Christopher Belof Plaintiff - v. -, 2021 SKPC 60

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Date: December 3, 2021 Citation: 2021 SKPC 60 File: SC#263 of 2019 Location: Saskatoon _____________________________________________________________________________ Between: Christopher Belof Plaintiff - and - Saskatoon Board of Police Commissioners Defendant -and- Government of Saskatchewan Defendant -and- Saskatchewan Police Commission Defendant -and- Cst. Jarett Gelowitz Defendant N. Blenkinsop For the plaintiff S. Edmondson For the defendants, Saskatoon Board of Police Commissioners and Cst. Jarett Gelowitz

C. Ohashi For the defendant, Saskatchewan Police Commission L. Mazenc and A. Laplante For the defendant, Government of Saskatchewan ______________________________________________________________________________ FIAT R.D. JACKSON , J ______________________________________________________________________________ I INTRODUCTION [ 1 ] The plaintiff, Christopher Belof (Belof), has brought suit against the named defendants for laceration and contusion injuries sustained during the course of an arrest on May 20, 2017 occasioned by a police service dog. [ 2 ] Following several rounds of case management, the parties bring application to determine the following:

a) the plaintiff seeks further document production from the defendants, Cst. Jarett Gelowitz (Gelowitz), as the dog handler, and the Saskatoon Board of Police Commissioners (the Board); and

b) all defendants apply to be struck from the claim. II PLAINTIFF APPLICATION FOR DOCUMENT PRODUCTION [ 3 ] The defendants, Gelowitz and the Board, have provided significant document production to date in these proceedings: Description of Documents Pages General Occurrence Report 33 Detailed Call

Summary 13 Scene and Injury Photos 22 Saskatchewan Police Commission Policy Standard for Police Service Dogs 75 Saskatoon Police Service Dogs Policy 5 Training Records of Service Dog Viper Tracking 1-138 278 Criminal Apprehension 1-23 34 Building Search 1-19 19 Compound Search 1-5 5

Article Search 1-22 & Agility 1-10 32 Obedience 1-8 8 Socialization 1-6 7 Tracking 131

Criminal Apprehension 65 Building Search 19 2016-12-02 Patrol Dog Annual Certification Record 12 Public Complaints Commission Report Letter to Chief of Police 1 Letter to Christopher Belof 3 Email exchange re: complaint unsubstantiated 2 Redacted

summary of training of Cst. Gelowitz 23 [ 4 ] The plaintiff seeks the following documents in addition to those provided to date: 1) any and all documents relating to the decision to find Cst. Gelowitz unfit for duty that was made on or around August 24, 2018; 2) to the extent not already covered by the previous request for production of documents, any and all documents relating to the decision to terminate or fire Cst.

Gelowitz that was made in and around August 24, 2018; 3) to the extent not already covered by the previous requests for production of documents, any and all documents relating to the arbitration process which were filed or intended to be relied upon by the Saskatoon Board of Police Commissioners (aka the Saskatoon Police Service) in the arbitration or Police Act hearing process which resulted in Constable Gelowitz’s reinstatement; 4) to the extent not already covered by the previous requests for production of documents, any and all documents in Constable Gelowitz’s personnel file or files that is held by the Saskatoon Board of Police Commissions (aka Saskatoon Police Service) which relates to concerns about Cst.

Gelowitz’s conduct as a police officer as it relates to:

a) handling or mishandling of a police service animal;

b) handling or mishandling of a weapon;

c) use of force and in particular such actions that might be or were seen as excessive including ones which led to criminal charges, workplace disciplinary offences or civilian complaints; and

d) misunderstanding of the rights as guaranteed by the Canadian Charter of Rights and Freedoms (commonly known as the Charter ) including in relation in particular to arbitrary detention; 5) the Collective Agreement or other Agreement which exists as between the Saskatoon Board of Police Commissioners (aka the Saskatoon Police Service) and its members which operated to set the framework for the employment contract for police officers in Saskatoon at all relevant times to this claim including but not limited to the agreement which was in effect when Cst.

Gelowitz was fired and when he was reinstated. [ 5 ] Section 12(4) of the Small Claims Act [1] states: s. 12(4) Each party to the action must bring to the case management conference all relevant documents. [ 6 ] The modern approach to determining relevance, favours the narrower more focused approach rather than the broader more traditional view of relevance. [2] [ 7 ] The Provincial Court does not have rules of process for its civil proceedings.

It is instructive however to look at case law commentary in relation to the Court of Queen’s Bench Rule 5-18 [3] pertaining to relevance as it applies to practice in its courts: Scope, relevancy and materiality

. . . Thus, the broad relevance test no longer applies. Considerations of efficiency, timeliness in the conduct of litigation, and the cost control must be balanced with the interest of ensuring all potentially relevant information is known. Foundational Rule 1-3 reinforces this conclusion. Proportionality and balancing of interests are essential considerations in all aspects of the rules. See Canadian National Railway Co. v Clarke Transport , 2013 SKQB 394 [ 8 ] In Canadian National Railway , Mr.

Justice Scherman stated at paras. 20 – 25: [20] A commonly stated approach to the concept of relevance asks the question – Does the evidence offered, as a matter of logic and human experience, tend to prove or disprove a fact in issue? It needs to be noted that this iteration of relevance melds the distinct concepts of relevance and materiality into one omnibus concept of relevance that defines relevance by specific reference to a matter in issue. [21] There are two components to this melded concept:

i) The component of logical relevance. Does the proffered evidence tend as a matter of logic and human experience to prove or disprove the fact or matter for which it is offered; and ii) The component of whether the fact or matter is in issue in the action. This is the distinct realm of materiality. [22] What determines whether a fact or matter is material are the elements of the cause(

s) of action and what the parties have pled as being facts or their positions. Only if the matter is in issue in the action is the matter material, in a jurisprudential sense. If the matter qualifies as being material to the action, the next question is whether the evidence being proffered tends to prove or disprove the matter in issue. If the question does not relate to a matter in issue as particularized by the pleadings, then the matter is not relevant to any matter in issue. Proportionality [23] Materiality and relevance are concepts that do not have rigid boundaries.

The debate about whether a broad or narrow relevance test should be applied demonstrates that the concept of relevance can be applied narrowly and rigidly or broadly and with some flexibility. While delineating the boundaries of whether or not a matter is material can often be done with greater precision than delineating what is relevant, nonetheless materiality is not always clear cut.

A matter may fall outside the mark of clear materiality but remain debatable. [24] Where materiality or whether a matter is in issue and relevance fall into ranges where the matter is debatable, the decision whether a question or production demand is proper may need to address the proportionality considerations that flow from the principles outlined in the foundational rules. [25] If a matter is of only debatable, potential or marginal materiality or relevance then it is appropriate for the court, in making its decision and exercising its discretion, to do a cost/benefit analysis taking into account the considerations outlined in the foundational rules.

Where the materiality or relevance is uncertain, the cost imposed in time, expense or burden is significant or the benefit limited or unknown then proportionality considerations may well be the deciding factors. [ 9 ] Would documents relating to discipline and reinstatement proceedings [4] , arbitration hearings, personnel files relating to handling or mishandling of a police service animal or weapon, use of excessive force instances, Cst.

Gelowitz’s misunderstanding of the Charter of Rights and Freedoms [ Charter ] as well as a copy of the CBA of the Saskatoon Police Service have any connection to the facts pled concerning the dog bite incident or tend to prove or disprove the matter in issue? Clearly, the answer is no on both counts. [ 10 ] Rather, the documents requested for the most part appear to be an attempt to introduce propensity by way of similar fact evidence to assist in proving the plaintiff’s claim. Although the plaintiff maintains this is not his purpose, this is belied by his own submissions.

At para. 50 of the plaintiff’s brief, he states: [50] More importantly for this application, there are narratives that underpin the reason why this application is appropriate and should be granted.

First, the information being sought may contain other examples of instances where there is a real and substantial nexus between the current act and the previous ones: where the equipment malfunctions were blamed for injuries caused to innocent victims; where the constable similarly failed to exhibit due care in the harnessing or restraint systems employed or in the handling of other weapons; where the constable similarly provides an explanation or justifies his actions through an apparent misunderstanding of law as it

relates to the use of force, detentions and arrests. [ 11 ] The Supreme Court of Canada in R v Handy [5] stated at para. 37 in relation to similar fact evidence: [37] The policy basis for the exclusion is that while in some cases propensity inferred from similar facts may be relevant, it may also capture the attention of the trier of fact to an unwarranted degree.

Its potential for prejudice, distraction and time consumption is very great and these disadvantages will almost always outweigh its probative value. [ 12 ] Our Court of Appeal in Lumberjack v Canada (Attorney General) [6] held that “similar fact evidence” is presumptively inadmissible unless it can be demonstrated that its probative value would outweigh its prejudicial effect.

Further “. . . pretrial discovery in relation to similar fact evidence is not easy to come by when it entails allegations of discreditable conduct external to the cause of action.” [ 13 ] Also, further document production of the requested material would at best only be of “debatable, potential or marginal materiality” [7] and thus proportionality considerations are triggered. [ 14 ] In R v McNeil [8] the Supreme Court of Canada at para. 29 cautioned generally about document production in cases of this nature: [29] . . . the court must play a meaningful role in screening applications “to prevent the defence from engaging in ‘speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming’ requests for production”. . . .

The importance of preventing unnecessary applications for production from consuming scarce judicial resources cannot be overstated. [ 15 ] In the instant case, there has already been extensive document production by Cst. Gelowitz and the Board on a case which has now extended over several years.

Any further production would add extended delay and expense for documents of marginal and debatable utility at best. [ 16 ] The plaintiff also seeks the additional documents to challenge statutory immunity for police officers and oversight agencies and to demonstrate that the traditional concepts of vicarious liability no longer apply, exemplified in paras. 46, 65 and 66 of his written submission: [46] . . .

In considering the policy balance to be achieved, the current balance, which favours immunizing police officers from civil liability and requiring people injured as a result of police misdeeds to bear the cost, is anachronistic. It is a hold-over from a previous era. A time of unquestioned “rightness” of state action. A time of residential schools. In light of more recent societal and legal developments, the anachronistic desire to offer significantly greater barriers to civil actions against the police of (sic) police oversight bodies must be discarded.

A policy consideration that predates Black and Indigenous Lives Matter, the Truth And Reconciliation Commission, and The Inquiry Into Missing And Murdered Indigenous Women And Girls in Canada must now be given considerably less weight. In a time when it is recognized that the institutions of state – of the public – can injure and do injured (sic) certain disadvantaged groups disproportionality the policy is no longer particularly relevant.

This policy, tied to Colonialism and colonial patterns of belief, must be avoided. [65] In addition, it is anticipated that the documents requested will point to a process of information sharing and control that is exercised by the Saskatoon Board of Police Commission and the people managing the Saskatoon Police Service, including the Chief of Police.

It is anticipated that the employment relationship, which existed previously, at the time of those older decisions, is now a thing of the past – that the relationship between the Board and the individual police officers is much more complex and reflects traditional employer/employee relationships including access to administrative decision-making processes for adjudicating labour disputes. [66] In other words, that the relationship is, both in fact and in law, substantially different from that which existed when the original decisions around vicarious liability were handed down.

To the extent that the documents requested offer information in relation to this issue, they are logically probative and should be disclosed. [ 17 ] These bases for obtaining further documents do not relate to a matter in issue as particularized by the pleadings so therefore are not relevant to these proceedings. [9] The propriety of pursuing document production for these reasons will be discussed infra , under the second application before the Court. [ 18 ] For all of the foregoing reasons, the plaintiff’s application for further document production is dismissed.

III DEFENDANTS’ APPLICATION TO STRIKE [ 19 ] All defendants seek to be struck from the plaintiff’s claim relying upon s. 12 (6) (

a) and (

l) of the Small Claims Act :

12(6) If settlement attempts pursuant to subsection (5) have not resolved the dispute, a judge in a case management conference may do any of the following:

a) decide any issues that do not require evidence; . . .

l) make any order for the just, timely and inexpensive resolution of the action. [ 20 ] The plaintiff asserts that such application at this juncture is beyond the jurisdiction of the Provincial Court citing Saskatchewan Government Insurance v Williams , [10] as well as by applying ordinary meaning to the wording of these subsections. [ 21 ] In Williams-CA , the parties provided a written Agreed Statement of Facts at the outset of trial for the Court to determine whether the claim was statute-barred by the Limitations Act . [11] The issue turned on whether s. 5 (discoverability) was triggered as of the date of the accident or alternatively, the date of denial of coverage by Saskatchewan Government Insurance.

The trial court determination that the date of the accident was the appropriate starting point for the limitation period [12] was reversed on appeal to the Court of Queen’s Bench which favoured the date of denial by Saskatchewan Government Insurance as the date of discoverability. [ 22 ] On further appeal, the Court of Appeal remitted the case back for trial without addressing the issue of discoverability for the reasons as set out at paras. 8 – 10 of the decision: [8] The appeal was allowed by this Court for essentially two reasons.

Firstly, there is some doubt as to whether the Provincial Court has the jurisdiction to determine a point of law that does not dispose of an action in its entirety. The point of law relating to the limitation period did not dispose of the action, since liability and damages have yet to be determined. [9] Section 24(1) of the Small Claims Act , 1997 reads as follows: 24(1) Notwithstanding any other provision of this Act with the consent of the parties, a judge may decide a claim on the basis of written material filed with the court, whether or not the parties are present.

It is apparent by the use of the words “decide a claim” that all issues must be determined in order to utilize this provision. Once again, it is obvious that all issues were not settled. [10] Secondly, and in any event, regardless of the outcome of the appeal, liability and damages are live issues which must be dealt with at trial. If matters had proceeded to trial, there is the potential for the Provincial Court judge to resolve the dispute on the issue of liability without the necessity of dealing with the limitation period defence.

Since liability and damages continue to be live issues, the result of a trial on the limitation issue alone results in a bifurcation of proceedings. [ 23 ] The plaintiff in the within action maintains accordingly that Williams-CA is authority for the general proposition that the Court of Appeal has taken a restrictive approach to the Provincial Court’s jurisdiction, and by implication, that preliminary applications such as before the Court here are not permitted. [ 24 ] Further, the plaintiff asserts that upon a plain reading of s. 12(6)(

a) and (

l) of the Small Claims Act taken in context of s. 12 generally dealing with conduct of the case management, that these subsections should be interpreted as dealing only with procedural matters concerning the efficacy of the action itself. [ 25 ] The case of Saskatchewan Government Insurance v Valliere [13] dealt with jurisdictional limitation of the Provincial Court holding that, as a statute-based court, it has no inherent jurisdiction to deal with accident safety rating points which was in the exclusive purview of the Highway Traffic Board.

In other words, the Provincial Court has only the power and jurisdiction as granted by the Small Claims Act . [ 26 ] The defendants argue that Williams-CA is distinguishable on its facts and that ss. 12(6)(

a) and (

l) do provide the Provincial Court with the jurisdictional powers to strike defendants from the claim. [ 27 ] In Williams-CA , they assert, the Court of Appeal determined that in order to utilize s. 24(1) (now s. 26) of the Small Claims Act “to decide a claim”, that all other issues must be decided so as not to bifurcate proceedings. In the present application, the defendants are not seeking to have the claim decided, but rather, to be removed from the action if the criteria are met to do so pursuant to s. 12(6)(

a) and (l). These provisions were added by amendment to the Small Claims Act post- Williams-CA and were not, in any event, the issue before the Court of Appeal at that time.

[ 28 ] The Court agrees that the issues raised upon this application are separate and distinct from the issue upon which Williams-CA was decided. Further, that it could not have been intended that the Provincial Court would be forever shackled from making any determination concerning its own process, particularly where so authorized by clear wording of the statute. This

interpretation not only accords with common sense but also the express ratio set out in Valliere . [ 29 ] For the same reasons, the Court does not view s. 12(6)(

a) and (

l) of the Small Claims Act as being restrictive or to be narrowly applied to only procedural matters. The wording of these subsections is clear and unambiguous “to decide any issues that do not require evidence” and “make any order for the just, timely and inexpensive resolution of the action .” (emphasis added) This wording, in the Court’s view, statutorily expands and strengthens the powers of the Provincial Court to make such appropriate orders to facilitate cost effective, just, and proper utilization of the Court’s resources. [ 30 ] The question then is whether ss. 12(6)(

a) and (

l) apply to the circumstances of the individual defendants. Constable Gelowitz [ 31 ] Cst. Gelowitz was at all material times the handler of the police dog alleged to have caused injury to the plaintiff.

As a peace officer, he enjoys statutory immunity under s. 10(3) of the Police Act [14] : s. 10(3) No action lies or shall be instituted against a member . . . for any loss or damage suffered by any person by reason of anything in good faith done, caused, permitted or authorized to be done, attempted to be done or omitted to be done . . . [ 32 ] Tataquason v Saskatoon Board of Police Commissioners [15] was a similar case to the present where the plaintiff sustained injuries from a police service dog.

Kalmakoff, J (as he then was) discussed this statutory protection at paras. 33 and 34: [33] This does not mean, however, that police officers have carte blanche . They are not absolved from civil liability in all circumstances. Immunity provisions such as ss. 10(3) of the Police Act will not operate to provide immunity if it is established that a police officer’s conduct involves one or more of the following:

a) an intention to do harm;

b) a lack of bona fide belief in a set of facts that, if true, would stand as justification for the defendant’s behaviour;

c) dishonesty of intention;

d) knowledge of circumstances which ought to put the defendant with that knowledge on inquiry;

e) behaviour that is so markedly inconsistent with the relevant legislative context that a court cannot reasonably conclude that it demonstrated good faith. [34] Proof of such conduct establishes an absence of good faith, and takes the conduct outside the scope of immunity provided by the statute: Deren v Sask Power , 2015 SKQB 366 , at para 157 [ 33 ] In the instant case the plaintiff sets out at para. 18 of his pleadings: [18] It is unclear how the dog ended up becoming free of the handler:

a) if the handler intentionally released the dog, then the force he knowingly used against Mr. Belof means that he or she is liable for assault and battery; and

b) if the handler permitted the dog to escape, then he or she is liable in either gross negligence, negligence, scienter or more than one of the causes of action. [ 34 ] Intention to cause harm certainly, and gross negligence possibly, would demonstrate “absence of good faith” as described in Tataquason depriving Cst. Gelowitz of statutory immunity. Such however would be findings of fact that can only be determined on the

evidence before the trial judge. Therefore, the application to strike Cst. Gelowitz from the pleadings is dismissed. The Board of Police Commissioners The Government of Saskatchewan The Saskatchewan Police Commission [35] The plaintiff claims broadly against the remaining defendants (the “corporate defendants”) in scienter, negligence, breach offiduciary duty and breach of the Charter. [36] Like Cst. Gelowitz, these defendants have statutory “good faith” immunity pursuant to subsections 10(1) and (2) of the PoliceAct. Unlike the situation involving Cst.

Gelowitz, no facts have been pled in relation to these defendants which make any referencewhatsoever to any actions or non-actions which could establish an absence of good faith thereby depriving them of this statutoryprotection. [37] Similarly, no facts have been pled to substantiate any of these heads of liability as against these defendants.

A simple bare recitation of the heads of liability in the absence of supporting facts in the pleadings is insufficient to sustain the claim.[16] [38] In Dustyhorn Estate v Stickney[17], the Court of Appeal dealt with an application to strike pleadings against the Crown forpolice misconduct relating to breach of fiduciary duty and negligence. The application was granted both at law and on the facts as theCrown owed no private law duty of care and because the pleadings did not disclose sufficient facts to maintain these claims (see paras. 9– 14). [39] Further, even if Cst.

Gelowitz were to be found responsible in any respect, no liability can flow through to any of thesedefendants. It is well established law in Saskatchewan that vicarious liability cannot extend to third parties for the actions of individual police officers.[18] [40] In Munir, Mr. Justice Danyliuk stated at paras. 5 – 15: [5] The plaintiff’s claim against the Board essentially falls into two categories: (

a) the Board owed the plaintiff a duty of care and was negligent (statement of claim, paragraphs 36, 37 and 39); and (

b) the Board is vicariously liable for the acts of the police officers (statement of claim, paragraph 40). [6] The vicarious liability claim is readily dealt with. The plaintiff alleges such liability for the Board based upon s. 32 of The Police Act,1990, SS 1990-91, c P-15.01 [Act]. There are two difficulties with this allegation. [7] First, it is an improper

interpretation of that statute.

Section 31 of the Act is effectively a deeming provision, making police officersemployees but only for limited purposes. Broadly speaking, police officers are public servants. As a result, the legislation creates nogeneral vicarious liability for civil wrongdoing. Further, s. 32 is cited by the plaintiff to support the proposition that the Board isvicariously liable. However, that

section only provides that if a civil action is commenced against an officer, the Board has a duty toprovide legal representation and, ultimately, to pay any damage award in the event such claim is successful. There is no provisionmaking the Board liable for officers’ acts. [8] Decisions from Saskatchewan courts have long been clear and consistent that notwithstanding the legislation, there is no vicariousliability on the part of entities such as the Board.

There are many decisions in this regard, and I have duly considered the following:Bryden v Corman Park Board of Police Commissioners, 2012 SKQB 437; Markwart v Prince Albert (City), 2012 SKQB 411, 407 SaskR 3; Brown v Walz, 2012 SKQB 132, 395 Sask R 180; Markwart v Prince Albert (City), 2010 SKQB 312; Lucas v Faber, 2008 SKQB25, 309 Sask R 177; Whatcott v Prince Albert Board of Police Commissioners, 2005 SKQB 160, 263 Sask R 36; Holowachuk v Mollard,2004 SKQB 276; Padar v Regina (City), 2002 SKQB 311, 222 Sask R 170; Klein v Regina (City) Police Service (1995), (SK KB), 130 Sask R 203 (QB); B.(J.) v T.(H.), (Sask QB); Geller v Reimer, (Sask HRT);Penn v Saskatoon (City) Police (1986), (SK KB), 44 Sask R 312 (QB); aff’d (1987), (SK CA), 56Sask R 314 (CA); and Empringham v Regina (City) (1984), (SK KB), 34 Sask R 141 (QB). [9] There is no basis for the plaintiff’s claim against the Board on the footing of vicarious liability.

At law, such a claim cannot bemaintained. In this case, any claim against the Board brought on this basis must be struck. [10] Secondly, the plaintiff alleges the Board owed the plaintiff a duty of care and was negligent (statement of claim, paragraphs 36, 37and 39). This aspect of the plaintiff’s claim also fails.

[11] The above cases illustrate the principle that police officers are agents of the public, as opposed to being agents of a particular entity. Their duties are public duties. [12] Similarly, the Board does not have duties owed to particular private members of the public. Section 31(1) of the Act sets out the Board’s responsibilities. These include delivery of police services within the municipality; general direction, policy and priorities; and developing long-term plans.

These do not include a duty to a private member of the public such as the plaintiff. [13] This was illustrated in Dustyhorn Estate v Stickney , 2005 SKCA 31 , 250 D.L.R. (4th) 520. There, the plaintiff alleged that the Crown was negligent in terms of supervision. As stated at paragraph 12: [12] … The basis for the claim is that the Crown breached the duty of care to ensure, at the very least, all police officers as a matter of general practice were sensitive to the need to discharge their duties in a non-discriminatory, non-prejudicial way.

In the instant case, the plaintiff’s claim is similar. [14] Further, the test to apply is set out at paragraphs 13 and 14 of Dustyhorn Estate v Stickney . In applying that test to the facts alleged in the statement of claim (assuming those facts to be true) and in considering the wording of the applicable statute, I find there is not sufficient proximity to determine that the Board owed this plaintiff some private law duty of care.

On this pleading, no reasonable cause of action against the Board has been established. [15] As a result, the plaintiff’s claim against the Saskatoon Board of Police Commissioners is struck in its entirety. [ 41 ] This authority has been followed in many subsequent cases including Tataquason where plaintiff counsel in the present case was, in fact, counsel in that proceeding as well. [ 42 ] The plaintiff invites the court to disregard these authorities stating in his written brief (amplified in oral argument) at paras. 53 and 57: [53] There is a preponderance of case-law from Saskatchewan which finds and reiterates the body statutorily responsible for a police service in Saskatchewan cannot be held vicariously liable for the actions of its members.

This case-law, was recently reviewed by Mr. Justice Danyliuk ( Munir ). This decision, like all of the decisions to do with this same issue, simply rests on the ratio handed down through the ages with no real analysis. [57] Though this reasoning was perhaps sound some 150 or perhaps even 50 years ago, given the evolution of the law in relation to liability to municipal corporations and their agents who perform “public services”, this principle is now very much in doubt.

Further, in light of the evolution of law in other provinces in Canada which have permitted victims of police action to recover from municipal or similar corporations legally responsible for police service without any obvious untoward reduction in the quality of the police services offered, there is no reasonable basis for this continued attachment to a legal principle so discordant with the realities of policing in Saskatoon today. [ 43 ] Irrespective however as to whether any of what the plaintiff suggests is true or otherwise, this Court is nonetheless bound by the superior court authorities of Munir and other like decisions.

Further, one could query whether vicarious liability could even be established on the facts pled in the instant case whereby an employer-employee relationship or any other element of control exists by the defendants over Cst. Gelowitz. [19] [ 44 ] The plaintiff maintains further that such precedents, as well as the existence of s. 10 statutory immunity in the Police Act , deprives marginalized victims from seeking redress for police misconduct.

Examples cited in the plaintiff’s brief include: 12) Police oversight and scrutiny are live issues in Saskatchewan, as in the rest of North America. 13) This is a time of Black and Indigenous lives matter. 14) This is a time when society is working to wrestle with the way in which police engage with people from traditionally disadvantaged

groups: people who are Black; people who are Indigenous; people who live with mental health and substance use problems. 15) There are concerns being raised about the adequacy of the systems of police scrutiny and oversight here, as elsewhere in North America. 20) In other words, unlike almost all other provincial jurisdictions in Canada, people in Saskatchewan who are injured by police, have essentially no means of being compensated for the loss occasioned by their physical injuries. 21) This lack of access to civil damages for injuries must also be considered in light of the identity of the people most likely to be injured.

According to Statistics Canada, although Indigenous people represent only 14% of the population of Saskatchewan, they represent at least 75% and, in some reports, more than 85% of the prison population. 22) In addition, people living with mental health issues, including substance use issues are similarly over-represented – that being more than 73% of federal prisoners. 35) Given that the origin of the principles as enunciated in the case-law that allows police employers to avoid vicarious liability is now more than a 100 years old; predates evolutions in civil law to do with liability of agents of the government; predates the evolution of Charter damages; predates the Truth and Reconciliation process; predates Black and Indigenous lives matter; there exists a real question as to whether the anachronistic protection of police officers should be maintained as part of the “living tree” of the law in Canada. [ 45 ] It is significant to note that none of these disadvantaged groups referred to in the plaintiff’s brief form any part of the pleadings or have the remotest relevance or rational connection to them.

Rather, reference to this seems to be for the sole purpose of establishing a platform to effect fundamental change in the law as it impacts societally marginalized and disadvantaged citizens. However laudable the intention, this distorts the purpose of an action such as before the Court. As Madam Justice Rothery stated in Smerek at para. 75 : [75] Counsel for the plaintiffs submits that the plaintiffs ought to be allowed to come to court to have a discussion about the matters raised in their claim. As shown by the prayer for relief, the plaintiffs want to discuss uranium mining and its effect.

However, this forum is not Speaker’s Corner in Hyde Park, London. A court of law is the forum to adjudicate legitimate legal issues between litigants. [ 46 ] This is perhaps even more apt when discussing the role of Provincial Court in civil matters. This Court is structured primarily to be a cost and time efficient dispute forum for the recovery of “debt and damages”. [20] As a statute-based court, it has neither the expanded process or inherent jurisdiction to act as a vehicle to mount lengthy constitutional or precedential challenges to the law. This is the purview of the superior courts.

Such attempts to incorporate broader social agendas into otherwise straightforward claims in this Court must be discouraged in the strongest terms possible. [ 47 ] For all of the foregoing reasons, no evidence is required to decide the issues against the corporate defendants. The plaintiff is unable in law to succeed against them.

Further, to require their continued participation in this lawsuit would be time-consuming, costly and unjust. [ 48 ] In the result, the actions against the Board of Police Commissioners, the Saskatchewan Police Commission and the Government of Saskatchewan are ordered struck from this claim. [ 49 ] There is no order as to costs. _____________________________ R.D. Jackson, J

[11] The Limitations Act , SS 2004, c L-16.1