Lucas v. Faber et al., (2008) 309 Sask.R. 177 (QB)

• Judge: Rothery, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 17, 2008
• Jurisdiction: Saskatchewan
• Citations: (2008), 309 Sask.R. 177 (QB);2008 SKQB 25

Lucas v. Faber (2008), 309 Sask.R. 177 (QB)

MLB headnote and full text

Temp. Cite: [2008] Sask.R. TBEd. JA.053

John David Lucas, Johanna Erna Lucas (plaintiffs) v. Joseph Faber, Kim Cridland, Brian George Dueck, Saskatoon Board of Police Commissioners, Unknown Police Employee #1, Unknown Police Employee #2, Province of Saskatchewan, Murray Brown, Daryl Rayner, Donald Arthur McKillop, James Plemel, Charita Ohashi, Unknown Crown Prosecutor #1, Unknown Crown Prosecutor #2, Rod Donlevy, Paul Hrabinsky (defendants)

(2007 No. 616; 2008 SKQB 25)

Indexed As: Lucas v. Faber et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Rothery, J.

January 17, 2008.

Summary:

Charges of contempt of court were stayed against the plaintiffs. The plaintiffs commenced an action against the defendants for, in essence, conspiracy to maliciously prosecute them. All but one of the defendants applied to strike the claim on the basis that it disclosed no cause of action and was frivolous, vexatious and an abuse of court process.

The Saskatchewan Court of Queen's Bench allowed the application to strike regarding portions of the plaintiffs' claim and granted the plaintiffs leave to amend the pleadings alleging a conspiracy to commit malicious prosecution and alleging one of the defendant police officer's negligent investigation.

Courts - Topic 313

Judges - Independence of judiciary - Judicial immunity - Charges of contempt of court were stayed against the plaintiffs - The plaintiffs commenced an action against the defendants for, in essence, conspiracy to maliciously prosecute them - All but one of the defendants applied to strike the claim on the basis that it disclosed no cause of action and was frivolous, vexatious and an abuse of court process - At issue was the claim against Hrabinsky, J., who was the presiding judge in a 1993 criminal case in which the plaintiffs were convicted of defamation - The Saskatchewan Court of Queen's Bench struck the claim on the basis of judicial immunity - The allegations referred to acts that Hrabinsky, J., might or might not have committed while he was acting in his judicial capacity or to the manner in which he conducted himself with the Chief Justice of the court and with the Canadian Judicial Council - There was no basis for any cause of action - See paragraphs 39 to 43.

Crown - Topic 1785

Torts by and against Crown - Practice - Pleadings - Charges of contempt of court were stayed against the plaintiffs - The plaintiffs commenced an action against the defendants for, in essence, conspiracy to maliciously prosecute them - All but one of the defendants applied to strike the claim on the basis that it disclosed no cause of action and was frivolous, vexatious and an abuse of court process - At issue was the claim against the province of Saskatchewan - The Saskatchewan Court of Queen's Bench declined to strike the claim - The plaintiffs alleged that Saskatchewan was vicariously liable for the acts of its co-defendant prosecutors - Although the Proceedings Against the Crown Act provided immunity to Saskatchewan for the acts of its prosecutors in torts such as malicious prosecution, the tort of conspiracy might not provide the same immunity - It was appropriate to allow the claim to proceed and permit Saskatchewan to defend on the basis of Crown immunity - See paragraphs 29 and 30.

Crown - Topic 2803

Crown immunity - General - Immunity under provincial legislation - [See Crown - Topic 1785 ].

Crown - Topic 2845

Crown immunity - Agents - Prosecutors - [See Crown - Topic 1785 ].

Crown - Topic 5143

Officials and employees - Liability of officials in tort - Limitation of actions - [See Police - Topic 5285 ].

Limitation of Actions - Topic 3213

Actions in tort - Trespass to the person - Malicious prosecution - [See Police - Topic 5285 ].

Police - Topic 5003

Actions against police - General - Actions against police board, municipality or solicitor general for actions by police officer - Charges of contempt of court were stayed against the plaintiffs - The plaintiffs commenced an action against the defendants for, in essence, conspiracy to maliciously prosecute them - All but one of the defendants applied to strike the claim on the basis that it disclosed no cause of action and was frivolous, vexatious and an abuse of court process - At issue was the claim against the Saskatoon Board of Police Commissioners as the body administering police services and the employer of three of the defendants - The Saskatchewan Court of Queen's Bench struck the claim for disclosing no cause of action - No action lay against the Board for the liability of its police officers - See paragraphs 3 to 5.

Police - Topic 5031

Actions against police - Negligence - Conduct of investigation (incl. negligent investigation) - Charges of contempt of court were stayed against the plaintiffs - The plaintiffs commenced an action against the defendants for, in essence, conspiracy to maliciously prosecute them - All but one of the defendants applied to strike the claim on the basis that it disclosed no cause of action and was frivolous, vexatious and an abuse of court process - At issue was the claim against the police officer, Faber - The Saskatchewan Court of Queen's Bench granted leave to amend the pleadings - The pleadings appeared to allege the tort of negligent investigation - This might constitute a reasonable cause of action - However, the pleadings were deficient in that they neither alleged that Faber owed the plaintiffs a duty of care nor stated the material facts that gave rise to a breach of the standard of reasonableness imposed on a police officer - See paragraphs 6 to 10.

Police - Topic 5221

Actions against police - For malicious prosecution - General - Charges of contempt of court were stayed against the plaintiffs - The plaintiffs commenced an action against the defendants for, in essence, conspiracy to maliciously prosecute them - All but one of the defendants applied to strike the claim on the basis that it disclosed no cause of action and was frivolous, vexatious and an abuse of court process - The Saskatchewan Court of Queen's Bench granted the plaintiffs leave to amend the pleadings alleging conspiracy to commit malicious prosecution - The plaintiffs appeared to allege that a conspiracy continued against them as a result of their convictions for defamations committed in 1993, which had been upheld by the Supreme Court of Canada - The underlying tort to the conspiracy allegation appeared to be malicious prosecution - This might form the basis for a cause of action, but it was deficient in the form pleaded - Particulars were absent and, in some instances, the plaintiffs had merely alleged a conspiracy to maliciously prosecute, which was deficient - See paragraphs 12 to 21.

Police - Topic 5285

Actions against police - Defences - Limitation of actions - Charges of contempt of court were stayed against the plaintiffs - The plaintiffs commenced an action against the defendants for, in essence, conspiracy to maliciously prosecute them - All but one of the defendants applied to strike the claim on the basis that it disclosed no cause of action and was frivolous, vexatious and an abuse of court process - The defendant police officers and Crown prosecutors raised the limitation period under the Public Officers' Protection Act (POPA) as a justification to strike the pleadings - The Saskatchewan Court of Queen's Bench held that the POPA limitation period could not be used to strike the claim - Where it was alleged, as here, that the acts of the defendants were not done in the execution of a public duty or authority, the POPA limitation period could be pleaded as a defence to the action, but could not be used to strike a claim - See paragraphs 31 to 36.

Practice - Topic 2103

Pleadings - Amendment of pleadings - To remedy deficiency - [See Police - Topic 5031 and Police - Topic 5221 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Courts - Topic 313 , Crown - Topic 1785 and Police - Topic 5003 ].

Practice - Topic 2239.2

Pleadings - Striking out pleadings - Grounds - Action prescribed or barred by limitation period - [See Police - Topic 5285 ].

Practice - Topic 6933

Costs - General principles - Failure to satisfy costs judgment - Effect of - In 1993, Mr. and Mrs. Lucas were convicted of defamatory libel - Mr. Lucas sued numerous police officers, prosecutors and others, alleging conspiracy to maliciously prosecute him - That action was dismissed - Mrs. Lucas commenced the same action against many of the same defendants - That action was struck - Kyle, J., ordered Mrs. Lucas to pay the costs of 17 defendants in the application to strike and ordered that the costs had to be paid before any other actions were commenced in that court by Mrs. Lucas - Subsequently, after charges of contempt of court were stayed against Mr. and Mrs. Lucas, they commenced an action against the defendants for, in essence, conspiracy to maliciously prosecute them - The costs ordered by Kyle, J., were outstanding against two of the present defendants, Donlevy and McKillop - All of the defendants but one applied to strike the claim - The Saskatchewan Court of Queen's Bench stayed Mrs. Lucas's action against Donlevy and McKillop - Rather than dismiss the action, it was appropriate to stay the action against Donlevy and McKillop until the costs ordered by Kyle, J., were paid - See paragraphs 51 to 53.

Cases Noticed:

Klein et al. v. Board of Police Commissioners of Regina et al. (1995), 130 Sask.R. 203 (Q.B.), refd to. [para. 4].

Burton v. Regina (City) Policemen's Association, Local No. 155, [1945] 2 W.W.R. 273 (Sask. C.A.), refd to. [para. 4].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al. (2007), 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 7].

Milgaard v. Kujawa et al. (1994), 123 Sask.R. 164; 74 W.A.C. 164 (C.A.), refd to. [para. 9].

Milgaard v. Saskatchewan - see Milgaard v. Kujawa et al.

R. v. Lucas (J.D.) et al., [1998] 1 S.C.R. 439; 224 N.R. 161; 163 Sask.R. 161; 165 W.A.C. 161, 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, refd to. [para. 17].

Activators Methods Inc. v. Chiropractors Association of Saskatchewan et al. (1992), 107 Sask.R. 90 (Q.B.), refd to. [para. 18].

Tamarak Energy Inc. v. Ipsco Inc. et al. (1999), 185 Sask.R. 161 (Q.B.), refd to. [para. 19].

Nelles v. Ontario et al. (1989), 98 N.R. 321; 35 O.A.C. 161; 60 D.L.R.(4th) 609 (S.C.C.), refd to. [para. 20].

Benthan v. Rothbart, [1988] O.J. No. 392 (S.C.), refd to. [para. 23].

S.J.K. v. Chapple et al. (1999), 179 Sask.R. 124 (Q.B.), refd to. [para. 23].

Popowich v. Saskatchewan et al. (2001), 209 Sask.R. 88; 2001 SKQB 148, refd to. [para. 30].

Johnston v. Fraser et al. (2006), 283 Sask.R. 69; 2006 SKQB 349, refd to. [para. 31].

Clysdale et al. v. Canada (2006), 288 Sask.R. 123 (Q.B.), refd to. [para. 31].

Whatcott v. Prince Albert Board of Police Commissioners (2005), 263 Sask.R. 36; 2005 SKQB 160, refd to. [para. 32].

Pask v. McDonald et al., [1978] 3 W.W.R. 298 (Sask. C.A.), refd to. [para. 34].

Haug v. Saskatchewan Corrections and Public Safety et al. (2005), 266 Sask.R. 1 (Q.B.), refd to. [para. 35].

Dagenais v. Dagenais et al. (2007), 294 Sask.R. 80; 2007 SKQB 50, refd to. [para. 35].

Morier v. Rivard, [1985] 2 S.C.R. 716; 64 N.R. 46, refd to. [para. 41].

Meyers v. Freeholders Oil Co. (1956), 19 W.W.R.(N.S.) 546 (Sask. C.A.), refd to. [para. 46].

Piché v. Big "C" First Nation et al. (1994), 121 Sask.R. 20 (Q.B.), refd to. [para. 48].

Downey v. Royal Canadian Mounted Police (2002), 215 Sask.R. 228; 2002 SKQB 20, refd to. [para. 48].

Lucas v. Dueck et al. (2002), 214 Sask.R. 213; 2002 SKQB 1, refd to. [para. 51].

Counsel:

John Lucas, Johanna Lucas, for themselves;

R.J. Gibbings, Q.C., for Joseph Faber, Kim Cridland and Saskatoon Board of Police Commissioners;

D.J. Brown, for Province of Saskatchewan, Murray Brown, Daryl Rayner, Donald McKillop, James Plemel, & Charita Ohashi;

R.G. Kennedy, Q.C., for Rod Donlevy;

R.W. Elson, Q.C., for Paul Hrabinsky.

This application was heard by Rothery, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following fiat on January 17, 2008.