Docket: CACV2262 William Herle (Defendant) Appellant - v. -, 2013 SKCA 131

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 131 Date: 2013-12-09 Between: Docket: CACV2262 William Herle (Defendant) Appellant - and - Roland Lalonde and City of Regina (Defendants) Respondents - and - John Kenneth Rogers (Plaintiff) Non-Party Coram: Ottenbreit, Caldwell and Herauf JJ.A. Counsel: Karen Prisciak, Q.C., for the appellant Daniel Kwochka for the respondents Appeal: From: 2012 SKQB 149 Heard: September 9, 2013 Disposition: Appeal dismissed

Written Reasons: December 9, 2013 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Herauf OTTENBREIT J.A. I. INTRODUCTION [ 1 ] William Herle appeals from a determination on a point of law made pursuant to Rule 188 of The Queen’s Bench Rules . The point of law was whether s. 307(1) of The Cities Act , S.S. 2002, c. C-11.1, required the plaintiff, John Kenneth Rogers, to issue and serve his claim arising out of a motor vehicle accident within one year from the date he sustained the damages.

The Queen’s Bench Chambers judge, in a decision found at 2012 SKQB 149 , held that s. 307(1) of The Cities Act was the statutory provision containing the applicable limitation period and therefore the claim must have been issued and served within one year. For the reasons hereinafter set forth, Mr. Herle’s appeal is dismissed. II. FACTS AND BACKGROUND [ 2 ] On June 2, 2003, Mr. Rogers was injured as a result of a collision between the motorcycle he was operating and a transit bus owned by the City of Regina and operated by its employee, Roland Lalonde. On May 31, 2004, Mr.

Herle, a solicitor acting on behalf of Mr. Rogers, issued a claim against the City and Mr. Lalonde for economic loss pursuant to s. 103 of The Automobile Accident Insurance Act , R.S.S. 1978, c. A-35. [ 3 ] At the time, Mr. Herle believed that the applicable limitation period was two years pursuant to s. 88(1) (

a) of The Highway Traffic Act , S.S 1986, c. H-3.1, and that he had issued the claim well within the limitation period. He also believed that Mr. Rogers would have a further six months after the claim was issued to serve the claim pursuant to Rule 16 of The Queen’s Bench Rules . The claim of Mr. Rogers was served July 15, 2004, which was one year and 43 days after the motor vehicle accident. [ 4 ] Both the City and Mr. Lalonde defended the claim on the basis, inter alia , that they were not liable to Mr.

Rogers by virtue of s. 307(1) of The Cities Act which required that the claim be issued and served within one year from the date that damages were sustained. As a result, Mr. Rogers added Mr. Herle as a defendant to his claim on the basis that he negligently failed to issue and serve the statement of claim within the time frame allowed at law. Mr. Herle defended the claim on the basis that s. 307(1) of The Cities Act did not bar Mr. Rogers’ claim because The Highway Traffic Act limitation of two years applied to the claim. [ 5 ] Mr.

Herle then made a Rule 188 application to determine which legislative provision governs. III. DECISION OF THE CHAMBERS JUDGE [ 6 ] The Chambers judge determined that s. 307(1) of The Cities Act was the governing limitation provision on the basis that this case was indistinguishable from a previous case of this Court which dealt with an almost identical provision: 12 I agree with Lalonde and the City that Platana [ Platana v. City of Saskatoon , 2006 SKCA 10 , 263 D.L.R. (4th) 603] is binding upon me. The plaintiff in the case at bar is in no different position than the plaintiff in Platana .

In both cases, the claim was issued within the period of time mandated by both statutes, but not served within the time specified by The Cities Act (formally the UMA ). I do not see that a change to the limitation period in the HTA makes any difference to the result, or distinguishes this case from Platana . I find that s. 307 of The Cities Act applies to the plaintiff’s action and the claim should have been served within one year of the date damages were sustained. IV.

ISSUES [ 7 ] The sole issue to be determined is whether the Chambers judge erred by determining that the governing limitation period is as set forth in s. 307 of The Cities Act and not s. 88(1) of The Highway Traffic Act . V. ANALYSIS [ 8 ] At the date of the accident, the following statutory provisions governed:

The Highway Traffic Act 88(1) Subject to subsection (2), no action may be brought against a person for the recovery of damages occasioned by a motor vehicleafter: (

a) the expiration of two years after the date that the damages were sustained; The Cities Act 307(1) No action is to be brought against a city for the recovery of damages after the expiration of one year from the time when thedamages were sustained, and no action is to be continued unless service of the statement of claim is made within that one-year period. [9] Mr. Herle makes a number of arguments, the primary one being that the Chambers judge in interpreting the legislation set outabove erred by finding that she was bound by the majority decision in Platana v. City of Saskatoon, 2006 SKCA 10, 263 D.L.R. (4th)603, which interpreted the same provision as s. 307 of The Cities Act

section then called s. 314 of The Urban Municipality Act, 1984, S.S.1983-84, c. U-11. Mr. Herle submits that in the present case the analysis of the majority in Platana is not applicable because thelimitation periods in this case are different durations and there is a conflict between the two statutes unlike in Platana where there was aconflict between a statute and a Rule of court. Mr. Herle also argues that this conflict between The Cities Act and The Highway TrafficAct must be resolved in favour of The Highway Traffic Act which is the more specific legislation and would therefore govern the claim.

He argues further that any conflict between the two statutes can be resolved on the basis that as a matter of public policy the lessrestrictive limitation statute governs. He alternatively argues that Platana is wrongly decided. [10] Mr. Herle also argues that s. 307(1) was not intended by the Legislature to apply to all conceivable causes of action against theCity or its employees.

Moreover, he submits that the City employee’s act of driving the bus was a private act which should, as a matterof policy, receive no more protection than the act of driving by a non-city employee and therefore the claim should be governed by TheHighway Traffic Act rather than by s. 307(1). [11] Finally, Mr. Herle argues that there is a legislative gap in the limitation provisions in The Cities Act because s. 318, by making theCity liable for

an act or omission of an employee, effectively circumvents the limitation provision in s. 307 which does not includeemployees. He submits that this allows a plaintiff to hold the City liable for an employee’s actions even if the action against the City isbarred by s. 307(1). [12] The City and Mr. Lalonde argue that Platana is applicable to the circumstances in this case and governs.

The City argues that thetwo year limitation period set out in s. 88 of The Highway Traffic Act applies to all claims for damages occasioned by a motor vehicleunless the action is brought against a city in which case s. 307(1) of The Cities Act applies. The City argues that The Cities Act is themore specific enactment. The City also submits that the ambit of s. 307(1) of The Cities Act is wide and includes all causes of actionbased on all conceivable relationships. Lastly, the City and Mr.

Lalonde argue that the legislative gap issue should not be entertained onthis appeal because it was not argued in the court below. [13] Let me start with Mr. Herle’s alternative argument that Platana is wrongly decided. It is well accepted that a court will not lightlyundertake overturning one of its own prior decisions (Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489, at para. 24). The Court mustbe satisfied on compelling reasons that the precedent was wrongly decided and should be overruled (R. v. Salituro, (SCC), [1991] 3 S.C.R. 654 at p. 665). The arguments of Mr.

Herle regarding the correctness of the Platana decision are based on theanalysis of the dissenting decision coupled with some legislative history of the provision dealt with in the case. There is no indicationthat there has been any subsequent academic analysis which calls Platana into question and also no identification of any errors whichhave with the effluxion of time become obvious and would compel a revisiting of the majority analysis. There is, therefore, no basis tofind Platana is wrongly decided. [14] Mr. Herle’s primary argument is that Platana is distinguishable. I disagree.

In my view the analysis in Platana is a completeanswer to the arguments of Mr. Herle. Platana concerned a collision involving a vehicle operated by an employee of the City ofSaskatoon. In Platana, as in this case, the claim had been issued within one year but not served until after the expiry of the year set forthin The Urban Municipality Act, 1984. [15] The Court dealt with s. 314(1)(

a) of The Urban Municipality Act, 1984, which for the purposes of this appeal has identicalprovisions to s. 307(1) of The Cities Act, i.e., the claim both had to be issued and served within a one year limitation. At that times. 88(1) of The Highway Traffic Act had the same one year limitation period as The Urban Municipality Act, 1984, but was silent aboutservice of the claim.

This lacuna permitted reference to Rule 16 of The Queen’s Bench Rules which allowed service within six months ofthe commencement of any claim. [16] On the discrete question of which service rules applied, the majority of the Court determined that the action against the City wasabsolutely statute barred as was the action against the City’s employee because the claim had not been issued and served within one yearin accordance with s. 314(1)(

a) of The Urban Municipality Act, 1984. Jackson J.A. determined that the Legislature intended that s.314(1)(

a) of The Urban Municipality Act, 1984, apply to service of the claim rather than Rule 16: 101 Rule 16 has not been amended since The Urban Municipality Amendment Act, 1985 was passed. The present rule for issuing andserving a statement of claim with respect to an urban municipality dates from the enactment of The Urban Municipality Amendment Act,1985 which, with respect to the amendments considered here, came into effect on June 19, 1985. It must be taken that the legislature wasaware of Rule 16 in passing a specific law in contradiction to Rule 16. 102 Whether one states that this is an application of specific legislation over subordinate legislation of more general application or itis an

interpretation to avoid conflict, the result is the same. The provision which the legislature intended to apply is s. 314(1) and notRule 16 of The Queen’s Bench Rules. Rule 16 must be considered the default provision where the legislature has not otherwise spoken.

[17] Likewise, Lane J.A. was clear regarding the issue of whether the special service requirements imbedded in the municipal Actapplied: 73 In my view the Legislature has consistently throughout the various amendments of the municipal acts over many years, requiredthe service of the claim against a municipality to be made within the stated limitation period.

It must be taken the Legislature has policyreasons for the requirement of service within the limitation period. [18] Jackson J.A. went on to state that if it was necessary to apply the principle of generalia specialibus non derogant to the twoprovisions, then The Urban Municipality Act, 1984, was the specific legislation: 106 One has no difficulty concluding that The Highway Traffic Act is the specific legislation vis-à-vis The Limitation of Actions Act.But when one comes to consider a conflict between The Highway Traffic Act and the legislation pertaining to the various levels ofsubordinate governments, one has to be concerned that the legislature has specifically decided to create special limitation periods forthese bodies rather than relying on what would be the general legislative scheme for other legal entities in the Province.

Given thisspecial status, it is not probable that the legislature intended to defer to Rule 16 when it specifically legislated a different procedure. [19] The majority in Platana addressed not only the primacy of a statute over a rule of court but also the more basic conflict betweenmunicipal legislation which contains a specific limitation period and service process, and the more general legislation being TheHighway Traffic Act (para. 106).

It is implicit when Jackson J.A. stated at para. 102 that “the provision that the legislature intended toapply is s. 314(1) and not Rule 16” that The Highway Traffic Act also does not apply as a matter of legislative intention since Rule 16 isonly applicable if the Act is. In short, the underlying conflict or question of which Act the Legislature intended to apply to a claiminvolving the acts of a driver done while in the course of his employment by the City was addressed in Platana and resolved in favour ofthe municipal legislation.

That determination is consistent with this Court’s long held view that a special limitation period formunicipalities is imposed by legislative enactment for the protection of town corporations (Nichols v. Town of Kamsack, (SK CA), [1935] 3 W.W.R. 355 (Sask. C.A.)). [20] The argument of Mr. Herle that the longer Highway Traffic Act limitation makes Platana inapplicable cannot succeed. Thelegislation being dealt with in Platana and in this case is virtually identical save for The Highway Traffic Act allowing an extra year tocommence a claim.

Then, as now, the Court in Platana was dealing not only with which service rules governed, but also whichlimitation legislation governed the claim. [21] The observation of Jackson J.A. that whether one approaches the issue from legislative intent or on the basis that one Act isspecific and the other general the answer is the same applies to describe this case and the interplay of s. 307(1) of The Cities Act and s.88(1) of The Highway Traffic Act. Section 307(1) of The Cities Act is intended by the Legislature to be a special limitation period formunicipalities.

It is specific legislation to which s. 88 of The Highway Traffic Act, being the more general legislation, must yield nomatter how long the limitation period therein. [22] The public/private acts distinction argued by Mr. Herle typical of public authorities protection act cases, such as R. v. Berardinelliv. Ontario Housing Corp., (SCC), [1979] 1 S.C.R. 275, does not arise on the facts of this case. Section 307(1) makes nodistinction respecting the kind of acts which might give rise to the damages covered by the section.

Moreover, regarding this questionJackson J.A. specifically determined that Berardinelli had no application. [23] Mr. Herle also cites 100251 P.E.I. Inc. v. Summerside (City), 2011 PECA 4, 306 Nfld. & P.E.I.R. 278, as being a recent case whichuses a policy based statutory analysis to justify application of a longer limitation period as opposed to a shorter one. In 100251 P.E.I.Inc. the claim against the City was in respect of a contract of tender. There, the six month limitation period in The City of SummersideAct, R.S.P.E.I. 1988, c.

S-9.1, pleaded by the City was imbedded as a subsection in a provision which dealt with the City’s liability fordamages “sustained in consequence of the unsafe condition of the street or sidewalk or from a nuisance or encumbrance on thesidewalks, squares or streets of the city” (s. 46(1)). This legislation is clearly dissimilar to s. 307 of The Cities Act. 100251 P.E.I. Inc. isof no assistance in this case on that basis alone. Implicit in any policy based analysis is the recognition that the Legislature in enacting aprovision had certain policies and preferences in mind.

This Court has previously determined that the predecessors to s. 307(1) of TheCities Act were, as a matter of legislative intent and policy, passed to provide special limitations for municipalities. This legislative intentand policy is still reflected by s. 307(1). [24] As a final matter, it is common ground that the issue of the legislative gap was not argued before the Chambers judge. The usualpractice of the Court is not to extend its inquiry on appeal into an entirely new matter argued for the first time on appeal (R. v. Perka, (SCC), [1984] 2 S.C.R. 232; Farr-Mor Fertilizer Services Ltd. v.

Hawkeye Tanks & Equipment Inc., 2002 SKCA 44,291 Sask. R. 148). I see no reason in the circumstances of this case to depart from the Court’s usual practice. Accordingly, this issuewill not be addressed on this appeal. [25] Given the foregoing, I cannot say that the Chambers judge made an error in law in her determination that s. 307(1) of The CitiesAct was the limitation period which governed in this case. VI. CONCLUSION [26] The appeal of Mr. Herle is dismissed with costs to the City and Mr. Lalonde. However, there will be only one set of costs.

DATED at the City of Regina, in the Province of Saskatchewan, this 9th day of December, A.D. 2013.

“Ottenbreit J.A.” Ottenbreit J.A. I concur “Caldwell J.A.” Caldwell J.A. I concur “Herauf J.A.” Herauf J.A.