Harvey et al. v. Western Canada Lottery Corp., 2015 SKCA 75

• Judge: Ottenbreit, J.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 27, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKCA 75;(2015), 465 Sask.R. 1 (CA)

Harvey v. Western Can. Lottery Corp. (2015), 465 Sask.R. 1 (CA);

    649 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JL.029

Western Canada Lottery Corporation (applicant/prospective appellant/defendant) v. Guy Harvey, Shaun Pekrul, David Huntley and Marc Boily (respondents/prospective respondents/plaintiffs)

(CACV2698; 2015 SKCA 75)

Indexed As: Harvey et al. v. Western Canada Lottery Corp.

Saskatchewan Court of Appeal

Ottenbreit, J.A.

June 24, 2015.

Summary:

The representative plaintiffs' class action was originally premised on the proposition that Western Canada Lottery Corp. (WCLC), which offered and promoted scratch 'n win lottery games, continued to sell lottery tickets for certain games after the top prizes were awarded. The representative plaintiffs alleged that by doing so WCLC was breaching its obligations to provide some chance at winning a remaining top prize. Three weeks before the scheduled hearing of the certification application, the representative plaintiffs applied to amend their claim in the manner set out in their proposed third amended statement of claim. The plaintiffs proposed to amend their claim to plead that WCLC also removed games from the market after tickets had been purchased but before the top prizes were awarded.

The Saskatchewan Court of Queen's Bench, in a decision reported at  (2015), 461 Sask.R. 15, allowed the proposed amendments. WCLC applied for leave to appeal.

The Saskatchewan Court of Appeal, per Ottenbreit, J.A, dismissed the application.

Practice - Topic 209.9

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Appeals (incl. leave to appeal) - The representative plaintiffs' class action was originally premised on the proposition that Western Canada Lottery Corp. (WCLC), which offered and promoted scratch 'n win lottery games, continued to sell lottery tickets for certain games after the top prizes were awarded - The representative plaintiffs alleged that by doing so WCLC was breaching its obligations to provide some chance at winning a remaining top prize - Three weeks before the scheduled hearing of the certification application, the representative plaintiffs applied to amend their claim in the manner set out in their proposed third amended statement of claim - The plaintiffs proposed to amend their claim to plead that WCLC also removed games from the market after tickets had been purchased but before the top prizes were awarded - WCLC argued that the amendments were unrelated to the original complaint and involved different games, different groups of people and amounted to a whole new wrong - WCLC also argued that the proposed amendments were unjust or prejudicial by reason of delay and cost and intervening limitation periods, and that the proposed amendments could not survive a strike motion because they constituted an abuse of process, were not properly joined to an existing claim and did not disclose a reasonable cause of action - The chambers judge allowed the proposed amendments - WCLC applied for leave to appeal - Its proposed grounds of appeal essentially raised the same or similar arguments as it put before the chambers judge - The Saskatchewan Court of Appeal, per Ottenbreit, J.A, dismissed the application - Because the chambers judge made no final decisions on either the limitation, joinder or cause of action issues, but rather left those for the certification stage, WCLC would have great difficulty arguing on appeal that by allowing the amendments its position was prejudiced - Given the nature of the chambers judge's discretionary decision, none of the grounds of appeal proposed by WCLC had sufficient merit - Further, the grounds of the proposed notice of appeal did not raise issues of importance.

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters (incl. particulars, production, pleadings, etc.) - [See Practice - Topic 209.9 ].

Practice - Topic 210.6

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Limitation of actions - [See Practice - Topic 209.9 ].

Practice - Topic 376

Parties - Joinder of parties - Joinder of plaintiffs - General - [See Practice - Topic 209.9 ].

Practice - Topic 2120

Pleadings - Amendment of pleadings - Statement of claim - General - [See Practice - Topic 209.9 ].

Practice - Topic 2239.1

Pleadings - Striking out pleadings - Grounds - Abuse of process - Hopeless suit - [See Practice - Topic 209.9 ].

Practice - Topic 8873

Appeals - Leave to appeal - From discretionary order - [See Practice - Topic 209.9 ].

Cases Noticed:

Rothmans, Benson & Hedges Inc. v. Saskatchewan (2002), 227 Sask.R. 121; 287 W.A.C. 121; 2002 SKCA 119, refd to. [para. 6].

Lorch (P.W.) & Associates Ltd. v. Saskatchewan (2012), 399 Sask.R. 226; 552 W.A.C. 226; 2012 SKCA 93, refd to. [para. 7].

Stomp Pork Farm Ltd. v. Lombard General Insurance Co. of Canada et al., [2009] 4 W.W.R. 505; 314 Sask.R. 175; 435 W.A.C. 175; 2008 SKCA 146, refd to. [para. 7].

Kidd v. Flad et al., [2007] Sask.R. Uned. 104; 2007 SKCA 130, refd to. [para. 8].

Cameco Corp. v. Insurance Co. of the State of Pennsylvania et al., [2008] 6 W.W.R. 626; 310 Sask.R. 89; 423 W.A.C. 89; 2008 SKCA 54, refd to. [para. 8].

Statutes Noticed:

Class Actions Act, S.S. 2001, c. C-12.01, sect. 14, sect. 44 [para. 12].

Counsel:

Robert W. Leurer, Q.C., Jason W. Mohrbutter and Adryan Toth, for the applicant;

E.F. Anthony Merchant, Q.C., and Iqbal Brar, for the respondents.

This application was heard on May 27, 2015, before Ottenbreit, J.A., of the Saskatchewan Court of Appeal, who delivered the following decision on June 24, 2015.