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
(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
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:
 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
 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
Right of appeal
7(1) In this section and section 9,
(a) an Act;
(b) an Act of the Parliament of
(c) a regulation made pursuant to an
Act or an Act of the Parliament of Canada; but does not include
(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
(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.
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
On the second issue, the Court placed significant weight on the
deference owed to a discretionary order:
 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
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.
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about your specific circumstances.
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