St. Brieux (Town) et al. v. Three Lakes No. 400 (Rural Municipality) et al., 2010 SKQB 73

• Judge: Foley, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 22, 2010
• Jurisdiction: Saskatchewan
• Citations: 2010 SKQB 73;(2010), 354 Sask.R. 187 (QB)

St. Brieux v. Three Lakes (2010), 354 Sask.R. 187 (QB)

MLB headnote and full text

Temp. Cite: [2010] Sask.R. TBEd. AP.015

The Town of St. Brieux, The R.M. of Lake Lenore No. 399, The Village of Lake Lenore, St. Brieux Realty Inc., The Lakeview Property Owners Association Ltd., Lake Lenore Wildlife Federation, and The St. Brieux Regional Park (plaintiffs/applicants) v. The Rural Municipality of Three Lakes No. 400, The Saskatchewan Watershed Authority and The Saskatchewan Ministry of the Environment (defendants/respondents)

(2009 Q.B.G. No. 628; 2010 SKQB 73)

Indexed As: St. Brieux (Town) et al. v. Three Lakes No. 400 (Rural Municipality) et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Foley, J.

February 22, 2010.

Summary:

The plaintiffs brought an action for relief from the "wrongful acts" of the defendants, which were alleged to have caused and continued to cause a flow of saline water into Lenore Lake, thereby damaging the interests of the plaintiffs, their members and constituents. The plaintiffs requested interlocutory and permanent injunctions, orders of mandamus, declarations of right, and damages against each defendant. The defendant Saskatchewan Watershed Authority moved to strike the statement of claim pursuant to Queen's Bench Rule 173(a) as disclosing no reasonable cause of action. The plaintiffs moved for interlocutory mandatory injunctions or interlocutory orders of mandamus.

The Saskatchewan Court of Queen's Bench dismissed the motions.

Administrative Law - Topic 3553

Judicial review - Mandamus - Conditions precedent - Existence of duty - [See Administrative Law - Topic 3589 ].

Administrative Law - Topic 3589

Judicial review - Mandamus - Bars - Discretionary power - The plaintiffs brought an action for relief from the "wrongful acts" of the defendants, which were alleged to have caused and continued to cause a flow of saline water into Lenore Lake - The plaintiffs brought an interlocutory motion for an order of mandamus against the defendant Saskatchewan Watershed Authority (SWA) - The Saskatchewan Court of Queen's Bench dismissed the application - The court stated that "Absent a legal duty, mandamus cannot lie ... The SWA has a wide discretion as to what approvals it does or does not grant and may approve prospectively and retrospectively. Thus, as this court will not issue mandamus unless the duty is without discretion, the mandamus application is dismissed" - See paragraphs 62 to 65.

Administrative Law - Topic 3756

Judicial review - Mandamus - Mandamus to public officials and boards - Respecting discretionary powers - [See Administrative Law - Topic 3589 ].

Injunctions - Topic 1604

Interlocutory or interim injunctions - General principles - Consideration of merits - [See first Injunctions - Topic 1607 ].

Injunctions - Topic 1607

Interlocutory or interim injunctions - General principles - Requirement of strong prima facie case or appearance of right - The plaintiffs brought an action for relief from the "wrongful acts" of the defendants, which were alleged to have caused and continued to cause a flow of saline water into Lenore Lake - The plaintiffs moved for interlocutory mandatory injunctions against the defendants - The plaintiffs suggested that in applying the first part of the RJR-MacDonald approach to determine the threshold tentative assessment of the merits of their case, the court should apply the standard of whether there was a "serious question to be tried" - The defendant Rural Municipality of Three Lakes No. 400 submitted that when a mandatory injunction was sought, the accepted threshold became one of establishing the significantly higher test of "a strong prima facie case" - The Saskatchewan Court of Queen's Bench held that the threshold to be established in this case was that of a strong prima facie case - See paragraphs 23 to 28.

Injunctions - Topic 1607

Interlocutory or interim injunctions - General principles - Requirement of strong prima facie case or appearance of right - The plaintiffs brought an action for relief from the "wrongful acts" of the defendants (Rural Municipality of Three Lakes No. 400, Saskatchewan Watershed Authority (SWA), and Saskatchewan Ministry of the Environment) which were alleged to have caused and continued to cause a flow of saline water into Lenore Lake - The plaintiffs moved for interlocutory mandatory injunctions against the defendants - The plaintiffs requested orders blocking drainage from certain smaller water bodies to Deadmoose and Houghton Lakes, and the blocking of the grid road culverts - Those actions were said to be the appropriate remedy to restore to the plaintiffs rights otherwise infringed - The Saskatchewan Court of Queen's Bench held that the plaintiffs failed to establish a strong prima facie case of the right asserted - The court stated that "The 'right' so restored results in converting the grid road into a dam. Presumably, the blocking of the Parker Slough and Mantrap, Flat and Murphy Lakes flow to Houghton Lake achieves a like result. This 'right' is not one recognized at law. It not only is inconsistent to the [Saskatchewan Watershed Authority] Act's fundamental principles, but to recognize that right and 'restore' it by injunction would be to transfer to this Court the discretion reposed in the SWA by the legislature" - See paragraphs 39 to 41.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose cause of action or defence - [See Practice - Topic 2233 ].

Practice - Topic 2233

Pleadings - Striking out pleadings - Grounds - Privilege or immunity - The plaintiffs brought an action for relief from the "wrongful acts" of the defendants, which were alleged to have caused and continued to cause a flow of saline water into Lenore Lake - The plaintiffs requested interlocutory and permanent injunctions, orders of mandamus, declarations of right, and damages - The defendant Saskatchewan Watershed Authority (SWA) moved to strike the statement of claim pursuant to rule 173(a) as disclosing no reasonable cause of action - SWA had pled that s. 95 of the Saskatchewan Watershed Authority Act provided SWA immunity from the plaintiffs' claim as the plaintiffs had not pleaded any allegations of bad faith by SWA - The plaintiffs amended their claim and filed a reply to the SWA defence to include a plea that SWA's actions were not done in good faith under s. 95 of the SWA Act, as well as particulars of such lack of good faith - The Saskatchewan Court of Queen's Bench dismissed SWA's motion - Without the additional pleas, the plaintiffs' claim might arguably have been said to disclose no reasonable cause of action, but upon the amendment and reply being made the claim plainly disclosed an arguable case - It was only upon the evidence being heard and arguments advanced in the main action that the court would make findings of fact upon which the issue of conduct in good faith could be determined - See paragraphs 11 to 19.

Waters - Topic 7501

Regulation - Flood control and drainage control - General - [See second Injunctions - Topic 1607 ].

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. 13].

Nelson et al. v. Saskatchewan et al., [2004] 3 W.W.R. 89; 235 Sask.R. 250; 2003 SKQB 265, refd to. [para. 17].

Hanbidge v. Saskatchewan et al. (2005), 270 Sask.R. 1; 2005 SKQB 328, refd to. [para. 17].

Mangels v. Society for the Prevention of Cruelty to Animals (Sask.) et al. (1986), 48 Sask.R. 249 (Q.B.), refd to. [para. 17].

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 23].

Young et al. v. Board of Education of Hudson Bay School Division No. 52 (2001), 210 Sask.R. 145; 2001 SKQB 376, refd to. [para. 25].

Potash Corp. of Saskatchewan Mining Ltd. v. Todd et al. (1987), 53 Sask.R. 165 (C.A.), refd to. [para. 26].

Carlson v. Carlson Holdings Ltd. et al. (2005), 264 Sask.R. 282 (Q.B.), refd to. [para. 29].

Traynor v. Unum Life Insurance Co. of America (2003), 172 O.A.C. 359; 65 O.R.(3d) 7 (Div. Ct.), refd to. [para. 30].

Signalta Resources Ltd. v. Land Petroleum International Inc. et al., [2007] A.R. Uned. 242; 2007 ABQB 290, refd to. [para. 31].

Good Shepherd Pharmacy Ltd. v. First Canadian Health Management Corp. et al. (2009), 239 Man.R.(2d) 278; 76 C.P.C.(6th) 386; 2009 MBQB 122, refd to. [para. 32].

Benjamin v. Toronto-Dominion Bank, [2006] O.T.C. 310; 80 O.R.(3d) 424 (Sup. Ct.), refd to. [para. 33].

Hanna et al. v. Board of Education of Sun West School Division No. 207 (2008), 319 Sask.R. 308; 2008 SKQB 315, refd to. [para. 34].

Metz et al. v. Board of Education of Prairie Valley School Division No. 208 (2007), 300 Sask.R. 161; 2007 SKQB 269, refd to. [para. 34].

Pratt v. Sheveck, [1926] 4 D.L.R. 1169 (Sask. C.A.), refd to. [para. 36].

Govan Local School Board v. Last Mountain School Division No. 29 (1991), 93 Sask.R. 229; 4 W.A.C. 229 (C.A.), refd to. [para. 37].

Baynton v. Mills et al. (2008), 313 Sask.R. 266; 2008 SKQB 108, refd to. [para. 37].

Dolan et al. v. Moose Jaw (City) (2008), 314 Sask.R. 301; 435 W.A.C. 301; 2008 SKCA 170, refd to. [para. 62].

Loffler et al. v. Board of Education of Prairie Valley School Division No. 208 (2009), 333 Sask.R. 245; 2009 SKQB 163, refd to. [para. 63].

Authors and Works Noticed:

Sullivan, Ruth, Sullivan and Driedger on the Construction of Statutes (4th Ed. 2002), p. 131 [para. 57].

Counsel:

G.J. Rangi Jeerakathil, for the plaintiffs;

Richard W. Danyliuk, Q.C., for the defendant, Saskatchewan Watershed Authority;

Gregory A. Thompson, Q.C., for the defendant, Rural Municipality of Three Lakes No. 400.

These motions were heard before Foley, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following fiat on February 22, 2010.