Yashcheshen v Janssen Inc., 2022 SKCA 140

Court of Appeal for Saskatchewan Docket: CACV3824 Citation: Yashcheshen v Janssen Inc. , 2022 SKCA 140 Date: 2022-12-06 Between: Alicia Yashcheshen Appellant (Plaintiff/Respondent) And Janssen Inc., Janssen-Ortho Inc. and Johnson & Johnson Inc. Respondents (Defendants/Applicants) Before: Caldwell, Schwann and McCreary JJ.A. Disposition: Appeal dismissed Written reasons by: The Court On appeal from: 2020 SKQB 188 , Saskatoon Appeal heard: October 31, 2022 Counsel: Alicia Yashcheshen on her own behalf Jason W. Mohrbutter and Allison L. Graham for the Respondents The Court I.

OVERVIEW [ 1 ] Although we find that the Chambers judge in Yashcheshen v Canada (Attorney General) , 2020 SKQB 188 [ QB Decision ], misinterpreted Rule 7-9(2)(

b) of The Queen’s Bench Rules , we dismiss Alicia Yashcheshen’s appeal from the order striking her statement of claim against Janssen Inc. and Johnson & Johnson Inc. [respondents]. [ 2 ] On the facts and the law, Ms. Yashcheshen’s statement of claim is a frivolous pleading within the meaning of Rule 7-9(2)(

b) and, therefore, the order striking it under the QB Decision is the correct result in response to the respondents’ application. We award one set of costs in the fixed amount of $500 to the respondents. II. BACKGROUND [ 3 ] In July of 2018, Ms. Yashcheshen filed a statement of claim against the respondents alleging that she suffered from ongoing damages as a result of the “lingering effects” of her addiction to Tramacet, a pharmaceutical manufactured and marketed by the respondents.

In the QB Decision , the Chambers judge found that, on the “most generous discoverability date available to her” under s. 6(1) of The Limitations Act , SS 2004, c L-16.1 , Ms. Yashcheshen had discovered her claims at least seven years before she filed her statement of claim (at para 47). He reached that finding of fact after accepting Ms. Yashcheshen’s affidavit evidence and on the basis of her pleadings. [ 4 ] As a two-year limitation period applied pursuant to s. 5 of The Limitations Act , the Chambers judge concluded that it was “plain, obvious and beyond reasonable doubt” that Ms.

Yashcheshen’s action could not succeed at trial. He remarked that the claims were “beyond redemption” and that the statement of claim was the “very definition of a vexatious pleading” (at para 50). He therefore struck the statement of claim and awarded $2000 in costs to the respondents. III. PRELIMINARY MATTERS [ 5 ] In advance of this appeal, Ms. Yashcheshen brought applications pursuant to Rules 38 (additional arguments) and 59 (fresh evidence) of The Court of Appeal Rules . [ 6 ] In explanation of her application under Rule 38, Ms.

Yashcheshen says that she has “substantial difficulties in [her] ability to communicate, manage emotions, cognitive tasks, and social skills” and therefore her factum “may not properly communicate [her] position in this case”. Accepting that the additional arguments would serve to clarify her position, and in the absence of obvious prejudice to the respondents, we orally granted leave to Ms. Yashcheshen to present additional arguments in the appeal hearing.

However, as the respondents point out, we note that the additional arguments we received are predicated on evidence that is not in the record. [ 7 ] As to her Rule 59 fresh evidence application, some of the proffered evidence is already on the court record (e.g., a flysheet fiat) but much of it (e.g., a 2018 product monograph, 2008 “prescribing information”, materials from 2018 about similar claims in British Columbia, an access to information request made in May of 2019, etc.) could have been adduced, with the exercise of due diligence, at the Chambers hearing on August 8, 2019, and Ms.

Yashcheshen has not satisfactorily explained why it was not. The remainder of the new evidence (which includes excerpts from the decision in State ex rel Hunter v Purdue Pharma LP , No CJ-2017-816, 2019 Okla Dist LEXIS 3486 (Okla Dist 26 August 2019) per Balkman J.) post-dates the Chambers hearing and, in some cases, post-dates the QB Decision . On the whole of it, we conclude that the evidence now offered to the Court, if believed and when taken with the evidence adduced at the hearing before the Chambers judge, could not be expected to have affected the result of the strike application.

We therefore deny the Rule 59 application.

IV. ISSUES A. Was the Chambers judge required to adjourn the hearing? [8] In this appeal, Ms. Yashcheshen first argues that the Chambers judge erred when he failed to adjourn the hearing of therespondents’ strike application. She also alleges that he exhibited bias toward her, failed to accommodate her disability, and failed to actjudicially in any number of ways. None of these latter arguments are borne out by the record. We reject them all. [9] As we understand what occurred at the hearing, Ms.

Yashcheshen said she did not “feel well today” and then “angrily” quitthe courtroom in the middle of the Chambers judge’s consideration of her oral request for an adjournment (QB Decision at paras 9-11).She exited before the respondents had spoken to her request and before the Chambers judge could rule on it. She did not return.Remarkably, Ms.

Yashcheshen had earlier that week quit another courtroom over which the same Chambers judge had been presidingwhen hearing an application in a different claim of hers (see Yashcheshen v Canada (Attorney General), 2020 SKQB 185, referred to asYashcheshen in the QB Decision). [10] In the circumstances, after reviewing his authority to do so (citing Rules 1-5(2)(

h) and 6-16(4) of The Queen’s Bench Rules;Berger v Saskatchewan (Financial and Consumer Affairs Authority), 2019 SKCA 89; Prassad v Canada (Minister of Employment andImmigration), (SCC), [1989] 1 SCR 560; Jacobsen v Hainstock, 2012 SKQB 192, 397 Sask R 32; and Burke v Nolin(1908), 1 Sask LR 185 (CA) [Burke]), the Chambers judge proceeded with the hearing. In the QB Decision, he explained: [17] As in Yashcheshen, Ms. Yashcheshen quit the courtroom before I had an opportunity to rule on her request for an adjournment.

Icannot say with any assurance that I would have granted it; however, any further discussion respecting an adjournment was aborted whenMs. Yashcheshen angrily left the courtroom. [18] I chose to continue with the hearing in Ms. Yashcheshen’s absence, however, because, at least before me, she demonstrated apattern of behaviour that if matters did not appear to be going her way, she voluntarily abandoned the proceedings. Here already threeprevious adjournments requested by her had been granted. Yet, Ms.

Yashcheshen knowing that a fourth request may not succeed,nevertheless, chose to appear without any documentation to assist her, in the event her request was denied. Plainly, she came to court withlittle, if any, intention to participate meaningfully in the hearing should her adjournment request be denied. [19] In my opinion, adjourning Janssen’s application in the face of her contemptuous behaviour would not only have enabled it, itwould also have condoned an abuse of this Court’s process.

Moreover, counsel for the applicants had travelled from Regina to Saskatoon,were present in the courtroom, and prepared to argue this application. So, we proceeded. [11] From the foregoing excerpts of the QB Decision and a transcript (which the judge had had prepared and from which he quotedin his decision), we conclude that the Chambers judge did not deny Ms. Yashcheshen’s request for an adjournment. She pre-empted hisdecision-making on that point by abruptly quitting the courtroom.

This, as the Chambers judge well appreciated, brought thecircumstances under the rubric of the court’s inherent jurisdiction to control its process and to prevent abuse of that process by litigants.

Inanswering the allegations of error in this regard, we echo the Court in Gutenberg v Hunter, 2005 SKCA 127 at para 6, 275 Sask R 81,affirming 2004 SKQB 373, an appeal from a matter in which a trial had proceeded in similar circumstances, where Sherstobitoff J.A.wrote: “While the condition of the appellant must be of concern, the evidence did not indicate any inability to either instruct counsel or torepresent himself in court. In the circumstances, the trial judge had little choice but to do exactly what she did”. [12] Furthermore, even if we interpret the Chambers judge’s decision to proceed as a denial of Ms.

Yashcheshen’s request for anadjournment, we find no basis in the record or under the law to interfere with it. In terms of procedural fairness, the fundamental issue inthe context at hand was whether Ms. Yashcheshen was so unwell that she required an adjournment. Ms. Yashcheshen, in her additionalarguments before this Court, submitted that the principle of audi alteram partem had been breached, but there is no issue in this case as towhether she had had a reasonable opportunity to respond to the evidence and arguments put forward by the respondents.

They filed theirapplication on February 25, 2019, and it was set for hearing on March 7, 2019, but was adjourned to April 16, 2019, by consent. Ms.Yashcheshen obtained a subsequent adjournment to May 14, 2019, so she could review the affidavit evidence filed by the respondents.She obtained a third adjournment to August 2, 2019, to allow her to amend her statement of claim (and for the respondents to file replymaterials, if they so chose). Prior to the hearing on August 8, 2019, Ms.

Yashcheshen had filed four affidavits and her written submissionsin response to the respondents’ application. [13] As the Chambers judge understood, procedural fairness was an issue in this context only to the extent that Ms. Yashcheshenmight be too unwell to proceed. In that regard, like it was in Burke, it was fatal to Ms. Yashcheshen’s adjournment request that she hadfiled no evidence about the state of her health and had made no oral or written submissions to support her bare claim of illness (orotherwise in support of her request).

As we read the relevant parts of the transcript of the hearing, she quit the courtroom before the judgecould make inquiries of her in that regard, leaving him with no evidence and no argument on her request. In these circumstances, weconclude that Ms. Yashcheshen utterly failed to discharge the onus, which was squarely on her, to establish to the Chambers judge’ssatisfaction that it would be procedurally unfair to proceed with the hearing at the time it was scheduled to be heard. Therefore, even if hecan be said to have denied Ms.

Yashcheshen’s request for an adjournment, the Chambers judge did not err in doing so. [14] We dismiss the grounds of appeal relating to the Chambers judge’s handling of the adjournment request. B. Did the Chambers judge err when he struck the statement of claim? [15] Ms. Yashcheshen appeals against the result of the QB Decision (i.e., the striking of her statement of claim) by alleging that theChambers judge committed multiple errors of law and fact. Without enumerating them, we reject each of the allegations that the judgeerred by failing to find that the respondents were liable to Ms.

Yashcheshen under the claims set out in her pleadings. He was not calledupon to make those determinations.

[16] The Chambers judge was required to make findings of fact and to apply the law under Rule 7-9(2)(

b) relevant to whether theaction was barred by the expiry of the applicable limitation period and, if so, whether the statement of claim ought to be struck as apleading that is scandalous, frivolous or vexatious. Although strike applications under Rule 7-9(2)(

b) often engage with the merits of theplaintiff’s claims (see Solgi v College of Physicians and Surgeons of Saskatchewan, 2022 SKCA 96 at para 43, 473 DLR (4th) 421; andSagon v Royal Bank of Canada (1992), (SK CA), 105 Sask R 133 at para 18 (CA) [Sagon]), the relevant merits ofMs. Yashcheshen’s action were narrowed to the extent that her claims informed the issues of discoverability and the applicable limitationperiod. [17] In her written submissions to the Chambers judge, Ms.

Yashcheshen clarified that the reference in her statement of claim to the“tolling of the limitation period” was in regard to s. 7(1) of The Limitations Act, which provides for a 15-year limitation period. However,in her argument in this appeal, Ms. Yashcheshen submitted that the two-year limitation period had been suspended under s. 17(

a) of TheLimitations Act because the respondents allegedly concealed information about Tramacet and its addictive qualities in part by referring toaddiction to it as “pseudoaddiction”. We acknowledge that a limitation period may be suspended under s. 17(a) “during any time in whichthe person against whom the claim is made…wilfully conceals from the claimant the fact that injury, loss or damage has occurred, that itwas caused by or contributed to by

an act or omission or that the act or omission was that of the person against whom the claim is made”.However, this argument was not put to the Chambers judge in Ms. Yashcheshen’s brief of law. Further, Ms. Yashcheshen has pleaded asfact that she was first prescribed Tramacet in 2006, became “quickly addicted” to it, entered treatment for her addiction to it in 2007, andovercame that addiction in 2011. On her pleadings and her own evidence of her addiction, the Chambers judge found that Ms.Yashcheshen knew that injury, loss or damage had occurred and that it had been caused by or contributed to by

an act or omission of therespondents in or about 2011 at the latest. In light of all of this, the Chambers judge did not err by failing to consider whether thelimitation period had been suspended under s. 17 of The Limitations Act. [18] Ms. Yashcheshen also complained to the Court that the Chambers judge did not address any of the arguments she had made inher written response to the strike application. In that regard, Ms. Yashcheshen had argued—without making an application—that therespondents’ affidavit materials and parts of their statements of defence should be struck as being scandalous.

She also asserted that therespondents’ application brought the administration of justice into disrepute, that they had an ulterior motive for seeking to strike herclaims, and that they had acted in bad faith by appending emails she had sent to them to the affidavits they had filed. In terms of Rule 7-9(1), she argued that her statement of claim disclosed reasonable causes of action, which addresses Rule 7-9(1)(

a) and is an inquiry thatdiffers from whether a claim is scandalous, frivolous or vexatious. While Ms. Yashcheshen also submitted in her brief to the Chambersjudge that she ought to be allowed to amend her statement of claim to add the tort of deceit, she wrote that she would “show the court” thebasis for this proposed new claim “in chambers” and, as noted, she walked out without doing so. Having reviewed Ms.

Yashcheshen’swritten submissions, we conclude that the Chambers judge made no error by not expressly addressing them. [19] In this case, we find that the Chambers judge correctly concluded that it was “plain, obvious and beyond reasonable doubt” thatMs. Yashcheshen’s action could not succeed at trial due to the expiry of the limitation period. His finding that the action was “beyondredemption” by reason of a long-expired limitation period withstands appellate scrutiny (at para 5).

However, while the Chambers judgestruck the statement of claim because he found it was the “very definition of a vexatious pleading” (at para 50), that conclusion isincorrect. [20] In the QB Decision, the Chambers judge set out the principles that underpin Rule 7-9(2)(

b) by quoting from Siemens v Baker,2019 SKQB 99 at paras 23-25, [2019] 5 CTC 129 [Siemens], which states that a pleading is frivolous where it is “plain and obvious” or“beyond reasonable doubt” that the claims it advances are “groundless and cannot succeed” (see also Harpold v Saskatchewan(Corrections and Policing), 2020 SKCA 98 at para 63); whereas Siemens describes vexatious pleadings as those that have been“commenced for an ulterior motive (other than to enforce a true legal claim) or maliciously for the purpose of delay or simply to annoy thedefendants” (at para 24); the difference being that a plaintiff’s motives are relevant to the determination that a pleading is vexatious(Gabrysh v Milenkovic, 2009 SKQB 302 para 20, 339 Sask R 251; see also Paulsen v Saskatchewan (Ministry of Environment), 2013SKQB 119 at para 46, 418 Sask R 96). [21] It is clear that the Chambers judge relied on and applied the indicia of a frivolous pleading from Siemens but erroneouslycharacterised Ms.

Yashcheshen’s statement of claim as a vexatious pleading (see Hope v Pylypow, 2015 SKCA 26 at para 32, 457 Sask R55). Notwithstanding this misdescription, we find no error in the Chambers judge’s determination that it was plain and obvious that Ms.Yashcheshen’s action could not succeed because it was statute-barred. [22] We reach that conclusion in part because the Chambers judge drew principally on Ms.

Yashcheshen’s own, uncontradictedevidence when making the relevant findings of fact and when drawing inferences from the facts he found, and we can see no palpable andoverriding error in those findings or in the inference drawing process. As the Chambers judge found, the plain fact is that Ms.Yashcheshen pleaded and filed evidence to the effect that she had become aware that she had suffered damages as a result of her addictionto the respondents’ product—at the latest—seven years before she filed her statement of claim.

Further, the Chambers judge committed noerror of principle under s. 6(1) of The Limitations Act when reaching his findings on the issue of discoverability. In the result, theChambers judge correctly concluded that it was obvious that a two-year limitation period applied to Ms. Yashcheshen’s claims under s. 5of that Act. [23] In short, we agree with Ms.

Yashcheshen that the Chambers judge made no findings that support the characterisation of herclaim as being vexatious in the sense of it being ill-motivated, malicious or vexing, or that it failed to advance a known cause of action.However, under the law he cited and on the facts he found, Ms. Yashcheshen’s statement of claim was indeed a frivolous pleading, eventhough it was not a vexatious one.

When a pleading is any of “scandalous, frivolous or vexatious”, it is an abuse of process of the court andmay be struck out (Rule 7-9; Sagon at paras 17-18). [24] As the identified error does not go to the result, we dismiss the grounds of appeal relating to the order striking the statement ofclaim pursuant to Rule 7-9(2)(

b) of the QB Rules. C. Did the Chambers judge err by awarding costs to the respondents?

[ 25 ] We are not persuaded to set aside the award of $2000 in costs against Ms. Yashcheshen. The Chambers judge described her behaviour as “contemptuous” and amounting to “contempt for the court’s process” (at paras 19 and 54). Nothing in this appeal has brought that characterisation of the events into question. Considering under The Queen’s Bench Rules and the whole of the context in which the award was made, $2000 is a reasonable exercise of the Chambers judge’s discretion. V.

CONCLUSION [ 26 ] The appeal is dismissed for the foregoing reasons, with one set of costs to the respondents in the amount of $500, inclusive of the Rule 38 and Rule 59 applications. “Caldwell J.A.” Caldwell J.A. “Schwann J.A.” Schwann J.A. “McCreary J.A.” McCreary J.A.