Docket: CACV2510 David Clements, Tom Morton v. Georgina Morton, 2014 SKCA 128

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 128 Date: 2014-11-28 Between: Docket: CACV2510 David Clements, Tom Morton and Georgina Morton (Plaintiffs) Appellants - and - Robert Preece (Defendant) Respondent - and – Government of Saskatchewan (Third Party) Non-Party And Between: Docket: CACV2516 Robert Preece (Defendant) Appellant - and - David Clements, Tom Morton and Georgina Morton (Plaintiffs) Respondents - and – Government of Saskatchewan (Third Party) Non-Party

Coram: Klebuc, Herauf and Ryan-Froslie JJ.A. Counsel: Bruce W. Wirth for David Clements, Tom Morton and Georgina Morton Nicholas Stooshinoff for Robert Preece Charita Ohashi for the Government of Saskatchewan Appeal: From: 2014 SKQB 6 Heard: November 28, 2014 Disposition: Dismissed (orally) Written Reasons: December 3, 2014 By: The Honourable Mr. Justice Herauf In Concurrence: The Honourable Mr. Justice Klebuc The Honourable Madam Justice Ryan-Froslie

Herauf J.A. [ 1 ] There were two appeals before this Court emanating from the fiat of Maher J. of January 15, 2014. The first appeal (CACV2510) was from the dismissal by the Chambers judge of the application by Clements et al. to strike the amended statement of defence. The second appeal (CACV2516) was from the order of the Chambers judge to strike the third party claim against the Government of Saskatchewan. Both appeals were dismissed with costs from the bench with a promise of written reasons to follow.

These are those reasons. [ 2 ] Leave to appeal the refusal to strike the amended statement of defence was granted by Whitmore J.A. of this Court on June 2, 2014 (see: 2014 SKCA 64 ). The facts relating to this litigation are set out in paras. 2 – 6 of the fiat of Whitmore J.A. as follows: 2 The applicants commenced an action against the respondent in 2007 seeking an interlocutory and permanent injunction requiring the respondent to remove a roadway obstruction and restore the roadway to the condition it was prior to the obstruction being dug out and placed on the road.

At issue was the applicants' access to their lake property, for which they had to cross lands leased by the respondent from the Government of Saskatchewan. The applicants also sought an order preventing the respondent or his agents from impeding or molesting the applicants' access to a roadway on the property in question. 3 An interim injunction was granted in 2007 requiring the respondent to remove the obstruction.

An order was also granted restraining the respondent from obstructing the roadway until a trial of the issues or until further order of the Court. 4 In April 2011, the respondent was given leave to amend his statement of defence. He served his Amended Statement of Defence on March 5, 2012 and filed it with the Court on March 23, 2012. 5 In May 2011, the Court of Queen's Bench allowed an application by the respondent to strike the entire statement of claim. That order was reversed by this Court in December 2011. 6 At some point in these proceedings, the Crown commenced criminal proceedings against the respondent.

In April 2013, the Queen's Bench judge in Chambers ordered the Crown to provide disclosure of the matters in the criminal proceedings that were required in the civil proceedings and also ordered that the examination for discovery of the respondent be concluded within 120 days of the applicants receiving the disclosure. [ 3 ] The third party claim was launched by Preece against the Government of Saskatchewan on October 31, 2012, over five years after the issuance of the statement of claim in this matter. [ 4 ] The Chambers judge dismissed the application to strike the amended statement of defence on the footing that Clements, et al. had failed to satisfy the “requirements for striking of a statement of defence.” The third party claim against Saskatchewan was struck on the footing that: (

i) there was no express covenant of quiet enjoyment in the written leases between Preece and Saskatchewan; (ii) that s. 43(1) of The Provincial Lands Act , SS 1978, c P-31, authorized Preece to take any action necessary to protect his rights under the leases including an action for trespass on the leased lands by third parties; and, (iii) since Preece has the authority to take action for trespass against Clements, et al . there is no obligation upon Saskatchewan to take action against the alleged wrongful actions of a third party. [ 5 ] It is well established that orders striking pleadings are of a discretionary nature.

As such, the standard of review relating to the exercise of discretionary powers is applicable. See: Rimmer v Adshead , 2002 SKCA 12 at para 58 , [2002] 4 WWR 119 and Parkland School Division No. 63 (Board of Education) v Bouchard , 2004 SKCA 113 at para 14 , 244 DLR (4 th ) 629. [ 6 ] The Chambers judge set out the proper test for striking pleadings. See: Mann v Hawkins , 2011 SKCA 146 at paras 16-18 , 385 Sask R 59.

He was aware that pleadings should only be struck under former Rule 173(a) “in plain and obvious cases where the matter is beyond doubt.” [ 7 ] With respect to the failure to strike the amended statement of defence, the Chambers judge was alive to the appropriate test. Since there was substantial conflicting material before the Chambers judge we cannot say that he improperly exercised his discretion by refusing to strike the amended statement of defence. In view of the material before him, it is difficult to see how he could have come to any other conclusion.

As a result, we dismissed that appeal (CACV2510) with costs to the respondent including costs of the leave application. [ 8 ] With respect to the third party claim, we found that the Chambers judge did not err when he struck the claim on the basis that it did not disclose a cause of action. It is apparent that this claim, which is premised on the right to quiet enjoyment of the leased property, does not make Saskatchewan liable for the actions of third parties. As a result, this appeal (CACV2516) was also dismissed with costs to

the respondents other than Saskatchewan which did not request costs. [ 9 ] Having dismissed the appeals for the reasons outlined above, we did not have to determine issues related to the limitation period, inordinate delay and the alleged breach of the trust conditions involving Crown disclosure, including an alleged breach of the implied undertaking rule.