Saskatchewan Provincial Court Judges' Association et al. v. Saskatchewan (Minister of Justice) et al., (1995) 133 Sask.R. 115 (QB)

• Judge: Barclay, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: May 10, 1995
• Jurisdiction: Saskatchewan
• Citations: (1995), 133 Sask.R. 115 (QB)

Provincial Court Judges v. Sask. (1995), 133 Sask.R. 115 (QB)

MLB headnote and full text

Judge Gerald T.G. Seniuk, Judge David M. Arnot, Judge Edward R. Gosselin and Judge D. Albert Lavoie suing on behalf of themselves and on behalf of all members of the Saskatchewan Provincial Court Judges' Association (plaintiffs) v. The Minister of Justice for the Province of Saskatchewan and the Government of Saskatchewan, and Robert W. Mitchell, Q.C., in his personal capacity (defendants)

(1994 Q.B. No. 3814)

Indexed As: Saskatchewan Provincial Court Judges' Association et al. v. Saskatchewan (Minister of Justice) et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Barclay, J.

May 10, 1995.

Summary:

The Saskatchewan government rejected the Provincial Court Commission's decision respecting the salary to be paid to judges. The Saskatchewan Provincial Court Judges' Association began proceedings against the Province of Saskatchewan and others, in­cluding the Minister of Justice in his per­sonal capacity. The Minister applied for a declaration that he was improperly added as a defendant.

The Saskatchewan Court of Queen's Bench allowed the application.

Civil Rights - Topic 8311

Canadian Charter of Rights and Freedoms - General - Application - Nongovern­mental or private interference - The Sas­katchewan government rejected the Pro­vincial Court Commission's decision re­specting judges salaries and enacted Bill 46 - The Provincial Court Judges' Associ­ation sued the government and attempted to sue the Minister of Justice in his per­sonal capacity - The Association alleged that the Minister acted in violation of the Constitution - The Saskatchewan Court of Queen's Bench rejected the al­legation, stating that the Constitution, including the Charter, governs the conduct of govern­ments and private action cannot give rise to a claim of unconstitutionality - See paragraphs 49 to 50.

Practice - Topic 253

Persons who can sue and be sued - Gov­ernment - Ministers in their personal capacity - The Saskatchewan Court of Queen's Bench stated that "before a Minis­ter can be named in his personal capacity, he must exceed the powers of his office or act improperly in fraud of his duties and powers or act with malice. He could also be civilly liable in damages, if, by reason of an improper motive, he causes damage. However, if the Minister is acting in good faith when he implements government policy with respect to a matter of public interest, he cannot be sued in his personal capacity by a person aggrieved by such policy" - See paragraph 22.

Practice - Topic 253

Persons who can sue and be sued - Gov­ernment - Ministers in their personal capacity - The Saskatchewan government rejected the Provincial Court Commission's decision respecting judges' salaries - The Provincial Court Judges' Association began an action against the Province and others, including the Minister of Justice in his personal capacity - The Saskatchewan Court of Queen's Bench held that the Minister could not be sued in his personal capacity, where the alleged breach of duty was not compensable in damages as such remedy was not expressly contemplated by the relevant statute and where the relief sought was declaratory in nature - See paragraphs 21 to 39.

Practice - Topic 253

Persons who can sue and be sued - Gov­ernment - Ministers in their personal capacity - The Saskatchewan government rejected the Provincial Court Commission's decision respecting judges' salaries and enacted Bill 46 - The Provincial Court Judges' Association sued the government and others and sought to sue the Minister of Justice in his personal capacity - The Association alleged that the Minister acted outside the scope of his duty by inducing breach of contract, i.e., contracts agreeing to determine salaries by binding arbitration and that the Minister would use his best efforts to enact necessary legislation - The Saskatchewan Court of Queen's Bench rejected the allegation, stating that the alleged contracts were not binding on the Minister - See paragraphs 40 to 48.

Practice - Topic 253

Persons who can sue and be sued - Gov­ernment - Ministers in their personal capacity - [See Civil Rights - Topic 8311 ].

Cases Noticed:

RoyNat Inc. v. Northland Properties Ltd. et al., [1994] 2 W.W.R. 43; 115 Sask.R. 272 (Q.B.), refd to. [para. 12].

Great Northern Railway Co. of Canada v. Cole Agencies Ltd. et al. (1964), 49 W.W.R.(N.S.) 153 (Sask. Q.B.), refd to. [para. 14].

Lackmanec v. Hoffman and Wall (1982), 15 Sask.R. 1 (C.A.), refd to. [para. 15].

Schmeichel v. Lane, Thatcher and Bern­ston (1982), 28 Sask.R. 311 (Q.B.), refd to. [para. 16].

Davies v. Dustan and Bank of Montreal (1980), 3 Sask.R. 1 (Q.B.), refd to. [para. 16].

B. & I. Contracting Ltd. v. Atamanenko (John) et al., [1987] Sask. D. 3702-02 (Q.B.), refd to. [para. 17].

Sagon v. Royal Bank of Canada et al. (1992), 105 Sask.R. 133; 32 W.A.C. 133 (C.A.), refd to. [para. 18].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304; 115 D.L.R.(3d) 1, refd to. [para. 19].

Roncarelli v. Duplessis, [1959] S.C.R. 121; 16 D.L.R.(2d) 689, dist. [para. 23].

Roman Corp. et al. v. Hudson's Bay Oil & Gas Co. et al., [1973] S.C.R. 820; 36 D.L.R.(3d) 413, refd to. [para. 26].

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. 29].

Milgaard v. Kujawa et al., [1994] 9 W.W.R. 305; 123 Sask.R. 164; 74 W.A.C. 164 (C.A.), refd to. [para. 30].

Association of Stop Construction of Raf­ferty Alameda Project Inc. v. Saskatchewan (Minister of Environment and Public Safety) and Souris Basin Development Authority (1988), 68 Sask.R. 52 (C.A.), refd to. [para. 32].

Native Women's Association of Canada et al. v. Canada et al. (1992), 57 F.T.R. 115 (T.D.), refd to. [para. 36].

Native Women's Association of Canada et al. v. Canada et al., [1994] 3 S.C.R. 627; 173 N.R. 241, refd to. [para. 36].

Native Women's Association of Canada et al. v. Canada et al. (1992), 145 N.R. 253 (F.C.A.), refd to. [para. 38].

Reference Re Constitutional Question Act (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241, refd to. [para. 44].

Reference Re Canada Assistance Plan Act - see Reference Re Constitutional Ques­tion Act (B.C.).

West Lakes Ltd. v. South Australia, [1980] 25 S.A.S.R. 389 (Aust. S.C.), refd to. [para. 46].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83; 33 D.L.R.(4th) 174; 38 C.C.L.T. 184; 25 C.R.R. 321; [1987] 1 W.W.R. 577; 87 C.L.L.C. 14,002, refd to. [para. 50].

R. v. Sterling (R.), Sterling (L.) and Ster­ling (T.) (1993), 113 Sask.R. 81; 52 W.A.C. 81; 84 C.C.C.(3d) 65 (C.A.), refd to. [para. 50].

R. v. T.S. (1994), 175 N.R. 135; 128 Sask.R. 16; 85 W.A.C. 16 (S.C.C.), refd to. [para. 50].

Canadian Broadcasting Corp. v. R. - see R. v. Sterling (R.), Sterling (L.) and Sterling (T.).

Canadian Broadcasting Corp. v. Sas­katchewan (Attorney General) (1993), 110 Sask.R. 222; 82 C.C.C.(3d) 84 (Q.B.), refd to. [para. 50].

Statutes Noticed:

Rules of Court (Sask.), Queen's Bench Rules, rule 173(a) [para. 9].

Authors and Works Noticed:

McKeague and Voroney, The Queen's Bench Rules of Saskatchewan: Annotated (1995), generally [para. 10].

Pilkington, M.L., Damages As a Remedy for Infringement of the Canadian Charter of Rights and Freedoms, [1984] 62 Can. Bar Rev. 517, pp. 555, 556 [para. 22].

Counsel:

R.H. McKercher, Q.C., for the plaintiffs;

G.L. Gerrand, Q.C., and Graeme Mitchell, for the defendants.

This application was heard before Barclay, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on May 10, 1995.