Tembec Industries Inc. v. Parisian et al., (2006) 209 Man.R.(2d) 230 (QB)

• Judge: Kaufman, J.
• Court: Court of Queen's Bench of Manitoba (Canada)
• Case Date: October 30, 2006
• Jurisdiction: Manitoba
• Citations: (2006), 209 Man.R.(2d) 230 (QB);2006 MBQB 248

Tembec Ind. Inc. v. Parisian (2006), 209 Man.R.(2d) 230 (QB)

MLB headnote and full text

Temp. Cite: [2006] Man.R.(2d) TBEd. NO.026

Tembec Industries Inc. (plaintiff) v. Darrell Parisian, Angela Enright, Brian Ryall and William Borlase (defendants)

Darrell Parisian, Angela Enright, Brian Ryall and William Borlase on their own behalf; and Darrell Parisian, Brian Ryall and William Borlase as Representatives of All Members of the Townsite of Pine Falls, Manitoba, Entitled to Vote and All Members of that Community given notice to pay money based on Property Assessments between January 26, 2000 and May 1, 2005, except Tembec Industries Inc., Tembec Inc., Judy Chura-Habing, Dan Boyer, Reg Hawkins, Denis Beausejour, Alan Duff, Jean-Paul Pelland, Sean Kemball and Jack Shwaluk (plaintiffs by counterclaim) v. Tembec Industries Inc. and Tembec Inc. (defendants by counterclaim)

(CI 04-01-39485; 2006 MBQB 248)

Indexed As: Tembec Industries Inc. v. Parisian et al.

Manitoba Court of Queen's Bench

Winnipeg Centre

Kaufman, J.

October 30, 2006.

Summary:

The plaintiff corporation owned the paper mill and most of the land and houses in the community of Pine Falls. Since 1950, it supplied municipal services and the residents paid a service fee. A transition period started in 2000 during which the plaintiff was to divest itself of much of the property, which would then be added to an adjoining municipality. The defendants were elected to the Pine Falls Advisory Council, which was to assist in the provision of services during the transition period. The plaintiff filed a statement of claim, requesting orders with respect to custody and retrieval of property, as well as an accounting and return of money from the defendants. The defendants filed a counterclaim, alleging, inter alia, trespass to land and chattels, conversion, breach of contract, breach of fiduciary duty and breach of trust. The style of cause referred to the defendants on their own behalf and three of the defendants as representatives of all members of the Townsite of Pine Falls who were entitled to vote and all members of that community given notice to pay money based on property assessments between January 26, 2000 and May 1, 2005. The plaintiff applied to strike the counterclaim pursuant to rule 25.11 of the Queen's Bench Rules. The defendants applied to certify the counterclaim as a class action.

The Manitoba Court of Queen's Bench dismissed the applications.

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) - The plaintiff corporation owned the paper mill and most of the land and houses in Pine Falls - It supplied municipal services and the residents paid a service fee - A transition period started in 2000 during which the plaintiff was to divest itself of much of the property - The defendants were elected to the Pine Falls Advisory Council (PFAC), which was to assist in the provision of services during the transition - The plaintiff sought orders respecting custody and retrieval of property and an accounting and return of money from the defendants - The defendants counterclaimed, alleging, inter alia, trespass, conversion, breach of contract, breach of fiduciary duty and breach of trust - The style of cause referred to the defendants on their own behalf and three of the defendants as representatives of members of the Townsite of Pine Falls - The defendants sought to certify the counterclaim as a class action - The Manitoba Court of Queen's Bench dismissed the application - A precondition of a class action was that there be individual claims by members of the proposed class that were amalgamated in the class action by virtue of common issues - The only allegations that could give rise to individual causes of action had to do with money given to the PFAC which was allegedly appropriated by the plaintiff or money which the plaintiff demanded and received from members of the proposed class - That possible claim had two problems - First, the defendants alleged that they held property and monies on behalf of members of the unincorporated association of Pine Falls as trustees - As trustees they could sue for the recovery of monies and subsequently account to the members of the association - Second, the plaintiff's action alleged that the defendants should account for monies that they received from the "ratepayers" - To allow the defendants to force members of the proposed class to side with them in effect precluded class members from independently pursuing the defendants for an accounting - See paragraphs 70 to 75.

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) - The Manitoba Court of Queen's Bench dismissed the defendants' application to certify their counterclaim as a class action - Among other things, the court considered the difficulties in amalgamating complex causes of action that were unique to the defendants collectively or individually with several of the causes of action that might legitimately be potential claims by members of the class - While the combination of such causes of action was not fatal to certifications of class proceedings, the number and complexity of the actions militated against a class proceeding as an efficient and economical way of dealing with the causes of action that might be particular to members of the class alone - See paragraph 76.

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - The plaintiff applied to strike the defendants' counterclaim pursuant to rule 25.11 of the Queen's Bench Rules - The plaintiff submitted that the counterclaim was composed almost entirely of evidence and argument and was impossible to respond to rendering it frivolous, vexatious and an abuse of the court process, that the counterclaim was so broad and vague that it ought to be struck, and that the counterclaim was without any justification at law and was designed to annoy or embarass - The Manitoba Court of Queen's Bench dismissed the application - The counterclaim breached the rules of pleading in many places - However, despite the flaws, there were sufficient causes of action alleged that the claim should not be struck out - See paragraphs 56 to 58.

Practice - Topic 2238

Pleadings - Striking out pleadings - Grounds - Prejudice, embarrass or delay fair trial - [See Practice - Topic 2231 ].

Practice - Topic 2239

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

Cases Noticed:

Anderson v. Investors Group Financial Services Inc. et al., [2001] Man.R.(2d) Uned. 146; 2001 MBQB 295 (Master), refd to. [para. 46].

Aon Consulting Inc. v. Middleton et al. (1998), 133 Man.R.(2d) 1 (Q.B.), refd to. [para. 46].

Paszkowski v. Cross Lake First Nation and Beardy (1995), 106 Man.R.(2d) 7 (Q.B. Master), refd to. [para. 46].

Ishmael v. Langtry, [1994] M.J. No. 116 (Q.B. Master), refd to. [para. 48].

57655 Manitoba Ltd. et al. v. Iliffe et al., [1991] M.J. No. 240 (Q.B.), refd to. [para. 49].

R.I.S. Equities Inc. et al. v. Spivak et al. (1992), 78 Man.R.(2d) 230; 16 W.A.C. 230 (C.A.), refd to. [para. 49].

Moss (Bankrupt), Re (2004), 198 Man.R.(2d) 95; 2004 MBQB 265 (Reg.), refd to. [para. 51].

57655 Manitoba Ltd. et al. v. Iliffe et al. (1988), 57 Man.R.(2d) 276 (Q.B.), refd to. [para. 52].

Moss (Bankrupt), Re (1999), 137 Man.R.(2d) 199 (Q.B.), refd to. [para. 53].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 54].

Mathias Colomb Indian Band et al. v. Saskatchewan Power Corp. et al. (1994), 92 Man.R.(2d) 105; 61 W.A.C. 105 (C.A.), refd to. [para. 55].

Walls et al. v. Bayer Inc. (2005), 189 Man.R.(2d) 262; 2005 MBQB 3, refd to. [para. 61].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 2001 SCC 46, refd to. [para. 61].

Paton-Holstock et al. v. Independent Order of Foresters (2004), 5 C.P.C.(6th) 64 (Ont. Sup. Ct.), refd to. [para. 65].

Bellaire v. Independent Order of Foresters - see Paton-Holstock et al. v. Independent Order of Foresters.

Soldier v. Canada (Attorney General) (2006), 200 Man.R.(2d) 216; 2006 MBQB 50, refd to. [para. 67].

Lameman et al. v. Canada (Attorney General) (2004), 365 A.R. 1; 43 Alta. L.R.(4th) 41; 2004 ABQB 655, refd to. [para. 67].

Papachase Indian Band v. Canada (Attorney General) - see Lameman et al. v. Canada (Attorney General).

Authors and Works Noticed:

Branch, Ward K., Class Actions in Canada, generally [para. 63]; p. 3-1 [para. 65].

Counsel:

J.A. Kagan, for the plaintiff/defendants by counterclaim;

D.G. Newman, Q.C., for the defendants/plaintiffs by counterclaim.

These applications were heard before Kaufman, J., of the Manitoba Court of Queen's Bench, Winnipeg Centre, who delivered the following judgment on October 30, 2006.