Kreiner v. Auditor General (Man.), 2007 MBCA 154

• Judge: Monnin, Freedman and MacInnes, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: December 05, 2007
• Jurisdiction: Manitoba
• Citations: 2007 MBCA 154;(2007), 220 Man.R.(2d) 302 (CA)

Kreiner v. Auditor General (2007), 220 Man.R.(2d) 302 (CA);

      407 W.A.C. 302

MLB headnote and full text

Temp. Cite: [2007] Man.R.(2d) TBEd. DE.012

Sherman Kreiner (applicant/respondent) v. The Auditor General, The Deputy Auditor General and The Office of the Auditor General (respondents/appellants)

(AI 07-30-06696; 2007 MBCA 154)

Indexed As: Kreiner v. Auditor General (Man.)

Manitoba Court of Appeal

Monnin, Freedman and MacInnes, JJ.A.

December 5, 2007.

Summary:

Kreiner was the president and chief operating officer of a labour sponsored investment fund (Crocus Fund) that voluntarily ceased trading in 2004 after 12 years. The Province appointed an Auditor to investigate the Fund and report to the legislative assembly. The Auditor tendered a Report that was critical of Kreiner. Kreiner applied for certiorari to quash the Report or, alternatively, to remove any critical references to him from the Report. Kreiner also sought a declaration of jurisdictional error and a denial of procedural fairness and mandamus to compel disclosure. The Auditor General moved under rule 25.11 to strike the application, primarily on the ground that it failed to disclose a reasonable cause of action.

The Manitoba Court of Queen's Bench, in a judgment reported (2007), 213 Man.R.(2d) 252, dismissed the motion, as it was not plain and obvious or beyond doubt that Kreiner's application could not succeed. The Auditor General appealed.

The Manitoba Court of Appeal dismissed the appeal.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Kreiner was the president and chief operating officer of a labour sponsored investment fund (Crocus Fund) that voluntarily ceased trading in 2004 after 12 years - The Province appointed an Auditor to investigate the Fund and report to the legislative assembly - The Auditor tendered a Report that was critical of Kreiner - Kreiner applied for certiorari to quash the Report or, alternatively, to remove any critical references to him from the Report - Kreiner also sought a declaration of jurisdictional error and a denial of procedural fairness and mandamus to compel disclosure - The Auditor General moved under rule 25.11 to strike the application on the ground that it failed to disclose a reasonable cause of action and/or was frivolous - The Auditor alleged immunity under s. 29 of the Auditor General Act, the existence of an alternative remedy, parliamentary privilege, the unavailability of certiorari to review a legislative function and that the Report was not determinative of any issue - The trial judge dismissed the motion, as it was not plain and obvious or beyond doubt that Kreiner's application could not succeed - The Manitoba Court of Appeal dismissed the Auditor General's appeal.

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - [See Practice - Topic 2230 ].

Counsel:

W.G. Haight, for the appellants;

K.M. Dolinsky and M.A. Bodner, for the respondent.

This appeal was heard on December 5, 2007, before Monnin, Freedman and MacInnes, JJ.A., of the Manitoba Court of Appeal.

On December 5, 2007, MacInnes, J.A., delivered the following judgment orally for the Court of Appeal.