K.M. v. Canada (Attorney General), 2004 SKQB 287

JudgeMcIntyre, J.
CourtCourt of Queen's Bench of Saskatchewan (Canada)
Case DateJune 24, 2004
JurisdictionSaskatchewan
Citations2004 SKQB 287;(2004), 251 Sask.R. 12 (QB)

K.M. v. Can. (A.G.) (2004), 251 Sask.R. 12 (QB)

MLB headnote and full text

Temp. Cite: [2004] Sask.R. TBEd. JL.028

K.M. (plaintiff) v. Attorney General of Canada (defendant)

(1998 Q.B.G. No. 2484; 2004 SKQB 287)

Indexed As: K.M. v. Canada (Attorney General)

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

McIntyre, J.

June 24, 2004.

Summary:

The plaintiff claimed damages as against the defendant for alleged sexual and physical abuse while a student and resident in the Lebret Indian Residential School owned and operated by the defendant. At the conclusion of the plaintiff's case, the defendant raised two matters. First, whether some of the evidence of a witness (D.K.) constituted similar fact evidence. Second, the defendant brought a non-suit application pursuant to rule 278A. The plaintiff also applied to amend his pleadings to include a plea of vicarious liability (if it was necessary to expressly plead vicarious liability).

The Saskatchewan Court of Queen's Bench dismissed the non-suit application. The court held that the final determination of whether D.K.'s evidence was admissible as similar fact evidence should await the conclusion of the trial. The court held that the plaintiff did not need to specifically plead vicarious liability.

Editor's note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Evidence - Topic 1257

Relevant facts, relevance and materiality - Similar acts - To prove course of conduct - The plaintiff claimed damages as against the defendant for alleged sexual and physical abuse while a student and resident at a residential school - At the conclusion of the plaintiff's case, the defendant raised the issue of whether some of the evidence of a witness (D.K.) constituted similar fact evidence - The plaintiff argued that there was similar fact evidence which ought to be admissible both as establishing a pattern of conduct and on the issue of credibility - The Saskatchewan Court of Queen's Bench held that there was similarity as to time and place and the nature of the alleged sexual assaults - However, the evidence was dissimilar as to, inter alia, the extent of the alleged sexual assaults and location of the alleged sexual assaults - This evidence lacked sufficient probative value to constitute similar fact evidence - There were not sufficient common features to establish a pattern of behaviour by the alleged perpetrator - The evidence of the pattern was simply propensity evidence - However, the court held that the similar fact evidence could be relevant to the issue of credibility - A final determination of this issue had to await the conclusion of the trial - See paragraphs 16 to 21.

Practice - Topic 1335

Pleadings - The issues - Issues to be raised must be pleaded - The plaintiff claimed damages as against the defendant for alleged sexual and physical abuse while a student and resident at a residential school - At the conclusion of the plaintiff's case, the defendant applied for non-suit - The defendant alleged that the plaintiff had not expressly pled vicarious liability - The plaintiff argued that it was not necessary to expressly plead vicarious liability - The Saskatchewan Court of Queen's Bench stated that the statement of claim provided, in substance, that the sexual and physical assaults suffered by the plaintiff were caused by servants, agents and employees of the Government of Canada who operated the school - The defendant anticipated vicarious liability to be an issue and referred to it in its statement of defence - In the circumstances, the plaintiff did not need to specifically plead vicarious liability - There was nothing in the Queen's Bench Rules to require it - See paragraphs 22 to 28.

Practice - Topic 2106

Pleadings - Amendment of pleadings - Power of court to amend - At the conclusion of the plaintiff's case, the defendant applied for non-suit - The defendant alleged that the plaintiff had not expressly pled vicarious liability - The plaintiff sought to amend his statement of claim to plead vicarious liability (if necessary) - The defendant argued that an amendment may not be granted if it would have the effect of defeating a motion for non-suit, relying on Knibbs v. Weyburn Square Developments Ltd. (Sask. Q.B.) - The Saskatchewan Court of Queen's Bench stated that, generally, an amendment would be permitted so as to determine the real question in issue, however late the proposed amendment, if it could be done without injustice to the other side - Rule 165 gave the court a wide discretion - The court rejected the defendant's interpretation of the Knibbs case - The defendant's argument would fly in the face of the broad discretion granted by rule 165 - See paragraphs 25 to 32.

Practice - Topic 2143

Pleadings - Amendment of pleadings - Circumstances when amendment denied - [See Practice - Topic 2106 ].

Cases Noticed:

C.M. v. Canada (Attorney General) et al., (2004), 248 Sask.R. 1, refd to. [para. 16].

M.A. and T.A. v. Canada (Attorney General) et al., [2002] 5 W.W.R. 686; 212 Sask.R. 241; 2001 SKQB 504, refd to. [para. 18].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 19].

Knibbs v. Weyburn Square Developments Ltd. (1982), 18 Sask.R. 206 (Q.B.), refd to. [para. 25].

Lapointe v. Summach, [2001] B.C.T.C. 805; 2001 BCSC 805, refd to. [para. 29].

Smith v. Garbutt et al., [1998] B.C.A.C. Uned. 155 (C.A.), refd to. [para. 32].

Kvello et al. v. Miazga et al. (2003), 242 Sask.R. 19; 234 D.L.R.(4th) 578; 2003 SKQB 451, refd to. [para. 34].

Blackwater et al. v. Plint et al., [2001] B.C.T.C. 997; 93 B.C.L.R.(3d) 228; 2001 BCSC 997, varied [2004] 3 W.W.R. 217; 192 B.C.A.C. 1; 315 W.A.C. 1; 2003 BCCA 671, refd to. [para. 46].

F.S.M. v. Clarke et al., [1999] 11 W.W.R. 301; 20 B.C.T.C. 161 (S.C.), refd to. [para. 46].

D.W. v. Canada (Attorney General) and Starr (1999), 187 Sask.R. 21; 1999 SKQB 187, refd to. [para. 48].

C.A. et al. v. Critchley et al. (1998), 113 B.C.A.C. 248; 184 W.A.C. 248; 60 B.C.L.R.(3d) 92; 166 D.L.R.(4th) 475 (C.A.), refd to. [para. 51].

Counsel:

E.F. Anthony Merchant, Q.C., and Jeffery W. Deagle, for the plaintiff;

Dawn M. Pritchard and Evangelos Peter Agioritis, for the defendant.

These applications were heard before McIntyre, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on June 24, 2004.

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8 practice notes
  • Ceapro Inc. v. Saskatchewan et al., 2008 SKQB 76
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • February 19, 2008
    ...451, refd to. [para. 69]. Igor v. Yuen (2005), 271 Sask.R. 248; 2005 SKQB 463, refd to. [para. 69]. K.M. v. Canada (Attorney General) (2004), 251 Sask.R. 12; 2004 SKQB 287, refd to. [para. Reid v. Kraus et al. (2000), 189 Sask.R. 122; 216 W.A.C. 122; 2000 SKCA 32, refd to. [para. 69]. Foss ......
  • CHERKAS v. RICHARDSON PIONEER LIMITED, 2020 SKQB 7
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • January 13, 2020
    ...in subsequent cases such as Igor v. Saskatoon Police Service, 2005 SKQB 463, 271 Sask. R. 248 and M.(K.) v. Canada (Attorney General), 2004 SKQB 287, 251 Sask. R. 12. Also instructive and of relevance on this issue is a decision from our Court of Appeal in Reid v. Kraus, 2000 SKCA 32, 189 S......
  • Branco v. American Home Assurance Co. et al., (2012) 406 Sask.R. 205 (QB)
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • September 25, 2012
    ...cases such as Igor v. Saskatoon (City) Police Service , 2005 SKQB 463, 271 Sask. R. 248, and K.M. v. Canada (Attorney General) , 2004 SKQB 287, 251 Sask. R. 12. Also instructive and of relevance on this issue is a decision from our Court of Appeal in Reid v. Kraus , 2000 SKCA 32, 189 Sask. ......
  • Woodmasters Enterprizes Inc. et al. v. Solcom Group of Companies Inc. et al., (2009) 339 Sask.R. 190 (QB)
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • July 14, 2009
    ...upon the failure of the defendants to repay the $50,000 - See paragraphs 37 to 50. Cases Noticed: K.M. v. Canada (Attorney General) (2004), 251 Sask.R. 12; 2004 SKQB 287, refd to. [para. Re/Max Crown Real Estate Ltd. v. Ries Estate (1996), 143 Sask.R. 120 (Q.B.), refd to. [para. 28]. Reid v......
  • Request a trial to view additional results
7 cases
  • Ceapro Inc. v. Saskatchewan et al., 2008 SKQB 76
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • February 19, 2008
    ...451, refd to. [para. 69]. Igor v. Yuen (2005), 271 Sask.R. 248; 2005 SKQB 463, refd to. [para. 69]. K.M. v. Canada (Attorney General) (2004), 251 Sask.R. 12; 2004 SKQB 287, refd to. [para. Reid v. Kraus et al. (2000), 189 Sask.R. 122; 216 W.A.C. 122; 2000 SKCA 32, refd to. [para. 69]. Foss ......
  • CHERKAS v. RICHARDSON PIONEER LIMITED, 2020 SKQB 7
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • January 13, 2020
    ...in subsequent cases such as Igor v. Saskatoon Police Service, 2005 SKQB 463, 271 Sask. R. 248 and M.(K.) v. Canada (Attorney General), 2004 SKQB 287, 251 Sask. R. 12. Also instructive and of relevance on this issue is a decision from our Court of Appeal in Reid v. Kraus, 2000 SKCA 32, 189 S......
  • Branco v. American Home Assurance Co. et al., (2012) 406 Sask.R. 205 (QB)
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • September 25, 2012
    ...cases such as Igor v. Saskatoon (City) Police Service , 2005 SKQB 463, 271 Sask. R. 248, and K.M. v. Canada (Attorney General) , 2004 SKQB 287, 251 Sask. R. 12. Also instructive and of relevance on this issue is a decision from our Court of Appeal in Reid v. Kraus , 2000 SKCA 32, 189 Sask. ......
  • Woodmasters Enterprizes Inc. et al. v. Solcom Group of Companies Inc. et al., (2009) 339 Sask.R. 190 (QB)
    • Canada
    • Saskatchewan Court of Queen's Bench of Saskatchewan (Canada)
    • July 14, 2009
    ...upon the failure of the defendants to repay the $50,000 - See paragraphs 37 to 50. Cases Noticed: K.M. v. Canada (Attorney General) (2004), 251 Sask.R. 12; 2004 SKQB 287, refd to. [para. Re/Max Crown Real Estate Ltd. v. Ries Estate (1996), 143 Sask.R. 120 (Q.B.), refd to. [para. 28]. Reid v......
  • Request a trial to view additional results

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