Borowski v. Stefanson et al., 2013 SKQB 133

• Judge: Danyliuk, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 10, 2013
• Jurisdiction: Saskatchewan
• Citations: 2013 SKQB 133;(2013), 418 Sask.R. 177 (QB)

Borowski v. Stefanson (2013), 418 Sask.R. 177 (QB)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. MY.023

Leonard Borowski (applicant) v. Lyndon Ricky Stefanson, Sharolyn Prisiak and Rural Municipality of Emerald (respondents)

(2012 Q.B.G. No. 51; 2012 Q.B.G. No. 55; 2013 SKQB 133)

Indexed As: Borowski v. Stefanson et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Wynyard

Danyliuk, J.

April 10, 2013.

Summary:

Borowski, an unsuccessful incumbent candidate in an election for a municipal councillor, filed an affidavit and a draft notice of motion seeking authorization to serve a notice of motion in the nature of quo warranto to determine the validity of the election pursuant to s. 19(1) of the Controverted Municipal Elections Act. The filings were not placed before a judge for adjudication. Eleven days later, he applied ex parte to preserve election materials and for leave to proceed with his s. 19 motion.

The Saskatchewan Court of Queen's Bench, per Kraus, J., in a decision not reported in this series of reports, ordered the preservation of election materials and directed Borowski to forthwith serve all materials on the respondent Prisiak. Borowski faxed the registrar, enclosing a copy of the order for issuance and requesting that the registrar draw to the attention of Kraus, J., that the Act required the court to endorse the fiat with the words "recognizance allowed" prior to service of the notice of motion.

The Saskatchewan Court of Queen's Bench, per Kraus, J., in a decision not reported in this series of reports, issued an additional fiat stating "The form of the ex p. order complies with the fiat. It may issue". The court did not deliver a fiat regarding s. 19, nor did it endorse anything on the draft notice of motion on file. Borowski served his notice of motion and materials as if the court had issued the authorization to proceed with a s. 19 application. Borowski moved for production of election material.

The Saskatchewan Court of Queen's Bench, per Kraus, J., dismissed the quo warranto application for noncompliance with s. 19 and awarded the respondents costs fixed at $2,500. The court dismissed the motion for production as moot.

Barristers and Solicitors - Topic 881

Duty to court - Presentation of evidence - General - Borowski, an unsuccessful incumbent candidate in an election for a municipal councillor, sought to overturn the election results, to oust the elected individual from office and costs - He also moved for production of election materials - The Saskatchewan Court of Queen's Bench stated that the supporting affidavits filed by Borowski's former counsel and his current counsel contained improper averments - When questioned, Borowski's current counsel indicated that Borowski had wanted to tell the court what happened, provide his opinions as to the effect of the respondents' alleged misdeeds and generally advise the court as to how he felt about things - That was neither a reason nor an excuse for the inclusion of such material - Counsel had a duty to their clients and the court to act as a filter to eliminate improper and inadmissible material - It was not the counsel's duty to indulge one's client or to merely be the client's "mouthpiece" - See paragraph 11.

Barristers and Solicitors - Topic 1544

Relationship with client - Duty to client - Extent or limits of duty - [See Barristers and Solicitors - Topic 881 ].

Elections - Topic 7872

Controverted elections - Invalid elections - Procedure for determining - Borowski, an unsuccessful candidate in a municipal election, filed an affidavit and a draft notice of motion seeking authorization to serve a notice of motion in the nature of quo warranto to determine the validity of the election pursuant to s. 19(1) of the Controverted Municipal Elections Act - He subsequently applied ex parte to preserve election materials and for leave to proceed with his s. 19 motion - An applications judge ordered the preservation of materials and directed Borowski to forthwith serve all materials on the respondent Prisiak - The judge did not deliver a fiat regarding s. 19, nor did it endorse anything on the draft notice of motion on file - Borowski served his notice of motion and materials - The respondents opposed the application on the basis that Borowoski had not obtained the judicial authorization required by s. 19 to proceed with the motion and, therefore, the proceedings were out of time and a nullity - Borowski asserted that s. 19 only required him to file an affidavit, not an ex parte application, and that his affidavit was filed on time as it was within six weeks of the release of the election - The Saskatchewan Court of Queen's Bench agreed that the time ran from the date that the election results were published - However, s. 19 contemplated an ex parte application which was never filed by Borowski - The filing of an application with supporting affidavit, together with filing sufficient sureties, were also prerequisites to proceeding with quo warranto via notice of motion - Without a fiat on all of those points, the motion could not proceed - The undue and unexplained delay was fatal and could not be saved by rule 50 of the Queen's Bench Rules - See paragraphs 21 to 39.

Elections - Topic 8145

Controverted elections - Evidence and proof - Affidavits - Borowski, an unsuccessful incumbent candidate in an election for a municipal councillor, sought to overturn the election results, to oust the elected individual from office and costs - He also moved for production of election materials - The Saskatchewan Court of Queen's Bench held that Borowski's supporting affidavit materials were not properly before the court - The affidavits were repleat with argument, opinion, polemic and hearsay - The court ordered redactions - With respect to one affidavit prepared by his counsel, it appeared that Borowski had replaced the page containing the jurat with an addendum - The addendum was a one page, single spaced rant - The addendum had no probative value, but had considerable prejudicial effect - There was no jurat and the requirements of rule 322 were not met - The court struck the affidavit in its entirety - Even if the affidavit somehow lacked this plethora of defects, s. 21 of the Controverted Municipal Elections Act had not been complied with as the affidavit was filed after the motion and all supporting material had been served and filed - See paragraphs 9 to 14.

Elections - Topic 8165

Controverted elections - Practice - Limitation periods - [See Elections - Topic 7872 ].

Practice - Topic 2386

Writ of summons, endorsements, originating summons and originating notices - Nullities and irregularities - General - Borowski, an unsuccessful candidate in a municipal election, filed an affidavit and a draft notice of motion seeking authorization to serve a notice of motion in the nature of quo warranto to determine the validity of the election pursuant to s. 19(1) of the Controverted Municipal Elections Act - He applied ex parte to preserve election materials and for leave to proceed with his s. 19 motion - An applications judge ordered the preservation of election materials and directed Borowski to forthwith serve all materials on the respondent Prisiak - The judge did not deliver a fiat regarding s. 19, nor did it endorse anything on the draft notice of motion on file - Borowski served his notice of motion and materials - The respondents opposed the application on the basis that Borowoski had not obtained the judicial authorization required by s. 19 to proceed with the motion and, therefore, the proceedings were out of time and a nullity - Borowski asserted that respondents' opposition was not properly before the court where they had not filed a notice of motion - The Saskatchewan Court of Queen's Bench held that the respondents had done what they were entitled to do: react to an application served upon them as it had been framed by the opposite side - Fatal flaws and procedural defects did not have to become the subject of a separate cross-motion - It was proper to raise them as preliminary objections and the court could deal with them accordingly - See paragraph 20.

Practice - Topic 2389

Writ of summons, endorsements, originating summons and originating notices - Nullities and irregularities - What constitutes a nullity - [See Elections - Topic 7872 ].

Practice - Topic 2801

Curative provisions - General - The Saskatchewan Court of Queen's Bench stated that "Rule 5 is a saving provision of wide application. Its genesis was in the concept that the rules of this Court are its servants, not its masters. Rule 5 deals with procedural irregularities and non-compliance with The Queen's Bench Rules, including those pertaining to judicial review ... However, the applicant takes a view of the scope of Rule 5 which is overly broad. Rule 5 is not a panacea. It is designed to allow for the occasional slip and to allow the Court to ensure that justice is done between the parties ... In has been determined that our rules of court can only deal with procedural matters. They cannot alter substantive or statutory laws. Rule 5, while being a remedial provision of general application (and which operates presumptively, favouring validity) cannot create or abrogate time limits imposed by a statute. An intervening limitation period created by statute is an insurmountable obstacle which bars the granting of leave required by that statute. ... There are many cases holding that failure to obtain statutory leave to commence judicial proceedings cannot be remedied by the application of Rule 5." - See paragraphs 34 to 36.

Practice - Topic 2805

Curative provisions - For noncompliance with a statute - [See Practice - Topic 2801 ].

Practice - Topic 2808

Curative provisions - For wrong commencement procedure or document - [See Elections - Topic 7872 and Practice - Topic 2801 ].

Practice - Topic 3123

Applications and motions - Motions - When used or applicable - [See Practice - Topic 2386 ].

Practice - Topic 3609

Evidence - Affidavits - Formalities - Jurat - [See Elections - Topic 8145 ].

Practice - Topic 3664

Evidence - Affidavits - Striking out - Hearsay - [See Elections - Topic 8145 ].

Practice - Topic 3665

Evidence - Affidavits - Striking out - Argument - [See Elections - Topic 8145 ].

Practice - Topic 3666

Evidence - Affidavits - Striking out - Irrelevant or improper matters - [See Elections - Topic 8145 ].

Practice - Topic 3667

Evidence - Affidavits - Prejudicial matter - [See Elections - Topic 8145 ].

Practice - Topic 3704

Evidence - Affidavits - Validity of - Severability - [See Elections - Topic 8145 ].

Cases Noticed:

101050457 Saskatchewan Ltd. et al. v. Regina (City) (2009), 337 Sask.R. 185; 464 W.A.C. 185; 2009 SKCA 98, refd to. [para. 20].

Pratchler Agro Services Inc. (Bankrupt) v. Cargill Ltd. (1999), 183 Sask.R. 157; 11 C.B.R.(4th) 107 (Q.B.), refd to. [para. 20].

Bayerle v. Pady, 1995 CanLII 5653 (Sask. Q.B.), refd to. [para. 20].

Miller v. Boxall et al. (2005), 261 Sask.R. 211; 2005 SKQB 122, refd to. [para. 25].

Brown v. Sherwood No. 159 (Rural Municipality) et al., [2004] Sask.R. Uned. 121; 2004 SKCA 91, refd to. [para. 26].

Quinn v. Deyell (2013), 411 Sask.R. 250; 2013 SKQB 6, agreed with [para. 32].

Glass World Inc. v. McCullough Oilfield Services Ltd. et al. (1994), 122 Sask.R. 208 (Q.B.), refd to. [para. 35].

Coulthard v. Coulthard, [1952] 5 W.W.R.(N.S.) 662 (Sask. C.A.), refd to. [para. 35].

Holst v. Grenier et al. (1987), 65 Sask.R. 257 (Q.B.), refd to. [para. 36].

Ennis v. Standingready (1991), 95 Sask.R. 149; 5 C.C.L.I.(2d) 155 (Q.B.), refd to. [para. 36].

Statutes Noticed:

Controverted Municipal Elections Act, R.S.S. 1978, c. C-33, sect. 19 [para. 16].

Rules of Court (Sask.), Queen's Bench Rules, rule 5 [para. 33 et seq.].

Counsel:

Bernard N. Stephaniuk, for the applicant;

Jacqueline M. Ferraton, as agent, for F. William Johnson, Q.C., for the respondents.

This application was heard by Danyliuk, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Wynyard, who delivered the following judgment on April 10, 2013.