Sukhwant Shergill v. Skene, 2011 ABQB 334

Court of Queen ’ s Bench of Alberta Citation: Sukhwant Shergill v. Skene, 2011 ABQB 334 Date: 20110516 Docket: 0901 12151 Registry: Calgary Between: Sukhwant Shergill Applicant - and - David G.K. Skene and Sandy L. Skene Respondents _______________________________________________________ Reasons for Judgment of J.T. Prowse Q.C., Master in Chambers _______________________________________________________ [ 1 ] Sukhwant Shergill (“Shergill”) commenced this action on August 13, 2009 by way of originating notice. He sought an order discharging a caveat filed by the respondents, David G.K. Skene and Sandy L.

Skene (the “Skenes”) against lands which Shergill later acquired. [ 2 ] On April 6, 2011, when the application came forward for hearing, counsel advised that Shergill was withdrawing the application. Costs were spoken to and awarded against Shergill. At the time of withdrawal, counsel for the Skenes sought an order dismissing the action, presumably on the theory that this would provide the Skenes with an issue estoppel argument if Shergill seeks to attack the caveat in future litigation. Counsel for Shergill opposed a dismissal of the action, and so I sought and received written argument on this point.

Applicability of the ‘new’ rules to the issue [3] The originating notice was commenced under the ‘old’ rules, as they were prior to November 1st, 2010, but came on for hearingunder the ‘new’ rules. As directed by Rule 15.2 of the new rules, I will be applying the new rules concerning originating applications tothis issue.

What options are available to the court when an applicant withdraws an originating application? [4] The rules of court do not directly address the withdrawal of an originating application. [5] Rule 1.7(2) says that the rules may be applied by analogy to any matter arising that is not dealt with in the rules. [6] Counsel for the Skenes says that an analogy should be made to the situation which occurs when a plaintiff discontinues anaction, commenced by statement of claim, after it has been set down for trial. In that case, Rule 4.36(2)(

b) indicates that the action mayonly be discontinued with the court’s permission. I agree that this withdrawal is an analogous situation in that Shergill’s originatingapplication was on the verge of being heard when it was withdrawn. Consequently, Shergill needs the court’s permission for thatwithdrawal.

What is the purpose of requiring the court’s permission for a discontinuance/withdrawal? [7] The court requires control over discontinuances to prevent plaintiffs, who have caused defendants to expend time and resourcesin defending an action, from unilaterally discontinuing an action, leaving the plaintiffs free (subject to limitations issues) to re-litigate thesame issues at a time of their choosing in the future.

Options available to the Court [8] Does the court’s jurisdiction to grant or withhold permission for a discontinuance or withdrawal include the jurisdiction toimpose terms on the discontinuance or withdrawal? [9] According to the Civil Procedure Encyclopedia “where leave is needed to discontinue, the court can impose terms”. Case law isthen cited in support of the proposition that one of the terms which can be imposed is that the plaintiff/applicant cannot sue again. [10] In Blum v.

Blum, (ON CA), [1965] 1 O.R. 236, 47 D.L.R. (2d) 388 (C.A.), the plaintiff husband hadcommenced proceedings for an annulment of marriage, and then discontinued the proceedings when the trial was about to begin. Underthe relevant Ontario rule, the husband could only discontinue with leave of the court “which may be granted on such terms as to costsand as to any other action against all or any of the defendants and otherwise as are proper”. [11] The wife appealed from the refusal of the trial judge to impose terms that the husband could not bring any further action basedon the same cause.

The Ontario Court of Appeal noted that common law and chancery practice allowed a plaintiff to discontinue, andthen (subject to limitations laws) commence similar proceedings in the future. In the interval, the defendant’s witnesses or evidencemight disappear. It was to prevent this type of abuse that the rules of court required the plaintiff to obtain leave from the court todiscontinue, after the proceedings had reached a defined stage.

The Court of Appeal allowed the appeal and directed that the ordergranting leave to discontinue should be a bar to the continuance of the action and to any further action which may be brought by theplaintiff for the same cause of action.

[12] In Derbyshire v. Derbyshire, (AB KB), 1974 CarswellAlta 101, [1974] 6 W.W.R. 437, 46 D.L.R. (3d) 752(S.C.), a husband had commenced divorce proceedings, and the wife also counter-petitioned for divorce. At trial, the wife sought leaveto discontinue her counter-petition, explaining that she felt there was a possibility of reconciliation. The court allowed her todiscontinue, on the basis that every effort should be made a reconciliation. Given its conclusion, the court did not comment on thejurisdiction of the court to bar future petitions by the wife. [13] In McCarthy v.

Acadia University (CA 1977) (NS CA), 18 N.S.R. (2d) 364, 75 D.L.R. (3d) 304, 3 CPC 42,the applicant instructor brought proceedings claiming that his employer had wrongfully refused to renew his contract of employment. Afew days before the trial was to begin, the applicant sought leave to discontinue the proceedings.

He asserted that he did not havesufficient funds to pursue the matter through trial, and that he was hoping a recently certified union representing instructors would pursuehis interests through negotiation. [14] Nova Scotia’s rule on discontinuance was similar to the Ontario rule discussed in Blum, namely, the order granting leave “maycontain such terms as to costs, the bringing of any subsequent proceeding, or otherwise, as are just”.

In fact, the trial judge did grantleave to discontinue on the basis that the discontinuance “shall be a bar to the continuation of the action and to any further action whichmay be brought by the Plaintiff for the same causes of action”. [15] The Nova Scotia Supreme Court, Appeal Division, upheld the trial judge’s imposition of a bar on future actions for the samecauses of action, and quoted with favour from the decision of Chitty L.J. in Fox v.

Star Newspaper Co., [1898] 1 Q.B. 636, where it wasstated “after the proceedings have reached a certain stage the plaintiff, who has brought his adversary into court, shall not be able toescape by a side door and avoid the contest”. [16] The Alberta rule on discontinuing with leave, Rule 4.36(2)(b), does not expressly list a bar on subsequent proceedings assomething which can be imposed, in contrast to the rules in Ontario and Nova Scotia. However, given that the abuse of possible re-litigation is what Rule 4.36(2)(

b) appears designed to control, I am of the view that it is implicit that the court may impose such a termpursuant to Rule 4.36(2)(b). Applicability to the case at hand [17] The Skenes went through a great deal of time and expense to prepare to argue for the validity of the caveat protecting the homein which they live. Counsel for the Skenes reviewed the affidavit of Shergill, conducted questioning of Baldev Shergill, filed twoaffidavits of the Skenes, filed an affidavit of record of the Skenes, received the affidavit of records of Shergill, and filed writtenargument.

After all that, coincidental on Shergill receiving further evidence unfavourable to his position, Shergill unilaterally decided towithdraw his challenge to the Skenes’ caveat. Considering all the work done by the Skenes in preparation for the hearing, the Skeneswere entitled either to a hearing on the merits, or to have the matter resolved so that Shergill cannot raise the same cause of action in thefuture.

Shergill should not be allowed to “escape by a side door” on the eve of this hearing. [18] Accordingly, I am directing that Shergill be allowed to withdraw his originating application only on the basis that he cannotrevive the originating application, and is barred from raising in any future proceedings the causes of action which he raised or could haveraised in these proceedings. The words underlined would prevent Shergill from challenging the caveat on grounds presently available tohim, but allow Shergill to bring proceedings in the future challenging the caveat on grounds not presently available to him.

For example,Shergill might decide to challenge the caveat in the year 2020, when the Skenes’ 20 year lease (protected by the caveat) expires. Costs [19] If counsel cannot agree on costs regarding this application under Rule 4.36(2)(b), they can approach me for directions.

Heard on the 6 th day of April, 2011. Dated at the City of Calgary, Alberta this 16 th day of May, 2011. J.T. Prowse, Q.C. M.C.C.Q.B.A. Appearances: Denise M. Hendrix Vickers Hendrix LLP for the Applicant Allan J. Sattin, Q.C. Spier Harben for the Respondents