SABRINA DYKSTRA, JILL FORRESTER, RYAN HEISE, KAYLA HOPKINS, LYNN OLIPHANT, HAROLD PEXA, AMY SNIDER, v. CLIMATE JUSTICE SASKATOON ORGANIZATION INC., 2023 SKKB 118

KING ’S BENCH FOR SASKATCHEWAN 2023 SKKB 118 Date: 2023 06 08 Docket: KBG-RG-00848-2023 Judicial Centre: Regina BETWEEN: SABRINA DYKSTRA, JILL FORRESTER, RYAN HEISE, KAYLA HOPKINS, LYNN OLIPHANT, HAROLD PEXA, AMY SNIDER, and CLIMATE JUSTICE SASKATOON ORGANIZATION INC.

APPLICANTS - and – SASKATCHEWAN POWER CORPORATION, CROWN INVESTMENTS CORPORATION OF SASKATCHEWAN and THE GOVERNMENT OF SASKATCHEWAN RESPONDENTS CORRECTED JUDGMENT: The text of the original judgment has been changed per the corrigendum released June 21, 2023. (A copy of the corrigendum is appended to this corrected judgment.) Counsel: Glenn Wright for the applicants Colin Hirschfeld, K.C. for the respondents, Saskatchewan Power Corporation and Crown Investments Corporation Elaine Thompson, K.C. for the respondent, Government of Saskatchewan FIAT ROBERTSON J.

June 8, 2023 INTRODUCTION [ 1 ] This decision addresses an application under Rule 2-14(1)(

c) of The Queen’s Bench Rules to allow a minor, Sabrina Dykstra, to participate as one of the applicants without a litigation guardian. For the reasons which follow, the application is

dismissed.

BACKGROUND [2] Effective on January 1, 2018, the Government of Saskatchewan adopted The Management and Reduction ofGreenhouse Gases (General and Electricity Producer) Regulations, RRS c M-2.01 Reg 1, under The Management and Reduction ofGreenhouse Gases Act, SS 2010, c M-2.01. [3] On March 31, 2023, the applicants filed an Originating Notice for an order declaring those provincialregulations to be in breach of the applicants’ rights under sections 7 (right to life, liberty and security of the person) and 15 (equalityrights) of the Canadian Charter of Rights and Freedoms and for other relief. [4] On April 10, 2023, the applicants filed notice of application for an order: to allow one of the applicants,Sabrina Dykstra, to proceed in this matter as an adult, pursuant to Rule 2-14(1)(

c) of The Queen’s Bench Rules; and to appoint a judgefor this action under Rule 1-5(1) to remain seized throughout the proceedings. [5] On June 6, 2023, the applications were heard in chambers. The parties agreed to adjourn the originatingapplication sine die. The application to appoint a judge was deferred by agreement of the parties. The application under Rule 2-14proceeded and was not opposed. Decision on that application was reserved. ISSUE [6] The only issue is whether the court should allow the applicant, Sabrina Dykstra, to participate as an adult,rather than by litigation guardian?

ANALYSIS Rule 2-14 application to proceed as adult [7] Rule 2-14 is reproduced below: Minor may proceed as adult or by litigation guardian 2-14(1) A minor may commence, continue or defend a proceeding as if of the age of majority if: (

a) the minor is party to a proceeding as a spouse or a co-respondent and the proceeding is a family law proceeding; (

b) the minor is represented by a lawyer appointed by The Saskatchewan Legal Aid Commission; (

c) before or after commencing the proceeding, the minor obtains the leave of the Court.

(2) A minor may sue for wages as if of the age of majority.

(3) Except where otherwise provided, a minor may commence, continue or defend a proceeding by a litigation guardian. [8] “Minor” is defined by The Legislation Act, SS 2019, c L-10.2, s 2-29 as a person under 18 years of age. [9] Sabrina Dykstra is 15 years old and attending Tommy Douglas High School in Saskatoon, Saskatchewan. Hercounsel described her as a mature minor. Her parents, Gregory Miles Dykstra and Claire Dykstra, filed supporting affidavits. Bothdescribe their daughter as mature for her age, healthy and well-informed and engaged in community.

Her counsel told the court thatwhile her parents support her application, they would be willing to serve as litigation guardian if the application is not granted. [10] Counsel was unable to point to any precedent authority or accepted test to apply for exercise of the court’sdiscretionary authority under Rule 2-14(1)(c). Ms. Dykstra’s counsel did provide a brief of law which referred to legislation and case lawpertaining to mature minors giving evidence and making health decisions. While interesting, those cases have limited application.

Itherefore reviewed other cases for guidance. [11] A litigation guardian is responsible for making the decisions necessary to protect and promote the individual'slegal action, taking all reasonable and necessary steps to protect the individual's interests. The litigation guardian must be a trustedperson who will act in the individual’s best interests.

The litigation guardian is not a party, but may be held personally liable for anyfinancial consequences that result from the litigation, including any award of costs, although those costs may be recoverable from theindividual. [12] Stachuk v Nielsen (1958), (SK KB), 26 WWR (ns) 567 (Sask QB) involved an appeal fromDistrict Court against the decision of the District Court judge to award costs against the lawyer for an infant defendant in a small debtaction (under $100). The infant (under 21 years of age) did not have a litigation guardian.

Davis J. ruled that the requirement for alitigation guardian under the then Queen’s Bench Rules did not apply to small debt actions and even if it did, non-compliance was notfatal. In doing so, Justice Davis commented at pages 568-569 on the purpose of the requirement for litigation guardian: An infant has the capacity at common law to sue and to defend himself. Q.B.R. [Queen’s Bench Rules] 59 provides that an infant maysue as a plaintiff by a next friend and may defend by a guardian appointed for the purpose.

The purpose of the rule is to protect adefendant for costs in an action by an infant plaintiff, and to protect an infant defendant, in the sense that an infant shall benefit by theguidance of an adult. There is ample authority that non-compliance with this Rule is but an irregularity and does not necessarily nullifythe proceedings taken. In Ralph v. Mueller [1945] OWN 727, at p. 729, Urquhart, J. said:

“While it is desirable that a case against an infant should not proceed without the appointment of a guardian ad litem, yet in actions oftort the appointment of a guardian has been held not to be imperative, especially if, as in this case, the defendant is nearly of age, andfailure to appoint such does not necessarily invalidate proceedings: Straughan v. Smith (1890) 19 OR 558; York v.

Schwartz (1927) 32OWN 329, affirmed 33 OWN 142.” [13] McKenna v Nolan (1959), (SK CA), 21 DLR (2d) 120 (Sask CA) involved an appeal aboutapportionment of damages under The Fatal Accidents Act, RSS 1953, c 102, where some of the persons interested were infants. The Court of Appeal, in concurring judgments at pages 120 and 122-123, heldthat the apportionment of damages should not have been made without having a guardian appointed to represent the children and protecttheir interests. Gordon J.A. wrote at 122-123: The rights of an infant defendant are very clearly set forth by Lamont, J. in Westaway v.

Hamer (1908), 1 S.L.R. 50. It is very clear thatexcepting in rare cases the Court will not make an order affecting the rights of infants without having them represented by guardians adlitem or the Official Guardian. The authorities make it clear that no one should be appointed guardian ad litem who has any interestadverse to the infant. It is equally clear that where the rights of the infant have been fully protected by a solicitor acting for him at thetrial and no objection taken at the trial on the ground of infancy, a Court of Appeal will not interfere. The case of Straughan v.

Smith(1890), 19 O.R. 558, is authority for this statement. But where there are young children interested who have conflicting interests, noorder should be made without having a guardian appointed to protect those interests. In the case of Vano v. Canadian Coloured CottonMills Co. (1910), 21 O.L.R. 144, Mr. Justice Riddell directed the Official Guardian to appear on the taxation of the solicitor-and-clientcosts of the next friend of the infant involved. [14] Litigation is serious business. Generally, only adults are parties to an action.

Parties to an action haveresponsibilities and potential liabilities, including for costs. [15] Rule 2-14 allows minors to participate in an action, but only in certain specified circumstances as set out in Rule2-14(1)(a), (

b) and (2). Rule 2-14(1)(

c) provides a residual discretion for the court to allow a minor to participate as an adult. In my view,the specified circumstances provide guidance to the exercise of the court’s residual discretion under Rule 2-14(1)(c). Since it is anexception to the rule requiring a litigation guardian, there should be circumstances present that establish a real need or necessity for theminor party to be treated as an adult. I do not find that to be the case here. [16] Ms. Dykstra’s counsel argued that the applicants intend a representative group of applicants and SabrinaDykstra provides a youth representative.

Since this is public interest litigation which in part expresses public concern with climatechange, her involvement is important. While I understand the intent, this strikes me as more of a preference than a necessity. [17] First, there are several individual applicants who are adults, so the application will proceed with or withoutSabrina Dykstra. Second, it appears that dismissing the application will not prevent Ms. Dykstra from continuing to participate, sinceboth of her parents are willing to serve as litigation guardian. This is preferable, since she remains under their care.

Nothing is lost andsomething might be gained by their involvement. [18] For these reasons, I dismiss the application. The application was not opposed and there is no award of costs. Case management judge [19] While the application for appointment of a judge did not proceed, I did refer counsel to Rule 4-5 which providesfor a request to the Chief Justice for appointment of a case management judge.

The application for case management is made to theChief Justice in Form 4-5 – Request for Case Management Order. [20] For ease of reference, Rules 4-5 to 4-9 are reproduced below: Request for case management 4-5(1) A request for a case management order must be in Form 4-5 and made to the Chief Justice, and a copy of the request must beserved on every other party.

(2) The request must state whether any other party agrees with the request.

(3) An action commenced or continued pursuant to The Class Actions Act must have a designated judge for case management appointedpursuant to rule 3-90. Appointment of case management judge 4-6 The Chief Justice may order that an action be subject to case management and appoint a judge as the case management judge for theaction after having considered all the relevant circumstances, including any or all of the following: (

a) the purpose and intention of the rules described in rule 1-3; (

b) the complexity of the issues of fact or law; (

c) the importance to the public of the issues of fact or law; (

d) the number and type of parties or prospective parties, and whether they are represented; (

e) the number of proceedings involving the same or similar parties or causes of action; (

f) the amount of intervention by the Court that the proceeding is likely to require;

(

g) the time required for questioning, if applicable, and for preparation for trial or hearing; (

h) the number of expert witnesses and other witnesses; (

i) the time required for the trial or hearing; (

j) whether there has been substantial delay in the conduct of the proceeding. Authority of the case management judge 4-7(1) A case management judge, or, if the circumstances require, any other judge, may: (

a) order that steps be taken by the parties to identify, simplify or clarify the real issues in dispute; (

b) set or adjust dates by which a stage or a step in the action is expected to be complete and order the parties to comply with the dates; (

c) make an order to facilitate an application, proceeding, questioning or pre-trial proceeding; (

d) make an order to promote the fair and efficient resolution of the action by trial; (

e) facilitate efforts the parties may be willing to take towards the efficient resolution of the action or any issue in the action through negotiation or a dispute resolution process other than trial; and (

f) make any procedural order that the judge considers necessary.

(2) Unless the Chief Justice or the case management judge directs otherwise or these rules provide otherwise, the case management judge shall hear every application filed with respect to the action for which the case management judge is appointed. Appearance at case management conference 4-8 A case management conference may take place either by personal appearance, video conference, teleconference or a combination of them. Case management judge presiding at

summary judgment hearing and trial 4-9 Unless every party and the judge agree, a case management judge shall not hear an application for

summary judgment or preside at the trial of the action for which the case management judge is appointed. J. D.N. ROBERTSON KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 118 Date: 20 23 06 21 Docket: KBG-RG-00848-2023 Judicial Centre: Regina BETWEEN: SABRINA DYKSTRA, JILL FORRESTER, RYAN HEISE,

KAYLA HOPKINS, LYNN OLIPHANT, HAROLD PEXA, AMY SNIDER, and CLIMATE JUSTICE SASKATOON ORGANIZATION INC. APPLICANTS - and - SASKATCHEWAN POWER CORPORATION, CROWN INVESTMENTS CORPORATION OF SASKATCHEWAN and THE GOVERNMENT OF SASKATCHEWAN RESPONDENTS Counsel: Glenn Wright for the applicants Colin Hirschfeld, K.C. for the respondents, Saskatchewan Power Corporation and Crown Investments Corporation Elaine Thompson, K.C. for the respondent, Government of Saskatchewan June 21, 2023 ROBERTSON J. CORRIGENDUM to FIAT of (June 8, 2023) (2023 SKQB 118) [ 21 ] Paragraph 1 should read: This decision addresses an application under Rule 2-14(1)(

c) of The Queen’s Bench Rules to allow a minor, Sabrina Dykstra, to participate as one of the applicants without a litigation guardian. For the reasons which follow, the application is dismissed. [ 22 ] Paragraph 15 should read: Rule 2-14 allows minors to participate in an action, but only in certain specified circumstances as set out in Rule 2-14(1)(a), (

b) and (2). Rule 2-14(1)(

c) provides a residual discretion for the court to allow a minor to participate as an adult. In my view, the specified circumstances provide guidance to the exercise of the court’s residual discretion under Rule 2-14(1)(c). Since it is an exception to the rule requiring a litigation guardian, there should be circumstances present that establish a real need or necessity for the minor party to be treated as an adult. I do not find that to be the case here. J. D.N. ROBERTSON