Michaud v. Manitoba, 2012 MBCA 21

Citation: Michaud v. Manitoba, 2012 MBCA 21 Date: 20120308 Docket: AI 11-30-07548 IN THE COURT OF APPEAL OF MANITOBA Coram : Mr. Justice Martin H. Freedman Mr. Justice Richard J. Chartier Mr. Justice Marc M. Monnin B E T W E E N : RAYMOND GILBERT MICHAUD ) S. Green, Q.C. ) for the Appellant (Plaintiff) Appellant ) ) A. J. Ladyka ) for the Respondent - and - ) ) Appeal heard: ) September 14, 2011 THE GOVERNMENT OF MANITOBA ) ) Judgment delivered: (Defendant) Respondent ) March 8, 2012 PER CURIAM BACKGROUND 1 The appellant is a farmer, whose grain was damaged in a fire.

As a consequence, a director (the Director) under The Dangerous Goods Handling and Transportation Act , C.C.S.M., c. D12 (the Act ) issued three orders. One (the clean-up order) required the destruction of certain grain, one (the remedial order) required certain remedial work to be done and the third (the costs order) required the appellant to pay certain costs. 2 The Act makes provision for appeals from orders issued by the Director. The appellant did not appeal the clean-up order or the remedial order, but did appeal the costs order.

His appeal was considered by the Cabinet minister responsible for the administration of the Act , as provided in the Act , but it was dismissed. 3 The appellant later sued for a declaration that the three orders were made without jurisdiction, and he sought damages for the value of the destroyed grain. He subsequently amended his claim to argue that the clean-up order, if valid, was implemented in an unreasonable and unnecessary manner and his grain was disposed of when it was harmless. 4 The respondent moved to strike the claim as an abuse of process, arguing that it was a collateral attack on the three orders.

It also sought

summary judgment, alleging the claim was statute-barred. 5 The master struck out the claim as an abuse of process and also granted

summary judgment. On appeal, a Court of Queen’s Bench judge (the judge) struck out the claim as abusive, but found it unnecessary to deal with

summary judgment. She said the case was governed by the doctrine of collateral attack, which she said arose “where a party is attempting to challenge the validity of an order in separate proceedings when that party has not invoked the available statutory procedures to review or reconsider the order” (at para. 11).

She found the situation here to fall within that doctrine, since the legislation contained a regime for challenging the Director’s orders, and only the costs order had been challenged. 6 The appellant’s claim focusses on the clean-up order, and the judge specifically found that to be an impermissible collateral attack (see para. 20). The appellant argues that the judge should have recognized that there was no justification for the destruction of the grain, and that his cause of action is based on that wrongful act. He argues that the grain was harmless and should

never have been destroyed. He said that he was no longer challenging the validity of the clean-up order, but only the manner of itsimplementation, which was quite a different matter. 7 The respondent points out that the judge made a discretionary order and says that the standard for intervention by thiscourt is very high, thus no intervention is warranted. It supports the judge’s conclusion about collateral attack. 8 The respondent also says that, if we find the judge erred in her conclusion that the claim constitutes an impermissiblecollateral attack, we should then grant

summary judgment. The time-limit for suit for injury to chattels under The Limitation of ActionsAct, C.C.S.M., c. L150 (the LAA) is two years and this claim was filed eight months after the time-limit expired, says the respondent. Itis also statute-barred under The Public Officers Act, C.C.S.M., c. P230, says the respondent. DECISION 9 The appellant argues that the standard by which we should review the decision of the judge is correctness.

Therespondent says that the decision to dismiss a claim as abusive of the process is a discretionary decision, and the applicable standard iswhether the judge has misdirected herself, or her decision is so clearly wrong as to amount to an injustice. In our view, the respondenthas accurately set out the applicable standard. See, e.g., Towers Ltd. v. Quinton’s Cleaners Ltd. et al., 2009 MBCA 81 at paras. 24-28,245 Man.R. (2d) 70, and Hozaima v. Perry et al., 2010 MBCA 21 at paras. 13-17, 251 Man.R. (2d) 148.

The standard for intervention isvery high. 10 As had the master, the judge decided that the claim of the appellant constituted an impermissible collateral attack upon theclean-up order. She said (at para. 11): In Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., 2003 SCC 63 , [2003] 3 S.C.R. 77; 311 N.R. 201;179 O.A.C. 291; 2003 SCC 63, the Supreme Court of Canada noted that prohibited collateral attacks are a particular application of thebroader doctrine of abuse of process (see paras. 22 and 34).

The doctrine of collateral attack prevents a party from undermining previousorders issued by a court or administrative tribunal. Generally, it is invoked where a party is attempting to challenge the validity of anorder in separate proceedings when that party has not invoked the available statutory procedures to review or reconsider the order. 11 She continued (at paras. 18-20): The Act contains a regime for challenging the Director’s decisions.

Section 25 of the Act provides that a person aggrieved by an order ofthe director can appeal to the Minister of Conservation within 30 days. The Minister may dispose of the appeal as provided in s. 26(1)(c)of the Act and his decision is final. Section 26(1)(

c) states as follows: Where an appeal is made to the minister under s. 25, the minister on such considerations as he deems advisable, may, ... (

c) where the appeal is against an order, decision, instruction or directive, vary the order, decision, instruction or directive; ... and the decision of the minister, subject to s. 27, is final and not subject to any further appeal. While the plaintiff challenges the Director’s three orders in his statement of claim, his counsel acknowledged that the thrust of his actionrelates to the clean-up order and his position is that the defendant should not have destroyed his “marketable grain”.

His claim, therefore,is primarily based on his assertion that the Director had no jurisdiction to make the clean-up order as the grain was not dangerous andadversely affected by the fuel and that, even if the Director had jurisdiction, the order was unreasonably implemented as the grain did nothave to be destroyed. In paragraph 9(

a) of the amended statement of claim, he pleads that the order was unreasonably implementedbecause the Director caused marketable grain to be removed and destroyed when the grain was harmless and could have remained in thebins. I think this action is an impermissible collateral attack on the Director’s orders and an abuse of process. 12 She concluded that the claim sought to challenge the clean-up order and raised issues that were intended to be dealt with bythe appeal process, which the appellant did not utilize. Thus, it was an abuse of process.

She concluded similarly as to the other orders. 13 In his factum before us, the appellant argues that the issue to be determined is whether or not the officers of the respondentacted unreasonably in causing marketable grain to be disposed of when, in his submission, its existence was harmless. He makes it clearthat he is no longer arguing the validity of that order, but is arguing that its implementation was unreasonable.

14 We have no doubt that on the issue of the validity of the clean-up order, the judge’s statement and application of the law easily meets the applicable standard, and her conclusion should not be upset by this court.

But the appellant has now shifted ground somewhat and attacks not the validity of the order, but its implementation, arguing that, conceptually, those are two quite different claims. 15 The distinction argued by the appellant, between the validity of the order and its implementation, was addressed by the judge (at para. 23): Plaintiff’s counsel draws a distinction between his challenge to the Director’s jurisdiction to make the clean-up order and the manner in which the order was implemented, arguing that at the very least the plaintiff’s failure to appeal does not preclude a claim on the basis of the latter.

While the plaintiff characterizes his challenge as two-fold, this is a distinction without a difference as the nature of his attack on both grounds is essentially the same. Both attacks rest on the assertion that the removal and destruction of the grain was unnecessary as it was harmless and could have remained in the bins. The plaintiff’s position is that nothing needed to be done, that the grain was not in a dangerous condition so the clean-up order should not have been issued and the grain should not have been destroyed.

In attacking both the justification for the order and its reasonableness, the plaintiff is essentially asking the court to review the merits or necessity of the Director’s clean-up order in the first place through an action for damages. This raises factual, scientific, and issues of environmental policy which lie within the mandate and expertise of the Minister of Conservation to whom an appeal is provided. The plaintiff’s statement of claim seeks to challenge or undermine the Director’s order and raises issues that were intended to be dealt with by way of appeal.

It is therefore an impermissible collateral attack and an abuse of process. 16 This analysis was supported by the respondent, who argued that it was “logical and reasonable” and, in any case, was not so wrong as to amount to an injustice warranting appellate intervention. 17 We do not find it necessary to reach a conclusion on this argument advanced by the appellant that the judge erred in her conclusions found in para. 23. Assuming, without finding, that his claim based on unreasonable implementation should not fail as an impermissible collateral attack, it must fail in any event because it is statute-barred.

It was filed too late. 18 The claim for damages advanced by the appellant is based on the cause of action of trespass or injury to chattels. As the respondent argues, a trespass to chattels occurs where there is a direct, intentional interference with a person’s possession of a chattel without consent; see Lewis N. Klar et al. , Remedies in Tort , looseleaf (Toronto: Thomson Reuters Canada Limited, 1987) vol. 3 at 22-7. 19 The grain in question was removed by the respondent and disposed of on February 18, 2002.

That is the date when interference with the chattels occurred and is the date on which the cause of action arose. 20 Section 2(1) (

g) of the LAA provides that the limitation period for trespass or injury to chattels is two years after the cause of action arose. The original statement of claim was filed by the appellant on November 4, 2004, more than eight months after the expiry of the two-year limitation period.

The amended statement of claim, in which the claim of unreasonable implementation of the clean-up order was first made, was not filed until January 8, 2009, almost five years after the expiry of the limitation period. 21 The appellant argues that the orders were part of a continuous process, commencing with the first order in February 2002 and continuing through to the costs order issued in April 2003. He argues that the date when the time starts to run is in April 2003 and that his claim was filed in time. 22 This argument ignores the reality that his claim is based on alleged trespass or injury to chattels.

The clean-up order, upon the strength of which the respondent acted, was issued on February 15, 2002, and the grain was removed and disposed of three days later. Any suit based on unreasonable implementation of that order, which would be a claim for trespass or injury to the grain, could have been launched at that time, and should have been launched within two years of that time. 23 On any view of the matter, the appellant’s claim is statute-barred. That is the basis on which we dismiss the appeal, with costs. J.A. J.A. J.A.