Yashcheshen v Teva Canada Ltd., 2021 SKCA 135

Court of Appeal for Saskatchewan Docket: CACV3663 Citation: Yashcheshen v Teva Canada Ltd. , 2021 SKCA 135 Date: 2021-10-14 Between: Alicia Yashcheshen Applicant/Appellant (Respondent/Plaintiff/Respondent) And Teva Canada Ltd. Respondent/Respondent (Non-party/Defendant/Applicant) And Government of Saskatchewan Respondent/Respondent (Applicant/Non-party/Non-party) And Attorney General for Saskatchewan Respondent/Respondent (Intervenor /Non-party/Intervenor) Before: Jackson, Schwann and Barrington-Foote JJ.A. Disposition: Application dismissed Written reasons by: The Honourable Mr.

Justice Barrington-Foote In concurrence: The Honourable Madam Justice Jackson The Honourable Madam Justice Schwann Application heard: October 7, 2021 Counsel: Alicia Yashcheshen appearing on her own behalf Amanda Quayle, Q.C., for Teva Canada Ltd. Michael Morris, Q.C., for the Government of Saskatchewan Noah Wernikowski for the Attorney General for Saskatchewan Randene Zielke for Court Services Barrington-Foote J.A. I.

INTRODUCTION [ 1 ] On June 3, 2020, a judge of the Court of Queen’s Bench [Chambers judge] found that Alicia Yashcheshen is a vexatious litigant and made an order pursuant to Rule 11-28 of The Queen’s Bench Rules that she could not institute proceedings without first seeking leave of the Court. The Chambers judge also ordered that all fee waiver certificates issued to Ms. Yashcheshen pursuant to The Fee Waiver Act , SS 2015, c F-13.1001 , be cancelled, and that any future fee waivers be allowed only with the permission of a Queen’s Bench judge. [ 2 ] Ms.

Yashcheshen has appealed both the vexatious litigant order and the fee waiver order. Her notice of appeal raises several constitutional issues, which, based on her submissions at the hearing of this application, appear to relate primarily to s. 7 and s. 15 of the Canadian Charter of Rights and Freedoms . She asserts that Rule 11-28 of The Queen’s Bench Rules and the vexatious litigant order are unconstitutional, as they result in undue interference with access to justice, particularly by persons who are indigent or have disabilities.

She asserts that the vexatious litigant order is unconstitutional because it has resulted in damage to her reputation and to her ability to pursue a legal career. She claims that it is contrary to the Charter for a Chambers judge to award costs against a person on social assistance. Further, it is her position that the vexatious litigant order exceeds the jurisdiction of the Chambers judge, as it is overbroad and does not specify the basis on which leave to commence proceedings might be granted. [ 3 ] Ms.

Yashcheshen has applied pursuant to s. 8(1) of The Constitutional Questions Act, 2012 , SS 2012, c C-29.01 [ 2012 Act ], for court-appointed counsel to argue those aspects of her appeal that relate to the vexatious litigant order and the fee waiver order. This decision deals only with that application for court-appointed counsel, which I have concluded must be dismissed. My reasons follow. II. DOES S. 8 OF THE CONSTITUTIONAL QUESTIONS ACT, 2012 PROVIDE FOR THE APPOINTMENT OF COURT-APPOINTED COUNSEL IN THESE CIRCUMSTANCES? [ 4 ] Ms.

Yashcheshen’s application seeks relief pursuant to both s. 6 of The Constitutional Questions Act , RSS 1978, c C-29 (repealed), and s. 8 of the 2012 Act . The Constitutional Questions Act was repealed and replaced by the 2012 Act effective May 16, 2012. The

long title of the 2012 Act is The Constitutional Questions, Court-appointed Lawyers Act, 2012 . The

short title is The Constitutional Questions Act, 2012 (s 1, 2012 Act ) .

[5] Ms. Yashcheshen clarified at the hearing of this application that she relies only on s. 8 of the 2012 Act, which provides asfollows: 8(1) If any interest affected is not represented by counsel, the Court of Appeal may request counsel to argue the case in that interest.

(2) Counsel mentioned in subsection (1) is entitled to reasonable expenses that shall be paid out of the general revenue fund. [6] This provision, like all legislation, must be interpreted in accordance with the modern principle of

interpretation codified in s.2-10(1) of The Legislation Act, SS 2019, c L-10.2; that is, the words must be “read in their entire context, and in their grammatical andordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intention of the Legislature”.

Section 8 is in

Part IIof the 2012 Act, which is titled “Reference” and includes ss. 2–11. The grammatical and ordinary sense of all of those provisions read incontext, harmoniously with the scheme of the Act, is that they relate solely to matters referred to the Court of Appeal by the LieutenantGovernor in Council pursuant to s. 2, commonly referred to as “references”. That is not the situation here. [7] I will note two decisions which bear on this issue.

Section 8 of 2012 Act is the successor provision to s. 6 of TheConstitutional Questions Act, which provided as follows: 6 Where any interest affected is not represented by counsel the court may request counsel to argue the case in that interest, and reasonableexpenses thereof shall be paid out of the general revenue fund. [8] The former statute – The Constitutional Questions Act – was not divided into Parts as it is now. However, s. 6 was one of agroup of six sections (ss. 2–7) which provided for references and dealt with issues relating to references by the Lieutenant Governor inCouncil of the kind dealt with in

Part II of the 2012 Act. In Saskatchewan Wheat Pool v Kieling (1993), (SK KB),[1994] 3 WWR 714 (Sask QB), Armstrong J. concluded that s. 6 applied only to references. I agree with that conclusion. [9] Kieling was referred to in Klippenstein v Manitoba (Attorney General), 2012 MBCA 77, 284 Man R (2d) 1, where theManitoba Court of Appeal reached the same conclusion in relation to a similar court-appointed counsel provision in the ManitobaConstitutional Questions Act, CCSM, c C180.

That legislation, like The Constitutional Questions Act, was not divided into Parts, and dealtwith both references and the provision of notice of constitutional questions to Attorneys General. [10] In the result, it is my view that s. 8 of the 2012 Act applies only to references and does not authorize the appointment of state-funded counsel in this appeal, as it is not a reference. [11] Counsel for Court Services also submitted that Ms.

Yashcheshen would not meet the criteria for an award of advance costs (asin British Columbia (Minister of Forests) v Okanagan Indian Band, 2003 SCC 71, [2003] 3 SCR 371) or for the appointment of state-funded counsel pursuant to the Charter (as in New Brunswick (Minister of Health and Community Services) v G. (J.), (SCC), [1999] 3 SCR 46). However, it is not necessary to deal further with those issues, as Ms. Yashcheshen relied solely on s. 8 of the2012 Act. III. CONCLUSION [12] For these reasons, Ms.

Yashcheshen’s application for the appointment of state-funded counsel is dismissed, with the matter ofcosts, if any, to be determined by the panel hearing the appeal proper. “Barrington-Foote J.A.” Barrington-Foote J.A.I concur. “Jackson J.A.” Jackson J.A. I concur. “Schwann J.A.” Schwann J.A.