Duke v. Vervaeck,

• Jurisdiction: Saskatchewan
• Judge: Klebuc, J.
• Neutral Citation: 2000 SKQB 414
• Citation: (2000), 197 Sask.R. 253 (QB),2000 SKQB 414,2000 FCA 414,[2001] 5 WWR 380,[2000] SJ No 591 (QL),197 Sask R 253,197 Sask.R. 253,197 SaskR 253,(2000), 197 SaskR 253 (QB),[2000] S.J. No 591 (QL)
• Date: 05 October 2000
• Court: Court of Queen's Bench of Saskatchewan (Canada)

Duke v. Vervaeck (2000), 197 Sask.R. 253 (QB)

MLB headnote and full text

Temp. Cite: [2000] Sask.R. TBEd. OC.056

Harvey Duke, Sharon Duke, Duke Phar­macy Ltd. and Broadview Pharmacy Holdco Ltd. (respondents/plaintiffs) v. Colette Vervaeck (applicant/defendant)

(1997 Q.B.G. No. 2540; 2000 SKQB 414)

Indexed As: Duke et al. v. Vervaeck

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Klebuc, J.

October 5, 2000.

Summary:

The plaintiffs sued the defendant for dam­ages for wrongful interference with their economic interests. These events were alleged to have taken place between March and October of 1995. The plaintiffs also com­menced an action against the defendant's husband for damages for libel and slander, unlawful interference with the plaintiffs' contractual relationships, etc. The defendant applied for leave to amend her pleadings to include a counterclaim against one of the plaintiffs, Harvey Duke.

The Saskatchewan Court of Queen's Bench granted leave subject to conditions.

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - [See first Limitation of Actions - Topic 9305 and second Practice - Topic 2110 ].

Limitation of Actions - Topic 9305

Postponement or suspension of statute - Discoverability rule - Section 3(1)(d) of the Limitation of Actions Act provided that actions for trespass to the person, assault, battery, wounding or other injury to the person had to be commenced within two years after the cause of action arose - The Saskatchewan Court of Queen's Bench held that with respect to s. 3(1)(d), the discoverability principle could be applied to postpone the running of the time limit prescribed thereby in circumstances where the name of the tortfeasor could not be reasonably ascertained by the plaintiff within the prescribed limitation period - See paragraphs 22 to 25.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - Discoverability rule - [See second Prac­tice - Topic 2110 ].

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action - The Saskatchewan Court of Queen's Bench discussed the effect of s. 30 in the Queen's Bench Revision Act which allowed a judge to amend pleadings to add a new claim or party where the claim asserted by the amendment, or by or against the new party, arose out of the same transaction or occurrence as the original claim, and the judge was satisfied that no party would suffer actual prejudice as a result of the amendment - The court discussed what would constitute the "same transaction or occurrence" within the meaning of s. 30 - See paragraphs 10 to 21.

Practice - Topic 2110

Pleadings - Amendment of pleadings - Add­ing new cause of action - The plain­tiffs, including Duke, sued the defendant for damages for wrongful interference with eco­nomic interests - On discovery, Duke admitted to trespass - The defendant ap­plied to amend her pleadings to include a counterclaim against Duke for trespass - The Saskatchewan Court of Queen's Bench al­lowed the application to amend - The court held that it did not have to consider if the implied undertaking rule applied here, because the answers given on dis­covery were not essential to the application - The counterclaim disclosed a cause of action, it would not be inequitable to allow the counterclaim to proceed and the coun­terclaim would not unduly complicate or delay the trial of the main action - The counterclaim was not barred by the limita­tion period because of the discoverability rule, and even if it was, the defendant would be entitled to relief under s. 30 of the Queen's Bench Revision Act.

Practice - Topic 2111

Pleadings - Amendment of pleadings - Prohibition against adding new action which is statute barred - [See both Prac­tice - Topic 2110 ].

Practice - Topic 2129.1

Pleadings - Amendment of pleadings - Counterclaims - [See both Practice - Topic 2110 ].

Practice - Topic 2129.1

Pleadings - Amendment of pleadings - Counterclaims - The Saskatchewan Court of Queen's Bench reviewed the principles applicable to applications for leave to bring a counterclaim - See paragraph 9.

Practice - Topic 4157

Discovery - Collateral use of discovery information (implied undertaking rule) - The Saskatchewan Court of Queen's Bench noted that at common law, a party obtain­ing documents on discovery was subject to an implied undertaking not to use or per­mit the documents to be used for a collat­eral or ulterior purpose (i.e., the implied undertaking rule) - The court also noted that the Court of Appeal in Saskatchewan had concluded that the implied undertaking rule also applied to answers given to ques­tions during an examination for discovery -See paragraphs 26 to 28.

Practice - Topic 4157

Discovery - Collateral use of discovery information (implied undertaking rule) - [See second Practice - Topic 2110 ].

Words and Phrases

Same transaction or occurrence - The Saskatchewan Court of Queen's Bench discussed the meaning of the phrase "same transaction or occurrence" as used in s. 30 of the Queen's Bench Revision Act, S.S. 1998, c. Q-1.1 - See paragraphs 10 to 21.

Cases Noticed:

LID Brokerage & Realty Co. (1977) Ltd. et al. v. Budd et al., [1992] 2 W.W.R. 453; 98 Sask.R. 51 (Q.B.), refd to. [para. 9].

Clarke v. Saskatoon (City) et al., [1994] 6 W.W.R. 450; 118 Sask.R. 128 (Q.B.), refd to. [para. 10].

Stockbrugger Estate v. Wolfe Estate, Rachul and Sanstra Brothers Transport Ltd., [1987] 4 W.W.R. 759; 59 Sask.R. 96 (C.A.), refd to. [para. 10].

Walbaum and Walbaum v. G & R Truck­ing Ltd., [1983] 2 W.W.R. 622; 22 Sask.R. 22 (C.A.), refd to. [para. 11].

Dusterbeck v. Beitel, [1988] 6 W.W.R. 669; 31 C.P.C.(2d) 83 (Sask. C.A.), refd to. [para. 12].

Dickhoff v. Armadale Communications Ltd. et al., [1994] 1 W.W.R. 468; 113 Sask.R. 285; 52 W.A.C. 285 (C.A.), refd to. [para. 13].

R. v. Natanson, [1927] 3 W.W.R. 550; 49 C.C.C. 80 (Sask. C.A.), refd to. [para. 16].

R. v. Canavan and Busby, [1970] 5 C.C.C. 15 (Ont. C.A.), refd to. [para. 16].

Fenrich v. Becker (1989), 75 Sask.R. 265 (Q.B.), refd to. [para. 17].

Smith v. Glasgow Underwriters et al., [1923] 3 W.W.R. 663 (Alta. C.A.), refd to. [para. 17].

McInnis Estate v. Atlific Inc. (1984), 37 Sask.R. 201 (Q.B.), refd to. [para. 17].

Fillion v. Wolverine et al. (2000), 197 Sask.R. 165 (Q.B.), refd to. [para. 17].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321; 96 D.L.R.(4th) 289, refd to. [para. 23].

Peixeiro v. Haberman, [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161; 151 D.L.R.(4th) 429; 30 M.V.R.(3d) 41, refd to. [para. 23].

Fehr v. Jacob and Bethel Hospital (1993), 85 Man.R.(2d) 63; 41 W.A.C. 63; 14 C.C.L.T.(2d) 200 (C.A.), refd to. [para. 24].

Home Office v. Harman, [1982] 1 All E.R. 532 (H.L.), refd to. [para. 26].

Laxton Holdings Ltd. et al. v. Lloyd's of London Non-Marine Underwriters et al., [1987] 3 W.W.R. 570; 56 Sask.R. 152 (C.A.), refd to. [para. 27].

Wasylyshen v. Canadian Broadcasting Corp. and Neil (1989), 73 Sask.R. 295 (C.A.), refd to. [para. 27].

St. Paul's Hospital (Grey Nuns') of Saskatoon v. Paterson (1989), 78 Sask.R. 23 (Q.B.), refd to. [para. 27].

Board of Education of Saskatoon West School Division No. 42 v. J.A. and J.S. (1997), 160 Sask.R. 129 (Q.B.), refd to. [para. 27].

Orfus Realty v. D.G. Jewellery of Canada Ltd. (1995), 83 O.A.C. 35; 41 C.P.C.(3d) 148 (C.A.), refd to. [para. 28].

Key Lake Mining Corp. v. Patrick-Knudsen Excavating Inc. et al. (1989), 73 Sask.R. 182 (Q.B.), refd to. [para. 32].

Amok Ltd. v. Kilborn Engineering Ltd. and Kilborn (Saskatchewan) Ltd. (1985), 45 Sask.R. 48 (Q.B.), refd to. [para. 33].

Neogleous et al. v. Toffolon (No. 2) (1978), 17 O.R.(2d) 453 (H.C.), refd to. [para. 33].

Bloomfield v. Rosthern Union Hospital Ambulance Board et al. (1990), 82 Sask.R. 310 (C.A.), refd to. [para. 36].

Statutes Noticed:

Limitation of Actions Act, R.S.S. 1978, c. L-15, sect. 3(1)(d), sect. 3(1)(e) [para. 22].

Queen's Bench Act, R.S.S. 1978, c. Q-1, sect. 44(3), sect. 44(7) [para. 1].

Queen's Bench Revision Act, S.S. 1998, c. Q-1.1, sect. 29, sect. 30, sect. 31, sect. 32 [para. 7].

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. 8].

Authors and Works Noticed:

Stephen, James Fitzjames, Digest of the Law of Evidence, p. 7, art. 3 [para. 16].

Counsel:

Roger J.F. Lepage, for the respondent, Harvey Duke;

Tiffany Paulsen, for the applicant, Colette Vervaeck.

This application was heard before Klebuc, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on October 5, 2000.