SHAWN HAAS Applicant - v. -, 2022 SKKB 275

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 275 Date: 2022 12 19 Docket: QBG-SA-00473-2022 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: SHAWN HAAS Applicant - and - THE SASKATCHEWAN VETERINARY MEDICAL ASSOCIATION Respondent Counsel: Jay D. Watson for the applicant Robert J. Affleck and Sydney A. Young for the respondent ___________________________________________________________________________ FIAT MORRALL J.

December 19, 2022 ___________________________________________________________________________ Introduction [ 1 ] On September 12, 2021, the Saskatchewan Veterinary Medical Association [SVMA] held their annual general meeting [AGM], wherein the members present voted 51 to 7 with 1 abstention in favour of a motion to approve a proposed bylaw to ban and prohibit members of the SVMA from performing onychectomy (declawing) of cats for cosmetic or non-therapeutic reasons.

Of interest, the most contentious question of the AGM was the query, “Do you drink coffee in the morning?” to which 35 members agreed and 12 responded in the negative. [ 2 ] By originating application for judicial review dated May 4, 2022, the applicant, Dr. Shawn Haas, a member of the SVMA, seeks to quash all the decisions and/or resolutions passed at the AGM of the SVMA on September 12, 2021, and costs. Dr. Haas filed an affidavit dated May 4, 2022, and Dr.

Greg Parks, as the Registrar and Chief Executive Officer of the SVMA, provided an affidavit in response dated June 23, 2022, along with a certified record of proceedings dated May 25, 2022. At no time did either party apply to cross-examine any of the affiants. Facts [ 3 ] Dr. Shawn Haas is a member of the SVMA and has been since June 1993, having graduated from the College of Veterinary Medicine at the University of Saskatchewan in April 1993. [ 4 ] Dr.

Haas states that when he arrived at work on September 13, 2021, he was surprised to find out that the SVMA had made the declawing of cats an offence under the Saskatchewan Veterinary Medical Association Bylaws (12 September 2021) [ Bylaws ]. Dr. Haas avers that he was neither aware of the AGM nor the fact that this topic was up for discussion and vote. When he went to look for notices, he confirmed that he did not receive any mailout notice at his place of employment or work from Canada Post.

However, he did find an email sent to his work email address on September 11, 2021, at 7:59 a.m. indicating that the agenda for the AGM could be found on the SVMA’s website. [ 5 ] He reviewed the SVMA’s monthly “e-note” of September 8, 2021, which he usually does not read, and found that the date of the AGM was included but there was no reference to the meeting agenda being available nor was there any indication that the cat declawing bylaw was to be considered.

He did agree that the agenda could be found on the SVMA’s resource library but noted that if one did not know that an AGM was taking place, there would be no reason to go looking for an agenda. [ 6 ] Dr. Haas ends his affidavit with the assertion that “Had I known about the proposed changes to the bylaw, I would have attended the meeting and would have prepared material to present to the members in attendance with respect to the bylaw change.” [ 7 ] On behalf of the respondent, Dr.

Parks advised that the SVMA is a statutory body under The Veterinarians Act, 1987 , SS 1986-87-88, c V-5.1 [ Act ], and is responsible for the regulation of the veterinary profession in Saskatchewan. The SVMA

has approximately 1,705 members, of which 765 are veterinarians, 552 are veterinary technologists, and 388 are students. [ 8 ] The SVMA maintains contact with its members in a variety of ways, including a “member portal” found on the SVMA website. In July 2020, the SVMA moved to online renewal using the member portal of registrations of individuals and clinics which was communicated via email and Canada Post. Dr.

Parks states that the applicant and his clinic provided their contact information through the member portal and noted that email communications are sent to members using the email addresses registered on the portal. He also noted that this electronic shift proved timely due to the COVID-19 pandemic. [ 9 ] For the AGM, proposed amendments to the Bylaws are distributed to the membership at least 30 days prior to the AGM.

Since March 2020, the SVMA used the MailChimp service to deliver electronic communication to its members and invited members to submit proposed bylaws and/or amendments on five occasions between May 18, 2021, and June 15, 2021. [ 10 ] The AGM of September 12, 2021 was held virtually for the first time due to COVID-19.

Through the MailChimp service, and “E-news communications”, the SVMA advised members that they could access the AGM materials, which included the cat declawing amendment, through the member portal on five occasions between August 10, 2021, and September 8, 2021. [ 11 ] The MailChimp service also allows the SVMA to track delivery and access of communications to members and, using that capability, the applicant was tracked opening emails received from the SVMA approximately 126 times between March 19, 2020, and April 19, 2022. [ 12 ] During the AGM, the declawing bylaw (Article 12.3.l of the Bylaws ) passed with 51 votes in favor, 7 against and 1 abstention.

After the AGM, members were advised of the change three times in September 2021. Of note, the procedure had already been banned in seven other provinces in Canada before this vote. [ 13 ] This application for judicial review was the first time Dr. Parks heard of any concerns with the new declawing bylaw. [ 14 ] In conclusion, Dr. Parks advised that should the entirety of the AGM be quashed, approval of previous minutes, audited financial reports, elections and other practice standard changes would be impacted.

Position of the Parties [ 15 ] The applicant argues that, given the imperative language used in both the Act and the Bylaws requiring notices to be mailed by regular mail, a breach of natural justice occurred when the notice of the meeting and the bylaw amendment was not sent in that fashion to the applicant. He stated that the standard of review is one of correctness but that even on a reasonableness standard, the respondent clearly did not follow their own rules. [ 16 ] He argues that the delay in commencing the action was not undue given the applicant’s professional abilities.

In responding to the issue of alternate remedies, he noted that the SVMA is still not complying with the legislation.

If the Court were to allow this breach of the rules, he submitted it would establish a bad precedent, essentially giving carte blanche to professional organizations to disregard their procedures when it suits them. [ 17 ] Therefore, the bylaw should be quashed so that the applicant may be given an opportunity to make submissions on whether cats should be declawed. [ 18 ] On the other hand, the respondent takes the position that appropriate notice of the AGM did occur, given the email notice given to all members including the applicant, as a result of a purposive reading of the legislation taking into account the COVID-19 context and pursuant to The Electronic Information and Documents Act, 2000 , SS 2000, c E-7.22 [ EIDA ].

Further, they argue that even if the Court finds the notice inadequate, substantial compliance occurred as this was purely a technical breach. [ 19 ] They state that this Court should use a reasonableness standard in interpreting the legislation and compliance with the notice. They submit that the applicant’s delay in proceeding was undue as there was no explanation given although he knew of the existence of the amended bylaw the day after it happened.

As well, the applicant could have availed himself of the meeting provisions in the Act and the Bylaws to call another meeting to argue the matter and potentially rescind the bylaw should he have had a majority of votes. [ 20 ] Given their submissions on statutory

interpretations and the available options that were open to Dr. Haas, the respondent asks that no remedy be granted. Legal Issues [ 21 ] Given the fact scenario in this application for judicial review, the following legal issues arise: 1. As a result of the delay between the date of the amendment of the bylaw at the AGM and the date the applicant filed the originating application, has there been “undue delay”? 2. Was an adequate alternative remedy available to the applicant other than pursuing judicial review? 3.

What is the appropriate standard of review, having regard to the impugned notice requirements by the applicant? 4. Using the applicable standard of judicial review, was the notice given to the applicant of the AGM reasonable and/or correct? 5. Should this Court find the notice unreasonable and/or incorrect, what would be the appropriate remedy? 6. Depending on the Court’s determination of these issues, what costs should be awarded?

The Legislation [ 22 ] The following sections of the Act are relevant: Meetings 6

(1) An annual meeting of the association is to be held at that time and place that is determined by the council in accordance with the bylaws for the transaction of the business that may be brought before the meeting.

(2) The procedure at an annual meeting is to conform to the procedures determined by bylaw.

(3) A special meeting of the association is to be held: (

a) on resolution of the council; or (

b) on the demand, in writing, of at least 25 members; for the transaction of the business that is specified in the resolution or demand.

(4) The registrar shall give notice of an annual or special meeting to each member by ordinary mail sent at least 10 days before the meeting. … Procedure 12

(1) The council may, with the approval of not less than three quarters of its members, pass bylaws for any purpose set out in

section 13.

(2) A bylaw made by the council pursuant to subsection (1) has force and effect only until the next annual or special meeting of the association and, unless confirmed or varied by the members in accordance with subsection (3), ceases to have any force or effect.

(3) With the approval of a majority of those members who vote at an annual or special meeting, the association may make bylaws for any purpose set out in

section 13 and confirm, vary or revoke any bylaw made by the council pursuant to subsection (1).

(4) The variation or revocation of a bylaw pursuant to subsection (3) does not affect the operation or application of the bylaw prior to its revocation or variation and everything done, omitted to be done or authorized pursuant to the bylaw is valid and effectual against all persons notwithstanding the revocation or variation, unless otherwise directed by a majority of members who vote.

(5) The registrar shall notify each member, by ordinary mail, of each bylaw: (

a) passed pursuant to subsection (1) or (3); or (

b) confirmed, varied or revoked pursuant to subsection (3); within 30 days of its passage, confirmation, variation or revocation, as the case may be.

(6) Bylaws made or continued pursuant to The Veterinarians Act continue in force until varied or revoked pursuant to this section.

(7) As between members, the ruling of the council on the construction and

interpretation of the bylaws is final. [ 23 ] The following sections of the Bylaws are relevant: 3.10. Notices: Whenever notice is required to be given to a member of council, such notice shall be deemed to be given effectively if given in person or by telephone, mail, facsimile, e-mail or by other means of electronic transmission and, subject to

Section 3.7 and

Section 3.8, shall be delivered 2 weeks prior to any meeting of council. Attendance by a member of council at a meeting shall constitute a waiver of notice of such meeting. … 9. Meetings of Members 9.1. Annual Meeting: An annual meeting of the members of the association shall be held at least once in every calendar year, and not more than 15 months after the last preceding annual meeting, at such time and place as council may decide. 9.2.

Special Meeting: A special meeting of the members of the association shall be held, at such time and place as council may decide, following either: a. a resolution of council; or b. a written demand signed by at least 25 Voting Members delivered to council, which written demand shall be accompanied with particulars of the business to be considered at such special meeting of the association . If council fails to call a special meeting of the members of the association within 90 days of delivery of the written demand referred to in

Section 9.2.b, the special meeting may be convened by the members who requested it, provided this Bylaw, modified as necessary toapply to such members convening the meeting (for example the giving of notice, the chairing of meetings and so on), is complied with. 9.3. Notice of Meeting: Notice of the time and place of the meeting of the members of the association, together with notice of the business to be transacted at themeeting, shall be sent not less than 10 days nor more than 50 days before the meeting.

The registrar shall mail, or cause to be mailed,such notice to every member of the association, addressed to such member to the address currently on record with the association. Judicial Review [24] Before examining the various issues that arise from the application in this matter, it is helpful to review thedecision of the Saskatchewan Court of Appeal in Risseeuw v Saskatchewan College of Psychologists, 2019 SKCA 9, 437 DLR (4th) 681[Risseeuw], to gain a broad understanding of the general principles behind judicial review, where they state the following: [53] I find it helpful to step back and assess Ms.

Risseeuw’s position in light of the applicable common law principles. To begin with,an application for judicial review is a request to invoke the court’s supervisory jurisdiction over the exercise of power by a public officialor tribunal. There is no right per se to prerogative relief even if a party has standing and all of the necessary criteria have been met. Thisprinciple is explained in Brown and Evans [Donald J.M. Brown and The Hon. John M.

Evans, Judicial Review of Administrative Actionin Canada, loose-leaf (Rel 2018-3, October 2018) vol 2 (Toronto: Thomson Reuters, 2013)] in this way (at 3-3): All of the discretionary bars are grounded in the notion that, even though a public body may have acted unlawfully, the public interestdoes not always require judicial intervention. That is, other factors can override the general public interest that governmentaldecision-making accord with appropriate legal norms. [54] Moreover, the court has an overriding discretion to refuse prerogative relief.

This reflects the fact that, unlike private law,judicial review is not exclusively directed to the vindication of individual rights (Brown and Evans at 3-1 and 3-2).

In this case, Ms.Risseeuw sought prerogative relief in the nature of certiorari to quash the College’s decision and mandamus to compel the College toapprove her application for full-practicing membership. [25] The Supreme Court of Canada made comments to the same effect in Strickland v Canada (Attorney General),2015 SCC 37, [2015] 2 SCR 713 [Strickland], as follows: [37] Judicial review by way of the old prerogative writs has always been understood to be discretionary.

This means that even if theapplicant makes out a case for review on the merits, the reviewing court has an overriding discretion to refuse relief: see, e.g., D.J.Mullan, “The Discretionary Nature of Judicial Review”, in R.J. Sharpe and K. Roach, eds., Taking Remedies Seriously: 2009 (2010),420, at p. 421; Harelkin v. University of Regina, (SCC), [1979] 2 S.C.R. 561, at p. 575; D.P. Jones and A.S. de Villars,Principles of Administrative Law (6th ed. 2014), at pp. 686-87; Brown and Evans, at topic 3:1100.

Declarations of right, whether soughtin judicial review proceedings or in actions, are similarly a discretionary remedy: “... the broadest judicial discretion may be exercised indetermining whether a case is one in which declaratory relief ought to be awarded” (Dickson C.J. in Canada (Auditor General) v.Canada (Minister of Energy, Mines and Resources), (SCC), [1989] 2 S.C.R. 49, at p. 90, citing S.A. de Smith, JudicialReview of Administrative Action (4th ed. 1980), at p. 513). [26] The next two issues of undue delay and alternate remedy, sometimes known as preliminary objections to judicialreview, both involve a specific examination of some “public interest” factors, to use the terminology of Brown and Evans (JudicialReview of Administrative Action in Canada, loose-leaf (Rel 2018-3, October 2018) vol 2 (Toronto: Thomson Reuters, 2013)) noted inRisseeuw, in determining whether there has been undue delay or the availability of an adequate alternate remedy.

Undue Delay [27] Prior to a determination on the merits of the application for judicial review, Rule 3-56(3) of The Queen’s BenchRules requires that an application be vetted in the following manner: 3-56(3) Subject to rule 3-63 and any enactment limiting the time in which an originating application for judicial review may be made, ifthere has been undue delay in making an originating application, the Court may refuse to grant any remedy sought if the order: (

a) would be likely to cause substantial hardship to or substantially prejudice the rights of any person; or (

b) would be detrimental to good administration. [28] The application of this rule has arisen on numerous occasions.

This Court recently had occasion to reiterate theprinciples involved in the decision of Carrier v University of Saskatchewan, 2021 SKQB 59 [Carrier], as follows: [41] Prior to July of 2013, it was dealt with under former Rule 675: 675 Subject to any statutory provision limiting the time in which an application for judicial review may be made, where there has beenundue delay in making an application, the court may refuse to grant any relief sought if the order would be likely to cause substantialhardship to or substantially prejudice the rights of any person or would be detrimental to good administration. [42] These Rules are similar enough that the jurisprudence under former Rule 675 is of some assistance in interpreting Rule 3-56(3).The law is well-settled: undue delay in bringing the application can be fatal.

Rule 3-56(3) is essentially a codification of the common lawprinciples which oblige applicants to bring judicial review applications in a timely manner. [43] The seminal case on point is Henry v Saskatchewan (Workers’ Compensation Board) (1999), (SK CA), 172

DLR (4th) 73 (Sask CA). Bayda C.J.S. set out the proper approach when considering delay: [70] The Rule requires a two-staged approach. The first stage contemplates a determination whether the delay in “making theapplication” is “undue”. It is important to note that it is the “making” as opposed to the “hearing” of the application that is governed bythe Rule. It is important as well to resolve what is meant by “undue”.

In my view, the term embraces two elements: the first is the actuallapse of time (measured in days, months and years) between the making of the decision requested to be reviewed and the making of theapplication requesting the review. The second is an assessment of the reasonableness of the lapse of time having regard to such mattersas the applicant's circumstances; the nature of the legal problems involved; the conduct, acquiescence, and consent of the opposing party;negotiations toward settlement of the dispute (the list is not exhaustive).

This second element is often summarized in the expression“explanation for the delay”. [71] The second stage is engaged only if at the first stage the delay is found to be “undue”. The second stage requires a determinationwhether the order sought by the applicant would result in one or more of three eventualities (

i) likely substantial hardship to any person,(ii) likely substantial prejudice to the rights of any person and (iii) detriment to good administration. If one or more of those results is aptto occur, then the judge is empowered to refuse the relief sought. On the other hand, if none of the results is apt to occur the judgewould be justified in granting the order even though the delay was undue. [44] This test has been approved and utilized consistently. Henry was considered in Gjerde [2016 SKCA 30, 476 Sask R 121].

TheCourt of Appeal said this at paragraphs 28 and 29: [28] Rule 3-56(3) gives a judge discretion to determine whether an application for judicial review should be refused on the basis ofundue delay.

Such a decision is entitled to deference and an appellate court should only interfere if there has been an abuse of thatdiscretion, that is: the judge erred in principle, disregarded a material matter of fact, or failed to act judicially or the result is “so plainlywrong as to amount to an injustice and invite intervention on that basis” (see Rimmer v Adshead, 2002 SKCA 12 at para 58, [2002] 4WWR 119; and Royal Bank of Canada v Anderson, 2008 SKCA 153 at para 10, 314 Sask R 215). [29] The law pertaining to undue delay in bringing applications for judicial review was considered by this Court in Henry vSaskatchewan (Workers’ Compensation Board) (1999), (SK CA), 172 DLR (4th) 73 (Sask CA) at para 70 [Henry].In that case, Bayda C.J.S. concluded a two-step analysis should be employed when deciding such applications.

The first step of theanalysis requires a determination of whether the delay is “undue.” There are two aspects to that question, namely (

i) the actual amount oftime that has elapsed between the making of the decision to be reviewer and the initiation of the application for judicial review, and(ii) the reasonableness of the delay, which focuses on the explanation(

s) proffered for it. If the delay is found to be “undue,” then thesecond step of the analysis is engaged, and the judge must determine whether the order sought is likely to cause substantial hardship orsubstantial prejudice to the rights of any person or is detrimental to good administration.

If one of those three eventualities exists, then ajudge may exercise his or her discretion and refuse the application. [45] I have also considered: Risseeuw v Saskatchewan College of Psychologists, 2019 SKCA 9, 437 DLR (4th) 681; McCarty vSaskatchewan College of Psychologists, 2011 SKQB 471, 391 Sask R 105; Holowachuk v Saskatchewan (Workers’ CompensationBoard), 2009 SKQB 74, 329 Sask R 131; Warner v Saskatchewan (Workers’ Compensation Board), 2007 SKQB 76, 292 Sask R 283;and Durr v Saskatchewan (Minister of the Department of Highways and Transportation), 2000 SKQB 566.

All of these casesconsistently apply the same principles to delay in judicial review cases. [29] The first step in the Henry process (Henry v Saskatchewan (Workers’ Compensation Board) (1999), (SK CA), 172 DLR (4th) 73 (Sask CA) [Henry]) is to determine whether the delay has been “undue”. [30] Again, the Court in Carrier, reviewed the authorities and made the following instructive comments: [48] In Saskatchewan there is no hard and fast definition of undue delay. Whether delay exists depends upon the overallcircumstances. This is not the case in other jurisdictions.

In Alberta, Rule 3.15(2) specifically provides that an application for judicialreview must be served and filed within six months of the decision date. In Ontario, the case law has evolved to the point that any delayover six months calls for an assessment.

For example, in Ransom v Ontario, 2010 ONSC 3156, this was said at paragraph 15: “ThisCourt has held on many occasions that a delay of more than six months in commencing a judicial review application is reason forconcern.” But there is no automatic dismissal of a delayed application and the surrounding circumstances are examined. [49] In this case, as it pertains to the impugned October 2018 decision, I find the first stage of Henry has been met. The applicant’sdelay is undue.

Approximately two years passed between the date of the original faculty decision and a formal request, in thisapplication, for review of that decision. [50] In reaching this conclusion I have accepted that in this province there is no pre-established limit for delay. Each case will turn onits own facts.

Nevertheless, guidance may be obtained from other decisions: • Basu v College of Physicians and Surgeons (Sask.) (1988), (SK KB), 70 Sask R 254 (QB): two years. • Breton v Battlefords Union Hospital Board (1992), (SK KB), 6 Admin LR (2d) 11 (Sask QB): the delay was13 months. • Kane v Lac Pelletier (Rural Municipality), 2009 SKQB 348, 342 Sask R 113: delay between 13 and 16 months was fatal. • Holowachuk [2009 SKQB 74, 329 Sask R 131]: two years. • Wadena School Division No. 46 v (Saskatchewan) Municipal Employees’ Pension Commission, 2001 SKQB 348, [2001] 11 WWR138: Barclay J. held a 30 month delay was undue, stating at paragraph 25: In my view a delay of this magnitude would be detrimental to good administration and therefore in the exercise of my discretion I refuse

to entertain the application. The application is therefore dismissed. [31] The determination of what constitutes undue delay is a very fact-specific exercise entirely dependent upon thecircumstances of an individual case.

However, it is noteworthy that I have not been directed to any decisions involving a delay of eightmonths or less where the Court has determined the delay to be “undue”. [32] Having regard to the principles enunciated in the decisions cited, I determine that the delay was not undue inthese circumstances. [33] While the applicant proffered no explanation in proceeding some seven to eight months after he found out aboutthe cat declawing amendment made at the AGM, the first element of the first stage of the Henry test does not involve assessing thereasonableness relating to the applicant’s circumstances or the prejudice that may result from the proposed remedy. [34] One should analyze delay in relation to this first element using the general considerations applicable to alllitigants involved in the administration of justice.

One often hears the phrase “justice delayed is justice denied”, which relates to thedifficulty in maintaining evidentiary integrity and the potential prejudice that results from maintaining the status quo once longer periodsof time elapse. However, in matters without prescribed statutory right of appeals, there should be some recognition by the courts that theway to proceed is not always obvious, and some latitude must be given to litigants who find themselves in novel situations not havingpreviously engaged a lawyer.

Therefore, in analyzing the first element of the Henry test, I do not find that the measured amount of timeinvolved in the delay to be overly lengthy.

It should also be noted that the six-month limit prior to leave being sought prior to the sectionbeing struck down as ultra vires was only slightly exceeded in this situation. [35] In terms of the reasonableness aspect of the delay (the second element of the first stage of the Henry test), Inote that the applicant, as a veterinarian initially having no lawyer, would not be immediately aware of the proper procedure to contestthis matter as there are no obvious avenues of appeal.

In addition, the applicant would require the time necessary to consult legal counsel,perform a cost benefit analysis and gather evidence before undertaking a judicial review application.

While these steps do not explain allthe delay, I find that they would provide a reasonable explanation and would satisfy me that, along with my comments on the firstelement, that there was no undue delay under the first stage of the Henry test. [36] However, if I am wrong in characterizing the delay as not undue, I would find that under the second stage of theHenry test, there was no substantial hardship or substantial prejudice to the right of any person nor would it be detrimental to goodadministration.

Obviously, cats do not qualify as a “person” under the Act and they are not able to offer an opinion (as far as we know)on this matter. However, given the declawing of cats was legal for years prior to the amendment and, if they so choose, a veterinariancould now refuse to complete this procedure, I do not see any substantial prejudice or hardship resulting should the bylaw need to bereconsidered. [37] If the applicant had maintained his position that the entire AGM be quashed, I would have found that Dr.

Haas’sapplication would be detrimental to good administration and a substantial hardship given the statement made by Dr. Parks in his affidavitrelating the wide-ranging effects that would result to the business of the SVMA. However, during argument, he amended his position sothat he now asks that only the cat declawing bylaw be quashed out of all the motions made at the AGM. [38] Therefore, based on the above comments, I find that there was no undue delay that was occasioned by theapplicant having considered Rule 3-56(3) of The Queen’s Bench Rules.

Adequate Alternative Remedy [39] The next step in the judicial review process before addressing the merits of the application is determiningwhether there is an adequate alternative remedy available to the applicant to address his complaint. The concept of prematurity is alsorelated to this issue. [40] The guiding principles related to this topic come from the Supreme Court in the Strickland decision as follows: [40] One of the discretionary grounds for refusing to undertake judicial review is that there is an adequate alternative.

The leadingcase is Harelkin [ (SCC), [1979] 2 SCR 561], in which a student alleged that a university committee made a decision thatviolated his procedural rights. There was a right of appeal to the university’s senate, but instead of pursuing it, the student applied forjudicial review.

This Court held that the judge at first instance had erred in entertaining the judicial review application because he failedto exercise his discretion on relevant grounds: he did not consider whether the internal appeal process was an adequate alternativeremedy that was capable of curing the denial of natural justice of which the student complained. [41] The Court has applied similar reasoning in a number of cases to dismiss applications for judicial review.

For example, in Matsqui[ (SCC), [1995] 1 SCR 3], the Court upheld the decision of the Federal Court to decline to hear Canadian Pacific’sapplication for judicial review because it could have pursued an appeal procedure established by the Matsqui Band.

In Canada (AuditorGeneral) [ (SCC), [1989] 2 SCR 49], the Court refused judicial review to the Auditor General to challenge a denial ofaccess to information because a political remedy – reporting to the House of Commons any refusals to comply with requests forinformation – was an adequate alternative remedy. [42] The cases identify a number of considerations relevant to deciding whether an alternative remedy or forum is adequate so as tojustify a discretionary refusal to hear a judicial review application.

These considerations include the convenience of the alternativeremedy; the nature of the error alleged; the nature of the other forum which could deal with the issue, including its remedial capacity; theexistence of adequate and effective recourse in the forum in which litigation is already taking place; expeditiousness; the relativeexpertise of the alternative decision-maker; economical use of judicial resources; and cost: Matsqui, at para. 37; C.B. Powell Limited v.Canada (Border Services Agency), 2010 FCA 61, [2011] 2 F.C.R. 332, at para. 31; Mullan [David J.

Mullan “The Discretionary Natureof Judicial Review”, in Robert J. Sharpe and Kent Roach, eds., Taking Remedies Seriously: 2009 (Montréal: Canadian Institute for theAdministration of Justice, 2010) at 420], at pp. 43031; Brown and Evans [Donald J. M. Brown & John M. Evans, with the assistance of

Christine E. Deacon, Judicial Review of Administrative Action in Canada, loose-leaf (Dec 2014-Rel 3) (Toronto: Carswell, 2013)], attopics 3:2110 and 3:2330; Harelkin, at p. 588. In order for an alternative forum or remedy to be adequate, neither the process nor theremedy need be identical to those available on judicial review.

As Brown and Evans put it, “in each context the reviewing court appliesthe same basic test: is the alternative remedy adequate in all the circumstances to address the applicant’s grievance?”: topic 3:2100(emphasis added). [43] The categories of relevant factors are not closed, as it is for courts to identify and balance the relevant factors in the context of aparticular case: Matsqui, at paras. 36-37, citing Canada (Auditor General), at p. 96.

Assessing whether there is an adequate alternativeremedy, therefore, is not a matter of following a checklist focused on the similarities and differences between the potentially availableremedies. The inquiry is broader than that. The court should consider not only the available alternative, but also the suitability andappropriateness of judicial review in the circumstances. In short, the question is not simply whether some other remedy is adequate, butalso whether judicial review is appropriate.

Ultimately, this calls for a type of balance of convenience analysis: Khosa [2009 SCC 12,[2009] 1 SCR 339], at para. 36; TeleZone [2010 SCC 62, [2010] 3 SCR 585], at para. 56. As Dickson C.J. put it on behalf of the Court:“Inquiring into the adequacy of the alternative remedy is at one and the same time an inquiry into whether discretion to grant the judicialreview remedy should be exercised.

It is for the courts to isolate and balance the factors which are relevant ...” (Canada (AuditorGeneral), at p. 96). [44] This balancing exercise should take account of the purposes and policy considerations underpinning the legislative scheme inissue: see, e.g., Matsqui, at paras. 41-46; Harelkin, at p. 595. David Mullan captured the breadth of the inquiry well: While discretionary reasons for denial of relief are many, what most have in common is a concern for balancing the rights of affectedindividuals against the imperatives of the process under review.

In particular, the courts focus on the question of whether the applicationfor relief is appropriately respectful of the statutory framework within which that application is taken and the normal processes providedby that framework and the common law for challenging administrative action. Where the application is unnecessarily disruptive ofnormal processes ... the courts will generally deny relief. [Emphasis added; p. 447.] [45] The factors to be considered in exercising this discretion cannot be reduced to a checklist or a statement of general rules.

Allrelevant factors, considered in the context of the particular case, should be taken into account. [41] The Court in Carrier also provided the following guidance in order for a court to make a determination: [31] In this context, it is important to consider the law as it pertains to vertical appeal rights. The general rule, very widely applied, isthat prior to bringing a judicial review application a party must exhaust those internal, vertical rights. In this case, this means Mr.

Carrierwas unable to seek judicial review until he had exhausted his internal University appeals, meaning the university-level appeal. [32] Again, there are many authorities supporting this proposition. The general law in this area was summarized in Saskatoon (City) vWal-Mart Canada Corp., 2019 SKCA 3 at paras 40 to 42, [2019] 3 WWR 284: [40] The existence of an adequate alternative remedy is a discretionary ground for refusing to undertake judicial review:Strickland v Canada (Attorney General), 2015 SCC 37, [2015] 2 SCR 713 [Strickland].

In Huerto v Saskatchewan, 2008 SKCA 107, 311Sask R 288, this Court described this principle: [68] There are, of course, a variety of situations where the courts have declined to exercise their jurisdiction, or found that theirjurisdiction should not be exercised, because of the existence of parallel dispute resolution procedures. In the context of judicial review,it is well established that a court should not grant prerogative relief if the applicant has failed to pursue an adequate alternativeremedy. See: Harelkin v. University of Regina, (SCC), [1979] 2 S.C.R. 561.

As well, the courts will not act when alegislature has established a comprehensive non-judicial system of dispute resolution in a particular area. See, for example, Weber v.Ontario Hydro, (SCC), [1995] 2 S.C.R. 929. [41] It has been noted that “Canadian courts have enforced this general principle vigorously” (Toth Equity Limited v Ottawa (City),2011 ONCA 372 at para 35, 283 OAC 33 [Toth Equity]).

Relief may be refused even where the ground of review is the wrongful denialof a participatory right in breach of the duty of fairness (Harelkin v University of Regina, (SCC), 1979 2 SCR 561[Harelkin]) or is a substantial jurisdictional error (Canadian Pacific Ltd. v Matsqui Indian Band, (SCC), [1995] 1 SCR3 [Matsqui]). [42] As described by Donald J.M. Brown and John M.

Evans, in Judicial Review of Administrative Action in Canada, loose-leaf (RelNovember 5, 2018) vol 2 (Toronto: Thomson Reuters, 2017) at para 3:2100 [Judicial Review], adequate alternative remedies are,generally speaking, other administrative remedies and other judicial proceedings: An applicant’s failure to pursue a statutory remedy will usually bar relief in judicial review proceedings if the other remedy is consideredto be an adequate alternative to judicial review. And in that regard, two main categories of alternative remedy can be identified: otheradministrative remedies, and other judicial proceedings.

Furthermore, the courts have recognized various subcategories within these twobroad groups. For example, alternative administrative remedies include reconsideration by the original decision-maker, an appeal to anindependent administrative tribunal, or a petition to Cabinet. Similarly, the alternative legal remedies include a right of appeal to a court,some other form of statutory judicial remedy, or an application for judicial review to the Federal Court.

Of course, any discretion toconsider the adequacy of an alternative remedy can be removed by statute. [Emphasis added] This doctrine was applied in the post-secondary education context in Student “X” v Acadia University, 2018 NSSC 70 at para 50. [33] In the particular context of the University there is the relatively recent decision in Nadler v College of Medicine, University ofSaskatchewan, 2017 SKCA 89, cited by University counsel. In that case judicial review was brought prior to the student exhausting allappeals within the University process.

The Court of Appeal upheld the decision from this Court, which was to preserve the student’sright to bring judicial review once those internal appeals had been exhausted, but to dismiss the application for prematurity. See paras.34, 35, 38 and 42:

[34] When an applicant seeks judicial review of a tribunal’s decision instead of, or in addition to, a right of appeal pertainingspecifically to the tribunal in question, reviewing courts are generally reluctant to take up the matter until any such appeal is exhausted.In Canada (Border Services Agency) v C.B.

Powell Limited, 2010 FCA 61, 400 NR 367 [Powell], leave to appeal refused [2011] 3 SCRvi, Stratas J.A. describes the normal rule that applies in cases of this nature in these terms: [30] The normal rule is that parties can proceed to the court system only after all adequate remedial recourses in the administrativeprocess have been exhausted.

The importance of this rule in Canadian administrative law is well-demonstrated by the large number ofdecisions of the Supreme Court of Canada on point: … (Emphasis added) [35] Prematurity is the term usually used to describe the doctrine applied when an applicant seeks judicial review of an interlocutorydecision in the administrative law context before the tribunal renders its decision or before the process can otherwise be considered at anend (see McDowell v Automatic Princess Holdings, LLC, 2017 FCA 126 at para 26).

The law that applies here, where administrativeappeal remedies exist, is usually described as the doctrine of exhaustion. But, as Stratas J.A. describes in Powell, the labels areimmaterial to the analytical framework: [31] Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequatealternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutoryjudicial reviews and the objection against premature judicial reviews.

All of these express the same concept: absent exceptionalcircumstances, parties cannot proceed to the court system until the administrative process has run its course. This means that, absentexceptional circumstances, those who are dissatisfied with some matter arising in the ongoing administrative process must pursue alleffective remedies that are available within that process; only when the administrative process has finished or when the administrativeprocess affords no effective remedy can they proceed to court.

Put another way, absent exceptional circumstances, courts should notinterfere with ongoing administrative processes until after they are completed, or until the available, effective remedies are exhausted.(Emphasis added) … [38] Thus, the law the Chambers judge was required to apply is clear: Dr. Nadler would not be able to proceed with his originatingapplication unless he could persuade the Chambers judge to exercise his discretion to do so.

Courts generally dismiss applications forjudicial review, when alternative appeal processes have not been exhausted, if the alternative process allows the issues to be raised andan effective remedy to be granted. … [42] While some courts may have specific rules governing the procedure for an application to dismiss on the basis of prematurity, acourt that dismisses a premature judicial review application calls upon its inherent jurisdiction to do so.

Several Saskatchewan casesdemonstrate the exercise of the Court’s inherent jurisdiction to postpone a judicial review application until the administrative tribunal’sprocess has run its course. For example, in Saskatchewan Union of Nurses v Sherbrooke Community Centre (1996), (SK CA), 144 Sask R 15 (CA), Vancise J.A. stated the following: “In our opinion the chambers judge erred … he ought to have declinedto hear the application as being premature” (at para 2).

Other decisions of this Court have confirmed the authority of the Court ofQueen’s Bench to dismiss applications for judicial review of interlocutory tribunal decisions: Walmart Canada Corp. v United Food andCommercial Workers, Local 1400, 2010 SKCA 89, 321 DLR (4th) 397 [Walmart]; and Mosaic Potash Colonsay ULC v UnitedSteelworkers Local 7656, 2016 SKCA 78, 480 Sask R 306 [Mosaic]. [Emphasis in original] [42] Generally, the doctrines of prematurity and adequate available remedy relate to the existence of other appealprocedures available in the legislation and the desire of the courts to respect the administrative regime.

However, this is not a mandatoryexhaustive requirement as a basis for denying relief. As noted in Strickland where they referred to the decision in Canada (AuditorGeneral) v Canada (Minister of Energy, Mines and Resources), (SCC), [1989] 2 SCR 49, a political remedy would alsoqualify. From a review of these decisions, the focus is on “available effective remedies” that are to be “exhausted” before the Courtwould contemplate the extraordinary remedy of judicial review.

The form of the remedy matters less than the remedy’s potentialeffectiveness in addressing the procedural or substantive slight occasioned on the applicant. [43] In the case at bar, I note several effective available options available to the applicant to revisit the determinationof the appropriateness of the cat declawing bylaw. [44] Firstly, pursuant to s. 6(3) of the Act and

Article 9.2 of the Bylaws, he could convene a special meeting ofcouncil to determine the issue of the cat declawing bylaw. He would only need to have the support of 25 voting members of theassociation, which is less than half of the members who voted for the bylaw at the AGM. In my view, this would be a simple andcost-effective alternative which would achieve the applicant’s objectives in a timely fashion.

In fact, no matter the result of thisapplication for judicial review, he will still have that option. [45] Secondly, pursuant to ss. 6(1) and 6(2) of the Act and Articles 12.1, 12.2 and 12.4 of the Bylaws, the applicantcould simply wait until the next AGM and propose an amendment to the bylaw reversing the original change. This would take even lesseffort than the first option and presumably could have taken place prior to the determination of this matter in 2022.

The applicant wouldhave this option available to him at every AGM until the end of his membership with the SVMA, and the cost would be minimal to allinvolved. [46] Given the availability of these options, the Court finds it unusual that judicial review was pursued here. Theability to engage the democratic processes set out in the Act and the Bylaws appear to be a far more efficient procedure to follow so thatthe voice of the applicant could be heard on the issue. While Dr.

Haas may have relied on the regular mail notices (which he neveractually attests to), using a solution involving the Court process seems quite cumbersome in comparison to the other available options. [47] Having regard to the “extraordinary” nature of these types of remedies and the public interest component inexercising these discretionary powers, the Court should be reticent to engage in likely exercises of futility. I do not see the point of

forcing the SVMA to reconsider a democratic decision that passed with an overwhelming majority of votes because the applicant did not read his email. The applicant has democratic options at his disposal. Further, given the breadth of the majority, the likelihood of a different result is a very remote possibility. [ 48 ] Given the availability of these adequate alternative remedies and in considering the nature of the Court’s broad discretionary powers, I dismiss Dr.

Haas’s judicial review application. [ 49 ] However, should I be incorrect in this determination of adequate available remedies, I will go on to consider the merits of the application. Standard of Review [ 50 ] The standard of review depends on the nature of the decision to be reviewed.

In this matter, the reviewable decision was the decision by the SVMA council to email their AGM meeting notices to members rather than use regular mail as strictly required by their Bylaws . [ 51 ] The Court must now determine the appropriate standard of review for this decision. [ 52 ] In Chenjelani v Institute of Chartered Professional Accountants of Saskatchewan , 2021 SKQB 251 (reversed on other grounds) , the Court had this to say with respect to the applicable standards of review: V.

STANDARD OF REVIEW [19] Reasonableness is the presumptive standard of review for administrative decisions subject to certain exceptions which do not apply here, and the burden is on the party challenging the decision to show it is unreasonable : Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at paras 23 , 25 and 100, 441 DLR (4th) 1 [ Vavilov ], and Dunsmuir v New Brunswick , 2008 SCC 9 at para 47 , [2008] 1 SCR 190 [ Dunsmuir ] . [20] A reasonable decision is one based on an internally coherent and rational chain of analysis and justified in relation to the facts and law that constrain the decision mak er: Vavilov at paras 15 and 85 . [21] In Saskatchewan Health Authority v Kenny , 2021 SKQB 203 , McCreary J. helpfully summarized some of the governing principles flowing from Vavilov ’s analysis of the reasonableness standard, as follows at paras. 8 to 10: [8] In Vavilov , the Supreme Court considered the two types of fundamental flaws that render a decision unreasonable.

The first is a failure of rationality internal to the reasoning process. The second is when a decision is untenable in light of the relevant factual and legal constraints that bear on it. [9] Elements that inform whether the decision is reasonable include, but are not limited to, the governing statutory scheme, other relevant statutory or common law, principles of statutory

interpretation, the evidence before the decision-maker, the submissions of the parties, and the potential impact of the decision on the individual to whom it applies: Vavilov at para 106 . A reasonable decision is one that is justifiable on the facts and the law: “...

The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them ...”: Vavilov at para 126 . [10] Where reasons for a decision have been provided, as they have been in this case, a principled reasonableness review starts with a thorough and respectful consideration of the reasons: Service Employees International Union-West v Saskatchewan Health Authority , 2020 SKCA 113 at paras 35 and 83 , 454 DLR (4th) 363 . [22] Correctness is often referred to as the operative standard of review when issues of procedural fairness arise.

The task for a court on a judicial review application where breaches of procedural fairness are alleged is to determine if the proceedings were fair to the applicant in all the circumstances. This involves considering whether the applicant knew the case to be met and had a full and fair chance to respond and be heard.

See, for example: Canadian Pacific Railway Company v Canada (Attorney General) , 2018 FCA 69 at para 56 ; United Food and Commercial Workers, Local 1400 v Saskatchewan Joint Board, Retail, Wholesale and Department Store Union , 2016 SKCA 94 at para 19 , and Knapp v ICR Commercial Real Estate , 2019 SKQB 59 at paras 25-35 . [ 53 ] The Saskatchewan Court of Appeal expressly agreed with this analysis at paragraph 13 (see: Chenjelani v Institute of Chartered Professional Accountants of Saskatchewan , 2022 SKCA 66 [ Chenjelani (Appeal) ]) of their decision. [ 54 ] However, of note given some factual similarities to the case at bar, the Court of Appeal reversed the decision of the learned chambers judge for the following reasons: [24] In my opinion, however, the Chambers judge erred in his application of this standard because he failed to appreciate that there was an issue as to the procedural fairness of the Board’s decision that was predicated on whether the initial suspension was valid.

He, therefore, did not appreciate that Mr. Chenjelani’s argument was that, in suspending him and then cancelling his registration based on that suspension, the CPA SK had acted outside its own Rules and Bylaws. [25] Unfortunately, although the Chambers judge engaged in an analysis of the procedural fairness afforded to Mr. Chenjelani by the Registration Committee and the Board, he did not address the procedural deficiencies that were alleged to have occurred in the initial suspension process, which underpinned the rest of the decisions that had been made by CPA SK.

Although we could remit this matter to the Court of Queen’s Bench to correct that oversight, the circumstances of this case permit this Court to directly address the issues of procedural fairness. [ 55 ] Given that Dr. Haas is alleging procedural deficiencies in the notice given, an analysis using the correctness standard for the review of the procedural fairness of the type of notice given will be required.

[56] As noted in Chenjelani (Appeal): [42] The framework for determining the content and scope of procedural fairness owed to any given individual in an administrativecontext was settled by the Supreme Court in Baker [ (SCC), [1999] 2 SCR 817].

In that decision, L’Heureux-Dubé J.outlined a list of non-exhaustive factors relevant to determining the content of the duty of fairness, as follows: (a) “[T]he nature of the decision being made and the process followed in making it” (at para 23); (b) “[T]he nature of the statutory scheme and the ‘terms of the statute pursuant to which the body operates’” (at para 24, quoting Old St.Boniface Residents Assn.

Inc. v Winnipeg (City), (SCC), [1990] 3 SCR 1170); (c) “[T]he importance of the decision to the individual or individuals affected” (at para 25); (d) “[T]he legitimate expectations of the person challenging the decision” (at para 26); and (e) “[T]he choices of procedure made by the agency itself” (at para 27). [43] In addressing the legitimate expectations factor, L’Heureux-Dubé J. indicated that: [26] ... As applied in Canada, if a legitimate expectation is found to exist, this will affect the content of the duty of fairness owed to theindividual or individuals affected by the decision.

If the claimant has a legitimate expectation that a certain procedure will be followed,this procedure will be required by the duty of fairness: Qi v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R.(2d) 57 (F.C.T.D.); Mercier-Néron v. Canada (Minister of National Health and Welfare) (1995), 98 F.T.R. 36; Bendahmane v.

Canada(Minister of Employment and Immigration), (FCA), [1989] 3 F.C. 16 (C.A.). ... [Emphasis added by SCC] [57] The respondent submits that substituting electronic communications for hardcopy correspondence is permittedpursuant to the EIDA, and therefore, there was no error made in the first place. The significant portions of the EIDA are as follows:

Interpretation of

Part 3 In this Part: (a) “electronic” means created, recorded, transmitted or stored in digital or other intangible form by electronic, magnetic or opticalmeans or by any other similar means; … Application 5(1) If there is a conflict between this Part and the provisions of any other Act or regulation authorizing, prohibiting or regulating theuse of information or documents in an electronic format, those other provisions prevail.

(2) For the purpose of subsection (1), the use of “in writing” and “signature” and other similar words and expressions does not by itselfprohibit the use of information or documents in an electronic form.

(3) The provisions of this Part relating to the satisfaction of a requirement of any law apply whether or not the law creates an obligationor provides consequences for doing something or for not doing something. … Use not mandatory 7(1) Nothing in this Part requires a person to provide, receive or retain any information or document in an electronic form.

(2) Subject to subsection (3), a person’s consent to provide, receive or retain any information or document in an electronic form may beinferred from the person’s conduct.

(3) A public body is not presumed to consent to accept information or a document in an electronic form unless it expresses its consentby communication accessible to the public or to those likely to communicate with the public body for particular purposes. … Providing information in writing 9 A requirement pursuant to any law for a person to provide any information or document in writing to another person is satisfied ifthe person provides the information or document in an electronic form and the information or document: (

a) is accessible by the other person; and (

b) is capable of being retained by the other person so as to be usable for subsequent reference. Providing information in specific form 10(1) In this section, “electronic means” means an electronic means of communication that includes visual aspects by which a lawyer

and the person providing the document are able to adequately communicate with each other at all times during the course of theirmeeting.

(2) A requirement pursuant to any law for a person to provide any information or document to another person in a specifiednon-electronic form is satisfied if the person provides the information or document in an electronic form and the information ordocument is: (

a) provided in the same or substantially the same form; (

b) accessible by the other person; and (

c) capable of being retained by the other person so as to be usable for subsequent reference. [58] In analyzing this statute and its relationship to the Bylaws and the Act, the following decision of Regina BypassDesign Builders v Supreme Steel LP, 2021 SKCA 82, provides some guidance: [23] The proper approach to any issue of statutory

interpretation is the so-called modern principle articulated in Rizzo & Rizzo ShoesLtd., (Re), (SCC), [1998] 1 SCR 27 [Rizzo Shoes], which “recognizes that statutory

interpretation cannot be founded onthe wording of the legislation alone” (at para 21). The modern principle has been codified in s. 2-10(1) of The Legislation Act [SS 2019,c L-10.2], which reads as follows: 2-10(1) The words of

an Act and regulations authorized pursuant to

an Act are to be read in their entire context, and in their grammaticaland ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature. [24] In s. 2-10(2), The Legislation Act also requires every enactment to be interpreted in a remedial fashion and to be given a “fair,large and liberal

interpretation” that best attains the objects of the statute. [25] The language of the statutory provision in question is always the starting point, but not the end point, of an exercise ininterpretation. As noted in Hess v Thomas Estate, 2019 SKCA 26, 433 DLR (4th) 60 [Hess]: [50] The modern principle and s. 10 demand a contextual and purposive approach. However, that does not mean the court can ignorethe ordinary meaning of the words chosen by the legislature. As noted in Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed,(Markham, Ont: LexisNexis, 2014) at 29 [Sullivan]: ...

interpretation properly begins with the ordinary meaning — with reading words in their grammatical and ordinary sense — but doesnot stop there. Interpreters are obliged to consider the total context of the words to be interpreted in every case, no matter how plainthose words may seem upon initial reading. [51] The ordinary meaning prevails unless there is a reason to reject it based on contextual considerations. Such considerations — oneof which is the avoidance of absurdities — may result in the adoption of an

interpretation that differs from the ordinary meaning, butonly if that

interpretation is plausible (Sullivan at 28-29). The plausible meaning rule requires that the

interpretation is one that the wordsof the text can reasonably bear (Sullivan at 191). As LeBel J. said in Re: Sound v Motion Picture Theatre Associations of Canada, 2012SCC 38, [2012] 2 SCR 376: “Although statutes may be interpreted purposively, the

interpretation must nevertheless be consistent withthe words chosen by Parliament” (at para 33). [26] In Ballantyne [2015 SKCA 38 457 Sask R 254], Ryan-Froslie J.A., also citing Ruth Sullivan in Sullivan on the Construction ofStatutes, 6th ed, (Markham, Ont: LexisNexis, 2014) [Sullivan], wrote: [20] ... 2. Even if the ordinary meaning is plain, courts must take into account the full range of relevant contextual considerations includingpurpose, related provisions in the same and other Acts, legislative drafting conventions, presumptions of legislative intent, absurdities tobe avoided and the like. 3. ...the court may adopt an

interpretation that modifies or departs from the ordinary meaning, provided the

interpretation adopted isplausible and the reasons for adopting it are sufficient to justify the departure from ordinary meaning. [27] The modern principle emphasizes the importance of purposive analysis in statutory

interpretation. All legislation is presumed tohave a purpose which courts should strive to discover and give effect to through the interpretive process. Legislative purpose must betaken into account at every stage of the

interpretation exercise and, so far as the language of the text permits,

interpretations that areconsistent with or promote legislative purpose should be adopted, while those that defeat or undermine legislative purpose should beavoided (Sullivan at §9.3; Farm Credit Canada v Gustafson, 2021 SKCA 38 at para 58). [28] Context must also be taken into account. As Sullivan observes, at §2.19, “in hard cases the contextual factors point in differentdirections” and “[i]n such cases, reading the text harmoniously with the scheme and object of the Act and the intention of the legislaturerequires a balancing act”.

All of this means that in some instances, the plain meaning of the words used will receive greater weight in theanalysis and, in other cases, less. As Sullivan describes, at §2.37: The factors that justify outcomes in statutory

interpretation are multiple, involving inferences about meaning and intention derived fromthe text, non-textual evidence of legislative intent, specialized knowledge, "common sense" and legal norms. These factors interact incomplex ways. It is never enough to say the words made me do it. [59] The analysis with respect to the interplay between the EIDA, the Act and the Bylaws involved an examination ofthe first two factors under Baker (Baker v Canada (Minister of Citizenship and Immigration, (SCC), [1999] 2 SCR 817

[ Baker ] ). [ 60 ] Firstly, the plain language used in s. 6(4) of the Act and

Article 9.3 of the Bylaws dictate that notice “shall” be mailed to the members. Given that

Article 9.8 of the Bylaws refers to “mail, email or other electronic means” and s. 6(4) of the Act differentiates between “ordinary mail” compared to “personal service” and “registered mail” as used in s. 47 of the Act , I find that the use of the word “mail” in the Act and the Bylaws cannot mean email or other electronic forms of communication on the basis of statutory

interpretation involving a consideration of only the Act and the Bylaws .

Further, the use of the word “shall” must mean a mandatory direction given how crucially important it is for council to advise the members of the SVMA of the AGM. [ 61 ] The next step is to determine whether EIDA provides a statutory basis for the SVMA council to email notices despite the language used in the Bylaws and the Act . [ 62 ] Section 10(2) of EIDA essentially states that any “requirement” under any law that information be sent in “non- electronic form” is satisfied when that information is sent in “electronic” form if it is substantially to the same form and capable of being stored.

I find that email and/or documents accessible on a website would fit that definition. [ 63 ] While the EIDA would permit notice in the fashion hoped for by the respondent under s. 10(2) , it must not conflict with the Act and the Bylaws pursuant to s. 5(1). While some interpretive guidance can be found in parts of the legislation such as

Article 1.2.f of the Bylaws , which reads that “the words ‘in writing’ include readable electronic communications”, these references that elevate electronic communications so that they are equivalent to non-electronic communication are simply one of the many factors to consider in devising a proper

interpretation. [ 64 ] One should also take account of ss. 7(1) and 7(2) of the EIDA which indicate that, while no one is required to receive material in an electronic format, their consent may be inferred from the circumstances. Given the 126 emails received by Dr. Haas, as well as the way he signed up for registration, I infer that he consented to receive documents in this fashion. I also note that there was no statement in Dr.

Haas’s affidavit in which he indicated that he would have read the notice even had he received it through regular mail. [ 65 ] So, the question remains whether the Act and the Bylaws conflict with the EIDA . I find they do not. [ 66 ] In 2022, post or during the pandemic, depending on your point of view, we live in a time where the primary means of communication is electronic, whether it be email or text or similar format. The EIDA is a piece of legislation which attempts to strike a balance between the security and integrity of documents and the requirements or advances of technology in the information age.

While the Bylaws and the Act provide for the use of regular mail, there is nothing innately more secure or “notice” worthy about mail as opposed to email. Someone can break into your computer just as easily as they can break into your mailbox at home. In fact, the Pavlovian response when a sound announces that an email is received is perhaps more effective notice than finding some mail at the corner of a desk or kitchen.

The issue remains whether the provision for regular mail creates a conflict with the EIDA allowing for email. [ 67 ] I find that the provisions which differentiate mail from email in the Act do not create conflict as it is the effective delivery of the notice which is important. Obviously, email is a faster and better method of providing notice as it will arrive at the sender’s address almost instantaneously. There are many substitutional service applications where email notice is recognized as effective service. Whether or not you read your mail or email puts an individual in exactly the same situation.

It is clear that Dr. Haas recognized that emails were a method of communication with the SVMA given the MailChimp portion of Dr. Parks’ affidavit. There is no reason to read the statutes in a way so as to impose on the SVMA a less effective means of communication. This would go against the spirit of the EIDA , common sense and a modern purposive

interpretation. [ 68 ] Some corroboration for the logical nature of this

interpretation can be inferred by the fact that Dr. Parks averred that he received no other complaints with respect to the email notice as a result of the amendment at the September AGM. [ 69 ] Given this finding, it is not necessary to review in detail the other Baker factors or the arguments related to substantial compliance. [ 70 ] With respect to the importance of the decision to Dr. Haas relating to the third Baker factor, there was little detail in his affidavit about why he felt so strongly about this bylaw. Therefore, there was little to consider under this ground. [ 71 ] With respect to Dr.

Haas’s legitimate expectations under the fourth ground of the Baker factors, it is noteworthy that Dr. Haas simply indicated that had he received notice, he would have made submissions at the AGM. He did not say that he would have read the mail had he received the notice using that procedure. Given the number of times he accessed his emails according to Dr. Parks, this factor does not have the strength it otherwise would have should a full consideration have been necessary.

The choice of email was also logical given the pandemic and the virtual nature of the meeting. [ 72 ] The fifth factor relating to the choices of procedure have been dealt with in terms of the first two factors and the effective similarity between email and regular mail. [ 73 ] Applying the Baker factors to this factual matrix, I find that the email nature of the notices did not create an issue of procedural fairness entitling the applicant to a remedy. [ 74 ] Therefore, on the basis on the availability of an adequate effective remedy and on the merits of the application, I dismiss Dr.

Haas’s application for judicial review. Costs [ 75 ] The matter of costs was not strenuously argued by either party. During argument, the applicant did not request costs even if he was successful. The respondent asked for costs in column one or two. Having reviewed the matter, and upon reviewing

the factors outlined in 1348623 Alberta Ltd. v Choubal , 2016 SKQB 200 , 94 CPC (7th) 210 , I award costs to the respondent in column 1. “J.P. Morrall” J. J.P. Morrall