Roberts Properties Inc. v. Saskatchewan Power Corp. et al., 2014 SKQB 245

• Judge: Dawson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 13, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKQB 245;(2014), 453 Sask.R. 115 (QB)

Roberts Prop. Inc. v. Sask. Power (2014), 453 Sask.R. 115 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. SE.007

Brought under the Class Actions Act

Roberts Properties Inc. (plaintiff) v. Saskatchewan Power Corporation, City of Regina, City of Swift Current, and City of Saskatoon (defendants)

(2011 Q.B. No. 577; 2014 SKQB 245)

Indexed As: Roberts Properties Inc. v. Saskatchewan Power Corp. et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Dawson, J.

August 13, 2014.

Summary:

The plaintiff corporation applied to certify a class action on behalf of owners of properties designated by SaskPower as "bulk-metered service locations", claiming that they were overcharged for electrical services which also resulted in municipalities receiving higher surcharges. Thereafter, SaskPower and the cities moved to strike the pleadings, and if successful, sought double costs under former rule 173. The motions were heard immediately prior to the certification application.

The Saskatchewan Court of Queen's Bench allowed the motions to strike. As the plaintiff's claim was struck in its entirety, the action was uncertifiable. The defendants were entitled to their costs in accordance with former rule 173.

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) - [See Practice - Topic 2231 ].

Practice - Topic 210.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Costs - The defendants were successful in having the plaintiff's pleadings in a proposed class action struck pursuant to former rule 173 - The motions to strike were brought after the certification application was filed and heard immediately prior to the certification application - An issue arose as to whether s. 40 of the Class Actions Act precluded the defendants from recovering double costs under former rule 173 - The Saskatchewan Court of Queen's Bench held that s. 40 did not prohibit an award of costs, where a separate application was considered by the court prior to certification, even if they were argued at the same time - The defendants were entitled to costs in accordance with rule 173 - See paragraphs 79 to 94.

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - The plaintiff applied to certify a class action on behalf of owners of properties designated by SaskPower as "bulk-metered service locations", claiming that they were overcharged for electrical services which also resulted in municipalities receiving higher surcharges - SaskPower and the cities moved to strike the pleadings, arguing that the plaintiff's allegation that the rate schedule was not available as required by the Power Corporation Act was frivolous or vexatious, or an abuse of process (former rules 173(c) and (e)) - If that allegation was struck, then the entirety of the plaintiff's claim had to be struck as disclosing no reasonable cause of action (former rule 173(a)) - The Saskatchewan Court of Queen's Bench allowed the motion to strike - The plaintiff's assertion that the rate schedule was unavailable was factually devoid of merit - The action was, therefore, uncertifiable - See paragraphs 17 to 78.

Practice - Topic 2239.1

Pleadings - Striking out pleadings - Grounds - Abuse of process - Hopeless suit - [See Practice - Topic 2231 ].

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. 20].

G.S. v. Canada (Attorney General) et al. (2001), 211 Sask.R. 164; 2001 SKQB 427, refd to. [para. 21].

St. Pierre v. Bigstone et al. (2011), 371 Sask.R. 35; 518 W.A.C. 35; 2011 SKCA 34, refd to. [para. 23].

Schneider v. Royal Crown Gold Reserve Inc. et al. (2012), 392 Sask.R. 199; 2012 SKQB 111, refd to. [para. 23].

Frey et al. v. BCE Inc. et al. (2006), 282 Sask.R. 35; 2006 SKQB 331, refd to. [para. 23].

Longtin et al. v. Longtin Estate, [2007] O.T.C. Uned. 802 (Sup. Ct.), refd to. [para. 26].

Eli Lilly et al. v. Apotex Inc., [2002] F.T.R. Uned. 639; 21 C.P.R.(4th) 360; 2002 FCT 1007, refd to. [para. 26].

Aboo v. Mota, [2010] Sask.R. Uned. 179; 2010 SKQB 368, refd to. [para. 26].

Tokarski v. Canada, 2012 TCC 115, refd to. [para. 40].

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. 48].

Alves et al. v. MyTravel Canada Holidays Inc. et al. (2010), 348 Sask.R. 23; 2010 SKQB 104, refd to. [para. 50].

Alves et al. v. MyTravel Canada Holidays Inc. et al. (2011), 377 Sask.R. 27; 528 W.A.C. 27; 2011 SKCA 118, refd to. [para. 50].

Alves v. First Choice Canada Inc. - see Alves et al. v. MyTravel Canada Holidays Inc. et al.

Larden v. Canada et al. (1998), 145 F.T.R. 140 (T.D.), refd to. [para. 50].

Kerr v. Baranow, [2011] 1 S.C.R. 269; 411 N.R. 200; 300 B.C.A.C. 1; 509 W.A.C. 1; 274 O.A.C. 1; 2011 SCC 10, refd to. [para. 52].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128; 2004 SCC 25, refd to. [para. 53].

Gladstone v. Canada (Attorney General), [2005] 1 S.C.R. 325; 332 N.R. 182; 210 B.C.A.C. 1; 348 W.A.C. 1; 2005 SCC 21, refd to. [para. 53].

Ermineskin Indian Band and Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [2009] 1 S.C.R. 222; 384 N.R. 203; 2009 SCC 9, refd to. [para. 53].

Mack et al. v. Canada (Attorney General) (2002), 165 O.A.C. 17; 60 O.R.(3d) 737; 217 D.L.R.(4th) 583 (C.A.), refd to. [para. 53].

Saskatchewan Crop Insurance Corp. v. Deck (2008), 307 Sask.R. 206; 417 W.A.C. 206; 2008 SKCA 21, refd to. [para. 53].

Jackson v. Canadian National Railway Co. et al. (2012) 555 A.R. 1; 73 Alta. L.R.(5th) 219; 2012 ABQB 652, refd to. [para. 53].

Mountford v. Scott, [1975] 1 All E.R. 198 (C.A.), refd to. [para. 64].

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. 68].

Alves et al. v. MyTravel Canada Holidays Inc. et al. (2011), 377 Sask.R. 68; 528 W.A.C. 68; 2011 SKCA 116, refd to. [para. 86].

Roussy v. Red Seal Vacations Inc. - see Alves et al. v. MyTravel Canada Holidays Inc. et al.

Alves et al. v. MyTravel Canada Holidays Inc. et al. (2011), 377 Sask.R. 55; 528 W.A.C. 55; 2011 SKCA 117, refd to. [para. 88].

Alves v. Red Seal Vacations Inc. - see Alves et al. v. MyTravel Canada Holidays Inc. et al.

McKinnon v. Martin No. 122 (Rural Municipality) et al. (2011), 382 Sask.R. 102; 2011 SKQB 313, refd to. [para. 89].

Seidel v. Telus Communications Inc., [2009] B.C.A.C. Uned. 70; 96 B.C.L.R.(4th) 24; 2009 BCCA 383, refd to. [para. 90].

Consumers' Association of Canada et al. v. Coca-Cola Bottling Co. et al. (2007), 243 B.C.A.C. 313; 401 W.A.C. 313; 243 B.C.L.R.(4th) 243; 2007 BCCA 356, refd to. [para. 90].

Campbell et al. v. Canada (Attorney General) et al., [2013] 4 F.C.R. 234; 427 N.R. 371; 2012 FCA 45, refd to. [para. 91].

Statutes Noticed:

Class Actions Act, S.S. 2001, c. C-12.01, sect. 40 [para. 80].

Power Corporation Act, R.S.S. 1978, c. P-19, sect. 8(4), sect. 8(5) [para. 24].

Rules of Court (Sask.), Queen's Bench Rules, rule 173 [para. 80]; rule 173(a) [para. 47]; rule 173(c), rule 173(e) [para. 19].

Counsel:

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

Robert W. Leurer, Q.C., and Khurrum Awan, for the defendant, Saskatchewan Power Corporation;

Christine Clifford, for the defendant, City of Regina;

Murray Walter, Q.C., for the defendant, City of Swift Current;

Barry Rossman, for the defendant, City of Saskatoon.

This matter was heard by Dawson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following reasons on August 13, 2014.