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R. (M.L.) V. DUECK
QB02124 Date of Judgment: April 1, 2002 Number of Pages: 14
2002 SKQB 113
Q.B.G. A.D. 2001 No. 2381 J.C.S.
IN THE QUEEN'S BENCH
JUDICIAL CENTRE OF SASKATOON
BETWEEN:
M. L. R. P. K. SR. PLAINTIFFS
- and -
BRIAN GEORGE DUECK, CAROL BUNKO-RUYS, DIANE ENS, PROVINCE OF SASKATCHEWAN, LIZ NEWTON, ANITA GROSS, DARYL LABACH, CAROL MIDDLETON, JANET MATKOWSKI, WILF TUCKER, MATHEW MIAZGA, SONIA HANSON, STAFF SERGEANT JOHNSON, JAY WATSON (SOLICITOR), PROVINCE OF SASKATCHEWAN, RICHARD QUINNEY, DR. JOEL YELLAND, SASKATOON BOARD OF POLICE COMMISSIONERS, SHEILA GAGNE, MARYLYN THOMPSON, LYLE THOMPSON, RON SHINDELL, MARV HANSON, JIM WALKER, (UNKNOWN EMPLOYED POLICE OFFICER #1), HITCHINGS, GREG WALEN DEFENDANTS
[M.L.R.] appearing on behalf of himself as a respondent (plaintiff)
[P.K.] Sr. appearing on behalf of himself as a respondent (plaintiff)
Donald A. McKillop, Q.C. appearing on behalf of the defendants (applicants), Bunko-Ruys, Ens, Province of Saskatchewan, Newton, Gross, Quinney, Tucker, Miazga, S. Hanson and Gagne
David A. Gerrand appearing on behalf of the defendants (applicants), Dueck, Johnson, Saskatoon Board of Police Commissioners, Shindell, M. Hanson, Walker, Unknown Police Officer #1 and Hitchings
Thomas J. Schonhoffer appearing on behalf of the defendants (applicants), Labach, Watson and Walen
FIAT DOVELL J.
April 1, 2002
[1] Three applications have been made by various defendants to this action to have the plaintiffs' 92-paragraph statement of claim in which they are claiming $2,000,000 in punitive and exemplary damages alone struck pursuant to Rule 173 of the Saskatchewan Queen's Bench Rules on the grounds that the statement of claim discloses no reasonable cause of action as against the defendants and that the plaintiffs' claim is an abuse of the process of the Court.
[2] The plaintiffs are representing themselves in this litigation and although provided with an opportunity to retain counsel to argue these motions on their behalf, they declined to do so. The plaintiffs chose to rely upon the 19-page brief of law filed on their behalf and made submissions to the Court themselves.
[3] In response to the question of the Court as to why his statement of claim should not be struck, [M.L.R.] responded that, "He just wants to tell his story". Telling one's story is one thing, proceeding with a lawsuit against multiple defendants is quite another. The statement of claim issued on November 26, 2001, is signed by the plaintiffs themselves and thus the Court assumes that the statement of claim was prepared by the plaintiffs without the assistance of legal counsel. The plaintiffs as self-represented parties, however, must comply with all of the Queen's Bench Rules. The defendants' motions were made pursuant to Rules 173 and 188 of the Queen's Bench Rules.
[4] Rule 173 of the Queen's Bench Rules reads:
173 The Court may at any stage of an action order any pleading or any part thereof to be struck out, with or without leave to amend, on the ground that:
(a) it discloses no reasonable cause of action or defence, as the case may be;
(b) it is immaterial, redundant or unnecessarily prolix;
(c) it is scandalous, frivolous or vexatious;
(d) it may prejudice, embarrass or delay the fair trial of the action;
(e) it is otherwise an abuse of the process of the Court;
and may order the action to be stayed or dismissed or judgment to be entered accordingly or may grant such order as may be just. Unless otherwise directed, the offending party shall pay double the costs to which the other party would otherwise be entitled.
[5] The defendants represented by D.A. McKillop, Q.C. also made their application pursuant to Rule 188 of the Queen's Bench Rules which reads:
188 Where it appears that a determination of a point of law may:
(a) dispose of all or part of the action;
(b) simplify the action;
(c) substantially shorten the trial; or
(d) result in a substantial saving of cost;
either party may make application to a chambers judge, supported by an agreed statement of facts, for determination of the point of law.
[6] Although no agreed statement of facts was filed by the parties in support of this application for a determination as to whether this action should be struck pursuant to Rule 188, I am prepared to waive the requirement as the Court is allowed to waive such irregularities pursuant to Rule 5 of the Queen's Bench Rules. This practice was endorsed by our Court of Appeal in Goertz v. Zmud (1995), 137 Sask. R. 289 and more recently by this Court in Livingston v. Hewson (1991), 95 Sask. R. 170 wherein Baynton J., when faced with an application under the immediate predecessor of Rule 188, waived any need for an agreed statement of facts for the reason, among others, that to insist upon the need therefor would empower a party to thwart a Rule 188 application by simply refusing to assent to such document.
[7] I am thus prepared to consider these applications pursuant to both Rules 173 and 188 of the Queen's Bench Rules.
[8] The procedure to be followed on an application pursuant to Rule 173 is as outlined by McIntyre J. in Jackson v. Canada Customs and Revenue Agency et al. (2001), 210 Sask. R. 285 (Q.B.) at paras. 14 to 17 inclusive:
[14] The procedure to follow in a Rule 173 application has been outlined by the Saskatchewan Court of Appeal in Sagon v. Royal Bank of Canada et al. (1992), 105 Sask. R. 133; 32 W.A.C. 133 (C.A.). In that case, at para. 16, Justice Sherstobitoff set out the following test to utilize when determining whether a claim should be struck because no cause of action exists pursuant to Rule 173(a):
"[16] In determining whether a claim should be struck as disclosing no reasonable cause of action, the test is whether, assuming the plaintiff proves everything alleged in his claim, there is nevertheless no reasonable chance of success, or to put it another way, no arguable case. The court should exercise its jurisdiction to strike on this ground only in plain and obvious cases and where the court is satisfied that the case is beyond doubt: Marshall v. Saskatchewan, Government of, Petz and Adams (1983), 20 Sask. R. 309 (C.A.); The Attorney General of Canada v. Inuit Taparistat, [1980] 2 S.C.R. 735; 33 N.R. 304. The court may consider only the statement of claim, any particulars furnished pursuant to demand, and any document referred to in the claim upon which the plaintiff must rely to establish his case: Balacko v. Eaton's of Canada Limited (1967), 60 W.W.R. (N.S.) 22 (Sask. Q.B.); Lackmanec v. Hoffman and Wall (1982), 15 Sask. R. 1 (C.A.)."
[15] After discussing the approach to be used when striking out a claim pursuant to Rule 173(a), the court went on to outline the procedure to be followed in an application to strike a claim on the grounds that it is frivolous, vexatious, or otherwise an abuse of court process pursuant to Rule 173(c) or (e). In that respect, Sherstobitoff, J., provides at para. 18:
"[18] Striking out an entire claim on the ground that it is frivolous, vexatious, or an abuse of process of the court is based on an entirely different footing. Instead of considering merely the adequacy of the pleadings to support a reasonable cause of action, it may involve an assessment of the merits of the claim, and the motives of the plaintiff in bringing it. Evidence other than the pleadings is admissible. Success on such an application will normally result in dismissal of the action, with the result that the rule of res judicata will likely apply to any subsequent efforts to bring new actions based on the same facts. . . ."
[16] The suggested procedures to follow in Sagon, supra, are consistent with the object of Rule 173 enunciated in 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.). In that case the court determined that the object of the rule is to prevent the delay and expense of a trial founded upon an unreal claim or defence.
[17] Therefore, in considering whether the claim should be struck pursuant to Rule 173(a), I must consider whether the plaintiff, even after proving everything alleged in his statement of claim, would have no reasonable chance of success. It must be plain and obvious that the claim would fail before the claim is struck.
A. Overview of the Plaintiffs' Statement of Claim
[9] The plaintiffs' claim, as the Court understands it, relates to [P.K.] Sr.'s 1993 conviction for sexual assault and to [M.L.R.] being allowed to rape and sodomize his twin sisters over a period of 42 months. [M.L.R.]'s twin sisters were two of the complainants involved in [P.K.] Sr.'s guilty plea and conviction. The defendants have been sued for conspiracy, negligence, defamation, malicious prosecution as well as some kind of a Charter breach.
[10] The statement of claim is very confusing and is grossly deficient for reasons the Court will later outline in as much detail as it is able. The claim is made in a shotgun fashion and as drafted makes it very difficult if not impossible for any of the defendants to reply to it let alone defend themselves to the numerous allegations as contained in the claim.
[11] The statement of claim is a quagmire of bold allegations and rants made against the defendants collectively and indiscriminately. The wording, "The defendants or one or more of them" is used repeatedly throughout the statement of claim.
[12] To begin with the claims of [P.K.] Sr. and [M.L.R.] should not be advanced together in one statement of claim. The two plaintiffs are completely adverse in interest to one another. In 1993 [P.K.] Sr. plead guilty to sexually assaulting four individuals including [M.L.R.] and his twin sisters. At that time [M.L.R.] was telling the world that [P.K.] Sr. was the person who had sexually assaulted him and his sisters.
[13] The plaintiffs' positions have now changed. [P.K.] Sr. is now pleading that he was not guilty of sexual assault and that the defendants conspired in 1993 to make him plead guilty by withholding information from him amongst other things. [M.L.R.] in the same statement of claim admits that he was the perpetrator of these sexual assaults and that the defendants conspired to injure him by allowing him to continue raping and sodomizing his sisters while they knew he was doing it.
[14] It is the Court's intention to deal with some of the claims of [P.K.] Sr. and [M.L.R.] as they relate to all of the defendants jointly and thereafter to deal with some of the plaintiffs' claims separately as they relate to the individual defendants with a view to determining if the claim of the plaintiffs should be struck as not disclosing a reasonable cause of action, being statute barred or an abuse of process.
B. Claims of [M.L.R.] and [P.K.] Sr.
(i ) As against all of the defendants for conspiracy
[15] As best the Court can determine [P.K.] Sr.'s and [M.L.R.]'s claim as against the defendants is primarily founded in the tort of conspiracy. The statement of claim, however, does not, as is required by law, adequately describe the parties to the conspiracy, does not precisely state the purpose or object of the alleged conspiracy, and does not give particulars of the agreement, the overt acts committed by each conspirator or the damage sustained by them as a result.
[16] As outlined by Gray J. in Apple Bee Shirts Ltd. et al. v. Lax et al. (1988), 27 C.P.C. (2d) 226 (Ont. H.C.) at 235-36:
I quote from the judgment of O'Brien J. in H.A. Imports of Can. Ltd. v. General Mills Inc., (1983) 42 O.R. (2d) 645 at 646, 36 C.P.C. 296, 74 C.P.R. (2d) 257, 150 D.L.R. (3d) 574 (Ont. H.C.):
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Continued
"The requirements of a pleading alleging conspiracy are succinctly outlined in Bullen, Leake and Jacobs, Precedents of Pleadings, 12th ed. (1975), p. 341 as follows:
`Pleading. The statement of claim should describe who the several parties are and their relationship with each other. It should allege the agreement between the defendants to conspire, and state precisely what the purpose or what were the objects of the alleged conspiracy, and it must then proceed to set forth, with clarity and precision, the overt acts which are alleged to have been done by each of the alleged conspirators in pursuance and in furtherance of the conspiracy; and lastly, it must allege the injury and the damage occasioned to the plaintiff thereby.'
[17] The factual underpinnings and basis for the plaintiffs' claim for conspiracy against the defendants is entirely deficient if not non-existent in the statement of claim as drafted. Thus, it is appropriate that the plaintiffs' claim as against the defendants for conspiracy be struck.
(ii) As against all of the defendants for negligence
[18] Although the statement of claim is certainly not clear, it is assumed for the purpose of this application that the defendants have been sued in negligence. Several difficulties arise for the plaintiffs in that regard.
[19] It is hard to imagine any of the defendants having any duty of care to the plaintiff, [M.L.R.] for whatever he is claiming happened to him. The defendant defence lawyers, Daryl Labach and Jay Watson, never acted on behalf of [M.L.R.]. In addition, although the defendant lawyer, Greg Walen, acted for the Department of Social Services, he at no time acted on behalf of [M.L.R.]. [M.L.R.] was under the guardianship of the Department of Social Services in a foster home near Warman, Saskatchewan, but at no time was he ever personally represented by Greg Walen.
[20] Nor was there any duty of care by the prosecutors, Board of Police Commissioners, or police officers as towards [M.L.R.]. While it is conceivable that the social workers may have had a duty of care towards [M.L.R.], his claim would not succeed for limitation problems that will be outlined in this judgment.
[21] As [M.L.R.] would not be able to establish a duty of care as between any of the defendants and himself, a claim in negligence would not be available to [M.L.R.].
[22] Likewise none of the defendants with the possible exception of Jay Watson owed a duty of care to the plaintiff, [P.K.] Sr. Although Daryl Labach had at one time represented [P.K.] Sr., that relationship had been terminated for years at the time [P.K.] Sr. plead guilty in 1993. At that time [P.K.] Sr. was represented by Jay Watson.
[23] Assuming a duty of care could be established as between [P.K.] Sr. and Jay Watson, being a solicitor-client relationship at the time he plead guilty, the claim of [P.K.] Sr. would not be successful as his complaint about Jay Watson has already been dealt with by our Court of Appeal.
[24] [P.K.] Sr. represented by counsel applied to have his guilty plea expunged by our Court of Appeal in 1994. He provided voluminous documents to the Court and was subject to cross-examination on the documents. Madam Justice Gerwing stated at paras. 11-13 of the reported case R. v. Klassen (P.) (1994), 125 Sask. R. 56 (C.A.):
[11] The applicant and his lawyers in my view were well aware of allegations of bizarre testimony and bizarre conduct by three of the four victims, not only through Crown disclosure, the preliminary inquiry, but also through evidence in another trial where these children testified as victims.
[12] The applicant further alleged pressure and urging from his lawyer to plead guilty in order to, as part of an agreement with the Crown, have the charges dropped against the other family members. It is clear that charges were indeed dropped against other family members through such an arrangement once Mr. [P.K.] agreed to plead guilty. This conclusion and the benefits therefrom to his family again do not negate the understanding of his plea. Further, the applicant has previously pleaded guilty to earlier unrelated sexual assaults and is accordingly not experiencing the situation and the alternatives for the first time.
[13] The evidence of Jay Watson, who represented the applicant at the time of the guilty plea, outlined a full discussion of options including the fact that it was necessary to have a defined factual situation before the court on a guilty plea so that sentencing on agreed facts could take place. The applicant denied this, but in my view the evidence of Mr. Watson, and the supporting bill showing time spent, is to be preferred. The evidence of Crown counsel with respect to deals and meetings with Mr. Watson as well supports the latter's evidence. . . . I found the evidence of Mr. Watson careful and convincing. . . .
[25] Our Court of Appeal's decision in the criminal matter provides the basis for the dismissal of [P.K.]'s action in this matter. As stated in Demeter v. British Pacific Life Insurance Co. and two other actions (1984), 48 O.R. (2d) 266 (C.A.) at 268: It is clear from the whole record and upon the appellant's submissions made to this Court that he is seeking to relitigate the very issue that was decided against him at his criminal trial.
We agree with Mr. Justice Osler's careful and thoughtful analysis of the authorities and his conclusion that Hollington v. F. Hewthorn & Co., Ltd. et al., [1943] 1 K.B. 587, which held that the fact that the defendant driver in that case had been convicted of careless driving at the time and place of the accident did not amount to even prima facie evidence of his negligent driving at that time and place, is not the law of Ontario. We are equally of the view that the use of a civil action to initiate a collateral attack on a final decision of a criminal court of competent jurisdiction in an attempt to relitigate an issue already tried, is an abuse of the process of the court. . . .
[26] Likewise in this case, for [P.K.] Sr. to bring an action in negligence or for that matter in conspiracy against his lawyer, who has already been vindicated by the Court of Appeal, is an abuse of process.
[27] As well, several of the defendants are prosecutors who were involved in the prosecution of [P.K.] Sr. Although the allegations apparently made against them are directed at their exercise of their prosecution duties, it is noted that there are no allegations of malice or bad faith. The allegations therefore cannot succeed as they do not disclose a reasonable cause of action as outlined by this Court in Kvello v. Miazga, [1994] S.J. No. 395.
[28] Finally, all of the plaintiffs' claims in negligence are statute barred pursuant to s. 3(l)(d) of The Limitation of Actions Act, R.S.S. 1978, c. L-15 which requires actions for negligence be commenced within two years after the cause of action arose. Assuming the claims in negligence arose in 1993 or 1994, the claims are statute barred as the statement of claim was not issued by the plaintiffs until November 26, 2001.
[29] There is no relief for either of the plaintiffs as contained in The Limitation of Actions Act. Neither plaintiff is claiming any disability. [M.L.R.], being now 22 years of age, argued that the time limitations as contained in The Limitation of Actions Act did not run as against him while he was an infant. He is correct. The two-year limitation was postponed until [M.L.R.] turned 18. That was four years ago and the two-year time limitation expired two years ago. His negligence claim is thus statute barred.
[30] An argument was made by the plaintiffs to extend the two-year time limitation as contained in The Limitation of Actions Act based upon the discoverability doctrine. They both claimed that they discovered evidence in support of their claims after the time limitation had expired and after being given the run-around by the defendants and thus should have the time limitations extended. The Court is not prepared to accept their discoverability argument. [P.K.] Sr. knew whether or not he was guilty of sexual assault when he plead guilty in 1993. Likewise [M.L.R.] knew that he was raping and sodomizing his sisters in 1993. Nothing has changed. Discovered evidence is not the same as discovered facts. The doctrine of discoverability is not applicable to the facts in this case.
(iii) As against the defendant, Mathew Miazga for defamation
[31] Paragraph 43 of the statement of claim reads:
43. The plaintiffs say, and the fact is, that the defendant Mathew Miazga on or about February 10th/1993, falsely and maliciously, without justifiable cause or reason, spoke and published to and in the presence of the Saskatoon media, the following words:
"We felt that the children were to [sic] traumatized to continue to give testimony, and that it was in the best interest of the children that we stay the charges on the other accused".
[32] The plaintiffs' claim for defamation should be struck for several reasons. The limitation as contained in s. 3(l)(d) of The Limitation of Actions Act has expired that being within two years after the cause of action arose. The plaintiffs state the cause of action arose on February 10, 1993, some nine years ago. There are no saving provisions in the Act to prevent this defamation action being statute barred for the reasons the Court has previously given.
[33] In any event, the words allegedly used are not defamatory and do not speak of either plaintiff but are with respect to the children. None of the allegations made disclose a reasonable cause of action.
3. [M.L.R.]'s Defamation Claim Against the Defendant, Diane Ens
[34] Paragraph 83 of the statement of claim contains a defamation claim by [M.L.R.] as against the defendant, Ens.
[35] Paragraph 83 reads:
83. The plaintiff [M.L.R.] says that by reason of the matters referred to herein, the defendant Diane Ens defamed the plaintiff [M.L.R.] in the following ways;
i.That the defendant Diane Ens told the plaintiff [M.L.R.]'s sister [K.] that the plaintiff [M.L.R.] was "gay, and that he was dying of aids";
ii. That the defendant Diane Ens told the plaintiff [M.L.R.]'s sister [K.] that the plaintiff [M.L.R.] did not wish to see her, and that the plaintiff [M.L.R.] was no where to be found.
[36] In addition to being statute barred, the allegations are not defamatory and contain no reasonable cause of action. The defamation claim should also be struck on the basis that it does not plead the particulars of the time and place of the alleged defamatory publication as required. See R.E.L. v. J.G- S. (2000), 191 Sask. R. 204 (Q.B.).
D. [P.K.] Sr.'s Claim for Malicious Prosecution
[37] The claim of [P.K.] Sr. for malicious prosecution must also be struck for several reasons.
[38] The claim is statute barred pursuant to s. 3(1)(d) of The Limitation of Actions Act, it not being commenced within two years after the cause of action arose, if that date can even be established, which the Court believes it cannot.
[39] In 1993 [P.K.] Sr. plead guilty to numerous sexual assaults and his application to the Court of Appeal to have that guilty plea expunged was dismissed.
[40] In Proulx v. Quebec (Attorney General) (2001), 206 D.L.R. (4th) 1, the Supreme Court of Canada confirmed the four requirements as set out in Nelles v. Ontario, [1989] 2 S.C.R. 170, that must be established on a balance of probabilities in an action in damages based on prosecutorial misconduct. Those requirements are:
1. The respondent initiated the prosecution; 2. The prosecution resulted in the appellant's acquittal; 3. The Crown prosecutor did not have reasonable and probable cause upon which to found the charges brought against the appellant; 4. The prosecution was motivated by an improper purpose.
[41] [P.K.] Sr. was never acquitted and thus is not in a position to even commence a malicious prosecution action. Thus his claim for malicious prosecution must also be struck as having no reasonable cause of action.
E. Conclusion
[42] In determining whether the plaintiffs' statement of claim should be struck it is necessary for the Court to analyze the plaintiffs' statement of claim to establish whether or not parts of it can be salvaged as the Court will not deprive a litigant of an action unless the pleadings fail to disclose a cause of action.
[43] The Court has attempted the difficult task of dissecting the plaintiffs' statement of claim to determine whether or not any of it can be salvaged after striking all of the parts for the various reasons given in this judgment. This is not a case in which only certain paragraphs should be struck. This is a case in which unfortunately all of the statement of claim must be struck as either not disclosing any reasonable causes of action and/or being an abuse of process of the Court.
[44] The statement of claim of the plaintiffs shall thus be struck in its entirety as against the applicants to these three motions.
[45] Rule 173 provides that unless otherwise directed, the offending party (plaintiffs) shall pay double the costs to which the other party (the defendants) would otherwise be entitled. There shall be an order that the plaintiffs jointly and severally shall pay to each of the three groups of defendants that brought a motion to have their statement of claim struck the sum of $800.00 to be paid within thirty days of this judgment.
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