STAN SHEPPARD PLAINTIFF - v. -, 2024 SKKB 9

KING’S BENCH FOR SASKATCHEWAN Citation: 2024 SKKB 9 Date: 2024 01 26 File No.: KBG-RG-02044-2023 Judicial Centre: Regina BETWEEN: STAN SHEPPARD PLAINTIFF - and - SUN COUNTRY HEALTH AUTHORITY DEFENDANT - and - KEITH HOWSE DEFENDANT - and - VILLAGE OF PANGMAN DEFENDANT Counsel: Stan Sheppard self-represented plaintiff D. K. Nkruman-Young for the defendant, Village of Pangman Reg Watson, K.C. and for the defendants, Sun Country Health Luc Chabanole, student at law Authority and Keith Howse ___________________________________________________________________________ JUDGMENT ROBERTSON J. January 26, 2024 ___________________________________________________________________________

INTRODUCTION [ 1 ] This decision addresses an application by the Defendant, Village of Pangman [Village], to strike a claim under Rule 7- 9 of The King’s Bench Rules because it fails to disclose a cause of action and is otherwise barred by a limitation period. For the reasons which follow, the application is granted, primarily because the statement of claim was filed and served well after the expiry of the applicable limitation periods.

BACKGROUND [ 2 ] The Village, in support of its application, filed a brief of law and an affidavit of Patti Gursky [Gursky Affidavit], administrator of the Village of Pangman and Rural Municipality of Norton No. 69 [RM], sworn October 3, 2023. [ 3 ] Mr. Sheppard filed his affidavit [Sheppard Affidavit] sworn October 25, 2023. [ 4 ] No other materials were filed on the application, apart from the draft amended statement of claim filed by Mr.

Sheppard at court on January 11, 2024. [ 5 ] The following events are apparent from the material filed: 2021 September 10 Pangman Fire Department responds to a call for help from Stan Sheppard and attends to SE 4-8-20 W2. Keith Howse in ambulance transports Mr. Sheppard to hospital (statement of claim para. 1; Gursky Affidavit paras. 3-4; & Exhibit

C) Invoice was sent to Stan Sheppard for $2,400 for the service call (Gursky Affidavit para. 8; Exhibit E; & statement of claim para. 5) December 31 Second invoice sent to Stan Sheppard (Gursky Affidavit para. 9; & Exhibit F) 2022 August 31 Mr. Sheppard pays $2,688 to RM, representing the $2,400 fee for service and a $288 penalty for late payment of property taxes (statement of claim para. 7; & Gursky Affidavit para. 12) 2023 September 8 Mr. Sheppard files the statement of claim (court file) September 12 Mr.

Sheppard attempts to serve the statement of claim at RM municipal office, speaking with Patti Gursky (amended statement of claim para. 2; Sheppard Affidavit para. 2) September 27 Sun Country Health Authority [Sun Country] and Keith Howse file a notice of intent to defend (court file) Village files notice of intent to defend (court file) September 29 Defendant Mr. Howse files an appearance day notice for Mr. Sheppard to provide particulars of claim (court file) October 4 Village files a notice of application to strike claim (court file) October 17 Robertson J. adjourns the application to give Mr.

Sheppard time to prepare and file materials in reply (court file) November 2 Mitchell J. adjourns application with direction for Mr. Sheppard to file a reply brief of supporting materials no later than December 21, 2023 (court file) 2024 January 4 Klatt J. adjourns application with direction for Mr. Sheppard to file an affidavit and brief of law by January 9, 2024 (court file) January 10 Statement of defence filed by Sun Country and Mr. Howse (court file) Mr.

Sheppard attempts to file an application to amend the statement of claim, but it is rejected as it is not in compliance with filing deadlines January 11 Robertson J. hears the application to strike the claim, allows filing of an application to amend statement of claim, and reserves his decision (court file) ISSUES [ 6 ] The issue is whether the statement of claim should be struck as against the Village. This involves two questions: 1. Does the statement of claim disclose a cause of action? 2. Even if it does, would that claim be barred by the limitation period?

ANALYSIS Self-Represented Plaintiff [ 7 ] Mr. Sheppard is self-represented. As such, the court has been more indulgent to him than might otherwise be the case. The Village’s application was adjourned three times at his request. Each time, the chambers Judge provided direction and deadlines for filing materials in reply to the application. Mr. Sheppard did not comply with those directions or deadlines. Further Adjournment Denied [ 8 ] At the hearing on January 11, 2024, Mr. Sheppard requested a further adjournment. The other parties objected to an adjournment. I denied the requested adjournment because Mr.

Sheppard had been given previous opportunities to file materials. Amended Statement of Claim Considered [ 9 ] With the consent of counsel for the other parties, I allowed Mr. Sheppard to file his application to amend his statement of claim. I will consider that amended statement of claim on the Village’s application to strike the claim. Rule 7-9 of The King’s Bench Rules [ 10 ] The King’s Bench Rules in Rule 7-9 provides for striking of claims: Striking out a pleading or other document, etc. in certain circumstances 7-9

(1) If the circumstances warrant and one or more conditions pursuant to subrule (2) apply, the Court may order one or more of the following: (

a) that all or any part of a pleading or other document be struck out; (

b) that a pleading or other document be amended or set aside; (

c) that a judgment or an order be entered; (

d) that the proceeding be stayed or dismissed.

(2) The conditions for an order pursuant to subrule (1) are that the pleading or other document: (

a) discloses no reasonable claim or defence, as the case may be; (

b) is scandalous, frivolous or vexatious; (

c) is immaterial, redundant or unnecessarily lengthy; (

d) may prejudice or delay the fair trial or hearing of the proceeding; or (

e) is otherwise an abuse of process of the Court.

(3) No evidence is admissible on an application pursuant to clause (2)(a). [ 11 ] The test for striking a claim is whether, accepting the facts alleged in the statement of claim, there is no reasonable chance that the claim could succeed. The jurisdiction to strike a claim should only be exercised in plain and obvious cases where the matter is beyond doubt. Cause of Action? [ 12 ] The statement of claim, although poorly worded, challenges the Village’s authority to unilaterally charge for attendance of the Fire Department. From the statement of claim, I gather that Mr.

Sheppard made payment, and seeks to recover the $2,688 paid to the Village. The Village argues that the charge was authorized by bylaw. While the charge may be valid, it is not plain and obvious that a challenge to the charge could not succeed. [ 13 ] The claim also seeks damages for alleged defamation by Kenneth Howse who is described as “… one of the Pangman Fire Department First Responders and employee of Sun Country Health Authority…”. There are no specifics of the alleged defamation. No reply to particular was filed to elaborate on the alleged defamation. [ 14 ] Mr.

Howse’s precise relationship to the Village is unclear from the statement of claim. In as much as he may have been a volunteer worker as defined by s. 354 (

c) of The Municipalities Act, SS 2005, c M-36.1 [ Act ], the Village could be vicariously liable under s. 356 of the Act . He would also then be covered by the municipal limitation period. [ 15 ] The statement of claim does not contain any specific allegation of defamation. The purpose of pleadings is to ensure everything alleged is known so that parties can respond. Here, there is simply nothing that could constitute defamation. The defamation claim should therefore be struck, at least as against the Village. [ 16 ] The amended statement of claim alleges defamation by the administrator of the Village.

Patti Gursky is not named as a party, but I will still address the alleged claim of defamation since the Village might be vicariously liable.

[ 17 ] The alleged defamatory words are indicated in the amended statement of claim at para. 2 a): … When the Plaintiff asked her [Patti Gurskey] who he should serve she gave the name of five Village of Pangman counsellors [sic] one of them being Richard Strobl as potential people to serve the Statement of Claim on.

When the Plaintiff told Patti Gursky that he would serve Richard Strobl she raised her voice and said “you won’t need to serve him, he doesn’t need your bullshit.” The Plaintiff claims that the words of Patti Gursky are new defamation as of September 12, 2023 and are also evidence that the defamation carried on previously by Keith Howse was working and was having the effect in the community of defaming the Plaintiff. … [ 18 ] While raising your voice and using foul language is rude – and normally inappropriate when a civil servant speaks with a citizen – the words allegedly used are manifestly not defamatory.

This claim is struck. Barred by Limitation Period? [ 19 ] According to the statement of claim, the claim relates to an incident which occurred on September 10, 2021. The statement of claim was issued on September 8, 2023, or almost two years later. [ 20 ] There is no affidavit of service or acknowledgement of service filed for the statement of claim. It must have been served sometime between September 9 and 20, 2023, since notice of intent to defend is dated September 20, 2023. [ 21 ] According to the statement of claim, Mr.

Sheppard attempted to serve his statement of claim at the RM municipal office on September 12, 2023. I therefore accept this date as the date of service. [ 22 ] I pause to observe that if the municipal administrator refused to accept service at the RM municipal office and instead told Mr. Sheppard to personally serve a member of council, as alleged in the statement of claim, she was wrong to do so. Rule 12-5(

a) of The King’s Bench Rules expressly provides for service of the clerk or secretary. That service is normally done at the municipal office. Service on corporation 12-5 Subject to the express provisions of any enactment, service of a document may be made: (

a) on a municipal corporation, by leaving a copy of the document with the mayor, reeve, clerk or secretary of the municipal corporation or their respective deputies; … [ 23 ] In any event, on its face, the claim against the Village would be barred by the one-year limitation period in ss. 344(1) of the Act : Limitation of actions against municipalities 344

(1) Notwithstanding The Limitations Act [ SS 2004, c L-16.1 ] , no action is to be brought against a municipality for the recovery of damages after the expiration of one year from the time when the damages were sustained, and no such action is to be continued unless service of the statement of claim is made within that one-year period. [ 24 ] This limitation provision provides claimants with one year in which to both file and serve their statement of claim. The municipal limitation periods are similar and have been consistently applied to strike claims, including against municipal employees and agents.

See: Ly v Regina (City), 2021 SKQB 80 at paras 75-77 , 14 MPLR (6 th ) 69, and Edge v Moose Jaw Downtown and Soccer/Field House Facilities Inc ., 2023 SKKB 207 . [ 25 ] The acts complained about occurred in September 2021. The statement of claim was not filed and served until September 2023, well beyond the one-year limitation period. [ 26 ] The claim for repayment of monies paid to the Village would also be barred by s. 278 of the Act , which provides a six- month limitation period for refund of payment of taxes: Action for refund of taxes 278

(1) Notwithstanding The Limitations Act [ SS 2004, c L-16.1 ] , an action or other proceeding for the return by a municipality of any money paid to the municipality, whether under protest or otherwise, as a result of a claim by the municipality, whether valid or invalid, for payment of taxes or tax arrears must be commenced within six months after the payment of the money to the municipality.

(2) If no action or other proceeding is commenced within the period mentioned in subsection (1), the payment made to the municipality is deemed to have been a voluntary payment. [ 27 ] Since the charge had been added to the property taxes, this limitation would apply. See: Thorpe v Kindersley (Town), 2021 SKQB 211 at para 61 . [ 28 ] According to the statement of claim, Mr. Sheppard made payment on August 31, 2022. The statement of claim was filed on September 8, 2023, and served on September 12, 2023 – over a year later. This again is well beyond the six-month limitation period.

CONCLUSION [ 29 ] I find that the claim should be struck as against the Village and Keith Howse, in as much as he was acting as a volunteer firefighter for the Village or RM, because any claim is barred by the municipal limitation periods (in including Keith Howse, I recognize he may have a separate capacity in relation to Sun Country, since he is defended by their lawyer). The defamation claims would also be struck because they do not disclose any cause of action.

[ 30 ] Those portions of the statement of claim are struck as shown in the draft statement of claim filed on January 15, 2024, by the lawyer for Sun Country. Costs [ 31 ] The Village has been entirely successful in its application and is entitled to an award of costs. [ 32 ] The Village sought solicitor-client costs, which it then calculated as $7,538.67. The Village pointed out that the Village’s lawyers had appeared four times on its application. These repeated appearances resulted from the adjournments requested by and granted to Mr.

Sheppard. [ 33 ] I am not prepared to make an award of solicitor-client costs, which is only awarded in extraordinary circumstances. Instead, I award costs fixed at $2,000 payable forthwith by Mr. Sheppard to the Village. J. D. N. ROBERTSON