THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2009 SKCA 97 Date: 20090826 Between: Docket: 1827 William Stocks and Joy Stocks Proposed Appellants and Robin Gardner Proposed Respondent Before: Smith J.A. (In Chambers) Counsel: Heather L. Nord for the Proposed Appellants Ryan M. Hrechka for the Proposed Respondent Application: From: 2009 SKQB 318 (CanLII) Heard: August 26, 2009 Disposition: Leave to Appeal Granted (Orally) Written Reasons: August 28, 2009 By: The Honourable Madam Justice Smith [1] The proposed appellants and the proposed respondent were involved in litigation involving the ownership of some valuable breeding dogs which were in the possession of the proposed respondent, but claimed by the proposed appellants. The proposed appellants sought and obtained writ of replevin in relation to the dogs pursuant to Rules 406-10 of The Queen’s Bench Rules. The proposed appellants provided an irrevocable letter of credit in the amount of $12,000 as security in accordance with the requirements of Rule 408. The proposed respondent did not provide security, as she was entitled to do by Rule 409A, and the sheriff therefore seized two of the disputed dogs then in her possession. She then applied to the Court of Queen’s Bench for an order setting aside the writ, and ordering the dogs to be returned to her, on the grounds that the affidavit filed in support of the writ contained false and misleading information. [2] The chambers judge granted the application, finding, on the basis of affidavit evidence filed before him, that the affidavit filed in support of the writ contained false and misleading information and that to allow the writ to stand would therefore constitute an abuse of the process of the Court. [3] Rule 407 provides as follows: 407(1) writ of replevin shall be issued by the local registrar upon the plaintiff filing his affidavit or that of his duly authorized agent, (a) Embodying description of such property and the value thereof, to the best of the deponent’s belief, and stating that the plaintiff claiming is the owner, or is entitled to the possession of the said property; (b) Further stating, if replevin is sought in the case of property distrained for rent or damage feasant, that the property was taken under colour of distress for rent or damage feasant, as the case may be, or (c) In the case of property wrongfully taken out of the possession of the plaintiff, or fraudulently got out of his possession, stating in addition to the particulars required by clause (a) of this rule the time when and the wrongful and fraudulent manner in which the same was taken, or gotten out of his possession, and such facts and circumstances as show that the plaintiff is entitled to the possession of the property; (d) Naming the judicial centre nearest to which the property sought to be replevied is situated. (2) Where the affidavit substantially complies with the requirements of Subrule (1) the validity of the writ of replevin shall not be questioned in any interlocutory proceeding. [4] The question raised on the proposed appeal is whether the chambers judged erred in enquiring into the accuracy of the facts sworn to in the proposed appellants’ affidavit, in light of the provision in Rule 407(2) that provides that the validity of the writ shall not be questioned in any interlocutory proceeding where the affidavit substantially complies with the requirements of subrule (1). The proposed appellants argue that, in effect, the chambers judge treated the application to set aside the writ as trial of the very issue of the on-going litigation. [5] Where leave to appeal is sought in relation to an interlocutory order, the test to be applied was articulated in Rothmans, Benson Hedges Inc. v. Saskatchewan, 2002 SKCA 119 (CanLII), 227 Sask.R. 121. Essentially, the judge in chambers is required to determine whether the issue sought to be raised on the appeal is of sufficient merit and importance to warrant the attention of the Court of Appeal. [6] have concluded that the proposed appeal in this case meets the test set out and that leave should be granted. In light of the clear wording of Rule 407(2), the question is clearly not frivolous or vexatious. While the value of the dogs is relatively low, they are clearly highly valued by the parties, and they are, in effect, unique chattels. The appeal should not unduly delay the proceedings, for it raises very narrow issue and can proceed to appeal quickly. Most significantly, it is my view that the ruling of the chambers judge in this case raises an issue of considerable significance to the general operation of the remedy of a writ of replevin as provided in the Rules of Court, and merits consideration by this Court. [7] Leave to appeal is granted.
The proposed appellants and the proposed respondent were involved in litigation involving the ownership of some valuable breeding dogs that were in the possession of the proposed respondent, but claimed by the proposed appellants. The proposed appellants sought and obtained a writ of replevin in relation to the dogs. The proposed respondent applied for an order setting aside the writ, and ordering the dogs returned. The chambers judge granted the application finding that the affidavit filed in support of the writ contained false and misleading information and that to allow the writ to stand would constitute an abuse of process. The issue on appeal is whether the chambers judge erred in inquiring into the accuracy of the facts sworn to in the proposed appellant's affidavit, in light of the provision in Rule 407(2) of the Queen's Bench Rules that provides that the validity of the writ shall not be questioned in any interlocutory proceeding where the affidavit substantially complies with the requirements of the Rule. HELD: Leave to appeal is granted. The ruling of the chambers judge raises an issue of considerable importance to the general operation of the writ of replevin as provided for in the Rules of Court.