Alves et al. v. MyTravel Canada Holidays Inc. et al., 2011 SKCA 116

• Judge: Vancise, Richards and Caldwell, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: November 08, 2010
• Jurisdiction: Saskatchewan
• Citations: 2011 SKCA 116;(2011), 377 Sask.R. 68 (CA)

Alves v. MyTravel Can. Holidays Inc. (2011), 377 Sask.R. 68 (CA);

    528 W.A.C. 68

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. OC.041

Helen Roussy (appellant/prospective plaintiff) v. Red Seal Vacations Inc. (respondent/defendant)

(1886; 2011 SKCA 116)

Indexed As: Alves et al. v. MyTravel Canada Holidays Inc. et al.

Saskatchewan Court of Appeal

Vancise, Richards and Caldwell, JJ.A.

October 18, 2011.

Summary:

The plaintiffs sought certification of a class action against the defendants as tour operators on behalf of persons who purchased vacations for or took vacations in certain resorts in Holguin, Cuba, between November 1, 2004 and February 1, 2005. The plaintiffs moved to amend their claim to name one Helen Roussy as a potential plaintiff under rule 165 of the Queen's Bench Rules. At issue was whether Roussy could be a plaintiff because she purportedly signed a release in favour of one of the defendants, Red Seal.

The Saskatchewan Court of Queen's Bench, in a decision reported 348 Sask.R. 13, found that Helen Roussy, the proposed plaintiff by amendment, signed a full and complete settlement of her claim against the defendant Red Seal regarding the cause of action the plaintiffs were bringing forth in the application to certify. Roussy, therefore, had no standing to pursue the claim referred to in the proposed amended pleading. If the amendment was allowed, the resulting pleadings could be struck pursuant to Queen's Bench Rule 173 as being an abuse of process. Therefore, the amendment would not be allowed. Roussy appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters (incl. particulars, production, pleadings, etc.) - [See Practice - Topic 2142 ].

Practice - Topic 2101

Pleadings - Amendment of pleadings - General principles - Queen's Bench Rule 165 provided that "The court may, at any stage of the proceedings, grant leave to a party to amend his pleadings, in such manner and on such terms as may seem just, and all such amendments shall be made as may be necessary to determine the real questions in issue between the parties" - The Saskatchewan Court of Appeal discussed the legal principles governing the operation of rule 165 - The court noted that the jurisprudence established that an amendment under rule 165 should not be allowed if the result would be a pleading that could be struck under rule 173 (e.g., as disclosing no reasonable cause of action or defence, or scandalous, frivolous vexatious, or abuse of process, etc.) - See paragraphs 10 to 15.

Practice - Topic 2130

Pleadings - Amendment of pleadings - Leave - General - [See Practice - Topic 2101 ].

Practice - Topic 2142

Pleadings - Amendment of pleadings - Considerations governing granting of leave - The plaintiffs sought certification of a class action against the defendants as tour operators on behalf of persons who purchased vacations for or took vacations in certain resorts in Holguin, Cuba - The plaintiffs moved to amend their claim to name one Helen Roussy as a potential plaintiff under rule 165 of the Queen's Bench Rules - The chambers judge found that Roussy had signed a full and complete settlement of her claim against one of the defendants, Red Seal, regarding the cause of action the plaintiffs were bringing forth in the application to certify - Roussy, therefore, had no standing to pursue the claim referred to in the proposed amended pleading - If the amendment was allowed, the resulting pleadings could be struck pursuant to Queen's Bench Rule 173 as being an abuse of process - Therefore, the amendment would not be allowed - Roussy appealed - The Saskatchewan Court of Appeal dismissed the appeal.

Practice - Topic 2143

Pleadings - Amendment of pleadings - Circumstances when amendment denied - [See Practice - Topic 2101 and Practice - Topic 2142 ].

Cases Noticed:

Duke v. Puts, [1998] 6 W.W.R. 510 (Sask. Q.B.), refd to. [para. 13].

Aquino et al. v. First Choice Capital Fund Ltd. et al. (1999), 179 Sask.R. 221 (Q.B.), refd to. [para. 13].

Judith River Farm and Water Ltd. Partnership v. Saskatchewan (2003), 243 Sask.R. 74; 2003 SKQB 443, refd to. [para. 13].

Sheppard v. Sheppard et al. (2003), 243 Sask.R. 79; 2003 SKQB 461, refd to. [para. 13].

Sagon v. Royal Bank of Canada et al. (1992), 105 Sask.R. 133; 32 W.A.C. 133 (C.A.), refd to. [para. 15].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para 15].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Marble v. Saskatchewan et al., [2004] 7 W.W.R. 580; 236 Sask.R. 14; 2003 SKQB 282, refd to. [para. 25].

Craik et al. v. Little Pine First Nation, [2000] Sask.R. Uned. 71; 2000 SKQB 147, refd to. [para. 25].

Elfenbaum v. Saskatchewan Crop Insurance Corp., [1995] S.J. No. 352 (Q.B.), refd to. [para. 27].

Morgan v. Saskatchewan, Hardy and Binkley (1984), 36 Sask.R. 240 (Q.B.), refd to. [para. 27].

Orlandello v. Nova Scotia (Attorney General) (2005), 234 N.S.R.(2d) 247; 745 A.P.R. 247; 256 D.L.R.(4th) 21; 2005 NSCA 98, refd to. [para. 27].

Statutes Noticed:

Queen's Bench Rules (Sask.) - see Rules of Court (Sask.), Queen's Bench Rules.

Rules of Court (Sask.), Queen's Bench Rules, rule 165 [para. 10]; rule 173 [para. 14].

Counsel:

E.F. Anthony Merchant, Q.C., and Casey R. Churko, for the appellant;

Mirilyn Sharp, for the respondent.

This appeal was heard on November 8, 2010, before Vancise, Richards and Caldwell, JJ.A., of the Saskatchewan Court of Appeal. Richards, J.A., delivered the following written reasons for the Court of Appeal on October 18, 2011.