Kocsis et al. v. Muskeg Lake Cree Nation No. 102 et al., (2014) 438 Sask.R. 5 (CA)

JudgeRichards, C.J.S., Ottenbreit and Herauf, JJ.A.
CourtCourt of Appeal (Saskatchewan)
Case DateMarch 26, 2014
JurisdictionSaskatchewan
Citations(2014), 438 Sask.R. 5 (CA);2014 SKCA 39

Kocsis v. Muskeg Lake Cree Nation (2014), 438 Sask.R. 5 (CA);

    608 W.A.C. 5

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. AP.046

Ron Kocsis and Kocsis Transport Ltd. (appellants/plaintiffs) v. Muskeg Lake Cree Nation #102, Clifford Tawpisin Jr., Davis LLP, Priscilla Kennedy, John Doe and Jane Doe (respondents/defendants)

(CACV2435; 2014 SKCA 39)

Indexed As: Kocsis et al. v. Muskeg Lake Cree Nation No. 102 et al.

Saskatchewan Court of Appeal

Richards, C.J.S., Ottenbreit and Herauf, JJ.A.

April 11, 2014.

Summary:

The defendants leased two lots to the plaintiffs. The plaintiffs sued the defendants after the defendants refused to allow the plaintiffs to sublease a building on one of the lots. The defendants counterclaimed, alleging that a property manager was assaulted by the plaintiff when she entered the building and attempted to take possession of the premises. The assault allegation was later withdrawn. The plaintiffs then sued the defendants for conspiracy, abuse of process of the court, trespass, intentional infliction of mental suffering, and stress and aggravation associated with defending a false claim (the current action). The defendants applied to strike the statement of claim pursuant to Queen's Bench Rules 173, 188 and 189.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2013), 421 Sask.R. 157, found that rule 188 applied and struck the statement of claim in its entirety because it had not been brought within the applicable two year limitation period. The court also would have struck the claim for failure to disclose a cause of action (rule 173(a)), and because it was frivolous, vexatious and/or an abuse of process (rules 173(c) and (e)). The plaintiffs appealed.

The Saskatchewan Court of Appeal dismissed the appeal.

Practice - Topic 1960

Pleadings - Particulars - Particulars in specific proceedings - Conspiracy action - [See Practice - Topic 2230 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - The defendants leased property to the plaintiffs - The plaintiffs sued the defendants after the defendants refused to allow the plaintiffs to sublease a building on the property - The defendants counterclaimed, alleging that a property manager had been assaulted by the plaintiff when she entered the building and attempted to take possession - The assault allegation was later withdrawn - The plaintiffs then sued the defendants for, inter alia, trespass and conspiracy - They submitted that the defendants' lawyers had acted for the sole benefit of the defendants with the intention of advancing the defendants' interests - A chambers judge allowed the defendants' application to strike the statement of claim for failure to disclose a cause of action - The Saskatchewan Court of Appeal dismissed the plaintiffs' appeal - The plaintiffs seemed to have pled the branch of conspiracy that concerned an agreement "to effect an unlawful purpose", namely, to cause injury to a plaintiff - However, it was well established that defendants in this sort of context might legitimately advance their own interests even if that was accomplished by damaging the plaintiff's interests - In this case, the plaintiffs pled that the defendants' purpose in acting in concert was to gain an advantage for themselves in related litigation - The chambers judge correctly found that this allegation necessarily meant that the plaintiffs had not successfully pled a cause of action in conspiracy - The failure to allege an agreement of any sort was fatal to the conspiracy claim - See paragraphs 21 to 27.

Practice - Topic 2239.2

Pleadings - Striking out pleadings - Grounds - Action prescribed or barred by limitation period - The defendants leased property to the plaintiffs - The plaintiffs sued the defendants after the defendants refused to allow the plaintiffs to sublease a building on the property - The defendants counterclaimed, alleging that a property manager was assaulted by the plaintiff when she entered the building and attempted to take possession - The assault allegation was later withdrawn - The plaintiffs then sued the defendants for conspiracy, abuse of process of the court, trespass, intentional infliction of mental suffering, and stress and aggravation associated with defending a false claim (the current action) - The defendants submitted that the action was statute barred and applied to strike the statement of claim - The chambers judge struck the statement of claim in its entirety because it had not been brought within the applicable limitation period - The Saskatchewan Court of Appeal dismissed the plaintiffs' appeal - The claim in trespass was clearly statute barred - The plaintiffs knew all of the relevant circumstances on November 8, 2009, when the building was allegedly entered without legal authority - The statement of claim was not issued until more than two years after that date - The claims for intentional infliction of mental suffering and abuse of process were barred on the same basis - Both flowed from the counterclaim which was issued in November 2009 - At that time, the plaintiffs knew the allegation contained in the counterclaim was false, and given the relationship between them and the defendants, it must have been readily apparent why the allegation was being made - See paragraphs 13 and 14.

Torts - Topic 5098

Conspiracy - Pleadings - [See Practice - Topic 2230 ].

Authors and Works Noticed:

Klar, Lewis, Tort Law (4th Ed. 2008), p. 703 [para. 21].

Osborne, Philip H., The Law of Torts (4th Ed. 2011), p. 326 [para. 21].

Counsel:

Nicholas Stooshinoff, for the appellants;

Robert Kennedy, Q.C., for the respondents, Muskeg Cree Nation #102 and Clifford Tawpisin Jr.;

Karen Prisciak, Q.C., for the respondents, Davis LLP and Priscilla Kennedy.

This appeal was heard on March 26, 2014, before Richards, C.J.S., Ottenbreit and Herauf, JJ.A., of the Saskatchewan Court of Appeal. Richards, C.J.S., delivered the following judgment for the court on April 11, 2014.

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2 practice notes
  • Canadian Pacific Railway Company v Kelly Panteluk Construction Ltd.,
    • Canada
    • Court of Appeal (Saskatchewan)
    • October 28, 2020
    ...v St. Pierre, 2011 SKCA 34, [2011] 5 WWR 594; Mann v Hawkins, 2011 SKCA 146, 385 Sask R 59; Kocsi v Muskeg Lake Cree Nation No. 102, 2014 SKCA 39 at para 23, 438 Sask R 5; Markwart v Prince Albert (City), 2011 SKCA 104 at para 2, 385 Sask R 39; Bear v Merck Frosst Canada & Co., 2011 SKC......
  • LUHNING v. HNATYSHYN,
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • January 19, 2021
    ...Realty Inc. v BACZ Engineering (2004) Ltd., 2020 SKQB 161; Campbell v Cooper, 2017 SKCA 55; and Kocsis v Muskeg Lake Cree Nation #102, 2014 SKCA 39, 438 Sask R [18]                     &......
2 cases
  • Canadian Pacific Railway Company v Kelly Panteluk Construction Ltd., 2020 SKCA 123
    • Canada
    • Court of Appeal (Saskatchewan)
    • October 28, 2020
    ...v St. Pierre, 2011 SKCA 34, [2011] 5 WWR 594; Mann v Hawkins, 2011 SKCA 146, 385 Sask R 59; Kocsi v Muskeg Lake Cree Nation No. 102, 2014 SKCA 39 at para 23, 438 Sask R 5; Markwart v Prince Albert (City), 2011 SKCA 104 at para 2, 385 Sask R 39; Bear v Merck Frosst Canada & Co., 2011 SKC......
  • LUHNING v. HNATYSHYN, 2021 SKQB 17
    • Canada
    • Court of Queen's Bench of Saskatchewan (Canada)
    • January 19, 2021
    ...Realty Inc. v BACZ Engineering (2004) Ltd., 2020 SKQB 161; Campbell v Cooper, 2017 SKCA 55; and Kocsis v Muskeg Lake Cree Nation #102, 2014 SKCA 39, 438 Sask R [18]                     &......

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