Tetzlaff v. Saskatchewan Water Corp. et al., (1993) 111 Sask.R. 81 (QB)

• Judge: Barclay, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: January 28, 1993
• Jurisdiction: Saskatchewan
• Citations: (1993), 111 Sask.R. 81 (QB)

Tetzlaff v. Water Corp. (1993), 111 Sask.R. 81 (QB)

MLB headnote and full text

Edelbert Tetzlaff and Harold Tetzlaff (plaintiffs-defendants by counterclaim) v. Saskatchewan Water Corporation and Souris Basin Development Authority (defendants-plaintiffs by counterclaim)

(1991 Q.B. No. 4277)

Edelbert Tetzlaff and Harold Tetzlaff (plaintiffs) v. Saskatchewan Water Corporation and Souris Basin Development Authority and the Government of Saskatchewan (defendants)

(1991 Q.B. No. 914)

Indexed As: Tetzlaff v. Saskatchewan Water Corp. et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Barclay, J.

January 28, 1993.

Summary:

The Saskatchewan Court of Queen's Bench made the following orders: 1) a consolida­tion of two actions, 2) adding the Minister of the Environment and Public Safety (Sask.) and the Saskatchewan Attorney General as defendants, 3) striking out the Government of Saskatchewan as a defendant, 4) dismissal of an application under Queen's Bench Rules 188 and 264 for summary determination of a matter and 5) dismissal of an application to strike out the counterclaim of Saskatchewan Water Corporation and Souris Basin Development Authority.

Crown - Topic 4401

Actions by and against Crown in right of a province - General - The Saskatchewan Court of Queen's Bench held: "... The Government of Saskatchewan is only properly named as a defendant when the plaintiff is seeking in personam, common law relief, against the Crown pursuant to The Proceedings against the Crown Act, R.S.S. 1978, c. P-27. Where the essence of the action is a declaratory action for judicial review, the proper defendant is the decision maker, which in the first case is the Minister [of the Environment and Public Safety] and in the second case is the Lieutenant-Governor in Council, rep­resented by The Attorney General for the Province of Saskatchewan." - See para­graphs 7 to 11.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds, failure to disclose a cause of action - The Tetzlaffs obtained an interim injunction temporarily forbidding the Saskatchewan Water Corporation (Sask. Water) and the Souris Basin Development Authority (Souris Basin) from building the Alameda dam - Sask. Water and Souris Basin counterclaimed for damages because of the delays caused by the injunction - The Tetzlaffs applied for striking out the counterclaim on the basis that it disclosed no reasonable cause of action and consti­tuted an abuse of the process of the Court - The Saskatchewan Court of Queen's Bench dismissed the application - See paragraphs 12 to 16.

Practice - Topic 5261

Trials, general - Trial of preliminary issues - Issues of law - The Saskatchewan Court of Queen's Bench dismissed an application for a determination of a point of law brought under Queen's Bench Rules 188 and 264 because: 1) there was no agreed statement of facts, 2) the issues of fact and law were complex and inter­mingled and involved issues of statutory and contractual interpretation, the jurisdic­tion of the Court of Queen's Bench, pro­cedural fairness and judicial review and 3) the determination of the points of law would not be determinative as the courts will still have to adjudicate on damages, including the defendants' counterclaim - See paragraphs 17 to 33.

Cases Noticed:

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304, refd to. [para. 10].

Dombek v. Law Society of Saskatchewan (1992), 107 Sask.R. 173 (Q.B.), refd to. [para. 20].

Govan Local School Board v. Last Moun­tain School Division No. 29, [1992] 2 W.W.R. 481 (Sask. C.A.), refd to. [para. 20].

Shields (Resort Village) v. Toronto-Dominion Bank, [1989] 2 W.W.R. 163; 69 Sask.R. 131 (C.A.), refd to. [para. 21].

Stagman v. Hamm, [1984] 5 W.W.R. 148; 34 Sask.R. 265; 12 D.L.R.(4th) 25 (C.A.), consd. [para. 21]; refd to. [para. 28].

Statutes Noticed:

Environmental Assessment Act, S.S. 1979-80, c. E-10.1, generally [para. 17].

International River Improvement Act, R.S.C. 1985, c. I-20, generally [para. 30].

Proceedings Against the Crown Act, R.S.S. 1978, c. P-27, generally [para. 10].

Rules of Court (Sask.), Queen's Bench Rules, rule 41(2) [para. 2]; rule 188 [para. 19]; rule 264 [paras. 17, 27].

Authors and Works Noticed:

McKeague and Voroney, The Queen's Bench Rules of Saskatchewan: Anno­tated, p. 254 [para. 28].

Sharpe, R.J., Injunctions and Specific Performance (2nd Ed. 1992), pp. 2-25 to 2-27 [para. 14].

Counsel:

A.J. Beke, Q.C., and J. Nugent, for the Tetzlaffs;

D.E. Gauley, Q.C., and R.G. Kennedy, for Saskatchewan Water Corp. and Souris Basin Development Authority;

B. Hornsberger, for the Government of Saskatchewan.

This case was heard at Saskatoon, Saskatchewan, by Barclay, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon.

Barclay, J., delivered the following deci­sion on January 28, 1993.