Rubbert v. Boxrud, 2014 SKQB 221

• Judge: Elson, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: Thursday July 17, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKQB 221;(2014), 450 Sask.R. 147 (QB)

Rubbert v. Boxrud (2014), 450 Sask.R. 147 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. JL.069

Her Majesty the Queen in Right of Lorin Rubbert (plaintiff) v. Peggy Boxrud (defendant)

(2013 Q.B.G. No. 1033)

Her Majesty the Queen in Right of Lorin Rubbert (plaintiff) v. Corey Duncan (defendant)

(2013 Q.B.G. No. 1047; 2014 SKQB 221)

Indexed As: Rubbert v. Boxrud

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Elson, J.

July 17, 2014.

Summary:

The plaintiff, styled as "Her Majesty the Queen in Right of Lorin Rubbert", sued Boxrud and Duncan (public officials), seeking judgments for large sums of money. The defendants questioned the bona fides of the actions and applied to strike on the cumulative grounds that they were frivolous, vexatious, scandalous, an abuse of the court's process and/or failed to disclose a reasonable cause of action. In addition to the stated grounds, the court asked the parties to address whether there was a basis in law for the plaintiff, as named, to exist and, if not, should the actions be regarded as nullities.

The Saskatchewan Court of Queen's Bench declared both actions to be nullities and directed that they be struck. Although the applications did not specifically address this issue, the court was satisfied that the declaration and direction could be made pursuant to the court's inherent jurisdiction to govern its process. Alternatively, both actions were frivolous, vexatious and an abuse of the court's process, and could be struck on those grounds. In the further alternative, the action brought by the named plaintiff against Boxrud failed to disclose a reasonable cause of action and could also be struck on that basis. Had a similar application been brought respecting the claim against Duncan, the court would have made a similar direction in that action. The court did not find the action against Boxrud to be scandalous within the meaning of Queen's Bench rule 7-9. Despite finding that the named plaintiff did not exist in law, the court found that Mr. Lorin Rubbert was responsible, in one form or another, for both actions having been issued. Accordingly, it awarded the taxable costs incurred by both defendants, against him, in both the application and each action.

Contracts - Topic 8

General principles - General - Unilateral v. bilateral contracts (incl. what constitutes a unilateral contract) - The plaintiff, styled as "Her Majesty the Queen in Right of Lorin Rubbert", sued Boxrud and Duncan (public officials), seeking judgments for large sums of money - The Saskatchewan Court of Queen's Bench held that both actions were nullities and void ab initio because the plaintiff did not exist in law - Alternatively, the court held, inter alia, that the action against Boxrud, failed to disclose a reasonable cause of action (no similar application made in the Duncan action) - Giving the named plaintiff the benefit of the doubt, the court presumed that the action was based on contract - However, the claim did not contain any material facts to support the basic elements necessary to establish a contract - Firstly, and most importantly, it did not disclose any agreement or consensus ad idem between either the named plaintiff or Lorin Rubbert and Boxrud - There were no material facts to suggest that Boxrud and the named plaintiff agreed on anything - At best, one might read the claim as alleging that the named plaintiff imposed an obligation against Boxrud and presumed her agreement by her failure to rebut or renounce the obligation - This did not create an enforceable contract - Secondly, the claim disclosed no consideration flowing from the named plaintiff to Boxrud - It contained no material facts to assert that the named plaintiff had performed any service or provided anything else of value which could arguably support a claim in contract - The pleading was another example of a tactic employed by individuals who had come to be known in Canadian courts as "Organized Pseudolegal Commercial Argument" ("OPCA") litigants, namely the so-called "foisted unilateral agreement" or "commercial lien" - The court rejected this, and other, OPCA tactics - The only contract created by a public official's employment was with his/her employer - While individuals, such as Rubbert might be beneficiaries of, or subject to, actions of these public officials in the course of their employment, no direct contract between them arose - There was no enforceable privity of contract - See paragraphs 52 to 55 and 67.

Contracts - Topic 1163

Formation of contract - Privity of contract - Requirement of existence of - [See Contracts - Topic 8].

Contracts - Topic 1503

Formation of contract - Consensus or agreement - What constitutes a consensus necessary for a binding contract - [See Contracts - Topic 8].

Courts - Topic 554.1

Judges - Powers - To control "organized pseudolegal commercial argument" litigants - The plaintiff, styled as "Her Majesty the Queen in Right of Lorin Rubbert", sued two public officials, seeking judgments for large sums of money - The Saskatchewan Court of Queen's Bench held that both actions were nullities and void ab initio because the plaintiff did not exist in law - It directed that the actions be struck - The court noted that the description of the plaintiff in these actions, along with other variously formed references to Lorin Rubbert, was reminiscent of the so-called "double/split person" tactic employed by individuals who had come to be known in Canadian courts as "Organized Pseudolegal Commercial Argument" litigants - The court rejected these tactics, stating that their use in this case reinforced its conclusion that both actions were nullities - See paragraphs 22 to 26.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction - [See second Practice - Topic 2389].

Practice - Topic 5

General principles and definitions - Nature and interpretation of practice rules - Queen's Bench Rule 7-9 provided that: "(1) If the circumstances warrant and one or more conditions pursuant to subrule (2) apply, the Court may order one or more of the following: (a) that all or any part of a pleading or other document be struck out; (b) that a pleading or other document be amended or set aside; (c) that a judgment or an order be entered; (d) that the proceeding be stayed or dismissed. (2) The conditions for an order pursuant to subrule (1) are that the pleading or other document: (a) discloses no reasonable claim or defence, as the case may be; (b) is scandalous, frivolous or vexatious; (c) is immaterial, redundant or unnecessarily lengthy; (d) may prejudice or delay the fair trial or hearing of the proceeding; or (e) is otherwise an abuse of process of the Court." - The Saskatchewan Court of Queen's Bench stated that "Given the similarity in wording between Rule 7-9 and the former Rule 173, it is not unreasonable to give due regard to the jurisprudence which has developed under the former Rule. [However], it is also important for both the court and counsel to consider the extent to which the foundational rules, introduced with the current Rules and set out in Part 1, might impact the interpretation of Rule 7-9. In particular, and in the context of the present applications, I believe regard must be given to Rules 1-3, 1-5 and 1-7 of the current Queen's Bench Rules... [T]he foundational rules require the court to interpret Rule 7-9 in a way that is consistent with the purpose of a just, timely and cost effective resolution, and with the intention, inter alia, of providing an effective, efficient and credible system of remedies and sanctions so as to give force and effect to the court's rules, orders and judgments. This requirement was not expressly stipulated in the former Rules. Accordingly, it would not be unreasonable to conclude that the court's jurisdiction in this respect, while not directly dissimilar, is now somewhat more nuanced in that it is obliged to give greater consideration to concepts of proportionality. In certain circumstances, this may provide a court with greater latitude and justification to impose a remedy under Rule 7-9 than would be the case under former Rule 173." - See paragraphs 35 and 36.

Practice - Topic 2101

Pleadings - Amendment of pleadings - General principles - [See Practice - Topic 5].

Practice - Topic 2103

Pleadings - Amendment of pleadings - To remedy deficiency - [See Practice - Topic 5].

Practice - Topic 2106

Pleadings - Amendment of pleadings - Power of the court to amend - [See Practice - Topic 5].

Practice - Topic 2200

Pleadings - Striking out pleadings - General principles - [See Practice - Topic 5].

Practice - Topic 2201

Pleadings - Striking out pleadings - Jurisdiction - [See Practice - Topic 5].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Contracts - Topic 8].

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - The Saskatchewan Court of Queen's Bench discussed the meaning of the phrase "frivolous, vexatious and an abuse of the court's process" as found in rule 7-9 of the Queen's Bench Rules - The court held, inter alia, that in considering the application of rules 7-9 (2)(b) and (e), the court could consider the grounds, "frivolous", "vexatious", and "abuse of process", either separately or in conjunction with each other, bearing in mind the degree of overlap which existed - Whether considered conjunctively or separately, the terms "frivolous", "vexatious" and "abuse of process", carried the implication of an improper purpose or motive on the part of the party who asserted the allegations in the challenged pleading - It necessarily followed that the party had to be presumed to have some knowledge that his/her claim was without merit and/or was pursued for a purpose other than the legitimate goal of attaining an available remedy - The party seeking to strike the pleading was obliged to establish this knowledge or purpose objectively - See paragraphs 37 to 46.

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - The Saskatchewan Court of Queen's Bench struck two actions as frivolous, vexatious and an abuse of the court's process - The court held that "A reasonable person, properly apprised of the facts, would not regard either of these actions as bona fide. From the uncontradicted evidence, it is clear that the claims are pursued for the sole purpose of harassing two public servants simply because the claimant took exception to the manner in which they did their jobs. Citizens who have legitimate complaints about the manner in which judgments are enforced or taxes are assessed and collected, have every right to voice their complaints in ways which are recognized by law. They do not have the right to clog the courts with meritless claims designed to harass or penalize individuals who are simply doing their jobs." - See paragraph 46.

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - The Saskatchewan Court of Queen's Bench discussed the meaning of the term "scandalous" - The court held that it had to be viewed differently than the other grounds of "frivolous, vexatious and an abuse of the court's process" on an application under Queen's Bench Rule 7-9 - The court stated that "When assessing a claim or defence alleged to be scandalous, one is concerned about the extent to which it contains irrelevant allegations that are needlessly embarrassing and will have an untoward effect on the progress of the litigation. More often than not, the assessment is directed only to portions of the document, and not the entire pleading, itself. In other words, its assumed the case, as otherwise described, will carry on but that the scandalous portion of the pleading would hinder its progress." - See paragraph 48.

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - [See first and second Practice - Topic 2231].

Practice - Topic 2389

Writs of summons, endorsements, originating summons and originating notices - Nullities and irregularities - What constitutes a nullity - The Saskatchewan Court of Queen's Bench stated that "a nullity differs substantively from a proceeding that is merely irregular. An irregularity exists where the flaw in the proceeding does not affect its essential validity and can be corrected. Such proceedings are not void from the outset, but they may well be voidable if left uncorrected. It is rare for a court to find an action to be a nullity. This was not always so. In earlier times, court proceedings often demanded unforgiving statutory obligations, including requirements for service or specific preconditions before they could be commenced. Failure to meet these requirements or preconditions would nullify the proceeding. Over time, these obligations have lessened somewhat or become more forgiving, primarily through legislative change. ... Despite these legislative changes, certain basic requirements remain. One such requirement is that named parties to an action must exist in law and possess the necessary capacity to sue or be sued. If there is no such existence and/or capacity, no statutory ability to correct or forgive the deficiency, the proceeding is a nullity." - See paragraphs 15 to 17.

Practice - Topic 2389

Writs of summons, endorsements, originating summons and originating notices - Nullities and irregularities - What constitutes a nullity - The plaintiff, styled as "Her Majesty the Queen in Right of Lorin Rubbert", issued a statement of claim against each of the two defendants (public officials), seeking judgments for large sums of money - The Saskatchewan Court of Queen's Bench held that both actions were nullities and void ab initio - There was simply no basis in law for the named plaintiff to exist - Labelled in this way, the author of the claim had improperly sought to give the claimant a form of sovereign status by attaching the Crown's authority to the right of an individual - Absent the appropriate constitutional basis, none of the Crown's power and authority was divided in favour of, or distributable to, an individual - A plaintiff, named as the Crown in the exercise of an individual's right, did not exist in law - As the actions never had any form or effect recognizable by law, the defendants need not have served or filed statements of defence - However, the fact that they did so was of no consequence in that it was not possible for a nullity to be waived - The court directed that both actions be struck - Although the applications did not specifically address the issue, the declaration and direction could be made pursuant to the court's inherent jurisdiction to govern its process - See paragraphs 14 to 21.

Practice - Topic 2393

Writs of summons, endorsements, originating summons and originating notices - Nullities and irregularities - What constitutes an irregularity - [See first Practice - Topic 2389].

Practice - Topic 5361

Dismissal of action - Grounds - General and want of prosecution - Abuse of process - [See first and second Practice - Topic 2231].

Practice - Topic 5370

Dismissal of action - Grounds - General and want of prosecution - Frivolous or vexatious actions - [See first and second Practice - Topic 2231].

Cases Noticed:

1036122 Alberta Ltd. v. Khurana (2012), 519 A.R. 221; 539 W.A.C. 221; 2012 ABCA 10, refd to. [para. 16].

International Alliance of Theatrical Stage Employees, Local 58 v. Canadian Broadcasting Corp., [1972] 1 O.R. 161; 22 D.L.R.(3d) 413 (Ont. H.C.), refd to. [para. 18].

Tatum Farms Ltd. v. Miller Hatcheries Ltd. (1987), 60 Sask.R. 50 (C.A.), dist. [para. 19].

Montreal Trust Co. v. South Shore Lumber Co., [1924] 1 D.L.R. 1030; [1924] 1 W.W.R. 657 (B.C.C.A.), refd to. [para. 20].

Meads v. Meads (2012), 543 A.R. 215; 2012 ABQB 571, refd to. [para. 22].

Minister of National Revenue v. Stanchfield (2009), 340 F.T.R. 150; 2009 FC 99, refd to. [para. 25].

Montreal Trust Co. of Canada v. Jaynell Inc. et al. (1993), 111 Sask.R. 178 (Q.B.), affd. (1993), 116 Sask.R. 13; 59 W.A.C. 13 (C.A.), refd to. [para. 34].

Ellis v. Canada (Office of the Prime Minister) - see Ellis v. Chretien.

Ellis v. Chretien (2001), 210 Sask.R. 138; 2001 SKQB 378, affd. (2002), 223 Sask.R. 117; 277 W.A.C. 117; 112 A.C.W.S.(3d) 849; 2002 SKCA 35, refd to. [para. 34].

RoyNat Inc. v. Northland Properties Ltd. et al., [1994] 2 W.W.R. 43; 115 Sask.R. 272 (Q.B.), refd to. [para. 34].

Sagon v. Royal Bank of Canada et al. (1992), 105 Sask.R. 133; 32 W.A.C. 133 (C.A.), appld. [para. 35].

Ross v. Eastbourne Investments Ltd. et al. (1994), 124 Sask.R. 97 (Q.B.), refd to. [para. 38].

Kichula v. Farm Credit Corp. (1991), 95 Sask.R. 245 (Q.B.), refd to. [para. 38].

Chisum Log Homes & Lumber Ltd. et al. v. Investment Saskatchewan Inc. et al. (2007), 303 Sask.R. 174; 2007 SKQB 368, refd to. [para. 40].

C & J Hauling Ltd. v. Mistik Management Ltd. (2010), 351 Sask.R. 199; 2010 SKQB 60, refd to. [para. 41].

Akin (J.C.) Architect Ltd. et al. v. Reisinger et al. (2012), 398 Sask.R. 149; 2012 SKQB 225, affd. (2013), 417 Sask.R. 18; 580 W.A.C. 18; 2013 SKCA 60, leave to appeal refused (2013), 457 N.R. 395 (S.C.C.), refd to. [para. 42].

Tamarak Energy Inc. v. Ipsco Inc. et al. (1999), 185 Sask.R. 161; 1999 SKQB 125, refd to. [para. 42].

Bank of Montreal v. Woydon, [1986] 4 W.W.R. 69; 48 Sask.R. 52 (Q.B.), refd to. [para. 42].

Westman Contracting Ltd. v. McMillan Bros. Ltd., [1985] S.J. No. 291 (Q.B.), refd to. [para. 42].

White Fox Alfalfa Seed Growers Co-operative Marketing Association v. A.E. McKenzie Co. [1940] 3 W.W.R. 433 (Sask. Q.B.), refd to. [para. 49].

Ghitter (Ron) Property Consultants Ltd. v. Beaver Lumber Co. (2003), 330 A.R. 353; 299 W.A.C. 353; 2003 ABCA 221, refd to. [para. 60].

Statutes Noticed:

Rules of Court (Sask.), Queen's Bench Rules, rule 173 [para. 33].

Rules of Court (Sask.), Queen's Bench Rules (2013), rule 1-3(1), rule 1-3(2)(e), rule 1-3(4), rule 1-5, rule 1-7 [para. 35]; rule 7-9 [para. 32].

Authors and Works Noticed:

Adask, Alfred, Article in AntiShyster Magazine (January/February 1993), generally [para. 58].

Counsel:

No one appearing for the named plaintiff;

Gordon Berscheid, for Corey Duncan;

Charita Ohashi, for Peggy Boxrud.

This case was heard by Elson, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following decision on July 17, 2014.