Executive Summary: Key Legal and Evidentiary Issues

• Accella applied to waive the requirement under The Court of Appeal Rules that an issued King's Bench order be filed before the appeals and cross-appeals could be heard.
   
• The parties agreed the Chambers judge struck Graham's pure economic loss claim based on the dangerous/shoddy goods exception but disagreed on whether its relational economic loss claim survived.
   
• Because the judge died suddenly, he could not settle the terms of the disputed order himself.
   
• Rule 4(1) permits relief from non-compliance with the Rules only where it is in the interests of the proper administration of justice.
   
• Without an issued order, it was unclear which party was the appellant on the relational economic loss issue, which pleadings were under review, and who bore the burden of establishing error.
   
• Deciding the terms of the order on appeal would have made the Court of Appeal the first-instance decision-maker rather than a reviewing court.
   

Facts of the case

Graham Design Builders LP, a Manitoba limited partnership acting through its general partner Graham Design Builders Ltd., and Carillion Construction Inc., carrying on business as Graham Carillion NB JV (collectively, Graham), were retained to design and construct the Saskatchewan Hospital Rehabilitation Project in North Battleford. As part of the project, Graham chose insulation board manufactured by Mod-Panel Manufacturing Ltd. (Mod-Panel). The Chambers judge described defects being noticed in some of the panels within a short time after installation. On October 2, 2020, Graham sued Mod-Panel for damages arising from the need to replace the panels. Mod-Panel was later petitioned into bankruptcy, and many other defendants were added to the action.

A Court of King's Bench judge sitting in Chambers then heard several applications in Graham Design Builders LP v Mod-Panel Manufacturing Ltd., 2025 SKKB 87. Graham sought an order permitting further amendments to its statement of claim, including the addition of plaintiffs and allegations supporting recovery of economic loss on the basis that the panels were dangerous. Accella Polyurethane Systems Canada Inc. (Accella) [defined in the decision as "Acella" at para 3(b) (sic); spelled "Accella" elsewhere in the decision], five Intertek entities (collectively, Intertek), Premium Spray Products Canada GP Inc., 101172087 Saskatchewan Ltd., and Mule-Hide Products Co., Inc. sought orders striking Graham's claims against them and striking Mod-Panel's cross-claim. They also sought declarations that the claim and cross-claim were either statute-barred under The Limitations Act, SS 2004, c L-16.1, or disclosed no reasonable cause of action.

Two appeals and two related cross-appeals followed. The parties agreed the judge struck Graham's claim for pure economic loss under the dangerous/shoddy goods exception. They split, however, on whether Graham's claim for what it called "transferred or relational economic loss" was allowed to continue. According to Graham's brief of law, its proposed form of order, submitted October 8, 2025, treated that claim as intact. Accella and Intertek's proposed order, on Graham's account, treated the pure economic loss claim as struck in its entirety. The judge's sudden passing made it impossible for him to settle the terms, and no appeal books or factums had been filed. Popescul C.J.K.B. indicated he was prepared to promptly appoint another King's Bench judge to determine the form of the order if the Court of Appeal found the appeals should not proceed without one.

Accella applied for an order waiving the requirement for an issued order. It argued that going before a different King's Bench judge would take time and expense and that it would be more efficient for the Court of Appeal to resolve the disputed terms in deciding the appeal itself. Intertek supported the application, Mod-Panel opposed it, and Graham took no position, stating it was prepared to have either court settle the order.

Policy and legislative provisions at issue

Rule 10.1(1) of The Court of Appeal Rules requires an appellant from a King's Bench judgment or order to file the written reasons for judgment or written fiat and, subject to subrule (2), the judgment or order as taken out in the Court of King's Bench. Under subrule (2), if the judgment or order has not been taken out when the notice of appeal is filed, the appellant must file a copy within five days after its issuance. The appeal book, in turn, must contain the judgment or order issued by the court appealed from and the reasons for it, if any, under Rule 23(1)(c) and (d). Rule 4(1) allows the Court, or a judge of the Court, to relieve against non-compliance with the Rules "[w]hen it is in the interests of the proper administration of justice to do so."

Reasoning and analysis

Leurer C.J.S., sitting in Chambers, began by distinguishing an issued order from reasons. An order is the operative judicial act that determines the parties' rights and obligations and becomes the basis for enforcement and res judicata, while reasons explain why the case was decided as it was. Appeals are taken from what a court decides, partly because a judge may reach the correct result for a flawed reason. The Chief Justice relied on Sopinka, Gelowitz and Rankin on the Conduct of an Appeal and a line of Saskatchewan Court of Appeal authority. He also noted cases such as McColl v Leamy (BCSC) and R. v S. (MBCA) holding that without an entered order there is nothing to appeal against. Chief Justice Bayda had been somewhat more equivocal in Madech Mortgage Corp. v Kensington Developments Inc., 2000 SKCA 54, expressing much doubt about whether such an appeal is valid. Long-standing precedent grounded in sound policy therefore supported requiring an entered order.

Accella and Intertek's proposal to disregard the missing order was rejected because the disagreement affected both procedure and substance. Procedurally, with both Accella and Graham claiming to have prevailed on relational economic loss, it was unclear who was the appellant and who was the respondent. Accella had also said it would seek leave to appeal if the judge were taken to have let that claim survive, which raised the further question of when, and in what procedural context, it would do so. The Chief Justice acknowledged it may well be that case management and supplemental filings could resolve procedural issues, but the difficulties went further.

On substance, the appeals might turn on the precise wording of the pleadings the judge allowed or rejected, and without an issued order it was impossible to know which allegations formed part of the statement of claim. The judge's own decision to strike the dangerous goods claim and refuse the proposed amendments had rested on a careful examination of what Graham pleaded and proposed to plead. Uncertainty over who prevailed also affected who carried the burden of establishing error. On a correctness standard, identifying the appellant would matter less, but for questions of fact, mixed fact and law, or discretionary decisions, it would matter considerably. When asked whether correctness would apply to all issues implicated by the disputed order, the parties gave only qualified agreement.

In the cases Accella cited, such as Mann v Mann, 2023 SKCA 100, and Roman Catholic Episcopal Corporation of St. John's v Guardian Insurance Company of Canada, 2025 NLCA 5, there was no dispute about what order had been made. Maynard Holdings Limited v IForm Works Inc., 2022 NSCA 54, and MTM Commercial Trust v Statesman Riverside Quays Ltd., 2022 ABCA 328, were described as being to like effect. Walsh v Johnson, 2010 NLCA 6, captured the distinction, recognizing that where a disposition is more complicated, a court may be justified in requiring a formal order before hearing the appeal.

The application was heard on August 19, 2026, and again on September 14, 2026. At the first hearing, it emerged that two fiats issued by the judge after the Reasons might shed light on what he decided. Accella then offered a "template order" it was prepared to accept as reflecting the judge's intended ruling, suggesting the panel could treat an agreed but unissued version as embodying his order. By the second hearing, it had become apparent that the parties had not agreed on the terms of any order. One final consideration also weighed against Accella: both it and Graham had presented lengthy written arguments on their competing interpretations that delved deeply into the merits. Resolving that dispute would, in effect, require a panel to make the order and decide whether it should have been made at the same time, becoming the first-instance decision-maker instead of reviewing the Reasons.

Ruling and overall outcome

Although highly sympathetic to Accella's position, Leurer C.J.S. dismissed its application, concluding that proceeding without an issued order would sow procedural confusion and uncertainty and be contrary to the Court's appellate role. The result favoured Mod-Panel, which had opposed the waiver. The Chief Justice found it necessary for the Court of King's Bench to settle the terms of the order to bring proper structure to the appeal proceedings. No party, including Mod-Panel, requested costs, and none were ordered for or against any party, so no monetary amount was awarded.