Austin Bear Proposed Plaintiff - v. -, 2012 SKPC 45

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2012 SKPC 045 Date: March 8, 2012 File: n/a Location: Prince Albert _____________________________________________________________________________ Between: Austin Bear Proposed Plaintiff - and - Muskoday Convenience Store and Gas Bar and The Government of Saskatchewan (Minister of Finance) Proposed Defendants J. Ron Cherkewich For the Proposed Plaintiff n/a For the Proposed Defendant Province of Saskatchewan ______________________________________________________________________________ EX PARTE APPLICATION FOR ISSUANCE OF A SMALL CLAIMS SUMMONS H. M.

HARRADENCE, J ______________________________________________________________________________

I. INTRODUCTION [ 1 ] On February 16, 2012, the proposed Plaintiff, Austin Bear, requested through his lawyer, Ron Cherkewich, that this Court issue a Small Claims Summons, claiming relief against the Muskoday First Nation operating as the Muskoday Convenience Store and Gas Bar and the Government of Saskatchewan. The relief claimed is a judgment in the amount of $1.00 against the Muskoday First Nation and against Saskatchewan the taxes paid on one package of cigarettes, which amounts to $6.86. [ 2 ] The Summons was filed with the Clerk of the Court by Mr. Cherkewich, acting as agent for the proposed Plaintiff.

The clerk provided the Summons to me for review pursuant to s. 6 of The Small Claims Act , which reads as follows: 6(1) Any person who has a claim to which this Act applies and who wishes to proceed pursuant to this Act may apply to a clerk to have a summons issued.

(2) A person applying to a clerk shall: (

a) provide the clerk with the details of the person’s claim; and (

b) produce for inspection by the clerk any documents in the person’s possession relating to the claim.

(3) Unless otherwise directed by the judge with respect to a specific claim, the clerk shall assist the plaintiff in preparing a concise written statement of the claim.

(4) The plaintiff or the plaintiff’s lawyer shall sign the written statement of the claim.

(5) The clerk shall provide the written statement of the claim to a judge. [ 3 ] The proposed Claim states in part as follows: 6. On February 1, 2012 AUSTIN BEAR attended at the MFN Store on the Muskoday Indian Reserve Saskatchewan, for the purpose of purchasing nine (9) packs (25 cigarettes per pack) of Matinee Mellow brand cigarettes (the “ cigarettes ”) for his own consumption and use. 7. The MFN Store staff person at the till produced nine (9) packs of tobacco and presented the same to AUSTIN BEAR for payment. 8.

The MFN Store staff person advised AUSTIN BEAR that he could purchase 8 packs (1 carton) of cigarettes at the MFN Store’s posted tax exempt price of $8.25 (“ Treaty price ”) per pack [$66.00 per carton]. However because of the restrictive scheme imposed by Saskatchewan on the MFN Store the store would only sell him 8 packs at the Treaty price. The MFN Store advised AUSTIN BEAR that the 9 th pack would not be exempt.

If he wanted to purchase the 9 th pack he would have to pay the non-Treaty price of $13.75 which included Saskatchewan tobacco tax of $0.21 per cigarette as well as Provincial Sales Tax (PST) of $0.61. 9. AUSTIN BEAR stated that he wanted the ninth pack of cigarettes at the Treaty price. 10. The MFN Store that the store would only sell him nine (9) packs for the price of $79.47 calculated as follows: • Packs 1, 2, 3, 4, 5, 6, 7, and 8 ……………… $66.00 • Pack 9 ………………………………………… $13.47 Total payment required by the MFN Store ……… $79.47 11. AUSTIN BEAR stated he did not agree to pay tax on the 9 th pack. 12.

The MFN Store advised AUSTIN BEAR That the MFN Store would not rebate the tax on the 9 th pack notwithstanding that the MFN Store had no dispute with respect to AUSTIN BEAR’s entitlement and right to acquire all of the cigarettes as tax exempt products.

[ 4 ] The Claim, in essence, is the same Claim which 18 Plaintiffs, including Austin Bear, the proposed Plaintiff, requested to have issued on November 30, 2010. These prior claims, in part, stated as follows: 11. On the October 7, 2010, WALLACE FOX attended at the MFN Store for the purpose of acquiring four

(4) Cartons of Matinee brand cigarettes ( the cigarettes ”) for his own consumption and use. 12. On attending at the MFN Store for the specific purpose of purchasing the cigarettes WALLACE FOX produced for the MFN Store a current and valid Indian Status Card which has a photo of WALLACE FOX (“ photo identity ”). 13. The MFN Store then produced the four

(4) Cartons branded as “ black stock tobacco ” by Saskatchewan and presented the same to WALLACE FOX for payment. 14. The MFN Store advised that the cigarettes were supplied by the manufacturer Imperial Tobacco and that the price included a $1.00 per Carton surcharge. The surcharge was added to the price of the cigarettes which in turn was passed on to the wholesaler and in turn included in the wholesale price to the MFN Store (herein “ the surcharge ”). 15.

The MFN Store advised that the purchase of the surcharge imposed by the manufacturer was to recover or offset the cost of Saskatchewan’s “black stock” branding requirements for tax exempt tobacco products sole to Indians. 16. The payment (price) requested for the cigarettes by the MFN Store was as follows: • Carton number 1 with $1.00 surcharge included……………………………………… $68.00 • Cartons 2, 3 and 4…………………………… $201.01 • Provincial taxes on cartons 2, 3 and 4……………………………………………… $108.57 • Imperial Tobacco surcharge on cartons 2, 3 and 4………………………………………….. $3.00 Total payment required by the MFN Store ……… $380.58 17.

WALLACE FOX stated he did not agree to pay tax on Cartons 2, 3, and 4 nor the surcharge of $1.00 per carton on Cartons 1, 2, 3 and 4. [ 5 ] These prior claims were referred to His Honour Judge Loewen to consider the issuance of them. As part of his consideration Judge Loewen held a hearing and received submissions from the proposed parties. In a Judgment dated September 2, 2011, [1] Judge Loewen declined to issue the Summons. In doing so, Judge Loewen concluded that the claims were more appropriately pursued in the Court of Queen’s Bench. Judge Loewen stated: [2] [36] In

summary, then, given that virtually all the potential issues raised by these claims are declaratory in nature, and therefore outside the jurisdiction of the Provincial Court, I will decline to issue the summonses as requested. The issues raised by these claims are important issues to the potential Plaintiffs, and may well be worth litigating, but that litigation, in my view, must be done in the Court of Queen’s Bench, by either issuing a new claim, or by way of enforcement proceedings of the claim upon which the agreement referenced above was made. The language used by Mr.

Cherkewich is an apparent attempt to couch the prayer for relief in wording that avoids a direct reference to a request for declaratory relief, however, the substance of the relief remains just that. [ 6 ] Judge Loewen’s decision is significant as it distinguishes the issuance of a Small Claims Summons from a Queen’s Bench Claim and recognizes the importance of the gate keeper function of a Provincial Court Judge. [3] At paragraphs 15 and 16 Judge Loewen states: [4] [15] This gatekeeper function is not reflected in the way that claims are issued in the Court of Queen’s Bench.

Claims are issued by a Registrar or Deputy Local Registrar and issues such as whether or not a claim is frivolous, vexatious, an abuse of the Court’s process, or not within the jurisdiction of the issuing authority are not considered.

If a Defendant, once a claim is issued, feels that the claim may be frivolous or of like nature, the Defendants are left to bring an application under Rule 173 of the Queen’s Bench Rules of Court to have a claim or portions of a claim struck on those or other grounds. [16] In short, the function of a Deputy Local Registrar is administrative whereas the function of the Provincial Court Judge exercising his or her jurisdiction under The Small Claims Act is a quasi judicial one.

That is the background and generally provides the reasoning for me proceeding in this matter in the fashion that I did. [ 7 ] Despite my concerns that the filing of this Summons is simply a re-litigation of the issue that was before Judge Loewen, and therefore an abuse of this Court’s process, [5] I have decided to consider the issue afresh, based on the material before me that was filed on February 16, 2012. II.

ANALYSIS [ 8 ] The jurisdiction of the Small Claims Court is contained in s. 3(1) of the Act : 3(1) Subject to subsection (7), this Act applies, whether or not the Crown is a party to the action, to any claim or counterclaim for:

(

a) debt or damages; (

b) recovery of personal property; (

c) specific performance or rescission of an agreement relating to personal property or services; or (

d) relief from opposing claims to personal property. [ 9 ] As indicated, the proposed claim alleges a debt of $6.86; $1.00 against the Muskoday First Nation; and $5.86 claimed against the Government of Saskatchewan. This amount is capable of being claimed as a debt or damages, pursuant to s. 3(1)(a). However, given that this claim states that it is limited to a monetary value of less than $7.00, I must consider whether the claim is frivolous as set out in s. 7(3.1)(c): 7(3.1) The judge may refuse to issue a summons if the judge considers that the claim of the plaintiff: (

a) is without reasonable grounds; (

b) discloses no triable issue; or (

c) is frivolous, vexatious or an abuse of the court’s process. [ 10 ] Although I suspect the claim seeks to establish a principle regarding the collection of tobacco tax on Reserve, on the face of it, the claim is, in a monetary amount that is negligible.

I conclude that the claim, as presented on February 16, 2012, is frivolous, and I refuse to issue it on that basis. [ 11 ] If, as I suspect, the claim is an attempt to establish a principle regarding the collection of tobacco tax on Reserve, this has the potential to be a significant and important issue which likely would involve a consideration of equitable remedies and declaratory relief. Neither one of these are specifically set out in s. 3(1) of the Act . In this regard I note that paragraph 17 of the proposed claim refers to sections 87 and 88 of the Indian Act , (R.S.C., 1985, c. I-5) which I have reviewed.

I am of the view that these issues are more appropriately litigated in the Court of Queen’s Bench where examinations for discovery and equitable remedies are available. I am therefore satisfied that it is not in the interests of any of the parties to proceed with this claim pursuant to this Act , as indicated in s. 7(3):

(3) The judge may refuse to issue a summons if the judge considers that it is not in the interest of one or more of the parties to proceed with the claim pursuant to this Act . [ 12 ] I have also considered whether I should order this claim to proceed in the Court of Queen’s Bench, pursuant to s. 11(1) of the Act , but given the present wording of the claim, I am confident that the Court of Bench would conclude it was frivolous, and therefore I decline to transfer it. [ 13 ] In these circumstances I refuse to issue the Summons and direct the clerk to return the Summons and the fee tendered by the agent of the proposed Plaintiff.

As indicated in s. 7(4), nothing in these reasons prevents Austin Bear from proceeding in the Court of Queen’s Bench. [ 14 ] Dated at the City of Prince Albert, in the Province of Saskatchewan, this 8 th day of March, 2012. ______________________________ H. M. Harradence, J [1] Wallace Fox v. The Government of Saskatchewan (Minister of Finance), And Muskoday First Nation operating as the, Muskoday Convenience and Gas Bar , 2011 SKPC 143 .