Paulsen v. Saskatchewan (Minister of Environment) et al., (2013) 418 Sask.R. 96 (QB)

• Judge: Ryan-Froslie, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: April 04, 2013
• Jurisdiction: Saskatchewan
• Citations: (2013), 418 Sask.R. 96 (QB);2013 SKQB 119

Paulsen v. Sask. (2013), 418 Sask.R. 96 (QB)

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. AP.053

Jason Paulsen (plaintiff) v. Government of Saskatchewan (Ministry of Environment) and Brad Johns and Cal Schommer (defendants)

(2010 Q.B. No. 495; 2013 SKQB 119)

Indexed As: Paulsen v. Saskatchewan (Minister of Environment) et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Prince Albert

Ryan-Froslie, J.

April 4, 2013.

Summary:

In 2008, Paulsen pleaded guilty to offences contrary to the Fisheries Regulations. He asserted that contrary to a plea bargain, he was not permitted to retrieve an enclosed trailer, an all-terrain vehicle and his personal effects that had been seized. Paulsen sued the Saskatchewan government and two conservation officers, claiming damages for wrongful seizure, detention and conversion of his property with respect to the 2008 incident. He asserted in paragraph 8 of his statement of claim that "... the Defendants also wrongfully detained the personal possessions of the Plaintiff, of his sister and of his dependant children continuously since September 25th 2009. ...". The defendants applied to strike the statement of claim in its entirety on the basis that it disclosed no reasonable cause of action (Queen's Bench Rule, rule 173(a)), was scandalous, frivolous or vexatious (rule 173(c)) or was an abuse of the court's process (rule 173(e)).

The Saskatchewan Court of Queen's Bench struck the portion paragraph 8 which read "of his sister and of his dependant children" as the sister and dependent children were not parties to the action. The statement of claim disclosed reasonable causes of action with respect to the 2008 incident, but not the 2009 incident. The court granted Paulsen leave to amend the statement of claim to plead the material facts necessary to establish claims for misfeasance in public office and or conversion and detinue with respect to the 2009 incident. The court dismissed the application respecting rules 173(c) and 173(e).

Crown - Topic 5145

Officials and employees - Liability of officials in tort - Misfeasance - In 2008, Paulsen pleaded guilty to fisheries offences - He asserted that contrary to a plea bargain, he was not permitted to retrieve an enclosed trailer, an all-terrain vehicle and his personal effects that had been seized - He sued the Saskatchewan government and two conservation officers, claiming damages with respect to the 2008 incident - He asserted in paragraph 8 of his statement of claim that "... the Defendants also wrongfully detained the personal possessions of the Plaintiff, of his sister and of his dependant children continuously since September 25th 2009. ..." - The defendants applied to strike the statement of claim as disclosing no reasonable cause of action - The Saskatchewan Court of Queen's Bench stated that the tort of misfeasance in public office appeared to be claimed for both the 2008 and 2009 incidents - Paulsen alleged "bad faith" with respect to both incidents and asserted that the Fisheries Act did not authorize the seizure, detention and/or conversion of his property - The court referred to the elements of the tort and concluded that, absent amendment, the claim did not plead the necessary material facts - The court granted Paulsen leave to amend his statement of claim to plead the necessary material facts - See paragraphs 29 to 33 and 63 to 65.

Crown - Topic 5149

Officials and employees - Liability of officials in tort - Defences - Good faith - In 2008, Paulsen pleaded guilty to fisheries offences - He asserted that contrary to a plea bargain, he was not permitted to retrieve an enclosed trailer, an all-terrain vehicle and his personal effects that had been seized - He sued the Saskatchewan government and two conservation officers, claiming damages with respect to the 2008 incident - He asserted in paragraph 8 of his statement of claim that "... the Defendants also wrongfully detained the personal possessions of the Plaintiff, of his sister and of his dependant children continuously since September 25th 2009. ..." - The defendants applied to strike the statement of claim as being scandalous, vexatious, frivolous and/or an abuse of process - They asserted that s. 36 of the Fisheries Act exempted them from liability unless they had "not acted in good faith" in the performance of their duties - The Saskatchewan Court of Queen's Bench held that the s. 36 exemption would only assist the defendants if they had not acted good faith - Whether they had acted in bad faith was a question of fact which should be left for determination by a judge - See paragraphs 53 to 57.

Estoppel - Topic 386

Estoppel by record (res judicata) - Issues decided in prior proceedings - Paulsen sued the Saskatchewan government and two conservation officers, claiming damages for wrongful seizure, detention and conversion of his property with respect to the detention of his property in 2008 - He also alleged that "... the Defendants also wrongfully detained the personal possessions of the Plaintiff, of his sister and of his dependant children continuously since September 25th 2009. ..." - The defendants moved to strike the statement of claim, asserting that it was scandalous, vexatious, frivolous and/or an abuse of process - The defendants asserted that the Paulsen's goods were lawfully seized pursuant to warrants under the Fisheries Act and that the detention of the goods was lawful under the Act - They also asserted that Paulsen never raised the legality of the search warrants at time of his guilty plea and when the charges against him were stayed in 2009 and, accordingly, the validity of the search warrants were res judicata - There was therefore no basis for the claims in conversion or detinue - The Saskatchewan Court of Queen's Bench rejected the defendants' argument - The validity of the warrants was irrelevant to whether Paulsen's goods were wrongfully detained and/or converted following the plea bargain - Because of the plea bargain, there was no hearing and thus no challenge to the warrants - With respect to the 2009 incident, the charges against Paulsen were stayed - Thus the validity of the seizure was never raised or dealt with - See paragraphs 49 to 52.

Fraud and Misrepresentation - Topic 2827

Misrepresentation - Defences - Where tort arose out of performance of a contract - Paulsen sued the Saskatchewan government and two conservation officers - The defendants applied to strike the statement of claim as disclosing no reasonable cause of action - The Saskatchewan Court of Queen's Bench held that the elements necessary to establish negligent misrepresentation had been pleaded - Paulsen alleged that a plea bargain was entered into whereby he was to plead guilty to fisheries offences and was to retrieve certain goods that the defendants had seized from him - Further, although he pleaded guilty, he was not permitted to retrieve his property as promised - He alleged that "promise" was a misrepresentation made in bad faith - He asserted that he suffered damages because his goods were not returned - The fact that the misrepresentation was also a term of a contract did not prevent a suit in both tort and contract - The statement of claim set out a reasonable cause of action respecting breach of contract and/or negligent misstatement - See paragraphs 22 to 28.

Fraud and Misrepresentation - Topic 4084

Practice - Pleadings - What must be pleaded - [See Fraud and Misrepresentation - Topic 2827 ].

Limitation of Actions - Topic 9

General principles - Effect of missed limitation period - Paulsen sued the Saskatchewan government and two conservation officers, claiming damages for, inter alia, wrongful seizure, detention and conversion of his property with respect to the detention of his property in 2008 - The defendants applied to strike the statement of claim, asserting that the two year limitation period expired before Paulsen initiated his statement of claim and thus there was no reasonable cause of action (Queen's Bench Rule, rule 173(a)) - The Saskatchewan Court of Queen's Bench held that the argument was not relevant to a rule 173(a) application - Limitation periods were defences to causes of action - They did not nullify the cause of action itself - See paragraphs 36 to 39.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Crown - Topic 5145 , Fraud and Misrepresentation - Topic 2827 and Limitation of Actions - Topic 9 ].

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 to be successful on an application to strike pursuant to rule 173(a) of the Queen's Bench Rule, it had to be established that the statement of claim disclosed no reasonable cause of action - In determining such an application, the court had to be cautious and give the pleading a broad and liberal interpretation so that the individuals were not unduly denied their day in court - Here, much of the defendants' argument in support of their application depended on their affidavit evidence - Such evidence could not be considered - The court was limited to an examination of the statement of claim, any particulars demanded respecting that claim and any documents referred to in the claim - The test was whether, assuming the plaintiff proved every alleged fact, it was plain and obvious that there was nevertheless no arguable cause - The court had to identify the "causes of action" claimed and determine whether the facts necessary to establish the elements of those causes of actions had been pleaded - See paragraphs 5 to 9.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Paulsen sued the Saskatchewan government and two conservation officers, claiming damages for, inter alia, wrongful seizure, detention and conversion of his property with respect to the detention of his property - He alleged that the property detained was an enclosed trailer, a boat, a boat motor, an all terrain vehicle, a freezer and various personal effects - He alleged that the wrongful detention was based on the defendants' failure to return that property to him in accordance with a plea bargain under which he pleaded guilty to fisheries offences - He alleged that the fishing boat, motor, freezer and other various fishing equipment was then "wrongfully converted when it was forfeited to the Crown - The defendants applied to strike the statement of claim as disclosing no reasonable cause of action - The Saskatchewan Court of Queen's Bench held that the necessary elements to establish both conversion and detinue were pleaded - The pleadings identified goods belonging to the plaintiff that were "converted" and/or "detained" by the defendants after the defendants promised to return those goods to the plaintiff as part of plea bargain - See paragraphs 17 and 18.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Paulsen sued the Saskatchewan government and two conservation officers, claiming in paragraph 8 of his statement of claim that "... the Defendants also wrongfully detained the personal possessions of the Plaintiff, of his sister and of his dependant children continuously since September 25th 2009. ..." - The defendants applied to strike the statement of claim as disclosing no reasonable cause of action - The Saskatchewan Court of Queen's Bench stated that the material facts necessary to establish the elements of conversion and/or detinue were not pleaded with respect to the 2009 incident - The "goods" in issue were not identified and the claim respecting the sister's and children's property could not stand as they were not parties to the action - Paulsen did not allege any facts from which a "wrongful interference" with the plaintiff's property could be inferred, which was necessary to establish conversion - With respect to the tort of detinue, he did not alleged any demand for the return of the property or that the defendants wrongfully refused to return the same - Absent amendment, the statement of claim did not disclose a reasonable cause of action for conversion and/or detinue - The court struck "of his sister and of his dependant children" from paragraph 8 and granted Paulsen leave to amend the statement of claim to plead the material facts necessary to establish claims for misfeasance in public office and or conversion and detinue - See paragraphs 19 to 21 and 63 to 66.

Practice - Topic 2231

Pleadings - Striking out of pleadings - Grounds - False, frivolous, vexatious or scandalous - [See Crown - Topic 5149 and Estoppel - Topic 386 ].

Practice - Topic 2231

Pleadings - Striking out of pleadings - Grounds - False, frivolous, vexatious or scandalous - The Saskatchewan Court of Queen's Bench noted that applications to strike on the basis a pleading was scandalous, frivolous, vexatious or an abuse of process (Queen's Bench Rules, rules 173(c) and 173(e)) were treated differently than applications which allege the pleadings disclose no reasonable cause of action (rule 173(a)) - Unlike in rule 173(a) applications, the court was not limited to considering the pleading itself, the documents referred to in the pleading and any particulars furnished pursuant to a demand - The court could consider evidence other than the pleadings to establish the merits and motives for the claim - As such, the affidavit evidence filed by the defendants was relevant - However, the court should be careful not to delve into the merits except to the extent necessary to determine the plaintiff's motives in bringing the action and whether a basis for the action was lacking - It was not for a court to weigh the evidence or determine legitimate issues to be tried - The test to be applied was whether it was obvious that the claim was devoid of all merit or could not possibly succeed - The court reviewed what constituted scandalous, vexatious and frivolous pleadings and what amounted to an abuse of process, stating that it was important to keep such in mind when determining a rule 173(c) or 173(e) application - See paragraphs 40 to 48.

Practice - Topic 2231

Pleadings - Striking out of pleadings - Grounds - False, frivolous, vexatious or scandalous - In 2008, Paulsen pleaded guilty to fisheries offences - He asserted that contrary to a plea bargain, he was not permitted to retrieve an enclosed trailer, an all-terrain vehicle and his personal effects that had been seized - He sued the Saskatchewan government and two conservation officers, claiming damages with respect to the 2008 incident - He asserted in paragraph 8 of his statement of claim that "... the Defendants also wrongfully detained the personal possessions of the Plaintiff, of his sister and of his dependant children continuously since September 25th 2009. ..." - The defendants applied to strike the statement of claim as being scandalous, vexatious, frivolous (Queen's Bench Rules, rule 173(c)) and/or an abuse of process (rule 173(e)) - The Saskatchewan Court of Queen's Bench dismissed the application, stating that "... I cannot find that the plaintiff's statement of claim should be struck pursuant to Rule 173(c) and/or (e) as being scandalous, vexatious, frivolous or an abuse of process. Reasonable causes of action were plead with respect to the 2008 incident. There was no evidence that the plaintiff was pursuing his claim for malicious or improper purposes, that he was alleging "bad faith" or impugning the defendants improperly, or that his claim amounted to an abuse of process." - See paragraphs 58 and 59.

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - [See Crown - Topic 5149 , Estoppel - Topic 386 and second and third Practice - Topic 2231 ].

Practice - Topic 2239.2

Pleadings - Amendment of pleadings - Grounds - Action prescribed or barred by limitation period - [See Limitation of Actions - Topic 9 ].

Practice - Topic 5260

Trials - General - Trial of preliminary issues - General principles - When available or appropriate - The defendants applied to strike the plaintiff's statement of claim in its entirety on the basis that it disclosed no reasonable cause of action, was scandalous, frivolous or vexatious or was an abuse of the court's process - The defendants also asserted that the court should proceed with an analysis under rule 188 of the Queen's Bench Rules to determine a point of law based on s. 5 of the Limitations Act - The Saskatchewan Court of Queen's Bench refused to deal with the defendants' request - The defendants' notice of motion did not claim any relief pursuant to rule 188 and there was no agreed statement of act - It was not clear when the statutory period would begin to run - See paragraphs 60 to 62.

Practice - Topic 5264

Trials - General - Trial of preliminary issues - Application - Question of law - [See Practice - Topic 5260 ].

Practice - Topic 5268

Trials - General - Trial of preliminary issues - Bars - [See Practice - Topic 5260 ].

Torts - Topic 3093

Trespass - Trespass to goods - Conversion - What constitutes conversion - [See third and fourth Practice - Topic 2230 ].

Torts - Topic 3093

Trespass - Trespass to goods - Conversion - What constitutes conversion - The Saskatchewan Court of Queen's Bench stated that "The essential elements of the tort of conversion are thus: (i) a wrongful interference (such as taking, using or destroying); (ii) relating to the goods of another; (iii) in a manner inconsistent with the owner's right of possession." - See paragraph 13.

Torts - Topic 3132

Trespass - Trespass to goods - Wrongful detention - Conditions precedent - [See third and fourth Practice - Topic 2230 ].

Torts - Topic 3132

Trespass - Trespass to goods - Wrongful detention - Conditions precedent - The Saskatchewan Court of Queen's Bench stated that "I find the elements of the tort of detinue to be: (i) goods owned by the plaintiff; (ii) in the possession or control of the defendant; (iii) where the plaintiff demands the return of the goods; and (iv) the defendant wrongfully or unlawfully refuses to return the goods." - See paragraph 15.

Torts - Topic 3133

Trespass - Trespass to goods - Wrongful detention - What constitutes - [See third and fourth Practice - Topic 2230 and second Torts - Topic 3132 ].

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - [See Crown - Topic 5145 ].

Cases Noticed:

Sagon v. Royal Bank of Canada et al. (1992), 105 Sask.R. 133; 32 W.A.C. 133 (C.A.), refd to. [para. 6].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 6].

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. 6].

Mann et al. v. Hawkins et al. (2011), 385 Sask.R. 59; 536 W.A.C. 59; 2011 SKCA 146, refd to. [para. 6].

Lorch (P.W.) & Associates Ltd. v. Saskatchewan (2012), 399 Sask.R. 226; 552 W.A.C. 226; 2012 SKCA 93, refd to. [para. 7].

Boma Manufacturing Ltd. et al. v. Canadian Imperial Bank of Commerce, [1996] 3 S.C.R. 727; 203 N.R. 321; 82 B.C.A.C. 161; 133 W.A.C. 161, refd to. [para. 12].

Transit Trailer Leasing Ltd. v. Robinson et al., [2004] O.T.C. 384 (Sup. Ct.), refd to. [para. 14].

Queen (D.J.) v. Cognos Inc., [1993] 1 S.C.R. 87; 147 N.R. 169; 60 O.A.C. 1, refd to. [para. 22].

BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12; 147 N.R. 81; 20 B.C.A.C. 241; 35 W.A.C. 241, refd to. [para. 24].

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. 30].

Dagenais v. Dagenais et al. (2007), 294 Sask.R. 80; 2007 SKQB 50, refd to. [para. 37].

Bloomfield v. Rosthern Union Hospital Ambulance Board et al. (1990), 82 Sask.R. 310 (C.A.), refd to. [para. 38].

Marciano v. Landa et al., [2005] Sask.R. Uned. 48; 2005 SKQB 58, refd to. [para. 42].

Bank of Montreal v. Schmidt et al. (1989), 75 Sask.R. 157 (C.A.), refd to. [para. 42].

Bank of Montreal v. Giesbrecht, [2005] Sask.R. Uned. 115; 2005 SKQB 18, refd to. [para. 45].

C & J Hauling Ltd. v. Mistik Management Ltd. (2010), 351 Sask.R. 199; 2010 SKQB 60, refd to. [para. 45].

Tamarak Energy Inc. v. Ipsco Inc. et al. (1999), 185 Sask.R. 161; 1999 SKQB 125, refd to. [para. 46].

Chernoff v. Chernoff, [1988] S.J. No. 458 (Q.B.), refd to. [para. 47].

Kadziolka v. Royal Bank of Canada (1993), 111 Sask.R. 90 (Q.B.), affd. (1993), 116 Sask.R. 10; 59 W.A.C. 10 (C.A.), refd to. [para. 50].

Nelson et al. v. Saskatchewan et al. (2003), 235 Sask.R. 250; 2003 SKQB 265, refd to. [para. 57].

Statutes Noticed:

Queen's Bench Rules (Sask.) - see Rules of Court (Sask.).

Rules of Court (Sask.), rule 173(a), rule 173(c), rule 173(e) [para. 3].

Authors and Works Noticed:

Bullen, Leake and Jacob, Precedents of Pleadings (12th Ed. 1975), pp. 148, 149 [para. 48].

Fridman, Gerald Henry Louis, The Law of Torts in Canada (1989), pp. 95, 96 [para. 14].

Counsel:

Peter A. Abrametz, for the plaintiff;

Audrey Olson, for the defendants.

This application was heard by Ryan-Froslie, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Prince Albert, who delivered the following fiat on April 4, 2013.