GRAHAM EDGE PLAINTIFF (RESPONDENT) - v. -, 2023 SKKB 207

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 207 Date: 2023 09 28 Docket: QBG-MJ-00050-2020 Judicial Centre : Moose Jaw BETWEEN: GRAHAM EDGE PLAINTIFF (RESPONDENT) - and - MOOSE JAW DOWNTOWN AND SOCCER/FIELD HOUSE FACILITIES INC., TED SCHAEFFER, BRIAN SWANSON, SCOTT MCMANN and CRYSTAL FROESE DEFENDANTS (APPLICANTS) Counsel: M. Danish Shah for the plaintiff/respondent Michael A. MacDonald for the defendants/applicants JUDGMENT KEENE J. SEPTEMBER 28, 2023 I.

INTRODUCTION [ 1 ] The defendant, Moose Jaw Downtown and Soccer/Field House Facilities Inc. [DFHF], was a non-profit corporation established in 2010 by the City of Moose Jaw [City] pursuant to the provisions of The Non-profit Corporations Act, 1995 , SS 1995, c N-4.1 [ NPCA ] and s. 55 of The Cities Act , SS 2002, c C-11.1 . The City incorporated DFHF to manage real estate and public facilities owned by the City and to oversee the work of staff being done at such public facilities.

The DFHF was created and governed under bylaws passed by the City including bylaw provisions to allow the City to appoint City councillors to the board of directors of DFHF. [ 2 ] The defendants state that DFHF was a “controlled corporation” by virtue of the definition of a “controlled corporation” found in s. 2(1) (

h) of The Cities Act and was considered to be a “city” under s. 301.1 of The Cities Act . I agree with this and since the plaintiff, Graham Edge [Mr. Edge], concedes this, the court need not expand on this further. [ 3 ] The defendants, Brian Swanson, Scott McMann and Crystal Froese were at all materials times City councillors and as such appointed to the DFHF to be members to the DFHF board of directors. The defendant, Ted Schaeffer, was at all materials times an employee of the City and by virtue of a City bylaw an ex officio non-voting member of the DFHF board of directors.

[ 4 ] Mr. Edge was hired as general manager of the DFHF effective January 15, 2018 subject to a probation period of six months ending on July 15, 2018. Mr. Edge was dismissed before completing his probation period by the board of directors of DFHF in a letter dated May 24, 2018 that he received on May 25, 2018. His dismissal was effective immediately but he was paid to June 15, 2018 to allow him to transition to other employment. It is to be noted that Mr. Edge has a different version of why he was terminated.

The plaintiff believes he was terminated because of actions he took regarding a human resources investigation during his brief tenure with the DFHF. [ 5 ] Mr. Edge issued his statement of claim [Claim] on April 15, 2020 regarding his termination of employment from DFHF. His lawsuit appears to set forth the following causes of action:

i) negligence; ii) breach of the NPCA ; iii) wrongful dismissal from his employment with DFHF for being terminated without cause; and iv) breach of The Saskatchewan Employment Act , SS 2013, c S-15.1 . [ 6 ] The court file indicates Mr. Edge served Scott McMann on April 25, 2020, Crystal Froese on April 24, 2020, the DFHF on April 24, 2020, Brian Swanson on April 24, 2020 and Ted Schaeffer on May 20, 2020.

The defendants filed their statement of defence on October 19, 2022 putting all matters into contest and specifically pleading the provisions of The Cities Act stating the plaintiff’s action against all defendants is barred by virtue of s. 307(1) and s. 318 of The Cities Act . [ 7 ] The defendants have brought an application under Rule 7-9(2)(a), (

b) and/or (

e) of The Queen’s Bench Rules striking the plaintiff’s Claim because the Claim discloses no cause of action, is scandalous, frivolous and/or vexatious and/or is an abuse of the court’s processes. [ 8 ] Mr. Edge has also brought an application for a determination that s. 307 of The Cities Act does not apply, a determination that the defendants intentionally acted in bad faith for failing to provide crucial documents to the plaintiff including his claim under The Saskatchewan Employment Act , certain determinations arising under s. 17 (

b) of The Limitations Act , SS 2004, c L-16.1 , certain determinations arising under the NPCA and a request for further disclosure and/or questioning. II. DECISION [ 9 ] I have decided that Mr. Edge’s Claim should be struck against all defendants for the reasons set out below. Additionally the court has decided to award costs payable by Mr. Edge to the defendants but as only one set of costs to be fixed at $1,500 for all proceedings and disbursements including this application and Mr. Edge’s application. The court also dismisses Mr. Edge’s application. III. REASONS [ 10 ] The defendants argue there are three issues for determination:

a) Is the Claim an abuse of process or scandalous, frivolous or vexatious?

b) Alternatively, does the Claim disclose a reasonable cause of action?

c) Mr. Edge’s counter application. [ 11 ] In my view the key issue is whether the plaintiff’s Claim against all the defendants ought to be struck pursuant to Rule 7-9(2)(

b) and (

e) of The Queen’s Bench Rules on the basis it was commenced outside the limitation period nor served during that time contrary to s. 307(1) of The Cities Act . [ 12 ] Justice Tochor in Yashcheshen v Allergan Inc. , 2021 SKQB 33 [ Yashcheshen ] confirmed that claims commenced outside the applicable limitation period are “scandalous, frivolous or vexatious” and amount to an abuse of process ( Yashcheshen at paras 69-75 ; see also Luhning v Hnatyshyn , 2021 SKQB 17 at paras 15-25 ). [ 13 ] In regards to Mr.

Edge’s present proceedings, s. 307(1) of The Cities Act imposes a one year limitation period for actions brought against a “city” (i.e.

DFHF as discussed above) for the recovery of damages: 307(1) Notwithstanding The Limitations Act , no action is to be brought against a city for the recovery of damages after the expiration of one year from the time when the damages were sustained, and no action is to be continued unless service of the statement of claim is made within that one-year period. [ 14 ] Justice Gabrielson in Shinkaruk v Neufeld Building Movers Ltd. , 2014 SKQB 11 , 19 MPLR (5 th ) 307 [ Shinkaruk ], in determining whether the limitation period under s. 307(1) of The Cities Act applied to bar the plaintiff’s action, set out a two step test as follows: 1.

Is the plaintiff’s action against the defendant an action for the recovery of damages? and 2. When was the time that the damages claimed by the plaintiff were sustained? ( Shinkaruk at para 15 )

[15] In this case, Mr. Edge is suing the defendants for the recovery of damages as all claims consist of monetaryclaims and therefore

part 1 of the test has been satisfied. [16] The “damages [were] sustained” in a limiting provision have been interpreted to mean that the provision istriggered on the later time when the damage occurred, or, could have been known by the plaintiff (United Enterprises Ltd. v NorthBattleford (City), 2007 SKQB 335 at para 22, 301 Sask R 134). Accordingly the limitation period under s. 307(1) of The Cities Act istriggered when Mr. Edge knew, or could have known, enough facts upon which to base his law suit (Intact Insurance Company v R.J. Tulik Excavating Inc., 2018 SKQB 23 at para 24, 71 MPLR (5th) 52). [17] Mr.

Edge received notice of his termination on or about May 25, 2018. His damages arose on that day. Toremove any uncertainty about this and to answer any worriment about discoverability, all the court needs to do is to turn to Mr.

Edge’ssolicitor’s demand letter dated January 17, 2019 sent to the City alleging his employment had been wrongfully terminated andparticularizing his concerns as follows: i) … “it is my view that the City of Moose Jaw failed to protect my client”; ii) “Graham Edge came forward and took a stand against M.F.” (anonymized by the court); iii) “the City of Moose Jaw failed to abide by their own policy when my client reported a potential breach of Policy by anotheremployee.

In accordance with the Policy, my client was supposed to be protected from retaliation for such reporting”. (Affidavit of Graham Edge sworn May 19, 2023, at para. 2, Exhibit G) [18] In the same letter Mr. Edge requested a settlement in the amount of seven months wages. [19] Therefore in the court’s opinion, there is ample evidence that Mr.

Edge knew all he needed to know on or aboutMay 25, 2018 and most certainly by January 17, 2019 (see GHC Swift Current Realty Inc. v BACZ Engineering (2004 ) Ltd., 2022 SKCA38 at para 30 for Justice Kalmakoff’s discussion on this point). [20] Accordingly I am persuaded that the two part test set out in Shinkaruk has been satisfied. I will also add that theissue brought forward by Mr. Edge that somehow there were ongoing negotiations or some sort of estoppel between the parties thatcaused him not to consider issuing the Claim, is without merit.

There is no evidence that the parties were actually engaged in any form ofbona fide negotiations. In fact in my opinion, the opposite is true. Mr. Edge may have contacted the City from time to time but at no timedid the City engage in any form of negotiations or reply to his overtures. In short there is nothing that would extend the limitation period. [21] I will now briefly (because in my view the law is clear) discuss the application of s. 307(1) of The Cities Act tothis case. [22] Mr.

Edge remonstrates that the Supreme Court of Canada case of Des Champs v Conseil des écoles séparéescatholiques de langue française de Prescott-Russell, (SCC), [1999] 3 SCR 281 [Des Champ] must be applied in ourcase; resulting in this Court not following our Court of Appeal’s decision on limitations under The Cities Act found in Platana vSaskatoon (City), 2006 SKCA 10, 275 Sask R 242 [Platana]. [23] The facts in Des Champs are straight forward enough. A superintendent employed by a school board claimed hehad been constructively dismissed after being reassigned to a lesser position.

The school board applied to have his action dismissed basedon s. 7 (since rep.) of The Public Authorities Protection Act, RSO 1990, c P. 38 reproduced as follows: 7(1) No action, prosecution or other proceeding lies or shall be instituted against any person for

an act done in pursuance of executionor intended execution of any statutory or other public duty or authority, or in respect of any alleged neglect or default in the execution ofany such duty or authority, unless it is commenced within six months next after the act, neglect or default complained of, or, in case ofcontinuance of injury or damage, within six months after the ceasing thereof. [24] Mr.

Justice Binnie writing in Des Champs stated: “A court confronted with a pleading under s. 7 of the Act orsimilarly worded limitations statute may wish to proceed as follows” (para. 50, emphasis added) and then went on to provide someguidance apropos to that type of statutory wording.

In comparing s. 7 discussed in Des Champs with s. 307(1) of The Cities Act, s. 7 ismore pithy and refers to “an act done in pursuance … of any statutory or other public duty”, whereas s. 307(1) of The Cities Act is farless discerning; it is a straight forward legislated interdiction commanding “no action is to be brought”. [25] This dove tails with Justice Jackson’s ruling in Platana where she held: [86] We must, therefore, conclude as the Court would have in Galatiuk [(1986), (SK CA), 32 DLR (4th) 432 (SaskCA)], but for the presence of s. 319 and its limiting words, that the words in s. 314(1) “[n]o action is to be brought against an urbanmunicipality for the recovery of damages” are sufficiently broad to encompass a claim for damages arising out of every conceivablelegal relationship that could exist between a municipality and a claimant who is seeking damages which in some way arose out of thatlegal relationship. [Emphasis added] [26] In my opinion, Justice Jackson has made it perfectly clear: Mr.

Edge’s Claim, since it was not issued in time norserved in time is statutorily barred. [27] I wish for fullness to note the other cases relied on by Mr. Edge. Firstly Justice Robertson in Ly v Regina (City),2021 SKQB 80, 14 MPLR (6th) 69 [Ly] does refer to the Des Champ case but only to explain the rationale behind shorter limitationperiods for municipalities (Ly at para 76) and not to impeach the operation of s. 307(1) of The Cities Act. The British Columbia case of

Taylor v British Columbia , 2020 BCSC 1936 refers to Des Champs but in the context of a demand for further particulars under that province’s Rules of Court. [ 28 ] Finally, Mr.

Edge notes that in Ogloff v Yacyshyn , 2010 SKQB 144 , 353 Sask R 308, Justice Gunn referred to Des Champs in considering the effect of s. 52(1) of The Highway and Transportation Act, 1997 , SS 1997, c H-3.01 which I reproduce from her decision: [9] Section 52(1) of the Act provides as follows: 52 No action or other proceeding for damages lies or shall be instituted against the minister, the Crown in right of Saskatchewan or its agents or employees where the person is acting pursuant to the authority of this Act or the regulations, for any loss or damage suffered by reason of anything in good faith done, caused, permitted or authorized to be done, attempted to be done or omitted to be done, by that person, pursuant to or in the exercise or supposed exercise of any power conferred by this Act or the regulations or in the carrying out or supposed carrying out of any responsibility imposed by this Act or the regulations. [emphasis added in original] [ 29 ] The above s. 52(1) is similar to the limiting

section set out in Des Champs but in my view not similar to s. 307(1) of The Cities Act which as I have stated Justice Jackson found to be a complete prescription involving “every conceivable legal relationship” ( Platana at para 86 ). Accordingly with respect, I do not find Mr. Edge’s arguments set against the rationale in Platana to be of assistance. [ 30 ] Therefore I find Mr. Edge’s claim against the defendant DFHF to be statute barred and I must strike his entire claim against that defendant.

The striking order also applies to the plaintiff’s claim against Ted Schaeffer who was an employee of the City at the material time (see Platana at paras 111-121 ). I find the reasoning in this regard applies to the remaining defendants (Brian Swanson, Scott McMann and Crystal Froese) but I will add to this as follows. [ 31 ] These remaining defendants were not employed by the City. They were elected members of the City’s council and appointed to be on the board of directors of DFHF by bylaw. I find that these defendants were “agents” and/or “officers” of the City.

While the term “agent” is not defined by The Cities Act , the term “City Officer” is defined by The Cities Act under s. 316 (

a) reproduced as follows: 316 In this Division: (a) “city officer” means all employees of the city and of any committee or other body established by council; [ 32 ] I am of the view that these remaining defendants became “agents” of the City once they were appointed by the City to be on the board of directors of DFHF (see also Ian MacFee. Rogers: The Law of Canadian Municipal Corporations , loose-leaf (2007-8) 2d ed, Vol 1 (Toronto: Carswell, 2007) at 5-7 to 5-8). [ 33 ] I find that the same reasoning in Platana regarding an employee must logically apply to City councillors.

Accordingly, I find that the plaintiff’s Claim against the remaining defendants, Brian Swanson, Scott McMann and Crystal Froese should also be struck. [ 34 ] As a result of my above conclusions, I do not need to address the other issues raised by counsel. Since I have struck the entirety of Mr. Edge’s claim against all defendants, then his application must also be dismissed. IV. CONCLUSION [ 35 ] I order that the plaintiff’s entire Claim against all of the defendants is struck. Mr. Edge’s application is dismissed. In considering costs, I have decided to fix costs against Mr.

Edge at $1,500 by way of a single set of costs for all proceedings and disbursements, including this application to strike and Mr. Edge’s dismissed application. J. T.J. KEENE