Medvid et al. v. Saskatchewan (Minister of Health) et al., 2012 SKCA 49

• Judge: Klebuc, C.J.S., Jackson and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 08, 2011
• Jurisdiction: Saskatchewan
• Citations: 2012 SKCA 49;(2012), 393 Sask.R. 157 (CA)

Medvid v. Sask. (2012), 393 Sask.R. 157 (CA);

    546 W.A.C. 157

MLB headnote and full text

Temp. Cite: [2012] Sask.R. TBEd. MY.026

Paul Medvid, Shaine Medvid and Coreen Hardy (appellants/plaintiffs) v. Her Majesty the Queen in Right of Alberta, as Represented by the Minister of Health and Wellness for Alberta (respondent/defendant) and Her Majesty the Queen in Right of Saskatchewan, as Represented by the Minister of Health for Saskatchewan, Regional Health Authority #9, also known as Prince Albert Parkland Regional Health Authority, Prince Albert Parkland Health Region, and its predecessors, Regional Health Authority #1 also known as Sun Country Regional Health Authority, and its predecessors Regional Health Authority #5 also known as Sunrise Regional Health Authority, and its predecessors, Regional Health Authority #3, also known as Cypress Regional Health Authority, and its predecessors, Regional Health Authority #10, also known as Prairie North Regional Health Authority, and its predecessors, Lloydminster Health District, Alberta Health Services, and all of its predecessors, including, but not restricted to: Peace Country Health, and its predecessor Keeweetinok Lakes Regional Health Authority #15 (non-parties/defendants)

(1899; 2012 SKCA 49)

Indexed As: Medvid et al. v. Saskatchewan (Minister of Health) et al.

Saskatchewan Court of Appeal

Klebuc, C.J.S., Jackson and Herauf, JJ.A.

April 25, 2012.

Summary:

The plaintiffs commenced a proposed class proceeding in Saskatchewan against Alberta, as represented by the Minister of Health and Wellness for Alberta, and other defendants, in relation to certain health services provided in Alberta and Saskatchewan. Pursuant to rule 99 and rule 173 of the Queen's Bench Rules, Alberta brought a motion to strike the plaintiffs' claim as against Alberta on the grounds that the Saskatchewan Court of Queen's Bench did not have jurisdiction over Alberta.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2010), 348 Sask.R. 80, struck the action against Alberta on the jurisdictional principle of Crown immunity. The court concluded that the Saskatchewan Court of Queen's Bench, in a proposed class proceeding in Saskatchewan, did not have jurisdiction over Alberta. The court awarded costs to Alberta as provided for in rule 173. The plaintiffs appealed, submitting that the court erred in its ruling on the jurisdictional issue and in the award of costs.

The Saskatchewan Court of Appeal dismissed the appeal but for a minor variation to the costs award. In essence, the motion was determined on the basis of rule 99. Rule 173 did not have to be considered and as a result it would be improper to award costs based on rule 173 which triggered double costs. Any reference to rule 173 in the costs award was struck and the order would read: "The plaintiff shall pay costs of this action to Alberta". Alberta was entitled to costs of the appeal to be assessed in the usual way.

Editor's Note: This was a companion appeal to (2012), 393 Sask.R. 151; 546 W.A.C. 151, which was released contemporaneously with this judgment.

Conflict of Laws - Topic 1661

Actions - Forum conveniens - General - [See third Crown - Topic 4542 ].

Constitutional Law - Topic 7501

Provincial jurisdiction (s. 92) - Matters of local or private nature - General - [See first Crown - Topic 4542 ].

Crown - Topic 2803

Crown immunity - General - Immunity under provincial legislation - [See first Crown - Topic 4542 ].

Crown - Topic 2886

Crown immunity - Exceptions - Crown acting as commercial enterprise - [See second Crown - Topic 4542 ].

Crown - Topic 2887

Crown immunity - Exceptions - Denial of Charter or human rights - [See second Crown - Topic 4542 ].

Crown - Topic 4542

Actions by and against Crown in right of a province - Capacity of Crown to be sued - Immunity - General - The plaintiffs commenced a proposed class proceeding in Saskatchewan against Alberta, as represented by the Minister of Health and Wellness for Alberta, and other defendants, in relation to certain health services provided in Alberta and Saskatchewan - The chambers judge struck the action against Alberta, holding that the principle of Crown immunity applied and the Saskatchewan Court of Queen's Bench had no jurisdiction over Alberta - The chambers judge reasoned that the courts of Saskatchewan could not entertain suits against the Crown in right of another province unless the legislation of the other province expressly permitted such extra-territorial claims, and s. 8 of the Alberta Proceedings Against the Crown Act (the "Alberta Act") did not open the door for an action against Alberta in another province - The plaintiffs appealed - They argued that s. 92 of the Constitution Act, 1867, permitted a province to legislate matters local to that province and, as a result, the Alberta Act, which attempted to preclude a Saskatchewan court from asserting its jurisdiction over an action which named Alberta as a defendant, was constitutionally inapplicable - The Saskatchewan Court of Appeal held that there was no basis to find that the Alberta Act was constitutionally inapplicable - The court also endorsed the chambers judge's interpretation of s. 8 of the Alberta Act - See paragraphs 13 to 21 and 36 to 39.

Crown - Topic 4542

Actions by and against Crown in right of a province - Capacity of Crown to be sued - Immunity - General - The plaintiffs commenced a proposed class proceeding in Saskatchewan against Alberta, as represented by the Minister of Health and Wellness for Alberta, and other defendants, in relation to certain health services provided in Alberta and Saskatchewan - The chambers judge struck the action against Alberta, holding that the principle of Crown immunity applied and the Saskatchewan Court of Queen's Bench had no jurisdiction over Alberta - The plaintiffs appealed - They argued, inter alia, that the chambers judge erred in law in finding that the principle of sovereign immunity applied and the chambers judge, in making a finding of sovereign immunity, erred in law by effectively preventing the appellants from obtaining a remedy for the breach of their rights under s. 7 of the Charter - The Saskatchewan Court of Appeal rejected these grounds - The chambers judge did not err in concluding that provincial Crown immunity applied - The characterization of immunity as either Crown or sovereign was not critical to the chambers judge's analysis - The chambers judge rightly concluded that the alleged activity in question related to health care - As such, there was no element of commercial activity which would abrogate provincial Crown immunity - There was no violation of s. 7 of the Charter since Alberta could have been sued in the courts of Alberta - A remedy therefore existed - A decision was made to launch the proceedings in Saskatchewan only - If there were limitation period issues that was a consequence of that decision - See paragraphs 22 to 31.

Crown - Topic 4542

Actions by and against Crown in right of a province - Capacity of Crown to be sued - Immunity - General - The plaintiffs commenced a proposed class proceeding in Saskatchewan against Alberta, as represented by the Minister of Health and Wellness for Alberta, and other defendants, in relation to certain health services provided in Alberta and Saskatchewan - The chambers judge struck the action against Alberta, holding that the principle of Crown immunity applied and the Saskatchewan Court of Queen's Bench had no jurisdiction over Alberta - The plaintiffs appealed - They argued that the chambers judge erred in law by not considering the issue of Saskatchewan's real and substantial connection to the litigation, or questions of fairness, order and comity - The Saskatchewan Court of Appeal held that the chambers judge made no error when she declined to consider the real and substantial connection test or forum non conveniens - No authority was cited to support the proposition that the Crown immunity principle could be abrogated based upon the grounds of forum conveniens - See paragraphs 32 to 35.

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - [See Practice - Topic 2242.1 ].

Practice - Topic 2242.1

Pleadings - Striking out pleadings - Practice - Costs - The plaintiffs commenced a proposed class proceeding in Saskatchewan against Alberta, as represented by the Minister of Health and Wellness for Alberta, and other defendants, in relation to certain health services provided in Alberta and Saskatchewan - Pursuant to rule 99 and rule 173 of the Queen's Bench Rules, Alberta moved to strike the appellants' claim as against Alberta on the grounds that the Saskatchewan Court of Queen's Bench did not have jurisdiction over Alberta - The chambers judge struck the action against Alberta on the jurisdictional principle of Crown immunity and awarded costs to Alberta as provided for in rule 173 of the Queen's Bench Rules - On appeal, the plaintiffs argued that the chambers judge erred in awarding costs - They argued that s. 40 of the Class Actions Act provided that costs not be awarded in class action proceedings, other than on a very limited basis - In any event, the plaintiffs submitted that double costs should not have been awarded as the chambers decided the matter pursuant to rule 99 rather than rule 173 - The Saskatchewan Court of Appeal held that, as the plaintiffs had not filed an application for certification before Alberta applied to have the action struck, s. 40 of the Class Actions Act did not apply - However, the court held that, in essence, the motion was determined on the basis of rule 99 - Rule 173 therefore did not have to be considered and it would be improper to award costs based on rule 173 which triggered double costs - Any reference to rule 173 in the costs award was struck and the order would read: "The Plaintiff shall pay costs of this action to Alberta" - See paragraphs 40 to 49.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 10].

H.L. v. Canada (Attorney General) et al., [2005] 1 S.C.R. 401; 333 N.R. 1; 262 Sask.R. 1; 347 W.A.C. 1; 2005 SCC 25, refd to. [para. 10].

Morguard Investments Ltd. et al. v. De Savoye, [1990] 3 S.C.R. 1077; 122 N.R. 81, refd to. [para. 13].

Hunt v. T&N plc - see Hunt v. Lac d'Amiante du Québec ltée et al.

Hunt v. Lac d'Amiante du Québec Ltée et al., [1993] 4 S.C.R. 289; 161 N.R. 81; 37 B.C.A.C. 161; 60 W.A.C. 161, refd to. [para. 13].

Athabasca Chipewyan First Nation v. Canada (Minister of Indian Affairs and Northern Development) et al. (2001), 281 A.R. 38; 248 W.A.C. 38; 199 D.L.R.(4th) 452; 2001 ABCA 112, refd to. [para. 17].

Liability Solutions Inc. v. New Brunswick, [2007] O.T.C. Uned. O35; 88 O.R.(3d) 101 (Sup. Ct.), refd to. [para. 17].

Phillips v. Beary et al., [1994] B.C.T.C. Uned. H88; 29 C.P.C.(3d) 258 (S.C.), refd to. [para. 17].

Kaman v. British Columbia (1999), 242 A.R. 336; 1999 ABQB 216, refd to. [para. 17].

Sauve v. Quebec (Attorney General) et al., [2011] O.A.C. Uned. 337; 2011 ONCA 369, refd to. [para. 19].

Mellenger v. New Brunswick Development Corp., [1971] 2 All E.R. 593 (Eng. C.A.), refd to. [para. 26].

Western Surety Co. v. Elk Valley Logging Ltd. et al. (1985), 23 D.L.R.(4th) 464 (B.C.S.C.), refd to. [para. 27].

Athabasca Chipewyan First Nation v. Canada (Minister of Indian Affairs and Northern Development) et al. (1999), 249 A.R. 22; 178 D.L.R.(4th) 245; 1999 ABQB 662, refd to. [para. 32].

Seidel v. Telus Communications Inc., [2009] B.C.A.C. Uned. 70; [2010] 3 W.W.R. 672; 2009 BCCA 383, refd to. [para. 46].

Consumers' Association of Canada et al. v. Coca-Cola Bottling Co. et al. (2007), 243 B.C.A.C. 313; 401 W.A.C. 313; 2007 BCCA 356, refd to. [para. 46].

Campbell et al. v. Canada (Attorney General) et al. (2012), 427 N.R. 371; 2012 FCA 45, refd to. [para. 46].

Eckel v. Saskatoon (City) et al. (2009), 338 Sask.R. 255; 2009 SKQB 287, refd to. [para. 49].

Wall Estate et al. v. GlaxoSmithKline Inc. et al. (2010), 367 Sask.R. 21; 2010 SKQB 351, refd to. [para. 50].

Statutes Noticed:

Class Actions Act, S.S. 2001, c. C-12.01, sect. 40 [para. 41].

Proceedings Against the Crown Act, R.S.A. 2000, c. P-25, sect. 8 [para. 36].

Rules of Court (Sask.), Queen's Bench Rules, rule 99, rule 173 [para. 40].

Authors and Works Noticed:

Walker, Janet, Interprovincial Sovereign Immunity Revisited (1977), 35 Osgoode Hall L.J., p. 385 [para. 13].

Counsel:

E.F. Anthony Merchant, Q.C., and Nicholas Robinson, for the appellants;

Ward Branch, for the respondent, Alberta.

This appeal was heard on April 26 and September 8, 2011, before Klebuc, C.J.S., Jackson and Herauf, JJ.A., of the Saskatchewan Court of Appeal. The following judgment of the Court of Appeal was delivered by Herauf, J.A., on April 25, 2012.