Clements et al. v. Preece, 2014 SKCA 128

• Judge: Klebuc, Herauf and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: November 28, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKCA 128;(2014), 446 Sask.R. 294 (CA)

Clements v. Preece (2014), 446 Sask.R. 294 (CA);

    621 W.A.C. 294

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. DE.049

David Clements, Tom Morton and Georgina Morton (plaintiffs/appellants) v. Robert Preece (defendant/respondent) and Government of Saskatchewan (third party/non-party)

(CACV2510)

Robert Preece (defendant/appellant) v. David Clements, Tom Morton and Georgina Morton (plaintiffs/respondents) and Government of Saskatchewan (third party/non-party)

(CACV2516; 2014 SKCA 128)

Indexed As: Clements et al. v. Preece

Saskatchewan Court of Appeal

Klebuc, Herauf and Ryan-Froslie, JJ.A.

November 28, 2014.

Summary:

The plaintiffs gained access to their property by way of a trail that ran through Crown land leased by the defendant. They appealed the dismissal of their application to strike the amended statement of defence, and the order striking the defendant's third party claim against the Government of Saskatchewan.

The Saskatchewan Court of Appeal dismissed both appeals.

Crown - Topic 6761

Crown lands - Leases - General - [See Practice - Topic 2230 ].

Practice - Topic 1138

Parties - Third party or subsequent party procedure - Third party notice - Striking out of - [See Practice - Topic 2230 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action - The plaintiffs gained access to their property by way of a trail that ran through Crown land leased by the defendant (Preece) - The third party claim against Saskatchewan was struck: (i) there was no express covenant of quiet enjoyment in the written leases between Preece and Saskatchewan; (ii) s. 43(1) of the Provincial Lands Act authorized Preece to take any action necessary to protect his rights under the leases including an action for trespass on the leased lands by third parties; and (iii) since Preece had the authority to take action for trespass against the plaintiffs, there was no obligation upon Saskatchewan to take action against the alleged wrongful actions of a third party - The Saskatchewan Court of Appeal dismissed the appeal - "The Chambers judge set out the proper test for striking pleadings. ... He was aware that pleadings should only be struck under former Rule 173(a) 'in plain and obvious cases where the matter is beyond doubt'. ... [T]he Chambers judge did not err when he struck the claim on the basis that it did not disclose a cause of action. It is apparent that this claim, which is premised on the right to quiet enjoyment of the leased property, does not make Saskatchewan liable for the actions of third parties." - See paragraphs 6 and 8.

Practice - Topic 2243

Pleadings - Striking out pleadings - Bars - General - The Chambers judge dismissed the plaintiffs' application to strike the amended statement of defence on the footing that the plaintiffs had failed to satisfy the "requirements for striking of a statement of defence." - The Saskatchewan Court of Appeal dismissed the appeal - "[T]he Chambers judge was alive to the appropriate test. Since there was substantial conflicting material before the Chambers judge we cannot say that he improperly exercised his discretion by refusing to strike the amended statement of defence. In view of the material before him, it is difficult to see how he could have come to any other conclusion." - See paragraph 7.

Practice - Topic 8825.7

Appeals - General principles - Duty of appeal court re decision to amend or strike pleadings - The Saskatchewan Court of Appeal stated that "It is well established that orders striking pleadings are of a discretionary nature. As such, the standard of review relating to the exercise of discretionary powers is applicable." - See paragraph 5.

Cases Noticed:

Rimmer v. Adshead, [2002] 4 W.W.R. 119; 217 Sask.R. 94; 265 W.A.C. 94; 2002 SKCA 12, refd to. [para. 5].

D.B. v. Parkland School Division No. 63 (2004), 244 D.L.R.(4th) 629; 2004 SKCA 113, refd to. [para. 5].

Mann et al. v. Hawkins et al. (2011), 385 Sask.R. 59; 536 W.A.C. 59; 2011 SKCA 146, refd to. [para. 6].

Statutes Noticed:

Provincial Lands Act, R.S.S. 1978, c. P-31, sect. 43(1) [para. 4].

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

Rules of Court (Sask.), Queen's Bench Rules, rule 173(a) [para. 6].

Counsel:

Bruce W. Wirth, for David Clements, Tom Morton and Georgina Morton;

Nicholas Stooshinoff, for Robert Preece;

Charita Ohashi, for the Government of Saskatchewan.

These appeals were heard and dismissed orally on November 28, 2014, by Klebuc, Herauf and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. The following reasons, written by Herauf, J.A., were released on December 3, 2014.