THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 90 Date: 20110727 Between: Docket: CACV2120 Shirley Wanda Sinclair Appellant (Respondent) and Douglas Edward Webb Respondent (Applicant) Before: Vancise J.A. (in Chambers) Counsel: Shirley Wanda Sinclair appearing on her own behalf Davin Burlingham for the Respondent (Applicant) Application: From: Q.B. No. 552 of 2011, J.C. Saskatoon Heard: July 27, 2011 (orally) Disposition: Adjourned sine die Written Reasons: July 28, 2011 By: The Honourable Mr. Justice Vancise Vancise J.A. [1] Douglas Edward Webb obtained an order for possession pursuant to s. 3(3) of The Recovery of Possession of Land Act, R.S.S. 1978, c. R-7 granting possession of land and premises described as 1615 Broadway Avenue, Saskatoon, Saskatchewan. The proposed appellant Shirley Wanda Sinclair did not appear on that application and the order was made in her absence. [2] Ms. Sinclair filed Notice of Appeal alleging certain facts with respect to why the order ought not to have been made. [3] Mr. Webb applied pursuant to Rule 46.1(1) of the Court of Appeal Rules to quash the Notice of Appeal on the basis that the Notice of Appeal was entirely without merit by reason that there was evidence before the Court and no factual basis on which the appeal could have been brought, heard and disposed of. [4] Rather than filing a Notice of Appeal, Ms. Sinclair should have pursued a remedy in the Court of Queen’s Bench. The proper procedure for Ms. Sinclair to have followed was to return to the Court of Queen’s Bench and to apply pursuant to Rule 271 of the Queen’s Bench Rules to have the matter opened up and disposed of on the basis of evidence. [5] The application under Rule 46.1(1) to quash must proceed in two stages in as much as single judge cannot quash an appeal pursuant to that Rule. [6] In the circumstances, this matter is adjourned sine die with leave to bring the matter back before me on five days notice should the proposed appellant Ms. Sinclair be unsuccessful in the Court of Queen’s Bench. [7] There will be no order as to costs.
The respondent applied to quash the Notice of Appeal on the basis that the appeal was entirely without merit because there was no factual basis on which the appeal could have been brought, heard and disposed of. HELD: Rather than filing an appeal, the respondent should have pursued a remedy in Queen's Bench. The proper procedure would have been to apply under Queen's Bench Rule 271 to have the matter opened up and disposed of on the basis of the evidence. The matter was adjourned sine die with leave to bring the matter back to Court if the appellant is unsuccessful at Queen's Bench.