comment, although have determined that the Chambers judge was correct in finding no abuse of process in the circumstances of this case, the issue of whether public officer’s actions pursuant to statutory power can be an abuse of process was not argued before us and this decision cannot be read to have decided that issue. That said, it can also not be concluded that an application under The Residential Tenancies Act to terminate tenancy by the Director and subsequent SCAN applications respecting the same residence may never be questioned in any circumstances. [43] The appeal of Mr. Newell is dismissed. There will be no costs. DATED at the City of Regina, in the Province of Saskatchewan, this 23rd day of October, A.D. 2013. “Ottenbreit J.A.” Ottenbreit J.A. concur “Richards C.J.S.” Richards C.J.S. concur “Herauf J.A.” Herauf J.A.
HELD: The Court addressed the issue of jurisdiction by holding that it would follow its usual practice to refuse to hear an entirely new matter argued for the first time on appeal. Since the order being appealed from was not a Part II order under SCNA, what was being appealed was a procedural order under Queen’s Bench Rule 173 and the inherent jurisdiction of the Court, and therefore the Court had jurisdiction to hear the appeal pursuant to ss. 7 and 8 of the Court of Appeal Act. The Court held with respect to the decision in Chambers that the judge properly exercised her discretion and did not err in refusing to grant the stay requested. The Chambers judge appropriately balanced the factors respecting the fairness of allowing re-litigation and determined in all of the circumstances that it would not be unfair to the appellant to allow the SCNA application to succeed because the purpose of that legislation was different and had a wider ambit of The Residential Tenancies Act. However, the result of this appeal could not be taken to have decided whether a public officer’s actions pursuant to a statutory power could be an abuse of process or that an application under The Residential Tenancies Act to terminate a tenancy by the director and subsequent SCNA application respecting the same residence may never be questioned in any circumstances.