Before October 3, 2022, the rules of procedure in the Saskatchewan Court of Appeal (unlike those in most other appeal courts in Canada) imposed a stay of proceedings in most cases as soon as a Notice of Appeal was served and filed. That has now changed.
On October 3, a number of changes to Saskatchewan’s Court of Appeal Rules (Civil) came into effect. The most significant change is that, in most cases, the service and filing of a Notice of Appeal to the Saskatchewan Court of Appeal will not result in an automatic stay of proceedings. If a party who is dissatisfied with a decision of a lower court wants the effect of that decision to be paused while its appeal is heard, that party will need to make a formal application either to the lower court or to the Court of Appeal for a stay of proceedings.
Some aspects of day-to-day commercial litigation will change, while others will stay the same. The old rules already had an exception for injunctions, so the law remains the same – an injunction still is not stayed just because a Notice of Appeal is served and filed.
In the case of money judgments obtained after a trial or summary judgment application, an appealing party will now need to make an additional court application in order to obtain a stay, but this will not result in any significant changes to Court of Appeal practice. That is because the process to enforce a judgment in Saskatchewan takes long enough that, practically speaking, enforcement while the lower court judgment is under appeal was and is unlikely both before and after the new rules came into effect.
The most significant practical difference will come to insolvency proceedings, corporate oppression disputes and other “real-time” commercial litigation, which normally proceed as a series of applications heard in Chambers in the Court of King’s Bench (rather than a single judgment rendered after a trial or summary judgment application), most of which do not involve injunctions. For example, prior to the rule change, if the Court of King’s Bench approved the sale by a Court-appointed receiver or selling officer of assets owned by an insolvent debtor, the debtor could block the sale simply by serving and filing a Notice of Appeal, whether or not the debtor actually intended to pursue the appeal and whether or not there was any real legal basis to appeal. The effect of the amendment to The Court of Appeal Rules is that the decision of the lower court is presumed to be correct and the appellant will have to convince a judge that a stay is appropriate even though the lower court has already ruled against them.
The rule change also provides welcome certainty to insolvency and other commercial litigation proceedings by eliminating a provision that had provided that “all further proceedings in the action” were stayed as soon as a Notice of Appeal was served and filed. That rule made sense in the context of a summary judgment or judgment rendered after trial, but in the case of commercial litigation that proceeds in a series of Chambers applications, the effect of the service and filing of a Notice of Appeal had been unclear. For instance, if the Court of King’s Bench approved the sale by a court-appointed receiver of certain assets and the debtor served and filed a Notice of Appeal, was the sale alone stayed, or were other aspects of the receivership proceedings also stayed? Thankfully, this uncertainty has now been resolved. An appellant will have to be specific about the scope of the stay it is seeking and will have to convince a judge that the scope of the proposed stay is appropriate.
With all of that said, there is a transitional period which applies to the amendments to Rule 15, so that any appeal commenced before December 31, 2022 is subject to the old Rules regarding stays of proceedings, and the new Rules with respect to stays of proceedings will apply to appeals commenced on or after January 1, 2023.
A number of more technical amendments to The Court of Appeal Rules came into effect on October 3 as well. Among other changes, these amendments modernize, update and clarify a number of provisions to bring the rules into alignment with practice developments in the Court of Appeal.
The lawyers in the MLT Aikins Commercial Litigation and Insolvency & Restructuring practice groups have wide-ranging experience in the practice and procedure of the Court of Appeal for Saskatchewan. If you have any questions about the changes discussed in this blog, please feel free to contact us.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.