Filson v. Canada (Attorney General) et al., 2015 SKCA 80

• Judge: Richards, C.J.S., Herauf and Ryan-Froslie, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: February 10, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKCA 80;(2015), 465 Sask.R. 6 (CA)

Filson v. Can. (A.G.) (2015), 465 Sask.R. 6 (CA);

    649 W.A.C. 6

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JL.042

Duane Filson (plaintiff/appellant) v. Her Majesty the Queen in Right of Canada, as represented by the Attorney General of Canada, Her Majesty the Queen in Right of Canada, as represented by the Minister of Agriculture and Agri-Food, and Canadian Wheat Board (defendants/respondents)

(CACV2558; 2015 SKCA 80)

Indexed As: Filson v. Canada (Attorney General) et al.

Saskatchewan Court of Appeal

Richards, C.J.S., Herauf and Ryan-Froslie, JJ.A.

July 8, 2015.

Summary:

Filson commenced an action against the Attorney General of Canada, the Minister of Agriculture and Agri-food and the Canadian Wheat Board (CWB), claiming damages as a result of the passage of Bill C-18, An Act to reorganize the Canadian Wheat Board and to make consequential and related amendments to certain Acts. Filson's action was brought pursuant to the Class Actions Act on behalf of himself and producers who sold grain to the CWB from January 1, 2011 to August 1, 2012. Filson applied for certification of his action as a class action. The defendants applied pursuant to rule 7-9 of the Queen's Bench Rules to strike the Statement of Claim on the basis it disclosed no reasonable cause of action.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2014), 447 Sask.R. 219, struck the Statement of Claim without leave to amend. The court also awarded costs to the defendants with respect to the application. Filson appealed.

The Saskatchewan Court of Appeal dismissed the appeal with respect to the application to strike. However, the court allowed the appeal with respect to costs. The chambers judge's order for costs was set aside.

Civil Rights - Topic 8005

Canadian or provincial Bill of Rights - Principles of operation and interpretation - Due process, right to life, liberty, security and enjoyment of property - Filson commenced a proposed class action against the Attorney General of Canada, the Minister of Agriculture and Agri-food and the Canadian Wheat Board (CWB), claiming damages as a result of the passage of Bill C-18, An Act to reorganize the Canadian Wheat Board and to make consequential and related amendments to certain Acts - A chambers judge struck the Statement of Claim on the basis that it disclosed no reasonable cause of action - Filson appealed - The Saskatchewan Court of Appeal dismissed the appeal - Filson had claimed, inter alia, that the defendants breached the Canadian Bill of Rights when enacting Bill C-18 - Section 1(a) of the Bill of Rights, upon which Filson relied, related to the right of an individual to life, liberty, security of the person, and enjoyment of property and the right not to be deprived thereof except by due process of law - The court stated that "Mr. Filson and the members of the representative class did not have any interest in CWB's property nor do they have a proprietary interest in its single-desk marketing system. Bill C-18 was validly enacted legislation that, when interpreted in accordance with the principles set out in the Bill of Rights, does not affect the producers' enjoyment of their property" - See paragraph 65.

Courts - Topic 5

Stare decisis - Authority of judicial decisions - General principles - Authority and use of precedents - General - Filson brought a proposed class action, claiming damages as a result of the passage of Bill C-18, An Act to reorganize the Canadian Wheat Board and to make consequential and related amendments to certain Acts - The defendants applied to strike the Statement of Claim on the basis it disclosed no reasonable cause of action - The chambers judge struck the Statement of Claim without leave to amend - Filson appealed - Filson contended that the chambers judge abdicated his role as decision-maker by adopting the "factual findings" of Madam Justice Tremblay-Lamer in Dennis v. Canada (Attorney General) (2013 FC) and, as such, his conclusions were not supported by the "evidence" before him - The Saskatchewan Court of Appeal rejected the argument - First, judges were entitled to consider the legal analysis and statutory interpretation employed by other judges with respect to the same or similar issues and they were free to accept such analysis or interpretations if persuaded they were correct - Second, applications to strike claims as disclosing no reasonable cause of action were not determined on the basis of evidence or findings of fact - The facts as pled in the claim had to be taken as true "unless they are manifestly incapable of being proven" - Finally, one had to be cautious when singling out paragraphs of a judgment for review - In determining whether a judge erred in arriving at his or her decision, each paragraph had to be considered in the context of the judgment as a whole - See paragraphs 23 to 27.

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Policies or "policy" decisions - [See Crown - Topic 5145 ].

Crown - Topic 5145

Officials and employees - Liability of officials in tort - Misfeasance - Filson commenced a proposed class action, claiming damages as a result of the passage of Bill C-18, An Act to reorganize the Canadian Wheat Board and to make consequential and related amendments to certain Acts - A chambers judge struck the Statement of Claim on the basis that it disclosed no reasonable cause of action - Filson appealed - The Saskatchewan Court of Appeal dismissed the appeal - With respect to Filson's claim for misfeasance in public office, the court stated that "In effect, [Filson] claims the Minister introduced Bill C-18 knowing that it would have the effect of 'expropriating' the CWB's assets and abolishing the single-desk marketing system resulting in loss to producers. By introducing and implementing Bill C-18, Mr. Filson contends the Minister deliberately breached his statutory duties and abused his powers of office. In my view, the Chambers judge was correct in concluding it is plain and obvious this claim discloses no reasonable cause of action. First, the alleged 'unlawful conduct' by the Minister was the introduction of Bill C-18. Introduction of a Bill for consideration by Parliament cannot be considered unlawful conduct. Second, Bill C-18 was found to be validly enacted legislation by the Federal Court of Appeal in Friends of the CWB. Third, Bill C-18 did not result in the expropriation of assets belonging to Mr. Filson or the representative class. Fourth, the enactment of Bill C-18 was a core policy decision of Parliament and as such is immune from private law liability" - See paragraphs 60 to 63.

Equity - Topic 3607

Fiduciary or confidential relationships - General principles - Relationships which are not fiduciary - [See Equity - Topic 3611 ].

Equity - Topic 3611

Fiduciary or confidential relationships - General principles - Crown - Filson commenced a proposed class action against the Attorney General of Canada, the Minister of Agriculture and Agri-food and the Canadian Wheat Board (CWB), claiming damages as a result of the passage of Bill C-18, An Act to reorganize the Canadian Wheat Board and to make consequential and related amendments to certain Acts - A chambers judge struck the Statement of Claim on the basis that it disclosed no reasonable cause of action - Filson appealed - The Saskatchewan Court of Appeal dismissed the appeal - The court held, inter alia, that the chambers judge did not err by finding that it was plain and obvious that a claim for breach of fiduciary duty could not be established - The court stated that "In sum, Mr. Filson claims the CWB owed a fiduciary duty to him and the other producers who are stakeholders or members of it to continue the single-desk marketing system, and that the CWB breached that duty by failing to take 'civil action' against the Government of Canada and the Minister for damaging that system. These claims cannot be established as a matter of law. First, neither the 1985 Act as amended nor Bill C-18 contain a statutory obligation that requires the Government of Canada to maintain a single-desk marketing system for the sale of any grain and no such obligation can be implied from the context of this case. Second, the way in which grain is marketed interprovincially and internationally is a core legislative decision that involves consideration of not just the producers' interest, but the interest of the public as a whole and the interests of rail companies and transportation and marketing agencies in particular. Thus, no exclusive duty to producers can be established" - See paragraphs 56 to 59.

Expropriation - Topic 3

Right to compensation - General principles - Expropriation defined - Filson commenced a proposed class action against the Attorney General of Canada, the Minister of Agriculture and Agri-food and the Canadian Wheat Board (CWB), claiming damages as a result of the passage of Bill C-18, An Act to reorganize the Canadian Wheat Board and to make consequential and related amendments to certain Acts - A chambers judge struck the Statement of Claim on the basis that it disclosed no reasonable cause of action - Filson appealed - Filson argued that the chambers judge erred in finding that the facts as pled by Filson would not support a claim for expropriation - His position was that the passage of Bill C-18 effected a "constructive taking" or "expropriation" because it extinguished his and members of the representative class's rights and interests in the assets of the CWB - The Saskatchewan Court of Appeal rejected the argument - Filson could not establish the elements necessary to prove expropriation - First, neither Filson nor any of the other producers had a proprietary interest in the assets of the CWB and, second, none of the defendants had "taken" CWB assets - Bill C-18 did not result in a "taking," actual or constructive, of any property and, thus, as a matter of law, expropriation could not be established - See paragraphs 39 to 45.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - Filson applied for certification of his action as a class action - The defendants applied to strike the Statement of Claim on the basis it disclosed no reasonable cause of action - The chambers judge struck the Statement of Claim without leave to amend and awarded costs to the defendants with respect to the application - Filson appealed - Filson contended that the defendants' application to strike was considered along with his application for certification of the action as a class action and, accordingly, s. 40 of the Class Actions Act (CAA) applied and an award of costs was prohibited - The Saskatchewan Court of Appeal allowed the appeal on this issue and set aside the order for costs - Section 40 of the CAA (as it existed prior to May 2015 amendments) applied as soon as an application for certification had been served and filed - Once the application for certification was served and filed, the "no costs order" set out in s. 40(1) was engaged - As such, the chambers judge erred in awarding costs against Filson on the application to strike - See paragraphs 68 to 81.

Practice - Topic 2108

Pleadings - Amendment of pleadings - Where application to strike pleading outstanding - Filson brought a proposed class action, claiming damages as a result of the passage of Bill C-18, An Act to reorganize the Canadian Wheat Board and to make consequential and related amendments to certain Acts - The defendants applied to strike the Statement of Claim on the basis it disclosed no reasonable cause of action - The chambers judge struck the Statement of Claim without leave to amend - Filson appealed - Filson argued that the chambers judge erred by disregarding a further Statement of Claim filed by Filson on the morning of the hearing - The Saskatchewan Court of Appeal rejected the argument - First, the Statement of Claim challenged by the application to strike was Filson's Statement of Claim as amended on June 26, 2013, not the further Statement of Claim filed by Filson on the morning of the hearing - Filson did not apply to amend his Statement of Claim as required by rule 3-72(2) and thus his further Statement of Claim was not a pleading - Second, the chambers judge recognized that Filson should ordinarily be given an opportunity to amend defects to his claim if allowing such amendments meant that reasonable causes of action would result - However, he found that the factual premises upon which Filson based his claims were not provable in law and that no amendment could correct that defect - Third, "mismanagement" was a totally new cause of action - Amendments to correct defects to claims already pled were distinct from amendments that asserted new causes of action - The former type of amendment was allowable in response to applications to strike - However, the latter type of amendment was not appropriate - See paragraphs 28 to 32.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action - [See Courts - Topic 5 and Practice - Topic 2108 ].

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - Filson applied for certification of his action as a class action - The defendants applied to strike the Statement of Claim on the basis it disclosed no reasonable cause of action - The chambers judge struck the Statement of Claim without leave to amend - Consequently, the application for certification was dismissed - Filson appealed - The Saskatchewan Court of Appeal dismissed the appeal - Filson's counsel contended that the chambers judge should have dealt with the certification application before addressing the application to strike the Statement of Claim - The court stated that "This argument was not raised before the Chambers judge, nor does it form a ground of Mr. Filson's appeal. It is an entirely new issue that was raised for the first time before this Court. It would be unfair to opposing counsel, who had no opportunity to adequately prepare submissions for this Court, to deal with that issue" - See paragraph 66.

Restitution - Topic 63

Unjust enrichment - General - Requirement of enrichment at plaintiff's expense - [See Restitution - Topic 64 ].

Restitution - Topic 64

Unjust enrichment - General - Juristic reason for enrichment - Filson commenced a proposed class action against the Attorney General of Canada, the Minister of Agriculture and Agri-food and the Canadian Wheat Board (CWB), claiming damages as a result of the passage of Bill C-18, An Act to reorganize the Canadian Wheat Board and to make consequential and related amendments to certain Acts - Filson's claim was based on the premise that there are two CWBs, the "Farmer CWB," which was created in 1998 and was controlled by producers, and the "Government CWB," which came into effect in 2011 with the passage of Bill C-18 - It was his position that from 1999 to 2011 the CWB operated solely for the benefit of Western Canadian producers and that it retained money from the sale of producers' grain to accumulate assets, namely: the contingency fund, the CWB building, goodwill, grain, and intangible and tangible assets - As a result of the passage of Bill C-18, he alleged that property was "taken" by the "Government CWB" - A chambers judge struck the Statement of Claim on the basis that it disclosed no reasonable cause of action - Filson appealed - The Saskatchewan Court of Appeal dismissed the appeal - With respect to Filson's claim of unjust enrichment, which was based on the alleged de facto existence of two CWBs, the court stated that "The Chambers judge correctly concluded, as a matter of law, there is only one CWB and, as such, the first two elements of the claim - an enrichment of the Respondents and a corresponding deprivation to Mr. Filson or the representative class - cannot be established. Finally, ... Bill C-18 provides a juristic reason for any enrichment that might possibly exist ... Thus, the Chambers judge did not err in finding it is plain and obvious there is no reasonable cause of action with respect to this claim" - See paragraphs 49 to 50.

Torts - Topic 3093

Trespass - Trespass to goods - Conversion - What constitutes conversion - Filson commenced a proposed class action, claiming damages as a result of the passage of Bill C-18, An Act to reorganize the Canadian Wheat Board and to make consequential and related amendments to certain Acts - A chambers judge struck the Statement of Claim on the basis that it disclosed no reasonable cause of action - Filson appealed - The Saskatchewan Court of Appeal dismissed the appeal - The court stated, inter alia, that "The Chambers judge correctly concluded that Mr. Filson's claim for conversion depends on him and the members of his class having an interest in the property of the CWB and one or more of the Respondents interfering with or taking that property. Because, pursuant to the relevant legislation, producers do not have an interest in the property of the CWB, it is plain and obvious this claim cannot succeed" - See paragraphs 46 to 48.

Torts - Topic 5023

Interference with economic relations - Elements of liability - Use of unlawful means - [See Torts - Topic 5248 ].

Torts - Topic 5248

Interference with economic relations - Interference with business relations - Pleadings - Filson commenced a proposed class action against the Attorney General of Canada, the Minister of Agriculture and Agri-food and the Canadian Wheat Board (CWB), claiming damages as a result of the passage of Bill C-18, An Act to reorganize the Canadian Wheat Board and to make consequential and related amendments to certain Acts - A chambers judge struck the Statement of Claim on the basis that it disclosed no reasonable cause of action - Filson appealed - The Saskatchewan Court of Appeal dismissed the appeal - With respect to Filson's claim for intentional interference with business relations, the court stated that "Mr. Filson acknowledges his Statement of Claims is deficient in that it does not plead an unlawful act against a third party, but he contends this deficiency could be corrected through amendment. In my opinion, the Chambers judge correctly concluded not only that the cause of action was not properly pled but, as a matter of law, that Mr. Filson could not prove any unlawful action by the Respondents which resulted in economic loss to the plaintiffs. The passage of Bill C-18 was not unlawful (see Friends of the CWB) and, thus, an essential element of the tort could not be established" - See paragraphs 53 to 55.

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - [See Crown - Topic 5145 ].

Trade Regulation - Topic 3704

Marketing of agricultural products - Grain - Canadian Wheat Board - Filson commenced a proposed class action, claiming damages as a result of the passage of Bill C-18, An Act to reorganize the Canadian Wheat Board and to make consequential and related amendments to certain Acts - A chambers judge struck the Statement of Claim on the basis that it disclosed no reasonable cause of action - Filson appealed - Filson contended that the chambers judge erred by failing to find the de facto existence of two Canadian Wheat Boards (CWBs), namely, a "Farmers CWB," which was controlled by producers and operated a single-desk marketing system from 1998 to 2011, and a "Government CWB" controlled by the Government and which operated a voluntary marketing system as of 2012 - He asserted that whether two CWBs existed was a question of fact that could not be determined by a review of the statutory provisions - The Saskatchewan Court of Appeal did not agree - The court stated that "Over the years, the CWB has undergone numerous changes to both its governance and operations. Since its inception, it has been a corporate entity and that corporate entity has been continued despite those changes: ... The corporation has never been wound up. In short, by operation of law there has been only one CWB and the Chambers judge did not err in arriving at that conclusion for the purpose of determining whether it was plain and obvious Mr. Filson's Statement of Claim discloses no reasonable cause of action" - See paragraphs 33 to 34.

Trade Regulation - Topic 3704

Marketing of agricultural products - Grain - Canadian Wheat Board - Filson commenced a proposed class action, claiming damages as a result of the passage of Bill C-18, An Act to reorganize the Canadian Wheat Board and to make consequential and related amendments to certain Acts - A chambers judge struck the Statement of Claim on the basis that it disclosed no reasonable cause of action - Filson appealed - Filson argued that the chambers judge erred in concluding that he and the other producers of the representative class had no proprietary interest in the assets of the Canadian Wheat Board (CWB) - The Saskatchewan Court of Appeal rejected the argument - Filson's claim with respect to property rights was rooted in his assertion that there were two distinct CWBs and that the "Farmer CWB" used producers' money to obtain its assets - That argument had a number of fundamental flaws - Filson and the members of the class were never shareholders or owners of the CWB - They were never given or entitled to ownership of the CWB's assets - See paragraphs 35 to 38.

Trusts - Topic 329

Creation of trust - Methods of creation - By implication - [See Trusts - Topic 354 ].

Trusts - Topic 328

Creation of trust - Methods of creation - By statute - [See Trusts - Topic 354 ].

Trusts - Topic 345

Creation of trust - Requirements of - Certainty of subject matter of trust - [See Trusts - Topic 354 ].

Trusts - Topic 354

Creation of trust - Intention - Certainty of intention - Filson commenced a proposed class action, claiming damages as a result of the passage of Bill C-18, An Act to reorganize the Canadian Wheat Board and to make consequential and related amendments to certain Acts - A chambers judge struck the Statement of Claim on the basis that it disclosed no reasonable cause of action - Filson appealed - The Saskatchewan Court of Appeal dismissed the appeal - With respect to Filson's claim for breach of implied trust, the court stated that "Mr. Filson asserts that he and the proposed members of the representative class are beneficiaries of an implied trust in which the 'Farmer CWB,' as trustee, holds its funds, assets, and good will in trust for their sole benefit, and that the enactment of Bill C-18 amounted to a breach of that trust. In my view, the Chambers judge correctly struck this claim as having no reasonable prospect of success: first, because the claim is based on the premise that there are two de facto CWBs which, as a matter of law, is not the case; second, because there has been no transfer or interference with CWB's assets; and third, because the statutory provisions do not support the creation of a trust. In particular, there is no certainty of intention to create a trust and no certainty of subject matter" - See paragraphs 51 to 52.

Cases Noticed:

Friends of the Canadian Wheat Board et al. v. Canada (Attorney General) et al., [2014] 1 F.C.R. 518; 433 N.R. 329; 2012 FCA 183, leave to appeal denied (2013), 446 N.R. 394 (S.C.C.), refd to. [para. 11].

Dennis v. Canada (Attorney General) (2014), 114 L.C.R. 1; 2013 FC 1197, affd. [2014] N.R. Uned. 140 (F.C.A.), leave to appeal denied [2014] S.C.C.A. No. 541, refd to. [para. 14].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 19].

Sagon v. Royal Bank of Canada et al. (1992), 105 Sask.R. 133; 32 W.A.C. 133 (C.A.), refd to. [para. 19].

R.L.T.V. Investments Inc. v. Saskatchewan Telecommunications et al., [2009] 9 W.W.R. 15; 331 Sask.R. 78; 460 W.A.C. 78; 2009 SKCA 83, refd to. [para. 22].

Hope v. Gourlay (2015), 457 Sask.R. 43; 632 W.A.C. 43; 2015 SKCA 27, refd to. [para. 22].

Bram Enterprises Ltd. et al. v. A.I. Enterprises Ltd. et al., [2014] 1 S.C.R. 177; 453 N.R. 273; 416 N.B.R.(2d) 1; 1079 A.P.R. 1; 2014 SCC 12, refd to. [para. 28].

Saulnier v. Royal Bank of Canada - see/voir Saulnier (Bankrupt), Re.

Saulnier (Bankrupt), Re, [2008] 3 S.C.R. 166; 381 N.R. 1; 271 N.S.R.(2d) 1; 867 A.P.R. 1; 2008 SCC 58, dist. [para. 36].

Manitoba Fisheries Ltd. v. Canada, [1979] 1 S.C.R. 101; 23 N.R. 159, dist. [para. 39].

Tener and Tener v. British Columbia, [1985] 1 S.C.R. 533; 59 N.R. 82, dist. [para. 39].

Granite Power Corp. v. Ontario et al. (2004), 189 O.A.C. 128; 72 O.R.(3d) 194 (C.A.), refd to. [para. 45].

Boma Manufacturing Ltd. et al. v. Canadian Imperial Bank of Commerce, [1996] 3 S.C.R. 727; 203 N.R. 321; 82 B.C.A.C. 161; 133 W.A.C. 161, refd to. [para. 47].

Professional Institute of the Public Service of Canada et al. v. Canada (Attorney General), [2012] 3 S.C.R. 660; 438 N.R. 1; 300 O.A.C. 202; 2012 SCC 71, refd to. [para. 49].

Gladstone v. Canada (Attorney General), [2005] 1 S.C.R. 325; 332 N.R. 182; 210 B.C.A.C. 1; 348 W.A.C. 1; 2005 SCC 21, refd to. [para. 50].

Elder Advocates of Alberta Society et al. v. Alberta et al., [2011] 2 S.C.R. 261; 416 N.R. 198; 499 A.R. 345; 514 W.A.C. 345; 2011 SCC 24, refd to. [para. 56].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 60].

Campbell et al. v. Canada (Attorney General) et al., [2013] 4 F.C.R. 234; 427 N.R. 371; 2012 FCA 45, consd. [para. 68].

Englund et al. v. Pfizer Canada Inc. et al. (2007), 299 Sask.R. 298; 408 W.A.C. 298; 2007 SKCA 62, consd. [para. 69].

McKinnon v. Martin No. 122 (Rural Municipality) et al. (2011), 382 Sask.R. 102; 2011 SKQB 313, refd to. [para. 69].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 71].

Statutes Noticed:

Class Actions Act, S.S. 2001, c. C-12.01, sect. 40 [para. 70].

Counsel:

E.F. Anthony Merchant, Q.C., for the appellant;

Mark Kindrachuk, Q.C., and Jennifer Souter, for the Attorney General of Canada;

Glenn Smith and Jonathan Laxer, for the Canadian Wheat Board.

This appeal was heard on February 10, 2015, before Richards, C.J.S., Herauf and Ryan-Froslie, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Ryan-Froslie, J.A., on July 8, 2015.