LOUIS GARDINER, MARGARET AUBICHON, MELVINA AUBICHON, EMILE JANVIER, DUANE FAVEL v. DONNA JANVIER,, 2023 SKKB 38

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 38 Date: 2023 02 16 Docket: KBG-SA-01263-2022 Judicial Centre: Saskatoon BETWEEN: LOUIS GARDINER, MARGARET AUBICHON, MELVINA AUBICHON, EMILE JANVIER, DUANE FAVEL AND DONNA JANVIER, PLAINTIFFS - and - THE ATTORNEY GENERAL OF CANADA AND HIS MAJESTY THE KING IN THE RIGHT OF THE PROVINCE OF SASKATCHEWAN, DEFENDANTS Counsel: Margaret L. Waddell for the plaintiffs Michael J. Morris, K.C. for the defendant, His Majesty the King ___________________________________________________________________________ FIAT POPESCUL C.J.K.B.

February 16, 2023 ___________________________________________________________________________ [ 1 ] The plaintiffs have commenced a putative class action. On January 17, 2023, the plaintiffs applied for the appointment of a case management judge pursuant to Rule 4-5 of The Queen’s Bench Rules. I issued a fiat on January 24, 2023, advising that the wrong procedure had been utilized and accordingly, the request was denied. Counsel for the plaintiffs was directed to have regard to s. 4(2) (

a) of The Class Actions Act, SS 2001, c C-12.01 , to Rules 3-15(2)(3)(4) and 3-90 , and to Currie v Merck Canada Inc., 2013 SKQB 349 , 430 Sask R 93 [ Currie ] . [ 2 ] The plaintiffs have now, correctly, applied by Application without Notice for an order appointing a designated judge to hear a class action certification application pursuant to Rule 3-90 . [ 3 ] It is well settled that an application to appoint a designated judge pursuant to Rule 3-90 should only be

considered after the applicant files sufficient proof of service of the claim upon each of the defendants [ Currie at para 2] . I find that there is sufficient evidence to conclude that His Majesty the King in the Right of the Province of Saskatchewan [Saskatchewan] was served with the statement of claim. However, the plaintiffs have not yet filed sufficient evidence of service of the statement of claim in respect to the defendant, the Attorney General of Canada [Canada]. [ 4 ] Rule 12-2 of The Queen’s Bench Rules provides that service of a document must be effected by personal service. It provides, in full: 12-2

(1) Service of a document must be effected by personal service of that document on the person to be served except where: (

a) an enactment or order of the Court provides otherwise; or (

b) these rules authorize service by an alternative or special mode of service.

(2) A document may be served personally notwithstanding that service in another manner is authorized.

(3) Personal service of a document is effected by leaving a copy of the document with the person to be served.

(4) It is not necessary for the person effecting personal service of a document to possess or produce the original document.

(5) A commencement document is deemed to have been personally served if the person to be served has delivered a statement of defence or taken any action that is necessary to participate in the proceeding.

(6) A document is deemed to have been personally served if an acknowledgment of service that complies with rule 12-3 is filed. [ 5 ] The affidavit which was filed in support of the application for the appointment of a designated judge to hear the certification application, provides, inter alia, that Canada was served via email at agc_pgc_saskatoon@justice.gc.ca as per the Government of Canada’s “Service on the Crown” webpage, a copy of which was exhibited to his affidavit. Further, the affidavit deposes that Saskatchewan was served by sending an email to its counsel, Michael J.

Morris, K.C. [ 6 ] Likewise, the affidavit of service provides that both defendants were served via email. Copies of the emails purporting to serve the statement of claim are appended as exhibits to the affidavit of service. No delivery or read receipts were included in the affidavit. [ 7 ] As noted above, service must be personally effected unless an enactment, the Rules or a court order provides otherwise. There is nothing in The Class Actions Act nor The Queen’s Bench Rules that expressly permits electronic service of a statement of claim.

Further, the plaintiffs have not applied for an order for substituted service of the claim pursuant to Rule 12-10. As a result, electronic service on both defendants is presumptively invalid. [ 8 ] Rule 12-2(6) provides that a document is deemed to have been personally served if an acknowledgment of service that complies with Rule 12-3 is filed. In this case, counsel for Saskatchewan completed and returned an acknowledgment of service that complies with Rule 12-3. This acknowledgment of service was filed as Exhibit “C” to the affidavit of counsel for the plaintiffs.

The statement of claim is therefore deemed to have been personally served on Saskatchewan pursuant to Rule 12-2(6). [ 9 ] No such acknowledgement of service has been filed in relation to the purported service on Canada. I appreciate that the Government of Canada’s “Service on the Crown” webpage provides that commencement documents can be served via email. However, this does not override the service requirements outlined in The Queen’s Bench Rules. [ 10 ] Further, Canada has not yet filed a statement of defence or a notice of intent to defend, nor has it taken any other action in this proceeding.

As such, Rule 12-2(5), which provides that a commencement document is deemed to have been personally served if the person to be served has delivered a statement of defence or taken any action necessary to participate in the proceeding, is inapplicable. [ 11 ] The purpose of the Rules respecting service is to ensure that parties are notified when a claim is made against them.

Given that no acknowledgement of service has been returned and that Canada has not taken any action to participate in this proceeding, I am not satisfied that Canada received notice of the document that was purportedly served via email to a generic email address. As a result, I am not prepared to validate the irregular service of the statement of claim pursuant to Rule 12-1. [ 12 ] For the above noted reasons, the Application without Notice will not be granted at this time as I am not satisfied that Canada was properly served.

However, I grant the applicants leave to file additional material in support of this application, which may include an acknowledgement of service that complies with Rule 12-3, as it relates to service on Canada. C.J.K.B. M.D. POPESCUL