Precision Contractors Ltd. v. Saskatchewan, (2013) 417 Sask.R. 22 (CA)

• Judge: Cameron, Caldwell and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: May 30, 2013
• Jurisdiction: Saskatchewan
• Citations: (2013), 417 Sask.R. 22 (CA);2013 SKCA 57

Precision Contractors Ltd. v. Sask. (2013), 417 Sask.R. 22 (CA);

    580 W.A.C. 22

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. JN.001

Precision Contractors Ltd. (appellant/plaintiff) v. The Government of Saskatchewan (respondent/defendant)

(CACV2188; 2013 SKCA 57)

Indexed As: Precision Contractors Ltd. v. Saskatchewan

Saskatchewan Court of Appeal

Cameron, Caldwell and Herauf, JJ.A.

May 30, 2013.

Summary:

Precision Contractors Ltd. (PC), applied to have a proposed action against the Government of Saskatchewan certified as a class action pursuant to the Class Actions Act. At issue was the constitutional validity of provincial legislation and/or regulations imposing provincial sales tax (PST) on construction vehicles and equipment brought into Saskatchewan from Alberta for temporary use in PC's business. PC sought a declaration that the PST levied by Saskatchewan was ultra vires the direct taxation powers granted to provinces. It claimed restitution of some $2.3 million, as well as damages.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2011), 378 Sask.R. 31, ruled that the first three of the five requirements for class certification (ss. 6(1)(a) to (c) of the Act) had been satisfied, and identified three common issues. However, the court held that a class action was not the preferable procedure (the fourth requirement) for addressing the constitutionality of the impugned PST legislation. The court adjourned the application pending a determination of the constitutional challenge in a judicial review application to be undertaken by PC, and deferred any definitive ruling on the remaining questions under ss. 6(1)(d) and (e) until the return of the application. PC appealed.

The Saskatchewan Court of Appeal allowed the appeal. The certification judge erred in his determination that judicial review was the preferable procedure to adjudicate the first common issue. The court remitted the matter to the certification judge to conclude the certification hearing.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - A certification judge conditionally adjourned a certification application pursuant to Saskatchewan's Class Actions Act, pending the determination of one of the three common issues (the constitutional validity of the impugned provincial sales tax legislation) in a separate proceeding outside the framework of the Act - The Saskatchewan Court of Appeal allowed the plaintiff's appeal - The court disagreed with the approach of the certification judge to the application of s. 6(1)(d) of the Act and the question of whether the proposed class action was the preferable procedure - Regarding the bifurcation of the common issues, the "bifurcation of the proceedings would likely increase costs and require more by the way of judicial resources than by having all three common issues determined and dealt with at the same time and in the same process. A common proceeding would ensure that all class members are treated fairly and have adequate notice of all aspects of the litigation. It would also treat [the plaintiff] fairly and not require it to launch a separate proceeding outside the framework of the Act that would expose it to costs." - The court remitted the matter to the certification judge to conclude the certification hearing - See paragraphs 36 to 49.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - The plaintiff appealed from the decision of a certification judge to conditionally adjourn a certification application pending the determination of one of the common issues in a separate proceeding outside the framework of the Class Actions Act - The Saskatchewan Court of Appeal, in allowing the appeal, addressed the certification judge's concern that the matter could not be expeditiously determined within the framework of the class action - "The certification judge has significant powers in both the Act (s. 14 in particular) and the class action rules ... to make orders that could reduce time and expense within the class proceeding. Assuming the facts are not in dispute, something akin to an application under Rule 188 to determine a point of law or the like may be appropriate. If not, limits could be placed upon the discoveries to deal with a specific point of law as a threshold issue, and also on the nature of the evidence required" - See paragraph 47.

Cases Noticed:

Guimond v. Québec (Procureur général), [1996] 3 S.C.R. 347; 201 N.R. 380, dist. [paras. 11, 17 et seq.].

Marcotte et al. v. Longueuil (Ville), [2009] 3 S.C.R. 65; 394 N.R. 1; 2009 SCC 43, consd. [paras. 11, 29 et seq.].

Nanaimo Immigrant Settlement Society et al. v. British Columbia (2001), 149 B.C.A.C. 26; 244 W.A.C. 26; 84 B.C.L.R.(3d) 208; 2001 BCCA 75, agreed with [para. 23 et seq.].

Kingstreet Investments Ltd. et al. v. New Brunswick (Minister of Finance) et al., [2007] 1 S.C.R. 3; 355 N.R. 336; 309 N.B.R.(2d) 255; 799 A.P.R. 255; 2007 SCC 1, refd to. [para. 35].

Central Canada Potash Co. et al. v. Saskatchewan, [1979] 1 S.C.R. 42; 23 N.R. 481, refd to. [para. 40].

Amax Potash Ltd. et al. v. Saskatchewan, [1977] 2 S.C.R. 576; 11 N.R. 222, refd to. [para. 40].

Horner et al. v. Saskatchewan et al., [2008] 11 W.W.R. 648; 318 Sask.R. 96; 2008 SKQB 273, refd to. [para. 46].

Statutes Noticed:

Class Actions Act, S.S. 2001, c. C-12.01, sect. 6(1) [para. 3].

Counsel:

E.F Anthony Merchant, Q.C., for the appellant;

Sharon Pratchler, Q.C., for the respondent.

This appeal was heard on May 30, 2013 before Cameron, Caldwell and Herauf, JJ.A., of the Saskatchewan Court of Appeal. In reasons written by Herauf, J.A., the Court delivered the following judgment, dated at Regina, Saskatchewan, on May 30, 2013.