Court of Appeal

CASE NO.                                                  VOLUME                                                          PAGE

Cite as: Fraser v. Westminer Canada Ltd., 1998 NSCA 141

SUMNER M. FRASER, WILLIAM - and - WESTMINER CANADA LIMITED,

KITCHEN, WILLIAM MUNDLE and                              WESTMINER HOLDINGS LIMITED,

DR. JAMES COLLINS in their                                     WESTERN MINING CORPORATION

personal capacities and as                                                 HOLDINGS LIMITED, JAMES H.

representatives of certain investors in                                       LALOR, PETER MALONEY,

Cavalier Energy Limited (successor to                               WILLIAM B. BRAITHWAITE and

Cavalier Capital Corporation) being all                                                               COLIN WISE

those investors provided irrevocable

unconditional letters of credit or letters

of guarantee prior to August 2, 1988 to

support a 15 million dollar borrowing by

Cavalier Capital Corporation

(Appellants)                                                                                                            (Respondents)

C.A.  No.  146559                                Halifax, N.S.                                   CROMWELL, J.A.

                                                                                                                             (orally)

APPEAL HEARD:                                        June 2, 1998                                    

JUDGMENT DELIVERED:             June 2, 1998

WRITTEN RELEASE OF ORAL:

SUBJECT:           Trials - Severance of Issues for Trial - Discretionary Order of Case Management Judge

SUMMARY:        The appellants - plaintiffs applied to the Case Management Judge in the Supreme Court for an order under Rule 28.04 that certain issues be tried before all other issues in the action and that discovery of witnesses and further document production be limited to those issues until after they are tried.  The Case Management Judge dismissed the application and the appellants sought leave to appeal that dismissal. 

ISSUE:                 Should the appellants be granted leave to appeal the discretionary order of the Case Management Judge concerning the orderly progress of the litigation?

RESULT: Leave to appeal denied.  This was an interlocutory application and the order sought was discretionary.  The Court of Appeal will not intervene unless persuaded that the Chambers judge applied wrong principles of law or the result of the order is a patent injustice.  Where, as here, the application relates to the orderly progress of the litigation and the judge is the Case Management Judge, these limitations on appellate intervention are particularly apt.  Not being persuaded that the Chambers judge erred in principle or that his order gave rise to an injustice, the application for leave to appeal was dismissed.