Docket: CACV 2071 Asplundh Canada Inc. Appellant - v. -, 2012 SKCA 40

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 40 Date: 20120404 Between: Docket: CACV 2071 Asplundh Canada Inc. Appellant - and - Claude Rousseau and Valerie Rousseau Respondents Between: Docket: CACV 2073 SaskTel Appellant - and - Claude Rousseau and Valerie Rousseau Respondents Coram: Lane, Ottenbreit and Caldwell JJ.A. Counsel: Colin Clackson for the Appellant, Asplundh Canada Inc. William Egan for the Appellant, SaskTel Michael Troy for the Respondents, Claude Rousseau and Valerie Rousseau

Appeal: From: 2011 SKQB 109 Heard: November 15, 2011 Disposition: Appeals Dismissed Written Reasons: April 4, 2012 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Mr. Justice Lane The Honourable Mr. Justice Caldwell Ottenbreit J.A. I. Introduction [ 1 ] This appeal is from a chambers decision dismissing applications by each of SaskTel (“SaskTel”) and Asplundh Canada Inc. (“Asplundh”) pursuant to Rule 247 of The Queen’s Bench Rules to dismiss the claim of Claude Rousseau and Valerie Rousseau (the “Rousseaus”).

SaskTel and Asplundh argued in the court below that the claim was absolutely barred by s. 5 of The Limitations Act , S.S. 2004, c. L-16.1 (the “ Limitations Act ”) based on an admission made by the Rousseaus. For the reasons which follow, the appeals are dismissed. II. Facts and Background [ 2 ] The Rousseaus own property in Coronach, Saskatchewan which is adjacent to property owned by SaskTel. Asplundh, by agreement, provided weed control services to the SaskTel property.

The Rousseaus assert Asplundh applied herbicides and soil sterilants to the SaskTel property which damaged their property and issued a statement of claim against both Asplundh and SaskTel. [ 3 ] Paragraph 7 of the Rousseaus’ statement of claim dated December 11, 2007 alleges resultant damage: The Plaintiffs began noticing brown leaves on trees, shrubs, and perennials located on their property in early June 2005.

In July 2005, the Plaintiffs contacted SaskTel about the problem, and on July 18, 2005, Asplundh assessed the property and confirmed the browning of the trees. [ 4 ] Asplundh in its statement of defence denied applying any herbicide, soil sterilant or other chemical to the SaskTel property. [ 5 ] In 2008 SaskTel and Asplundh applied for an order pursuant to Queen’s Bench Rule 188 setting down for determination the issue of whether the Rousseaus’ action was absolutely barred pursuant to s. 5 of the Limitations Act .

The chambers judge determined that there were unresolved questions of fact concerning discoverability which made a Rule 188 application inappropriate at that time. SaskTel and Asplundh were unsuccessful in this application. [ 6 ] The action moved forward and an examination for discovery of Valerie Rousseau was held on September 8, 2010. Ms. Rousseau gave responses to several questions which are germane in this appeal as follows: 158 Q: So by the end of July of 2005 you understood that the damage to your yard was being caused by chemicals that had been applied by Asplundh to the SaskTel property?

A: Yes. 159 Q: And the chemicals were applied sometime in the summer of 2004? A: Yes. . . . 165 Q: So based now on Exhibit D-1, by August 23rd of 2005 at the very latest, you understood the damage to your yard was being caused by chemicals that had been applied by Asplundh to the SaskTel property, correct?

A: By August 23rd? 166 Q: Yes. A: By that letter? 167 Q: Yes. A: Yes. [ 7 ] The letter, exhibit D-1, at the examination for discovery, is addressed by the Rousseaus to the arborist for Asplundh and starts off “RE: destruction of our yard by chemical leaching from Sask Tel’s soil/adjacent property”. At one portion of the letter, Ms. Rousseau writes: John, it is just finally “sinking in” of the damages and “death” to my yard, and the work that now has to be done, so I guess I have starting [ sic ] dealing with it. I do have several questions? Do you mind answering them for me? Thereafter Ms.

Rousseau poses 18 questions to the arborist including questions respecting the soil samples which he had taken, the nature and extent of the leaching of the chemical, whether insurance covers any damage that would occur the next year and subsequent years if the damage continued as a result of the leaching, questions about the value of the loss and also whether the Rousseaus would be compensated for having no yard while the restoration took place. III. Decision of the Chambers Judge [ 8 ] The parties raised two issues before the chambers judge: (

i) is the plaintiffs’ claim barred by s. 5 of the Limitations Act ; and (ii) are the defendants estopped by convention from relying on a limitation period with respect to this action. The decision of the chambers judge is found at para. 20 of the judgment: A review of s. 6 and the admissions made would at first blush reflect that the plaintiffs knew an injury had occurred by July-August of 2005 and that it was caused by the act of Asplundh as part of its contract with SaskTel the previous year.

What is not as obvious is when the plaintiffs knew or ought to have known that a proceeding would be an appropriate means to remedy the claim, having regard to the nature of the injury, loss or damage. Justice Chicoine came to this same conclusion when he said "...

I am of the view that it would be unfair to deprive the plaintiffs an opportunity to call evidence on the issue of when they became aware that the browning of leaves on trees, shrubs and perennials on their property constituted an injury, loss or damage that was more than merely transient or trifling in nature and that legal action would be an appropriate means to seek a remedy." I am not satisfied that the language used by the plaintiffs in their letter to Asplundh leads me to conclude that there are no unresolved questions of fact to be explored on the issue of discoverability.

This is not the clearest of cases. These issues need to be fully explored and resolved at a trial of the issue. [ 9 ] The chambers judge left the issue of estoppels by convention to be determined by the trial judge. IV. Position of the Parties [ 10 ] SaskTel and Asplundh argue the chambers judge erred: (

i) by concluding that the admissions of the Rousseaus did not establish they knew or ought to have known a proceeding would be an appropriate means to remedy their claim pursuant to s. 6(1) (

d) of the Limitations Act ; (ii) by placing an

interpretation on s. 6(1)(

d) of the Limitations Act that requires SaskTel to prove the plaintiffs knew the damage was more than merely transient or trifling in nature before the criterion in s. 6(1)(

d) would be satisfied; and (iii) by determining there were unresolved questions of fact regarding the date of discoverability which would warrant a trial. [ 11 ] The Rousseaus argue: (

i) the statements made in Ms.

Rousseau’s examination for discovery and in the letter marked D-1 are not a clear and unequivocal admission that by August 23, 2005 they knew they had sustained an injury that had been caused by SaskTel and Asplundh and proceeding against SaskTel and Asplundh would be an appropriate means to remedy their claim; (ii) it was only after they received a report from Stantec Consulting in May 2006 (which was not in evidence) that they knew the injury or loss was caused by SaskTel and Asplundh; and (iii) they did not know a proceeding would be an appropriate means to remedy their loss until settlement negotiations with SaskTel and Asplundh had failed and until receipt of the Stantec report when it was clear that the loss was more than merely transient or trifling in nature.

V. Standard of Review [ 12 ] Decisions under Rule 247 involve the exercise of discretion. The standard of appellate review respecting discretionary decisions is well known as stated by Cameron J.A. in Rimmer v. Adshead , 2002 SKCA 12 , [2002] 4 W.W.R. 119 at para. 58 : In turning to this issue, it is necessary to bear in mind that the powers in issue are discretionary and therefore fall to be exercised as the judge vested with them thinks fit, having regard for such criteria as bear upon their proper exercise. The discretion is that of the judge

of first instance, not ours. Hence, our function, at least at the outset, is one of review only: review to determine if, in light of such criteria,the judge abused his or her discretion. Did the judge err in principle, disregard a material matter of fact, or fail to act judicially? Only ifsome such failing is present are we free to override the decision of the judge and do as we think fit. Either that, or the result must be soplainly wrong as to amount to an injustice and invite intervention on that basis. (See, for example, Walker v. McKinnon Industries Ltd., (UK JCPC), [1951] 3 D.L.R. 577 (Ont.

P.C.), at 579 and Saskatchewan Power Corporation v. John Doe, (SK CA), [1988] 6 W.W.R. 634 (Sask.C.A.)). With respect to an issue of law, the standard of review is correctness (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235). VI. Analysis [13] The following statutory provisions and Rules are relevant: Limitations Act Basic limitation period 5 Unless otherwise provided in this Act, no proceedings shall be commenced with respect to a claim after two years from the day onwhich the claim is discovered.

Discovery of claim 6(1) Unless otherwise provided in this Act and subject to subsection (2), a claim is discovered on the day on which the claimant firstknew or in the circumstances ought to have known: (

a) that the injury, loss or damage had occurred; (

b) that the injury, loss or damage appeared to have been caused by or contributed to by

an act or omission that is the subject of theclaim; (

c) that the act or omission that is the subject of the claim appeared to be that of the person against whom the claim is made; and (

d) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

(2) A claimant is presumed to have known of the matters mentioned in clauses (1)(

a) to (

d) on the day on which the act or omission onwhich the claim is based took place, unless the contrary is proved. * * * The Queen’s Bench Rules Judgment on admissions 247 Any part may, at any stage of a cause or matter where admissions of fact have been made, either on the pleadings, or otherwise,apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of anyother question between the parties; and the court may, upon such application, make such order, or give such judgment as the court maythink just.

There are two preliminary matters which bear comment. The first is that the Rousseaus inappropriately filed their own appeal bookcontaining, in part, letters and material referring to the Stantec report which were neither in evidence before the chambers judge nor inevidence before this Court.

I have, as a result, not considered any argument of the Rousseaus connected to or based on the Stantec report. [14] The second initial matter is that, although the application before the chambers judge was not a Rule 188 application seeking adetermination on a question of law, SaskTel and Asplundh argue the effect of the factual admissions of the Rousseaus are such that theysupport a determination as a matter of law that the claim was discovered by the Rousseaus by August 23, 2005 and therefore is statutebarred by the operation of s. 6(1)(

d) of the Limitations Act properly interpreted. [15] The requirements for a Rule 247 application were canvassed in ACL Holdings Ltd. v. St. Joseph’s Hospital of Estevan, (SK KB), [1996] 6 W.W.R. 207 (Sask. Q.B.) by Barclay J. at para. 11: … where a plaintiff has brought a Rule 247 application, this Court will not grant an order if "there are serious questions of law to beargued" and the order would not settle the action. Indeed, this Court will only grant an order on a plaintiff's Rule 247 application in theclearest of cases.

While, the case law does not indicate the standard to apply in cases where a defendant seeks to dismiss a plaintiff'sclaim, clearly this Court must hold a defendant's Rule 247 application to the same strict standard as it does a plaintiff's application.Therefore, the Court will not dismiss a plaintiff's claim unless the admissions are clear and unequivocal. … [16] In Legare v. Glass & Large (1904), 7 Terr. L.R. 221 (S.C.), Wetmore J. interpreted Rule 229 of The Judicature Ordinance, C.O.

1898, c. 21, a forerunner to Rule 247, and noted that the power of the court to make an order pursuant to the Rule is entirelydiscretionary at p. 224: ... The authorities all support the view that it is discretionary with the Judge to exercise his powers under Rule 229, both as to hisexercising the powers and to his manner of exercising them. [17] Justice Batten (as she then was) in Plainsman Developments Ltd. v.

Builders Contract Management Ltd. and Sabrice Ltd. (1982), (SK KB), 20 Sask.R. 298 (Q.B.) reviewed and reiterated the parameters of the exercise of this discretion outlined inthe earlier cases at paras. 2 and 4: A court under the provisions of this rule will not allow final judgment to be signed unless the admissions are clear and unequivocal;nor will judgment be allowed to be signed where there is any serious question of law to be argued; Canadian Bank of Commerce v.Harvey (1913-14), 7 S.L.R. 295. . . .

To succeed on this application, the applicant must show that there is a clear admission on the face of which it is impossible for thedefendants to succeed. ... [18] In my view, the operation of Rule 247 is such that the right to trial on a viva voce basis should not be taken away unless theadmission relied on is so clear and unequivocal that it would be impossible for the opposing party to succeed. [19] This application, although brought under Rule 247, amounts to an application for a

summary dismissal of the claim based on alimitation period, Thus, the burden on SaskTel and Asplundh to satisfy the court that this is a proper case for such a dismissal is high. [20] SaskTel and Asplundh argue the precise basis upon which the chambers judge dismissed the application is not immediately clear. This is not the case. The chambers judge gives two reasons for her determination: (

i) it was not obvious when the plaintiffs knew orought to have known a proceeding would be an appropriate means to remedy the claim having regard to the nature of the injury, loss ordamage, and (ii) she was not satisfied given the Rousseaus’ language used in the letter of August 23, 2005 that there were no unresolvedquestions of fact regarding discoverability.

As a result, she determined this was not the clearest of cases for dismissing the claim. [21] I do not take the chambers judge’s reference to Chicoine J.’s reasons for dismissing the prior Rule 188 application as more than anobservation that he came to the same conclusion as she did, i.e. the application must be dismissed. Moreover I do not take that referenceas an adoption of Chicoine J.’s “transient or trifling in nature” comments with respect to s. 6 of the Limitations Act. [22] Even if the statements of the chambers judge may be viewed as having imported into the

interpretation of s. 6(1)(

d) of theLimitations Act an irrelevant or questionable consideration, such as the transient or trifling nature of the loss, her decision not to dismissthe claim can be supported on her second reason which I do not see as being dependent on and tied to the first reason. [23] Issues of discoverability have a heavy factual component. It was within the discretionary purview of the chambers judge todetermine if the words used by the Rousseaus, as amplified on discovery, reached the threshold, i.e. the clearest of cases, that no furtherfacts were necessary to determine if the Rousseaus had discovered the claim within the meaning of s. 6(1)(

d) by August 23, 2005. Implicit in this is a finding for the purposes of the Rule 247 application, that the Rousseaus’ words, both verbal and written, were not anunequivocal admission which would justify dismissal of the claim at a preliminary stage. This is not to say that a trial judge in thismatter is prevented from finding that the Rousseaus’ claim is barred after reviewing all the evidence in the context of the Limitations Actproperly interpreted. What is ultimately to be made of the Rousseaus’ admissions along with any other germane evidence on thelimitation issue is left for trial. [24] The Limitations Act is relatively new and there has been little judicial

interpretation of s. 6 of the Act, let alone s. 6(1)(d). Given thebasis of the chambers judge’s decision, she did not find it necessary to do an analysis of s. 6(1)(

d) to determine its meaning. As such,totally apart from what to make of the Rousseaus’ purported admissions, there is a legal question about what s. 6(1)(

d) means. Thatissue should be explored with a full factual base provided by a trial. [25] For all these reasons, the decision of the chambers judge that this is not the clearest of cases for granting an order under Rule 247 isproper. Given the narrow standard of review articulated earlier, I cannot say that the chambers judge wrongly exercised her discretion.The appeals of SaskTel and Asplundh are therefore dismissed.

[ 26 ] The Rousseaus shall have their taxable costs in the usual manner but only one set to be divided equally between SaskTel and Asplundh. DATED at the City of Regina, in the Province of Saskatchewan, this 4th day of April, A.D. 2012. “Ottenbreit J.A.” Ottenbreit J.A. “Lane J.A.” Lane J.A. “Caldwell J.A.” Caldwell J.A.