Docket: 1793 Paul Medvid, Shaine Medvid v. Coreen Hardy, 2012 SKCA 48

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 48 Date: 20120425 Between: Docket: 1793 Paul Medvid, Shaine Medvid and Coreen Hardy Appellants (Plaintiffs) - and - Her Majesty the Queen in Right of Alberta, as represented by the Minister of Health and Wellness for Alberta Respondent (Defendant) - and - Her Majesty the Queen in right of Saskatchewan, as represented by the Minister of Health for Saskatchewan, Regional Health Authority #9, also known as Prince Albert Parkland Regional Health Authority, Prince Albert Parkland Health Region, and its predecessors, Regional Health Authority #1 also known as Sun Country Regional Health Authority, and its predecessors Regional Health Authority #5 also known as Sunrise Regional Health Authority, and its predecessors, Regional Health Authority #3, also known as Cypress Regional Health Authority, and its predecessors, Regional Health Authority #10, also known as Prairie North Regional Health Authority, and its predecessors, Lloydminster Health District, Alberta Health Services, and all of its predecessors, including, but not restricted to: Peace Country Health, and its predecessor Keeweetinok Lakes Regional Health Authority #15 Non-Parties

(Defendants) Coram: Klebuc C.J.S., Jackson and Herauf JJ.A. Counsel: E.F.A. Merchant, Q.C. and Nicholas Robinson for the Appellants Ward Branch for the Respondent Alberta Appeal: From: 2009 SKQB 222 Heard: April 26, 2011 Disposition: Dismissed Written Reasons: April 25, 2012 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Chief Justice Klebuc The Honourable Madam Justice Jackson

HERAUF J.A. I. Introduction [ 1 ] This is a companion appeal to the judgment released contemporaneously with this judgment. See 2012 SKCA 49 . [ 2 ] Paul and Shaine Medvid were the original plaintiffs in the action commenced pursuant to The Class Actions Act , S.S. 2001, c. C- 12.01.

The respondent Alberta, as represented by the Minister of Health and Wellness for Alberta (“Alberta”), brought an application under Rule 99(1) to challenge the jurisdiction of the Saskatchewan Court of Queen’s Bench. [ 3 ] Six days prior to Alberta’s jurisdictional application being heard, the Medvids sought to amend their pleadings to add Coreen Hardy as a plaintiff. [ 4 ] Alberta opposed the Medvids’ application on the basis that Rule 99(3) prohibits the taking of any further steps in the proceeding without leave when there is an unresolved jurisdictional challenge.

The Medvids submitted that Rule 99(3) must be read in light of Rule 166, which permits any party to amend pleadings once without leave. [ 5 ] The chambers judge accepted Alberta’s basic premise that Rule 99(3) is the governing provision. The chambers judge, however, granted leave to file the amended statement of claim so that it could be considered on the jurisdictional issue. The chambers judge also found that Rule 38(3) required Coreen Hardy to file her written consent to be added as a plaintiff.

The issue of costs was reserved pending the decision in the jurisdictional matter. [ 6 ] The Medvids appeal both the decision with respect to the application of Rule 99(3) and the decision regarding Rule 38(3). I conclude that the chambers judge made no error in relation to either determination. II.

The Relevant Queen’s Bench Rules of Court [ 7 ] Rules 99(1), 99(3) and 166 are as follows: 99(1) A defendant may apply to the court, within the time limited for delivery of a defence and before delivering the same, to object to the jurisdiction of the court, and such application shall not be deemed to be a submission to the jurisdiction of the Court. . . .

(3) Where an application is made pursuant to this rule, the plaintiff shall take no further step in the proceeding against the applicant, except with leave of the court, until five days after the application has been concluded. . . . 166 A party may amend any pleading filed by him in a proceeding once, without leave, at any time prior to the close of pleadings, and at any other time with the written consent of all the parties.

Rule 38(1) and 38(3) read as follows: 38(1) The court may, at any stage of the action, order that any person who ought to have been joined as a party or whose presence as a party is necessary to enable the court to adjudicate effectively and completely on the issues in an action be added as a party. . . .

(3) A person shall not be added as a plaintiff without his consent in writing being filed. III. Submissions of the Appellants

[ 8 ] The appellants maintain that Rule 99(3) does not restrict the clear right to amend without leave as provided in Rule 166. Furthermore, if Rule 99(3) did restrict Rule 166, there would need to be a procedure in place requiring the Local Registrar to ascertain if a Rule 99(1) jurisdictional application was underway before accepting a Rule 166 amendment to the pleadings. At the present time there is no such process in place.

More importantly, the appellants maintain that an amendment of pleadings is not a “further step” under Rule 99(3). [ 9 ] On the matter of Rule 38(3), the appellants contend that consent to be added as a plaintiff can be implicit and the formality of the Rule is not important. Rule 38(3) can be satisfied by a potential plaintiff filing an affidavit or implicitly, by the actions of their counsel in participating in the action. The purpose of Rule 38(3), according to the appellants, is designed to give notice to unwilling/unwitting plaintiffs, which is not the case here. IV.

Submissions of Alberta [ 10 ] Alberta’s position is that leave to amend pleadings is required once a Rule 99(1) application has been made. To accept otherwise would render Rule 99(3) meaningless. If Rule 99(3) is subject to the right to amend pleadings as provided by Rule 166, then it is subject to the other rights conferred by the Rules. This

interpretation would mean that a plaintiff could continue to take steps in a proceeding, which is exactly what Rule 99(3) is intended to prevent. [ 11 ] Alberta’s position on Rule 38(3) is that the Rule is not qualified and there is no option for implied or constructive consent. The formal approach required by Rule 38(3) ensures that a person is not unwillingly or unwittingly added as a plaintiff. V. Analysis [ 12 ] Both parties agree that the

interpretation of the Rules of Court is a matter of law and a misinterpretation is an error of law. The standard of review, therefore, is that of correctness. As well, there is no dispute that The Queen’s Bench Rules apply to class actions.

Section 44 of The Class Actions Act states: 44 The Queen’s Bench Rules apply to class actions to the extent that those rules are not in conflict with this Act. 1. Rule 99(3) – Jurisdictional Challenge Freezing Action [ 13 ] The word “proceeding” has always been broadly defined in law. Black’s Law Dictionary , 9 th ed., defines “proceeding” as “the regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment” and “an act or step that is part of a larger action.” Based upon these

definitions, it is difficult to envision that amendments to pleadings would not be considered a proceeding. In addition, the chambers judge relied upon a decision from British Columbia in support of her position. In Russell v. Hassan , [1993] B.C.J. No. 851 (QL) , the British Columbia Supreme Court held that an amendment to pleadings was a further step in the proceeding. [ 14 ] While it is acknowledged that Rule 166 confers the right to amend pleadings once without leave before the close of proceedings, this right is temporarily suspended when a jurisdictional objection has been filed and remains unresolved.

Rule 99(3) contains no exceptions, exemptions or qualifications that suggest an amendment to pleadings is not subject to Rule 99(3). To interpret the Rule otherwise would permit arguments that steps in the proceedings, other than amendments to pleadings, are not ousted by the plain meaning of Rule 99(3). [ 15 ] The suggestion that the Local Registrar would somehow be responsible for policing the filing of amendments to pleadings is not persuasive for a number of reasons.

Firstly, even if there was an obligation on the Local Registrar to ascertain if a Rule 99(1) application is underway before accepting a Rule 166 amendment, this does not mean that the Rule can be ignored. Secondly, if a Rule 166 amendment is filed prior to the determination of a Rule 99(1) application, the defendant can apply, as in this situation, to have the filing set aside. Thirdly, counsel for a plaintiff attempting to file a Rule 166 amendment should know that service of a Rule 99(1) motion would temporarily suspend such right. [ 16 ] Based upon these considerations, the chambers judge was correct in her

interpretation of Rule 99(3). The right to file an amendment to pleadings without leave as authorized by Rule 166 is suspended when a Rule 99(1) jurisdictional application is pending. 2. Form of Consent for Adding a Plaintiff [ 17 ] A person shall not be added as a plaintiff unless his or her written consent is filed. This literal

interpretation of the Rule leaves no

room for the flexibility advocated by the appellants. The Rule as it presently stands does not permit allowing implied consent on thebasis of an affidavit and/or conduct of counsel. [18] A more flexible approach can be found in the Federal Courts Rules, SOR/98-106. The equivalent Federal Court Rule requires that“no person shall be added as a plaintiff or applicant without his or her consent, signified in writing or in such other manner as the Courtmay order”. The Federal Court of Appeal, in South Yukon Forest Corp. v.

Canada, 2006 FCA 34, 345 N.R. 310, interpreted the Rule topermit consent on the basis of oral representations by counsel. [19] As well, there are no reported cases which suggest that the Rule was intended to apply to unwilling/unwitting plaintiffs only. Infact, there are many decisions, including two from this Court, that have reiterated that adding any plaintiff requires written consent. See:Dean v. Lucas and Howland (1956), (SK CA), 4 D.L.R. (2d) 366 and Kusch v.

Peat (1922), (SKCA), 63 D.L.R. 408. [20] With the onset of class action lawsuits it may be time to review the Rule to permit the flexibility as proposed by the appellants. This can be accomplished by a simple amendment to the Rule. At this point, it is inappropriate for this Court to go beyond the literalmeaning which bears no

interpretation other than the one set out by the chambers judge. VI. Conclusion [21] An amendment to pleadings as provided for in Rule 166 is subject to Rule 99(3) and requires leave of the Court before it can befiled. [22] The addition of a plaintiff requires the written consent of that plaintiff as set out in Rule 38(3). [23] The appeal is dismissed. As to costs in this Court, there is nothing to distinguish this appeal from the costs award in the companionappeal. In the result, Alberta is entitled to costs of the appeal to be assessed in the usual way.

DATED at the City of Regina, in the Province of Saskatchewan, this 25th day of April, A.D. 2012. “Herauf J.A.” HERAUF J.A. I concur “Klebuc C.J.S.” KLEBUC C.J.S. I concur “Herauf J.A.” as authorized by JACKSON J.A.