Wallace Fox Plaintiff - v. -, 2011 SKPC 143

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION 2011 SKPC 143 Date: September 2, 2011 File: n/a Location: Prince Albert _____________________________________________________________________________ Between: Wallace Fox Plaintiff - and - The Government of Saskatchewan (Minister of Finance) And Muskoday First Nation operating as the Muskoday Convenience and Gas Bar Defendants J. Ron Cherkewich For the Plaintiff J. Fyfe For the Defendant Province of Saskatchewan J.

Ron Cherkewich For the Defendant Muskoday First Nation and Muskoday Convenience and Gas Bar ______________________________________________________________________________ JUDGMENT S. D. LOEWEN, J ______________________________________________________________________________ [ 1 ] Before I left for holidays in August, I left instructions for a letter to be sent to Mr. Ron Cherkewich to advise of certain matters relating to the timing of the release of my decision in this matter. That letter is reproduced in its entirety as follows: April 15, 2011

Ron Cherkewich Legal Services Justice and Attorney General 202, 1100 – 1 st Avenue East 820 - 1874 Scarth Street Prince Albert, SK S6V 2A7 Regina, SK S4P 4B3 Attention: Ron Cherkewich Attention: James Fyfe By Fax: (306) 763-0505 By Fax: (306) 787-9111 Dear Sirs: RE: Wallace Fox v. The Government of Saskatchewan (Minister of Finance) and Muskoday First Nation, operating as the Muskoday Convenience and Gas Bar This matter was heard on June 24, 2011 before His Honour Judge Loewen and was reserved for decision. Please be advised that Judge Loewen is away for the next two weeks on education leave and vacation leave.

He has taken this file with him and will be working on this decision while he is away. He advises that it should be finalized shortly after his return. We trust the above is satisfactory. Yours truly, L. Button-Rowe Judge’s Secretary Prince Albert Provincial Court for Province of Saskatchewan By fax – 1 page only – original retained on file [ 2 ] In response the Court received a letter from Mr. Ron Cherkewich dated August 15, 2011. I reviewed the letter when I was absent from my office on my holiday. [ 3 ] The letter was terse and complained about the speed at which the matter was being considered by me.

The letter also demonstrated a lack of understanding of some of the basic principles and procedures in Small Claims Court, however, I will not address those issues in this decision. The contents of that letter are reproduced entirely below: August 15, 2011 Hand Delivered L. Button-Rowe Judge’s Secretary

Provincial Court 188 – 11 th Street West Prince Albert, SK S6V 6G1 Cc: Honourable Chief Judge C. A. Snell Via Facsimile (306) 787-3933 Cc: Chief Austin Bear Cc: Chief Wallace Fox Cc: Balance of Plaintiffs Cc: James Fyfe, Q.C. Via Facsimile (306) 787-9111 Dear Ms. Button-Rowe: Re: Chief Austin Bear, Chief Wallace Fox et al v. The Government of Saskatchewan (Minister of Finance) This is to acknowledge your letter on behalf of the Court dated April 15, 2011 (SIC) received August 15, 2011 by fax transmission. The arrangements and contents of the letter are not satisfactory .

This matter originating in my office some 9 months earlier on November 10 th , 2010 , when we submitted 18 Claims for issuing by the Court on behalf of the following claimants: Chief Austin Bear Chief Richard Fiddler Chief Darin Poorman Councilor Albert Lafond Councilor Ernest George Tribal Chief Felix Thomas Chief Wallace Fox Chief Daniel Blackstar Councilor Ina Whitehead Councilor Orrin Greyeyes Vice-Chief Edward Lerat Cynthia Missens Chief Wesley Daniels Chief Reginald Bellerose Councilor Enock Poitras Councilor Elvis Henry Vice-Chief Anthony Watson Elmer Campbell (herein “ the Claimants ” The Claims were provided to the Court as a courtesy.

We appreciate that it is the Court’s practice (in Prince Albert in any case) to lend their staff’s assistance to claimants in finalizing their Claims for issuing by the Court. An instrument entitled “Interim Ruling” was mailed to us from the Court on January 4, 2011 . Our response on behalf of the Claimants

resulted in a further instrument being mailed to us entitled: “Supplementary Interim Ruling”. It is dated April 21, 2011 . Considering that on the face of it there are no proceedings in play to trigger the Court’s jurisdiction, the Court clearly is prevailing upon Claimants good will and respect for the process in mustering the Claimant to participate in the “hearing”. A hearing date was then scheduled for June 24, 2011. The Court imposed on the Claimant the serving of a “notice of the hearing” to Saskatchewan a party contemplated by the Claimants.

The Court also directed the Claimants to serve Canada who was not contemplated to be named and who the Claimant had no intention of naming. On June 24, 2011 , the Province of Saskatchewan was represented. Canada, who was not contemplated as a party to the proceedings but was identified by the Court for a copy of the notice did not appear nor provide any recognition of the process invented by the Court. On June 24, 2011 the Court indicated that there would be a “decision” within two weeks. That has not happened. Our position is that the process invented by the Court is unacceptable.

The Court has frustrated access to the Court. The Courts dalliances with the process run against case law and particularly and most recently, the Supreme Court of Canada in a series of cases speaking of access of citizen to the Courts. It disregards the enabling legislation which directs the jurisdiction of the Provincial Court in the handling of these matters. It also ignores the practices and procedures promoted by the Provincial Court of Prince Albert in processing these matters: 1. Claimant goes to the Court 2. Court staff assists Claimant with Claim 3. Claim is issued 4. Claim is served 5.

The parties appear at a pre-hearing conference to determine if resolution can be achieved outside the Court room 6. Failing resolution, a Court hearing is scheduled We are in to the 9 th month! Our clients are being put at risk by the Court’s ad hoc inaction: limitation periods are looming: evidence is being dated or lost. At this point in time, it is our clients’ position that they want the Claims issued and dates fixed that the Claims proceed in the ordinary and respectful manner. Please place this matter before another Provincial Court Judge and advise us when I can pick up the issued Claims for service.

Yours most respectfully, J. Ron Cherkewich [ 4 ] Upon reading the letter, I thought perhaps Mr. Cherkewich was going to ask that I recuse myself from acting further on the matter, however, upon my return to the Court on August 29 th , I note that no such application had been made. Mr. Cherkewich, as senior counsel, would know what is required to have a judge removed from a file and since he did not do so, I am content knowing that he has now voiced his opinion to me, his clients, our Chief Judge and the representative of the province.

He did not, however, make an application for recusal, and therefore I will assume that he is content with me continuing. This decision will therefore resolve the issue that was outstanding, namely, whether or not the claims that were presented by him should be issued. [ 5 ] These claims were submitted for issuing into our office on November 30, 2010, and in response to a letter from Mr. J. Ron Cherkewich, again solicitor for all of the proposed Plaintiffs, and after some careful reflection and consultation with administrative personnel within the Court, I issued an Interim Ruling.

That ruling is reported in its entirety as follows: INTERIM RULING [1] On November 30 2010, this claim, together with 17 others, all very similar in nature, were presented to our Court for issuing of a Small Claims Summons. The issue to be decided is whether or not to issue the Summons in the particular circumstances of each case. I

have taken Mr. Fox’s claim to provide a decision that will govern all these separate claims at this time and will not issue separate decisions on each claim, but will use Mr. Fox’s claim as a precedent to follow on all the others. [2]

Section 7 of The Small Claims Act provides as follows: 7

(1) If the judge is satisfied that the plaintiff may have a valid claim, the judge shall issue a summons that: (

a) is directed to the person or persons against whom the claim is made; (

b) states the time of the case management conference or time of the trial and the court location that the judge considers appropriate. The same

section provides exceptions to the mandatory issuing of a Summons in the following cases:

(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.

(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. [3] In the present case, there are a number of areas that need to be addressed before I will decide whether to issue a Summons. [4] First, it is noted that a substantial portion of the relief being sought by the Plaintiff relates to matters that are, prima facie, outside the jurisdiction of the Provincial Court. Paragraphs 57.4 through 57.10 in essence, seem to be asking this Court to give declaratory relief.

The actual prayers are couched in terms that might suggest otherwise, but giving a “judgment confirming” or a “judgment that...” could be interpreted as asking this Court to make declarations that may not be within our jurisdiction. [5] Second, there are issues to be decided relating to the purported existence of a trust relationship. Under the terms of The Trustee Act , Court is defined as being, in Saskatchewan, the Court of Queen’s Bench. [6] Third, there appears, again prima facie, to be room to interpret the Claim as raising certain constitutional questions.

For example, paragraph 57.11 of the Claim could be interpreted as a challenge to the constitutionality of the Provincial authority to impose the tax regime complained of by the Plaintiff. [7] There is also a potential issue as to whether or not a First Nation can be sued in Small Claims Court.

Interpretation of a treaty right is not frequently litigated in Small Claims Court, as these matters are usually dealt with in either The Federal Court or at least in Superior Courts in Canada. I believe this issue should be addressed as well. [8] Having outlined the potential difficulties in this matter, and without in any way deciding the issues one way or another, the question remains whether or not to issue the summons as drafted. In order for me to refuse to issue the summons, I have to find that one of the exceptions listed above apply to the situation before me.

Before I can make a proper determination on that issue, it is my belief that the Plaintiff should be given an opportunity to argue the issues identified. In keeping with that same principle, I feel it would also be appropriate to have the other potential parties to this proceeding provide input, if they wish to do so. [9] My decision in this matter is therefore as follows. I will respectfully decline, at this time, to issue the summons in this matter and all the related claims.

I will give the Plaintiff the opportunity to address the Court on the concerns I have raised. [10] If the Plaintiff wishes to argue his case before me, I will direct the Plaintiff to provide notice to the other parties. I would also direct that the Plaintiff provide notice to both the Attorneys General of Canada and Saskatchewan in accordance with s. 8 of The Constitutional Questions Act in wording that would appropriately give them notice of my concerns, together with a copy of the Claim in the Fox matter together with a copy of this decision.

Dated at the City of Prince Albert, Saskatchewan this 4 th day of January, 2011. [ 6 ] The purpose of providing for the process that I outlined was to provide an opportunity for Mr. Cherkewich, on behalf of his clients, to be heard on the questions that I raised. Before denying a person standing to bring the claim I thought it would be prudent to give him that opportunity. That decision was delivered to Mr. Cherkewich on or about the date of it being issued, and for some significant period of time no response was received.

[ 7 ] Over two months later, Mr. Cherkewich responded to the Interim Ruling by letter of his, dated March 10, 2011. That letter did not appear to show a clear understanding of what I thought I had ruled on in my earlier Interim Ruling, and was argumentative about a number of my concerns. At that point I thought it best to issue a Supplementary Interim Ruling, which was delivered to Mr. Cherkewich on April 21, 2011.

That Supplementary Interim Ruling is attached and reproduced again in its entirety as follows: SUPPLEMENTARY INTERIM RULING [1] By written reasons provided on January 4, 2011, the Court refused to issue the small claims summons for reasons provided therein. [2] On March 10, 2011, an eight page letter responding to that decision was provided to the Court by the proposed Plaintiff’s solicitor.

Further direction is apparently required. [3] With respect to that issue, reference is made to paragraph 10 of the decision that I provided on January 4, 2011. [4] I therefore direct that a return date for the Notice contemplated in paragraph 10 of my previous decision be set in consultation with the office of the proposed Plaintiffs’ solicitor.

Once that date is selected then notice to the parties referred to in paragraph 10 shall be provided a minimum two weeks prior to the return date. [5] Dated at the City of Prince Albert, in the Province of Saskatchewan, this 21 st day of April, 2011. [ 8 ] The jist of my concern was that the bulk of the claim may not be within the jurisdiction of our Court, however, left for Mr. Ron Cherkewich the alternative to issue the claims out of the Court of Queen’s Bench if he so chose.

Alternative to that he could set up a hearing among himself, the Court, and the other parties to the hearing, to argue whether or not the claims should be issued. Mr. Ron Cherkewich opted for the latter and in arranging for a date, June 24 th was chosen and the hearing proceeded. At the hearing on June 24 th , Mr.

Ron Cherkewich was there representing all of the proposed Plaintiffs, and he also purported to represent the Muskoday Convenience and Gas Bar, one of the Defendants in all of the proposed claims. [ 9 ] In essence, what was contemplated by the claims was that a number of Chiefs from around the province were proposing to sue the Government of Saskatchewan, the Muskoday First Nation, and also the Muskoday Convenience and Gas Bar. Mr.

Cherkewich represented that the Muskoday Convenience and Gas Bar was owned and operated by the Muskoday First Nation. [ 10 ] One of the claims contained allegations by Austin Bear, the Chief of the Muskoday First Nation as the Plaintiff and the same three Defendants, Government of Saskatchewan, Chief Bear’s own First Nation, and that First Nation’s Muskoday Convenience and Gas Bar. As Chief Bear was present in Court at the time these representations were made I accepted this rather unusual situation for the purposes of argument on the issue of whether or not the claim should be issued for all of these matters.

Mr. Cherkewich indicated that they had a lawyer engaged to represent the store in the event the claims were issued. [ 11 ] Although proper service on the province and the Federal authorities was not filed with the Court, a representative, as I indicated above, from the Provincial Government was present and Mr.

Cherkewich filed with the Court the materials purported to be proper service on the Federal Crown by proving service on an official in the Minister of Justice’s office in Ottawa. [ 12 ] The method that I chose to deal with the issue of whether or not a claim should be issued was not the usual way that matters are dealt with in our Court. That however was dictated by the number of claims that were proposed and the length and complexity of each individual claim. [ 13 ] In Provincial Court under the provisions of The Small Claims Act claims must be issued by a Provincial Court Judge.

The Provincial Court is a gatekeeper in some respects to ensure that claims comply with the Act prior to them being issued. Under section 7(1) of The Small Claims Act if a judge is satisfied that the Plaintiff may have a valid claim, the judge shall issue a summons that is directed to the person against whom the claim is made, and set a case management conference date. [ 14 ] Subsection 3.1 of s. 7 provides exceptions to the mandatory procedure and reads as follows, namely:

(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. [ 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. [ 17 ] In the present case, Mr.

Ron Cherkewich has stated on a number of occasions, but none as equivocally as he did in his letter to our Court on March 10, 2011, that the claim is a test case. [ 18 ] Paragraph one on page two of his letter says the following: “This is intended as a test case.” When asked during argument on June 24 th as to why then, if it was to be taken as a test case, were there to be 18 separate claims issued, he responded that there was interest from a number of Chiefs across Saskatchewan all of whom wanted to be personally named in the suit and he was merely accommodating that request. [ 19 ] One of the fundamental concerns that I had from the outset with regard to these numerous claims was that the relief being sought appeared at first blush to be largely declaratory in nature.

There are other concerns that have arisen during the course of my contemplation of the case and also arguments, and I will discuss them all in order. [ 20 ] The best way for me to start in determining whether or not this Court has jurisdiction, in my view, is to review paragraph 57 of the Wallace Fox claim. Paragraph 57.1 of the claim asks for reimbursement of the tax collected on cartons 2, 3 and 4, or under paragraph 57.2 alternatively, judgment in that amount.

Those kinds of claims can and are often handled in our Courts and appear on the surface of them to be appropriate and legitimate. [ 21 ] Paragraph 57.3 asks for reimbursement of four dollars ($4.00) by way of damages, however, it does not indicate against whom damages are being sought. The beginning of the paragraph asks only for relief against the Defendant Saskatchewan.

No facts are averred in the claim to support any such relief. [ 22 ] Paragraph 57.4 asks that this Court as against Saskatchewan provide a judgment “Confirming that The Tobacco Act and The Revenue and Financial Services Act has no application to the subject purchaser and that the collection of the tax on the subject purchase is illegal, coercive and is unlawful expropriation or confiscation of property of Wallace Fox which is exempt from any such Provincial tax or deposit.” Clearly that is declaratory relief. Quoting from Mr. Ron Cherkewich’s letter of March 10 th , page five, paragraph b.

Declaratory Judgment, he states as follows, and I accept this statement as a correct statement of the law: “It is a judgment which declares the rights of the parties or expresses the opinion of the Court on a given question of law without ordering anything to be done.” That is precisely what paragraph 57.4 in my view purports to do. [ 23 ] Similarly, paragraph 57.5 is asking for a “Judgment that Saskatchewan has breached its fiduciary obligation and incidental duties to preserve the rights and privileges of Wallace Fox and to not engage in illegal, unlawful, coercive legislative policy or obstructive acts”, etc.

Again that is well within the same definition that I took from Mr. Cherkewich’s letter. [ 24 ] Paragraph 57.6 asks for a “Judgment” etc. Again, while risking being seen as repetitive, this appears to be a request for a judgment that is only declaring a right, but not asking for any other order and is therefore declaratory in nature. [ 25 ] Paragraph 57.7 is asking that this Court issue a judgment that “Saskatchewan by refusing to refund the tax or return the deposit has misappropriated or converted the same”.

Again, this is declaratory relief being sought. [ 26 ] Paragraph 57.8 asks that this Court provide a “Judgment etc.” I doubt whether any Court in Canada can provide for a declaration that the Minister of Finance of any jurisdiction may or may not be, in contempt of the Parliament of Canada, but certainly this Court cannot.

It is clearly outside of our jurisdiction. [ 27 ] Paragraph 57.9 would be covered, in the event of a successful claim being made, under paragraph 57.2. [ 28 ] Paragraph 57.10 does not read as if anything is being claimed and if it were made clear what exactly is being asked for under that subparagraph if I understand it correctly would be clearly declaratory as well. [ 29 ] Paragraph 57.11 asks for an accounting that is clearly not contemplated by the pleadings.

An accounting might apply if an action was commenced for all of the cigarettes sold by some or all of the on-Reserve stores in Saskatchewan that are subjected to the new Regulations . However, Wallace Fox has in his claim only averred that four cartons of cigarettes were purchased. I’m not sure what kind of an accounting is requested, as the claim itself appears to “account” for his entire loss if proven.

It does not appear to accord with the balance of the pleadings or the principles related to an accounting by way of a lawsuit. [ 30 ] Paragraph 57.12 again is covered under paragraphs 57.1 and .2. [ 31 ] Paragraph 57.13 is asking for “Section 24 Charter damages.” It does not stipulate with any precision what damages have been suffered, nor establish any sort of a quantum for those damages. [ 32 ] Paragraphs 57.14 through 57.17 are fairly standard clauses that are added to the end of most claims issued in Courts in this province. [ 33 ] While Muskoday First Nation and the Muskoday Convenience and Gas Bar are named as Defendants in the claims, no relief is being sought against either of these Defendants.

Reference can be made to the opening sentence in paragraph 57 of the claim where, “Wallace Fox claims as against Saskatchewan.” That is the sole claim for relief in the document in question. [ 34 ] In addition to my concerns referred to above, about the majority of this claim being about declaratory relief, I note that a substantial portion of the claim is based upon an alleged breach of a contract. A copy of the contract referenced by Mr. Cherkewich was filed by him at the argument of this matter.

In that regard, I note that neither Wallace Fox nor any of the other proposed Defendants were signatories to that agreement. They would not, in my view, on a contractual basis, be entitled to the benefit of the agreement in their personal standings.

[ 35 ] Mr. Cherkewich indicated during argument that the agreement was one that was entered into after some litigation in the Court of Queen’s Bench. [ 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. [ 37 ] In addition, there is no claim being advanced against any potential Defendant other than the Government of Saskatchewan.

The other named potential Defendants should not have to “defend” a case where nothing is averred against them. [ 38 ] Further, insofar as the potential claims attempt to address contractual issues, there is no privity of contract between any of the claimants and the Government of Saskatchewan, let alone the other named Defendants. [ 39 ] Section 7(4) of The Small Claims Act contemplates a decision such as the present one.

It provides: “Where a judge refused to issue a summons, that refusal does not prevent a plaintiff from proceeding in the Court of Queen’s Bench or in any other manner authorized by law.” The claimants in this case are therefore free to pursue their action in that Court as they might wish. [ 40 ] Dated at the City of Prince Albert, in the Province of Saskatchewan, this 2 nd day of September, 2011. ______________________________ S. D. Loewen, J