Yashcheshen v Canada (Attorney General), 2021 SKCA 116

Court of Appeal for Saskatchewan Citation: Yashcheshen v Canada (Attorney General) , 2021 SKCA 116 Date: 2021-08-31 Docket: CACV3264 Between: Alicia Yashcheshen Appellant (Plaintiff) And The Attorney General of Canada Respondent (Respondent) Docket: CACV3275 Between: Alicia Yashcheshen Appellant (Plaintiff) And The Attorney General of Canada, Jenna Streck, Cameron Nash, Trevor Pieterse and Donald Dyker Respondents (Respondents) Before: Jackson, Schwann and Kalmakoff JJ.A. Disposition: Application for fresh evidence dismissed Appeals allowed Written reasons by: The Honourable Mr.

Justice Kalmakoff In concurrence: The Honourable Madam Justice Jackson The Honourable Madam Justice Schwann On appeal from: CACV3264–QBG 177/2016, Yorkton CACV3275–QBC 849 of 2018, Saskatoon Appeal heard: May 11, 2021 Counsel: Alicia Yashcheshen on her own behalf Marcia Jackson for the Attorney General of Canada, Cameron Nash, Trevor Pieterse and Donald Dyker No one appearing for Jenna Streck Kalmakoff J.A. I. INTRODUCTION [ 1 ] Alicia Yashcheshen appeals against decisions rendered by Court of Queen’s Bench judges in two separate but related civil actions. [ 2 ] The first action involved a statement of claim Ms.

Yashcheshen had filed with the Court of Queen’s Bench, Judicial Centre of Yorkton. It named the Attorney General of Canada [Attorney General] as the defendant [Yorkton Action]. At one stage in the proceedings, a case management judge ordered that Ms. Yashcheshen serve and file an amended statement of claim by a certain date, failing which her underlying claim would be dismissed ( Yashcheshen v Royal Canadian Mounted Police (8 May 2018) Yorkton, QBG 177/2016 (Sask QB) [ May 8 Fiat ]). Ms. Yashcheshen attempted to file her amended statement of claim after the deadline and the Court did not accept it for filing.

As a result, her claim was dismissed ( Yashcheshen v Attorney General of Canada (29 May 2018) Yorkton, QBG 177/2016 (Sask QB) [ May 29 Order ]). [ 3 ] Shortly after the May 29 Order was issued, Ms. Yashcheshen filed a statement of claim in the Court of Queen’s Bench in Saskatoon. In it, she named the Attorney General, three individual RCMP officers and one other person as defendants [Saskatoon Action]. The Attorney General applied to strike the claim in the Saskatoon Action as an abuse of process, taking the position that it was identical to the amended statement of claim [Amended Yorkton Claim] that Ms.

Yashcheshen had attempted to file in the Yorkton Action . A Chambers judge granted the Attorney General’s application and struck Ms. Yashcheshen’s claim, not because it was found to be an abuse of process, but on the basis that it was technically deficient ( Yashcheshen v Attorney General of Canada , (28 June 2018) Saskatoon, QBG 849/2018 (Sask QB) [ Saskatoon Decision ]). [ 4 ] In Ms.

Yashcheshen’s appeal from the May 8 Fiat (CACV3264), she alleges that the case management judge made a number of errors, including imposing timelines for filing that failed to make reasonable accommodation for her medical disability and ordering costs against her notwithstanding the fact that she has a fee waiver certificate.

[ 5 ] In her appeal from the Saskatoon Decision (CACV3275), Ms. Yashcheshen contends that she did not receive a fair hearing because the Chambers judge was biased against her. She also argues that the Chambers judge erred by (

i) applying the pleadings requirements contained in The Queen’s Bench Rules too strictly, given that she was self-represented; (ii) failing to make reasonable accommodation for her medical disability in the assessment of her pleadings; and (iii) ordering costs against her despite her having a fee waiver certificate. [ 6 ] Ms. Yashcheshen also applies to introduce fresh evidence on the appeals. [ 7 ] For the reasons that follow, I would dismiss Ms. Yashcheshen’s applications to introduce fresh evidence but allow her appeals. II. BACKGROUND A. The Yorkton Action [ 8 ] Ms.

Yashcheshen began the Yorkton Action by filing a statement of claim on August 31, 2016, in which she named the Royal Canadian Mounted Police as the defendant. [ 9 ] In broad strokes, Ms. Yashcheshen alleged that she had applied for a job with the RCMP and, because she had sought accommodation for a medical condition during the application process, she was required to disclose personal health information to support that request.

Ultimately, she chose not to pursue the employment for which she had applied, but maintained that the RCMP had discriminated against her by not making reasonable accommodation for her medical condition. She also alleged that members of the RCMP had improperly disseminated her personal health information to various persons and entities and, as a result of this, she had suffered many negative consequences, including the loss of employment and career advancement opportunities, damage to her reputation, loss of privacy, exacerbation of her medical condition and injury to her mental health.

She sought damages as compensation. [ 10 ] On September 16, 2016, Ms. Yashcheshen amended the claim to name the Attorney General as the defendant, on the basis of the Crown’s vicarious liability for torts committed by Crown servants, as set out in s. 3 (

b) of the Crown Liability and Proceedings Act , RSC 1985, c C-50 . The Attorney General filed a statement of defence on November 30, 2016. [ 11 ] As the Yorkton Action progressed, the Attorney General requested that a judge be appointed under Rule 4-6 of The Queen’s Bench Rules [ QB Rules ] to conduct case management. That request was granted on August 17, 2017. Case management conferences were held on August 22, 2017, September 5, 2017, and November 15, 2017. [ 12 ] At the November 15, 2017, case management conference, Ms. Yashcheshen filed a “Reply to Defence”. In it, she stated that she believed her causes of action to include the following: “(

a) invasion of privacy tort; (

b) malicious prosecution and negligent investigation of the criminal harassment charges for Jenna Streck, Cst. Pieterse and Cst. Nash; (

c) breach of the Plaintiff’s rights under section 24(1) of the Canadian Charter of Rights and Freedoms ; (

d) defamation…; (

e) injurious falsehood; and (

f) conspiracy”. Several of these causes of action had not been explicitly pled in her original statement of claim. In light of that, the case management judge directed Ms. Yashcheshen to file an amended statement of claim by December 15, 2017. The deadline was extended to February 1, 2018, at Ms. Yashcheshen’s request. Despite having received that extension, Ms. Yashcheshen did not file the Amended Yorkton Claim within the allotted time frame. As a result, after hearing the parties at a case management conference on February 21, 2018, the case management judge made the following order: 1.

No later than March 21, 2018, the defendant, the Attorney General, shall serve upon the plaintiff, Ms. Yashcheshen, and file with the court all necessary materials to seek an order that the plaintiff’s Statement of Claim shall be amended by a stated date, failing which the Statement of Claim shall be struck. 2. No later than April 27, 2018, Ms. Yashcheshen shall serve and file her response material. 3. The hearing date for the motion shall be 10:00 A.M., May 8, 2018. [ 13 ] The case management judge heard the application described in this order on May 8, 2018. At the hearing, Ms.

Yashcheshen argued that she should be given until July of 2018 to file her amended statement of claim. The case management judge rejected Ms. Yashcheshen’s argument and granted the Attorney General’s application. He determined that, given the history of the action and Ms. Yashcheshen’s non-compliance with prior deadlines, the Attorney General’s position was reasonable. As a result, he made the following order in the May 8 Fiat : 1. Ms. Yashcheshen shall prepare, serve and file an amended Statement of Claim no later than May 21, 2018. 2.

In the event that the amended Statement of Claim is not filed on the court’s file by 4:00 p.m., May 21, 2018 the Local Registrar may, upon presentation of a suitable draft order, issue such order dismissing the entirety of Ms. Yashcheshen’s claim. 3. The Crown has sought costs. Ms. Yashcheshen was fully aware that the Crown would be bringing an application to strike the Statement of Claim in the event an amended Statement of Claim was not received by the March 21, 2018 deadline. Notwithstanding this clear eventuality, Ms. Yashcheshen did not serve an amended Statement of Claim by that date.

She also showed disregard to the court’s previously stated expectations and orders that she serve an amended Statement of Claim by December 15, 2017, or by February 1, 2018. Accordingly, the court awards costs in favour of the Crown in the amount of $500.00 payable forthwith. [ 14 ] May 21, 2018, was a statutory holiday. On the next business day, May 22, 2018, Ms. Yashcheshen served the Attorney General with the Amended Yorkton Claim. It named the Attorney General, Jenna Streck, Cameron Nash, Trevor Pieterse and Donald Dyker as defendants. It also completely revamped and reframed the nature of Ms.

Yashcheshen’s claim. However, Ms. Yashcheshen did not deliver the Amended Yorkton Claim to the Court of Queen’s Bench in Yorkton for filing until May 25, 2018. In addition to Ms. Yashcheshen having missed the deadline imposed by the May 8 Fiat , the Local Registrar’s Office refused to accept the Amended Yorkton Claim for

filing because it did not comply with certain technical requirements for amendments to pleadings set out in Rules 3 -72 to 3 -74. [ 15 ] In light of all this, the Attorney General presented a draft order, as set out in the May 8 Fiat and, on May 29, 2018, the case management judge dismissed Ms. Yashcheshen’s original claim. B. The Saskatoon Action [ 16 ] On June 1, 2018, Ms. Yashcheshen filed a statement of claim in the Court of Queen’s Bench in Saskatoon.

In broad terms, she alleged that a person named Jenna Streck had falsely accused her of criminal harassment which, in turn, led to an investigation by the RCMP that Ms. Yashcheshen claimed was negligently conducted and resulted in the instigation of malicious criminal proceedings. Ms. Yashcheshen also alleged that the officers involved in the investigation improperly disseminated her private medical information. She claimed that underpinning all of this was the fact that the officers were biased against her because of her involvement with and use of cannabis. [ 17 ] With a few minor exceptions, Ms.

Yashcheshen’s statement of claim in the Saskatoon Action was identical to the Amended Yorkton Claim she had attempted to file in response to the May 8 Fiat in the Yorkton Action. [ 18 ] Shortly after Ms. Yashcheshen commenced the Saskatoon Action, the Attorney General applied, under Rule 7-9, to strike her statement of claim as an abuse of process, taking the position that the claim had already been struck by the May 29 Order . That application was heard, in Chambers, on June 22, 2018. [ 19 ] On June 28, 2018, the Chambers judge granted the Attorney General’s application and struck Ms.

Yashcheshen’s claim ( Saskatoon Decision ). In the process, however, he rejected the Attorney General’s abuse of process argument. He held that, because the Court had not accepted Ms. Yashcheshen’s Amended Yorkton Claim for filing, it was never a “live” claim in the Yorkton Action and, therefore, it had not been struck or dismissed; it was only Ms. Yashcheshen’s original claim in that action that had been dismissed. As such, filing the statement of claim to commence the Saskatoon Action was not an abuse of process. [ 20 ] Despite the fact that the Attorney General’s application did not assert that Ms.

Yashcheshen’s claim should be struck on any ground other than abuse of process, the Chambers judge went on to consider whether it should be struck as disclosing no reasonable cause of action, or for otherwise being deficient, under Rules 7-9(2)(

a) and (c). Ultimately, he concluded that Ms. Yashcheshen’s claim violated a number of the rules and principles of proper pleading and was overall so deficient and poorly drafted that it could not be salvaged through amendment. In that respect, he said: [56] I have determined that the Saskatoon Claim violates numerous pleadings and foundational rules in many ways and in many instances. The putative causes of action are so obscured that the statement of claim is inscrutable. There is no reasonable prospect this claim will succeed.

There is no prospect that the claim could be salvaged through amendment. [ 21 ] Accordingly, the Chambers judge struck Ms. Yashcheshen’s claim in the Saskatoon Action in its entirety and dismissed the action against all named defendants. He also awarded costs of $500 against her, noting that “a Fee Waiver Certificate is not insulation against court costs and should not be seen as a licence to litigate with impunity” (at para 61). III. THE ISSUES TO BE DETERMINED [ 22 ] As set out above, Ms.

Yashcheshen argues that the judges who rendered the decisions under appeal erred by failing to make reasonable accommodation for her medical condition. In my view, this argument is without merit. While there is some evidence in the record to indicate that Ms. Yashcheshen suffers from a medical condition, there was no evidence before either judge as to how that medical condition affected her ability to comply with timelines or to draft proper pleadings, such that any specific accommodation may have been required.

Accordingly, no further analysis of this ground of appeal is necessary. [ 23 ] The same can be said for Ms. Yashcheshen’s argument regarding the effect of a fee waiver certificate on the Court’s ability to order costs. The argument that costs cannot properly be awarded against a person who qualifies for a fee waiver certificate was considered and rejected in Yashcheshen v University of Saskatchewan, 2019 SKCA 67 at paras 32–35 , 62 Admin LR (6th) 15.

That decision is a complete answer to the question raised by this ground of appeal. [ 24 ] Based on the record, the notices of appeal and the submissions of the parties, the issues to be determined in these appeals can properly be framed as follows: (

a) CACV3264 – the appeal from the May 8 Fiat : (

i) Did the case management judge err by ordering that Ms. Yashcheshen’s claim would be dismissed if she failed to meet the deadline for filing an Amended Statement of Claim? (

b) CACV3275 – the appeal from the Saskatoon Decision : (

i) Was there a reasonable apprehension that the Chambers judge was biased? (ii) Did the Chambers judge err by striking Ms. Yashcheshen’s claim under Rules 7-9(2)(

a) and (c)? [ 25 ] There is also the question of whether Ms. Yashcheshen should be permitted to introduce fresh evidence. I will begin there. IV. ANALYSIS

A. The Fresh Evidence Applications [26] Ms. Yashcheshen has filed two applications to introduce fresh evidence on the appeals. She seeks the admission of an affidavitsworn by her mother, Nadine Yashcheshen, on March 5, 2020, as evidence on both appeals, and the admission of an affidavit sworn by thesame person on March 26, 2021, in relation to the appeal from the Saskatoon Decision. I take Ms.

Yashcheshen’s position to be that thematerial in the affidavits is relevant to the question of whether she should be subject to costs awards, and the question of whether theChambers judge who rendered the Saskatoon Decision was biased. [27] Applications to adduce fresh evidence in civil appeals are governed by Rule 59 of The Court of Appeal Rules. In applying thatRule, this Court has consistently employed the test set out in cases such as Maitland v Drozda (1983), (SK CA), 22Sask R 1 (CA) [Maitland] and R v Palmer, (SCC), [1980] 1 SCR 759 [Palmer].

Where the evidence in question existed atthe time of the decision under appeal, the test is as follows: (

a) the evidence will not be admitted if, by due diligence, it could have been adduced in the hearing that led to the decision under appeal; (

b) the evidence must be relevant in the sense that it bears upon a decisive, or potentially decisive, issue in the action; (

c) the evidence must be credible in the sense that it is reasonably capable of belief; and (

d) it must be such that if believed it could reasonably, when taken with the other evidence adduced at the hearing in the Court below, beexpected to have affected the result. [28] Where the evidence a party seeks to introduce on appeal came into existence after the hearing in the court below, the test isslightly different. In order to be received on appeal, the evidence must be admissible and relevant to an issue under appeal, in the sensethat it bears upon a decisive or potentially decisive issue in the proceeding.

It must also be credible and, if believed, there must be areasonable potential for it to have affected the result. Its admission also must not violate the principle that favours finality in litigation(see, for example: Cannon v Saskatchewan (Court of Queen’s Bench), 2021 SKCA 77 at para 49). [29] In my view, Ms. Yashcheshen’s applications to introduce fresh evidence must fail.

The affidavits she seeks to tender do notsatisfy the criteria set out above. [30] As to the March 20, 2020, affidavit, the first three paragraphs refer to the fact that, in 2018, the Chambers judge who renderedthe Saskatoon Decision participated in a swearing-in ceremony for officers of the Prince Albert Police Service. One of those officers hasthe same surname as the Chambers judge. From this, I take Ms.

Yashcheshen to be asserting that the evidence tends to demonstrate theChambers judge is biased in favour of police officers and, as such, it is evidence that calls into question the validity of the SaskatoonDecision. I reject this argument. In my view, this evidence could not be expected to have affected the result in her case and is, therefore,not admissible on appeal. [31] Judges benefit from a strong presumption of impartiality that is not easily displaced. (R v Teskey, 2007 SCC 25 at para 19,[2007] 2 SCR 267; R v R.D.S., (SCC), [1997] 3 SCR 484 at para 117 [RDS]).

Serious and substantial grounds arerequired to give rise to a reasonable apprehension of bias on the part of a judge. A real likelihood or probability of bias must beestablished; a mere suspicion is not enough (Aalbers v Aalbers, 2013 SKCA 64, 417 Sask R 69 [Aalbers]; R v T.F., 2019 SKCA 82 atparas 31–32). This is an exacting standard. In this case, at its strongest, this portion of the purported fresh evidence supports an inferencethat the Chambers judge had a familial connection to a police officer who worked for the Prince Albert Police Service.

Nothing in therecord suggests that the police officer in question, the police service for which he worked, or, for that matter, any person, entity or placeassociated with the officer had any connection to Ms. Yashcheshen’s claim. In any event, I see no basis upon which it could be concludedthat such evidence could raise a reasonable apprehension of bias on the part of the Chambers judge as between the parties in Ms.Yashcheshen’s case. To put that in the language of the governing test, this evidence has no potential to have affected the result. [32] The fourth paragraph of the affidavit is argument, not evidence.

As such, it is not admissible. [33] The remainder of the March 20, 2020, affidavit contains what appears to be the deponent’s

summary of Ms. Yashcheshen’sversion of the factual underpinning of her claim against the defendants. None of this is relevant to any of the questions raised by Ms.Yashcheshen’s appeals. [34] The March 26, 2021, affidavit is also a mix of legal argument and aspersions about the conduct of the Chambers judge in anunrelated matter involving different litigants. None of this is properly admissible under the applicable framework. The legal argument isnot evidence. The aspersions regarding the Chambers judge are irrelevant; they have no bearing on any potentially decisive issuepertaining to Ms.

Yashcheshen’s case. [35] In the result, Ms. Yashcheshen’s applications to introduce fresh evidence are denied. B. CACV3264 – the appeal from the Yorkton Decision 1. Did the case management judge err by ordering that Ms. Yashcheshen’s claim would bedismissed if she failed to meet the deadline for filing an Amended Statement of Claim? [36] In the May 8 Fiat, the case management judge ordered that Ms. Yashcheshen serve and file an amended statement of claim by acertain date, failing which her claim in the Yorkton Action would be dismissed upon presentation by the Attorney General of a suitabledraft order. Ms.

Yashcheshen failed to meet the deadline imposed by the case management judge and the Local Registrar refused to acceptthe Amended Yorkton Claim for filing because of technical non-compliance with the Rules regarding amendments to pleadings.Accordingly, the case management judge dismissed Ms. Yashcheshen’s claim.

[ 37 ] The order made in the May 8 Fiat involved an exercise of discretion on the part of the case management judge. Appeals from discretionary decisions operate within the framework of a deferential standard of review (see, for example: Rimmer v Adshead , 2002 SKCA 12 at para 58 , 217 Sask R 94; Stilborn v SaskPower , 2018 SKCA 97 at para 6 [ Stilborn ]; Strom v Saskatchewan Registered Nurses Association , 2020 SKCA 112 at para 60 , 453 DLR (4th) 472; Kot v Kot , 2021 SKCA 4 at para 20 , 63 ETR (4th) 161; Tatum v J.S.

Martell Enterprises Ltd. , 2021 SKCA 25 at para 5 ; and Mosten Investments LP v Manufacturer’s Life Insurance Company (Manulife Financial) , 2021 SKCA 36 at paras 60–63 , 12 CCLI (6th) 1), however, that standard of review permits appellate intervention when the exercise of discretion is based on an error in principle. As I will explain, the case management judge in this case made such an error in dismissing Ms.

Yashcheshen’s claim. [ 38 ] Rule 4-6 of the QB Rules permits the Chief Justice of that court to appoint a case management judge for an action where the relevant circumstances dictate that such a measure is necessary to assist the parties in resolving a claim in a timely and cost-effective way. [ 39 ] Rule 4-7 describes the authority of a case management judge. It reads as follows: 4-7

(1) A case management judge, or, if the circumstances require, any other judge, may: (

a) order that steps be taken by the parties to identify, simplify or clarify the real issues in dispute; (

b) set or adjust dates by which a stage or a step in the action is expected to be complete and order the parties to comply with the dates; (

c) make an order to facilitate an application, proceeding, questioning or pre-trial proceeding; (

d) make an order to promote the fair and efficient resolution of the action by trial; (

e) facilitate efforts the parties may be willing to take towards the efficient resolution of the action or any issue in the action through negotiation or a dispute resolution process other than trial; and (

f) make any procedural order that the judge considers necessary.

(2) Unless the Chief Justice or the case management judge directs otherwise or these rules provide otherwise, the case management judge shall hear every application filed with respect to the action for which the case management judge is appointed. [ 40 ] The powers described in Rule 4-7, of course, supplement the general authority of the Court to make orders and grant remedies, as spelled out in the Foundational Rules in

Part 1. In that respect, Rules 1-4 and 1-5 read, in relevant part: 1-4

(1) The Court may do either or both of the following: (

a) give any relief or remedy described or referred to in The Queen’s Bench Act , 1998; (

b) give any relief or remedy described or referred to in or under these rules or any enactment.

(2) The Court may grant a remedy whether or not it is claimed or sought in an action on providing the parties with: (

a) a notice of its intention to grant a remedy; and (

b) an opportunity to respond.

(3) Nothing in these rules prevents or is to be interpreted as preventing the Court, as a superior court, from exercising its inherent jurisdiction. 1-5

(1) To implement and advance the purpose and intention of these rules described in rule 1-3, the Court may, subject to any specific provision of these rules, make any order with respect to practice or procedure, or both, in an action, application or proceeding before the Court.

(2) Without limiting subrule (1), and in addition to any specific authority the Court has pursuant to these rules, the Court may do one or more of the following: (

a) grant, refuse or dismiss an application or proceeding; (

b) set aside any process exercised or purportedly exercised pursuant to these rules that is: (

i) contrary to law; (ii) an abuse of process; or (iii) for an improper purpose; (

c) give orders or directions or make a ruling with respect to an action, application or proceeding or a related matter; (

d) make a ruling with respect to how or if these rules apply in particular circumstances or to the operation, practice or procedure pursuant to the rules; (

e) impose terms, conditions and time limits; (

f) give consent, permission or approval;

(

g) make proposals, provide guidance, make suggestions and make recommendations; (

h) adjourn or stay all or any part of an action, application or proceeding, extend the time for doing anything in the proceeding or stay theeffect of a judgment or order; (

i) determine whether a judge is or is not seized with an action, application or proceeding. … [41] As can be seen from this, a case management judge has broad discretion to make a multitude of orders to keep litigation ontrack. The QB Rules also specifically acknowledge the Court’s ability to exercise its inherent jurisdiction. [42] Notably, however, nothing in the Rules referenced above speaks directly to a case management judge’s authority to dismiss anaction or claim as a whole. In fact, the circumstances in which the QB Rules empower a judge to dismiss an action for reasons other than adetermination on the merits at a trial or

summary judgment application are relatively limited.

In general terms, the power to dismiss anaction by applying a procedural rule that deprives a plaintiff of an adjudication of their claim on the merits must be exercised withconsiderable caution (see: 0690860 Manitoba Ltd. v Country West Construction Ltd., 2009 BCCA 535 at paras 19–20, 280 BCAC 26) andin a way that conforms with the operative legal principles. [43] The Attorney General argues that the Chambers judge was acting within the scope of the discretionary authority provided tohim in Rule 3-72(1)(c)(ii) in making the May 8 Fiat and, subsequently, the May 29 Order dismissing Ms.

Yashcheshen’s claim in theYorkton Action. That Rule reads as follows: 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, asfollows: … (

c) after a statement of defence is filed: … (ii) with the Court’s prior permission, in any manner and on any terms that the Court considers just. [44] The Attorney General contends that the imposition of a “drop dead” date is a just term that may properly be imposed under thisRule, citing Ens v Wiebe (1984), (SK KB), 33 Sask R 50 (QB). [45] This argument, in my view, is misguided. From the record, I am unable to conclude that the case management judge wasoperating within the purview of Rule 3-72(1)(c)(ii) when he made the order contained in the May 8 Fiat.

Let me explain. [46] As a starting point, in the application that led to the May 8 Fiat and, ultimately, the May 29 Order, the Attorney General madeno reference to Rule 3-72(1)(c)(ii) nor did he seek an order respecting the imposition of terms for amendment of Ms. Yashcheshen’spleadings. The Attorney General applied for an order directing Ms. Yashcheshen to “proceed with the action within a specified time,failing which the action shall be deemed to be dismissed”. While there had been some discussion about Ms.

Yashcheshen’s intention toamend her statement of claim, she had not provided a draft or any other particularization to set out what the nature of the proposedamendments would be. Nor had there been a determination that Ms. Yashcheshen’s original claim was irreparably deficient, such thatamending it would be necessary in order for the action to have a basis upon which to continue.

As a result, I do not see the casemanagement judge’s direction as falling within the scope of an order regarding the manner in which, or terms upon which, amendmentwould be permitted. [47] Furthermore, Rule 3-72(1)(c)(ii) speaks to the ability of a judge to permit amendments to pleadings, not the ability to direct aparty to amend pleadings.

Importantly, nothing in the text of Rule 3-72(1)(c)(ii) suggests that a party seeking to amend a pleading will beat risk of having its claim or defence dismissed simply because an amendment is not permitted. [48] As mentioned above, the QB Rules provide for limited circumstances in which a judge is empowered to dismiss an action forreasons other than a determination on the merits. They include the following: (

a) Rules 2-29(

g) and 2-30(2)(b): dismissal of certain actions relating to estates of deceased persons; (

b) Rules 4-25(1)(d)(

i) and 7-6(5): dismissal for failure to comply with orders to provide security for costs or other payments intoCourt; (

c) Rules 5-14(2)(

a) and 15-39(a): dismissal for non-compliance with disclosure requirements; (

d) Rules 5-36(2)(

a) and 5-36(3)(a): dismissal for refusal to attend for questioning; (

e) Rule 7-9(1)(d): dismissal where pleadings may be struck under Rule 7-9(2); and (

f) Rule 11-27(1)(c)(iii): dismissal as a penalty for contempt of court. [49] In this case, the basis upon which the case management judge dismissed Ms. Yashcheshen’s claim clearly did not fall into anyof these situations. [50] However, Rule 4-44 provides for one other circumstance in which a judge may dismiss an action for reasons other than adetermination of the claim on the merits. That Rule reads:

4-44 If delay occurs in an action, on application the Court may: (

a) dismiss all or any part of a claim if the Court is satisfied that the delay is inordinate and inexcusable and that it is not in the interests of justice that the claim proceed; or (

b) make a procedural order or any other order provided for by these rules. [ 51 ] In its application, the Attorney General described the grounds upon which it sought to have Ms. Yashcheshen’s action dismissed as follows: 2. There has been inexcusable delay by the Plaintiff/Respondent as she has not taken any steps to served ( sic ) and file a further amended Statement of Claim; 3. Such delay has caused prejudice to the Defendant/Applicant. [ 52 ] In the brief of law filed at the hearing of the application, the Attorney General submitted the following argument: 15.

There is no reasonable explanation for the Plaintiff’s failure to serve and file a further amended Statement of Claim by February 1, 2018. As such, the Plaintiff’s delay is not excusable. 16. It would be in the interests of justice that the Plaintiff’s claim be dismissed. This claim involves only private concerns and no issue of wider public importance will be determined by the claim continuing to trial. Additionally, the public interest factor that operates here is that of having claims proceed with some reasonable dispatch. 17.

The delay by the Plaintiff will cause prejudice to the Defendant’s ability to conduct a defence. If this action is allowed to continue, the availability and reliability of witnesses will be compromised. It will be difficult to locate the alleged perpetrators or other witnesses to the event. [ 53 ] In view of the way the Attorney General framed its application, it is clear that the basis for its assertion that Ms. Yashcheshen’s claim in the Yorkton Action should be dismissed lay in Rule 4-44.

Where a defendant applies for an order dismissing a claim for want of prosecution under Rule 4-44, a three-step approach is called for, as described by Richards J.A., as he then was, in International Capital Corporation v Robinson Twigg & Ketilson , 2010 SKCA 48 , 319 DLR (4th) 155 [ ICC ]: [43] The first step… is an inquiry about whether the defendant has established that the delay in moving a case ahead has been inordinate.

This will involve considering the time the plaintiff has taken to get the litigation to the point where the application to strike is brought and comparing that lapse of time to what might typically be expected in a case of similar complexity. This is necessarily a matter of informed judgment grounded in the overall experience of the court and the particulars of the file in question. [44] The second step in the analysis … is an examination of the reasons for the delay aimed at determining whether it is excusable.

This inquiry will entail consideration of the nature of the claim, the diligence with which the claim has been pressed by the plaintiff, and the specific reasons offered as to why the matter has not moved more quickly. A wide variety of factors might be expected to factor into this assessment. [45] The third step of the approach … is this. If the court finds delay to have been both inordinate and inexcusable, it should not consider the issue of “serious prejudice” as a discreet question.

Rather, it should move directly to the issue of whether it is in the interests of justice that the case proceed to trial notwithstanding the delay and should consider the issue of prejudice in that context… See also: Stilborn at paras 8–20 ; Morksy Construction Ltd. v Nickle Lake (Regional Park Authority) , 2016 SKCA 110 , 485 Sask R 32; and Harding v Harding , 2014 SKCA 74 , [2014] 9 WWR 658.

Dismissing an action on the basis of delay, without conducting the analysis described in ICC , constitutes an error in principle ( Schening v Steel , 2020 SKCA 137 , at para 7 , 51 RFL (8th) 1). [ 54 ] In the May 8 Fiat , the case management judge wrote: [4] The Crown’s position is reasonable. It asks that Ms. Yashcheshen file her amended Statement of Claim no later than May 21, 2018, failing which the entirety of her claim shall be struck without further application to the court.

I say that this position is reasonable given the following history on this file: • At the November 15, 2017 Case Management Conference I stated the following: Ms. Yashcheshen shall file and serve any amendments to her Statement of Claim no later than Friday, December 15, 2017. • At the next Case Management Conference on November 24, 2017, Ms. Yashcheshen requested a further extension to prepare and serve an amended Statement of Claim. In response to her request, I ordered as follows: Ms.

Yashcheshen requested that she be allowed until February 1, 2018 to amend her Statement of Claim, notwithstanding that the previous fiat on the file stated she was to have her Statement of Claim amended and filed by December 15, 2017. In light of consent from the Crown that Ms. Yashcheshen could file her amended Statement of Claim no later than February 1, 2018, the previous fiat shall be vacated in that respect and, in its place, Ms.

Yashcheshen shall provide her amended Statement of Claim no later than February 1, 2018. • At the next Case Management Conference on December 11, 2017, I endorsed the court’s file as follows: I confirmed with Ms. Yashcheshen that her amended Statement of Claim had to be filed no later than February 1, 2018. • At the next Case Management Conference on February 21, 2018, Ms. Yashcheshen still had not prepared or served an amended Statement of Claim. I endorsed the file, in part, as follows:

Ms. Yashcheshen states that she is still not in a position to file an amended Statement of Claim, notwithstanding the expectation that shewould have the amended Statement of Claim filed no later than February 1, 2018. Also endorsed on the court file respecting this Case Management Conference are instructions respecting the serving of necessarydocuments by the Crown and Ms. Yashcheshen to prepare for today’s hearing. [5] Initially, upon hearing the Crown’s position, Ms. Yashcheshen requested that she be allowed until July to amend her Statement ofClaim.

The court stated that given the history of delay respecting this matter and the lack of compliance with earlier dates to serve anamended Statement of Claim, the court was unprepared to give an extension to July. Ms. Yashcheshen then advised that she wouldaccommodate (sic) the Crown’s date of May 21, 2018 to file an amended Statement of Claim. (emphasis in original) [55] He then went on to make the order described earlier, setting a deadline for the filing of an amended statement of claim andproviding that Ms.

Yashcheshen’s claim would be dismissed if she did not meet that deadline. [56] As is apparent, the May 8 Fiat contains no reference to the three-step approach set out in ICC. The absence of reference to thatapproach is not automatically a reversible error but, based on an examination of the case management judge’s reasons, I am unable toconclude that he conducted the analysis required under Rule 4-44.

He canvased the history of the proceedings and expressed theconclusion that the Attorney General’s position was “reasonable”, but there is nothing in his reasons to indicate that he turned his mind tothe question of whether any delay had been inordinate and, if so, whether it was excusable or, if it was inexcusable, whether the interestsof justice would nevertheless favour permitting the action to proceed even if Ms. Yashcheshen did not meet the deadline he imposed forfiling an amended statement of claim.

The failure to conduct this analysis was an error in principle. [57] Having found such error, it is necessary to consider the Attorney General’s application afresh because, if the May 8 Fiat cannotbe sustained, then there was no basis for the case management judge to dismiss Ms. Yashcheshen’s claim. [58] In applying the ICC framework, the first hurdle that a defendant must clear is establishing that the plaintiff’s delay in movingthe case forward has been inordinate. In my view, the Attorney General’s application falls short here.

As of the date the case managementjudge rendered the May 8 Fiat, less than two years had passed from the time Ms. Yashcheshen had filed her original statement of claim.The delay that was of concern related to a discreet procedural step, namely filing an amended statement of claim. As of May 8, 2018, lessthan six months had passed from the time that issue was first raised by Ms. Yashcheshen.

While delay in prosecuting a claim is generallyunwelcome, the delay in question here could not reasonably be characterized as inordinate. [59] As such, it is not necessary to consider the inquiries required by the second and third steps of the ICC analysis. The casemanagement judge erred by dismissing Ms. Yashcheshen’s claim in the Yorkton Action. Her appeal in CACV3264 must be allowed, andthe order dismissing her claim must be set aside.

Given that result, I would also set aside the costs award made by the case managementjudge. [60] To be clear, by allowing this appeal, I am not making any comment on the merits of Ms. Yashcheshen’s action or anydetermination about whether her pleadings are adequate. Nor am I making any ruling about whether she should be permitted to file theAmended Yorkton Claim, or otherwise further amend her pleadings. Such determinations, if the parties seek them, fall to be made on thebasis of appropriate applications in the Court of Queen’s Bench. C. CACV3275 – the appeal from the Saskatoon Decision [61] I turn now to Ms.

Yashcheshen’s appeal from the Saskatoon Decision. Having already dealt with her arguments regarding thelack of accommodation for her medical condition and the imposition of costs orders against fee waiver certificate litigants, I will addressonly the remaining live questions raised by this appeal. 1. Was there a reasonable apprehension that the Chambers judge was biased? [62] Ms.

Yashcheshen argues that the Saskatoon Decision should be overturned because the Chambers judge’s comments, bothduring the hearing and in his reasons, “demonstrate a disdain for: (1) self-represented persons; (2) police complainants experiencingretaliation; and (3) medical marijuana users” and give rise to, at the very least, a reasonable apprehension of bias. [63] I would not give effect to this ground of appeal.

The test for reasonable apprehension of bias is whether an informed person,viewing the matter realistically and practically, and having thought the matter through, would think it is more likely than not that thedecision-maker, whether consciously or unconsciously, would not decide fairly (Committee for Justice and Liberty v National EnergyBoard, (SCC), [1978] 1 SCR 369 at 394; Aalbers at para 75; Ayers v Miller, 2019 SKCA 2 at para 25, 44 CPC (8th) 12[Ayers]).

As mentioned earlier in these reasons, judges benefit from a strong presumption of impartiality that can only be displaced bycogent evidence that establishes a real likelihood or probability of bias (Aalbers at para 76; Ayers at para 26; RDS at para 117). I seenothing in the record that meets this standard. [64] In particular, I am not persuaded that comments in the Chambers judge’s reasons raise even a suggestion of bias. It is fair to saythat the Chambers judge was, at points in the Saskatoon Decision, critical of the deficiencies in Ms.

Yashcheshen’s pleadings, and that heexpressed difficulty in understanding the claims she was advancing. In some places, he used colourful language and metaphors to explainthis. For example, at paragraph 46, he described the assertions in Ms. Yashcheshen’s statement of claim as a “hodge-podge of malarkey”.In the next paragraph, he called her claim “irredeemably damaged” because it contained much improper evidence and argument and wasgenerally “incoherent”. Later in his reasons, the Chambers judge commented that Ms.

Yashcheshen’s approach to her pleadings was akinto “throw[ing] a bundle of broken sticks and rotten wood on the courthouse steps and expect[ing] the court to build her a house” (para 55). [65] But none of this, in my view, even hints at bias. The Chambers judge’s comments were made in the context of giving reasons

for decision on an application to strike Ms. Yashcheshen’s statement of claim. The issues before the Chambers judge were whether theclaim was an abuse of the court’s process or otherwise irredeemably deficient. Analyzing these issues required him to scrutinize the claimwith a critical eye and make determinations about its sufficiency. That is what he did.

While it may have been preferable for him to haveused more benign language to express his conclusions, the mere fact that he chose the words he did does not amount to cogent evidencethat displaces the presumption of impartiality or demonstrates a real possibility of bias. [66] Nor is the spectre of bias raised by the fact that in addressing the question of costs, the Chambers judge made reference tohaving reviewed the court’s records and being aware that Ms. Yashcheshen was involved in a number of ongoing lawsuits. He alsocommented that, while he did not know the merits of any of Ms.

Yashcheshen’s other claims, a “Fee Waiver Certificate is not insulationagainst court costs and should not be seen as a licence to litigate with impunity” (at para 61) and cautioned her that she should be mindfulof the existence of the vexatious litigant procedure in Rule 11-28. Of these comments, the only one that raises a concern is the last one.There was no basis in the application before him for the Chambers judge to have referred to the process by which a litigant might belabelled vexatious.

While misguided, nonetheless, the comments of the Chambers judge in this regard do not demonstrate bias given thestrong presumption of impartiality mentioned earlier. [67] Accordingly, this ground of appeal must be rejected. 2. Did the Chambers judge err by striking Ms. Yashcheshen’s claim under Rules 7-9(2)(

a) and (c)? [68] Rule 7-9 pertains to striking out pleadings. It provides, in relevant part, as follows: 7-9(1) If the circumstances warrant and one or more conditions pursuant to subrule (2) apply, the Court may order one or more of thefollowing: (

a) that all or any part of a pleading or other document be struck out; (

b) that a pleading or other document be amended or set aside; (

c) that a judgment or an order be entered; (

d) that the proceeding be stayed or dismissed.

(2) The conditions for an order pursuant to subrule (1) are that the pleading or other document: (

a) discloses no reasonable claim or defence, as the case may be; … (

c) is immaterial, redundant or unnecessarily lengthy; … (

e) it is otherwise an abuse of process of the Court

(3) No evidence is admissible on an application pursuant to clause (2)(a). [69] The Attorney General applied to strike Ms. Yashcheshen’s claim in the Saskatoon Action on the basis that it was an abuse ofprocess, under Rule 7-9(2)(e). As set out above, the Chambers judge determined that Ms. Yashcheshen’s claim in the Saskatoon Actionwas not an abuse of process because the Amended Yorkton Claim had not been dismissed; it was never a live claim because it had notbeen accepted for filing. [70] However, seemingly on his own accord, the Chambers judge went on to consider whether Ms.

Yashcheshen’s claim should bestruck on grounds that had not been asserted in the Attorney General’s application, namely those described in Rules 7–9(2)(

a) and (c). Inthe Saskatoon Decision, the Chambers judge explained this procedural pivot in the following way: [28] … I cannot grant the defendants’ request for a striking order based on abuse of process, as framed. [29] However, in the course of argument in chambers, I posed whether the court could go on to consider the sufficiency of theSaskatoon Claim on its own. It was expressly agreed I could do so.

Thus I next turn to consider the application as if it was based on theassertion the claim discloses no reasonable cause of action or has other deficiencies on its face that are fatal to all or part of the SaskatoonClaim. In particular I have viewed the Saskatoon Claim through the lenses of Rule 7-9(2)(

a) and (c). [71] After conducting an examination of Ms. Yashcheshen’s claim, the Chambers judge concluded that the claim should be struckin its entirety. In reaching that conclusion, he did not clearly state whether the claim was being struck under Rule 7-9(2)(a), or Rule 7-9(2)(c), or both. He wrote: [52] Rule 7-9(1) reads that all or part of a pleading may be struck. Sometimes, a pleading is poorly drafted in certain aspects. Parts of itcan be struck out, and/or amendments made, that save the pleading as a whole.

Other times, the pleading is so deficient, so confusing, sopoorly drafted, that it is beyond salvage. This is such a case. [53] In Sagon v Royal Bank of Canada (1992), (SK CA), 105 Sask R 133, (CA), it was held that a claim should bestruck where, assuming the plaintiff proved everything alleged in that claim, there is no reasonable chance of success. This was one of theprinciples reiterated and adopted in Saskatchewan Power Corporation v City of Swift Current, 2007 SKCA 27, 293 Sask R 6. As well, thewithin claim is not one that can be cured or saved by amendment.

In such instances, the pleading is struck and the action dismissed. See,for example, Jastrebske v St. Thomas More College, 2001 SKQB 577.

… [55] At some point every litigant, including those representing themselves, has a duty to comply with the rules and procedures of thiscourt and with the law. They have to set out their cases with an appropriate degree of accuracy, clarity and particularity. It is not for thecourt to become their advocate, or even piece things together for them. In this case the plaintiff has not fulfilled this duty. She has casttogether a disparate array of allegations in a claim and thrust them onto both the defendants and the court, hoping someone will figure outwhat she is complaining about. This cannot go on.

To put it in a clear fashion, the plaintiff cannot throw a bundle of broken sticks androtten wood on the courthouse steps and expect the court to build her a house. [56] I have determined that the Saskatoon Claim violates numerous pleadings and foundational rules in many ways and in manyinstances. The putative causes of action are so obscured that the statement of claim is inscrutable. There is no reasonable prospect thisclaim will succeed.

There is no prospect that the claim could be salvaged through amendment. [57] I therefore strike the plaintiff’s claim in its entirety and dismiss her action against all defendants. [72] The question of whether the Chambers judge erred by striking Ms. Yashcheshen’s claim implicates two aspects of theSaskatoon Decision. [73] The first aspect, namely the decision to consider and grant relief on a basis that the Attorney General had not raised in itsapplication, involves a question of procedural fairness. The second aspect — the conclusion that the claim should be struck — involves aquestion of law.

Questions such as these are reviewable on a correctness standard (see, for example: Feng v Saskatchewan (Economy),2020 SKCA 6 at para 43, 70 Admin LR (6th) 237; and Harpold v Saskatchewan (Corrections and Policing), 2020 SKCA 98 at para 21[Harpold]). [74] As I will explain, I need only address the first aspect in order to resolve this appeal. Ms.

Yashcheshen was denied proceduralfairness when the Chambers judge struck her claim on the basis of grounds that the Attorney General had not raised in its application and,therefore, the Saskatoon Decision must be set aside. [75] A party seeking to strike a claim under Rule 7-9 must bring an application before a judge in Chambers. Rule 6-5(2) sets outwhat a notice of application must contain. It reads, in relevant part, as follows: 6-5(2) Every notice of application must set out all of the following: (

a) the precise remedy sought; (

b) the grounds to be argued, including a reference to any

section of an enactment or rule to be relied on; and (

c) a list of the documentary evidence to be used at the hearing of the application. [76] Rule 6-5(2) embodies the fundamental principle of fairness and due process in litigation. That is to say, where one party seeks aremedy, the opposite party is entitled to advance notice of the case that must be met and a fair opportunity to meet that case.

The noticerequirement in Rule 6-5(2) is meant to facilitate the administration of justice and to protect the rights of parties in litigation. [77] Notwithstanding the principle embodied in Rule 6-5(2), the QB Rules permit a judge in Chambers to relieve a party from strictcompliance in some circumstances.

For example, Rule 1-4(2) permits the Court to grant a remedy “whether or not it is claimed or soughtin an action”, as long as the parties are given notice of the Court’s intention to grant that remedy and an opportunity to respond.Rule 1-6(4) permits the Court to “cure any contravention, non-compliance or irregularity”, where doing so is necessary to ensure thatjustice is done and no irreparable harm will be caused to any party. [78] These Rules, when read in conjunction with Rules 1-3 and 1-7 give judges the power to amend or correct pleadings anddocuments in order to ensure that disputes are fairly determined by the substantive issues, and not on the basis of whether there has beenstrict compliance with procedural rules.

This means the Court has discretion to hear and determine the issues raised in an application, evenwhere the procedure adopted by the applicant was imperfect, as long as doing so does not prejudice another party’s ability to respond tothe application (see: Rural Municipality of Edenwold No. 158 v Murray, 2017 SKQB 15 at paras 35-36, 3 LCR (2d) 187). To put thatanother way, parties should be relieved of strict compliance with the notice provisions only where it is necessary to achieve justice andwhere it does not cause prejudice to another party (see, generally: U.F.C.W. Local 1400 v F.W.

Woolworth Co., (SKKB), [1993] 2 WWR 657 (Sask QB)). [79] The issue raised here, of course, concerns not the remedy granted by the Chambers judge but rather the grounds upon whichthat remedy was granted. In that respect, the Attorney General’s notice of application did not alert Ms. Yashcheshen to the possibility thather action might be struck pursuant to Rules 7-9(2)(

a) and (c). It only sought to have her claim struck on the following basis: 1. The Statement of Claim is an abuse of process as the plaintiff’s claim was already struck in the Yorkton Court of Queen’s Bench by Mr.Justice Layh on May 29, 2018. [80] Despite that, and despite having found that the Attorney General was not entitled to the relief it sought on the basis of the soleground claimed, the Chambers judge ultimately went on to determine the application on different grounds – those related to thesufficiency of the pleadings.

He stated that he was doing so only because he had posed that question during the course of argument andthat “[i]t was expressly agreed” that he could do so (Saskatoon Decision at para 29).

While it appears that the Chambers judge may havebeen motivated by a desire to help bring the matters before him to a resolution that would avoid multiple applications and multiple courtappearances for the parties, in my respectful view, he erred by proceeding in this fashion. [81] As a general rule, judges must resist the temptation to raise new issues, especially those that are determinative, without givingthe parties an adequate opportunity to respond.

While the combination of Rules 1-4(2) and 1-6(4) empowers a judge to proceed as theChambers judge did in this case, the procedural fairness requirements embedded in those Rules dictate that the affected parties must be

given notice and an adequate opportunity to respond before a judge proceeds to grant unsolicited relief or relief on grounds not asserted ina notice of application. In Kirk v Kirk, 2017 SKCA 97, [2018] 1 WWR 123, Richards C.J.S. described what notice and an adequateopportunity to respond entail in this way: [29] This important qualifier on a judge’s right to grant unsolicited remedies reflects the principle that a fair hearing is one where theparties know the case they have to meet and have an opportunity to present evidence and make submissions in relation to it.

This is afundamental concept and it cannot be sacrificed in the quest for efficiency or the speedy resolution of disputes.

See, for example: Scott vVanston, 2016 SKCA 75 at para 70, [2016] 9 WWR 256; Koback v Koback, 2013 SKCA 91 at para 58, [2013] 10 WWR 491; Whelan vWhelan, 2007 ABCA 282 at paras 5–6, 43 RFL (6th) 274; Parlee v McFarlane (1999), (NB CA), 171 DLR (4th) 292(NBCA) [Parlee]. [Emphasis added] See also: Onion Lake Cree Nation v Stick, 2020 SKCA 101, [2021] 2 WWR 614; and Armbruster v Barrett, 2020 SKCA 140 at para 20,49 RFL (8th) 1. [82] In this case, while the Chambers judge gave the parties notice of his intention to consider whether Ms.

Yashcheshen’s claimshould be struck on grounds that had not been asserted in the Attorney General’s notice of application, the record does not reveal exactlywhat was communicated to Ms. Yashcheshen in that respect and nor is it clear whether she understood the implications of that proceduralpivot. [83] This is significant for several reasons, not the least of which is that Ms. Yashcheshen was self-represented. A judge in a civilproceeding has the obligation to ensure that a hearing is fair to all parties.

Where a party is self-represented, that obligation extends toensuring that the litigant has the opportunity to meaningfully participate in the hearing and a reasonable opportunity to present their case(Dewing v Kostiuk, 2017 MBCA 22 at para 17, [2017] 6 WWR 717). Judges have a responsibility to promote access to justice for allpersons on an equal basis, regardless of representation (Cabana v Newfoundland and Labrador, 2020 NLCA 44 at para 121).

Thisobligation must be borne in mind when a judge makes a determination about whether to exercise their discretion to relieve a party fromstrict compliance with the Rules. [84] This can be a difficult task and, at times, hard to square with the adversarial nature of our legal system.

However, one cannotlose sight of the fact that rules and procedures in civil litigation are complex and can be difficult to navigate for self-represented litigants,even those who have complied with the expectation that, if they choose to proceed without counsel, they “familiarize themselves with therelevant legal practices and procedures pertaining to their case” (Clark v Pezzente, 2017 ABCA 220 at para 13).

The nature of thiscomplexity, and the challenge it presents for judges, was discussed in Moore v Apollo Health & Beauty Care, 2017 ONCA 383 [Moore]: [42] Both the challenges and responsibilities are succinctly described in the Statement of Principles on Self-represented Litigants andAccused Persons (the “Statement”) issued by the Canadian Judicial Council in September 2006. The Supreme Court of Canada endorsedthe Statement in Pintea v.

Johns, 2017 SCC 23. [43] The main challenge faced by a trial judge when a party is not represented by a lawyer lies in the difficulty of managing anadversarial proceeding when one party lacks formal training in the law and its procedures.

As described by the Statement, at p. 3: Self-represented persons are generally uninformed about their rights and about the consequences of choosing the options available tothem; they may find court procedures complex, confusing and intimidating; and they may not have the knowledge or skills to participateactively and effectively in their own litigation. [44] While self-represented persons vary in their degree of education and sophistication, I think it safe to say that most find courtprocedures “complex, confusing and intimidating.” That state of affairs gives rise to the responsibility of judges to meet the need of self-represented persons for “simplicity” and to provide “non-prejudicial and engaged case and courtroom management” to protect the equalrights of self-represented persons to be heard: Statement, pp. 4 and 6. [45] The Statement, at p. 7, offers specific advice to judges about how to meet their responsibilities to self-represented persons in thecourtroom environment: Judges have a responsibility to inquire whether self-represented persons are aware of their procedural options, and to direct them toavailable information if they are not.

Depending on the circumstances and nature of the case, judges may explain the relevant law in thecase and its implications, before the self-represented person makes critical choices. In appropriate circumstances, judges should consider providing self-represented persons with information to assist them in understandingand asserting their rights, or to raise arguments before the court.

Judges should ensure that procedural and evidentiary rules are not used to unjustly hinder the legal interests of self-represented persons… [Emphasis in original] [85] There is no question that the notice requirement plays a vital role in determining whether a hearing is fair for a self-representedlitigant.

In that regard, there is considerable authority for the proposition that it is a legal error for a judge to decide a case on a basis notpleaded and with respect to which battle was never joined (see, for example: Long v Van Burgsteden, 2014 SKCA 115 at para 17, 378DLR (4th) 562; Balzer v Federated Co-operatives Limited, 2018 SKCA 93 at paras 65–66, [2019] 1 WWR 411; Rodaro v Royal Bank ofCanada (2002), (ON CA), 59 OR (3d) 74 at paras 10, 61–63 (Ont CA); A-C-H International Inc. v Royal Bank(2005), (ON CA), 254 DLR (4th) 327 (Ont CA); and Lorama Group Inc. v Lenz, 2015 ONSC 5915 at para 57, 339OAC 212). [86] The notice requirement goes hand-in-hand with the requirement for an adequate opportunity to respond.

In Robin HoodManagement Ltd. v Gelmich, 2014 SKQB 347 at para 73, 459 Sask R 183 [Gelmich] the self-represented plaintiffs had brought an action

against multiple defendants, including Ms. Gelmich. Some of the defendants applied to strike the plaintiffs’ claim against them. Ms. Gelmich did not file an application to strike and filed no materials in support of the other defendants’ application. At the Chambers hearing, however, Ms. Gelmich argued that the plaintiffs’ claim against her ought to be dismissed as well. Barrington-Foote J., as he then was, declined to entertain Ms. Gelmich’s application because she had not notified the plaintiffs of the nature of her application in a timely way.

In that respect, he wrote: [73] I have not dismissed the action against Ms. Gelmich. Ms. Gelmich did not provide notice of an application to strike to the plaintiffs. I am concerned, particularly as the plaintiffs are self-represented, that they had no time to consider and respond to her application. I am accordingly not prepared to grant Ms. Gelmich’s application for short notice of her application to strike. If Ms.

Gelmich wishes to pursue an application to strike, she is entitled to file a notice of application in the usual way. … (emphasis added) [ 87 ] In 2183164 Ontario Inc. v Gillani , 2013 ONSC 1456 at paras 25–26 , 114 OR (3d) 676 [ Gillani ] , the Court was faced with an appeal from the decision of a Master who, like the Chambers judge in this case, struck a claim based on a ground that had not been raised in the notice of application. The Ontario Superior Court overturned the decision, finding that the Master had erred by doing so.

In that regard, Molloy J. said: [27] The fact that the actual relief granted by the Master in this case was sought in the Notice of Motion does not resolve the lack of notice. It is the grounds for that relief that are important. It is also no answer that s. 47(1) of the CLA is mentioned in the Notice of Motion. That does nothing to put the plaintiffs on notice of what is actually being sought. In truth, this was not a basis relied upon by the defendants. It was raised for the first time by the Master and became the grounds upon which he made his decision.

That is fundamentally unfair and cannot stand based on the authorities I have just cited. [ 88 ] The decisions in Gelmich and Gillani are, in my view, instructive of the proper approach. In the present case, the Chambers judge determined that the Attorney General’s application, as it had been framed in the notice, could not succeed.

Before deciding whether the relief the Attorney General sought could be granted on the basis of grounds that were not raised in the notice of application, the Chambers judge was obligated to consider whether relieving the Attorney General from compliance with the Rules was necessary to achieve justice and whether proceeding in that fashion would be unfair to Ms. Yashcheshen in the sense that it would deprive her of an adequate opportunity to respond.

He could not properly proceed in that way for the mere sake of expediency or just because there was apparent consent. [ 89 ] In that regard, it is worth repeating that the Attorney General’s notice of application mentioned only the abuse of process ground for seeking to have Ms. Yashcheshen’s claim struck. It did not allege that Ms. Yashcheshen’s claim failed to disclose a reasonable cause of action or that it was immaterial, redundant or unnecessarily lengthy.

The affidavit material and brief of law filed in support of the application, while making passing reference to the Attorney General’s position as to the sufficiency of Ms. Yashcheshen’s pleadings, asserted no other basis for striking the claim apart from abuse of process. In short, there was nothing in the Attorney General’s material that would have given Ms. Yashcheshen notice that she needed to meet any case except for the contention that the claim in the Saskatoon Action amounted to an abuse of process.

She met that case; the Chambers judge determined that the Attorney General’s application could not succeed on that basis. [ 90 ] In light of all this, more was required of the Chambers judge before it could be determined that departing from compliance with the notice requirements in Rule 6-5(2) and permitting the consideration of new grounds for the relief sought by the Attorney General was proper. By expanding the scope of the application in the fashion that he did, the Chambers judge changed the nature of the case that Ms. Yashcheshen was required to meet in a fundamental way.

In essence, she was responding to a new application. [ 91 ] Taking into consideration the unique combination of circumstances here, which included the procedural history, the content of the Attorney General’s original notice of application, the nature of the relief being sought, and the fact that Ms. Yashcheshen was self- represented, I am unable to conclude that Ms. Yashcheshen was given an adequate opportunity to respond to the change in the nature of the case she was facing.

Permitting the consideration of grounds not raised in the original notice of application brought into play different and potentially complicated issues in this case, from both a legal and evidentiary standpoint. A party responding to an application to strike under Rule 7-9(2)(

c) is entitled to file affidavit evidence, which may be quite different than the evidence necessary to respond to an application to strike under Rule 7-9(2)(e). The legal issues raised by applications to strike pleadings under Rule 7-9(2) can be complex and nuanced, with different considerations applying depending on which grounds for striking are in play. The jurisprudence relating to striking pleadings under the various subparagraphs is voluminous and varied. Bearing all of that in mind, it is difficult to envision how a self- represented person like Ms.

Yashcheshen could be fairly expected to address those issues in a meaningful way without having some time to prepare their case. [ 92 ] Given what was at stake for Ms. Yashcheshen if the Attorney General was successful in obtaining the relief it sought, more was required of the Chambers judge here than simply asking Ms. Yashcheshen if she agreed that he could consider grounds for striking that had not been mentioned in the notice of application. Before embarking on that course, the Chambers judge was required to address his mind to the question of whether Ms.

Yashcheshen had been given adequate notice and an adequate opportunity to respond. In the circumstances, that obligated the Chambers judge to satisfy himself that Ms. Yashcheshen understood the legal implications of the change in procedure to the extent necessary to be able to effectively present her case. From the record before me, it does not appear that he did so. [ 93 ] In the circumstances, this was an error that rendered the hearing unfair. [ 94 ] In the result, I would allow Ms. Yashcheshen’s appeal on this ground. The Saskatoon Decision striking Ms. Yashcheshen’s claim must be set aside.

The costs order made by the Chambers judge must be set aside as well. [ 95 ] Having reached this conclusion, it is not necessary to deal with the question of whether the Chambers judge erred by determining that Ms. Yashcheshen’s claim should be struck under Rules 7-9(2)(

a) or (c), because there was no proper application before him upon which to have made that determination. I also hasten to add that my conclusion here should not be seen as a comment on the adequacy of Ms. Yashcheshen’s pleadings. The question of whether her claim should be struck under Rule 7-(9)(2)(

a) or Rule 7-9(2)(c), or

on any other basis, remains to be determined in the Court of Queen’s Bench on the basis of a proper application, should the Attorney General choose to proceed in that fashion. V. CONCLUSION [ 96 ] Ms. Yashcheshen’s appeals in both CACV3264 and CACV3275 are allowed. [ 97 ] Having regard for all the circumstances, there will be no order as to costs. “Kalmakoff J.A.” Kalmakoff J.A. I concur. “Jackson J.A.” Jackson J.A. I concur. “Schwann J.A.” Schwann J.A.