Executive Summary: Key Legal and Evidentiary Issues

• Jurisdiction to hear an appeal from a discretionary costs award without leave was the threshold question.

• Interpretation of s. 6-14 of The King's Bench Act under the modern textual approach was central to the result.

• Survival of the common law "principled exception" was doubtful after Supreme Court rulings that appeal rights flow only from statute.

• Precedential weight of historical Saskatchewan authorities recognizing the principled exception came under scrutiny.

• Alternative relief — whether the Court of Appeal could itself grant leave after the costs-awarding judge had retired — was also addressed.

Facts of the case

After many years of litigation between two family groups, a Court of King's Bench judge divided eight operating companies that the appellants (the Waisman parties) and the respondents (the Egger parties) owned equally, granting the respondents' application for division under sections 207 and 234 of The Business Corporations Act (Egger v Waisman, 2022 SKKB 249, the "Division Decision"). In a separate decision (Egger v Waisman, 2024 SKKB 121, the "Costs Award"), the same judge made a discretionary award of costs to the respondents totalling $229,028.81. The appellants moved to appeal that costs award, arguing the judge had erred in principle, but they did not appeal the underlying Division Decision. The right of appeal is statutory, and s. 6-14(b) of The King's Bench Act provides that orders as to costs only, left by law to the judge's discretion, are not appealable except with leave of the judge who made the order. The appellants nonetheless appealed without obtaining leave, relying on a so-called "principled exception" from older authorities holding that leave is unnecessary where a costs order rests on a wrong principle. Out of caution, they also applied to the Court of King's Bench for leave; both the appeal and that application were filed on July 5, 2024. The judge who made the Costs Award retired the next day, July 6, 2024, and a different King's Bench judge who later heard the leave application ruled, in a March 9, 2026 fiat, that he had no jurisdiction because only the judge who made the costs order could grant leave. At the appeal hearing, the appellants maintained that the principled exception gave the Court of Appeal jurisdiction without leave, and argued in the alternative that, because the original judge had retired, the Court should grant leave itself to preserve access to justice.

Statutory provisions at issue

The governing provision was s. 6-14 of The King's Bench Act, SS 2023, c 28, which states that, except with leave of the judge giving the judgment or making the order, two categories are not subject to appeal: consent judgments, and - subject to the rules of court - judgments or orders as to costs only that, by law, are left to the judge's discretion. The Court also relied on s. 7(2) and s. 7(3) of The Court of Appeal Act, 2000, under which the general right of appeal does not apply where a limited right is provided elsewhere, and on s. 2-10(2) of The Legislation Act, which calls for a fair, large, and liberal interpretation. To illustrate that the Legislature knew how to create appeal rights when it wished, the Court pointed to statutes that expressly allow appeals on questions of law, with or without leave, such as The Family Property Act, The Cities Act, and The Automobile Accident Insurance Act.

The court's reasoning and analysis

Writing for a unanimous Court, McCreary J.A. held that the text is the anchor of interpretation and that s. 6-14 is unambiguous: it bars an appeal from a discretionary costs award alone without the leave of the judge who made it. Reading in a principled exception would require the Court to examine the merits and then justify its jurisdiction after the fact, contradicting the legislative intent, and would render the leave requirement superfluous - effectively rewriting the statute, which courts cannot do under the guise of interpretation. The Court then explained that, for at least 25 years, the Supreme Court of Canada has held in Meltzer and Kourtessis that rights of appeal derive only from statute and that there is no common law right of appeal; because the principled exception is a common law exemption from a statutory leave requirement, it can no longer be applied. Turning to the historical Saskatchewan authorities - a line tracing to the English City of Manchester and adopted in Union Bank v Meloff - the Court noted that all predated Meltzer and Kourtessis and none engaged in statutory interpretation. The cases the appellants relied on did not assist them: Fireman's Fund and Maharaj did not involve purely discretionary costs awards, while Semchyshen and Patel 2021 followed the old approach out of judicial comity without interpreting the statute or considering the Supreme Court authority, and so - applying R v Sullivan - were reached by inadvertence and were not binding. The Court observed that it had most recently rejected the principled exception in RAC (HK) Ltd. Finally, on the request that the Court of Appeal grant leave itself, McCreary J.A. adopted the reasoning in Patel (Chambers) that s. 6-14 requires leave to be granted at the King's Bench level, so the Court of Appeal could not step into the shoes of the retired judge.

Ruling and outcome

The Court concluded that s. 6-14 admits no exception to the leave requirement, that no common law right of appeal exists, and that it could not itself grant leave. Having found it lacked jurisdiction to hear the appeal, the Court dismissed it, with costs of the appeal awarded to the respondents - the Egger parties - in the usual manner; the practical effect is that the underlying $229,028.81 costs award stands undisturbed. The reasons do not state a dollar figure for the costs of the appeal itself.