In Fehr v. Turta, 2014 SKCA 91, the Court of Appeal for Saskatchewan made two curious, but nonetheless helpful, holdings in the context of a motion to lift the automatic stay of execution provided by Rule 15(1) of The Court of Appeal Rules:

(a)                Leave is not required to appeal an interlocutory order made under authority contained in The Family Property Act, S.S. 1997, c. F-6.3.

(b)               That the standard of review is a critical factor in deciding whether to lift the automatic stay.

Background

Before the Chambers judge, both parties applied for exclusive possession of their family home. The Chambers judge ruled in favour of Mr. Turta, and Ms. Fehr subsequent launched an appeal. Shortly after, Mr. Turta applied to lift the automatic stay of execution of the order. Mr. Turta’s application relied on several arguments, including that Ms. Fehr’s appeal required leave, which had not been sought.

When Is Leave Required?

The leave to appeal issue arises due to an apparent conflict between sections 7 and 8 of The Court of Appeal Act, 2002 and section 55 of The Family Property Act. In concluding that Ms. Fehr did not require leave to appeal, the Court relied upon its decision in Rimmer v. Adshead, 2003 SKCA 19, which held that since the order appealed from was procedural and based on powers from The Queen’s Bench Rules, and therefore The Court of Appeal Act, 2000 governed the right to appeal. In the case at bar, the Court held as follows:

[10]      Thus, to be appealable as of right under s. 55 of The Family Property Act, an interlocutory order must be made under the authority contained in The Family Property Act; the order cannot also be based on the authority derived from The Queen’s Bench Rules.

[11]      This makes sense. If s. 55 of The Family Property Act does not grant a right of appeal of interlocutory decisions, then it is meaningless. Final decisions are appealable as of right under s. 2 of The Court of Appeal Act and it would thus be redundant to restrict s. 55 of The Family Property Act to final orders.

While concern over a meaningless provision is appropriate, respectfully, it appears the Court may have failed to adequately consider the text is subsection 7(3) of The Court of Appeal Act, 2002:

 Right of appeal

7(1)      In this section and section 9, “enactment” means:

(a)        an Act;

(b)        an Act of the Parliament of Canada; or

(c)        a regulation made pursuant to an Act or an Act of the Parliament of Canada; but does not include this Act.

(2)        Subject to subsection (3) and section 8, an appeal lies to the court from a decision:

(a)        of the Court of Queen’s Bench or a judge of that court; and

(b)        of any other court or tribunal where a right of appeal to the court is conferred by an enactment.

(3)        If an enactment provides that there is no appeal from a decision mentioned in subsection (2) or confers only a limited right of appeal, that enactment prevails.

[emphasis added]

Based on the text alone, a compelling conclusion is that other enactments only take precedence where they restrict a right to appeal in some manner. Thus, if a broad right of appeal provided for in another act is given precedence over subsection 7(2) of The Court of Appeal Act, 2002, subsection 7(3) becomes meaningless, in that apparently any other act takes precedence to The Court of Appeal Act, 2002.

Standard of Review Relevant to Determine if Stay Should be Lifted

On the second issue, the Court placed significant weight on the deference owed to a discretionary order:

[21]      Further, with a deferential standard of review as stated above, it is more likely than not that this Court will not intervene. The stay of execution is therefore lifted.

Although the result appears to be appropriate given the Court’s other reasons, the Court’s reliance on the standard of review is somewhat concerning. In particular, except on questions of law, appellate courts give significant deference to trial and motion judges. Therefore, in most cases there would be a significant reason to remove the automatic stay, which potentially undermines the purpose of the stay.