Arlo Investments Ltd. et al. v. Prince Albert (City), (2010) 354 Sask.R. 27 (QB)

• Judge: Maher, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: March 05, 2010
• Jurisdiction: Saskatchewan
• Citations: (2010), 354 Sask.R. 27 (QB);2010 SKQB 90

Arlo Inv. Ltd. v. Prince Albert (2010), 354 Sask.R. 27 (QB)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. MR.038

Arlo Investments Ltd., Terry Thoms Enterprises Ltd., 609166 Saskatchewan Ltd., Richard's Excavating Ltd., KLS Supply Ltd., and Cyr Contracting Ltd. (plaintiffs) v. The City of Prince Albert (defendant)

(1999 Q.B. No. 264; 2010 SKQB 90)

Indexed As: Arlo Investments Ltd. et al. v. Prince Albert (City)

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Maher, J.

March 5, 2010.

Summary:

The defendant, City of Prince Albert, applied to strike the plaintiffs' statement of claim for failure to comply with court orders for disclosure and undertakings given at examination for discovery. The defendant also sought an order striking the plaintiffs' claim on the ground that the action was statute barred by the Urban Municipality Act or, alternatively, ordering a summary determination of the limitation issue pursuant to rule 188 of the Queen's Bench Rules.

The Saskatchewan Court of Queen's Bench dismissed the applications with the exception of three undertakings by the plaintiff, KLS Supply Ltd., which the court specifically ordered be complied with.

Practice - Topic 2210

Pleadings - Striking out pleadings - Time for objection or application - The defendant, City of Prince Albert, sought an order striking the plaintiffs' claim on the ground that the action was statute barred by the Urban Municipality Act - The Saskatchewan Court of Queen's Bench referred to cases which stated that the appropriate time to make an application to strike a statement of claim was before a defence was entered - The court concluded that "The application to strike the plaintiffs' claim pursuant to Rule 173(A) is dismissed as the statement of defence was filed by the defendant on August 4, 1999, and this application was commenced on September 28, 2009" - See paragraphs 38 to 39.

Practice - Topic 2237

Pleadings - Striking out pleadings - Grounds - Failure to obey court order - [See Practice - Topic 5201 ].

Practice - Topic 5201

Trials - General - Order expediting pretrial procedure (incl. peremptory orders) - The defendant applied to strike the plaintiffs' statement of claim for failure to comply with an order for disclosure and production of documents made by Smith, J. - Smith, J.'s "peremptory order" provided that "If production and disclosure of documents is not so provided on or before April 15, 2004, the claims and pleadings of the Plaintiffs who have not provided full compliance with this Order shall be struck" - The Saskatchewan Court of Queen's Bench dismissed the application to strike - The court noted that the application before Smith, J., did not request a committal for contempt nor did the order provide that the plaintiffs' claim would stand dismissed "without further order" - The court held that it would consider the application to strike in the context of Queen's Bench Rule 534, which stated that "The court may enlarge or abridge the time appointed by these rules or fixed by any order for doing any act or taking any proceeding, on any terms that the justice of the case may require" - The court concluded that it had jurisdiction to relieve the plaintiffs from their failure to provide production and disclosure of documents as ordered by Smith, J., and it relieved them of that obligation - The court found that the plaintiffs had now substantially complied with the order of Smith, J., albeit not on the date specified - See paragraphs 15 to 22.

Practice - Topic 5209

Trials - General - Trial of issues directed by court - The plaintiffs claimed that the defendant, City of Prince Albert, owned and operated landfills on, or adjacent to, properties owned by them and that the City had control of contaminants that were deposited on the plaintiffs' lands - The City filed a statement of defence denying the plaintiffs' claims and pleading that the claims were statute barred - The Saskatchewan Court of Queen's Bench declined to exercise its discretion to direct a trial of an issue with viva voce evidence on the issue of whether the plaintiffs' action was statute barred - The court stated that "There are numerous plaintiffs in this action, there are several witnesses who will be required to testify on when the alleged pollution was discovered which will materially affect the limitation issue. I am of the opinion there would be minimal benefit to direct a trial of the issue on the limitation issue as the evidence appears to be linked to many other triable issues. I am of the opinion that a trial on the limitation issue with viva voce evidence would not be of a significant benefit" - See paragraph 44.

Practice - Topic 5260

Trials - General - Trial of preliminary issues - General principles (incl. when available or appropriate) - [See Practice - Topic 5261 ].

Practice - Topic 5261

Trials - General - Trial of preliminary issues - Issues of law - The defendant sought an order pursuant to rule 188 of the Queen's Bench Rules directing a summary determination of a point of law - The issue the defendant requested be determined was whether the plaintiffs' claim was statute barred - The Saskatchewan Court of Queen's Bench stated that "where the facts and legal positions of the parties are intermingled, without an agreed statement of facts one should not proceed to grant an order for determination of a point of law pursuant to Rule 188. Upon reading the pleadings in support of the application for making an order pursuant to Rule 188, I am satisfied that the facts are at issue. I therefore dismiss the defendant's application directing that there be a determination pursuant to Rule 188 of the Queen's Bench Rules of the limitation issue" - See paragraphs 40 to 43.

Practice - Topic 5445

Judgments and orders - Operation and effect of judgments and orders - Compliance with order - Time for - [See Practice - Topic 5201 ].

Cases Noticed:

Cameco Corp. v. Insurance Co. of the State of Pennsylvania (2000), 194 Sask.R. 57; 2000 SKQB 250, refd to. [para. 5].

Goertz v. Zmud (1995), 137 Sask.R. 289; 107 W.A.C. 289 (C.A.), refd to. [para. 5].

Jones v. Saskatoon Minor Hockey Association Inc., [2002] Sask.R. Uned. 109 (Q.B.), refd to. [para. 5].

Matheson v. Saskatoon District Health Board et al., [2005] Sask.R. Uned. 69; 2005 SKQB 107, refd to. [para. 5].

Livingston v. Hewson (1991), 95 Sask.R. 170 (Q.B.), refd to. [para. 5].

Govan Local School Board v. Last Mountain School Division No. 29, [1992] 2 W.W.R. 481; 100 Sask.R. 1; 18 W.A.C. 1 (C.A.), refd to. [para. 5].

Madison Development Group Inc. v. Phoenix Enterprises Ltd. et al. (1991), 96 Sask.R. 88 (Q.B.), refd to. [para. 8].

Abramson v. United States Fire Insurance Co., [1927] 1 W.W.R. 252 (Sask. C.A.), refd to. [para. 9].

Prestige Commercial Interiors (1992) Ltd. v. Graham Construction & Engineering Inc. (2008), 307 Sask.R. 134; 417 W.A.C. 134; 2008 SKCA 27, refd to. [para. 9].

Samuels v. Linzi Dresses Ltd., [1980] 1 All E.R. 803 (C.A.), refd to. [para. 19].

Hytec Informations Systems Ltd. v. Coventry City Council, [1996] E.W.J. No. 3603 (Eng. and Wales C.A.), refd to. [para. 19].

Boutin et al. v. Kingroup Inc. et al., [2002] Sask.R. Uned. 103; 2002 SKQB 249, refd to. [para. 19].

Canada (Attorney General) v. Lau, [2002] B.C.T.C. 87 (S.C.), refd to. [para. 20].

Coulthard v. Coulthard, [1952] 5 W.W.R.(N.S.) 662 (Sask. C.A.), refd to. [para. 21].

Rimmer v. Adshead, [2002] 4 W.W.R. 119; 217 Sask.R. 94; 265 W.A.C. 94 (C.A.), refd to. [para. 21].

Forster v. Gross (1999), 182 Sask.R. 294 (Q.B.), refd to. [para. 38].

Ballantyne (Peter) Indian Band v. Ballantyne et al. (1985), 40 Sask.R. 235 (Q.B.), refd to. [para. 38].

International Capital Corp. v. Schafer et al., [1996] S.J. No. 782 (Q.B.), refd to. [para. 38].

Bloomfield v. Rosthern Union Hospital Ambulance Board et al. (1990), 82 Sask.R. 310 (C.A.), refd to. [para. 40].

Ward v. Terrell No. 101 (Rural Municipality), [2008] Sask.R. Uned. 99; 2008 SKQB 214, refd to. [para. 41].

Dombek v. Law Society of Saskatchewan (1992), 107 Sask.R. 173 (Q.B.), refd to. [para. 41].

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 188 [para. 40].

Counsel:

A.M. Mason, for the plaintiffs;

M.J. Holash, for the defendant.

These applications were heard before Maher, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following judgment on March 5, 2010.