ALICIA YASHCHESHEN PLAINTIFF - v. -, 2023 SKKB 51

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 51 Date: 20 23 03 02 Docket: QBG-RG-01550-2019 Judicial Centre: Regina BETWEEN: ALICIA YASHCHESHEN PLAINTIFF - and - TEVA CANADA LTD. AND GOVERNMENT OF SASKATCHEWAN DEFENDANTS Counsel: Alicia Yashcheshen self-represented plaintiff Amanda M. Quayle, K.C. for Teva Canada Ltd. Laura Mazenc for Government of Saskatchewan JUDGMENT TOCHOR J. March 2, 202 3 I. Introduction [ 1 ] Alicia Yashcheshen was declared a vexatious litigant: Saskatchewan v Yashcheshen , 2020 SKQB 160 at para 76 [ Yashcheshen QB ]. [ 2 ] She appealed that decision and was largely unsuccessful.

She remains subject to an order preventing her from instituting proceedings commenced by statement of claim or originating application without first obtaining leave of the court: Yashcheshen v Teva Canada Ltd. , 2022 SKCA 49 at paras 104-108 , [2022] 8 WWR 60; and Yashcheshen v Teva Canada Ltd. , 2022 SKCA 121 at para 2 (d), [2022] 12 WWR 189. [ 3 ] She now brings an application for an order setting aside a decision of the Attorney General of Saskatchewan [AG] on May 7, 2019. In that decision, the AG provided its consent to Teva Canada Ltd. [Teva] making an application to have Ms.

Yashcheshen declared a vexatious litigant. This consent of the AG was a pre-requisite to the application in which she was declared vexatious ( Yashcheshen QB at para 76 ). [ 4 ] She does not seek leave of the court to bring this application in accordance with the Court of Appeal rulings.

She argues leave is not required because she is relying on Rule 1-5(2)(b)(ii) and (iii) of The Queen’s Bench Rules to set aside the consent provided by the AG and all subsequent proceedings. [ 5 ] For the reasons that follow, I conclude she requires leave to bring her proposed application and, further, I conclude she must bring her application as an originating application. Therefore, I dismiss Ms. Yashcheshen’s application with costs. II.

Brief Background [ 6 ] On May 7, 2019, the AG gave his consent pursuant to Rule 11-28(1) of The Queen’s Bench Rules permitting Teva to apply to the court for a declaration that Ms. Yashcheshen was a vexatious litigant. The consent of the AG was a necessary pre- requisite under The Queen’s Bench Rules in force at that time. The consent allowed Teva to apply to have her declared vexatious. [ 7 ] After Teva brought the application, Krogan J. made an order pursuant to Rule 11-28 of The Queen’s Bench Rules on June 3, 2020, declaring her to be a vexatious litigant ( Yashcheshen QB ).

In that ruling, Krogan J. held: [76] … Ms. Yashcheshen shall not institute any proceedings in this Court without first seeking leave of the court. Such proceedings include inter alia statements of claim, originating applications, or other applications. …

[ 8 ] In her ruling, Krogan J. also made an order striking Ms. Yashcheshen’s claim. [ 9 ] Ms. Yashcheshen appealed this ruling. [ 10 ] On April 18, 2022, the Court of Appeal upheld the order declaring her to be a vexatious litigant ( Yashcheshen v Teva Canada Ltd. , 2022 SKCA 49 at paras 104-108 ). However, it removed the phrase “or other applications” in order to permit Ms. Yashcheshen to make interlocutory applications in existing actions (at para. 108). The Court of Appeal decision ( Yashcheshen v Teva Canada Ltd. , 2022 SKCA 121 at para 2 (d)) left undisturbed the original ruling that Ms.

Yashcheshen is prohibited from “ instituting proceedings that are commenced by statement of claim or originating application without first seeking leave of a judge of that court ” (emphasis added). [ 11 ] The Court of Appeal also remitted the order striking Ms. Yashcheshen’s claim back to the Court of King’s Bench for reconsideration in light of her proposed amended statement of claim. [ 12 ] Ms. Yashcheshen applied to the Court of Appeal for a re-hearing of its decision under Rule 47(1) of The Court of Appeal Rules , but this application was dismissed on October 20, 2022. [ 13 ] As a result, Ms.

Yashcheshen remains subject to the order that prevents her from instituting proceedings commenced by statement of claim or originating application without first seeking leave of the court. [ 14 ] Ms. Yashcheshen now applies by notice of application - not a statement of claim or originating application – for an order setting aside the consent given by the AG on May 7, 2019. [ 15 ] She submits she was denied procedural fairness and subjected to an abuse of process because she was not given notice of the application made to the AG for his consent under Rule 11-28 of The Queen’s Bench Rules .

Further, she submits she was not given an opportunity to make submissions to the AG about the potential impact upon her if he granted his consent to Teva making such an application. Ms. Yashcheshen therefore submits the consent given by the AG was improper and must be set aside. [ 16 ] In response, Teva argues leave must be first obtained before the application can be considered. It also argues this application can only be brought by way of originating application in accordance with The Queen’s Bench Rules .

The AG agrees the application should have been brought by way of originating application and, even if a notice of application was an appropriate vehicle from which Ms. Yashcheshen could request her relief, other barriers – such as the doctrine of issue estoppel –prevent her application from succeeding. III. Analysis [ 17 ] After reviewing the application materials filed by Ms. Yashcheshen and considering the submissions made by the parties, I conclude the application must be dismissed. [ 18 ] First, while Ms.

Yashcheshen vigorously argues otherwise, the relief she seeks can only be obtained by way of an originating application. The Queen’s Bench Rules make this mandatory. [ 19 ] Ms. Yashcheshen makes a number of arguments to rationalize why her choice to proceed by notice of application is appropriate. For example, in oral submissions, the applicability of Rule 3-49(1)(

g) of The Queen’s Bench Rules was raised. This Rule provides an action may be started by originating application if the remedy claimed is: “(

g) the judicial review of a decision, act or omission of a person or body”. Ms. Yashcheshen, however, argues this Rule is inapplicable because the AG is neither a person nor a body. [ 20 ] At para. 26 of her written submission, Ms. Yashcheshen relies upon Rules 3-50 to 3-55 of The Queen’s Bench Rules – the Rules respecting originating applications - to illustrate the requirements for procedural fairness.

Yet, she argues her application does not have to be brought as an originating application. [ 21 ] Despite her various procedural arguments, I conclude the best way to determine a characterization of her application is to consider the nature of the relief she requests.

Here, the remedy she seeks – the setting aside of a decision made by the AG – can only be obtained through a judicial review of his decision. [ 22 ] The first sentence of her written submission identifies her objective to “set aside the process exercised pursuant to Rule 11-28(1)” of the AG on the basis of: [1] … procedural unfairness, because by the Applicant not being served, not given notice of an intent to consent, and not given at least 30 days to provide representations, she was unfairly treated by the opposing counsel, the AGS [Attorney General of Saskatchewan], and their counsel at the Deputy Attorney General and Deputy Minister of Justice, who were all complicit in the substantial unfairness exhibited towards an unrepresented litigant. … [ 23 ] The remedy she articulates, at para. 64 of her written submission, is “to set aside the consent”. [ 24 ] When I consider the nature of the relief she requests, I conclude her application seeks a remedy in the nature of certiorari .

Therefore, by operation of The Queen’s Bench Rules , her application must be brought by way of originating application. Rule 3-56(2) provides mandatory direction in this regard: 3-56

(2) An originating application must be filed in the form of an originating application for judicial review if the originating applicant seeks from the Court any one or more of the following remedies against a person or body whose decision, act or omission is subject to judicial review :

(

a) an order in the nature of mandamus, prohibition, certiorari , quo warranto, habeas corpus , or to quash proceedings; (

b) a declaration or injunction. [Emphasis added] [ 25 ] During oral submissions, Ms. Yashcheshen expressed concern that if she was required to obtain leave before bringing this application, leave would be denied. She also expressed concern about the costs of copying the materials necessary to file the record of proceedings required in a judicial review application.

Those submissions, however, offer no justification for characterizing her application as something different than what it is. [ 26 ] In the end analysis, I conclude she is trying to characterize her application as something other than a request for judicial review for the purpose of avoiding the requirement to seek leave of the court to bring her application. [ 27 ] I therefore conclude that, in the event she chooses to proceed with her request for this relief, it must be brought as an originating application in accordance with The Queen’s Bench Rules . [ 28 ] Second, the order of both Krogan J. and the orders of the Court of Appeal require Ms.

Yashcheshen to obtain leave of the court before embarking upon a proceeding for the relief she requests. [ 29 ] As set out above, she remains subject to an order preventing her from instituting proceedings commenced by statement of claim or originating application without first seeking leave of the court. She has not done so and, before her application can be determined, she must obtain leave in accordance with the order of Krogan J. as amended by the Court of Appeal. [ 30 ] For these reasons, I conclude her application must be dismissed. IV.

Costs [ 31 ] Rule 11-8(1) of The Queen’s Bench Rules sets out the general rule that costs ought to follow the outcome of an application. However, this Rule is nevertheless subject to the over-riding discretion regarding costs set out in Rule 11-1(1) and is also subject to the discretionary factors listed in Rule 11-1(4) of The Queen’s Bench Rules . [ 32 ] I recognize an order of costs against Ms. Yashcheshen may create some hardship on her; however, that is not the only factor to consider. Other considerations also come into play and are relevant.

I observe, for example, that in this application she appears to be attempting to circumvent the requirement for leave before commencing a proceeding. [ 33 ] After taking all relevant considerations into account, including the relative success of the respective parties, I conclude the Ms. Yashcheshen must pay costs in the sum of $250 to each of the defendants, for a total of $500, within 90 days of the date of this order. V.

Summary of Orders [ 34 ] In

summary, I make the following orders: (

a) Ms. Yashcheshen’s application to set aside the consent given by the Attorney General on May 7, 2019, is dismissed; and (

b) Ms. Yashcheshen shall pay costs of this application in the sum of $250 to each of Teva Canada Ltd. and the Attorney General for Saskatchewan, for a total of $500, within 90 days of the date of this order. J. M.D. TOCHOR