Shinkaruk Enterprises Ltd. v Saskatoon (City), 2019 SKCA 62

Court of Appeal for Saskatchewan Docket: CACV3192 Citation: Shinkaruk Enterprises Ltd. v Saskatoon (City) , 2019 SKCA 62 Date: 2019-03-18 Between: Shinkaruk Enterprises Ltd. and Peter Shinkaruk Appellants (Plaintiffs/Respondents) And City of Saskatoon Respondent (Defendant/Applicant) Before: Richards C.J.S., Caldwell and Leurer JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Leurer On Appeal From: 2018 SKQB 9 , Saskatoon Appeal Heard: March 6, 2019 Counsel: Peter Shinkaruk appearing on his own behalf and for Shinkaruk Enterprises Ltd. Alan Rankine for the Respondent Richards C.J.S. I. Introduction [ 1 ] Mr. Shinkaruk and his family company, Shinkaruk Enterprises Ltd., commenced a Queen’s Bench action against the City of Saskatoon and others. The action was rooted in an order [Order] made pursuant to The Property Maintenance & Nuisance Abatement Bylaw, 2003 [ Bylaw ] .

The Order required the company to deal with two motorhomes, a truck, and various “junk and garbage” located on property owned by the company. The City removed the property in question because of the company’s failure to comply with the Order. [ 2 ] The appellants’ statement of claim is not a model of good drafting.

In general terms, their central concerns appear to be some combination of a contention that they had filed a notice of appeal to contest the Order, and the idea that they had not been given proper time to comply with the Order. [ 3 ] A Queen’s Bench Chambers judge struck the appellants’ statement of claim on three grounds: (

a) the Court of Queen’s Bench had no jurisdiction to entertain the claims advanced; (

b) it disclosed no reasonable cause of action; and (

c) it was frivolous and an abuse of process. The appellants seek to overturn that decision. II. background [ 4 ] The essential background of this appeal is set out in the decision of the Chambers judge ( 2018 SKQB 9 ) at paragraphs 2–10. I will not repeat it here, other than to note that, on September 21, 2016, the Order was posted on the property in question and sent by registered mail to the company. The Order indicated that the contraventions of the Bylaw had to be remedied by October 13, 2016. On October 25, 2016, the motorhomes, the truck and other materials were removed from the property.

III. analysis [ 5 ] As explained to Mr. Shinkaruk during oral argument, the Court of Appeal has a limited mandate. In simplest terms, it cannot remake the decision of the Chambers judge from the ground up. It may intervene only to the extent the appellants establish that the Chambers judge made a reviewable error in deciding as he did. [ 6 ] The Chambers judge concluded the statement of claim should be struck on three separate and alternative grounds. I will focus only on the question of whether the claim discloses a reasonable cause of action.

To be more specific, I make no comment about whether the judge was correct in finding The Cities Act , SS 2002, c C-11.1 , and the Bylaw comprise a complete code that ousts the jurisdiction of the Court of Queen’s Bench in relation to matters of the sort in issue here. This issue is best left for another day. [ 7 ] The basic principles with respect to striking a claim because it discloses no reasonable cause of action are well known. See, for example: Reisinger v J.C. Akin Architect Ltd. , 2017 SKCA 11 , 411 DLR (4th) 687.

Of particular importance here, an application of this sort proceeds on the basis that the facts as pled are true, unless they are manifestly incapable of being proven. In addition, any document referred to in the claim upon which the plaintiff relies to establish his or her case may also be considered. Put another way, Mr. Shinkaruk’s oral representations about what happened between him and the City cannot be taken into account in determining whether the statement of claim discloses a cause of action.

The Court may consider only the claim itself and the documents referred to in it to the extent the appellants rely on those documents to make their claim. [ 8 ] Let me deal first with the question of whether the appellants filed a notice of appeal within the time required. The appellants’ statement of claim asserts, at paragraph 13, that the Order was sent by registered mail on September 21, 2016. It follows that the Order

was made on September 21, 2016, at the latest. This is significant because s. 56 of the Bylaw provides that an order may be appealed “in accordance with

section 329 of The Cities Act ” and, in turn, s. 329 provides that a person may appeal an order within 15 days after the date of the order. As a result, the Order made in this case had to be appealed by October 6, 2016. The statement of claim alleges, in paragraph 21, that a notice of appeal was delivered to the City on October 21, 2016.

Thus, on the basis of the facts alleged in the statement of claim itself, the appellants have no cause of action based on the notion that they filed a notice of appeal within the applicable time period for doing so. [ 9 ] I turn next to the suggestion that City officials extended the time period for complying with the Order. In this regard, paragraph 18 of the statement of claim alleges that, on October 18, 2016, the “October 13, 2016 compliance Order date was extended”. However, the claim does not identify a date to which this deadline was supposedly extended.

Significantly, the statement of claim then goes on to emphasize what it characterizes as a “verbatim statement agreement” dated October 21, 2016. In that document, a document on which the appellants rely as a basis of their position, Mr. Shinkaruk states, “I would also like to be granted an extension on the Order to Remedy dated October 13, 2016”. As a result, the statement of claim as a whole cannot be taken to allege the existence of an agreement that was breached by the City.

At the operative time, there was only a request for an agreement. [ 10 ] The statement of claim refers to various other complaints about how the City and its contractors dealt with issues relating to the Order. None of them are developed to the point or level where they disclose a cause of action. [ 11 ] In the end, I conclude the Chambers judge made no error in striking the appellants’ statement of claim on the basis that it disclosed no reasonable cause of action. IV. conclusion [ 12 ] I conclude that this appeal must be dismissed.

The City is entitled to one set of costs if it chooses to pursue them. “Richards C.J.S.” Richards C.J.S. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Leurer J.A.” Leurer J.A.