N.M.R. v. Harder et al., 2011 SKQB 301

• Judge: Scherman, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 09, 2011
• Jurisdiction: Saskatchewan
• Citations: 2011 SKQB 301;(2011), 381 Sask.R. 141 (QB)

N.M.R. v. Harder (2011), 381 Sask.R. 141 (QB)

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. SE.016

Velma Harder and Janet Thorsen and the Ministry of Social Services, formerly known as the Department of Community Resources and Employment, formerly known as the Department of Social Services, and the Government of Saskatchewan (applicants/defendants) v. N.M.R. (respondent/plaintiff)

(2010 Q.B. No. 514; 2011 SKQB 301)

Indexed As: N.M.R. v. Harder et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Scherman, J.

August 9, 2011.

Summary:

The plaintiff commenced an action for abuse of a public office, alleging that the defendants, Harder and Thorsen, while performing their office as child protection workers in the employ of the Government of Saskatchewan, intentionally suppressed and misrepresented medical information regarding the plaintiff's children. The plaintiff alleged that those actions had the consequence of her being charged with murder in respect to the deaths of two other children and in her own children being apprehended and made wards of the Minister. The defendants applied under rules 173(a) and 188 to strike out the claim on the basis that: (a) the claim disclosed no reasonable cause of action; and (b) the claim was brought after expiry of the limitation period(s). The plaintiff addressed the limitation periods issue by pleading that, as a result of the defendants' actions, she was incompetent to handle her own affairs.

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

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Limitation of Actions - Topic 9072

Persons under disability and exemptions and exclusions - Incompetent persons - Application of limitation periods - [See both Limitation of Actions - Topic 9307 ].

Limitation of Actions - Topic 9307

Postponement or suspension of statute - Mental incompetence - Section 8(1) of the Limitations Act provided that "The operation of any limitation period established by this Act or any other Act or regulation is suspended during any period in which the claimant ... by reason of mental disability, is not competent to manage his or her affairs ..." - The Saskatchewan Court of Queen's Bench stated that "This section must, in light of the emphasized words, be interpreted as suspending any limitation periods, old Act or new, where there was and is a lack of competence. Thus where lack of competence existed prior to the effective date, the suspension of the limitation period continues into the periods covered by the current Act. The former limitation period cannot have expired if it was suspended" - See paragraphs 24 to 25.

Limitation of Actions - Topic 9307

Postponement or suspension of statute - Mental incompetence - Section 8(1) of the Limitations Act provided that "The operation of any limitation period established by this Act or any other Act or regulation is suspended during any period in which the claimant ... by reason of mental disability, is not competent to manage his or her affairs ..." - Section 8(2) of the Act provided that "A claimant is presumed to have been capable of commencing a proceeding with respect to a claim at all times unless the contrary is proved" - The Saskatchewan Court of Queen's Bench held that s. 8(2) of the Act should not be interpreted as imposing the presumption in that section in the context of a rule 188 application for a determination of a point of law - The intent of the legislature in using the words "unless the contrary is proved" was to leave the presumption open to be rebutted by evidence at trial - It would be illogical to permit this presumption to operate in the context of a rule 188 application where evidence was not admissible - The presumption could not apply in the context of a rule 188 application unless the parties had agreed to its application at that stage - See paragraphs 29 to 33.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - The Saskatchewan Court of Queen's Bench stated that a limitation periods issue could not be dealt with in the context of the rule 173 motion to strike - The court stated that "The logic behind this ruling is that the issue on a rule 173(a) application is whether the claim discloses a reasonable cause of action. Under the rule only the statement of claim and the documents referred to therein may be referred to. The Court must assume the facts pled in the statement of claim may be proven. The issue of whether any of the claims are statute barred is a matter to be raised in the statement of defence and the issue of the validity of that defence may, in appropriate circumstances, be determined on a rule 188 application or at trial, but not on a rule 173(a) application" - See paragraphs 15 to 16.

Practice - Topic 5264

Trials - General - Trial of preliminary issues - Application - Question of law - [See second Limitation of Actions - Topic 9307 ].

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - The plaintiff commenced an action for abuse of public office, alleging that the defendants, while performing their office as child protection workers in the employ of the Government of Saskatchewan, intentionally suppressed and misrepresented medical information regarding the plaintiff's children - The plaintiff alleged that those actions had the consequence of her being charged with murder in respect to the deaths of two other children and in her own children being apprehended and made wards of the Minister - The defendants applied pursuant to rule 173(a) to strike the claim for failing to disclose a reasonable cause of action - They argued that the pleadings did not particularize material facts that would permit a finding of abuse of public office to be drawn - The Saskatchewan Court of Queen's Bench held that there were sufficient allegations of material facts relating to the elements of the tort that it was not open to the court at this stage to say that the claim had no reasonable prospect of success - See paragraphs 6 to 14.

Cases Noticed:

Syl Apps Secure Treatment Centre v. B.D. - see B.D. et al. v. Children's Aid Society of Halton Region et al.

B.D. et al. v. Children's Aid Society of Halton Region et al., [2007] 3 S.C.R. 83; 365 N.R. 302; 227 O.A.C. 161; 2007 SCC 38, refd to. [para. 6].

Merchant Law Group et al. v. Canada Revenue Agency et al. (2010), 405 N.R. 160; 321 D.L.R.(4th) 301; 2010 FCA 184, refd to. [para. 8].

Country Plaza Motors Ltd. et al. v. Indian Head (Town) et al. (2005), 272 Sask.R. 198; 2005 SKQB 442, refd to. [para. 9].

British Columbia v. Imperial Tobacco Canada Ltd. et al. (2011), 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 11].

Semenoff v. Forrie (2008), 310 Sask.R. 158; 423 W.A.C. 158; 2008 SKCA 55, refd to. [para. 15].

Potash Corp. of Saskatchewan Inc. v. Mosaic Potash Esterhazy Limited Partnership (2010), 353 Sask.R. 217; 2010 SKQB 106, refd to. [para. 16].

Wilchuk v. W & W Enterprises Ltd. et al., [2002] Sask.R. Uned. 191; 2002 SKQB 471, refd to. [para. 17].

Goertz v. Zmud (1995), 137 Sask.R. 289; 107 W.A.C. 289 (C.A.), refd to. [para. 17].

Novak et al. v. Bond, [1999] 1 S.C.R. 808; 239 N.R. 134; 122 B.C.A.C. 161; 200 W.A.C. 161, refd to. [para. 30].

Bisoukis v. Brampton (City) (1999), 127 O.A.C. 107; 46 O.R.(3d) 417 (C.A.), leave to appeal refused (2000), 261 N.R. 200; 141 O.A.C. 200 (S.C.C.), refd to. [para. 30].

Shields (Resort Village) v. Toronto-Dominion Bank (1988), 69 Sask.R. 131 (C.A.), refd to. [para. 32].

Statutes Noticed:

Limitations Act, S.S. 2004, c. L-16.1, sect. 8(1) [para. 24]; sect. 8(2) [para. 26].

Counsel:

Barry J. Hornsberger, Q.C., for the applicants/defendants;

Peter A. Abrametz, for the respondent/plaintiff.

This application was heard before Scherman, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following judgment on August 9, 2011.