Metcalfe v, 2018 SKCA 84

Court of Appeal for Saskatchewan Docket: CACV2872 Citation: Metcalfe v 101102382 Saskatchewan Ltd. , 2018 SKCA 84 Date: 2018-10-31 Between: LeElla Metcalfe and William Metcalfe Appellants (Applicants) And 101102382 Saskatchewan Ltd. and 101085299 Saskatchewan Ltd. Respondent (Respondents) Before: Jackson, Whitmore and Ryan-Froslie JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr.

Justice Whitmore The Honourable Madam Justice Ryan-Froslie On Appeal From: QBG 1212 of 2015, Saskatoon Appeal Heard: March 20, 2018 Counsel: Jay Watson for the Appellant Jessie Buydens for the Respondent Jackson J.A. I. Introduction [ 1 ] This is an appeal from a decision of the Court of Queen’s Bench refusing to amend a statement of claim, which had been originally filed under The Small Claims Act, 1997 , SS 1997, c S-50.11 (repealed).

It raises an issue as to whether the act of filing a claim under The Small Claims Act can nonetheless serve to prevent a limitation period from expiring even if the claim had been rejected. It also concerns the application of s. 20 of The Limitations Act , SS 2004, c L-16.1 as to when a claim can be amended after the expiry of a limitation period. [ 2 ] I have concluded that the appeal must be dismissed. II. Background [ 3 ] The various parties are as follows: (

a) Ms. LeElla Metcalfe, now deceased, who was the wife of Mr. William Metcalfe; (

b) Ms. Alexandria Metcalfe, now deceased, who was the daughter of Mr. William Metcalfe; (

c) Mr. William Metcalfe, who acted initially under a power of attorney for Ms. LeElla Metcalfe and subsequently as her executor, and who presently acts as the executor for Ms. Alexandria Metcalfe; (

d) Stonebridge Hotel Limited Partnership [Stonebridge Partnership]; (

e) Holiday Inn Express Partnership [Swift Current Partnership]; (f) 101102382 Saskatchewan Ltd. [382 Sask Co.], which is the sole general partner of the Stonebridge Partnership; (g) 101085299 Saskatchewan Limited [299 Sask Co.], which is the sole general partner of the Swift Current Partnership; and (

h) Mr. Chuan Ng and Mr. Roger Egger, who are principals in each of 299 Sask Co. and 382 Sask Co. [ 4 ] Ms. LeElla Metcalfe was a limited partner in each of the Stonebridge Partnership and the Swift Current Partnership. Ms. Alexandria Metcalfe was a limited partner in the Swift Current Partnership only. [ 5 ] This appeal concerns three files that were opened on behalf of Ms. LeElla Metcalfe and Ms. Alexandria Metcalfe in the Civil Division of the Provincial Court of Saskatchewan. In

summary form, those claims are as follows: (

a) Claim # 381 of 2012 [PC Claim 381], dated October 29, 2012 – Ms. LeElla Metcalfe as plaintiff and Stonebridge Partnership as defendant; (

b) Claim # 419 of 2013 [PC Claim 419], dated November 8, 2013 – Ms. LeElla Metcalfe as plaintiff and Swift Current Partnership as defendant; and

(

c) Claim # 420 of 2013 [PC Claim 420], dated November 8, 2013 – Ms. Alexandria Metcalfe as plaintiff and Swift Current Partnership as defendant. [ 6 ] PC Claim 381 is a claim commenced in the Provincial Court of Saskatchewan, Civil Division, at the judicial centre in Saskatoon by a plaintiff described as “William Metcalfe as power of attorney for LeElla Metcalfe” against a defendant described as “101102382 Saskatchewan Ltd. Operating as Stonebridge Hotel Limited Partnership”. Paragraph 3 of PC Claim 381 reads as follows: 3.

On April 28th, 2008, the plaintiff entered into a Limited Partnership Agreement with the defendant. The hotel began commercial operations July 20, 2010.

The plaintiff’s share of partnership earnings up to and including December 31, 2011, has been reduced due to the general partner breaching the agreement in several areas: • annual shareholder meetings are required none have been held • audited statements are required, review engagements have been substituted • overcharging on the management fee ($4,154) • charging additional charges for mortgage guarantee fees ($3,207) • charging the partnership $1.5 million more for the land than the land cost (far beyond market value) ($2,390) • building a second Hotel on partnership property without offering the plaintiff a chance to participate ($5,000) • not allowing the plaintiff to participate in the cold beer and wine store operations that are part of the partnership complex ($1,000) • not charging VJ Management and Associated Companies a market rate for the use of building space ($1,000) • borrowing partnership cash for other ventures interest free ($2,572) The total effect of these on the Plaintiff’s share of earnings is $19,323.00. [ 7 ] PC Claim 419 is a claim filed in the Provincial Court of Saskatchewan, Civil Division, at the judicial centre in Saskatoon by a plaintiff described as “William Metcalfe as Power of Attorney for LeElla Metcalfe” against “101085299 Saskatchewan Ltd.

Operating as Holiday Inn Express Partnership”. As seen in the appeal book, paragraph three of this claim reads as follows: 3. On September 24th, 2010, the plaintiff entered into a Limited Partnership Agreement with the defendant. The Hotel [299 Sask Co.] began commercial operations January 1st, 2010.

The plaintiff’s share of partnership earnings up to and including December 31, 2011, has been reduced due to the general partner breaching the agreement in several areas: • annual shareholder meetings are required, none have been held; • audited statements are required, review engagements have been substituted; • earnings have been understated by $5,652 (2010) and $10,316 for 2011, Total $15,968 due to the general partner receiving an excess number of shares compared to the agreement; • all shares were to be subscribed at $50,000, the general partner received theirs for much less; • limited partners received only half their entitlement; • outstanding amounts for the earnings already allocated and not paid in cash $9,076; • loans provided interest free to other interests of the general partner. (The agreement does not allow this) total $566.80; • estimated growth in value of shares as Roger had indicated the value is continu[e] growing $50,000.00.

This should be resolved by using the arbitration clause; • the total effect of these on the plaintiff’s share of earnings is $75,610.80. The plaintiff claims the sum of $75,610.80, however, the plaintiff is willing to waive the balance in excess of $20,000.00 in order to bring this matter within the monetary jurisdiction of this Court, which is currently $20,000.00. [ 8 ] PC Claim 420 is a claim brought in the same judicial centre with “William Metcalfe Executor Estate of Alexandria Metcalfe” as plaintiff and “101085299 Saskatchewan Ltd. Operating as Holiday In Express Partnership” as defendant.

Paragraph three of this claim is the same as PC Claim 419. [ 9 ] It is common ground that The Limitations Act applies to these claims and the latest possible date that these claims could have been filed was December 31, 2013. III. Legislation

[ 10 ] The issues in this case require a consideration of provisions from The Small Claims Act as follows:

Interpretation 2 In this Act: … “plaintiff” means a person who has a claim to which this Act applies and who applies pursuant to subsection 6(1) to have a summons issued … . … Application for summons 6

(1) Any p erson who has a claim to which this Act applies and who wishes to proceed pursuant to this Act may apply to a clerk to have a summons issued.

(2) A person applying to a clerk shall: (

a) provide the clerk with the details of the person’s claim; and (

b) produce for inspection by the clerk any documents in the person’s possession relating to the claim.

(3) Unless otherwise directed by the judge with respect to a specific claim, the clerk shall assist the plaintiff in preparing a concise written statement of the claim.

(4) The plaintiff or the plaintiff’s lawyer shall sign the written statement of the claim.

(5) The clerk shall provide the written statement of the claim to a judge. Issuing a summons 7

(1) If the judge is satisfied that the plaintiff may have a valid claim, the judge shall issue a summons that: (

a) is directed to the person or persons against whom the claim is made; (

b) states the time of the case management conference or time of the trial and the court location that the judge considers appropriate.

(2) For the purposes of deciding which court location is appropriate, the judge shall consider the following factors: (

a) any agreement between the parties respecting the location of the case management conference or the trial; (

b) the place where the claim arose; (

c) the place where the defendant resides; (

d) the place where the plaintiff resides.

(3) The judge may refuse to issue a summons if the judge considers that it is not in the interest of one or more of the parties to proceed with the claim pursuant to this Act.

(3.1) The judge may refuse to issue a summons if the judge considers that the claim of the plaintiff: (

a) is without reasonable grounds; (

b) discloses no triable issue; or (

c) is frivolous, vexatious or an abuse of the court’s process.

(4) Where a judge refuses to issue a summons, that refusal does not prevent a plaintiff from proceeding in the Court of Queen’s Bench or in any other manner authorized by law.

(5) The clerk shall provide the written statement of the claim to a judge. … Transfer to Court of Queen’s Bench 11

(1) With the consent of the parties or where a claim, counterclaim, defence or third party claim involves a matter to which this Act does not apply, a judge may order that the matter be transferred to the Court of Queen’s Bench.

(2) Where a matter is ordered to be transferred, the clerk, after the prescribed fees are paid, shall forward to the local registrar of the Court of Queen’s Bench: (

a) the record of any evidence in the form in which it was taken; and (

b) all documents and exhibits in the possession of the court respecting the matter.

(3) Where a matter is transferred to the Court of Queen’s Bench, that court, on application by a party, may: (

a) give directions for continuation of the matter to completion; or (

b) order that the matter be recommenced.

(4) If a matter is transferred to the Court of Queen’s Bench and a party had abandoned a portion of his or her claim, counterclaim or third party claim before it was transferred, the Court of Queen’s Bench, on application by the party, may allow the abandonment to be withdrawn.

(5) Subject to an order pursuant to subsection (3), a matter transferred to the Court of Queen’s Bench is deemed to have been commenced in the Court of Queen’s Bench on the day on which the summons was issued. [ 11 ] In addition, this appeal engages these provisions from The Limitations Act : Application of Act 3

(1) Subject to subsections (2) to (5), this Act applies to claims pursued in court proceedings that: (

a) are commenced by statement of claim; or (

b) are commenced by originating notice and are not proceedings in the nature of an application. … 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 on which the claim is discovered. … Amendment of pleadings in certain cases 20 Notwithstanding the expiry of a limitation period after the commencement of a proceeding, a judge may allow an amendment to the pleadings that asserts a new claim adds or substitutes parties if: (

a) the claim asserted by the amendment, or by or against the new party, arises out of the same transaction or occurrence as the original claim; and (

b) the judge is satisfied that no party will suffer actual prejudice as a result of the amendment. IV. Procedural History A. In the Provincial Court 1. PC Claim 381 issued and case management conference ordered [ 12 ] As indicated, PC Claim 381 was filed on October 29, 2012, in Saskatoon. On November 1, 2012, a judge of the Provincial Court issued a summons that required 382 Sask Co., as the defendant, to attend a case management conference on December 19, 2012. He also ordered the following of the plaintiff and the defendant: (

a) disclose and file all documents and to do so no later than 10 clear days prior to the case management conference; and (

b) provide a document list with relevant numbered documents attached. The judge also ordered the defendant to file a statement of defence with the Court, which was to be provided to the plaintiff, not later than 10 clear days prior to the case management conference. [ 13 ] According to the appeal book, the plaintiff filed the following document list: Number Date Name or description of document 1. April 28, 2008 Limited Partnership Agreement 2. December 31, 2010 Stonebridge Hotel Limited Partnership Financials 3. December 31, 2011 Stonebridge Hotel Limited Partnership Financials 4.

December 31, 2009 Statement of Partnership Income 5. December 31, 2010 Statement of Partnership Income 6. December 31, 2011 Statement of Partnership Income 7. March 9–May 17, 2012 Letter of concern/meeting minutes/various emails

8. June 7–October 15, 2012 Demand letter/various emails 9. January 10, 2012 Information Services Corporation searches for land and Corporate Registry Number Date Name or description of document [ 14 ] The defendant did not file a statement of defence and did not provide a list of documents. 2. PC Claims 419 and 420 not issued [ 15 ] As indicated, these two claims were not filed until November 8, 2013. They came before a different Provincial Court judge at the judicial centre in Saskatoon.

As seen in the appeal book, he refused to issue PC 419 for the following reasons (November 21, 2013, fiat): FIAT I am not prepared to issue this claim for the following reasons: 1. Mr. Metcalfe cannot sue as power of attorney for LeElla Metcalfe without filing a certified copy of the Power of Attorney signed by LeElla Metcalfe. 2. The style of cause should not reflect that Mr. Metcalfe is suing as the power of attorney. If he has a valid Power of Attorney, he can act on behalf of the plaintiff but the plaintiff in the style of cause should simply be LeElla Metcalfe. 3.

According to the agreement, which the plaintiff is alleging has been breached, there are three entities: (a) 101085299 Saskatchewan Ltd. (the “General Partner”), (

b) LeElla Metcalfe (the “Limited Partner”), and (

c) Holiday Inn Express Hotel Swift Current (the name of the Partnership). The style of cause describes the defendant as “101085299 Saskatchewan Ltd. operating as Holiday Inn Express Partnership”. However, these are two separate entities according to the documents filed by the plaintiff. I see no indication that the numbered company is operating as the Partnership. The Agreement filed indicates to the contrary. The plaintiff must decide who he wants to sue and properly describe them in the style of cause. 4.

The allegations of breach of contract set for in paragraph (3) of the claim need to be properly set out as (a), (b), (c), etc. Moreover, the plaintiff needs to properly identify what each breach is and give a concise, detailed statement of the breach so that the defendant(

s) know what they have to respond to. Some of the allegations made in existing paragraph (3) do not make any sense and do not appear to be allegations of breach but rather statements concerning the evidence. 5. Insofar as the claim alleges a breach of contract, it can be brought in the Provincial Court of Saskatchewan (Civil Division). However, it appears that portions of the claim allege a dispute between the Plaintiff Limited Partner and the Partnership. According to The Partnership Act , that type of claim must be taken in the Court of Queen’s Bench. 6.

The subject matter of the claim is an agreement regarding a hotel in Swift Current, Saskatchewan, As a result, if the plaintiff wishes to pursue a claim in Provincial Court (Civil Division) based on this agreement, then in addition to addressing the aforementioned concerns, the plaintiff must bring this action in the Swift Current Judicial Centre, not the Saskatoon Judicial Centre. [ 16 ] The judge issued a similar fiat in relation to PC Claim 420. Both fiats were sent to Mr. William Metcalfe on November 21, 2013. [ 17 ] Purportedly in compliance with the final paragraphs of the November 21, 2013, fiats, Mr.

William Metcalfe then attempted to have both claims issued in the Provincial Court at the judicial centre of Swift Current. It is not known when they were sent to Swift Current, but they were not received by that judicial centre until after December 31, 2013. (In Swift Current, the claims were identified as File#1/14 and File #2/14). [ 18 ] On February 18, 2014, a provincial court judge in Swift Current refused to issue them because of the November 21, 2013, fiats.

In addition, the plaintiff was advised as follows: It has come to [Judge Matsalla’s] attention that you have commenced another action in Saskatoon (#38[1]/2012) that is scheduled for case management conference in the near future. The plaintiff in one of the above actions is the same plaintiff as the plaintiff in the Saskatoon action. It appears that the defendant companies in the Swift Current and Saskatoon actions have some similar shareholders and directors and the issues in all of the actions appear to arise out of a similar limited partnership agreement. The parties are all from Saskatoon.

For the above reasons Judge Matsalla has ordered that the above matters be transferred to Provincial Court (Civil Division) in Saskatoon . I would suggest that you attend at that location with your statement of claim to commence your actions. (Emphasis added) [ 19 ] The fees were returned to the plaintiff on this occasion as well. 3. Case conference for PC Claims 381 (and 419 and 420) [ 20 ] Meanwhile, a different judge of the Provincial Court had held a case conference on December 19, 2012 for PC Claim 381. At that case conference, Mr.

William Metcalfe, who continued to represent himself, indicated that he had decided to pursue his action in the Court of Queen’s Bench. [ 21 ] On December 27, 2013, Mr. William Metcalfe advised the Provincial Court in Saskatoon that he intended to continue with PC

Claim 381 in the civil division of the Provincial Court of Saskatchewan at Saskatoon. In accordance with the direction of Matsalla P.C.J., the files for what had been PC Claims 419 and 420 were transferred from Swift Current to Saskatoon, but Mr. William Metcalfe did not attempt to refile again. In any event, as I indicated earlier, the limitation period would have expired, and indeed, had expired, before the files were received in Swift Current. [ 22 ] The case conference for PC Claim 381 was resumed on May 2, 2014.

In a further attempt to bring some order to the files, Agnew P.C.J., who was the case conference judge with respect to PC Claim 381, issued the written fiat found in the appeal book wherein he canvassed the above history, noting the following in relation to PC Claim 419 and PC Claim 420: In November 2013, the plaintiff (acting, as he is in #381) sought to issue two more claims (which have been assigned provisional numbers 419/13 and 420/13). These claims, although they are against a different defendant than 381/12, are in substance the same.

Furthermore, it appears highly likely that the principals behind and representing the defendants in all three (actual or proposed) actions will be the same. The location of the property in #381 is different from that in #419 and #420; however, the location appears to be irrelevant to the claims. … Although 419 and 420 have taken a circuitous, and perhaps frustrating, route, it is my view that in light of the complexity of the issues, their similarity across the three matters, and the identity of the entities apparently involved on the defendants’ side, the three matters should be case managed together .

Unfortunately, the plaintiff has not attempted to commence 419 and 420 in Saskatoon again. It is therefore impossible to join them to the existing case management date on 381. The files which have been provisionally opened with respect to those claims did not disclose why this is so; however, I am informed by the Court Clerk that she spoke with the plaintiff, and he is not yet decided whether or not to proceed with those claims. As a result, there exists the possibility the case management might proceed on 381, and that at some point thereafter it would also be required in 419 and 420.

I do not believe that to be an efficient use of the Court’s time, nor does it seem likely to resolve matters between the players in these events. (Emphasis added) [ 23 ] After reasoning in this way, he made the following order: 1. the case management date on 381 be vacated, and that no new Case management date be set until the plaintiff has commenced actions on 419 and 420, or advises the court in writing that he has abandoned his intention so to do; 2. if proposed statements of claim are filed on 419 and/or 420, they shall be placed before me to determine whether or not they should be issued.

In this respect, the plaintiff is cautioned that the comments of Judges Labach and Matsalla regarding deficiencies in his material should be taken very seriously; 3. case management on 381, and on 419 and 420 if applicable, shall be before me, subject to any further direction by the Court. In the event that 419 and/or 420 are issued with substantially their present allegations, I anticipate that a case management conference will be held on both or all claims (as the case may be) concurrently. [ 24 ] At this point, Mr. William Metcalfe retained legal counsel, Mr. Jay Watson. 4.

Application to the Provincial Court [ 25 ] On September 17, 2014, counsel for Mr. William Metcalfe applied to the Provincial Court, in the judicial centre of Saskatoon, for the following orders: (

a) an order amending PC Claim 381 to essentially incorporate the claims made in PC Claims 419 and 420; and (

b) an order under s. 11(3) of The Small Claims Act transferring the whole of the action to the Court of Queen’s Bench. The application was opposed by counsel for 299 Sask Co. and 382 Sask Co. [ 26 ] The application came before Agnew P.C.J. on August 24, 2015. He did not make the amendment, but he transferred all files to the Court of Queen’s Bench. In a detailed fiat, he canvassed the history of PC Claim 381, reviewed the nature of the claim and concluded it was not within the jurisdiction of the Provincial Court.

With that, he directed that all three files be transferred to the Court of Queen’s Bench: I -- I, therefore, find that the plaintiff’s action is not within the jurisdiction of this Court and pursuant to Section 11(1) of The Small Claims Act of 1997, I direct that this action, and again for clarity that is 381 of 2012, go to the Court of Queen’s Bench in Saskatoon. I’m also going to direct that proposed claims 419 and 420, both of 2013, also be forwarded to the Court of Queen’s Bench for information.

Just so it’s clear, Madam Clerk, that can either be a copy of those file contents, or the contents themselves with a copy kept here, whichever is simplest from the -- the Clerk’s perspective or seems -- seems best is fine. Given that those claims have never issued, it may be that there’s very little distinction between them.

That being the case, I am going to decline to deal with the question of the amendments and leave that to the Court of Queen’s Bench. One final comment, and this is simply a comment which you can take or leave as you may choose, on the issue of proposed actions 419 and 420 of 2013 and the limitation periods, I would direct counsels’ attention to a Queen’s Bench decision called Bakaluk , B-A-K-A-L- U-K, and McGregor . Citation is 2003 SKQB 386 .

As I read that case, it suggests that a limitation period stops running for a small claims action when the plaintiff has done everything he or she can do to get the claim issued. And in Queen’s Bench, of course, the claim issues by more or less a mechanical action of the Registrar -- or the Local Registrar or Deputy issuing it. Whereas in Small Claims, the claim actually has to be reviewed by a judge, which means that there can be a delay between when it is filed and when it actually gets issued, and there can be a limitation issue which arises as a result of that.

As I read that case, it says that if the plaintiff is not at fault, in essence, for the expiration of the limitation period, then the -- the limitation period, in fact, does not expire, so the delay by the Court in issuing does not affect the limitation situation. I do not offer any opinion as to the applicability of that case here, since the plaintiff was reminded in my fiat of May 2nd, 2014, that those actions had not yet been commenced, the plaintiff, however, did then bring the present application to amend on September 22nd, 2014. That is the day, according to the court file, that it was received.

So I simply highlight the issue and not comment on what the outcome of it may be, and I leave it to counsel, the Court of Queen’s Bench, or possibly law students in an exam to decide what that all means. … I will direct, in any event, that the entire contents of all three files should go to Queen’s Bench, just so that’s clear on the record , Madam Clerk. (Emphasis added) B. In the Court of Queen’s Bench 1. Acceptance of the files (September 2, 2015, fiat) [ 27 ] Counsel for the numbered companies opposed the acceptance of the three files from the Provincial Court.

On September 2, 2015, Danyliuk J. issued the following hand-written fiat: Judge Agnew ordered three small claims files transferred to this Court. Defence counsel says they should not be accepted as they are statute-barred. It is not clear if she is considering s. 11(5) of The Small Claims Act, 1997 . Pursuant to s. 11(3) of that Act I order as follows: 1. Three separate QB files shall be opened. 2. The issue of whether they should be consolidated or heard together may be dealt with by way of application. 3. Any limitation period issues can be dealt with by way of defence.

The Registrar’s staff should not be called on to decide that before documents are filed in this Court. 4. This fiat shall be placed on all three QB files. [ 28 ] The three QB files replicated the PC Claims as follows: (

a) PC Claim 381 became QB No. 1212 – Ms. LeElla Metcalfe’s claim as plaintiff against Stonebridge Partnership as defendant; (

b) PC Claim 419 became QB No. 1213 – Ms. LeElla Metcalfe’s claim as plaintiff against Swift Current Partnership as defendant; (

c) PC Claim 420 became QB No. 1214 – Ms. Alexandria Metcalfe’s claim as plaintiff against Swift Current Partnership as defendant. 2. Application to amend [ 29 ] Since 382 Sask Co. had not filed a statement of defence, counsel for Mr. William Metcalfe applied for an order pursuant to Rule 3-72(1)(

a) of The Queen’s Bench Rules granting leave to amend PC Claim 381 – QB 1212. The rule reads as follows: Amending a pleading 3-72

(1) A party may amend the party’s pleading including an amendment to add, remove, substitute or correct the name of a party, as follows: (

a) before a statement of defence is filed, any number of times without the Court’s permission … . Counsel for Mr. William Metcalfe sought a number of amendments, which substantively revised and rewrote PC Claim 381. He also sought an order amending PC Claim 381 to essentially incorporate the claims made in PC Claims 419 and 420 into PC Claim 381.

[ 30 ] Ms. Buydens, representing 382 Sask Co. in relation to PC Claim 381, conceded that the test under Rule 3-72(1)(

a) had been met, since no statement of defence had been filed, and agreed that PC Claim 381 could be rewritten. [ 31 ] As counsel for 299 Sask Co., however, she submitted that PC Claim 419 and PC Claim 420 had to be addressed separately by the Court. In her submission, since those claims had not been issued in the Provincial Court, the limitation period in relation to those claims had expired. She submitted that what Mr. William Metcalfe was trying to do was add a new plaintiff, claim and defendant, which Mr.

William Metcalfe could not do unless he could bring the new actions within s. 20 of The Limitations Act . [ 32 ] Relying on s. 20, Ms. Buydens submitted that no amendment could be made to PC Claim 381 to add a new plaintiff, with a new claim, and a new defendant. She submitted that the additional amendment would constitute an entirely new claim, which would be prejudicial to the proposed defendant. 3. Chambers decisions under appeal (January 13, 2016) [ 33 ] The Chambers judge wrote three fiats pertaining to each of the three Queen’s Bench files in question. a.

PC Claim 381 [ 34 ] The Chambers judge granted the amendments as they pertained to the existing plaintiff and defendant, saying the following (January 13, 2016, fiat): [5] The Court accepts that the claim asserted by the plaintiffs in this application arises out of the same transaction or occurrence as the original claim, and the Court does accept that neither party would suffer actual prejudice as a result of the amendments by the re- statement of the claim based on the amendments submitted. [6] In Murrell v Moose Jaw Roman Catholic Separate School Division No. 22 , 2006 SKQB 158 , 278 Sask R 247, this Court stated at paragraph 18: [18] … The defendant and third parties have been facing a claim of a similar nature from the plaintiff for some time.

They are not new to the action and they are familiar with the nature of the claims.

Furthermore, the claim pursuant to The Consumer Protection Act [SS 1996, c C-30.1] is not entirely different from the original claim … . [7] On this basis the application of the plaintiff is granted, and the plaintiffs are entitled to amend their claim without the permission of the Court under Rule 3-72(1)(a). [8] The amendment to the claim as per the draft attached hereto is hereby granted under s. 20 of The Limitations Act as it is grounded on the same occurrence as the original claim and no party will suffer actual prejudice as a result thereof. [ 35 ] The effect of the amendments is, essentially, to replace the whole of the language of PC Claim 381, with a claim that 382 Sask Co. breached multiple conditions of the partnership agreement between it and Ms.

LeElla Metcalfe as well as its fiduciary duty towards her. The allegations are as follows: (

a) annual general meetings were not held contrary to s. 16.1 (section references are to the Agreement); (

b) a chartered accountant was not hired to conduct annual audits contrary to s. 9.3(e); (

c) the Stonebridge Partnership was charged a management fee greater than 4% contrary to s. 13.1, which incurred a loss of $4,154 to Ms. LeElla Metcalfe; (

d) the Stonebridge Partnership was charged a mortgage guarantee fee of $95,808 and $160,752 in 2008 and 2010 respectively, which is something that was not contemplated under the Agreement and this incurred a loss of $3,207 to Ms. LeElla Metcalfe; (

e) Stonebridge Partnership’s funds were not invested in the manner set out in s. 9.3(

c) contrary to that section; (f) 382 Sask Co. purchased land on which the hotel was built approximately $1,500,000 above market value, which incurred a loss of $2,930 to Ms. LeElla Metcalfe; (g) 382 Sask Co. constructed a second hotel on the Stonebridge Partnership’s property without offering other limited partners, such as Ms. LeElla Metcalfe, to participate; (h) 382 Sask Co. constructed a liquor store on the Stonebridge Partnership’s property without allowing Ms. LeElla Metcalfe to participate; and (i) 382 Sask Co. leased the Stonebridge Partnership’s property to V.J.

Management [V.J.] for an amount below market value and V.J.’s two vice presidents, Mr. Ng and Mr. Egger, are directors of 382 Sask Co. resulting in a conflict of interest. [ 36 ] Ms. LeElla Metcalfe seeks unlimited damages in connection with the alleged breaches of contract and fiduciary duty by 382 Sask Co., an accounting of the affairs of the Stonebridge Partnership, pre-judgment interest and the costs of the action. b. PC Claim 419

[37] The Chambers judge refused to add Ms. LeElla Metcalfe’s claim against the Swift Current Partnership, claiming similarlosses against it, as he had allowed with respect to PC Claim 381, saying the following (January 13, 2016, fiat): [1] This action is not by the same parties as QBG 1212 of 2015, which involved small claims action 381 of 2012.

This file deals withclaim 419 of 2013 by William Metcalfe as power of attorney for LeElla Metcalfe and 101085299 Saskatchewan Ltd. operating asHoliday Inn Express Partnership. [2] This action is not the same as the preceding one as the application under The Small Claims Act, 1997, SS 1997, c S-50.11, was notallowed by the Provincial Court. The claim was not issued. Therefore, there is no basis on which to amend the claim which involveddifferent parties and different years. c.

PC Claim 420 [38] The Chambers judge refused the amendment, saying the following (January 13, 2016, fiat): [1] This is an application by William Metcalfe as executor of the estate of Alexandria Metcalfe. This application respecting claim 420 of2013 is dismissed for the same reasons as claim 419. The claim was never issued by the Provincial Court for reasons set forth in the fiatof Judge D.E. Labach, a copy of which is attached hereto. V. The Appeal in this Court A. Setting up the issues [39] Mr.

William Metcalfe appeals to this Court arguing first that the Chambers judge misinterpreted the law pertaining to s. 20 ofThe Limitations Act. His second argument is based upon the authorities following Siemens v Kuepfer (1973), (ONCA), 37 DLR (3d) 40 (Ont CA) [Siemens], which considered the special circumstances surrounding the enforcement of small claims,leaving the timing of the commencement of an action in part to the small claims court itself.

The issue arising from this line of cases iswhether the filing of a claim under The Small Claims Act that is rejected can nonetheless serve to toll a limitation period. B. Did the Chambers judge misapply s. 20 of The Limitations Act? 1. The Law [40] In Insurance Company of the State of Pennsylvania v Cameco Corporation, 2008 SKCA 54, [2008] 6 WWR 626[Pennsylvania], Richards J.A. (as he then was) addressed how s. 20 should be applied. That decision emerged out of lawsuits inconnection with a Cameco Corporation [Cameco] helicopter crashing in 1995, causing the death of all on board.

Cameco brought anaction to be indemnified by its various insurers in 1999. Global Aerospace Inc. [Global], which was one of Cameco’s insurers, applied in2007 to be added to Cameco’s action against the insurers. Global also requested that extensive changes be made to Cameco’s statementof claim. Justice Richards, for the majority, held that Global’s application went beyond the scope of s. 20. In Pennsylvania, he wrote asfollows: [24] As a result, we are presented with the following situation.

The original claim involves Cameco suing ICSOP, American Home andCommonwealth for a finding that they were obliged to defend and indemnify Cameco in relation to the Saskatchewan Action. Theproposed amendments would see Global suing only ICSOP and American Home for a finding that they must contribute to Global’s costof defending and settling both the Saskatchewan and the B.C. Actions. As is readily apparent, the amendments not only introduce awholly new plaintiff and a new cause of action and abandon any claim against one defendant.

They also eliminate the original plaintiffand the original cause of action and extend the proceedings to include new subject matter. As indicated above, in my view, amendmentsof such far reaching significance are not contemplated by s. 20 of The Limitations Act. … [33] It is readily apparent, however, that the amendments sought by Global in this case go well beyond what was involved in Dusterbeckv. Beitel. As indicated, Global does not merely seek to add itself as a party to the Cameco litigation and graft its cause of action ontoCameco’s statement of claim.

It seeks to completely reinvent the statement of claim by substituting itself for Cameco as plaintiff and bysubstituting its claim for contribution in place of Cameco’s claim for indemnification. As well, it seeks to expand the reach of thelitigation to include the B.C. Action. (Emphasis added) Importantly, Richards J.A. distinguished the legal claims held by Cameco and Global.

The former sought indemnification whereas thelatter sought contribution. (This is also reiterated at paragraph 36: “They are conceptually and legally quite distinct matters”.) [41] In Arslan v Şekerbank T.A.Ş, 2018 SKCA 77 [Şekerbank-CA], Richards C.J.S. revisited s. 20 and affirmed Pennsylvania. Thefacts of this decision are somewhat complex but given the nature of s. 20, they are crucial to understanding how the

section was applied. [42] Hüseyin Arslan [Arslan] was a guarantor in two sets of credit agreements wherein the principal debtors defaulted. The first set

was composed of seven credit agreements and Arslan was liable to Şekerbank for the default of a principal debtor. The second set was composed of three credit agreements and Arslan was liable to Alternatifbank [ABank] for the default of a principal debtor. While the agreements in the two sets of credit agreements were different, one of the principal debtors in both sets of agreements was the same party.

Therefore, Arslan’s alleged liability to both Şekerbank and ABank was through a common principal debtor under both sets of credit agreement. [ 43 ] The debtors under these credit agreements defaulted but prior to doing so, Arslan and Murad Al-Katib created a trust to which Arslan transferred shares of a corporation.

After the default, Şekerbank commenced an action on December 12, 2013 against both parties for fraudulent conveyance designed to defeat a secured interest and requested that Arslan’s transfer of shares be declared null and void. [ 44 ] In the Court of Queen’s Bench, on March 8, 2016, Şekerbank and ABank successfully applied to add ABank to the action, claiming a fraudulent conveyance ( Şekerbank T.A.Ş v Arslan , 2017 SKQB 205 , aff’d in Şekerbank-CA ). On appeal, in Şekerbank-CA , the Court upheld the Chambers judge’s application of s. 20 .

Richards C.J.S. for the Court stated as follows: [69] As recognized by the Chambers judge, the most important point for the purpose of applying s. 20 (

a) of The Limitations Act is that the claims advanced by Şekerbank and ABank in the Second Action have precisely the same gravamen or legal core. That gravamen or core is The Fraudulent Preferences Act , RSS 1978, c F-21, and the alleged transfer of property to defeat creditors. Both Şekerbank and ABank say the fraudulent transfer occurred when Mr. Arslan moved shares into the Carme Trust on or before June 3, 2013, at a time when he had ceased paying his debts or was unable to pay his debts in full. Moreover, both Şekerbank and ABank seek the same relief, i.e., most centrally a declaration that Mr.

Arslan’s transfer of the shares into the Carme Trust was null and void. As a result, in my view, it was open to the Chambers judge to find that ABank’s claim arose out of the same transaction or occurrence as Şekerbank’s claim. (Emphasis added) This echoes what Richards J.A. stated in Pennsylvania regarding s. 20 ’s focus on the substantive legal issues being advanced. In Pennsylvania , Global wanted to add itself to Cameco’s action but its claims were found by the majority to be legally distinct (at para 36).

Cameco’s action was based in a claim for indemnification whereas Global’s claim was based in contribution. In Şekerbank-CA , however, a common principal debtor connected Arslan and Al-Katib and both banks requested the same relief. [ 45 ] Another relevant decision is Stomp Pork Farm Ltd. v Lombard General Insurance Company of Canada , 2008 SKQB 405 , [2009] 4 WWR 483 (leave to appeal to Sask CA refused, 2008 SKCA 146 ). In that decision, Farm Credit Canada [FCC] had applied to be added as a plaintiff to an action that Stomp Pork Farm Ltd. [Stomp Pork] had commenced against its insurers.

A fire had burned down Stomp Pork’s barn in 2005. When Stomp Pork applied to its insurers to be indemnified, they refused on the ground that Stomp Pork had breached a warranty in its insurance agreement. Prior to the fire, FCC had advanced loans to Stomp Pork on the security of the barn. Stomp Pork filed a statement of claim against its insurers in 2007. On July 23, 2008, FCC successfully applied, pursuant to s. 20 , to be added to the action. 2. Is the claim asserted by Ms.

LeElla Metcalfe against the Swift Current Partnership one that “arises out of the same transaction or occurrence” as her action against the Stonebridge Partnership? [ 46 ] In my view, on no

interpretation of the case law can this question be answered affirmatively. In PC Claim 381, Ms. LeElla Metcalfe claims for losses stemming from the operation of the Stonebridge Partnership according to the terms of the agreement creating that partnership. She now seeks to add her claim against the Swift Current Partnership according to losses claimed under that new agreement creating a second partnership. She is the only unifying aspect of the two claims.

While she alleges that 381 Sask Co. and 299 Sask Co. can be considered the same business organizations, at law these two corporations are separate legal entities. [ 47 ] Further, the directors of 382 Sask Co. are Mr. Egger and Mr. Ng but the directors of 299 Sask Co. include these two directors plus two others and additional shareholders. The action against 299 Sask Co. concerns the construction of a different hotel in Swift Current. There is no unifying event between the hotels in Saskatoon and Swift Current, aside from Mr. Egger and Mr. Ng, who are directors for both numbered companies.

Such dissimilarity disqualifies the amendment under s. 20 on any reading of the established case law. Ms. LeElla Metcalfe’s claim against the Swift Current Partnership did not arise out of the same transaction as her claim against the Stonebridge Partnership. 3. Is the claim asserted on behalf of Ms. Alexandria Metcalfe against the Swift Current Partnership one that “arises out of the same transaction or occurrence” as Ms. LeElla Metcalfe’s action against the Stonebridge Partnership? [ 48 ] This claim is even further removed from the application of s. 20 of The Limitations Act. Ms.

Alexandria Metcalfe, who is a stranger to the action brought by Ms. LeElla Metcalfe, seeks to graft her claim against a distinct and different legal entity onto the earlier claim. The two transactions, the two partnership agreements, as well as the parties, are wholly different in the two actions. In short, she seeks to bring into the first action a claim that is not of the same occurrence or transaction as the original claim. The Chambers judge did not err by refusing to amend the amended statement of claim as requested. C.

Can a rejected claim under The Small Claims Act nonetheless serve to “commence” proceedings under s. 5 of The Limitations Act ? [ 49 ] The issue is when can an action be said to have been commenced under The Small Claims Act when the Court itself controls whether the claim will be accepted for filing or not. Neither The Small Claims Act nor The Limitations Act provides a clear answer to this question. Resolution of this issue requires the Court to construe s. 5 of The 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 on which the claim is discovered. [ 50 ] The first case holding that an incomplete claim under small claims legislation can stop the clock on a limitation period is Siemens . In Siemens , the plaintiff had filed a claim for damages in Small Claims Court before the expiry of the limitation period. The Court clerk did not enter the claim in the procedure book or issue a summons until six days later because no fees had been deposited and the defendant’s address had not been given.

Between the time of the first filing and the rectification of the errors, the limitation period had expired. The Ontario Court of Appeal sustained the decision of the trial judge holding that the action was not brought after the expiry of the limitation period but rather the filing of the claim with the clerk was analogous to submitting a writ to be issued in the County or Supreme Court. Once this was done an action could be said to have been brought, within the meaning of the applicable limitations legislation.

Jessup J.A. for the Court adopted the reasons of the trial judge where he said: “It must also be noted that a litigant has no other course open to him to pursue his right to bring his action within the time limited in the Highway Traffic Act , except by complying with s. 71 of the Small Claims Courts Act and entering his claim with the Clerk”. [1] [ 51 ] The leading Saskatchewan case citing and following Siemens is Bakaluk v McGregor , 2003 SKQB 386 , 239 Sask R 185 [ Bakaluk ]. In Bakaluk , the plaintiff applied for a Small Claims Court summons in Weyburn on September 24, 2002.

The Court forwarded the material to Moose Jaw, the correct judicial centre, and it was received on September 26, 2002. The limitation period in that case was set to expire on September 29, 2002. A judge in Moose Jaw signed and issued the summons on October 2, but the defendant did not receive the summons until October 24, 2002. At first instance, the defendant successfully argued that the action was statute barred, but on appeal that decision was set aside. [ 52 ] McIntyre J. of the Court of Queen’s Bench held that Mr.

Bakaluk’s claim was not statute barred as he had set the legal process in motion when he applied for the summons before the expiry of the limitation period. According to McIntyre J., Mr. Bakaluk had done everything that was expected of him to commence the action. He could not be penalized for actions that were beyond his control.

The matter was remitted to the Provincial Court for disposition on the merits. [ 53 ] Bakaluk has been followed in this jurisdiction in Champoux v Bakken Holdings Ltd ., 2012 SKPC 14 , 395 Sask R 1 [ Champoux ]; Keck v Balgonie Early Learning Centre Inc ., 2017 SKPC 39 [ Keck ]; and Tsang v Realty Executives Saskatoon , 2018 SKPC 30 [ Tsang ]. [ 54 ] In Champoux , a truck driver alleged a tow truck operator had improperly towed his tractor trailer unit on February 4, 2009 and caused significant damage to it as a result.

On January 10, 2011, the Provincial Court received an application from the truck driver for the Court to prepare a summons. The summons was issued on January 31, 2011 with a return date of March 1, 2011. The driver then requested a later return date so a second summons was issued on March 7, 2011 with a return date of May 3, 2011. Regarding the limitation issue, the Court cited Bakaluk to conclude that for limitation purposes the claim was commenced as of January 10, 2011. [ 55 ] In Keck , the Kecks brought an action against the Balgonie Early Learning Centre for wrongful termination of a contract.

The contract was terminated on November 25, 2013. The Kecks commenced an action and paid their fee to issue a summons prior to November 25, 2015, which was the date the limitation period would have ended. The Court clerk did not issue the summons so the Kecks sought a new summons that was issued on February 8, 2018. The Centre argued the Kecks’ action was statute barred. Relying on Bakaluk , the Court rejected this argument holding that the action had been commenced when the claim was originally filed and the fees were paid. [ 56 ] In Tsang , the defendant was a realtor who assisted the plaintiff, Mr.

Tsang, to purchase a home. After the sale, Mr. Tsang discovered a number of defects with the house. After some discussion as to when Mr. Tsang discovered the defects, the Court arrived at May 13, 2014 as the date of discovery for limitation purposes. Mr. Tsang had filed a claim and paid his fees on May 13, 2016 and then filed a revised claim on May 24, 2016. The summons issued on June 6, 2016, which was beyond the two-year limitation period. The Court concluded the action had nonetheless been brought within the limitation period.

Citing Bakaluk , the Court held “an action in Small Claims Court is commenced on the date the plaintiff applies for a summons by filing a claim and applying the filing fee, not the date on which the judge issues the summons” (at para 41). [ 57 ] In my respectful view, however, this jurisprudence does not assist the plaintiffs in this appeal. Unlike in the present appeal, the deficiency in the Siemens line of authority related to the issuance of the summons, but the claim itself “remained” in the system.

In this appeal, PC Claims 419 and 420 were initially rejected and then not resubmitted until after the limitation period had expired. In these circumstances, following the Siemens line of authority, it is not possible to say that the two new claims had been commenced for the purposes of s. 5 of The Limitation Act . [ 58 ] In short, the argument based on the Siemens line of cases fails as well. VI. Conclusion [ 59 ] The appeal is dismissed in accordance with these reasons. In the circumstances, I do not make any order as to costs. “Jackson J.A.” Jackson J.A. I concur. “Whitmore J.A.” Whitmore J.A.

I concur. “Jackson J.A.” for Ryan-Froslie J.A.