Popowich v. Saskatchewan et al.,

• Jurisdiction: Saskatchewan
• Judge: Gerein
• Neutral Citation: 2001 SKQB 148
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Date: 26 March 2001

Popowich v. Sask. (2001), 209 Sask.R. 88 (QB)

MLB headnote and full text

Temp. Cite: [2001] Sask.R. TBEd. AP.027

John Popowich (plaintiff) v. The Government of Saskatchewan, The Attorney General for Saskatchewan, C. Richard Quinney, Q.C., Leslie Sullivan, Bruce Bauer, Martensville Board of Police Commissioners, Claudia Bryden, Wayne McGillivray, Michael Johnston, and Rodney Moore (defendants)

(1994 Q.B. No. 2815; 2001 SKQB 148)

Indexed As: Popowich v. Saskatchewan et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Gerein, C.J.Q.B.

March 26, 2001.

Summary:

Popowich, a police officer, was charged with various indictable offences involving the sexual abuse of children. During the course of Popowich's trial, the Crown entered a stay of proceedings. Fifteen months after the stay was entered, Popowich submitted that there had been a faulty investigation. Popowich sued the province and others for malicious prosecution, negligence, conspiracy and breach of Charter rights. Since the action was commenced, several parties were removed from the proceedings. Statements of defence were filed by the other defendants and a trial date was set. A number of substantive issues, however, remained outstanding, including: (1) whether the plaintiff's claim was barred by a statutory limitation; (2) whether any limitation period should be extended nunc pro tunc; (3) whether a portion of the plaintiff's claim failed to disclose a cause of action against certain defendants; and (4) whether the plaintiff's claim in tort against the Government of Saskatchewan was statute barred.

The Saskatchewan Court of Queen's Bench reviewed the issues and ruled on each accordingly.

Note: for prior decisions in this matter see 124 Sask.R. 56; 127 Sask.R. 94; 131 Sask.R. 217; 132 Sask.R. 48; 133 Sask.R. 27; 134 Sask.R. 249; 101 W.A.C. 249; 135 Sask.R. 122; 135 Sask.R. 133; and 144 Sask.R. 166; 124 W.A.C. 166; 167 Sask.R. 41; 177 Sask.R. 226; 199 W.A.C. 226; 201 Sask.R. 222.

Crown - Topic 2803

Crown immunity - Immunity under provincial legislation - [See Crown - Topic 2845 and Crown - Topic 2846 ].

Crown - Topic 2845

Crown immunity - Agents - Prosecutors - Popowich, a police officer, was charged with various indictable offences involving the sexual abuse of children - During Popowich's trial, the Crown entered a stay of proceedings - Fifteen months after the stay was entered, Popowich sued the province and others for malicious prosecution, negligence, conspiracy and breach of Charter rights - The defendants Quinney and Sullivan (Crown attorneys), sought to have certain pleadings of negligence as against them struck on the ground that they enjoyed immunity absent any allegations of malice or bad faith - The Saskatchewan Court of Queen's Bench agreed and struck the pleadings in question as disclosing no cause of action - See paragraphs 46 to 48.

Crown - Topic 2846

Crown immunity - Agents - Police - Popowich, a police officer, was charged with various indictable offences involving the sexual abuse of children - During Popowich's trial, the Crown entered a stay of proceedings - Fifteen months after the stay was entered, Popowich sued the province and others for malicious prosecution, negligence, conspiracy and breach of Charter rights - The defendants Bauer, McGillivray and Johnston (police officers), sought to have certain pleadings of negligence as against them struck on the ground that they enjoyed immunity absent any allegations of malice or bad faith (Police Act, s. 10) - The Saskatchewan Court of Queen's Bench rejected this argument - Section 10 only provided immunity to the Saskatchewan Police Commission and people engaged in its work - It did not extend protection to police officers in general - See paragraphs 49 and 50.

Crown - Topic 4427

Actions by and against Crown in Right of a Province - Proceedings against the Crown Acts - Actions to which Act applicable - The Saskatchewan Court of Queen's Bench reviewed the parameters of Crown immunity as outlined in the Proceedings Against the Crown Act - See paragraphs 52 to 57.

Crown - Topic 4428

Actions by and against Crown in Right of a Province - Proceedings against the Crown Acts - Limitations on application of Acts - [See Crown - Topic 4427 ].

Crown - Topic 4542.1

Actions by and against Crown in Right of a Province - Capacity of Crown to be sued - Statutory immunity - [See Crown - Topic 4427 ].

Crown - Topic 5143

Officials and employees - Liability of officials in tort - Limitation of actions - [See both Limitation of Actions - Topic 7521 ].

Limitation of Actions - Topic 3103

Actions in tort - Negligence - When time begins to run - [See both Limitation of Actions - Topic 7521 ].

Limitation of Actions - Topic 7521

Actions against the Crown - When limitation period commences - General - Popowich, a police officer, was charged with various indictable offences involving the sexual abuse of children - During Popowich's trial, the Crown entered a stay of proceedings - Fifteen months after the stay was entered, Popowich sued the province and others for malicious prosecution, negligence, conspiracy and breach of Charter rights - The applicants, several defendants in the action including police officers, Crown attorneys, and the Saskatchewan Attorney General, sought to have the action struck (with the exception of the claims based on malice), because it was not commenced within the time prescribed by the Public Officers' Protection Act (i.e., 12 months after the stay was entered) - The Saskatchewan Court of Queen's Bench held that the time began to run immediately after the stay was granted, notwithstanding the Crown's right to appeal for one year following the stay (Criminal Code, s. 579) - Nonetheless, the court declined to dismiss the action where it was uncertain from the facts that the limitation period had not been extended - See paragraphs 13 to 25.

Limitation of Actions - Topic 7521

Actions against the Crown - When limitation period commences - General - Popowich, a police officer, was charged with various indictable offences involving the sexual abuse of children - During Popowich's trial, the Crown entered a stay of proceedings - Fifteen months after the stay was entered, Popowich submitted that there had been a faulty investigation - Popowich sued the province and others for malicious prosecution, negligence, conspiracy and breach of Charter rights - The applicants, several defendants in the action including police officers, Crown attorneys, and the Saskatchewan Attorney General, sought to have the action struck (with the exception of the claims based on malice), because it was not commenced within the time prescribed by the Public Officers' Protection Act (i.e., 12 months after the stay was entered) - The plaintiff sought an order granting an extension of the limitation period under s. 2(1) of the Act - The Saskatchewan Court of Queen's Bench reviewed the legislation surrounding limitation periods and s. 2(1) and held that in this case the limitation should be extended and that the extension should be retroactive (nunc pro tunc) - See paragraphs 26 to 45.

Limitation of Actions - Topic 7581

Actions against the Crown - Applicability of limitation period - General - [See both Limitation of Actions - Topic 7521 ].

Limitation of Actions - Topic 9612

Enlargement of time period - Application for - When available - [See second Limitation of Actions - Topic 7521 ].

Police - Topic 5284

Actions against police - Defences - Statutory immunity - Limits of - [See Crown - Topic 2846 ].

Police - Topic 5285

Actions against police - Defences - Limitation of actions - [See both Limitation of Actions - Topic 7521 ].

Practice - Topic 2233

Pleadings - Striking out pleadings - Grounds - Privilege or immunity - [See Crown - Topic 2845 and Crown - Topic 2846 ].

Practice - Topic 2239.2

Pleadings - Striking out pleadings - Grounds - Action prescribed or barred by limitation period - [See both Limitation of Actions - Topic 7521 ].

Cases Noticed:

Balacko v. Eaton's of Canada Ltd. (1967), 60 W.W.R.(N.S.) 22 (Sask. Q.B.), refd to. [para. 7].

Geenan v. Saskatchewan Piping Industry Pension Plan (Trustees) (1996), 150 Sask.R. 106 (Q.B.), refd to. [para. 7].

Boudreault v. Barrett (1993), 140 A.R. 24; 18 C.P.C.(3d) 227 (Q.B. Master), refd to. [para. 19].

Boudreault v. Barrett (1995), 174 A.R. 71; 102 W.A.C. 71; 39 C.P.C.(3d) 1 (C.A.), refd to. [para. 20].

Boudreault v. Barrett (1993), 219 A.R. 67; 179 W.A.C. 67 (C.A.), refd to. [para. 21].

Bloomfield v. Rosthern Union Hospital Ambulance Board et al. (1990), 82 Sask.R. 310 (C.A.), refd to. [para. 24].

Holst v. Grenier et al. (1987), 65 Sask.R. 257 (Q.B.), refd to. [para. 27].

Mitchell et al. v. Cabri Union Hospital Board et al. (1989), 79 Sask.R. 81 (Q.B.), refd to. [para. 27].

Tokohopie and Lonechild v. Littlechief et al. (1992), 101 Sask.R. 127 (Q.B.), refd to. [para. 27].

First Choice Capital Fund Ltd. v. First Canadian Capital Corp., [1998] 6 W.W.R. 362 (Sask. Q.B.), refd to. [para. 27].

Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241, refd to. [para. 33].

Stewart v. Stewart, [1996] 10 W.W.R. 350 (B.C.S.C.), refd to. [para. 33].

Worsley v. Hamilton and Hamilton (1960), 33 W.W.R.(N.S.) 23 (Sask. C.A.), refd to. [para. 35].

Elliott v. Saskatoon (City), University Hospital Board and Ward (1986), 48 Sask.R. 142 (C.A.), refd to. [para. 35].

Saskatchewan v. Nowsco Well Service Ltd. et al. (1990), 75 Sask.R. 285 (Q.B.), refd to. [para. 35].

Landru v. Seymour, [1925] 1 W.W.R. 29 (Sask. K.B.), refd to. [para. 38].

Konotopski v. Saskatoon District Health Board et al. (2000), 190 Sask.R. 103 (Q.B.), refd to. [para. 38].

Peyson v. Vuksic (1994), 124 Sask.R. 251 (Q.B.), refd to. [para. 38].

Bighead v. Holy Family Hospital, Prince Albert et al. (1991), 98 Sask.R. 262 (Q.B.), refd to. [para. 38].

Desormeau v. Holy Family Hospital, Prince Albert (1989), 76 Sask.R. 241 (C.A.), refd to. [para. 38].

R. v. Fenrich (1985), 42 Sask.R. 117 (Q.B.), refd to. [para. 45].

Shannon v. Topp (1986), 44 Sask.R. 100 (Q.B.), refd to. [para. 45].

Martyn v. Connelly et al. (1998), 171 Sask.R. 70 (Q.B.), refd to. [para. 45].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161; 60 D.L.R.(4th) 609, refd to. [para. 48].

Munro v. Canada (1992), 98 D.L.R.(4th) 662 (Ont. Gen. Div.), refd to. [para. 48].

Milgaard v. Kujawa et al. (1994), 123 Sask.R. 164; 74 W.A.C. 164 (C.A.), refd to. [para. 48].

Hill Estate v. Chief Constable of West Yorkshire, [1988] 2 All E.R. 238; 102 N.R. 241 (H.L.), refd to. [para. 49].

Beckstead v. Ottawa (City) (1997), 155 D.L.R.(4th) 382 (Ont. C.A.), refd to. [para. 50]. [1997] O.A.C. Uned. 568 possible match

Reynen v. Canada et al. (1995), 184 N.R. 350 (F.C.A.), refd to. [para. 50].

Hawley et al. v. Bapoo et al. (2000), 133 O.A.C. 144; 187 D.L.R.(4th) 533 (Div. Ct.), refd to. [para. 52].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 579 [para. 14].

Limitation of Actions Act, R.S.S. 1978, c. L-15, sect. 3(2) [para. 34].

Proceedings Against the Crown Act, R.S.S. 1978, c. P-27, sect. 17(2) [para. 28].

Public Officers' Protection Act, R.S.S. 1978, c. P-40, sect. 5(1), sect. 5(6) [para. 52].

Queen's Bench Act, R.S.S. c. Q-1, sect. 54 [para. 29].

Rules of Court (Alta.), rule 173 [paras. 6, 22].

Counsel:

G.D. Dufour, for the plaintiff/respondent/ applicant;

D.A. McKillop, Q.C., for the defendants/applicants, the Government of Saskatchewan, Attorney General for Saskatchewan, C. Richard Quinney, Q.C., Leslie Sullivan and Bruce Bauer;

R.B. Morris, for the defendants/applicants, Wayne McGillivray and Michael Johnston and Martensville Board of Police Commissioners, respondent;

H.R. Kloppenburg, Q.C., for the defendant/respondent, Rodney Moore;

B.A. Beresh, for the defendant/respondent, Claudia Bryden.

These motions were heard before Gerein, C.J.Q.B., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following decision on March 26, 2001.