Yashcheshen v Teva Canada Ltd., 2022 SKCA 121

Court of Appeal for Saskatchewan Docket: CACV3663 Citation: Yashcheshen v Teva Canada Ltd. , 2022 SKCA 121 Date: 2022-10-20 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: Caldwell and Leurer JJ.A.

Disposition: Application dismissed (orally) Written reasons by: The Court On application from: 2022 SKCA 49 , Regina Application heard: October 18, 2022 Counsel: Alicia Yashcheshen on her own behalf Amanda Quayle, K.C. and Robert Carson for Teva Canada Ltd. Michael Morris, K.C. for the Government of Saskatchewan and the Attorney General for Saskatchewan The Court I.

INTRODUCTION [ 1 ] On April 18, 2022, a panel of this Court (Caldwell, Ryan-Froslie and Leurer JJ.A.) rendered judgment in an appeal between Alicia Yashcheshen, on the one side, and Teva Canada Ltd. [Teva] and the Government of Saskatchewan [Saskatchewan], on the other: Yashcheshen v Teva Canada Ltd. , 2022 SKCA 49 , [2022] 8 WWR 60 [ Appeal Decision ] . [ 2 ] The result of the Appeal Decision was to allow, in part, an appeal by Ms. Yashcheshen from orders made by a judge of the Court of Queen’s Bench sitting in Chambers: Saskatchewan v Yashcheshen , 2020 SKQB 160 , 3 CCLI (6th) 56.

In general terms, the overall effect of the Appeal Decision was to: (

a) allow Ms. Yashcheshen’s appeal from an order striking her statement of claim against Teva and to remit the matter to the Court of Queen’s Bench (as it then was) “to determine whether Ms. Yashcheshen’s statement of claim, in light of her proposed amendments, should be struck pursuant to Rule 7-9(a), (

b) or (e)” of The Queen’s Bench Rules (at para 48); (

b) allow Ms. Yashcheshen’s appeal with respect to whether s. 6 of The Fee Waiver Act , SS 2015, c F-13.1001 , offends s. 7 of the Charter and to remit that issue to the Court of Queen’s Bench; (

c) set aside an order that cancelled fee waiver certificates granted to Ms. Yashcheshen pursuant to The Fee Waiver Act in relation to a bevy of ongoing proceedings and, instead, to limit the order cancelling the fee waiver certificate to one action only; (

d) dismiss Ms. Yashcheshen’s appeal from an order that declared her to be a vexatious litigant, thereby leaving undisturbed an order prohibiting her from instituting proceedings that are commenced by statement of claim or originating application without first seeking leave of a judge of that court, but amending it “to the extent of removing from that order the reference to ‘other applications’” (at para 108); (

e) dismiss the appeal by Ms. Yashcheshen from an order that she pay to Teva $200 in costs in relation to the proceedings in the Court of Queen’s Bench; and (

f) order that, because of the mixed success by all parties in the appeal, no costs be awarded in relation to the appeal, for or against any party. [ 3 ] Ms. Yashcheshen now applies for a rehearing. Rule 47(1) of The Court of Appeal Rules , which governs Ms. Yashcheshen’s application, states that there “shall be no re-hearing of an appeal except by order of the court as constituted on the hearing and determination of the appeal”. Subsequent to the hearing and determination of Ms. Yashcheshen’s appeal, Ryan-Froslie J.A. has retired as judge of this Court.

It therefore falls on the remaining members of the panel that rendered the Appeal Decision to decide Ms. Yashcheshen’s application (see The Court of Appeal Act, 2000 , SS 2000, c 42 .1, ss 15 and 16). [ 4 ] At the hearing of this matter, we advised the parties that Ms. Yashcheshen’s application was dismissed. We also indicated that

we would provide brief written reasons at a later date. We then invited submissions from the parties on the question of costs, which issuewe reserved to be dealt with in our reasons. These are the reasons we promised. II. ANALYSIS A. Basic principles [5] The principles that apply when a party seeks an order for a rehearing were recently summarized in Double DiamondDistribution Ltd. v Garman Turner Gordon LLP, 2021 SKCA 152 [Double Diamond]: [3] This Court may, in its discretion, rehear an appeal, provided that formal judgment has not issued.

This power is, however,exercised only in special or unusual circumstances: Storey v Zazelenchuk (1985), (SK CA), 40 Sask R 241 (CA) at para5. In Armco Canada Ltd. v PCL Construction Ltd. (1986), (SK CA), 52 Sask R 100 (CA) at para 6, Tallis J.A. tooknote of Re Payment of Compensation to Civil Servants Under Art. 10 of Agreement for a Treaty Between Great Britain and Ireland, [1929]AC 242 (PC) at 252, which described a rehearing as an “indulgence” and “of the nature of an extraordinarium remedium”, that is, anextraordinary remedy.

The principal reason that the bar for a rehearing is set so high relates to the important policy objective that theremust be finality to litigation: Shaw v Regina (City), (SK CA), [1944] 1 WWR 433 (Sask CA) at 449. [4] What constitutes special or unusual circumstances “must be determined on a case-by-case basis” (101115379 Saskatchewan Ltd. vSaskatchewan (Financial and Consumer Affairs Authority), 2019 SKCA 50 at para 13, [2019] 7 WWR 700 [101115379]). Nonetheless, itassists in the identification of when such circumstances may exist by reviewing where such applications have been granted or refused.

In101115379, Ryan-Froslie J.A. provided the following helpful

summary: [14] A rehearing has been granted: (

i) where a relevant point of law involving the construction of a statute was not argued (Shaw vRegina (City), (MB CA), [1945] 1 WWR 433 (Sask CA)); (ii) where a subsequent decision of a higher court might affectthe outcome (Harrison v Harrison, [1955] 1 Ch 260); and (iii) when a relevant statutory provision that governs the case was not broughtto the Court’s attention (Glebe Sugar Refining Company, Limited v Trustees of Part and Harbours of Greenock, [1921] 2 AC 66). [15] A rehearing was not granted: (

i) on the basis the decision was wrong (Storey at para 8; [Borowski v Stefanson, 2015 SKCA 140,472 Sask R 107] at para 9; Whatcott v Canadian Broadcasting Corporation, 2016 SKCA 51, 395 DLR (4th) 294 [Whatcott]; HDLInvestments Inc. v Regina (City), 2008 SKCA 59 at para 3); (ii) where counsel sought further

interpretation of a contract on a questionalready covered in the judgment (Canadian Utilities Ltd. v Mannix Ltd. (1960), (AB CA), 21 DLR (2d) 269 (Alta CA));(iii) on the ground the decision was not warranted on the evidence (Metx v Marshall (1922), (SK CA), [1923] 1 DLR367 (Sask SC)); (iv) where there was a dissent or split decision of the Court (Armco at 625); (

v) because of the public importance of thedecision (Storey at para 10; Armco at 626); (vi) on the basis the judgment created uncertainty in the law (Storey at para 9); (vii) where thedecision established new facts giving rise to other claims (Peter Ballantyne Cree Nation v Canada (Attorney General), 2017 SKCA 5,[2017] 5 WWR 84); or (viii) where there was an alleged error in the judgment (Chutskoff Estate v Ruskin Estate, 2011 SKCA 47). [5] Finally, in this brief review of basic principles, we would reiterate, as Ryan-Froslie J.A. observed, that the authorities “do not standfor the proposition that, in the circumstances identified in each of those cases, a rehearing will always either be granted or denied”.Instead, “the cases underscore the discretionary nature of the relief requested and illustrate the difficulty of obtaining a rehearing”(101115379 at para 16). [6] On the facts in Double Diamond, the applicant’s request for a rehearing was dismissed because it was found to be “asking fora rehearing at which it would completely reframe the issues in this appeal from what had been presented by it in first instance”.

This, theCourt concluded, would “offend, in the most basic way, the principle of the finality of judgments” (at para 16). B. Application [7] Ms. Yashcheshen has offered many reasons for requesting a rehearing. However, they can be distilled into a few maincategories. [8] Some of the reasons Ms. Yashcheshen gives for wanting a rehearing are grounded in a misunderstanding of the result of theAppeal Decision. For example, Ms.

Yashcheshen’s amended notice of motion states that the order under appeal “acts as an absolute bar on[her] right to bring proceedings, practice law or participate in access to justice initiatives”. However, the issued order provides that she“shall not institute any proceedings in the Court of Queen’s Bench for Saskatchewan without first seeking leave of said court” (emphasisadded). Very clearly, this does not create the absolute bar that Ms. Yashcheshen describes. Instead, it requires her to seek the permission ofthe court before initiating new proceedings. [9] Ms.

Yashcheshen complains that she was denied procedural fairness at the hearing of her appeal. She says, for example, thatthis Court “allowed submissions from the respondents while overlooking [her] arguments”. There is no merit to this idea.Ms. Yashcheshen filed a written factum, which was read by the Court. She gave oral submissions, which were heard by the Court. TheAppeal Decision addresses the central arguments she made to the Court. Ms. Yashcheshen achieved success on several issues. She nodoubt hoped to receive an even more favourable outcome to her appeal.

However, the fact that she did not provides no support for theconclusion that the appeal was procedurally unfair. [10] Ms. Yashcheshen points to several arguments that she hopes to make at a rehearing that were not made by her earlier in theseproceedings. For example, she says that the respondents lacked clean hands. The gist of Ms. Yashcheshen’s action against Teva andSaskatchewan is that she suffered damages because of her addiction to opioids, which she attributes to the respondents.

She says sheshould be given a rehearing to advance the argument that the respondents were responsible for the opioid crisis and this “speaks to thecredibility of the [respondents], and their abuse of process”. She does not directly explain how this relates to the issues in her appeal.

Leaving this aside, her request that this forms the proper basis for a grant of a rehearing is answered by the fact that this argument was notadvanced in the earlier proceedings – either in the Court of Queen’s Bench or in the appeal hearing. [11] In a like vein, Ms. Yashcheshen seeks a rehearing so that this Court can refer to an affidavit sworn by Nadine Yashcheshen onSeptember 17, 2019. However, that affidavit was before the Court in the earlier appeal hearing in the supplemental appeal book filed bythe respondents. No reference was made at that time by Ms.

Yashcheshen to that affidavit, either in her factum or in oral argument. [12] Mostly, Ms. Yashcheshen asks for a rehearing so she can explain to the Court why the Appeal Decision was wrongly decided.In her written brief, she states that her “main argument is that the Court misapprehended the difference between vexatious factors, markersand legal principles” applicable to the declaration of an individual as a vexatious litigant. In a like vein, in oral argument, she repeatedlyemphasized that she wanted the opportunity for a rehearing so this Court can “overrule” Sheppard v Sheppard, 2003 SKQB 461, 243 SaskR 79.

However, this argument was already before this Court. This is directly reflected by the statement in the Appeal Decision that the“Sheppard factors referred to by [Ms. Yashcheshen] are the same as the factors identified in [Re Lang Mitchener and Fabian (1987), (ON SC), 37 DLR (4th) 685 (Ont SC (H Ct J))] and adopted by this Court in [Barth v Saskatchewan (Social Services), 2021SKCA 41, [2021] 12 WWR 460]” (Appeal Decision at para 100). Ms. Yashcheshen offers other submissions to promote the same idea –that the Appeal Decision was wrongly decided.

This proposition pervades her amended notice of motion and other parts of her brief of law.However, it does not justify a rehearing. [13] At its bottom, Ms. Yashcheshen seeks an opportunity to offer submissions that she believes will be more persuasive on a secondgo-around. As in Double Diamond, Ms. Yashcheshen is asking for “the equivalent of a litigation mulligan or ‘do-over’” (Double Diamondat para 16). This is not a proper basis for an appeal to be reheard. III. CONCLUSION [14] None of the reasons offered by Ms.

Yashcheshen for a rehearing constitute a special or unusual circumstance justifying thegrant of that extraordinary remedy. Her application is dismissed, with costs in favour of each of the respondents. We fix these costs at$800 to each of Teva and Saskatchewan. “Caldwell J.A.” Caldwell J.A. “Leurer J.A.” Leurer J.A.