Regina (City) v Loucks, 2022 SKCA 47

Court of Appeal for Saskatchewan Docket: CACV3865 Citation: Regina (City) v Loucks , 2022 SKCA 47 Date: 2022-04-13 Between: City of Regina Applicant/Respondent (Defendant) And Gordon Loucks Respondent/Appellant (Plaintiff) And Tiffany Kleppe and Dale Johnson Respondents/Non-Parties to Appeal (Defendants) Before: Schwann, Leurer and Tholl JJ.A. Disposition: Application refused in part Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Mr. Justice Leurer The Honourable Mr.

Justice Tholl On application from: QBG 3155 of 2018, Regina Application heard: March 18, 2022 Counsel: Ashley Dodd for the Appellant Gordon Loucks on his own behalf Schwann J.A. I. INTRODUCTION [ 1 ] The City of Regina applies under Rule 46.1 of The Court of Appeal Rules to quash an appeal brought by Gordon Loucks for being manifestly without merit. If this Court declines to quash Mr. Loucks’s appeal, the City seeks an order requiring Mr. Loucks to perfect his appeal within 14 days and, should he fail to do so, dismiss it for want of prosecution. II. BACKGROUND [ 2 ] Mr.

Loucks and the City have been at odds for many years over the pigeon population on his property. As I understand the facts, some of the pigeons (described by Mr. Loucks as doves ) are show or racing pigeons or both. However, he also had common feral pigeons in his yard, which he maintains were unwanted and that he has no ability to control them. [ 3 ] Prompted by complaints from Mr. Loucks’s neighbours, the City took enforcement action to address the expanding pigeon population on his property.

Acting pursuant to City of Regina, Bylaw No 2016-02, The Regina Community Standards Bylaw (24 February 2021) [ Bylaw ], one of the City’s bylaw enforcement officers issued a compliance order on January 31, 2017, directing Mr. Loucks “to bring the property into compliance with the Bylaw by making the necessary repairs” by March 1, 2017 [order]. The specified repairs identified in the order were as follows: PROPERTY 1

Part I – General A. Vermin, Rodents, Pigeons, and Insects • All buildings and structures shall be maintained to prevent the entry of vermin, rodents, pigeons, and insects. Required Repairs : Ensure all structures on the property are secured to prevent the entry of pigeons. • All yards, buildings, and structures shall be kept free of infestations of vermin, rodents, pigeons, and insects.

Required Repairs: Remove all pigeons from property. • Any condition liable to cause the presence of vermin, rodents or insects shall be removed from yards, buildings or structures and when yards, buildings or structures are infested, all measures shall be taken to destroy the vermin, rodents, pigeons, or insects immediately, and preventative measures undertaken to prevent the reappearance of such vermin, rodents and insects. Required Repairs: Ensure all pigeons are removed from the property, and take all necessary measures to keep pigeons from returning. [ 4 ] The order went on to provide that if Mr.

Loucks failed to comply with the terms of the order by the stipulated compliance

date, the City would take the necessary measures to remedy the contravention and add the cost of doing so to his property taxes. [ 5 ] Mr. Loucks appealed the order to the Regina Appeal Board [RAB], as was his right pursuant to s. 329(1) of The Cities Act , SS 2002, c C-11.1 . The minutes from a meeting of the RAB held on March 14, 2017, contain a record of all of the s. 329 appeals heard by that tribunal on that date, with Mr. Loucks’s appeal identified as one such appeal.

As revealed by those minutes, the RAB confirmed the order but varied it in two important respects, so as to read, “AND IT WAS RESOLVED, that the Order to Comply be confirmed after modifying the date from March 1, 2017 to April 13, 2017 and amending the Order to allow the appellant the opportunity to remove the show and racing pigeons from his property to a properly sanctioned and maintained property or enclosed bird sanctuary” (emphasis added, meeting of Regina’s Appeal Board, 14 March 2017 [revised order]). [ 6 ] Mr. Loucks was informed of the RAB’s decision by letter dated March 17, 2017. [ 7 ] Mr.

Loucks says that, although the revised order gave him until April 13, 2017, to comply, (that is, to remove the show and racing pigeons from his property beforehand), the City proceeded to remove all of the birds (feral pigeons, along with show and racing pigeons) from his property on March 17, 2017. He claims they were taken to Alberta and destroyed. [ 8 ] Mr. Loucks appealed the revised order to the Court of Queen’s Bench, pursuant to s. 329(4) of The Cities Act on April 17, 2017. The grounds of appeal specified in his originating application were twofold: (

a) he was denied fair process by being prevented from properly presenting his oral argument at the March 14, 2017, RAB hearing, and (

b) the RAB reasons were inadequate. [ 9 ] Mr. Loucks’s appeal came before Chow J. in Chambers on May 16, 2017. In a written fiat, Chow J. determined as follows ( Loucks v Regina (City) (9 June 2017) Regina, QBG 949 of 2017 (Sask) [ Chow Decision ]): (a) s. 329(4) of The Cities Act required Mr. Loucks to file his appeal with the Court of Queen’s Bench “within 30 days after the date the decision is made” ( s. 329(4) ); (

b) the RAB decision was made orally on March 14, 2017, and not March 17, 2017, as submitted by Mr. Loucks, (

c) the 30-day appeal period expired on April 13, 2017; and (

d) as Mr. Loucks filed his appeal on April 17, 2017, it was beyond the 30-day period prescribed by The Cities Act . [ 10 ] Relying on the decision in Egware v Regina (City), 2016 SKQB 388 , 56 MPLR (5th) 35, Chow J. concluded the Court of Queen’s Bench had “no authority to enlarge the appeal period provided for in the statute” ( Chow Decision at 2), and, accordingly, dismissed Mr. Loucks’s appeal for want of jurisdiction. [ 11 ] No appeal was taken from the Chow Decision . [ 12 ] On November 6, 2018, Mr.

Loucks filed a statement of claim against the City and two other individual defendants in which he alleged “emotional health, lost income, future earning potential, harassment, stalking, animal cruelty and abuse” caused by the defendants. Mr. Loucks filed an amended statement of claim several months later, making much the same allegations. [ 13 ] The City applied to the Court of Queen’s Bench to strike Mr.

Loucks’s statement of claim (as amended) pursuant to Rule 7-9 of The Queen’s Bench Rules for disclosing no reasonable cause of action, being frivolous and vexatious and as an abuse of process. [ 14 ] The Chambers judge who heard the matter agreed with the City’s position. He found two bases on which the claim should be struck: Loucks v Regina (City) (21 June 2021) Regina, QBG 3155 of 2018 (Sask) [ Chambers Decision ]. The Chambers judge framed Mr. Loucks’s claim as little more than an attempt to relitigate the same issue that had previously been determined by the RAB.

The Chambers judge next examined whether the claim disclosed a reasonable cause of action. On this point, he concluded the only possible causes of action evinced by Mr. Loucks’s statement of claim were harassment, stalking and animal cruelty, but that none of those matters were recognized torts in Saskatchewan. He also found Mr. Loucks’s claim to be defective for failing to plead sufficient facts to substantiate his allegations. For those two reasons, the Chambers judge exercised his discretion in favour of striking Mr.

Loucks’s claim for disclosing no reasonable cause of action. [ 15 ] The Chambers judge went on to consider whether Mr. Loucks’s claim amounted to an abuse of process within the meaning of Rule 7-9(2)(e). In light of the earlier Chow Decision , and the applicable jurisprudence, he concluded, “the claim is an attempt to relitigate the same dispute which was addressed in another forum and is, therefore, an abuse of process” ( Chambers Decision at para 32). [ 16 ] The Chambers judge declined to strike the claim against the two individually named defendants. [ 17 ] Mr.

Loucks has appealed the Chambers Decision to this Court. III. APPLICATION TO QUASH THE APPEAL [ 18 ] The City applies to quash Mr. Loucks’s appeal pursuant to Rule 46.1 of The Court of Appeal Rules , which provides as follows:

PART XII.1 Prohibiting Vexatious Proceedings 46.1

(1) On application by any party to an appeal, the court may make an order quashing an appeal on the ground: (

a) it discloses no right of appeal;

(

b) it is frivolous or vexatious; (

c) it is manifestly without merit; or (

d) it is otherwise an abuse of the process of the court.

(2) Before an order is made under Subrule (1), the appellant shall be given an opportunity to be heard in accordance with

Part XIV. [ 19 ] In broad-brush terms, the City says the appeal should be quashed because (

a) the notice of appeal fails to identify any error of law or fact made by the Chambers judge, (

b) it is little more than a blatant attempt by Mr. Loucks to relitigate the revised order, (

c) an appeal from the revised order was disposed of by the Chow Decision , and (

d) therefore Mr. Loucks’s appeal has no chance of success. [ 20 ] This Court’s decision in Jardine v Hyggen , 2018 SKCA 38 , [2018] 7 WWR 713 [ Jardine ], sets out the approach to be taken when confronted with an application to quash an appeal for being “manifestly without merit”. After reviewing the case law from elsewhere in Canada, Richards C.J.S. found three key points that emerge from the jurisprudence, including that the authority to quash an appeal for being manifestly without merit should be exercised only exceptionally (at para 20).

Most saliently for purposes of the present application, however, Richards C.J.S. noted that the threshold to quash an appeal as being manifestly without merit is high and that “an appeal that is manifestly without merit is one where it is entirely clear the appeal is destined to fail and where, conversely, there is no possibility that any ground of appeal might succeed” (emphasis added, at para 19).

I interpret the foregoing passage to suggest that if there is even one ground of appeal that might succeed or, to put it in other terms, if there is one ground of appeal that is not manifestly without merit, the appeal must be allowed to proceed. [ 21 ] Indeed, in Jardine this Court dismissed the respondent’s application to quash the appeal. While the Court found two of the three grounds of appeal to be manifestly without merit, the Court was unable to conclude that one of the grounds was “so weak as to warrant [the] appeal being quashed” (at para 25).

For that reason, the Court dismissed the respondent’s application to quash the appeal. [ 22 ] Although the City has urged this Court to narrow the scope of Mr. Loucks appeal by allowing only the facially meritorious grounds to proceed, this position is akin to asking the Court to pick and choose the grounds that can go forward and quash those we consider to be unmeritorious.

Based on the plain wording of Jardine , and the cases that refer to it, I have been unable to locate any authority that would permit this Court to parse an appellant’s grounds of appeal and quash those that are manifestly without merit, as suggested by the City. As I read Rule 46.1, either the appeal is quashed, or it is not. IV. THE GROUNDS OF APPEAL [ 23 ] Application of the Jardine test engages an examination of each of the five grounds asserted by Mr. Loucks in his notice of appeal. By way of conclusory observation, I find none of his grounds of appeal particularly meritorious, save for one.

Let me explain. [ 24 ] The first ground of appeal takes issue with the City’s purported submissions to the Chambers judge to the effect that the individually named defendants were noted for default of defence. He says they were not, and that this submission was erroneous. However, whether the individually named defendants were or were not noted for default of defence was completely immaterial to the Chambers judge’s reasoning and the bottom-line result. He was asked to strike the claim as against the City alone. The City did not ask to have Mr.

Loucks’s claim struck against the individually named defendants nor did they apply on their own behalf to have his claim against them struck. [ 25 ] In large measure, Mr. Loucks’s second and third grounds of appeal take issue with the terms of the original order and the legal and evidential basis for the City to have made the order in the first place. In this respect, I understand Mr. Loucks to challenge whether an inspection of his property had even taken place prior to the order being made and the scope of the Bylaw , which he says only applies to feral and not show or racing pigeons.

With respect, those complaints relate to the legality of the order itself, which was an issue properly before the RAB and, then, on appeal to the Court of Queen’s Bench. Those matters were dealt with and dismissed by Chow J., albeit on jurisdictional grounds. [ 26 ] In his fourth ground of appeal, Mr. Loucks appears to take issue with whether an appeal was properly convened before and decided by the RAB on March 14, 2017 (he characterizes the proceedings as a city council meeting instead). This meant that he was “never given the opportunity to appear before the Board”. Respectfully, Mr.

Loucks’s assertion is directly at odds with the record: (

a) Mr. Loucks was told that his appeal would be heard by the RAB on March 14, 2017; (

b) the minutes of the March 14, 2017, meeting of the RAB included a list of the s. 329 appeals heard on that date, with Mr. Loucks’s appeal being one such matter; and (

c) finally, he was informed of the RAB’s decision (albeit described as a resolution) by the RAB Secretary and advised of his right of appeal to the Court of Queen’s Bench under s. 329. Since s. 329(4) envisions an appeal being taken to the Court of Queen’s Bench from a decision of “a local appeal board” made under s. 329(1) , it stands to reason that this was one of those decisions. [ 27 ] Next, Mr.

Loucks asserts that a decision on the merits has never been rendered because Chow J. dismissed his appeal on procedural grounds i.e., a failure to meet the timeline to appeal, which meant he did not grapple with the substantive arguments, let alone dismiss his appeal on that basis. This ground of appeal represents a fundamental misunderstanding of (

a) what Chow J. decided and (

b) the concept of jurisdiction. With respect, Chow J. could not have been clearer: “The evidence establishes that the appellant, Mr. Loucks failed to commence his appeal within the period expressly provided for in The Cities Act and the court does not enjoy the jurisdiction to enlarge that appeal period. As such, Mr. Loucks’ within appeal is dismissed ” (emphasis added, at 3). While the appeal before Chow J. turned on the question of jurisdiction, a finding that the Court of Queen’s Bench lacked jurisdiction to hear Mr. Loucks appeal meant that he could

not proceed with the appeal on its merits. The matter was over. [ 28 ] Putting all of that aside, the notice of appeal also alleges the following error: “The City only gave 3 days & destroyed my business”. In oral argument, Mr. Loucks explained that his claim is intended to challenge the City’s alleged actions on March 17, 2017, which he says the Chambers judge failed to understand. That is to say, that, when properly understood in the context of the Bylaw , the revised order did not authorize the removal of the domesticated pigeons or doves, as Mr. Loucks sometimes called them.

It is not easy to find this latter submission clearly grounded in Mr. Loucks’s notice of appeal: although it does state that the “City Bylaw are governed only for feral pigeons not registered stock”. Because Mr. Loucks is self-represented, and in any event, it is open to Mr. Loucks to seek an amendment to his notice of appeal, I find it appropriate to consider the City’s application to strike the notice of appeal on the basis that this issue is raised in the appeal. [ 29 ] Although not eloquently put, and certainly not framed as an error of law on the part of the Chambers judge, Mr.

Loucks could be interpreted to argue that the Chambers judge erred in concluding his claim pleaded no reasonable cause of action when, in fact, it took issue with how the City had enforced the revised order. Understood in this way, Mr. Loucks is not seeking to challenge the revised order. Instead, so the argument would be, he submits the City incorrectly or unlawfully implemented the revised order. In this respect, the amended statement of claim speaks to how the City had improperly destroyed his show and racing pigeons and did so before he was given an opportunity to remove them from his property.

Viewed in this light, and without resolving the issue, Mr. Loucks could be taken to have pleaded (

a) a conversion of property type of claim (i.e., the City destroyed his show and racing pigeons), or (

b) misfeasance in public office (or both), i.e., the City enforced the revised order against birds that were not subject to it and, even if the order applied to his domesticated stock, it took enforcement measures before the period for compliance had expired. Mr. Loucks’s claim goes on to discuss how the City’s action has negatively affected his emotional well-being and caused him financial loss. To conclude, I am not satisfied that this ground of appeal is so weak as to meet the “manifestly without merit” threshold that is required by Rule 46.1. V. CONCLUSION [ 30 ] The City’s application to quash Mr.

Loucks’s appeal for being manifestly without merit must fail. While most of Mr. Loucks’s grounds of appeal appear to be quite weak, I find myself unable to conclude that, in the words of Jardine , “there is no possibility that any ground of appeal might succeed” (at para 19). However, for appeal purposes, I would reframe his grounds of appeal in this way: (

a) Did the Chambers judge err in concluding that the entirety of the issues raised by Mr. Loucks’s claim against the City failed to disclose a reasonable cause of action? (

b) Did the Chambers judge err in concluding that Mr. Loucks’s claim had already been resolved by the Chow Decision and that his statement of claim was therefore an abuse of process? [ 31 ] The City’s alternate application for perfection is allowed. Mr. Loucks shall serve and file his appeal book and written argument or factum by no later than 4:00 p.m. on May 27, 2022. If Mr. Loucks fails to comply with this order, the City has leave to apply to have his appeal dismissed for want of prosecution. [ 32 ] Given the mixed results on the City’s application, I decline to make an order for costs. [ 33 ] One final note.

In the course of hearing argument on the City’s application to quash the appeal, it became clear to the panel that Mr. Loucks has some difficulty understanding the legal complexities of the issues at hand and properly expressing his argument. The panel encouraged him to retain legal counsel should his appeal proceed. We reiterate that recommendation. “Schwann J.A.” Schwann J.A. I concur. “Leurer J.A.” Leurer J.A. I concur. “Tholl J.A.” Tholl J.A.