SUN COUNTRY REGIONAL HEALTH AUTHORITY (operating as SUN COUNTRY HEALTH REGION) PLAINTIFF v. DR. JOEL MAMCHUR, 2023 SKKB 17

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 17 Date: 2023 01 25 Docket: QBG-RG-01366-2015 Judicial Centre: Regina BETWEEN: SUN COUNTRY REGIONAL HEALTH AUTHORITY (operating as SUN COUNTRY HEALTH REGION) PLAINTIFF -and- DR. JOEL MAMCHUR DEFENDANT Appearing: Milad Alishahi and Allison Graham for the plaintiff Nathan Xiao-Phillips and Mervin C. Phillips for the defendant JUDGMENT MITCHELL J. January 25, 2023 I. Overview and Procedural History [1] Sun Country Regional Health Authority (operating as Sun Country Health Region) [SCRHA] applies pursuantto Rules 7-2 and 7-5 of The Queen’s Bench Rules for

summary judgment against Dr. Joel Mamchur [Dr. Mamchur]. In its statement ofclaim dated June 11, 2015, SCRHA alleges Dr. Mamchur breached a contract for return of service, the terms of which were set out infour Bursary Agreement dated July 20, 2013, and a Rural Relief Physician Agreement. For those breaches SCRHA claims liquidateddamages in amounts of $90,821.92, and $7,975.00 respectively. Alternatively, SCRHA seeks liquidated damages in the amount of$98,796.92 against Dr. Mamchur for alleged unjust enrichment. [2] On July 20, 2015, Dr. Mamchur filed a statement of defence. In this document, Dr.

Mamchur admitted tosigning the bursary applications, as well as receiving the funds from SCRHA in accordance with the terms of those agreements.However, he pled defences of bad faith, frustration of contract, fundamental breach of contract. As well, he invoked the rule of “contraproferentem”, i.e. a contractual legal doctrine which holds that an ambiguous agreement should be interpreted against the interests of theparty which created it.

This rule may be used only to resolve an ambiguity (see: Consolidated-Bathurst v Mutual Boiler, (SCC), [1980] 1 SCR 888 at 899-900), not to create one. [3] On February 5, 2016, SCRHA amended its’ statement of claim on consent, to clarify that there were fourseparate bursary agreements, each involving payment to Dr. Mamchur of $25,000.00 over a four-year period. [4] On February 9, 2016, Dr. Mamchur amended his statement of defence on consent, to respond to SCRHA’samended statement of claim. [5] Shortly after this, on March 30, 2016, SCRHA moved for

summary judgment. However, this litigation quickly

became mired in procedural skirmishes in this Court, and in the Saskatchewan Court of Appeal. See, for example: Mamchur v Sun Country Health Region , 2017 SKCA 6 [ Mamchur 2017 ] , and Sun Country Regional Health Authority (Sun Country Health Region) v Mamchur , 2018 SKQB 79 , 35 CPC (8th) 296 . [ 6 ] Central to this litigation are four bursary agreements executed by representatives of SCRHA and Dr. Mamchur. Cumulatively, these agreements committed Dr. Mamchur upon graduation to work for SCRHA for four years, in exchange for a total amount of $100,000 [Bursary Agreements]. Additionally, Dr.

Mamchur entered into a rural relief physician agreement [RRPA] with SCRHA. The RRPA committed Dr. Mamchur to provide full-time continuous rural relief physician services within the SCRHA for a period of 160 days, in exchange for a signing bonus of $11,000. These monies were intended to assist Dr. Mamchur to underwrite his studies at the University of Saskatchewan, College of Medicine. [ 7 ] Common to all these agreements was a clause which set forth Dr. Mamchur’s obligation in the event he failed to fulfil his professional return of service commitment to SCRHA. Those clauses required Dr.

Mamchur to reimburse SCRHA for the monies paid to him on a prorated basis. [ 8 ] After he graduated from the University of Saskatchewan, Dr. Mamchur, almost immediately, commenced work with SCRHA on July 14, 2014. However, he formally resigned on or about November 24, 2014, barely four months after he began. Since that time, and despite SCRHA’s concerted efforts to obtain reimbursement from him, Dr. Mamchur remains indebted to SCRHA on a prorated basis for monies given to him pursuant to the terms of the Bursary Agreements, and the RRPA. Hence, SCRHA’s application for

summary judgment. [ 9 ] Dr. Mamchur strenuously resists SCRHA’s application. [ 10 ] At the outset, I note the evidentiary record on this application is voluminous, and includes the following: (

a) Affidavit of John Knoch sworn February 17, 2016 [Knoch Affidavit]; (

b) Affidavit of Richelle Jones sworn July 6, 2016; (

c) Affidavit of Dr. Dimitri Louvish sworn June 24, 2016; (

d) Affidavit of Documents of John Knoch sworn June 20, 2016; (

e) Affidavit of Marga Cugnet sworn August 25, 2016; (

f) Reply Affidavit of John Knoch sworn July 14, 2017; (

g) Affidavit of Dr. Joel Mamchur sworn September 14, 2016; (

h) Supplementary Affidavit of Dr. Joel Mamchur sworn July 10, 2017; (

i) Reply Affidavit of Dr. Dimitri Louvish sworn July 17, 2017; (

j) Reply Affidavit of Dr. Dimitri Louvish sworn January 3, 2018; (

k) Affidavit of Ed Hobday sworn July 11, 2017 [Hobday Affidavit]; (

l) Affidavit of Dr. Joel Mamchur sworn January 16, 2018; (

m) Transcript of Cross Examination of Dr. Louvish dated July 19, 2019; (

n) Transcript of Cross Examination of John Knoch dated July 19, 2017; and (

o) Transcript of Cross Examination of Dr. Mamchur on July 20, 2017. [ 11 ] These reasons for judgment explain why I have concluded that

summary judgment should be granted in favour of SCRHA. I am satisfied that this matter does not present any genuine issues requiring a trial and may be fairly and justly adjudicated by way of

summary judgment. I am satisfied, as well, SCRHA has proved on a balance of probabilities that Dr. Mamchur failed to complete his return-of-service obligations to SCRHA. Accordingly, SCRHA is entitled to receive from Dr. Mamchur compensatory damages in the amount of $98,796.92 plus pre-judgment interest. II. Factual Background 1. The Parties [ 12 ] Prior to December 4, 2017, and at all material times, the applicant, SCRHA, was responsible for the provision of medical services to more than 56,000 persons within southeast Saskatchewan.

SCRHA experienced challenges recruiting medical professionals, especially physicians, to service the more isolated areas of this region. In an attempt to address this issue, SCRHA provided financial incentives to qualified physicians and prospective medical graduates in exchange for them agreeing to provide full time medical service to SCRHA for a fixed period of time. [ 13 ] Dr. Mamchur, the respondent, was born and raised in Saskatchewan. He graduated from the College of Medicine at the University of Saskatchewan in June 2014. He had a special interest in family medicine, particularly in rural centres.

During his studies, he received the Dr. Vern Rogstad Memorial Prize awarded to a student demonstrating promise in rural family medicine. Currently, he practices medicine in Saskatchewan but not in the geographical area previously comprising the SCRHA.

2. The Agreements A. The Bursary Agreements [ 14 ] The Bursary Agreements awarded qualified applicants up to $100,000 in educational bursaries. This was the equivalent of bursaries of $25,000 per year over a period of four years. Qualified medical students who took advantage of such bursaries were expected to commit to work for SCRHA on a full-time basis for a period of not more than four years. They were expected to work in a locale specified by SCRHA. [ 15 ] On October 5, 2010, Dr. Mamchur executed his first application for a SCRHA Medical Student Bursary Agreement.

It read in part: In consideration of the sum of $25,000 paid to me by the Sun Country Health Region I agree to work for the Sun Country Health Region for the period of 12/1 months/years…I agree to be available for up to fulltime work for the term of this contract… [ 16 ] On July 22, 2011, Dr. Mamchur applied for a second SCRHA Medical Student Bursary Agreement.

It read in part: In consideration of the sum of $25,000 paid to me by the Sun Country Health Region I agree to work for the Sun Country Health Region for the period of 1 year (2 total years) months/years…I agree to be available for up to fulltime work for the term of this contract… [ 17 ] On September 21, 2011, SCRHA forwarded to Dr. Mamchur a cheque in the amount of $25,000, and a signed copy of the 2011 Bursary Agreement. In an accompanying letter, SCRHA confirmed that Dr.

Mamchur’s contractual obligation under the two bursary agreements was “2 years return of service (full time equivalent) for the $50,000.00 received” to date. [ 18 ] On April 19, 2012, Dr. Mamchur applied a third time for a SCRHA Medical Student Bursary Agreement. It read in part: In consideration of the sum of $25,000 (total 75,000) paid to me by the Sun Country Health Region I agree to work for the Sun Country Health Region for the period of 3 year(s)…I agree to be available for up to fulltime practice for the term of this contract… [ 19 ] On May 24, 2012, SCRHA forwarded to Dr.

Mamchur a cheque in the amount of $25,000 as well as an executed copy of the 2012 Bursary Agreement. In an accompanying letter, SCRHA confirmed that Dr. Mamchur’s contractual obligation under the three bursary agreements was now “3 years return of service for the $75,000 received” to date. [ 20 ] On July 20, 2013, Dr. Mamchur applied for a fourth and final SCRHA Medical Student Bursary Agreement.

Like the previous three agreements, it read in part: In consideration of the sum of $25,000 ($100,000 total) paid to me by the Sun Country Health Region I agree to work for the Sun Country Health Region for the period of 1 (4 total) year(s)…I agree to be available for up to fulltime practice for the term of this contract… [ 21 ] The four bursary agreements each contained an express term which stated that should Dr. Mamchur cease providing professional services to SCRHA prior to completion of his four-year term of service, he was required to repay SCRHA for the outstanding bursary amounts on a pro-rated basis.

Simply put, the Bursary Agreements allocated the liability for early termination of the contract onto Dr. Mamchur. [ 22 ] At the cross-examination on his affidavit, Dr. Mamchur acknowledged that he understood the terms of his Bursary Agreements with SCRHA, and that he would be responsible to reimburse SCRHA for some of the monies he had received, if he left before the end of his contracted time. B. The RRPA [ 23 ] On or about July 20, 2013, Dr. Mamchur e-mailed Ms.

Richelle Jones, then SCRHA’s Director of Recruitment to inquire about opportunities which might be available to him once he had completed his residency. Ms. Jones advised Dr. Mamchur about a regional locum position. Upon learning of this opportunity, Dr. Mamchur expressed interest in it. Subsequently, on or about December 19, 2013, Ms. Jones provided Dr. Mamchur with the relevant policy document and a draft agreement. [ 24 ] Between March 3, 2014 and April 27, 2014, Dr. Mamchur completed a family medicine clinical placement at Weyburn, Saskatchewan. During this time, Ms. Jones met with Dr.

Mamchur and explained that this position was for rural points located within the region (excluding the cities of Weyburn and Estevan), and would require him to be on call. [ 25 ] Dr. Mamchur also met with Dr. Dimitri Louvish, then SCRHA’S Vice-President of Medical. Dr. Louvish emphasized the importance of Dr. Mamchur being comfortable working on-call, and in emergency room facilities in remote rural settings. Dr. Mamchur confirmed he was comfortable with the requirements and expectations of an individual fulfilling a regional locum position. [ 26 ] On May 22, 2014, Dr. Mamchur entered into a RRPA with SCRHA.

Pursuant to the RRPA, he received a signing bonus of $11,000. This bonus committed him to providing 160 days of rural relief physician services to SCRHA within the contract year. The contract year commenced on July 14, 2014 and was to end on July 13, 2015. [ 27 ] Like the four Bursary Agreements, clause 2 of the RRPA placed the liability for any default of the agreement on Dr. Mamchur on a pro-rated basis. 3. Dr. Mamchur’s Tenure At SCRHA

[ 28 ] On or about July 14, 2014, Dr. Mamchur began his return of service obligations to SCRHA. [ 29 ] Shortly thereafter, on August 24, 2014, Dr. Mamchur forwarded an extensive e-mail to Ms. Shauna Bauman, an employee of SCRHA, a copy of which was attached as Exhibit “G” to the Knoch Affidavit. In this e-mail, Dr. Mamchur offered his candid assessment of how his assignment was progressing. He wrote in part: Hey Shauna: . . .I want to start off by thanking you for all that you’ve done for me so far. You’ve been both attentive and kind and have made my time with the region a much more positive experience.

I tried to avoid e-mailing you while away despite having some significant difficulties in Arcola. The clinical and er patient care component is going well in my opinion. I also feel I am adjusting well to rural practice and I feel my assessment and clinical care is strong, although I do feel the pace in Arcola is much too fast for my experience level (not in clinic, but with the call requirements) and am feelign [ sic ] extremely fatigued and overwhelmed. A few concerns that have come up: [Dr.

Mamchur outlined a number of his concerns relating to the call schedule; accommodations in Arcola, and confusion in call billing.] . . . . I am enjoying the clinic greatly and enjoy working in rural Saskatchewan and Sun Country in specific, but I am greatly concerned that the call frequency and requirements are much greater than discussed when I signed on and will not allow me to take care of myself and my patients the way that I envisioned. . . . I am wondering if there is an option to not take weekend call or to not take call in general and continue on this locum program.

I feel that I will be unable to continue with such a busy sched for any significant amount of time due to fatigue, inability to focus on patient quality care, and the ability to have any life whatsoever outside of the hospital. I simply cannot keep working 100 hour weeks with no notice or ability to plan for naythign [ sic ] in advance it’s just not sustainable or reasonable. I worked over 100 hours this week already and I just do not want that life for myself, especially in the prescence [ sic ] of no notice of such extreme hours.

Maybe I was naive when I started the program to think that call would be light but I just don’t feel that this is a life I want for myself and I want to at the end of the day feel I gave the best care possible to every patient which Im [ sic ] I quickly will not be able to do. I am afraid that if some call arrangements cannot be made I will be giving my 90 day termination notice of this locum contract effective this Wednesday and would very much like to talk about alternative work arrangements in the region (specifically Weyburn which was my original plan).

I am greatly enjoying the clinic work and staff and absolutely loved Carnduff… [ 30 ] SCRHA treated this missive as Dr. Mamchur’s 90 days’ formal notice that he would be terminating his contract for return of service. [ 31 ] On or about October 28, 2014, Dr. Mamchur had a telephone conversation with Ms. Jones. During their conversation, Dr. Mamchur informed her that he would be leaving his position with SCRHA in late November 2014. Following this conversation, Ms. Jones e-mailed Ms. Bauman with the subject line “Re: Dr Theo Brown – Locum”. Ms.

Jones’ short email, a copy of which was attached as Exhibit “H” to the Knoch Affidavit reads as follows: Hi Shauna, I just spoke to [Dr. Mamchur], and he intends to end his contract with us Nov 23rd, his last day of locuming. Do you want him to confirm via email? [ 32 ] Indeed, there appears to be no dispute that SCRHA received no further services from Dr. Mamchur. [ 33 ] On or about, November 25, 2014, Ms. Jones e-mailed Dr. Mamchur about his outstanding obligations to SCRHA.

Her e-mail read in part: …We will be sending out a letter [to you] on Dec 10 th regarding repayment of your bursary funding and your signing bonus (as your Return in Service term was not completed). For the repayment of the $100,000 in bursary funds, it will be prorated out of 4 years based on the time served (July 14 th , 2014 to Dec 10, 2014). For the repayment of the $11,000 signing bonus, it will be prorated out of 160 days, based on actual number of days worked (50/160 worked). If you have any questions, please let me know. [ 34 ] On November 28, 2014, Dr. Mamchur replied to Ms.

Jones as follows: Hi, Sorry about the late reply. The only question I have is why the bursary time is not based on any time going forward as those are still days served in the region (even if not under the locum contact [ sic ])

Additionally, I’m just finalizing concrete plans for the future. I’m liking ER call a lot more recently. I was wondering if there would be away for me to repay some of the time on a part time basis covering part time locums (eg once a month). [35] Subsequently, Dr. Mamchur commenced work with the Five Hills Health Region in either late 2015 or early2016. He also applied for, and obtained, work with the Regina Qu’Appelle Health Region in either December 2014 or January 2015. 4. Outstanding Amounts [36] As a result of terminating his agreements with SCRHA prematurely, Dr.

Mamchur was contractually obliged toreimburse a portion of the monies given him by SCRHA. He provided services from July 14, 2014 to November 24, 2014, i.e. 134 days.According to the terms of the Bursary Agreements, Dr. Mamchur was required to work 1460 days. Consequently, he left uncompleted90.82% of his return of service commitment to SCRHA, and owed $90,821.92 or 90.82% of the $100,000 advanced to him between 2010and 2013. [37] The RRPA required Dr. Mamchur to work 160 days of rural relief medical services over one year.

However, heprovided only 44 days or 27.5% of his required service, leaving 72.5% of his contractual commitment unfulfilled. Accordingly, SCRHAasserts that Dr. Mamchur must repay an additional amount of $7,975. [38] Despite attempts by SCRHA to obtain repayment for these outstanding amounts from Dr. Mamchur, norepayment of the $98,796.92 has been received by SCRHA. III. Issues [39] In SCRHA’s Brief of Law dated October 28, 2019 at para. 40, counsel framed the general issues to bedetermined on this application as follows: 1. Should SCRHA’s application to strike portions of the Hobday Affidavit be granted? 2.

Is there a genuine issue for trial? 3. What award of costs is justified? [40] At para. 41, counsel identified the following sub-issues under issue #2 above, i.e., the “genuine issue for trial”.These sub-issues are: a. Did Dr. Mamchur breach the various Agreements? b. Do Dr. Mamchur’s alleged defences raise a genuine issue for trial including: i. were the various Agreements frustrated? ii. Does The Provincial Health Authority Act, SS 2017, c P-30.3 [PHAA] apply retroactively or retrospectively? iii. Do the circumstances justify relief from forfeiture? IV.

Should Portions of the Hobday Affidavit be Struck Out? [41] SCRHA raised as a preliminary matter, objections to portions of the Hobday Affidavit submitted on behalf ofDr. Mamchur. The affiant, Mr. Ed Hobday, at the time he swore his affidavit, was the Administrative Director of the SaskatchewanMedical Association [SMA].

He had held this position for more than 40 years, since approximately 1970. [42] In his unreported fiat dated June 29, 2018 (Sun Country Regional Health Authority (operating as Sun CountryHealth Region) v Mamchur (29 June 2018) QBG-RG-01366-2015 (Sask QB)), Kalmakoff J. (as he then was), as case-managementjudge, directed at para. 13 that SCRHA’s application to strike portions of the Hobday Affidavit should be dealt with as a preliminarymatter to the

summary judgment application. [43] Counsel for Dr. Mamchur did not tender Mr. Hobday as an expert. There was, for example, no attempt made tocomply with the admissibility requirements respecting expert testimony and reports laid down in

Part 5, Division 3 of The Queen’sBench Rules. Consequently, it is not necessary to embark upon the analytical process identified in White Burgess Langille Inman vAbbott and Haliburton Co., 2015 SCC 23, [2015] 2 SCR 182 for assessing the admissibility of expert evidence. [44] Rather, the Hobday Affidavit is no different from any other affidavit filed by a lay witness in a civil proceeding.This means it must adhere to the requirements set out in Rule 13-30 of The Queen’s Bench Rules respecting the form and contents ofaffidavits.

See: Cowessess First Nation No. 73 v Phillips Legal Professional Corporation, 2018 SKQB 156 at para 18 [Cowessess FirstNation], aff’d 2020 SKCA 16. [45] SCRHA submits that the Hobday Affidavit runs afoul of most, if not all, of those requirements because theaffiant (

a) offers opinion evidence without identifying the basis for his opinion; (

b) speculates about how SCRHA recruits physicians,and (

c) makes argumentative statements respecting SCRHA. I will deal with each objection in turn. [46] Generally, statements of opinion are not permitted in an affidavit submitted by a lay witness. That it is becauseopinions do not equate with statements of fact. As Barrington-Foote J. (as he then was) said in Cowessess First Nation at para 18:“Opinion evidence and argument, other than opinion evidence which falls within recognized exceptions, is not admissible. Inadmissibleopinion evidence and argument are not facts”. See also: Forbes v Forbes (1999), (SK KB), 179 Sask R 86 (Sask QB)at para 22.

The Hobday Affidavit is rife with what appear to be statements of opinion untethered to sourced information which the affiant

swears he believes to be true. [47] While Mr. Hobday is a long-standing employee of the SMA, it is important to recognize that he was neveremployed by the SCRHA. Or at least there is nothing in his affidavit which attests that he was. Rather, at its highest, much of the“evidence” offered in the Hobday Affidavit represents the views of the SMA. How, pray tell, and on what basis, does Mr. Hobday’slengthy tenure with the SMA furnish him with sufficient knowledge regarding SCRHA’s physician recruitment and retention policies?We are left only to guess. [48] Consequently, Mr.

Hobday’s assertions about those polices are pure speculation. For example, at para. 7 of theHobday Affidavitt, he avers without citing any source his belief that in 2010-2011, SCRHA was “desperately in need of physicians” and“engaged in recruitment and retention of additional physicians through awarding RHA funded bursaries”. Counsel for SCRHA urges thatbecause this statement lacks an identifiable and proper foundation in fact, it should be struck.

I agree. [49] Finally, counsel for SCRHA asserts that the Hobday Argument contains numerous paragraphs which areargumentative and, for that reason, alone, should be struck. As Ball J. stated in Field v GlaxoSmithKline Inc., 2011 SKQB 16 at paras 35and 36, 329 DLR (4th) 290 [Field]: 35 It is in this area that Mr. Farber’s affidavit is most problematic. Argumentative statements amounting to advocacy and whichdraw legal conclusions have no proper place in an affidavit. Mitchell v.

Intercontinental Packers Ltd.et al (1996), (SK KB), 146 Sask R 10. 36 A deponent may not use his or her affidavit as a substitute for a legal brief urging the court to draw certain conclusions fromthe facts. Evidence should be confined to facts about which a witness has personal knowledge. Opinions should be confined to thosethat the witness is qualified to express on known assumptions.

Inflammatory rhetoric and allegations made only for the purpose ofprejudicing a party are not helpful to the fact finding process and will be struck from an affidavit. [Emphasis added] See also: Cowessess First Nation at para 27. [50] Counsel particularly draws my attention to para. 14 of the Hobday Affidavit where Mr. Hobday avers asfollows: 14.

As a result of the vacancies for physicians within the Sun Country Health Region between 2013 and 2015, and the fact that Dr.Mamchur is a promising physician who appeared to me to have a genuine interest in practicing with the SCRHA and in particularWeyburn, the refusal of the SCRHA to offer Dr. Mamchur a permanent and fulltime contract position as a family physician isinexplicable. [51] Counsel submits that Mr. Hobday’s characterization of SCRHA’s “refusal” to hire Dr.

Mamchur as a full-timephysician in Weyburn as “inexplicable”, is pure argument intended to influence my decision and draw a particular conclusion respectingthe facts to paraphrase Field at para 37. [52] Assessing SCRHA’s objections to the Hobday Affidavit in accordance with the principles identified here, Imake the following determinations: Paragraph Disposition5 The first sentence is struck as argumentative and offering an opinionwhich is unsourced.

The third, fourth, fifth, sixth, and seventh sentencesare struck as they are argument, and offer opinions which are unsourced.6 The last sentence of this paragraph is struck as argumentative and offeringopinion which is unsourced.7 This paragraph is struck as argumentative and offering opinions which isunsourced.8 The second sentence is struck as it is speculative and offers an opinionwhich is unsourced.10 This paragraph is struck as argumentative and offers an opinion which isunsourced.13 This paragraph is struck as speculative and based upon information whichis unsourced.14 This paragraph is struck as argumentative.

V. Is

Summary Judgment Appropriate in This Case? 1. Law [53] Although there are many decisions in Saskatchewan relating to this question, I rely particularly on Rules 7-2 to7-8 of The Queen’s Bench Rules relating to

summary judgment, generally, as well as the seminal authority, of Hryniak v Maudlin, 2014SCC 7, [2014] 1 SCR 87 [Hryniak], and its’ progeny, especially; Tchozewski v Lamontagne, 2014 SKQB 71, [2014] 7 WWR 397[Tchozewski]; Viczko v Choquette, 2016 SKCA 52, 396 DLR (4th) 449; Ter Keurs Bros. Inc. v Last Mountain Valley (RuralMunicipality), 2019 SKCA 10, 429 DLR (4th) 269 [Ter Keurs]; Michel v Saskatchewan, 2021 SKCA 126 [Michel], and Schnell v Stene(Heidinger Estate), 2022 SKQB 146 [Schnell].

[ 54 ] In Hryniak , the Supreme Court of Canada speaking through Karakatsanis J. stated at para. 4: [4] …In my view, a trial is not required if a

summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial. [ 55 ] The Supreme Court of Canada advocated for a “shift in culture” in the civil justice system which favours an adjudicative process that is “accessible – proportionate, timely and affordable”: Hryniak at para 28 . [ 56 ] The approach to

summary judgment identified in Hryniak and adopted in Saskatchewan especially in Tchozewski involves a two-stage analysis. [ 57 ] The first step asks whether a genuine issue exists which requires a trial, including pre-trial discoveries. If a judge can reach a fair and just determination on the merits of the application, there will be no genuine issue to be tried.

As Karakatsanis J. noted in Hryniak at para 49 : “This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result”. See also: Tchozewski at para 30 (2). [ 58 ] The second step is reached if it is demonstrated that there is a genuine issue requiring a trial. At this stage, the judge asks whether the powers set out in Rule 7-5(2) may be employed to avoid proceeding to a full-blown trial.

This involves a consideration whether credibility is seriously an issue. See: Hryniak at para 66 , and Tchozewski at para 30 (5). [ 59 ] The court in Hryniak concluded on this point at para. 50: [50] These principles are interconnected and all speak to whether

summary judgment will provide a fair and just adjudication. When a

summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. [ 60 ] In any

summary judgment application, the respondent or the party opposing the application must present evidence which convincingly demonstrates the existence of a genuine issue requiring trial. As the Supreme Court in Canada (Attorney General) v Lameman , 2008 SCC 14 , [2008] 1 SCR 372 [ Lameman ] stipulated, at para. 11 this means that “[e]ach side must ‘put its best foot forward’ with respect to the existence or non-existence of material issues to be tried”. See also: Ter Keurs at para 30 . [ 61 ] It is no answer to an application for

summary judgment to assert that further and better evidence might be found if the case is allowed to proceed to trial. As the court explained in Lameman at para 19 : [19] … A

summary judgment motion cannot be defeated by vague references to what may be adduced in the future, if the matter is allowed to proceed. To accept that proposition would be to undermine the rationale of the rule. A motion for

summary judgment must be judged on the basis of the pleadings and materials actually before the judge, not on suppositions about what might be pleaded or proved in the future. . . [ 62 ] Very recently in Schnell , Bardai J. summarized at para. 27 the relevant legal principles currently operating in Saskatchewan as follows: [27] In Lund v Edward Warren (26 January 2022) Saskatoon, QBG 454/2018 (Sask QB), I summarized the law applicable to

summary judgment applications at paras. 8-13 as follows: [8] The test to be met in a

summary judgment application is not in dispute. The question is whether there is a genuine issue requiring a trial. In Hryniak v Mauldin , 2014 SCC 7 at para 49 , [2014] 1 SCR 87 [ Hryniak ] , the Court notes: 49 There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for

summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. [9] In Saskatchewan, the procedure for determining applications for

summary judgment is set out in Rules 7-2 to 7-5 of The Queen’s Bench Rules . This procedure has been the subject of numerous decisions in our province, notably, Tchozewski v Lamontagne , 2014 SKQB 71 , 440 Sask R 34 [ Tchozewski ] , White v Turanich , 2020 SKQB 5 , Cicansky v Beggs , 2018 SKQB 91 , 25 CPC (8th) 182 , Shephard v 101093126 Saskatchewan Ltd. (Whitewood Inn), 2020 SKQB 346 [ Shephard ] , Ter Keurs Bros. Inc. v Last Mountain Valley (Rural Municipality) 2019 SKCA 10 at para 30-31 , 429 DLR (4th) 269 , LaBuick Investments Inc. v Carpet Gallery of Moose Jaw Ltd., 2017 SKQB 341 at para 28 and Smith v Hawryliw, 2020 SKQB 169 . [10] In a

summary judgment application, both parties are required to put their best foot forward which allows the Court to assume that it has the best evidence before it. In the first instance, where a defendant is applying for

summary judgment, they must establish that there is no genuine issue requiring a trial. If they do so, the burden shifts to the plaintiff to refute the evidence or risk the case being dismissed. See: Cicanksy v Beggs , 2018 SKQB 91 at paras 14-15 , 25 CPC (8th) 182 , and Peter Ballantyne Cree Nation v Canada (Attorney General), 2016 SKCA 124 at paras 31-32 , 485 Sask R 162 . [11] Of course,

summary judgment may still be appropriate even if there is a genuine issue in dispute. The

summary judgment process recognizes that for many coming before the Court, the cost of a trial is prohibitively expensive. It is of course easy to say in response to a

summary judgment application that a more complete evidentiary record will be available at trial, but that does not mean a trial is required or that

summary judgment should be denied. If there is a genuine issue in dispute, the question becomes whether an appropriate

procedure can be crafted using Rule 7-5(2)(

b) to resolve that genuine issue. This tailored approach takes into account a host of factors,including, the complexity of the claim, the amounts in issue, the importance of the issues, the cost, whether better evidence on key issueswill be available at trial, whether the Court can fairly evaluate the evidence and whether

summary judgment can resolve the entire claimor portions of it. See Tchozewski. [12] As noted in Shephard at para 18: 18

Summary judgment allows for questions of law, discrete issues or entire claims to be determined without the need for an expensivetrial in appropriate circumstances. It provides flexibility and allows the Court to craft an approach that recognizes “that a process can befair and just, without the expense and delay of a trial, and that alternative models of adjudication are no less legitimate than theconventional trial.” See Hryniak at para 27 and Rule 7-5(5)-(6). [13] If, even with the tailored approach available pursuant to Rule 7-5(2)(b), the Court is unable to weigh the evidence, evaluatecredibility, draw reasonable inferences or have confidence in its conclusions,

summary judgement should be denied. As the Court put itin Hryniak at para 50: 50 … a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bearsreiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidencethat she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute. See also Noga v Wawanesa Mutual Insurance Company, 2019 SKQB 160 at para 45. 2.

Application of Principles [63] In his unreported fiat dated May 9, 2017 (Sun Country Regional Health Authority (operating as Sun CountryHealth Region) v Mamchur (9 May 2017) QBG-RG-01366-2015 (Sask QB)), Kalmakoff J. (as he then was), at para. 17, characterizedthis dispute as follows: [17] This case does not involve a complicated claim. Sun Country’s claim against Dr. Mamchur contains straightforward allegationsof breach of contract, and, in the alternative, unjust enrichment. The defences and Counterclaim raised by Dr.

Mamchur’s pleadingsallege unconscionable conduct and absence of good faith on the part of Sun Country. Nothing in the material or evidence filed on thisapplication, or in the court record as a whole, demonstrates that the defence or Counterclaim being advanced are of such acomplex nature as to require resort to the “full trial” procedure in advance of the application for

summary judgment. [Emphasis added] [64] SCRHA’s counsel endorse Kalmakoff J.’s characterization of this dispute. They assert that the necessary factualmatrix underlying this matter can be ascertained from the voluminous documentation already filed on this application. Particularly, theypoint to the Bursary Agreements and RRPA which Dr. Mamchur voluntarily executed, as well as the undertakings he gave whenaccepting the bursary monies, and the RRPA signing bonus from SCRHA. [65] Dr. Mamchur’s counsel strongly contest this characterization, however.

They have raised numerous argumentswhich they assert can only be adjudicated at the conclusion of a full trial. Simply put, they maintain there are genuine issues arising inthis case which require a trial. 2.1 Position of the Parties [66] Counsel for SCRHA submits this matter is suitable for

summary judgment and does not present genuine issuesrequiring a trial. He offers principally two bases for this position. [67] First, SCRHA submits that there is a line of case law which holds debt claims can be determined on applicationsfor

summary judgment. The

summary procedure is often appropriate where there is little dispute respecting the debt owed. See, forexample: Singh v 1329369 Alberta Ltd., 2015 SKQB 294, 80 CPC (7th) 200 [Singh]. In Singh, McMurtry J. found the defendantcorporation owed money to the plaintiff, and any disagreement as to the exact amount of that debt could be settled by an accounting asprovided for in sub-Rule 7-5(5) of The Queen’s Bench Rules. [68] Second, SCRHA submits that where, as here, the defendant breached an agreement and was unjustly enriched,claims of this nature are also amenable to the

summary judgment procedure. See, for example: Saskatchewan v Daba, 2012 SKQB 521[Daba]; Elchuk v Gulansky, 2014 SKQB 252, 453 Sask R 229, and Shoppers Drug Mart Inc. v 6470360 Canada Inc. (EnergyshopConsulting Inc./Powerhouse Energy Management Inc.), 2014 ONCA 85, 372 DLR (4th) 90, leave to appeal refused, (SCC). [69] Daba, particularly, is apposite here, SCRHA contends. It involved the default by a bursary recipient of monieshe received to assist in underwriting his graduate studies in cardiology at the University of Saskatchewan. He undertook to provide areturn of service once he had completed those studies.

However, he left Saskatchewan shortly after he graduated alleging that he wasunable to find a suitable position for his speciality in the province. Justice Danyliuk determined that Saskatchewan’s claim could bedetermined summarily, relying on the contractual arrangements and the failure of the defendant to live up to his undertaking to practicecardiology in Saskatchewan for three years following his graduation. [70] Counsel for Dr. Mamchur advance numerous hurdles to this matter proceeding by way of

summary judgment.These objections appear to fall into four categories. [71] First, Dr. Mamchur asserts that SCRHA’s failure to plead the duty of good faith in contractual negotiations asidentified in Bhasin v Hrynew, 2014 SCC 71, [2014] 3 SCR 494 [Bhasin] is fatal to its’ application for

summary judgment. Dr. Mamchur

has advanced arguments of “bad faith” by SCRHA when it entered into the various Bursary Agreements and the RRPA with him. Hecites Mohamed v Information Systems Architects Inc., 2018 ONCA 428, 423 DLR (4th) 174; The Spencer Health Network Inc. v Co-operators Life Insurance Company, 2018 SKQB 244, and Mayer v Mayer, 2012 BCCA 77 at para 93, [2012] 7 WWR 1 [Mayer], asauthorities supporting his argument that the issue of duty of good faith is a genuine issue requiring a trial. [72] Second, Dr.

Mamchur’s counsel assert that SCRHA has failed to produce evidence from witnesses most directlyinvolved with these various Bursary Agreements. Particularly, he identifies Ms. Marga Cugnet, SCRHA’s Chief Executive Officerbetween 2011 and 2017 which covered the time period relevant to this application, and Mr. Mark Arthur, who on behalf of SCRHA,initially met with Dr. Mamchur when he made his first bursary application. Counsel asserts that their testimony is essential to the properresolution of SCRHA’s claim, and this evidence resides exclusively with SCRHA.

See: Mayer at para 79, and Burton Canada Companyv Coady, 2013 NSCA 95 at paras 85-86, 365 DLR (4th) 172. [73] Indeed, Dr. Mamchur goes so far as to renew his request that SCRHA present Ms. Cugnet to be cross-examinedon matters relating to this

summary judgment application. However, as SCRHA points out another judge of this Court already refusedsuch a request. An appeal taken by Dr. Mamchur from this refusal was dismissed: Mamchur 2017. [74] Third, Dr. Mamchur contends the

interpretation of the Bursary Agreements as well as the RRPA contain variousimplied terms which can only be discerned following a trial. For example, Dr. Mamchur asserts that the Bursary Agreements included animplied term to the effect SCRHA would assist him in permanently establishing a medical practice as a rural family physician in thathealth region. As well, Dr. Mamchur says these Bursary Agreements contained an implied term that if he was unable to establishmedical practice arrangements after exercising due diligence, he would be relieved of his return of service commitment. [75] Fourth, and finally, Dr.

Mamchur asserts that the existence of his counterclaim means that it is not appropriate toadjudicate SCRHA’s application in a vacuum. He maintains that at best any decision respecting the

summary judgment applicationwould only partially resolve this matter. Allowing this to happen would risk duplicative proceedings with the potential for inconsistentfactual findings and legal conclusions. [76] SCRHA responds that generally speaking, counterclaims are separate claims which exist independently of aplaintiff’s claim. If the plaintiff’s claim is discontinued or dismissed, the counterclaim is not at an end. It will continue as a separate andindependent action. See: Key Insurance Services Partnership v T.

Clarke Insurance Services Ltd., 2010 BCSC 1857 at para 23, 2 CPC(7th) 346, and Boguski v Boguski, 2018 SKQB 38 at paras 4-6, 27 CPC (8th) 415. [77] SCRHA particularly references Fauser Energy Inc. v Skjerven, 2019 SKCA 81, 437 DLR (4th) 345 where atpara. 62, Jackson J.A. for the court quoted with approval from Clearly Canadian Beverage Corp. v Remic Marketing & Distribution Inc.(1992), (BC SC), 22 CPC (3d) 387 (WL) (BCSC) [Clearly Canadian Beverage] as follows: 62 … [11] Defendants often put forward cross-claims as a delaying tactic. The cross-claim is frequently expressed as a defence as wellas a counterclaim.

Sometimes the cross-claim has little merit and, even when it does have sufficient merit to warrant a trial, themagnitude of the cross-claim may be much less than the amount of the plaintiff's claim. A defendant should not be permitted to delaythe granting of judgment pending the trial of a cross-claim that may well not succeed or that is in an amount less than the plaintiff'sclaim. A plaintiff should be able to obtain

summary judgment and execute upon it to the extent that it exceeds the probable amount of anaward on the cross-claim. [78] The court in Clearly Canadian Beverage at para 10 also observed pointedly: [10] …A cross-claim is often proffered as a defence to the plaintiff's claim and the Court should decline to grant

summary judgmentonly if the defendant's allegations represent a true defence… [79] That, SCRHA asserts, is the case here. The crossclaim simply repeats the defences which Dr. Mamchur has pledto defeat this claim. It will be necessary then to determine if the allegations set out in Dr. Mamchur’s counterclaim are “true defences” orsimply reiterations of allegations already contained in his statement of defence, itself. 2.2 Discussion [80] In this case, it is difficult to assess whether

summary judgment is appropriate without regard for the legalarguments advanced by the parties. This is because the question of whether there is a genuine issue requiring a trial is closely linked tothe analysis which must be undertaken respecting the issues raised by the parties.

Consequently, it is unwise in these circumstances todeal with the procedural question in a vacuum. [81] As explained below, I am satisfied that when the legal analysis of the various issues raised in this matter isundertaken, there is sufficient evidence contained in the voluminous record filed upon which I may reach “a fair and just determinationon the merits” to quote Michel at para 110. Put simply, it becomes apparent that there is no genuine issue that has been raised whichrequires a trial. Accordingly, I am able to decide SCRHA’s

summary judgment application on the record before me. 3. Did Dr. Mamchur breach the Agreements? [82] This central issue engages questions of contractual

interpretation. It is useful at the outset to set out the lawpertinent to this kind of

interpretation. 3.1 Law [83] The goal of contractual

interpretation is “to ascertain the objective intent of the parties – a fact-specific goal –

through the application of legal principles of

interpretation”. See: Sattva Capital Corp. v Creston Moly Corp . , 2014 SCC 53 at para 49 , [2014] 2 SCR 633 [ Sattva ] . To achieve this goal, a court must apply “a practical, common-sense approach”, the “overriding concern” of which is “to determine ‘the intent of the parties and the scope of their understanding’”: Sattva at para 47 . See also: QHR Technologies Inc. v Niebergal , 2022 SKCA 85 at paras 16-18 . [ 84 ] The Sattva approach to contractual

interpretation was helpfully summarized in Weyerhaeuser Company Limited v Ontario (Attorney General) , 2017 ONCA 1007 at para 65 , 77 BLR (5th) 175 , as follows: [65] The general principles guiding adjudicators about “how” to interpret a commercial contract were summarized in Sattva , at para. 47 , and by this court in two 2007 decisions - Ventas, Inc. v. Sunrise Senior Living Real Estate Investment Trust , 2007 ONCA 205 , 85 O.R. (3d) 254 at para. 24 , and Dumbrell v. The Regional Group of Companies Inc. , 2007 ONCA 59 , 85 O.R. (3d) 616 at paras. 52-56 . When interpreting a contract, an adjudicator should: (

i) determine the intention of the parties in accordance with the language they have used in the written document, based upon the "cardinal presumption" that they have intended what they have said; (ii) read the text of the written agreement as a whole, giving the words used their ordinary and grammatical meaning, in a manner that gives meaning to all of its terms and avoids an

interpretation that would render one or more of its terms ineffective; (iii) read the contract in the context of the surrounding circumstances known to the parties at the time of the formation of the contract. The surrounding circumstances, or factual matrix, include facts that were known or reasonably capable of being known by the parties when they entered into the written agreement, such as facts concerning the genesis of the agreement, its purpose, and the commercial context in which the agreement was made.

However, the factual matrix cannot include evidence about the subjective intention of the parties; and (iv) read the text in a fashion that accords with sound commercial principles and good business sense, avoiding a commercially absurd result, objectively assessed. [ 85 ] The cardinal principle of contractual

interpretation holds that as much as possible, a court should give effect to the objective intentions of the parties as discerned from the words utilized in the contract.

See, for example: Dundee Realty Corporation v Harvard Developments Inc. , 2012 SKQB 73 at paras 29-30 , 391 Sask R 153 ; and UMA/B&V Ltd. v SaskPower International Inc. , 2007 SKCA 40 at para 23 , [2007] 6 WWR 277 . [ 86 ] The question of whether the parties intended to enter into a contract, and whether the essential terms of the contract can be ascertained with a reasonable degree of certainty is to be determined from the perspective of a reasonable, objective bystander aware of all material facts.

See, for example: Kennett v Diarco Farms Ltd , 2018 SKQB 179 at para 62 ; Tether v Tether , 2008 SKCA 126 at para 55 , [2009] 4 WWR 274 , and Cdn. Northern Shield v 2421593 Canadian Inc. , 2018 ONSC 3627 at para 74 . [ 87 ] The subjective intentions and beliefs of the parties are irrelevant and have no place in the interpretative process.

See: Ko v Hillview Homes Ltd. , 2012 ABCA 245 at para 27 , [2013] 2 WWR 52 [ Ko ] , and United Gulf Developments Ltd. v Iskandar , 2008 NSCA 71 at para 82 , 267 NSR (2d) 318 . [ 88 ] Sattva also confirmed that background circumstances surrounding the formation of the contract under scrutiny – the factual matrix – can be an objective interpretive aid useful for assisting a court to better understand the deal achieved by the parties as expressed in the words of the contract. However, the relevance of the factual matrix to the interpretive process has limits.

More particularly, a court cannot use the surrounding circumstances “to deviate from the text such that the court effectively creates a new agreement”: Sattva , at para 57 . [ 89 ] Finally, employing such evidence in the interpretive exercise does not conflict with the parol evidence rule. See: Sattva at para 60 . 3.2 Discussion [ 90 ] SCRHA makes uncomplicated allegations of breach of contract and, alternatively, unjust enrichment against Dr. Mamchur. It maintains it has presented more than sufficient evidence to prove those claims on a balance of probabilities.

It asserts that the evidence is uncontested and clear: Dr. Mamchur entered into various agreements with SCRHA, and plainly understood his obligations under those agreements. SCRHA maintains Dr. Mamchur failed to meet his obligations under those agreements. Consequently, he breached those agreements and must now repay SCRHA what is owed to it. [ 91 ] A proper consideration of SCRHA’s breach of contract claim must begin with the text of the agreements themselves. The evidence is clear that by executing each bursary agreement and availing himself of the funds provided to him, Dr.

Mamchur committed himself to providing one year of return of professional service to SCRHA upon his graduation from the College of Medicine. He entered into four Bursary Agreements; SCRHA gave to him a total of $100,000 in bursary funds, and, in return, he was obliged, post-graduation, to provide professional services to SCRHA for a period of four years. [ 92 ] As noted, each bursary agreement SCRHA entered into with Dr.

Mamchur contains a term stipulating that in the event he should terminate his return of service agreement prior to the conclusion of the four years, he agreed to repay the monies paid to him on a prorated basis. [ 93 ] Additionally, the RRPA contained a provision which expressly stipulated: 2…If for any reason the Physician fails to provide full time continuous service to the RHA an amount for the period specified in

Section 5 of the Agreement the Physician will repay to the RHA an amount of money that bears the same proportion to the amount of the signing bonus paid to the Physician as specified in

Section 5 in which the Physician did not continue to provide service…

[94] The text of these provisions – though perhaps inelegantly worded – is clear and does not admit of competinginterpretations. In the event Dr. Mamchur ceased to provide his professional services to SCRHA prior to the conclusion of the full termof the various agreements, he is obliged to repay SCRHA monies previously paid to him on a pro-rated basis. That is what transpired inthis case. [95] In my view, the evidence is uncontroverted. Dr. Mamchur expressly admitted at para. 8 of his Third AmendedStatement of Defence that he executed the four Bursary Agreements as well as the RRPA.

He also acknowledged that he received themonies from SCRHA. [96] At his cross-examination on the Mamchur Affidavit, Dr. Mamchur did not say he misunderstood the terms ofthese various agreements. Rather, he acknowledged he had to fulfil certain conditions in order to receive the bursary monies, and, if hefulfilled those conditions entirely, he would not be required to pay back those monies. [97] On the face of it then, SCRHA has demonstrated on a balance of probabilities that the parties were ad idemwhen entering into the various agreements, and SCRHA paid monies to Dr.

Mamchur in accordance with the terms of those agreements.It is also apparent that he did not fulfil his obligations under those agreements. Respecting the four Bursary Agreements, he failed tocomplete the requisite four years of return of professional service to SCRHA. Respecting the RRPA, SCRHA, as well, has demonstratedthat Dr. Mamchur did not provide the requisite 160 days of rural physician relief as promised. [98] Dr. Mamchur disputes this and, in effect, offers three defences to SCRHA’s

summary judgment application.These defences are: (1) a breach of the duty of good faith; (2) implied terms in the various agreements which were not complied with bySCRHA, and (3) frustration of contract. He asserts that each of these defences raises a genuine issue requiring a trial, and for thesereasons SCRHA’s application for

summary judgment should be dismissed. [99] I will analyse each of these defences in turn. Respectfully, I conclude that none of them raises a genuine issuerequiring a trial. 3.2.1 Duty of Good Faith [100] I turn first to Dr. Mamchur’s allegations that SCRHA breached the duty of good faith. The organizing principle ofgood faith in contractual dealings was first identified in Bhasin, and expanded upon in C.M. Callow Inc. v Zollinger, 2020 SCC 45, 452DLR (4th) 44 and Wastech Services Ltd. v Greater Vancouver Sewerage and Drainage District, 2021 SCC 7, 454 DLR (4th) 1[Wastech].

In these three decisions, the Supreme Court recognized two existing doctrines as manifestations of the principle of good faith– the duty to exercise a contractual discretion in good faith and the duty of honest performance of a contract. [101] The duty to exercise a contractual discretion in good faith will be breached where the exercise of discretion isunreasonable, in the sense that it is unconnected to the purposes for which the discretion was granted: Wastech at para 88.

The duty ofhonesty in contractual performance was explained by Cromwell J. in Bhasin as meaning “simply that parties must not lie or otherwiseknowingly mislead each other about matters directly linked to the performance of the contract”: at para. 73. See further: Stericycle ULCv HealthPRO Procurement, 2021 ONCA 878 at paras 43-44, 27 BLR (6th) 1, and Input Capital Corp. v Gustafson, 2021 SKCA 56, atpara 39, [2021] 4 WWR 604. [102] These organizing principles do not constitute a separate cause of action; rather, these two duties form part of theallegation of breach of contract.

See: 2264052 Ontario Inc. (Louch & Louch) v Brockville Centre Development Corp., 2022 ONCA 610at paras 34-36, 472 DLR (4th) 746. As well, these duties apply equally to both or all parties to a contract. [103] Dr. Mamchur asserts that SCRHA and its representatives acted in bad faith when negotiating the bursaryagreements as well as the RRPA. To begin this argument lacks particularity. Dr.

Mamchur argues although no general duty to negotiatein good faith has been recognized by courts in this province, courts in other jurisdictions have identified such a duty if a “specialrelationship” exists between the parties, and further because such a relationship exists in these circumstances, SCRHA failed in its duty tonegotiate with him in good faith. See, for example: Input Capital Corp. v Thomas, 2019 SKQB 210 at para 79 citing 978011 OntarioLtd. v Cornell Engineering Company Ltd. (2001), (ON CA), 198 DLR (4th) 615 (Ont CA). [104] To be sure, no duty of good faith exists in pre-contractual negotiations.

See: University of Regina v HTCPurenergy Inc., 2019 SKQB 126 at para 171, [2020] 2 WWR 512 [University of Regina], and Ko at para 134. Moreover, as Krogan J.noted at para. 171 of University of Regina, the Ontario Court of Appeal appears to stand alone in finding such a duty in limitedcircumstances where a special relationship between the contracting parties has been clearly established. [105] I would not give effect to Dr. Mamchur’s argument for two reasons. The duty of good faith in contractualnegotiations is not a recognizable legal doctrine in this province.

This is sufficient to reject this argument. [106] However, even if it could be said that such a duty exists where there is a special relationship between thecontracting parties, no such special relationship has been identified here. Dr. Mamchur contracted with SCRHA to assist him tounderwrite his medical studies. Over a four-year period, SCRHA paid to him $100,000. In return he agreed upon graduation to providefull-time professional services to SCRHA. This was a straightforward contractual arrangement.

I do not perceive any specialcircumstances arising from these agreements, let alone a special relationship which might attract a duty of good faith in pre-contractualnegotiations. [107] The same result obtains respecting the RRPA. [108] Accordingly, as I find no merit in Dr. Mamchur’s argument that SCRHA breached a duty of good faith in pre-contractual negotiations, it follows it does not present a genuine issue requiring a trial. 3.2.2 Implied Contractual Terms

[109] Next, Dr. Mamchur asserts that SCRHA breached implied terms contained in the various Bursary Agreements.Particularly, he claims there are at least three implied terms embedded within those agreements. Two of these implied terms are thatSCRHA would: (1) take all necessary steps to ensure that Dr. Mamchur secured full-time employment as a physician either in Weyburnor a single location in SCRHA, and (2) release Dr. Mamchur from his return of service commitment in the event he exercised duediligence but through no fault of his own was unable to secure a satisfactory medical practice arrangement.

Additionally, Dr. Mamchurasserts there are further implied terms disclosed in his statement of defence and counterclaim which he alleges SCRHA disregarded. [110] The author of a leading Canadian textbook on contract law – Geoff R. Hall, Canadian Contractual

Interpretation Law 4th ed. (Toronto: LexisNexis Canada Inc., 2020) – admonishes, at page 194: While the courts have a fairly broad scope to imply terms into a contract, since the exercise of contractual

interpretation is centred on thewords chosen by the parties there is an important limitation on the implication power. It may not be used either to rewrite the parties’agreement or to contradict the terms that the parties have expressly chosen. This restriction applies to all three branches of CanadianPacific Hotels/M.J.B. [Canadian Pacific Hotels Ltd. Bank of Montreal, (SCC), [1987] 1 SCR 711] [M.J.B. EnterprisesLtd. v Defence Construction

(1951) Ltd., (SCC), [1999] 1 SCR 619] It is clear that the power to imply terms into a contract is to be used cautiously . . . [111] This point was emphatically made by our Court of Appeal in Northrock Resources v ExxonMobil Canada Energy,2017 SKCA 60 at para 17, 416 DLR (4th) 321 [Northrock Resources] where Caldwell J.A. wrote: [17] In terms of contractual

interpretation then, Northrock’s submission would have the effect of requiring a court to find ahcontractual term existed where there is an absence of words to that effect in a written contract. This is very clearly contrary to theprinciples of contractual

interpretation, which call for a court to “read the contract as a whole, giving the words used their ordinary andgrammatical meaning, consistent with the surrounding circumstances known to the parties at the time of formation of the contract”(emphasis added, Sattva at para 47).

Generally speaking, the principle finds expression in other ways: a court will not make abargain that the parties did not intend; an implied term cannot be used to rewrite the express terms of a contract; an impliedterm may not improve the bargain for one party to the detriment of another. [Italics in original; bold added] [112] Indeed, Sattva explicitly extended this principle to the factual matrix surrounding contract formation.

ThereRothstein J. stated at para. 57: [57] While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed tooverwhelm the words of that agreement…The goal of examining such evidence is to deepen a decision-maker’s understanding of themutual and objective intentions of the parties as expressed in the words of the contract. The

interpretation of a written contractualprovision must always be grounded in the text and read in light of the entire contract… While the surrounding circumstances arerelied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates anew agreement… [Emphasis added, citations omitted] [113] Turning first to Dr. Mamchur’s assertion SCRHA would ensure that he obtain a full-time position as a doctor inWeyburn or other centre in the health region.

I find no support for this argument in either the written text of those agreements or thefactual matrix surrounding their creation. [114] It is true, for example, that in a document entitled “Medical Student Bursary Selection Criterion” completed byMr. Mark Arthur, a representative of SCRHA, when initially interviewing Dr. Mamchur on February 10, 2011, he wrote this in a columndesignated as “Career Plans”: Willing to work anywhere in SCHR. Likes small settings like Oxbow/Kipling. (See: Affidavit of Richelle Jones sworn July 6, 2016, Exhibit “A”) [115] In my view, this notation memorializes a statement made by Dr.

Mamchur during his interview with Mr. Arthurthat day, nothing more. No stipulation to this effect appears in any of the four Bursary Agreements or the RRPA. Rather, it isaspirational only representing Dr. Mamchur’s desire to set up practice as a rural physician at some point in the future. It forms no part ofthe contracts – either written or implied – entered into between SCRHA and Dr. Mamchur. [116] Furthermore, such an implied term contradicts express terms of both the Bursary Agreements and the RRPA. TheBursary Agreements explicitly stated that Dr.

Mamchur’s future placement “will be determined by vacancies in the Health Region”. Forits part, the RRPA stated: “Whereas the RHA has established a Program in conjunction with Saskatchewan Health Medical ServicesBranch (MSB) to provide rural relief practice coverage for host physicians in rural Saskatchewan for absences”. Thus, the implied termfor which Dr. Mamchur advocates would be contrary to the express written terms of the agreements, a situation disapproved of by bothcommentators and courts. [117] Next, Dr.

Mamchur asserts that the parties had agreed that if, after exercising due diligence, he was unable toestablish a practice arrangement in the health region through no fault of his own, he would be released from his return of serviceobligation. Again, this term finds no expression in the written text of the Bursary Agreements. [118] Moreover, it is plainly contradicted by explicit language in the written text of the agreements themselves.

All theBursary Agreements contained a provision which stated: “If the recipient of funding does not employ with Sun Country Health Region orleaves the employ of the Sun Country Health Region before the end of their service commitment, the bursary must be repaid at a pro-

rated level based on the length of service time remaining”. [119] Similarly, the RRPA contained the following stipulation: “If for any reason the Physician fails to provide fulltime continuous service to the RHA for the period specified in

Section 5 of the Agreement the Physician will repay to the RHA anamount of money that bears the same proportion to the amount of the signing bonus paid to the Physician”. [120] The language is clear, a failure by Dr. Mamchur to comply with the return-of-service commitments he had agreedto, would compel him to repay monies he had received in a proportionate amount to the time he worked for SCRHA. Not only would theimplied term advocated for by Dr.

Mamchur amount to rewriting these agreements, it would compel SCRHA to place his professionaland economic interests over its own interest in benefiting from his return of professional services. As the Court of Appeal in NorthrockResources stated at para. 47 one party to a contract is not expected, let alone required, to “put the other party’s interests ahead of its owninterests”. [121] The argument about this implied term raises indirectly the legal doctrine of frustration. Although Dr. Mamchurdid not directly argue this issue, SCRHA did address it in its’ written brief of law. It submitted that Dr.

Mamchur essentially argues thateven though he breached his return of service commitments under the various agreements, in the circumstances of this case, the doctrineof frustration relieves him of having to repay any amount of money to SCRHA.

I will briefly address SCRHA’s argument on this issue. [122] Our Court of Appeal pithily described the doctrine of frustration in Canada (Attorney General) v SaskatchewanWater Corporation, (SK CA), [1992] 4 WWR 712 (Sask CA) at para 43 as follows: An agreement is said to be frustrated when a change of circumstances after the agreement is made renders it impossible to fulfil theagreement, or has transformed the performance of the literal covenants contained in the agreement into obligations radically differentfrom those where were undertaken originally[.] … [Citation omitted] [123] For present purposes, it is the portion of the court’s description of the doctrine, namely that only if a change ofcircumstances renders the agreement impossible to complete, which is relevant. [124] Dr.

Mamchur advances two alternative submissions respecting the application of this doctrine to the facts. First,he submits the various agreements were frustrated because he believed he was required to work under circumstances he deemed to beunsafe for any medical doctor but especially for an individual who only recently had qualified as a physician. Second, and in thealternative, he pleads in his third amended statement of defence at para. 12 that the agreements were frustrated because SCRHA hadconstructively dismissed him. [125] I am not persuaded the extensive record before the court supports Dr.

Mamchur’s submissions on this doctrine.SCRHA cited Daba as authority supporting its’ arguments that the doctrine of frustration was not made out on these facts. Dr. Mamchurattempts to distinguish Daba on the basis that the legal document involved in that case was a promissory note, and not BursaryAgreements or a RRPA. [126] Respectfully, this a distinction without any real difference, in my opinion.

The fact is both documents compelledthe physician to provide professional services to the relevant regional health authority upon his graduation. [127] In Daba, for example, the defendant attempted to find post-graduate employment in Saskatchewan but wasunsuccessful. He then applied for, and obtained, a position in another province but did nothing further to obtain employment here. Thecourt in Daba concluded that the defendant’s defence based upon the doctrine of frustration failed both factually and legally.

At para. 43,Danyliuk J. ruled there were no obvious unforeseen circumstances which could give rise to the doctrine of frustration. He described thedefendant’s efforts to find employment in this province as “extremely limited”, and “half-hearted, at best”: Daba at para 42. [128] Here, a similar situation obtains. In July 2014, very shortly after he had commenced his return-of-serviceobligations, Dr. Mamchur advised Ms. Richelle Jones by e-mail, and subsequently, by telephone, that he could no longer continue in theassignments given to him.

There were no circumstances which made this situation either unforeseeable or inevitable. [129] The various Bursary Agreements did not include any term which said Dr. Mamchur would only receive anassignment agreeable to him or a full-time position in a location of his choosing. Affidavits submitted on this application and sworn byMs. Jones, as well as by Mr. John Knoch and Dr. Dimitri Louvish aver that no representations were ever made to Dr. Mamchur that hewould be given a full-time position in Weyburn. [130] Respecting the RRPA, Ms. Jones in her affidavit avers that she told Dr.

Mamchur that the regional locum positionwould require him to be available based upon the needs of the physician or physicians for whom he was covering and was only for rurallocations which excluded centres like Weyburn and Estevan. [131] Simply put, there is no factual basis in this case which would support the operation of doctrine of frustration. [132] Moreover, there is no legal basis for a finding that the agreements at issue here have been frustrated. That isbecause the agreements themselves expressly contemplate and provide for the failure by one party to complete its’ bargain.

See: ClaudeNeon Ltd. v KDJ Enterprises Ltd., (SK KB), [1996] 1 WWR 390 (Sask QB) at paras 10-11, and Lane v Lane, (MB KB), [1936] 1 DLR 655 (Man KB) [Lane]. [133] For example, the RRPA at clause 2 states: . . .If for any reason the Physician fails to provide full time continuous service to RHA for the period specified in

Section 5 of theAgreement the Physician will repay to the RHA an amount of money that bears the same proportion to the amount of the signing bonus

paid to the Physician as the portion specified in

Section 5 in which the Physician did not continue to provide service. . . [134] All the Bursary Agreements contain a similar provision. [135] It is obvious then that doctrine of frustration cannot legally operate because, to quote Adamson J. in Lane at 597,“one of the very things known to be possible and considered by the parties when making the agreement takes place”. [136] Dr. Mamchur of his own volition chose to terminate his lengthy return of service commitment to SCRHA. Thevarious agreements plainly identify the financial repercussions which would flow to him in those circumstances. There is no frustrationof contract in the circumstances of this

summary judgment application. See especially: Lloydminster Region Health Foundation Inc. vGraham, 1999 ABQB 82 at paras 19-20, and 29, and Daba at paras 41-42. Consequently, it is not necessary to consider the application,if any, of s. 5 of The Frustrated Contracts Act, SS 1994, c F-22.2. [137] Finally, I address Dr. Mamchur’s submission that, in reality, he was constructively dismissed from hisemployment with SCRHA, and is relieved from repaying monies to it. This argument cannot succeed because no employer-employeerelationship existed between SCRHA and Dr.

Mamchur. [138] The express wording of the various agreements identify Dr. Mamchur as an independent contractor. For example,clause 9 of the RRPA states: “The Physician agrees that he is not an employee of the host physician or the RHA and he is acting as anindependent contractor for purposes of temporary services provided to the host physician”. 3.2.3 Conclusion on Breach of Contract Issue [139] Accordingly, for these reasons, I am satisfied on a balance of probabilities that Dr. Mamchur of his own volitionbreached his return of service commitments to SCRHA.

There was no violation of the duty of good faith by SCRHA, no frustration ofcontract, and no constructive dismissal. Consequently, Dr. Mamchur is obliged to repay monies provided to him by SCRHA on aprorated basis in accordance with the terms of the various Bursary Agreements, and the RRPA. 4. Application of The Provincial Health Authority Act, SS 2017, c P-30.3 [PHAA] 4.1 Position of the Parties [140] A further defence advanced by Dr. Mamchur to this action relates to the applicability of the PHAA which cameinto force on December 7, 2017.

The PHAA amalgamated the SCRHA with the 11 other health regions then existing in the province, andcreated the Saskatchewan Health Authority. See: PHAA, s. 3-2. Prior to the coming into force of the PHAA, the SCRHA was a not-for-profit corporation and one of the 11 regional health authorities created pursuant to The Regional Health Services Act, SS 2002, c R-82, astatute repealed and replaced by the PHAA, s 10-1. [141] Dr. Mamchur asserts that with the advent of the PHAA his obligations for repayment to SCRHA effectively are atan end.

He submits that his return of service period to SCRHA which began in July 2014 extended to approximately July 2018. Thecreation of the Saskatchewan Health Authority through the amalgamation of various regional health authorities, including the SCRHAoccurred in December 2017. Dr. Mamchur argues that when this amalgamation occurred, his obligation was to the single, provincialhealth authority, i.e. the Saskatchewan Health Authority.

Since July 2014, he has worked continuously in Saskatchewan but not alwayswithin the geographic boundaries of the former SCRHA, and, consequently, he fulfilled any return of service commitment he had madeto SCRHA. [142] SCRHA counters this line of argument by saying that the PHAA only operates prospectively. To accept Dr.Mamchur’s arguments, it asserts, would be to conclude this statute operates retrospectively or retroactively contrary to the statutoryinterpretive principle that legislation is generally prospective in nature.

See, for example: R v Albashir, 2021 SCC 48, at paras 35-37, 407CCC (3d) 437 [Albashir]; Gustavson Drilling

(1964) Ltd. v Minister of National Revenue, (SCC), [1977] 1 SCR 271 at279 [Gustavson Drilling], and Mosten Investments LP v The Manufacturers Life Insurance Company (Manulife Financial), 2021 SKCA36 at para 307, [2021] 9 WWR 1. If the statute’s language can be construed either expressly or by necessary implication as operatingretrospectively only then is this general interpretive principle displaced. See: Albashir at para 37, and Gustavson Drilling at 279. 4.2 Analysis [143] Considerable argument was advanced by the parties respecting the question of whether the PHAA operatedprospectively or retrospectively.

However, upon reflection I do not find it necessary to resolve the issue definitively, for the followingreasons. [144] First, I am satisfied that the intent of the PHAA is clear by virtue of s. 3-2. It is intended to amalgamate andcontinue the previous 11 regional health authorities as one province-wide authority, the Saskatchewan Health Authority. There is no“retroactive legislative intent either explicitly or by necessary implication” discernible in this

section which sets out the general purposeof this important statute. Consequently, there is a “strong presumption” the PHAA is prospective. See, especially: Albashir at para 37. [145] Second, Dr. Mamchur argues, however, that other provisions of the PHAA, most notably s. 3-4, indicate thelegislature’s express intention that this statute should operate retroactively. He asserts that by substituting the Saskatchewan HealthAuthority for the SCRHA in s. 3-2, and by stipulating in ss. 3-4(4)(

a) that it is substituted for all contracts, it means that the BursaryAgreements and locum contracts are now between Dr. Mamchur and the Saskatchewan Health Authority. As he has worked, andcontinues to work, for that entity, he has fulfilled his obligations under those various return of service agreements. Consequently, itfollows that SCRHA’s

summary judgment application should be dismissed. [146] This is a deceptively simple, if not attractive, line of argument. Respectfully, however, I find it is misguided. Tounderstand how I arrive at this conclusion, I set out the full text of ss. 3-4(1) to (4) below:

3-4(1) In this section, “former regional health authority” means a regional health authority amalgamated pursuant to

section 3-2 intothe provincial health authority.

(2) On the coming into force of this section, the membership of each member of a former regional health authority is terminated.

(3) Notwithstanding any other Act, regulation, agreement or law, all assets, liabilities, rights and obligations of each former regionalhealth authority continue as the assets, liabilities, rights and obligations of the provincial health authority

(4) Without limiting the generality of subsection (3) and for the purposes of that subsection: (

a) the provincial health authority is substituted for any former regional health authority with respect to any agreement to which theformer regional health authority was a party, including contracts of employment and collective agreements; (

b) the continuation does not violate, void or constitute a breach of the terms of any agreement to which a former regional healthauthority was a party, including: (

i) any provision requiring exclusivity of contract; or (ii) any provision of any policy of insurance; (

c) any existing right, claim, cause of action or proceeding brought against a former regional health authority is unaffected and continuesagainst the provincial health authority. [Emphasis added] [147] A close reading of these sections, most notably subsection 3-4(4) of the PHAA, reveals, however, that these areeffectively transitional provisions, i.e. provisions “enacted to catch those who fall between the cracks created by two pieces oflegislation” and “ensure that these individuals are not left in legal limbo, uncertain of their rights and with no applicable law”:Medovarski v Canada (Minister of Citizenship and Immigration); Esteban v Canada (Minister of Citizenship and Immigration), 2005SCC 51 at para 17, [2005] 2 SCR 539.

Simply put, together ss. 3-4(3) and (4) seek to ensure that all contractual arrangements, legalentitlements or liabilities existing at the time a particular regional health authority like SCRHA was subsumed into the SaskatchewanHealth Authority, remained in place. Those provisions did not, however, purport to alter or amend those arrangements in any way. [148] Of particular relevance here is ss. 3-4(4)(

b) which expressly states that the amalgamation and continuation whichoccurred on December 4, 2017 did not “void…a breach of the terms of any agreement to which a former regional health authority was aparty, including: (

i) any provision requiring exclusivity of contract” (emphasis added). In other words, if a breach of an agreement withSCRHA had occurred prior to the date of amalgamation, it was not voided. It remained unaffected by the change in the status of theSCRHA. [149] As set out at length above, I conclude that Dr. Mamchur breached the terms of his various Bursary Agreements aswell as the RRPA he had entered into with the SCRHA which triggered the repayment obligations in those agreements.

Furthermore, Ifound that these breaches occurred approximately in November 2014, well before the amalgamation of the SCRHA with other regionalhealth authorities to create the Saskatchewan Health Authority. It follows by virtue of ss. 3-4(4)(

b) of the PHAA, then, these breaches ofcontract committed by Dr. Mamchur are in no way affected by the amalgamation. His liability to the former SCRHA remains, and it isclearly within its rights to seek enforcement of his obligations which flow from these breaches. 4.3 Conclusion [150] Accordingly, for these reasons defences under the PHAA advanced by Dr. Mamchur are without merit and areamenable to

summary judgment. They do not raise a genuine issue requiring a trial. 5. Relief from Forfeiture [151] The final defence advanced by Dr. Mamchur to SCRHA’s application for

summary judgment is relief fromforfeiture or penalty as provided for in

section 13 of The Queen’s Bench Act, 1998, SS 1998, c Q-1.01 [QB Act]. This provision is briefand reads as follows: 13. The court may grant relief against penalties and forfeitures and, in granting that relief, may impose any terms with respect to costs,expenses, damages, compensation and any other issues that the court considers appropriate. 5.1 Law [152] It is well-settled that this equitable remedy is “purely discretionary”: Saskatchewan River Bungalows Ltd. vMaritime Life Assurance Co., (SCC), [1994] 2 SCR 490 at 504 [Saskatchewan River Bungalows].

Factors to beweighed when a court considers whether to exercise this discretion include: (1) the conduct of the applicant; (2) the gravity of thebreaches, and (3) the disparity between the value of the property forfeited and the damage caused

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