Saskatchewan Provincial Court Judges Association et al. v. Saskatchewan (Minister of Justice) et al., (1995) 137 Sask.R. 204 (CA)

• Judge: Bayda, C.J.S, Wakeling and Sherstobitoff, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: September 13, 1995
• Jurisdiction: Saskatchewan
• Citations: (1995), 137 Sask.R. 204 (CA);1995 CanLII 4062 (SK CA);1995 CanLII 4062 (BS SC);[1996] 2 WWR 129;137 Sask R 204

Provincial Court Judges v. Sask. (1995), 137 Sask.R. 204 (CA);

    107 W.A.C. 204

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 (appellants) v. The Minister of Justice for the Province of Saskatchewan, the Government of Saskatchewan and Robert W. Mitchell, Q.C., in his personal capacity (respondents)

(Appeal File No. C.A. 2177)

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

Saskatchewan Court of Appeal

Bayda, C.J.S, Wakeling and Sherstobitoff, JJ.A.

November 29, 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, in a decision reported 133 Sask.R. 115, allowed the application. The Judges' Associ­ation appealed.

The Saskatchewan Court of Appeal, per Bayda, C.J.S and Sherstobitoff, J.A., allowed the appeal in part, holding that the paragraph in its pres­ent form should be struck, but the Judges' Association was granted leave to amend the statement of claim. Wakeling, J.A., would have allowed the appeal in full.

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 Minister applied to strike out the claims against him in his personal capacity - The Saskatchewan Court of Appeal stated that the relevant paragraph in its present form failed to disclose a cause of action against the Minister in his personal capacity - The court granted the Judges' Association leave to amend its statement of claim where there was a possible claim for the torts of inducing a breach of contract and misfeasance in public office - See para­graphs 1 to 15.

Practice - Topic 2208

Pleadings - Striking out pleadings - Application for - Evidentiary limitations - The Saskatchewan Court of Appeal stated that "[t]he law is well settled that only the statement of claim itself, the particulars, if any, and any document referred to in the statement of claim, may be looked at to determine whether the statement of claim discloses a reasonable cause of action. The rule requires, as well, that the material facts in the statement of claim (but not allegations based on assumption and spec­ulation) must be taken as true." - See paragraph 2.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Practice - Topic 253 and Practice - Topic 2208 ].

Cases Noticed:

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 4 C.C.L.T.(2d) 1; 43 C.P.C.(2d) 105; 49 B.C.L.R.(2d) 273; 74 D.L.R.(4th) 321; [1990] 6 W.W.R. 385, refd to. [para. 2].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Operation Dismantle Inc. et al. v. Canada et al., [1985] 1 S.C.R. 441; 59 N.R. 1; 18 D.L.R.(4th) 481; 13 C.R.R. 287; 12 Admin. L.R. 16, refd to. [para. 2].

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. 4].

Kieling et al. v. Saskatchewan Wheat Pool (1992), 105 Sask.R. 11; 32 W.A.C. 11 (C.A.), refd to. [para. 4].

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. 4].

Ashby v. White (1703), 2 Ld. Raym. 938; 3 Ld. Raym. 320; 1 Smith's L.C.(13th) 253, refd to. [para. 12].

Roncarelli v. Duplessis, [1959] S.C.R. 121; 16 D.L.R.(2d) 689, refd to. [para. 12].

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. 12].

Authors and Works Noticed:

Fleming, John G., The Law of Torts (7th Ed. 1987), p. 651 [para. 10].

McGregor on Damages (15th Ed. 1988), generally [para. 6].

Wade and Forsyth, Administrative Law (7th Ed. 1994), pp. 789, 790 [para. 12].

Counsel:

R.H. McKercher, Q.C., and M. Ouellette, for the appellants;

G. Mitchell, for the respondents.

This appeal was heard on September 13, 1995, by Bayda, C.J.S., Sherstobitoff and Wakeling, JJ.A., of the Saskatchewan Court of Appeal. The decision of the court was delivered with written reasons on November 29, 1995, including the following opinions:

Bayda, C.J.S. (Sherstobitoff, J.A., con­curring) - see paragraphs 1 to 15;

Wakeling, J.A. - see para­graphs 16 to 19.