QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2012 SKQB 513 Date: 2012 12 10 Docket: Q.B. No. 454/2005 Judicial Centre: Prince Albert BETWEEN: SASKATCHEWAN GOVERNMENT INSURANCE, Plaintiff (Defendant by Counterclaim) and JOHN MEDYNSKI, operating sole proprietorship under the name LAKELAND TOWING, and ASTRO TOWING (P.A.) LTD., Defendants (Plaintiffs by Counterclaim) Counsel: Kenneth A. Stevenson, Q.C. for the plaintiff Neil C. Raas for the defendants JUDGMENT R.S. SMITH J. December 10, 2012 [1] granted judgment in this matter on April 18, 2012 (Saskatchewan Government Insurance v. Medynski, c.o.b. Lakeland Towing, 2012 SKQB 157 (CanLII), 396 Sask.R. 104, the “Original Judgment”). Paragraphs 103, 104, 113 and 114 of the Original Judgment read: [103] There is no objective evidence which supports the proposition that the Admin Fee is reasonable. Accordingly, conclude that the Admin Fee is not recoverable under the doctrine of quantum meruit. therefore grant judgment against the defendants in the amount of the Admin Fees charged and paid by SGI to the individual claimants. Specifics of judgment are: (i) Judgment against Astro for improperly charged Admin Fees in the amount of $148,850. In addition, SGI shall have judgment against Astro for any Admin Fees charged and paid by SGI subsequent to November 14, 2011. (ii) SGI shall have judgment against John Medynski, operating as Lakeland Towing for improperly charged and paid Admin Fees in the amount of $345,755.52. (iii) In addition, SGI shall have judgment for any Admin Fees charged and paid by SGI subsequent to November 14, 2011. [104] will remain seized with this matter respecting any dispute as to the amount of the judgment to be taken by SGI against the defendants. [113] conclude that SGI is entitled to recover from the defendants those charges made by the defendants for towing and other related services that were greater than 15% above the SGI Fee Schedule. In sum, conclude that the reasonable range is within 15% of the SGI Fee Schedule. [114] Fortunately, SGI’s detailed tracking of the charges by the defendants should permit this mathematical calculation to be made. I will leave to the parties the clerical task of engaging in that process. In the event the parties are unable to reach an agreement on what the judgment amounts to from the above formula, then I remain seized with this and they are to contact the registrar in order to arrange a time for argument on any points in debate. [2] The parties have not been able to reach an agreement as to how to calculate the final judgment. The solicitors for Saskatchewan Government Insurance (“SGI”) have submitted detailed calculations for the Court’s review. Mr. Raas, on behalf of the defendants, does not concede their accuracy but, at the same time, advances no specific objections nor does he submit his own calculations. [3] The defendants object to the request by SGI that I finalize judgment as contemplated by the above paragraphs 103, 104, 113 and 114. The defendants invoke Rule 15 of The Court of Appeal Rules which provides, in part: 15(1) Unless otherwise ordered by the judge appealed from or by judge, the service and filing of notice of appeal does not stay the execution of judgment or an order awarding mandamus, an injunction, alimony, or maintenance for spouse, child or dependant adult. Unless otherwise ordered by judge, the service and filing of notice of appeal stays the execution of any other judgment or order pending the disposition of the appeal. (4) Where the execution of judgment or order is stayed pending an appeal, all further proceedings in the action, other than the issue of the judgment and the taxation of costs under the judgment, are stayed unless otherwise ordered. [4] The defendants maintain that by reason of Rule 15, the service and filing of a notice of appeal stays the execution of a judgment until disposition of the appeal, unless otherwise ordered. There are certain exceptions, including orders of mandamus, injunctions and the like, none of which are in play here. The defendants complain that the calculation of judgment is proceeding on the judgment and thus barred by Rule 15. [5] SGI replies that the calculation of the judgment, essentially a mathematical process, is not acting on the judgment and thus is not a violation of the stay created by reason of the appeal. Further, SGI suggests it is appropriate and logical that the calculation of what is owing on the judgment be completed at this juncture, rather than waiting for the disposition of the appeal. [6] have found guidance in Silver Developments Ltd. (Trustee of) v. Investors Group Trust Co., [1999] S.J. No. 301 (QL) (Q.B.), wherein they referred to Mayrand v. Mayrand (1982), 1982 CanLII 2381 (SK CA), 20 Sask.R. 263, [1982] S.J. No. 861 (QL) (C.A.): [19] In Mayrand wife applied for relief against her husband. The husband applied for an order transferring the proceedings from the Unified Family Court in Saskatoon to the Court of Queen’s Bench at Humboldt. The Saskatchewan Unified Family Court dismissed the application. The husband filed notice of appeal. The wife applied to have lifted the stay she thought was imposed by then Rule 15(1). The relevant part of Rule 15(1) as it then was is the same in effect, if not the exact words, as the present Rule 15(1). [20] The application was heard by Chief Justice Bayda who dismissed it after saying at pp. 264‑65: Both parties appear to have misconceived the effect of the stay imposed by Rule 15(1) insofar as it affects the present appeal. The parts of the Rule material to the present case provide “... upon an appeal being filed, execution of the judgment appealed from shall be stayed pending the disposition of the appeal.” (my emphasis) It is noted that only “execution of the judgment” is stayed. Here, the “judgment appealed from” consists of an order of dismissal of an interlocutory application. The judgment does not direct that anything be executed. There is, therefore, nothing to stay. Accordingly, Rule 15(1) in the present factual situation is of no moment. The parties appear to have attributed to the stay imposed by Rule 15(1) scope that is totally unwarranted. The Rule does not impose general stay of proceedings bringing to halt all proceedings in the action as would an order of court directing stay of all proceedings. The Rule imposes stay of only one proceeding: the execution of the judgment appealed from. It follows that the wife may make her application to the Unified Family Court without any order of this court under Rule 15(1). [7] In this instance, all SGI has requested is to finalize the calculation of the judgment. In my view, this step is completely consonant with the reasoning of Chief Justice Bayda in Mayrand. [8] In Silver Developments Ltd., supra, Justice Armstrong was addressing the scope of Rule 15. In the judgment dated May 13, 1999, which was an addendum to prior judgment in the matter dated February 19, 1999 (Silver Developments Ltd. (Trustee of) v. Investors Group Trust Co. (1999), 1999 CanLII 12521 (SK QB), 182 Sask.R. 64 (Q.B.)), Justice Armstrong opined: [26] For “all further proceedings in the action” as stated in Rule 15(4) to limit the judge’s authority over his or her own judgment prior to it being formally issued would require exercise of such authority to be “proceeding” in the action and in my view it is not. Furthermore, the Court of Appeal would have to have jurisdiction to prohibit judge of the Court of Queen’s Bench from making any change to his or her own judgment even though the judge is not functus officio. With respect, such jurisdiction is something do not believe the Court of Appeal has. ... [27] The expression “... other than issue of the judgment ...” does not in my view mean either that making or changing the judgment is “proceeding” or assuming it is, that “all further proceedings in the action” are stopped regardless of the judgment not having been formally entered. Had this been intended think the rules would have said so. ... [9] The Saskatchewan Court of Appeal had occasion to comment upon the appropriate procedure in somewhat similar circumstance. In Bart v. Phoenix Farms, 1997 CanLII 9718 (SK CA), [1997] W.W.R. 353, 152 Sask.R. 203 (C.A.), the trial decision was appealed, and the successful party at trial applied for the stay of execution to be lifted. It would appear from the judgment that the matter had gone on for some time, and the calculation of judgment was in hot dispute. [10] In addressing the application to lift the stay, Justice Cameron made the following observation: [8] In the light of all of this, and in the whole of the circumstances, it might have been better had the parties gone back to the chamber judge for clarification of the order and for further directions. might say the nature of the interlocutory matters now in issue, the form of the order, and the way in which the remainder of the dispute has evolved since the making of the order, rather suggests return to the chamber judge for such purposes. In the circumstances, he would not appear to be functus. Nor would the Court of Queen’s Bench appear to be foreclosed by the existence of the appeal from further acting upon the matters now in dispute. [Emphasis added] [11] Additionally, in Lac La Ronge Indian Band v. Dallas Contracting Ltd., 2002 SKQB 407 (CanLII), 228 Sask.R. 46, Justice Baynton was dealing with an application to determine costs at trial in the face of an appeal that had been launched. Determining costs is specific exception contemplated under Rule 15(4). However, Justice Baynton had occasion to observe that stay arising from the appeal does not affect all aspects of judgment. He also emphasized the practical considerations of expense, delay and providing accurate information to the Court of Appeal. He provides guidance commencing at paragraph of his judgment: [5] Counsel for the respondents have quite properly cited Mayrand v. Mayrand (1982), 1982 CanLII 2381 (SK CA), 20 Sask.R. 263 (C.A.), Prince Albert Credit Union Ltd. v. Diehl et al., 1985 CanLII 2646 (SK CA), [1986] W.W.R. 635 (Sask. C.A.) and Silver Developments Ltd. (Trustee of) v. Investors Group Trust Co., [1999] S.J. No. 301 (Q.B.). They also quite properly distinguish these cases on their facts and submit that while subsection (1) has been interpreted to effect stay only on the execution (and not all aspects of judgment), subsection (4) effects stay of all further proceedings in the action other than the issue of the judgment and the taxation of costs under the judgment. They maintain that an application for an order respecting costs is “proceeding in the action” and is accordingly stayed pursuant to subsection (4) of Rule 15. [6] fail to appreciate the merit in this fine distinction. From policy perspective, if the submission is accepted, the parties will be put to unnecessary delay and expense. The determination of costs cannot be made until the Court of Appeal releases its decision on the appeals of the judgment. As requested by counsel at trial, reserved the matter of costs when released my reasons for judgment. The respondents acknowledge that if they fail in their appeals, the costs issue must necessarily be referred back to me for determination. as the trial judge am not functus respecting the matter of costs. Once ultimately make the costs determination, further appeal can then be taken by any of the parties respecting my decision on costs. In such event, the costs and delay occasioned by multiple appeal hearings will be visited on the parties. [7] However, if determine the costs issue at this time, this potential delay and expense will be avoided. The Court of Appeal will have my decision on costs before them when they determine the appeals that are now pending. confirmed with counsel that the appeals will not be heard for some time so that any party to the action will have the opportunity to appeal my determination of the costs issue and have it heard at the same time as the appeals that have been undertaken. [Emphasis added] [12] Accordingly, do not regard the calculation of the judgment as contemplated by the Original Judgment as “proceeding” in the action. Attending to the clerical task now will avoid costs and delay and will hopefully be of some assistance to the Court of Appeal. [13] Accordingly, it is appropriate for me to calculate the judgment owing to the date of my Original Judgment based on the materials submitted by SGI. [14] Therefore, there will be judgment in favour of SGI against Astro Towing (P.A.) Ltd. (“Astro”) calculated as follows: As per paragraph 103 of the Original Judgment $148,850.00 Additional Admin Fees charged to April 18, 2012 200.00 Other overcharges as provided for in paragraphs 113 and 114 of the Original Judgment 26,159.63 Pre‑judgment interest 15,737.54 Total judgment by SGI against Astro as at April 18, 2012 $190,947.17 [15] SGI shall have judgment against John Medynski, operating as Lakeland Towing, as follows: As per paragraph 103 of the Original Judgment $345,755.53 Additional Admin Fees charged to April 18, 2012 28,850.00 Other overcharges as provided for in paragraphs 113 and 114 of the Original Judgment 146,381.91 Pre‑judgment interest 17,133.51 Total judgment by SGI against John Medynski as at April 18, 2012 $538,120.95 [16] As discussed, any proceedings on the judgment are stayed pending the appeal. Once the appeal is disposed of, SGI should prepare formal judgment rolls based on the above, subject, of course, to any changes emanating from the Court of Appeal. [17] There will be no costs of this application.
In the original judgment, the manner in which certain calculations should be made with respect to the amount owing to the plaintiff was left to the parties, with the provision that the judge remained seized if they could not reach an agreement. After judgment, the defendants appealed the judgment.  The plaintiffs then submitted detailed calculations of the final judgment for the trial judge's review. The defendants objected to the finalization of the judgment on the ground that, pursuant to Court of Appeal Rule 15, the notice of appeal had stayed the execution of the judgment until the disposition of the appeal. The plaintiff submitted that the calculation of the judgment was not acting on it. HELD: The defendant misconstrued the scope of Rule 15 as it does not stay proceedings. The appeal does not affect the ability of the Court to finalize the judgment. In fact, to do so will avoid costs and delay, and will hopefully be of some of assistance to the Court of Appeal.