Lorch (P.W.) & Associates Ltd. v. Saskatchewan et al.

• Jurisdiction: Saskatchewan
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Judge: McMurtry, J.
• Citation: (2012), 396 Sask.R. 256 (QB),2012 SKQB 170
• Date: 24 April 2012

Lorch & Assoc. Ltd. v. Sask. (2012), 396 Sask.R. 256 (QB)

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. MY.020

P.W. Lorch & Associates Ltd. (plaintiff) v. The Government of Saskatchewan, Thomas Fox, Dave Hoffman and Hoffman & Associates Ltd. (defendants)

(2011 Q.B.G. No. 1234; 2012 SKQB 170)

Indexed As: Lorch (P.W.) & Associates Ltd. v. Saskatchewan et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

McMurtry, J.

April 24, 2012.

Summary:

The government expropriated lands from the plaintiff under the Expropriation Procedure Act, offering compensation based on reports from two appraisers. The plaintiff sued the government and the appraisers (the defendants), seeking damages. The defendants applied to strike the claim as disclosing no reasonable cause of action and as an abuse of the court's process.

The Saskatchewan Court of Queen's Bench dismissed the application.

Expropriation - Topic 2128

Practice and procedure - Pleadings - Striking out pleadings - [See all Practice - Topic 2230 and Practice - Topic 2239 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - The government expropriated lands from the plaintiff under the Expropriation Procedure Act, offering compensation based on reports from two appraisers - The plaintiff sued the government and the appraisers (the defendants), alleging, inter alia, that they conspired to exclude certain land sales from the appraisals for the purpose of suppressing the purchase price and knowing that the exclusions would likely cause loss or harm to the plaintiff - The defendants applied to strike the claim as, inter alia, disclosing no reasonable cause of action - The Saskatchewan Court of Queen's Bench dismissed the application - The plaintiff relied on an alleged agreement to exclude information from appraisals, the consequences that flowed from the exclusion and the costs incurred by it as a result - The plaintiff claimed that the alleged agreement was an unlawful act - While the obligations of the government were different from the appraisers' obligations, the Act imposed duties on the government, but not on the appraisers - It was not plain and obvious that the claim of conspiracy to commit the unlawful act of circumventing the duty to pay due compensation would fail - The court also rejected the defendants' assertion that the conspiracy claim had merged with the plaintiff's other claims of bad faith, misfeasance in public office and negligence - For merger to apply, the conspiracy claim had to add nothing to the remaining claims - That was not the case here - If the conspiracy claim was struck, the plaintiff would have no recourse against the appraisers for the allegations underlying the conspiracy claim - See paragraphs 14 to 25.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - The government expropriated lands from the plaintiff under the Expropriation Procedure Act, offering compensation based on reports from two appraisers - The plaintiff sued the government and the appraisers (the defendants), alleging that they conspired to exclude certain land sales from the appraisals for the purpose of suppressing the purchase price and knowing that the exclusions would likely cause loss or harm to the plaintiff - The plaintiff also claimed misfeasance in public office against the government and bad faith - The plaintiff submitted that, if a conspiracy was made out, it was presumed that the acts were done in bad faith and were deliberate misconduct by a public official - The defendants applied to strike the claim as, inter alia, disclosing no reasonable cause of action - The Saskatchewan Court of Queen's Bench dismissed the application - The court rejected the government's assertion that the facts alleged supported only a conclusion that the parties were engaged in ordinary, transparent negotiations arising out of an expropriation - Having found that the plaintiff had alleged the material facts necessary for a claim of deliberate, unlawful exercise of power by the government, the court held that it was not plain and obvious that the claims of bad faith and misfeasance in public office had no reasonable chance of success - See paragraphs 26 to 29.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - The government expropriated lands from the plaintiff under the Expropriation Procedure Act, offering compensation based on reports from two appraisers - The plaintiff sued the government and the appraisers (the defendants), alleging that they conspired to exclude certain land sales from the appraisals for the purpose of suppressing the purchase price and knowing that the exclusions would likely cause loss or harm to the plaintiff - The plaintiff also claimed in negligence against the appraisers, asserting a breach of the duty of care to the plaintiff to provide competent and appropriate appraisals knowing of their intended use - The defendants applied to strike the claim as, inter alia, disclosing no reasonable cause of action - The Saskatchewan Court of Queen's Bench dismissed the application - While the plaintiff did not rely on a recognized duty of care in its negligence claim, it was not plain and obvious that the plaintiff's attempt to establish a new duty of care would fail - The plaintiff had alleged facts material to reliance on the appraisers, breach by the appraisers of the standard of care expected of an appraiser and damages suffered by the plaintiff - It was not plain and obvious that the negligence claim would fail - See paragraphs 33 to 38.

Practice - Topic 2230.6

Pleadings - Striking out pleadings - Grounds - Merger - [See first Practice - Topic 2230 ].

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - The government expropriated lands from the plaintiff under the Expropriation Procedure Act, offering compensation based on reports from two appraisers - The plaintiff sued the government and the appraisers (the defendants), alleging that they conspired to exclude certain land sales from the appraisals for the purpose of suppressing the purchase price and knowing that the exclusions would likely cause loss or harm to the plaintiff - The plaintiff also claimed in negligence against the appraisers, asserting a breach of the duty of care to the plaintiff to provide competent and appropriate appraisals knowing of their intended use - Finally, the plaintiff claimed misfeasance in public office against the government and bad faith - The defendants applied to strike the claim as, inter alia, an abuse of process because the same issues, facts and claims for relief were before the court in another action - The Saskatchewan Court of Queen's Bench dismissed the application - There was a factual overlap between the actions, but the parties were not the same and the causes of action were different - Further, the relief available in the other action was narrowly focussed on s. 49 of the Act and what might be considered "due compensation" for expropriated land - Here, the plaintiff sought relief relating to conspiracy and negligence which allowed for a broader array of damages, including punitive damages - See paragraphs 39 to 43.

Practice - Topic 2248

Pleadings - Striking out pleadings - Bars - Application premature - The government expropriated lands from the plaintiff under the Expropriation Procedure Act, offering compensation based on reports from two appraisers - The plaintiff sued the government and the appraisers (the defendants), alleging that they conspired to exclude certain land sales from the appraisals for the purpose of suppressing the purchase price and knowing that the exclusions would likely cause loss or harm to the plaintiff - The plaintiff also claimed in negligence against the appraisers, asserting a breach of the duty of care to the plaintiff to provide competent and appropriate appraisals knowing of their intended use - Finally, the plaintiff claimed misfeasance in public office against the government and bad faith - The defendants applied to strike the claim as, inter alia, disclosing no reasonable cause of action, relying, inter alia, on the limitation of action provisions at ss. 5 and 19 of the Limitations Act - The Saskatchewan Court of Queen's Bench held that the defendants' argument under the Limitations Act was not relevant to the application under rule 173 to strike the claim - The argument had to be raised by way of a statement of defence - See paragraphs 30 to 32.

Torts - Topic 5702

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

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - [See second Practice - Topic 2230 ].

Cases Noticed:

Collins v. McMahon et al., [2002] Sask.R. Uned. 96; 2002 SKQB 201, refd to. [para. 10].

Country Plaza Motors Ltd. et al. v. Indian Head (Town) et al. (2005), 272 Sask.R. 198; 2005 SKQB 442, refd to. [para. 11].

Canada Cement LaFarge Ltd. et al. v. British Columbia Lightweight Aggregate Ltd. et al., [1983] 1 S.C.R. 452; 47 N.R. 191; [1983] 6 W.W.R. 385, refd to. [para. 14].

Activators Methods Inc. v. Chiropractors Association of Saskatchewan et al. (1992), 107 Sask.R. 90 (Q.B.), refd to. [para. 15].

Matkowski v. Saskatchewan et al. (2007), 292 Sask.R. 20; 2007 SKQB 46, refd to. [para. 16].

Bank of Montreal v. Tortora et al. (2010), 287 B.C.A.C. 14; 485 W.A.C. 14; 3 B.C.L.R.(4th) 39; 2010 BCCA 139, refd to. [para. 23].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 27].

Swift Current (City) v. Saskatchewan Power Corp. et al. (2007), 293 Sask.R. 6; 397 W.A.C. 6; 2007 SKCA 27, refd to. [para. 28].

Bloomfield v. Rosthern Union Hospital Ambulance Board et al. (1990), 82 Sask.R. 310 (C.A.), refd to. [para. 31].

Coneybeer v. Milligan, [1993] 1 W.W.R. 410; 105 Sask.R. 33; 32 W.A.C. 33 (C.A.), refd to. [para. 32].

Dagenais v. Dagenais et al. (2007), 294 Sask.R. 80; 2007 SKQB 50, agreed with [para. 32].

Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114; 375 N.R. 81; 238 O.A.C. 130; 2008 SCC 27, refd to. [para. 34].

Design Services Ltd. et al. v. Canada, [2008] 1 S.C.R. 737; 374 N.R. 77; 2008 SCC 22, refd to. [para. 36].

Collins et al. v. BCE Inc. et al. (2010), 352 Sask.R. 205; 2010 SKQB 74, refd to. [para. 39].

Authors and Works Noticed:

Bullen, E., Leake, S.M., and Jacob, Jack I.H., Precedents of Pleadings (12th Ed. 1975), generally [para. 16].

Counsel:

James S. Ehmann, Q.C., for the plaintiff;

Michael J. Morris, for the defendant, the Government of Saskatchewan;

Peter T. Bergbusch, for the defendants, Thomas Fox, Dave Hoffman and Hoffman & Associates Ltd.

This application was heard by McMurtry, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following judgment on April 24, 2012.