Saskatchewan Indian Gaming Authority Inc. v. Germain et al., (2011) 384 Sask.R. 197 (QB)

• Judge: Scherman, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: October 17, 2011
• Jurisdiction: Saskatchewan
• Citations: (2011), 384 Sask.R. 197 (QB);2011 SKQB 385

Indian Gaming Authority v. Germain (2011), 384 Sask.R. 197 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. NO.007

Saskatchewan Indian Gaming Authority Inc. (plaintiff) v. Alain Joseph Nelson Germain, Cash Is King ATM Ltd., King Cash ATM Ltd., King Cash, Shelley Bear (also known as "Shelly Bear"), Armand Pinel, Canadian First Nations ATM Services Inc., T.N.S. Smart Network Inc., NRT Technology Corp., Peace Hills Trust Company, and the Royal Bank of Canada (defendants)

(2009 Q.B.G. No. 620; 2011 SKQB 385)

Indexed As: Saskatchewan Indian Gaming Authority Inc. v. Germain et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Scherman, J.

October 17, 2011.

Summary:

Defendants Bear and Pinel each applied to strike out all or portions of the claim of the plaintiff, Saskatchewan Indian Gaming Authority Inc. (rule 173 applications) and/or for determination of points of law (rule 188 applications). They asserted, inter alia, that the allegations set out in the claim did not disclose good causes of action in law.

The Saskatchewan Court of Queen's Bench dismissed all rule 173 applications and all rule 188 applications.

Practice - Topic 1463

Pleadings - Statement of claim - General - Requirement of disclosing cause of action - [See Practice - Topic 2230 ].

Practice - Topic 2200

Pleadings - Striking out pleadings - General principles - [See Practice - Topic 2230 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Defendants applied to strike out all or portions of the plaintiff's claim for failure to disclose a cause of action - The Saskatchewan Court of Queen's Bench addressed two concepts that were significant to the decisions to be made here - "i) The fact that the claim advances a new or novel concept is not a basis to strike the claim. Rather the Court must, assuming the facts pleaded to be true, ask whether the new theory of liability has some reasonable prospect of succeeding. In this assessment the Court is to be generous erring on the side of permitting the claim to proceed. ii) The claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses. It must plead the facts on which it bases or hopes to base its claim even if it lacks any evidence to prove them at the time of pleading. ...The application is to be decided on the basis of what is pled - not what the evidence might be." - In the end result, the court dismissed the applications - See paragraph 15.

Practice - Topic 5260

Trials - General - Trial of preliminary issues - General principles (incl. when available or appropriate) - [See first Practice - Topic 5261 ].

Practice - Topic 5261

Trials - General - Trial of preliminary issues - Issues of law - Defendants applied for determination of points of law (rule 188 applications) - The Saskatchewan Court of Queen's Bench stated that a rule 188 application could not be considered "unless the parties had an agreed statement of facts upon which the Court is asked to make the determination, or the facts relied upon for the ruling sought are admitted by the opponent in the pleadings or the facts are found within documents referenced and admitted in the pleadings. The determination of a point of law before trial is most often used where an objection on point of law is pleaded, such as limitation periods, status to bring an action, jurisdiction and the like" - That was not the case here - See paragraph 8.

Practice - Topic 5261

Trials - General - Trial of preliminary issues - Issues of law - Defendants applied for determination of points of law (rule 188 applications) - Rule 188 applications were normally made under an agreed statement of facts, which was not present here - The defendants claimed that the combination of the plaintiff's claim and answers to undertakings provided by the plaintiff in the discovery process should be viewed as the equivalent - The Saskatchewan Court of Queen's Bench dismissed the application - The application was not supported by the agreed statement of facts rule 188 required - Responses to undertakings were not the equivalent of admissions in pleadings - "The Court cannot conclude at this time the responses are all of the evidence which can and will be presented on the issue" - Rule 188 applications were not appropriate where issues of fact and law were both complex and intermingled, which was the situation here - See paragraphs 8 to 12.

Cases Noticed:

Popowich v. Saskatchewan et al. (2001), 209 Sask.R. 88; 2001 SKQB 148, affd. (2001), 213 Sask.R. 282; 260 W.A.C. 282; 2001 SKCA 103, refd to. [para. 8].

Tetzlaff v. Saskatchewan Water Corp. et al. (1993), 111 Sask.R. 81 (Q.B.), refd to. [para. 8].

Cameco Corp. v. Insurance Co. of the State of Pennsylvania (2000), 194 Sask.R. 57; 2000 SKQB 250, refd to. [para. 9].

Shields (Resort Village) v. Toronto-Dominion Bank, [1989] 2 W.W.R. 163; 69 Sask.R. 131 (C.A.), refd to. [para. 11].

Arlo Investments Ltd. et al. v. Prince Albert (City) (2010), 354 Sask.R. 27; 2010 SKQB 90, refd to. [para. 11].

British Columbia v. Imperial Tobacco Canada Ltd. et al. (2011), 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 13].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 23].

London Drugs Ltd. v. Brassart and Vanwinkel, [1992] 3 S.C.R. 299; 143 N.R. 1; 18 B.C.A.C. 1; 31 W.A.C. 1, addendum 147 N.R. 336; 21 B.C.A.C. 159; 37 W.A.C. 159, refd to. [para. 23].

London Drugs Ltd. v. Kuehne & Nagel International Ltd. - see London Drugs Ltd. v. Brassart and Vanwinkel.

Statutes Noticed:

Rules of Court (Sask.), Queen's Bench Rules, rule 173(a), rule 173(c), rule 173 (e), rule 188 [para. 7].

Counsel:

Katherine Hensel, for SIGA;

Robert G. Kennedy, Q.C., and Gillian E. Gough, student-at-law, for Shelly Bear;

Ronald P. Piche, for Mr. Pinel;

Nolan G. Courteau, for Peace Hills Trust;

Alain J. Nelson Germain, on his own behalf;

Nolan J. Dooley, for T.N.S. Smart Network;

James P. Kroczynski, for Royal Bank of Canada.

These applications were heard by Scherman, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following fiat, dated October 17, 2011.