Clements et al. v. Preece, (2011) 376 Sask.R. 196 (QB)

• Judge: Dufour, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 31, 2011
• Jurisdiction: Saskatchewan
• Citations: (2011), 376 Sask.R. 196 (QB);2011 SKQB 212

Clements v. Preece (2011), 376 Sask.R. 196 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. JN.019

David Clements, Tom Morton and Georgina Morton (plaintiffs) v. Robert Preece (defendant)

(2007 Q.B.G. No. 304; 2011 SKQB 212)

Indexed As: Clements et al. v. Preece

Saskatchewan Court of Queen's Bench

Judicial Centre of Battleford

Dufour, J.

May 31, 2011.

Summary:

Home owners (the Mortons) and a cottage owner (Clements) sued a lessee of Crown land (Preece), asserting that Preece had violated the Provincial Lands Act and the Crown lease by placing a barrier on the leased land that prevented them from driving to their properties. They claimed damages and a permanent injunction requiring Preece to remove the barrier and prohibiting him from interfering with the road. Preece's position was that the plaintiffs had no right to cross the leased land and that if they wanted to get to their property, they should develop the road allowance that bordered Clements' property. The plaintiffs obtained an interlocutory injunction requiring Preece to remove the barrier. Preece applied to the strike the statement of claim.

The Saskatchewan Court of Queen's Bench allowed the application.

Contracts - Topic 9000

Rights and liabilities of strangers to contract - General - Privity of contract - Clements and others sued a lessee of Crown land (Preece), asserting that Preece had violated the Crown lease by placing a barrier on the leased land that prevented them from driving to their properties - They claimed damages and injunctive relief - The plaintiffs obtained an interlocutory injunction requiring Preece to remove the barrier - Preece applied to the strike the statement of claim asserting that, inter alia, it was scandalous, frivolous or vexatious (Queen's Bench Rules, rule 173(c)) and an abuse of process (rule 173(e)) - In support of their entitlement to a permanent injunction, the plaintiffs asserted that, inter alia, paragraph 6 of the lease required Preece to allow them to use the trail on the leased property - The Saskatchewan Court of Queen's Bench stated that it had reservations as to whether the plaintiffs, a nonparty to the lease, could enforce it - However, the court did not have to address the issue because no provision in the lease could ground an entitlement to a permanent injunction where, according to the lease, it expired on December 31, 2010, or, according to the Act, it expired when the Minister chose to terminate it - Further the lease provided that it was subject to several Acts and Regulations, none of which gave any rights to use roads on Crown land - None contained anything remotely similar to paragraph 6 - As the legislature had not seen fit to endow members of the public with an unencumbered right to use roads on leased land, paragraph 6 either meant something else or it was of no force or effect - See paragraphs 41 to 44.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process (incl. abuse of process by relitigation) - Plaintiffs sued a lessee of Crown land (Preece), asserting that Preece had violated the Provincial Lands Act and the Crown lease by placing a barrier on the leased land that prevented them from driving to their properties - They claimed damages and injunctive relief - The plaintiffs obtained an interlocutory injunction requiring Preece to remove the barrier - Preece applied to the strike the statement of claim, asserting that, inter alia, it disclosed no reasonable cause of action (Queen's Bench Rules, rule 173(a)) - The Saskatchewan Court of Queen's Bench held that it was not open to the court to find that the plaintiffs had no arguable case where the order that granted the interlocutory injunction could not have issued without the judge having been satisfied that there was a serious issue to be tried - To find that the plaintiff had no arguable case would be incompatible with the previous finding that there was a serious issue to be tried - Striking the claim under rule 173(a) would constitute an abuse of process - See paragraphs 12 to 17.

Courts - Topic 2015

Jurisdiction - General principles - Controlling abuse of its process (incl. abuse of process by relitigation) - The Saskatchewan Court of Queen's Bench, despite the plaintiffs having obtained interlocutory injunctive relief, granted the defendant's application to strike the statement of claim - The court stated that if it ran afoul of the doctrines of res judicata, issue estoppel or abuse of process, it was exercising its discretion to depart from the strict application thereof - Respect for the judicial system would be diminished if the court was hobbled by the doctrine of abuse of process such that it could not strike a claim that was clearly an abuse of process - See paragraphs 59 and 60.

Crown - Topic 4542.1

Actions by and against Crown in right of a province - Capacity of Crown to be sued - Statutory immunity - Property owners sued a lessee of Crown land (Preece), asserting that Preece had violated the Provincial Lands Act and the Crown lease by placing a barrier on the leased land that prevented them from driving to their properties - They claimed damages for loss of enjoyment and a permanent injunction requiring Preece to remove the barrier and prohibiting him from interfering with the road - The Saskatchewan Court of Queen's Bench struck the statement of claim - The plaintiffs were trespassers and had no right to use the road - Preece had every right to bar their access - Further, the plaintiffs' failure to name the owner of the leased land (the Province of Saskatchewan) was an overarching, fundamental and fatal deficiency - They could not obtain injunctive relief that would affect the Crown's land without involving the Crown in the action - Further, injunctive relief was not available against the Crown (Proceedings Against the Crown Act, s. 17(2)) - The claim was an abuse of process - The court could not find that the plaintiffs acted "honestly and in good faith" by issuing and prosecuting a claim that so clearly lacked any ground for entitlement to injunctive relief - They had used the machinery of the court to vex and oppress Preece who had expended significant time and money to defend a meritless claim - For four years he paid rent on the leased land while they used it for free - See paragraphs 50 to 54.

Crown - Topic 6761

Crown lands - Leases - General - [See Contracts - Topic 9000 ].

Crown - Topic 6882

Crown lands - Licences or permits to use - Entitlement to - [See Contracts - Topic 9000 ].

Crown - Topic 6882

Crown lands - Licences or permits to use - Entitlement to - Clements and others sued a lessee of Crown land (Preece), asserting that Preece had violated the Provincial Lands Act by placing a barrier on the leased land that prevented them from driving to their properties - They claimed damages and injunctive relief - The plaintiffs obtained an interlocutory injunction requiring Preece to remove the barrier - Preece applied to the strike the statement of claim asserting that, inter alia, it was scandalous, frivolous or vexatious (Queen's Bench Rules, rule 173(c)) and an abuse of process (rule 173(e)) - The Saskatchewan Court of Queen's Bench noted that the circumstance had changed since the injunction was granted - The judge's finding of irreparable harm was apparently based on his conclusion that Clements had no way to access his cottage if the barrier was not removed - However, Clements now had permission to develop a road allowance that bordered his property - Clements' complaint was now that the road would cost $120,000 to construct - However, a quantifiable harm did not constitute irreparable harm - In support of their entitlement to a permanent injunction, the plaintiffs asserted that, inter alia, s. 12 of the Provincial Lands Act respecting access to water (in this case a lake) gave them the right to the trail on the leased property - A finding that the plaintiffs had the right to use the trail was contrary to the plain meaning of s. 12 and the objects of the Act - Further, it was too much of a stretch for Clements to assert that he used the trail to access the lake - He used the trail to access his property and there was a specific provision in the Act that addressed that situation - The Minister could, with or without Preece's consent, grant Clements an easement that would allow him to use the trail - In fact, the Minister had refused to grant Clements an easement - Given the object of the Act and the maxims expressio unius est exclusio alterius and generalia specialibus non derogant, the court concluded that s. 12 did not apply - See paragraphs 32 to 40.

Estoppel - Topic 377

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - When applicable - [See second Courts - Topic 2015 ].

Injunctions - Topic 695

Granting an injunction - Considerations affecting grant - Requirement of irreparable injury - [See second Crown - Topic 6882 ].

Injunctions - Topic 789

Granting an injunction - Persons against whom an injunction will be granted - Crown - General - [See Crown - Topic 4542.1 ].

Injunctions - Topic 1441

Permanent injunctions - When granted - General - [See Contracts - Topic 9000 ].

Injunctions - Topic 9266

Practice - Parties - Necessary defendants - [See Contracts - Topic 4542.1 ].

Practice - Topic 2200

Pleadings - Striking out pleadings - General principles - Plaintiffs obtained an interlocutory injunction - The defendant applied to the strike the statement of claim, asserting that, inter alia, it was scandalous, frivolous or vexatious (Queen's Bench Rules, rule 173(c)) and it was an abuse of process (rule 173(e)) - The Saskatchewan Court of Queen's Bench stated that although it was fettered by the findings of the judge who granted the interlocutory injunction it was not to the same extent as it was under rule 173(a) (no arguable case) - A finding that there was a serious case to be tried (a prerequisite to granting injunctive relief) did not equate to a determination that the claim had merit and was not an abuse of process - It would be improper to make fact findings that were inconsistent with the previous ruling on the same evidence that was before the judge who granted the interim injunction - The court could however consider new evidence and, if it warranted, find facts and draw conclusions that might be different that those found by the judge who granted the injunction - Further, the court could consider any change in the circumstances since the injunction issued that mitigated for or against striking the claim or any portions of it - The court could also consider legal aspects that might not have been before the judge who granted the interlocutory injunction - See paragraphs 18 to 23.

Practice - Topic 2208

Pleadings - Striking out pleadings - Application for - Evidentiary limitations - [See Practice - Topic 2200 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See first Courts - Topic 2015 ].

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - [See Crown - Topic 4542.1 ].

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - [See second Courts - Topic 2015 and Crown - Topic 4542.1 ].

Practice - Topic 2244

Pleadings - Striking out pleadings - Bars - Delay - A defendant applied to strike the plaintiffs' statement of claim - The plaintiffs opposed the application on the basis that it had not been brought until almost four years after the claim was issued - The Saskatchewan Court of Queen's Bench refused to give effect to the plaintiffs' opposition - The courts had held that an application to strike a claim should not be dismissed on the basis of delay unless the plaintiff would suffer prejudice - The plaintiffs asserted that they had been prejudiced because they had incurred legal expenses associated with nine interlocutory applications and partial examinations for discovery - However, the court did not consider that striking the claim would cause the plaintiffs prejudice - Rather, the court viewed it as a kindness in that they were being spared the expense of further prosecuting a doomed claim - See paragraphs 56 to 58.

Statutes - Topic 1554

Interpretation - Construction where meaning is not plain - Implied meaning - Stating one thing implies exclusion of another (expressio unius est exclusio alterius) - [See second Crown - Topic 6882 ].

Statutes - Topic 2613

Interpretation - Interpretation of words and phrases - Modern rule (incl. interpretation by context) - Generalia specialibus non derogant - [See second Crown - Topic 6882 ].

Cases Noticed:

Sagon v. Royal Bank of Canada et al. (1992), 105 Sask.R. 133; 32 W.A.C. 133 (C.A.), refd to. [para. 12].

Saskatchewan Provincial Court Judges Association et al. v. Saskatchewan (Minister of Justice) et al. (1995), 137 Sask.R. 204; 107 W.A.C. 204 (C.A.), refd to. [para. 14].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 14].

Hildebrandt et al. v. Lumsden (Town) (2011), 372 Sask.R. 310; 2011 SKQB 171, refd to. [para. 14].

La Plante et al. v. Society for the Prevention of Cruelty to Animals (Sask.) (2011), 371 Sask.R. 123; 518 W.A.C. 123; 2011 SKCA 43, refd to. [para. 14].

Bomac Construction Ltd. et al. v. Stevenson et al. (1986), 48 Sask.R. 62 (C.A.), refd to. [para. 16].

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 17].

Paszkowski v. Canada (Minister of Citizenship and Immigration) et al., [2001] F.T.R. Uned. 58 (T.D.), refd to. [para. 21].

Aquino et al. v. First Choice Capital Fund Ltd. et al. (1995), 134 Sask.R. 241; 101 W.A.C. 241 (C.A.), refd to. [para. 22].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1, refd to. [para. 24].

Island View (Resort Village) v. Romashenko (2010), 346 Sask.R. 126; 477 W.A.C. 126; 2010 SKCA 4, refd to. [para 29].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 34].

R. v. Proulx (J.K.D.), [2000] 1 S.C.R. 61; 249 N.R. 201; 142 Man.R.(2d) 161; 212 W.A.C. 161, refd to. [para. 38].

Matthew v. Guardian Assurance Co., [1919] 1 W.W.R. 67 (S.C.C.), refd to. [para. 50].

Douglas et al. v. Saskatchewan (Minister of Learning) (2005), 267 Sask.R. 78; 2005 SKQB 270, refd to. [para. 50].

Greyeyes v. Muskeg Lake Cree Nation No. 102 et al. (2010), 362 Sask.R. 122; 500 W.A.C. 122; 2010 SKCA 112, refd to. [para. 56].

Forster v. Gross (1999), 182 Sask.R. 294 (Q.B.), refd to. [para. 57].

Wiser v. Regina District Health Board (2000), 195 Sask.R. 158; 2000 SKQB 233, refd to. [para. 57].

Statutes Noticed:

Provincial Lands Act, R.S.S. 1978, c. P-31, sect. 12 [para. 32].

Authors and Works Noticed:

Bullen, E., Leake, S.M., and Jacob, Jack I.H., Precedents of Pleadings in the Queen's Bench Division of the High Court of Justice (12th Ed. 1975), generally [para 52].

Counsel:

R. Kirkham, for the plaintiffs;

M. Hudec, for the defendant.

This application was heard by Dufour, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Battleford, who delivered the following fiat on May 31, 2011.