Docket: CACV2325 Blaine Kenneth Collins, Mark Joseph Collins, v. Bradley Kenneth Edward Collins, 2014 SKCA 130

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 130 Date: 2014-12-05 Between: Docket: CACV2325 Blaine Kenneth Collins, Mark Joseph Collins, and Bradley Kenneth Edward Collins Appellants (Respondents/Plaintiffs) - and - Douglas Pelletier and Sheila Taylor-Pelletier Respondents (Applicants/Defendants) Coram: Klebuc, Caldwell and Herauf JJ.A. Counsel: Blaine Kenneth Collins, for himself No one appearing for Mark Joseph Collins or Bradley Kenneth Edward Collins Susan B. Barber, QC, for the respondents Appeal: From: 2012 SKQB 318 Heard: November 20, 2014

Disposition: Appeal allowed, in part; Cross-appeal dismissed Written Reasons: December 5, 2014 By: The Honourable Mr. Justice Caldwell In Concurrence: The Honourable Mr. Justice Klebuc The Honourable Mr. Justice Herauf Caldwell J.A. I.

Introduction [1] Blaine Collins and his sons Mark and Bradley [the Collinses] reside in the Resort Village of Saskatchewan Beach [the Village].As this Court noted in Collins v Resort Village of Saskatchewan Beach, 2013 SKCA 12, 409 Sask R 57 [Collins 4], the Collinses havealleged that, over the course of a number of years, they have been subjected to a campaign of harassment mounted principally by theirneighbours, Douglas Peltier and Sheila Taylor-Peltier [the Peltiers], as well as by various officials with or involved in the administrationand operation of the Village.

Although commenced in January 2011, the within action is still at the pleadings stage. [2] This appeal by the Collinses and the cross-appeal by the Peltiers result from the Peltiers’ largely successful application underformer Queen’s Bench Rule 173 to have the claims made against them struck as disclosing no reasonable cause of action and as being anabuse of process. Some procedural history is necessary to understand the issues at play in the appeal and cross-appeal. II. procedural history [3] In early 2011, Mr. Collins authored and filed a statement of claim against the Peltiers and others.

He did so without the assistanceof legal counsel. In mid-2011, on a Rule 173 application brought by the Village, a Queen’s Bench Chambers judge struck the statementof claim against all defendants in its entirety as disclosing no reasonable cause of action, notwithstanding that the Peltiers were not partyto the application (see: Resort Village of Saskatchewan Beach v Collins, 2011 SKQB 238 [Collins 1]), saying: [5] …Mr.

Collins, who drafted this claim, sets out what he alleges to be particular torts, he has not alleged the facts which form thefactual foundations for the alleged tort. … [A]s this claim is presently drafted it is impossible to discern what are the causes of actionalleged and what are the facts upon which the plaintiffs suggests [sic] the causes of action are founded. [6] The difficulty with the plaintiffs’ claim as it is presently framed is that it leaves the defendants in doubt as to really what isalleged.

It is difficult to discern what are the material facts giving rise to any cause of action in any of the areas listed in the claim. Thedefendants cannot know what case it is they must meet. [7] It may be that the plaintiffs here have a cause of action against one or more of the defendants, although that is not determinablefrom the claim as presently drafted. The plaintiffs would be well advised to get legal advice. Although she struck the statement of claim, the Chambers judge gave the Collinses 60 days to commence afresh under proper pleadings. [4] So, shortly thereafter, Mr.

Collins, who had made a few changes to his initial statement of claim, filed an “Amended Statement ofClaim” and recommenced the action against the Peltiers, the Village and others. This second statement of claim was also found lackingby a Queen’s Bench Chambers judge (see: Resort Village of Saskatchewan Beach v Collins, 2012 SKQB 40 [Collins 2]), again on aRule 173 application by the Village. The Chambers judge this second time around, who was not the same judge as had decided Collins 1,struck those portions of the statement of claim pertaining to the Village under Rule 173(

a) for three reasons: 1) the statement of claim didnot set out facts to backstop the allegations made therein against the Village; 2) the claims against the Village were more properlyaddressed through statutory means for reviewing the actions of a municipality; and 3) Mr. Collins had so muddled the causes of actionthat the defendants would never have figured out how they might be potentially liable under any individual head of liability.

But, theChambers judge went further and concluded the Collinses had inappropriately sought the assistance of the courts to redress personalgrievances and complaints against the Peltiers (who, again, were not party to the application), writing: 30 In respect of the [grievances and complaints against the Peltiers] – It is clear the plaintiffs cannot get along with their defendantneighbours.

Some of the particulars pled in the Amended Claim, such as the claims made in para. 21; “[t]his harassment and invasion ofprivacy and trespass has included incessant spying and surveillance of the plaintiff’s [sic], numerous incident’s [sic] of trespass,numerous false baseless complaints against [Mr.

Collins] to various agencies such as the RCMP ...” etc., etc., and the long history ofapparent disagreeable relations between the plaintiffs and these neighbours outlined in prolix detail in paras. 18 to 42 of the AmendedClaim all demonstrate a long history of failed interpersonal relationships as opposed to legal causes of action appropriate for litigation inthe courts.

The untimely bringing of these claims and actions against the plaintiffs’ neighbours and, for that matter, the village and itsrepresentatives bring into question the motives of the plaintiffs in bringing this action as well as the merits of the claim within themeaning discussed at paras. 18 and 19 of the Sagon decision [(1992), (SK CA), 105 Sask. R. 133 (C.A.)]. These considerations, and those identified in Collins 1, led the second Chambers judge to strike the whole of the statement of claimunder former Rule 173(

e) as an abuse of process.

[ 5 ] The Collinses appealed from the decision in Collins 2 and this Court allowed the appeal in part (see: Collins 4 ). Although stating it was not well drafted, Richards J.A. (as he then was) noted the Collinses’ statement of claim did set out a cause of action against the Village’s administrator in the tort of misfeasance in public office. Richards J.A. further concluded there had not been a proper basis for striking the claim on the ground of abuse of process.

In the result, this Court sustained the striking of all claims as against the Village and its councillors, but set aside the striking of one claim against the Village administrator and the claims against the Peltiers.

Importantly, in respect of the abuse of process finding under former Rule 173(e), Richards J.A. said: [34] I am respectfully unable to accept the concerns identified by the Chambers judge as being ones which, on the materials before the Court, properly engage the doctrine of abuse of process. [35] It is apparent from the allegations made in the statement of claim that, as the Chambers judge quite correctly observed, there is “a long history of failed personal relationships” between Mr. Collins and the Peltiers. But, of course, this is often the background against which litigation occurs.

The allegations set out in the statement of claim suggest that Mr. Collins, and perhaps his sons, do have grievances against the Peltiers. It remains to be seen whether those allegations can be proven and whether Mr. Collins has framed them as viable legal claims. However, I am unable to see his decision to seek redress in the courts as being manifestly unfair or as bringing the administration of justice into disrepute. … [37] As a result, I respectfully conclude that the Chambers judge made a reviewable error in striking the statement of claim on the basis that it was an abuse of process.

In his reasons, Richards J.A. then addressed Mr. Collins directly emphasizing “the importance and utility of seeking the assistance of legal counsel – perhaps only on a limited basis – if [Mr. Collins] hopes to move forward effectively with this action.” Richards J.A. lastly noted the procedural problems the Collinses had encountered “serve to illustrate the perils of attempting to act without counsel in a case of this kind” (para 39). [ 6 ] In the meantime, the Peltiers had themselves also successfully applied to have most of the claims against them struck out.

In Pelletier v Collins , 2012 SKQB 318 , 403 Sask R 126 [ Collins 3 ], the same Chambers judge who had presided in Collins 1 examined the 12 causes of action the Collinses had pled (or had seemingly pled) against the Peltiers, reaching conclusions on each as to whether the statement of claim disclosed a known cause of action and had been adequately pled. She found most of the “causes of action” either lacked a sufficient factual foundation or were not known or not recognised in law. As such, she struck all but two of the claims against the Peltiers as disclosing no reasonable cause of action.

Surviving were a claim in the tort of conversion as against Mr. Peltier and a claim against Ms Taylor-Peltier under The Privacy Act , RSS 1978, c P-24. However, later in her reasons the Chambers judge struck the latter of the surviving claims when she struck claims as against the Peltiers as being an abuse of process under former Rule 173(e). In doing so, she made reference to parts of Collins 2 that were later set aside under Collins 4 .

The relevant parts of the Chambers judge’s decision in this respect are: [60] I am satisfied, as was Justice Zarzeczny [in Collins 2 ], that this claim and actions against Douglas Pelletier [ sic ] and Sheila Pelletier [ sic ], with the exception of the claim in conversion against Douglas Pelletier [ sic ], is a misuse of the court process.

As indicated by Justice Zarzeczny, the “Amended Statement of Claim” leaves little doubt that the plaintiffs inappropriately seek to use the court to redress personal grievances and complaints that they have with respect to the conduct of their neighbours, Douglas Pelletier [ sic ] and Sheila Pelletier [ sic ]. … [61] It is obvious that the “Amended Statement of Claim” is an attempt to use the courts to redress the failed neighbour relationship.

The claim against Douglas Pelletier [ sic ] and Sheila Pelletier [ sic ], with the exception of the claim in conversion against Douglas Pelletier [ sic ] for the alleged wrongful taking of the plaintiffs’ surveillance camera, is struck as an abuse of process. The Chambers judge also awarded double costs as against the Collinses, which is the default costs order under former Queen’s Bench Rule 173. [ 7 ] The Collinses now appeal from the whole of the decision in Collins 3 .

The Peltiers cross-appeal, but only from the Chambers judge’s decision not to exercise her discretion to strike the conversion claim against Mr. Peltier. The Peltiers have abandoned their cross- appeal from the decision of the Chambers judge not to strike The Privacy Act claim as against Ms Taylor-Peltier as disclosing no reasonable cause of action. III. Statement of Claim [ 8 ] Given its prolixity and that it is at the focal point of the within appeal and cross-appeal, a

summary description of the statement of claim is helpful to an understanding of the issues analysed below. The following is excerpted from Collins 3 : [4] The allegations contained in the statement of claim indicate that Mr. Collins owns property at …the Resort Village of Saskatchewan Beach. Douglas and Sheila Peltier constructed a home on the adjacent lot, beginning in 2003. [5] Mr. Collins alleges that he allowed the Peltiers to plug into his electrical outlets while they were constructing their home and had no power supply of their own.

He says that relations with the Peltiers were good during this period but soured immediately when they no longer needed access to his electricity and, particularly, when he declined their offer to buy his property. [6] The statement of claim goes on to describe what is said to have been “a lengthy eight year campaign of harassment, nuisance, theft, vandalism and invasion of privacy” on the part of the Peltiers. I will not, for purposes of this decision, recite the detail of what is alleged in this regard.

[7] The statement of claim also indicates that Sheila Peltier had a close personal relationship with Ms. Hall, the Village administrator. It says Ms. Hall made a number of illegal orders -- including a tax enforcement order, two stop work orders and a demolition order -- against Mr. Collins. [8] Mr. Collins was successful in contesting the validity of these orders, either in the courts or through other appeal channels. [ 9 ] The statement of claim is 114 paragraphs and 23 pages long. It was not drafted with the clarity of a pleading generated by a competent lawyer. Mr. Collins and his sons assert, or purport to assert, the following claims: (

a) As against the Peltiers: assault and battery, conspiracy to injure, “constitutional court s. 8 violations (privacy rights)”, harassment, intentional infliction of emotional suffering, intimidation, invasion of privacy, malicious prosecution, nuisance, property conversion, trespass, and unlawful interference with enjoyment of property. (

b) As against Sharie Hall: abuse of power by public official, conspiracy to injure, “constitutional tort s. 8 violations”, harassment, intentional infliction of emotional suffering, intimidation, invasion of privacy/nuisance, negligence, and unlawful interference with enjoyment of property. (

c) As against both Roy Jensen and Norm Kindred, building inspectors said to be employed by Professional Building Inspectors Inc., and Professional Building Inspectors Inc. itself: abuse of power by public official, conspiracy to injure, “constitutional tort s. 8 violations”, harassment, intentional infliction of emotional suffering, intimidation, invasion of privacy, negligence, unlawful interference with enjoyment of property and “vicarious liability”. (

d) As against Randy Grandish, Dennis Day, Wenda Francis-Niels and Bentley Hilderman, members of the Village council until relatively recently, and the Village council itself from that era: abuse of power by public official, breach of fiduciary duty, conspiracy to injure, “constitutional tort s. 8 violations”, harassment/nuisance, intentional infliction of emotional suffering/nuisance, intimidation/nuisance, invasion of privacy/nuisance, negligence/contributory negligence, trespass, unlawful interference with enjoyment of property, “vicarious liability Municipalities Act of Saskatchewan S. 356 SS. (1)”. (

e) As against Malcolm Graham, Trevor Gates, Brian MacDonald, Lorna Friess and Dennis Day, current members of the Village council and the present Village council itself: “vicarious liability” for the acts of village employees and contractors. The claims summarised in paras. 9(b) (excepting a claim for misfeasance in public office), (

d) and (

e) above were struck under Collins 4 , but otherwise the foregoing remains an accurate description of the claims made by the Collinses. IV. Issues and Analysis [9] The appeal and cross-appeal raise four issues in respect of the decision in Collins 3 : (

a) Did the Chambers judge err by striking claims as disclosing no reasonable cause of action? (

b) Did the Chambers judge error by striking claims as being an abuse of process? (

c) Did the Chambers judge err by declining to strike the conversion claim against Mr. Peltier as disclosing no reasonable cause of action? (

d) Did the Chambers judge err in the exercise of her discretion to award double costs? I will address the issues in turn. A. Did the Chambers judge err by striking claims as disclosing no reasonable cause of action? [ 10 ] I deal with this issue summarily as it is largely without merit. [ 11 ] In her reasons, the Chambers judge carefully and critically reviewed each of the 12 causes of action or purported causes of action the Collinses had pled against the Peltiers, being: (

a) assault and battery; (

b) conspiracy to injure; (

c) a “constitutional tort” under s. 8 with respect to “privacy rights”; (

d) harassment; (

e) intentional infliction of emotional suffering; (

f) intimidation; (

g) invasion of privacy; (

h) malicious prosecution; (

i) nuisance; (

j) property conversion; (

k) trespass; and (

l) unlawful interference with the enjoyment of property. [ 12 ] In short, I found no error in her reasoning in nine of the ten instances where the Chambers judge found the statement of claim lacked a sufficient factual foundation to support a cause of action, failed to plead the requisite elements of a known cause of action, or pled a cause of action not known or not recognised in law ( i.e. , the claims itemised under para. [11](

a) to (f), (h), (i), and (

l) above). Having reviewed the materials before the Court, I find the Chambers judge’s conclusions with regard to these “causes of action” are well-supported in her reasons and by the law and, therefore, they withstand appellate scrutiny. [ 13 ] However, with respect to the claim in trespass, I find the Chambers judge erred in law when she determined (at para. 53) that the Collinses’ pleadings were flawed by reason that “they have failed to plead any damage to them and that they have suffered as a result of the trespass.” I say this because trespass, as a tort, does not require proof of damage.

This is clear from G.H.L. Fridman, The Law of Torts in Canada , 3d ed (Toronto: Carswell, 2010) at 25-26, where the learned professor wrote: Trespass in all its forms is actionable per se , i.e., without the need for the plaintiff to prove he has sustained actual damage. The mere

infringement of the plaintiff’s right not to be interfered with in respect of his body, his goods, or his land is wrongful and actionable. What this means is that a plaintiff will be entitled to nominal damages once the trespass has been established, even though, for example, no actual damage was incurred... However, a plaintiff who can prove actual damage or loss will recover damages by way of compensation; and, in appropriate circumstances, may be awarded punitive or exemplary damages.

The absence of any requirement that damage must be shown before an action will lie is an important hallmark of trespass as contrasted with other torts. The reason why this was a feature of the action for trespass may have been the original criminal nature of flavour of trespass. In modern times a more likely explanation is that the right to be free from interference with personal integrity, freedom of movement, and one’s possession of goods or land is of such fundamental importance in our society that the law regards any wrongful, unjustified interference of this kind as deserving of condemnation.

In order to protect individuals in this way it is desirable to impose liability for the act itself, without regard to its consequences. In this respect, there may be a close connection between the idea that trespass involves strict liability and the notion that trespass is actionable per se . Concurring statements are found in other legal texts, see: Lewis N. Klar, Q.C., Tort Law , 5th ed (Toronto: Carswell, 2012) at 110; C. Sappideen and P. Vines, eds, Fleming’s The Law of Torts , 10th ed (Sydney: Thomson Reuters, 2011) at 49-50; J. Murphy and C.

Witting, Street on Torts , 13th ed (Oxford: Oxford University Press, 2012) at 310 and 678; see also The Trespass to Property Act , SS 2009, c T-20.2. [ 14 ] As I have found no reversible error in the Chambers judge’s reasons in regard to the claims itemised under paragraph [11](

a) to (f), (h), (i), and (l), I would uphold her decision to strike those claims as against the Peltiers as disclosing no reasonable cause of action. However, I would set aside her decision to strike the claim in trespass. B. Did the Chambers judge error by striking claims as being an abuse of process? [ 15 ] The statement of claim before the Court in this matter is the same as was before the Court in Collins 4 . Moreover, I am not persuaded the affidavit evidence filed by the Peltiers alone provides a sufficient basis to render the reasoning of Richards J.A. in Collins 4 inapplicable here.

As such, for the reasons set forth in Collins 4 , I respectfully conclude that the Chambers judge erred when she set aside the claims against the Peltiers, other than as against Mr. Peltier in conversion, as an abuse of process. The Chambers judge’s decision in this regard is therefore set aside. C. Did the Chambers judge err by declining to strike the claim against Mr. Peltier that is based on the tort of conversion? [ 16 ] This issue arises under the cross-appeal. As I will explain, I find no merit to the cross-appeal. [ 17 ] The Collinses’ claim in conversion is rooted in the destruction of some of Mr.

Collins’s surveillance camera equipment allegedly by Mr. Peltier. In support of his application to have it struck, Mr. Peltier has pointed to uncontroverted, relevant and material evidence that indicates the successful prosecution of the claim would likely result in an award, if any, of nominal damages. Mr. Peltier’s affidavit evidence is that he has, in the criminal justice system under the Alternative Measures Program of the Ministry of Justice, admitted responsibility for the destruction of Mr. Collins’s surveillance camera, formally apologised to Mr.

Collins for destroying the camera and, importantly, compensated Mr. Collins for the loss. [ 18 ] Mr. Collins does not dispute these facts, but there is little reason he would do so. He has pled the tort of conversion, albeit ineptly, and Mr. Peltier has admitted in his affidavit to facts that would appear to satisfy the evidentiary elements of that tort. While this is merely an observation and not a finding of liability, it serves to illustrate that the statement of claim discloses a reasonable cause of action as against Mr. Peltier under the tort of conversion, as the Chambers judge found. Furthermore, while Mr.

Peltier has taken issue with the Chambers judge’s conclusion that one can infer the destruction of the camera was done “with the intention of denying title of the camera to the plaintiffs” ( i.e. , a necessary element of the tort that was not pled), that inference is sufficient because it is inescapable given the allegations in the pleadings, even though awkwardly drafted. As such, I find no reversible error in the Chambers judge’s conclusion in this regard. [ 19 ] Moreover, while the result of the Alternative Measures Program might be seen as rendering a civil claim as against Mr.

Peltier immaterial or redundant under former Queen’s Bench Rule 173, there was no evidence before the Chambers judge as to the cost of the destroyed camera or whether the amount Mr. Peltier has paid to Mr. Collins fully or adequately compensated Mr. Collins for his loss. Those issues are properly left to a trial. [ 20 ] Nevertheless, given the evidence before the Court indicates Mr. Collins might have been largely or entirely compensated for his loss, the Chambers judge sensibly cautioned Mr.

Collins that his claim might be more properly brought in Smalls Claims Court or under the old “simplified procedure” rules. [ 21 ] Nonetheless, I find the Chambers judge did not err when she concluded the statement of claim discloses a reasonable cause of action as against Mr. Peltier in the tort of conversion. As such, I must dismiss the cross-appeal. D.

Did the Chambers judge err in the exercise of her discretion to award double costs? [ 22 ] Former Queen’s Bench Rule 173 expressly provides that unless otherwise directed the offending party must pay “double the costs to which the other party would otherwise be entitled.” In other words, “double costs” is the default position where an applicant has been successful under Rule 173, but the judge may direct otherwise if the circumstances warrant. Here, in the final paragraph of her reasons, the Chambers judge wrote:

[65] As Rule 173 provides, the plaintiffs are hereby ordered to pay double the costs to which the defendant applicants are entitled. Only one set of costs is awarded and in the event agreement cannot be reached as to the nature or amount of those costs, they are referred to the Local Registrar for assessment. And, bluntly, I find nothing in the materials that would have warranted deviation from the default of “double costs”. The statement of claim is inarticulate, prolix and convoluted. The majority of the claims therein against the Peltiers have been struck as disclosing no reasonable cause of action.

In appellate terms, nothing here calls into question the double costs awarded by the Chambers judge. V. Conclusion [ 23 ] The Chambers judge did not err when she concluded the statement of claim barely makes out two reasonable causes of action as against the Peltiers. While she had struck one of these claims as an abuse of process, that finding has been set aside. I find further the Chambers judge erred when she found the Collinses had not pled a reasonable cause of action in trespass. In the result, three claims, one against Mr.

Peltier under the tort of conversion, another against Ms Taylor-Peltier under The Privacy Act and the claim against both of them in trespass, survive the Rule 173 application to strike and the cross-appeal. [ 24 ] That said, I note the courts have afforded the Collinses ample opportunity, in terms of time, direction and cautions, to amend their pleadings to conform to the law and The Court of Queen’s Bench Rules of Court . I decline to grant them any further opportunity to do so with respect to the claims now struck from the statement of claim.

As such, the net effect of this decision and the Chambers judge’s decision is that the following paragraphs shall be struck from the body of the statement of claim in this matter: 20, 22-25, 29-31 and 33- 42. [ 25 ] The Collinses shall file an amended statement of claim accordingly, and amended in accordance with para. 43 of the decision in Collins 4 . In doing so, they shall properly set forth the Peltiers’ names as: Douglas Peltier and Sheila Taylor-Peltier. [ 26 ] As the Collinses and the Peltiers have met with mixed success before this Court, I would make no order as to costs in this Court.

DATED at the City of Regina, in the Province of Saskatchewan, this 5 th day of December, A.D. 2014. “Caldwell J.A.” ________________________ Caldwell J.A. I concur “Klebuc J.A.” __________________________ Klebuc J.A. I concur “Herauf J.A.” __________________________ Herauf J.A.