Yashcheshen v Teva Canada Ltd., 2022 SKCA 49

Court of Appeal for Saskatchewan Docket: CACV3663 Citation: Yashcheshen v Teva Canada Ltd. , 2022 SKCA 49 Date: 2022-04-18 Between: Alicia Yashcheshen Appellant (Respondent/Plaintiff/Respondent) And Teva Canada Ltd. Respondent (Non-Party/Defendant/Applicant) And Government of Saskatchewan Respondent (Applicant/Non-party/Non-party) And Attorney General for Saskatchewan Respondent (Intervenor/Non-party/Intervenor) Before: Caldwell, Ryan-Froslie and Leurer JJ.A.

Disposition: Application to adduce fresh evidence is denied; appeal allowed in part Written reasons by: The Honourable Madam Justice Ryan-Froslie In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr. Justice Leurer On appeal from: 2020 SKQB 160 Appeal heard: January 14, 2022 Counsel: Alicia Yashcheshen on her own behalf Amanda Quayle, Q.C. and Robert Carson for Teva Canada Ltd. Noah Wernikowski for the Attorney General for Saskatchewan Michael Morris, Q.C. for the Government of Saskatchewan Ryan-Froslie J.A. I.

INTRODUCTION [ 1 ] Alicia Yashcheshen appeals against a June 3, 2020, Court of Queen’s Bench decision ( Saskatchewan v Yashcheshen , 2020 SKQB 160 , 3 CCLI (6th) 56 [ Chambers Decision ] ).

In that decision, the Chambers judge refused her request for an adjournment; struck her statement of claim as disclosing no reasonable cause of action; struck affidavits filed by her; declared her to be a vexatious litigant pursuant to Rule 11–28 of The Queens Bench Rules [ Rules ]; dismissed her request to find that that Rule violated her s. 15 rights under the Charter ; cancelled all of her fee waiver certificates granted pursuant to The Fee Waiver Act , SS 2015, c F-13.1001 , and ordered costs against her fixed at $400.00. [ 2 ] Ms.

Yashcheshen contends that there was a reasonable apprehension of bias with respect to the Chambers judge who heard the applications and she seeks to adduce fresh evidence in this Court to support that contention. I would dismiss that application. Furthermore, the allegation of bias is wholly unfounded and must be rejected out of hand. [ 3 ] However, in my view, Ms. Yashcheshen’s appeal must be allowed in part. The Chambers judge overlooked an amended statement of claim that had been filed by Ms. Yashcheshen in response to Teva Canada Ltd.’s application to strike her statement of claim.

That amended claim should have been considered when deciding the application to strike. The Chambers judge also erred in striking the affidavits of Dr. Thomas Mitchell as she failed to consider whether his evidence, in whole or in part, falls within the “participating expert” exception to the inadmissibility of opinion evidence. She also failed to consider whether s. 6 of The Fee Waiver Act offends s. 7 of the Charter . Further, in the circumstances of this case, the vexatious litigant order is overly broad. It prevents Ms.

Yashcheshen from not only initiating future actions in the Court of Queen’s Bench without first obtaining leave of that court, but also prevents her from making applications in on-going court proceedings without obtaining leave. The latter order was not justified by the evidence and unnecessarily adds to the time and expense that would normally be required to advance those court proceedings. Finally, the cancellation of all Ms. Yashcheshen’s fee waiver certificates was not justified on the evidence adduced in this proceeding.

Such certificates are issued on an action-by-action basis and, while a certificate may be cancelled following a finding of vexatious conduct by the litigant, the Chambers judge did not consider whether Ms. Yashcheshen had conducted herself in a vexatious manner in each of her on-going court matters where she has the benefit of a fee waiver certificate. II. BACKGROUND [ 4 ] Ms. Yashcheshen commenced an action against Teva, a pharmaceutical manufacturing company, with respect to drugs it had manufactured and sold. Those drugs were prescribed to Ms. Yashcheshen “off label” to treat Crohn’s disease. Ms.

Yashcheshen alleges the drugs caused her irreparable harm and she seeks damages against Teva for negligence.

[ 5 ] Teva brought an application to strike Ms. Yashcheshen’s statement of claim on the basis that it discloses no reasonable cause of action or is scandalous, frivolous, vexatious, or otherwise an abuse of the Court’s process. It also sought to have Ms. Yashcheshen declared a vexatious litigant pursuant to Rule 11–28. It is uncontroverted that Ms. Yashcheshen has initiated a significant number of actions in the Court of Queen’s Bench against various persons and institutions. Some of those actions have been struck. Others have been dealt with at trial or are on-going. [ 6 ] Ms.

Yashcheshen has been granted fee waiver certificates for many, but not all, of the actions that she has instituted. The certificates were granted pursuant to The Fee Waiver Act and entitle Ms. Yashcheshen to file documents with the court without having to pay court fees. [ 7 ] On November 4, 2019, the Government of Saskatchewan commenced an action—QB 2910 of 2019—seeking an order pursuant to s. 6 of The Fee Waiver Act , cancelling all of Ms. Yashcheshen’s fee waiver certificates.

It requested that the application be heard at the same time as Teva’s vexatious litigant application. [ 8 ] In response to these applications, Ms. Yashcheshen filed a notice of constitutional question challenging the validity of Rule 11–28 and s. 6 of The Fee Waiver Act on the basis that the former offends s. 15 of the Charter and the latter offends s. 7. [ 9 ] All of the above applications were heard on January 28, 2020. On that date, Ms. Yashcheshen appeared and requested an adjournment allegedly for health reasons. Teva opposed the adjournment. When the Chambers judge denied the adjournment, Ms.

Yashcheshen requested that the Chambers judge recuse herself based on, what she perceived to be, a conflict of interest. The Chambers judge had worked for the Government of Saskatchewan prior to her judicial appointment. When the Chambers judge refused to recuse herself, Ms. Yashcheshen left the courtroom. The Chambers judge advised her that, if she left, the applications would proceed in her absence. [ 10 ] On June 3, 2020, the Chambers judge rendered a decision in which she struck Ms.

Yashcheshen’s statement of claim against Teva as disclosing no reasonable cause of action, and in addition struck the affidavits of Erin Klus and Dr. Mitchell that had been filed by Ms. Yashcheshen. The Chambers judge dismissed Ms. Yashcheshen’s constitutional challenge to Rule 11–28 and found her to be a vexatious litigant. She ordered that Ms. Yashcheshen could not institute any further proceedings in the Court of Queen’s Bench without first seeking leave of the Court to do so. Such proceedings were identified by her as including statements of claim, originating applications, and “other applications”.

In addition, the Chambers judge ordered that all of Ms. Yashcheshen’s fee waiver certificates be cancelled and that any future fee waiver certificate could only be issued with the permission of a justice of the Court of Queen’s Bench. She ordered Ms. Yashcheshen to pay costs fixed at $400.00—$200.00 for the application to strike and $200.00 for the vexatious litigant application. [ 11 ] Ms. Yashcheshen appeals against the whole of the Chambers judge’s decision.

She also seeks to have fresh evidence admitted in this Court, which she contends supports her allegation of an apprehension of bias on the part of the Chambers judge. I will begin my analysis by addressing the issue of the fresh evidence and the judge’s refusal to recuse herself. III. APPLICATION TO ADMIT FRESH EVIDENCE AND THE ISSUE OF RECUSAL [ 12 ] Ms. Yashcheshen filed an application to adduce fresh evidence in this Court in support of her assertion that the Chambers judge had a conflict of interest given her prior relationship with the Government of Saskatchewan.

It is her position that that relationship created a reasonable apprehension of bias and that the Chambers judge should not have heard the applications. [ 13 ] Ms. Yashcheshen’s application to adduce fresh evidence is intrinsically linked to her assertion that the Chambers judge erred by failing to recuse herself. Accordingly, it is logical to deal with both those matters together. [ 14 ] Ms. Yashcheshen did not file any affidavit evidence in support of her application to adduce fresh evidence. Rather, the material she wishes us to accept as fresh evidence was attached to her written argument.

That material may be summarized as follows: (

a) the August 18, 2006, judgment in 2006 SKQB 385 which shows the Chambers judge as being legal counsel for the Department of Justice (Saskatchewan) prior to her appointment; (

b) page 26160 of the March 1, 2006, transcript from the Milgaard Inquiry, which shows the Chambers judge appeared as counsel for the Government of Saskatchewan prior to her appointment; (

c) an August 11, 2011, thank you letter from the Saskatchewan Police Commission to the Regina Chief of Police signed by the Chambers judge in her then capacity as a director of the Commission; (

d) an October 5, 2012, Government of Canada news release announcing the Chambers judge’s judicial appointment, which indicates that the Chambers judge had been a lawyer with the Saskatchewan Ministry of Justice since 2003, had held various positions with the government, including executive director of Court Services, had been the chair and a board member of the Regina Region RCMP Victim Services and had lectured at the Canadian Police College and at RCMP cadet training programs; (

e) a Canadian Bar Association conference notice, which identifies the Chambers judge as a moderator; (

f) a February 25, 2014, handwritten fiat of the Chambers judge dismissing the application of an allegedly “self-represented” litigant; and (

g) a safety and recall alert published by the Government of Canada re: Imuran (azathioprine) and Purinethol (mercaptopurine), which are drugs manufactured by Teva.

[15] It is Ms. Yashcheshen’s position that the above documents establish that the Chambers judge was in a conflict of interest givenher former employment with the Government of Saskatchewan and her relationship with the Government of Canada and police servicesand as a result there was a reasonable apprehension of bias that warranted her recusal. [16] Teva and the Government of Saskatchewan oppose admission of the fresh evidence on the basis it fails to meet the test set outby the Supreme Court of Canada in R v Palmer, (SCC), [1980] 1 SCR 759 at 775 [Palmer].

In my view, their position hasmerit. [17] As set out in Palmer, for fresh evidence to be admitted in this Court four criteria must be met: (

i) the evidence could not, withdue diligence, have been adduced at the hearing; (ii) the evidence is relevant in that it bears on a decisive or potentially decisive issue; (iii)the evidence must be reasonably capable of belief; and, (iv) the evidence is such that, if believed, it may have affected the result.However, these criteria are not necessarily applied, or applied with the same rigour, when the proposed fresh evidence challenges the veryvalidity of the adjudicative process (C.H. v S.F., 2021 SKCA 24 at para 18; Onion Lake Cree Nation v Stick, 2020 SKCA 101 at para 85,[2021] 2 WWR 614 [Onion Lake]). [18] All the documents that Ms.

Yashcheshen seeks to admit were in existence at the date the applications were heard and, with duediligence, could have been produced to support her request that the Chambers judge recuse herself (this includes the safety and recall alertwhich appears to have nothing to do with Ms. Yashcheshen’s allegation of bias). [19] Further, even if the evidence were accepted and believed, it would not establish an apprehension of bias on the part of theChambers judge, let alone a reasonable one. This is so because the analysis of bias starts with a strong presumption that judges will actimpartially.

In Wewaykum Indian Band v Canada, 2003 SCC 45, [2003] 2 SCR 259 [Wewaykum], the majority described thatpresumption: [59] Viewed in this light, “[i]mpartiality is the fundamental qualification of a judge and the court attribute of the judiciary” (CanadianJudicial Counsel, Ethical Principles for Judges (1998), at p. 30). It is the key to our judicial process, and must be presumed.

As was notedby L’Heureux-Dubé and McLaughlin J. (as she then was) in S. (R.D.), supra, at para 32, the presumption of impartiality carriesconsiderable weight, and the law should not carelessly evoke the possibility of bias in a judge, whose authority depends on thatpresumption.

Thus, while the requirement of judicial impartiality is a stringent one, the burden is on the party arguing disqualification toestablish the circumstances justify a finding that the judge must be disqualified. (Emphasis added) [20] In his dissent in Committee for Justice and Liberty v National Energy Board, (SCC), [1978] 1 SCR 369 at 394,de Grandpré J. set out the test for establishing a reasonable apprehension of bias: [T]he apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the questionand obtaining thereon the required information … [T]hat test is “what would an informed person, viewing the matter realistically andpractically—and having thought the matter through—conclude.

Would he think that it is more likely than not that [the decision maker],whether consciously or unconsciously, would not decide fairly. [21] As de Grandpré J. went on to state at 395, the grounds underpinning such applications must be “substantial”. See also,Wewaykum at 376 and R v S. (R.D.), (SCC), [1997] 3 SCR 484 at para 112. [22] In my view, the fact that the Chambers judge had, at one time, occupied the various positions identified in the material filed byMs.

Yashcheshen, or had at one time been involved with police training, would not give rise to a reasonable apprehension of bias in themind of an informed person viewing the matter realistically and practically and having thought the matter through. [23] The Chambers judge is, self-evidently, no longer a government employee and the fact she acted as Crown counsel prior to herappointment does not give rise, in and of itself, to a conflict of interest.

Saskatchewan is a small province and, by necessity, lawyersappointed to the various courts in this province will from time to time hear matters where their former law firms, partners, associates, oremployers are involved. It will also happen that judges hear cases in which one, or perhaps several, of the lawyers have some sort ofrelationship with the judge. Whether the existence of a relationship, perhaps alone or in conjunction with other circumstances, gives rise toa reasonable apprehension of bias, can only be resolved on a case-by-case basis.

I would say, however, and by way of example only, thatgenerally, the mere fact that a judge may have a social connection or even a friendship with one of the lawyers, on its own, does not giverise to a reasonable apprehension of bias.

I do not consider it to be necessary to examine this issue further because, on the facts here, therewas not even a suggestion of an on-going relationship with the Governments of Saskatchewan or Canada, or any suggestion that the judgehad a pecuniary or other direct interest in the outcome of the proceedings, nor were there any other facts or circumstances that would giverise to a reasonable apprehension of bias. [24] In Boardwalk Reit LLP v Edmonton (City), 2008 ABCA 176, 437 AR 199, leave to appeal to SCC refused, (SCC), Côté J.A., writing for himself and O’Brien J.A., sounded a caution with respect to simply adopting “rules” of conflict, such astreating partners in a law firm as though they are one person. [55] If one fell into the lazy use of such “rules” of deemed association, all the partners in all the bigger law firms in Alberta could belinked to each other.

Under such “rules”, most judges could only hear lawyers practising alone (not sharing office space with a firm), andthose in very small firms. Many law firms could appear before only a handful of judges. See Makowsky v. Doe, supra. Justice Coté when on to state: [60] I see no reason whatever to bar a judge from hearing argument by (say) his brother-in-law’s lawyer, or her lawyer’s brother-in-law, if neither is involved or interested in the suit.

And if a judge is married to a lawyer who is a partner in a large law firm, the judge canproperly hear an unrelated trial where the litigant is the parent or the sibling of one of the partners in that law firm. Not all employment ofa judge’s relatives may bar a big law firm from appearing in the relevant courtroom.

[ 25 ] The mere fact that the Chambers judge had been employed in various capacities by the Governments of Saskatchewan or Canada or had assisted in police training prior to her judicial appointment does not raise a reasonable apprehension of bias with respect to legal actions involving those institutions. [ 26 ] Finally, the fact that the Chambers judge was a moderator at a conference where Crown prosecutors (along with members of the defence bar) presented topics falls far, far short of establishing an apprehension of bias as does the fact that she dismissed an application in another action where the applicant was allegedly self-represented.

Evidence of the latter was presented without any factual context and, thus, Ms. Yashcheshen has failed to establish its relevance to the question of bias. [ 27 ] In my view, Ms. Yashcheshen has failed to meet even the less rigorous test for the admission of evidence in an appeal described in Onion Lake and, accordingly, her application to adduce fresh evidence must be dismissed. Further, as indicated herein, the materials she sought to adduce could not have established a reasonable apprehension of bias. The Chambers judge did not err in refusing to recuse herself. IV. ISSUES [ 28 ] Ms.

Yashcheshen’s notice of appeal sets out 16 grounds. Those grounds raise the following issues: (

a) Did the Chambers judge err by refusing to grant Ms. Yashcheshen’s request for an adjournment? (

b) Did the Chambers judge err by striking the statement of claim as disclosing no reasonable cause of action? (

c) Did the Chambers judge err by dismissing the constitutional questions raised by Ms. Yashcheshen? (

d) Did the Chambers judge err by striking the affidavits of Erin Klus and Dr. Mitchell? (

e) Did the Chambers judge err by declaring Ms. Yashcheshen to be a vexatious litigant? (

f) Did the Chambers judge err by cancelling all of Ms. Yashcheshen’s fee waiver certificates? (

g) Did the Chambers judge err by ordering costs against Ms. Yashcheshen? [ 29 ] I will address each of these issues in turn. V. ANALYSIS A. Did the Chambers judge err by refusing to grant Ms. Yashcheshen’s request for an adjournment? [ 30 ] On the date set for hearing the applications, Ms. Yashcheshen appeared in person and requested an adjournment which the Chambers judge denied. In her reasons for denying the request, the Chambers judge explained the previous accommodations that had been extended to Ms. Yashcheshen, including previous adjournments. She set out the care that the respondents had taken to

schedule the hearing for a date that worked well with Ms. Yashcheshen’s schedule. She observed, as well, that the respondent had clearly communicated with Ms. Yashcheshen, prior to the Chambers date, of its intention to proceed given the “numerous accommodations previously made to Ms. Yashcheshen” ( Chambers Decision at para 5). In her reasons, the Chambers judge then explained that when Ms. Yashcheshen was told that her adjournment request was denied, she asked the Chambers judge to recuse herself. When that request was denied, Ms. Yashcheshen “announced that she would not remain in the court room”.

Prior to her departure, the Chambers judge “advised [her] that the matters would proceed in her absence, which they did” (at para 7). [ 31 ] It is Ms. Yashcheshen’s position that the Chambers judge erred by refusing to grant her an adjournment. Ms. Yashcheshen submits that she has a disability and that the Chambers judge failed to accommodate that disability by requiring her to argue the applications when she was unwell.

She asserts that it was unreasonable for the Chambers judge to expect her to announce “in front of an entire courthouse” the details of her illness. [ 32 ] Rule 16–6(4) of the Rules provides that the hearing of an application may be adjourned on any terms that the Court considers appropriate. The decision to grant an adjournment is a discretionary one. Such decisions are entitled to deference by this Court.

Absent an error in principle, the judge disregarding or misapprehending a material fact, a failure to act judicially or a plainly wrong decision that amounts to an injustice, an appellate court will not interfere. [ 33 ] In Buckle v Caswell , 2012 SKQB 143 , 395 Sask R 286, Danyliuk J. described the parameters of a judge’s discretion to grant an adjournment as follows: [12] An adjournment request always involves a balancing of the rights of the parties involved, as well as a consideration of the proper administration of justice. The decision on an adjournment request involves an exercise of judicial discretion.

In exercising that discretion, a judge must consider whether the party seeking the adjournment will be placed at a serious disadvantage if that request is denied. One must balance that with a consideration of the prejudice accruing to the other side if the adjournment is given. The overarching consideration is to ensure the hearing is fair. [ 34 ] In my view, Ms. Yashcheshen has failed to overcome the significant hurdle posed by the standard of review applicable to the Chambers judge’s adjournment decision.

[35] Ms. Yashcheshen’s primary argument is that she has a disability that the Chambers judge failed to reasonably accommodate. Ibegin my consideration of this by observing that, while Ms. Yashcheshen may have a disability, she did not request any accommodationfrom the Court. If Ms. Yashcheshen required accommodation, it was incumbent upon her to indicate that to the Court and to advise theCourt how it could accommodate her. This could have been done, for example, by letter prior to the hearing of the applications. Further,contrary to the submissions made by Ms.

Yashcheshen in this Court, there is nothing in the record to suggest that the Chambers judgeexpected Ms. Yashcheshen to announce “in front of an entire courthouse” the particulars of her disability. While Ms. Yashcheshen said shewas unwell, she had demonstrated she was capable of appearing in person; arguing for an adjournment, and when it was refused, seekingan opportunity to file a motion for recusal of the Chambers judge. Further, it is clear from Teva’s correspondence with Ms. Yashcheshenthat, on December 24, 2019, almost a month prior to the hearing of the applications, Ms.

Yashcheshen had requested an adjournment,which Teva had refused. At that time, she advised Teva: [6] … While I’d love to argue our applications on January 28, 2020 I don’t think we can, based on my lawsuit against the Law Society(and their desire to settle), and considering I recently won twice (one with costs) at Court of Appeal; furthering two appeals, one of whichis Justice Danyliuk’s decision. These appeals have been set for April 2020. [36] All of this lends support to the conclusion that Ms. Yashcheshen’s disability did not prevent her from continuing with thehearing.

Finally, counsel for all the parties were present, including lawyers who had traveled from another province, and they were readyto proceed. [37] In the circumstances, it cannot be said that the Chambers judge erred in exercising her discretion to refuse the adjournment. B. Did the Chambers judge err by striking the statement of claim as disclosingno reasonable cause of action? 1. Background [38] Ms. Yashcheshen commenced action against Teva alleging that her off-label use of its drugs, Imuran and Purinethol, to treatCrohn’s disease caused her serious side effects. Ms.

Yashcheshen’s claim against Teva, which is in negligence, is poorly pleaded. [39] Teva brought an application to strike the statement of claim pursuant to Rule 7–9(2)(a), (

b) and (

e) on the grounds that itdiscloses no reasonable cause of action or was scandalous, frivolous or vexatious, or otherwise an abuse of the Court’s process. Asindicated, Ms. Yashcheshen left the courtroom and did not stay to argue the application. Counsel for Teva properly brought to theChambers judge’s attention the fact that Ms. Yashcheshen had served Teva with a proposed amended statement of claim. The Chambersjudge found that amended statement of claim had “not been filed with the Court” and as such she would not consider it (ChambersDecision at para 17). [40] The Chambers judge went on to find that Ms.

Yashcheshen had failed to plead the facts necessary to establish both negligenceand damages. She then struck the statement of claim in its entirety on the basis that it disclosed no reasonable cause of action. As a result,she found it unnecessary to consider whether the statement of claim is scandalous, frivolous, vexatious or otherwise an abuse of theCourt’s process. She ordered Ms. Yashcheshen to pay costs of $200.00. [41] Ms. Yashcheshen appeals against the Chambers judge’s decision claiming, in part, that the Chambers judge erred in finding thather amended statement of claim was not filed with the Court. 2.

The law [42] Generally, litigants are not to be deprived of their day in court except in plain and obvious cases. On the other hand, theinterests of justice are not served by permitting an action that has no reasonable chance of success, or that is an abuse of process, toproceed to trial.

In Venture Construction Inc. v Saskatchewan (Ministry of Highways and Infrastructure), 2015 SKQB 70, 470 Sask R 7,Barrington-Foote J. (as he then was) stated: [9] I am mindful of the fact that The Queen’s Bench Rules are now explicitly intended, as Rule 1-3 makes clear, to promote the timelyand cost effective resolution of claims. That point is emphasized by my brother Zarzeczny J. in 3972674 Canada (at paras 16-19) inrelation to an application pursuant to Rule 7-1. However, I do not read that judgment as suggesting that the law relating to applications tostrike pursuant to Rule 7-9(1) has changed.

In my view, it has not. It remains that outlined in Swift Current, and confirmed by the recentdecision of the Supreme Court of Canada in R v Imperial Tobacco Canada Ltd., 2011 SCC 42at paras 17-26, [2011] 3 SCR 45 [ImperialTobacco]. In particular, the following cautionary note sounded by McLachlin C.J. remains valid: 19 The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential toeffective and fair litigation.

It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chanceof success go on to trial. … 21 Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions thatyesterday were deemed hopeless may tomorrow succeed. Before Donoghue v.

Stevenson, (FOREP), [1932] A.C. 562(H.L.) introduced a general duty of care to one's neighbour premised on foreseeability, few would have predicted that, absent a contractualrelationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of gingerbeer. Before Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.), a tort action for negligent misstatement wouldhave been regarded as incapable of success.

The history of our law reveals that often new developments in the law first surface on motionsto strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson. Therefore, on a motion to strike, it is notdeterminative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are

true, there is a reasonable prospect that the claim will succeed.

The approach must be generous and err on the side of permitting a novelbut arguable claim to proceed to trial. (Emphasis added) [43] It is precisely for the above noted reasons, and because striking a statement of claim deprives the plaintiff of their day in court,that where feasible a plaintiff should be given an opportunity to amend their pleadings to correct deficiencies before those pleadings arestruck: Sagon v Royal Bank of Canada (1992), (SK CA), 105 Sask R 133 (CA); Thirsk v Saskatchewan (PublicGuardian and Trustee), 2017 SKQB 66 at para 11. 3.

Application of the law [44] A review of the record before the Chambers judge discloses that Ms. Yashcheshen’s proposed amended statement of claim wasfiled with the Court on April 3, 2019. It was attached as Exhibit B to her affidavit sworn that same date and filed in response to Teva’sapplication to strike.

The Local Registrar of the Court of Queen’s Bench had accepted the affidavit and marked it as “filed” in accordancewith Rule 13–23 of the Rules. [45] Given the volume of material on the Queen’s Bench file it is understandable how the Chambers judge overlooked the filing ofthe proposed amended statement of claim. The fact that she did so, however, means that Ms. Yashcheshen’s appeal with respect to thestriking of her statement of claim must be allowed and the matter remitted for reconsideration. [46] I am not persuaded by Teva’s argument that it was necessary for Ms.

Yashcheshen to have made a formal application to amendher statement of claim, returnable on the same date as Teva’s application to strike. While I agree that such an application would have beenappropriate, to deny consideration of Ms. Yashcheshen’s proposed amended statement of claim on that basis would be to elevate form oversubstance. It has become a common practice for litigants to approach applications to strike by informally providing proposed amendmentsto their pleadings. Whether this is a practice to be encouraged, or not, given that it exists, and that Ms.

Yashcheshen is a self-representedlitigant, I am not prepared to find that the Chambers judge was relieved of her obligation to consider Ms. Yashcheshen’s draft amendedstatement of claim. [47] I also reject Teva’s suggestion that this Court should determine the application to strike instead of sending it back to the Courtof Queen’s Bench. This is not a situation where the Chambers judge erred in making a decision, such that this Court could correct thaterror.

Here, no decision has been made with respect to whether the proposed amendments disclose a reasonable cause of action, and noargument was presented by either Teva or Ms. Yashcheshen with respect to that issue. This is a Court of review, and it would not beappropriate in the circumstances for this Court to make the order of first instance. To do so, we would need to hear argument from bothTeva and Ms. Yashcheshen and, if we did so, it would effectively deprive the unsuccessful party of their right to appeal against the orderwe made. [48] Ms.

Yashcheshen’s appeal with respect to the order striking her statement of claim against Teva is allowed. The Chambersjudge’s order, including her order for costs against Ms. Yashcheshen, is set aside and the matter is remitted to the Court of Queen’s Benchto determine whether Ms. Yashcheshen statement of claim, in light of her proposed amendments, should be struck pursuant to Rule 7–9(a)(

b) or (

e) of the Rules. C. Did the Chambers judge err by dismissing the constitutional questionsraised by Ms. Yashcheshen? [49] Ms. Yashcheshen served a notice of constitutional question in the Court of Queen’s Bench challenging the validity of Rule 11–28 on the basis that it contravened s. 15 of the Charter (the right to equality before and under the law and to equal protection and benefitof the law) and s. 6 of The Fee Waiver Act on the basis that it contravenes s. 7 (the right to life, liberty and security of the person). [50] The Chambers judge dismissed Ms. Yashcheshen’s challenge to Rule 11–28: [80] Ms.

Yashcheshen's materials indicate that Rule 11-28 prohibits access to justice for a self-represented person. However, that isincorrect. Rule 11-28 simply places additional parameters on vexatious litigants who require leave of the court to commence legitimateproceedings. [81] Ms. Yashcheshen has not provided any evidence to support a conclusion that Rule 11-28 is contrary to s. 15 of the Charter. Asexplained in Mackay v Manitoba, (SCC), [1989] 2 SCR 357 at 361-362, the presentation of facts is essential to a properconsideration of Charter issues and that Charter decisions cannot be based on unsupported hypotheses.

For this reason, Ms.Yashcheshen's Charter argument fails. [82] Further, no distinction is identified, pursuant to Rule 11-28, that a decision is to be made on the basis of a person's sex, religion orphysical disability. The focus of Rule 11-28 is whether a litigant is vexatious. [83] In Stanny v Alberta, 2009 ABQB 161, 484 AR 163, the court rejected the applicant's submission that an order placing conditionson the commencement and continuation of proceedings in the Alberta Provincial Court had the effect of discriminating against them on thebasis of an enumeration of analogous ground pursuant to s. 15.

Rather, the order was put in effect on the basis of the conduct of theapplicants. That reasoning is applicable to the current case. (See also Lawyers’ Professional Indemnity Company v Coote, 2013 FC 643 atpara 41 and Ayangma v Gov. of PEI & Ors., 2005 PESCTD 25 at paras 85-87, 249 Nfld & PEIR 34). [51] The Chambers judge, however, did not address whether s. 6 of The Fee Waiver Act offends s. 7 of the Charter. [52] In her initial notice of appeal, Ms. Yashcheshen only raised one ground of a constitutional nature and that pertained to Rule 11–28.

In her amended notice of appeal dated November 20, 2020, she referred to s. 15 of the Charter and an alleged failure to apply the

doctrine of in forma pauperis. The Fee Waiver Act was not mentioned. [53] The notice of constitutional question filed by Ms. Yashcheshen in this Court challenges the validity of Rule 11–28 and The FeeWaiver Act and its regulations. In particular, it raises whether Rule 11–28 and The Fee Waiver Act breach ss. 7 and 15 of the Charter. Inher written argument, Ms.

Yashcheshen contends that Rule 11–28 and The Fee Waiver Act conflict with the doctrine of in forma pauperis;that Rule 11–28 is too broad, vague and arbitrary (presumably a s. 7 challenge); that s. 6 of The Fee Waiver Act discriminates againstdisabled persons who are on welfare (presumably a s. 15 Charter challenge); and that a vexatious litigant order offends s. 15 of theCharter. I will deal with each of these matters in turn. 1. Does The Fee Waiver Act breach s. 15 of the Charter and does Rule 11–​28 breach s. 7 of theCharter? [54] The Government of Saskatchewan opposes Ms.

Yashcheshen’s right to bring forward challenges to The Fee Waiver Act andRule 11–28, based on ss. 15 and 7 of the Charter respectively, as those arguments were not raised in the Court of Queen’s Bench and werenot addressed by the Chambers judge. I find merit in the Government’s position. [55] As stated by the Supreme Court of Canada in R v Perka, (SCC), [1984] 2 SCR 232 at 240, a party to an appealcannot “raise an entirely new argument which has not been raised below and in relation to which it might have been necessary to adduceevidence at trial”.

See also: Meier v Saskatchewan Institute of Agrologists, 2016 SKCA 116 at para 28, 405 DLR (4th) 506. [56] Because Ms. Yashcheshen did not raise before the Chambers judge the issue of whether Rule 11–28 breaches s. 7 of theCharter or whether s. 6 of The Fee Waiver Act breaches s. 15, there is no decision for this Court to review. Further, no evidence wasadduced in the Court of Queen’s Bench to either support or challenge the alleged breaches. Accordingly, in my view, it would not beappropriate to deal with those issues for the first time in the context of this appeal. 2.

Does s. 6 of The Fee Waiver Act breach s. 7 of the Charter? [57] While Ms. Yashcheshen’s notice of constitutional question does not explicitly state that her challenge is restricted to s. 6 of TheFee Waiver Act, that conclusion is implicit from the context and circumstances of this matter and the fact that that was the

section she hadchallenged in the Court of Queen’s Bench.

Section 6 reads as follows: Cancellation of fee waiver certificate 6 Subject to the regulations, an official, a judge or a public body may cancel a fee waiver certificate at any time. [58] The Chambers judge erred in that she did not address Ms. Yashcheshen’s challenge to the constitutionality of s. 6 of The FeeWaiver Act. As such, there is no decision for us to review with respect to that issue. The matter must be remitted to the Court of Queen’sBench for consideration. 3.

Does Rule 11–28 breach s. 15 of the Charter? [59] Rule 11–28 provides: Vexatious proceedings 11-28(1) If, the Court is satisfied that any person has habitually and persistently and without any reasonable ground institutedvexatious legal proceedings against the same person or against different persons, the Court may order that the person shall not instituteany proceedings in the Court without leave of the Court.

(2) The Court may require that the local registrar at each judicial centre be notified of an order pursuant to this rule. [60] As the Government of Saskatchewan correctly points out, Rule 11–28 does not deny a vexatious litigant access to the courts.

Itonly requires that those who have “habitually and persistently and without reasonable grounds instituted vexatious litigant proceedings”must obtain leave of the court prior to commencing court proceedings. [61] In Wong v Giannacopoulos, 2011 ABCA 277, 515 AR 58, Frans Slatter J.A. explained: [8] The applicant argues that the vexatious litigant order denies her the basic right of a Canadian citizen to commence a legal action.That is not the true effect of the order.

The applicant can still commence any legitimate action; she is only subject to a screening procedureto make sure that any action she proposes is properly founded in fact and law, and will be diligently prosecuted. The vexatious litigantorder does not substantially prejudice the applicant. [62] Further as McLaughlin C.J.C. stated in Trial Lawyers Association of British Columbia v British Columbia (Attorney General),2014 SCC 59, at para 47 [2014] 3 SCR 32 [Trial Lawyers]: [47] Of course, hearing fees that prevent litigants from bringing frivolous or vexatious claims do not offend the Constitution.

There isno constitutional right to bring frivolous or vexatious cases, and measures that deter such cases may actually increase efficiency andoverall access to justice. [63] In my view, the Chambers judge did not err in concluding Rule 11–28 does not breach s. 15 of the Charter. 4. Does s. 6 of The Fee Waiver Act or Rule 11–28 conflict with the doctrine of in forma pauperis? [64] In forma pauperis is a Latin term meaning “in the character or manner of a pauper”. The doctrine of in forma pauperis provides

for an indigent person to proceed with court actions without paying the usual fees associated with such actions. [ 65 ] Ms. Yashcheshen contends that s. 6 of The Fee Waiver Act and Rule 11 –28 offend this doctrine thus violating her common law right of access to justice.

The Government of Saskatchewan submits that the doctrine has no constitutional force and that in any event, the provisions in issue do not conflict with the doctrine. [ 66 ] I agree with the Government of Saskatchewan’s position. [ 67 ] The doctrine of in forma pauperis does not have constitutional status and accordingly, s. 6 of The Fee Waiver Act and Rule 11 – 28 cannot be invalidated because of a conflict with it. A common law doctrine cannot prevail over validly enacted statutory provisions. [ 68 ] More over, s. 6 of The Fee Waiver Act and Rule 11 –28 do not conflict with the doctrine.

In this respect, I repeat McLaughlin C.J.C.’s comment in Trial Lawyers , that “there is no constitutional right to bring frivolous or vexatious” actions (at para 47). This statement applies to all litigants, even those who are indigent. Further, cancelling a fee waiver certificate for a vexatious litigant in an action and requiring leave to obtain future certificates does not prevent an indigent litigant from commencing reasonable causes of action. [ 69 ] In

summary, Ms. Yashcheshen’s grounds of appeal with respect to the constitutional questions raised by her must be dismissed, except with respect to her argument that s. 6 of The Fee Waiver Act offends s. 7 of the Charter . As the Chambers judge did not deal with that issue, it must be remitted to the Court of Queen’s Bench for consideration. D. Did the Chambers judge err by striking the affidavits of Erin Klus and Dr. Mitchell? [ 70 ] In response to Teva’s application to strike her statement of claim, Ms. Yashcheshen filed affidavit evidence, including an affidavit by Ms.

Klus, sworn May 20, 2019, and two affidavits of Dr. Mitchell, sworn March 25, 2019 and June 27, 2019 respectively. [ 71 ] Dr. Mitchell is Ms. Yashcheshen’s family physician. His affidavits contain Ms. Yashcheshen’s medical history, as well as information pertaining to her health and to the drugs in issue in the court action. Ms. Klus is Ms. Yashcheshen’s older sister. Her affidavit purports to describe Ms. Yashcheshen’s reaction to taking the drugs in issue. [ 72 ] Teva applied to strike these affidavits as being irrelevant, prejudicial, and offending the rules pertaining to the admission of affidavit evidence.

The Chambers judge granted Teva’s application. She struck both of Dr. Mitchell’s affidavits in their entirety because they did not comply with the requirements of Rules 5–37 and 5–39 with respect to the admission of expert evidence and because portions of the affidavits were irrelevant, argumentative or provided legal conclusions. She struck the affidavit of Ms. Klus in its entirety on the basis it raised matters that were irrelevant, argumentative, and contained opinion or legal conclusions as opposed to statements of fact. 1.

The law [ 73 ] Affidavit evidence cannot be relied on with respect to an application to strike a statement of claim as disclosing no reasonable cause of action (Rule 7–9(3)). In determining such applications, a judge is confined to a review of the pleadings. As such, the affidavits of Dr. Mitchell and Ms. Klus were not relevant to the Chambers judge’s decision to strike Ms.

Yashcheshen’s statement of claim on the basis that it discloses no reasonable cause of action. [ 74 ] Having said that, affidavit evidence is admissible for the purpose of determining whether an action is scandalous, frivolous or vexatious or otherwise an abuse of the Court’s process. The Chambers judge did not address whether Ms. Yashcheshen’s claim should be struck on those bases. [ 75 ] Affidavit evidence must comply with the Rules . Rule 13–30(1) provides that affidavits, other than those filed in interlocutory applications, must be confined to facts that are within the personal knowledge of the affiant.

An application to strike a statement of claim is not an interlocutory application. As such, affiants are generally limited to providing evidence within their personal knowledge. [ 76 ] Further, the evidence proffered must be relevant and should not contain speculation, argument, or conclusions. In addition, affiants are not generally entitled to express opinions, though there are exceptions to that rule. [ 77 ] A matter is speculative when it has no factual foundation; it is argumentative when it asserts how facts, or a disputed matter, should be resolved; and it is conclusionary when it suggests an outcome.

Opinion evidence is evidence of what a witness thinks, believes, or infers as a result of a given set of facts. [ 78 ] Generally, opinion evidence can only be provided by a properly qualified expert. [1] Such an expert can only proffer opinion evidence with respect to matters within the area of their expertise (Rule 5–37). In addition, Rule 5–39 sets out the requirements necessary for the admission into evidence of an expert’s report. [ 79 ] One of the limited exceptions to the general rule that an expert witness meet the requirements of Rule 5–37(2)(

b) is a “participating expert witness”.

An example of such an expert is a treating physician who has formed opinions based on their participation in the events underlying an action: Westerhof v Gee Estate , 2015 ONCA 206 , 384 DLR (4th) 343 [ Westerhof ]. [ 80 ] In Westerhof , Simmons J.A. described the participating expert witness exception in these terms: [60] … I conclude that a witness with special skill, knowledge or training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where the opinion to be given is based on the witness’ observation of or participation in the events at issue; and

the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events See also: Laing v Sekundiak , 2015 MBCA 72 at paras 103–108 , 319 Man R (2d) 268; Kon Construction Ltd. v Terra Nova Developments Ltd. , 2015 ABCA 249 at paras 31–37 , 387 DLR (4th) 623; North Pacific Roadbuilders’ Ltd. v Aecom Canada Ltd. , 2012 SKQB 522 , 410 Sask R 282 and 101100002 Saskatchewan Ltd. v Saskatoon Co-Operative Association Limited , 2019 SKQB 300 . [ 81 ] This Court has recognized the “participating expert witness” exception.

In Saskatchewan v Racette , 2020 SKCA 2 , [2020] 8 WWR 84, Tholl J.A. explained its application: [61] In my view, a participant witness exception also exists in Saskatchewan. However, the exception must be tightly applied in order to avoid unfairness to the opposing party. It is not a licence for the witness to provide unlimited opinion evidence once he or she has been permitted to provide some expert opinion evidence.

When the testimony of such a witness goes beyond his or her observations and involvement in the underlying facts, and beyond the opinions formed as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events , the participant witness exception no longer applies and the evidence should not be accepted absent proper notice and the formal qualification of the witness as an expert: Westerhof , at para 63 ; Hoang at para 28; Imeson v Maryvale (Maryvale Adolescent and Family Services) , 2018 ONCA 888 , at paras 1 , 7 and 63, 143 OR (3d) 241; and Ontario (Attorney General) v 855 Darby Road, Welland (In Rem) , 2019 ONCA 31 at para 29 , 431 DLR (4th) 243. [ 82 ] With the above legal principles in mind, I turn to consider whether the Chambers judge erred in striking Ms.

Klus’ and Dr. Mitchell’s affidavits. 2. Erin Klus’ affidavit [ 83 ] The Chambers judge struck Ms. Klus’ affidavit on the basis it contained irrelevant material, set out facts not within Ms. Klus’ personal knowledge, and proffered opinions, arguments and conclusions. A review of the affidavit confirms the Chambers judge’s conclusions. Given the applicable standard of review, there is no basis for this Court to intervene with her decision to strike Ms. Klus’ affidavit in its entirety. 3. Dr. Mitchell’s affidavits of March 25 and June 27, 2019 [ 84 ] The Chambers judge struck both of Dr.

Mitchell’s affidavits on the basis they contained opinion evidence that did not comply with the requirements of Rule 5–37 and Rule 5–39. She also found Dr. Mitchell had set out facts that were not within his personal knowledge and that his affidavits contained irrelevant matters, argument and conclusions. [ 85 ] Dr. Mitchell is Ms. Yashcheshen’s family physician. In my view, the Chambers judge erred in principle in striking his affidavits without first considering whether he was entitled to set out Ms. Yashcheshen’s medical history/records and offer an opinion on her diagnosis as a “participating expert witness”.

Her order striking those affidavits must be set aside. [ 86 ] As the issue of whether Ms. Yashcheshen’s statement of claim should be struck is being remitted to the Court of Queen’s Bench, I will leave the question of whether Dr. Mitchell’s affidavits should be struck in whole or in part to the determination of the judge who hears that application. As I have already indicated, the affidavits only become relevant if Ms. Yashcheshen’s statement of claim is not struck as disclosing no reasonable cause of action. E. Did the Chambers judge err by declaring Ms. Yashcheshen to be a vexatious litigant? 1.

Background [ 87 ] Between November 8, 2011 and December 12, 2019, Ms. Yashcheshen commenced 23 actions in the Court of Queen’s Bench against various parties, including the action against Teva. [ 88 ] Teva brought an application pursuant to Rule 11–28 to have Ms. Yashcheshen declared a vexatious litigant such that leave of the court would be required for her to bring any future court proceedings. In determining Teva’s application, the Chambers judge applied the markers of vexatious conduct identified in Sheppard v Sheppard , 2003 SKQB 461 , 243 Sask R 79 [ Sheppard ].

She found that many of the Sheppard criteria had been met in that Ms. Yashcheshen had (

i) brought one or more actions to determine an issue; (ii) rolled forward issues into subsequent actions; (iii) initiated actions where it was obvious they could not succeed; and (iv) brought actions for an improper purpose. She also found that Ms. Yashcheshen had brought four appeals to this Court. One appeal had been dismissed and three were pending. [ 89 ] The Chambers judge was satisfied that Ms. Yashcheshen had “habitually and persistently and without reasonable grounds” instituted court proceedings. She thus ordered “that Ms.

Yashcheshen shall not institute any proceedings in this Court without first seeking leave of the Court. Such proceedings include, inter alia , statements of claim, originating applications, or other applications” ( Chambers Decision at para 76). [ 90 ] Ms. Yashcheshen appeals against that decision. She submits the Chambers judge erred because: (

a) all of her “vexatious behaviour” was confined to her action against Teva and one case is not sufficient to ground a vexatious litigant order; (

b) that while her behaviour may have been vexatious, her court proceedings were not; (

c) that she has not “persistently and habitually” brought legal proceedings to determine an issue; and (

d) that the actions she has commenced were not vexatious. [ 91 ] Teva contends that the Chambers judge did not err in making the vexatious litigant order; and that she correctly identified the applicable principles and applied them to the facts before her. Teva submits that the Chambers judge’s decision is a discretionary one and,

thus, entitled to deference from this Court. It argues that this Court could not intervene as the Chambers judge made no errors in principleand no palpable or overriding errors with respect to the facts. 2. The law [92] Rule 11–28 incorporates the Court of Queen’s Bench’s inherent jurisdiction to prevent abuse of its processes by the persistentfiling of vexatious actions.

It provides: Vexatious proceedings 11-28(1) If the Court is satisfied that any person has habitually and persistently and without any reasonable ground instituted vexatiouslegal proceedings against the same person or against different persons, the Court may order that the person shall not institute anyproceedings in the Court without leave of the Court.

(2) The Court may require that the local registrar at each judicial centre be notified of an order pursuant to this rule. [93] In Barth v Saskatchewan (Social Services), 2021 SKCA 41 [Barth], this Court considered the Court of Appeal Rules relating tovexatious litigants, being Rules 46.1 and 46.2. Rule 46.2(1) mirrors Rule 11–28 with one exception—it refers to frivolous as well asvexatious proceedings. [94] The per curiam decision in Barth sets out a number of principles that underpin Rule 46.2(1) that, in my view, equally apply tothe

interpretation of Rule 11–28, namely: (

a) Vexatious litigant rules recognise an aspect of a superior court’s inherent jurisdiction to prevent its processes from beingabused and to protect the proper administration of justice (Barth at paras 3 and 10). (

b) The power to declare a litigant vexatious should be used sparingly and only in the clearest of cases (Barth at para 3). (

c) The right to access the courts is an aspect of the rule of law. However, vexatious litigant rules do not preclude access to thecourts; they merely impose controls on the exercise of that right, e.g., the requirement to obtain leave (Barth at para 11). (

d) Resources pertaining to the administration of justice are finite and “Repetitive, unmeritorious appeals [or court actions] andapplications result in unnecessary expense for all parties and may have other negative effects, including increased conflict and delay.

Theyalso result in the needless expenditure of judicial and other resources of the Court that would otherwise be available to meet the needs ofother litigants” (Barth at para 14). [95] The Court in Barth also adopted, although it described them in appellate terms, the non-exhaustive list of factors or markers setout by Henry J. in Re Lang Mitchener and Fabian (1987), (ON SC), 37 DLR (4th) 685 (Ont Sup Ct) [Fabian], that mayguide a court when assessing whether a litigant is vexatious: (

a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdictionconstitutes a vexatious proceeding; (

b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person canreasonably expect to obtain relief, the action is vexatious; (

c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties bymultifarious proceedings brought for purposes other than the assertion of legitimate rights; (

d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actionsand repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlierproceedings; (

e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there wasoriginally a good cause of action; (

f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered indetermining whether proceedings are vexatious; (

g) the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct oflegal proceedings. [96] As the principles that underpin vexatious litigant rules and the Fabian factors suggest, vexatious litigant orders should betailored to address the nature of the abuse in question and to protect the proper administration of justice in the circumstances. Because suchorders affect a litigant’s access to justice they should be directed at the offending conduct.

For example, if the litigant’s vexatiousproceedings relate to specific defendants, then an order preventing the commencement of further litigation against those defendantswithout leave may be more appropriate than an order prohibiting the commencement of all legal proceedings without leave. Similarly, anorder that requires a vexatious litigant to obtain leave for all applications, including interlocutory ones, may be unnecessary if the bringingof interlocutory applications has not been a problem in the past.

The context in which such orders are sought will clearly impact thebreadth of the order made and the nature of the controls it imposes. [97] With these principles in mind, I turn to consider Ms. Yashcheshen’s appeal with respect to the vexatious litigant order. 3. Analysis

[ 98 ] I am not persuaded by Ms. Yashcheshen’s contention that the Chambers judge erred by focusing on her “vexatious behaviour” in the Teva action as opposed to determining that she had “habitually and persistently and without any reasonable grounds instituted vexatious legal proceedings”. [ 99 ] The evidence supports the Chambers judge’s findings that between November 8, 2011, and December 12, 2019, Ms. Yashcheshen had commenced 23 actions in the Court of Queen’s Bench. Initiating so many actions does not, on its own, make Ms. Yashcheshen a vexatious litigant, but it is a factor that invites scrutiny.

At paragraphs 49–59 of her decision, the Chambers judge described the many actions commenced by Ms. Yashcheshen. She found Ms. Yashcheshen had rolled forward issues into subsequent actions and had attempted to relitigate claims. She also found that Ms. Yashcheshen had brought actions that had no chance of success and that her claims contained “pleadings not founded in fact” as well as “offensive and defamatory language” ( Chambers Decision at para 64). Each time the Chambers judge found a marker of vexatious litigation, she set out examples from Ms.

Yashcheshen’s various court actions to support her findings. [ 100 ] It is clear from reading the Chambers Decision as a whole, that the Chambers judge did not make the errors alleged by Ms. Yashcheshen. She correctly identified the principles to be applied. The Sheppard factors referred to by her are the same as the factors identified in Fabian and adopted by this Court in Barth . The Chambers judge did not focus on the Teva action. Rather, she considered the whole of Ms. Yashcheshen’s litigation history. [ 101 ] Nor did the Chambers judge err in reviewing emails sent by Ms.

Yashcheshen to Teva and Teva’s legal counsel that impugned Teva and others. Ms. Yashcheshen contended that those emails should not have been received into evidence by the Chambers judge as they were marked “without prejudice”. “Without prejudice” is not a magical phrase that insulates documents from use in court proceedings. The phrase operates to prevent documents from being entered as evidence if they are made with a view to reconciliation or settlement. The emails in issue had nothing to do with that.

Further, as the Chambers judge pointed out at paragraph 69 of her decision, the purpose of litigation is not to malign others. [ 102 ] All of the Fabian/ Sheppard factors do not need to be present to warrant a vexatious litigant order. In this case, there were sufficient factors to support the Chambers judge’s conclusion that Ms. Yashcheshen is a vexatious litigant. [ 103 ] In the alternative, Ms. Yashcheshen argues that the breadth of the Chambers judge’s order was not warranted by the evidence before her. [ 104 ] The Chambers judge granted a very broad order that “Ms.

Yashcheshen shall not institute any proceedings in this Court without first seeking leave of the Court. Such proceedings include inter alia statements of claim, originating applications or other applications ” ( Chambers Decision at para 76, emphasis added). The Chambers judge’s reference to “other applications” would appear to mean any other application including interlocutory ones. Counsel for Teva candidly and appropriately acknowledged during oral argument that, if “other applications” were interpreted to include interlocutory applications, then it would result in an overly broad order.

I agree for a number of reasons. [ 105 ] First, there was no evidence before the Chambers judge that Ms. Yashcheshen had brought interlocutory applications in the context of her actions that were vexatious or unreasonable. [ 106 ] Second, many of Ms. Yashcheshen’s actions are on-going. To place a leave requirement for interlocutory applications that might be brought in the course of those existing actions would only serve to increase the costs for all parties and unnecessarily complicate those proceedings.

Furthermore, such a requirement would aggravate, not mitigate, the broader adverse effects of vexatious litigation by unnecessarily consuming judicial resources and, thereby, thwarting access to justice by other litigants. [ 107 ] Third, as indicated earlier in these reasons, vexatious litigant orders should be tailored to address the offending conduct in issue. Because they affect a litigant’s access to the courts, they should not be overly broad. [ 108 ] I would allow Ms.

Yashcheshen’s appeal with respect to the vexatious litigant order but only to the extent of removing from that order the reference to “other applications”. F. Did the Chambers judge err by cancelling all of Ms. Yashcheshen’s fee waiver certificates? [ 109 ] The Fee Waiver Act allows for the granting of a fee waiver certificate with respect to a court proceeding. The certificate excuses a litigant from paying any court fees. The Act also provides for the cancellation of such certificates in certain circumstances.

The provisions of the Act relevant to this appeal are as follows: Application for fee waiver certificate 3(1) A person, other than a corporation, may apply pursuant to this

section for a fee waiver certificate with respect to a proceeding by submitting an application in the prescribed form to an official of the court or public body in which the proceeding is or is to be commenced. … Cancellation of fee waiver certificate 6 Subject to the regulations, an official, a judge or a public body may cancel a fee waiver certificate at any time. [ 110 ] Section 12(2) of The Fee Waiver Act Regulations , RRS c F-13.1001 Reg 1 [ Regulations ], is also relevant as it sets out the grounds required for cancelling a fee waiver certificate.

12(2) In addition to subsection (1), a court or public body may cancel a fee waiver certificate if the court or public body determines that: (

a) there has been frivolous, vexatious or abusive conduct on the part of the holder of the fee waiver certificate before the court or publicbody; (

b) the holder of the fee waiver certificate failed to attend proceedings or take

part in any required step in the matter before the court orpublic body without valid excuse; or (

c) the holder of the fee waiver certificate failed to comply with an order or request of the court or public body without valid excuse. [111] The Government of Saskatchewan instituted action against Ms. Yashcheshen requesting the cancellation of all of her fee waivercertificates. The Chambers judge granted the Government’s request and ordered that any future fee waiver certificates would only begiven to Ms. Yashcheshen with the permission of a justice of the Court of Queen’s Bench. She cancelled the certificates because she foundthat Ms.

Yashcheshen’s conduct was frivolous, vexatious and abusive and because in the Teva action Ms. Yashcheshen had chosen toleave the courtroom when her request for an adjournment was not granted. [112] The Government contends that the Chambers judge did not err in rendering her decision. It asserts the decision to cancel a feewaiver certificate is a discretionary one and that appellate intervention is not warranted because the Chambers judge made no palpable oroverriding error in assessing the facts and did not err in principle. [113] The issue of whether the Chambers judge erred in cancelling all of Ms.

Yashcheshen’s fee waiver certificates turns on theinterpretation of s. 6 of The Fee Waiver Act and s. 12(2) of the Regulations and, in particular, on the question of whether an application tocancel a fee waiver certificate must be done on an action-by-action basis or whether a general order can be granted. [114] In interpreting the relevant provisions, I am mindful of the approach to statutory

interpretation adopted by the Supreme Court ofCanada in Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27, and enunciated by Elmer Driedger in Construction ofStatutes, 2d ed (Toronto: Butterworths, 1983) at 87: … namely the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously within thescheme of the Act, the object of the Act, and the intention of Parliament. The Legislature of this province has provided statutory authority for this approach in s. 2-10(1) of The Legislation Act, SS 2019, c. 10-2. Inaddition, s. 2-10(2) provides that “every Act and regulation is to be construed as being remedial and is to be given the fair, large andliberal

interpretation that best ensures the attainment of its objects”. [115] The Fee Waiver Act creates a uniform system for the waiving of administration fees for low income litigants in Saskatchewancourts as well as certain specified tribunals. Its purposes is to facilitate access to justice. [116] Under the Act, a litigant must apply for a fee waiver certificate with respect to each action commenced by them.

Section 6 of theAct provides that a judge (or public official) may cancel “a fee waiver certificate at any time” (emphasis added).

Section 12 of theRegulations sets out the circumstances which justify cancellation. Again, for the purposes of this appeal, that

section provides that a court“may cancel a fee waiver certificate” if it determines: (

a) there has been frivolous, vexatious, or abusive conduct on the part of the holderof a fee waiver certificate before the court; (

b) the holder of the fee waiver certificate failed to attend proceedings or take

part in anyrequired step; or (

c) the holder of the fee waiver certificate failed to comply with an order or request of the court without valid excuse. [117]

Section 12 talks about “a fee waiver certificate” and “the fee waiver certificate”, which, given the fact a litigant must obtain aseparate fee waiver certificate for each action, seems to suggest that cancellation of a fee waiver certificate must also be done on an action-by-action basis. [118] With respect to Teva’s action, the court found that Ms. Yashcheshen had engaged in vexatious and abusive conduct and that shehad also failed to attend the hearing of the Chambers applications after her request for an adjournment was denied.

This would justify theChambers judge’s cancellation of the fee waiver certificate with respect to that proceeding. The question becomes whether there wassufficient evidence to support the cancellation of Ms. Yashcheshen’s fee waiver certificates with respect to her other actions. In my view,this would require the Government to establish that the circumstances set out in s. 12 of the Regulations exist in each of the on-goingactions for which Ms. Yashcheshen holds a certificate. The Chambers judge did not do an action-by-action analysis. In fact, there was noevidence for which actions (other than Teva’

s) Ms. Yashcheshen had been granted a fee waiver certificate. According toMs. Yashcheshen’s uncontroverted evidence, she did not have a certificate for every action commenced by her. Further, there is noevidence that the circumstances set out in s. 12(2)(

b) and (

c) of the Regulations existed in any of her other on-going actions. While theChambers judge declared Ms.

Yashcheshen to be a vexatious litigant, there was no evidence that she had engaged in frivolous, vexatiousor abusive conduct before the Court in any of the on-going actions for which she holds a fee waiver certificate as required by s. 12(2)(a). [119] In my view, the behaviour contemplated by s. 12(2) of the Regulations must have occurred in the court proceedings for whichcancellation of a fee waiver certificate is sought. [120] First, as already pointed out herein, the Act contemplates the granting of certificates on an action-by action basis and the sectionsin the Regulations providing for cancellation of such certificates also speak in the singular–referring to cancellation of “a” certificate or“the” certificate. [121] Second, if a fee waiver certificate could be cancelled as a result of what has transpired in another proceeding, it would defeat thepurpose of the Act, which is to promote access to justice for low-income litigants.

Such litigants could be deprived of the benefit of theAct, even for a reasonable cause of action that is being litigated appropriately. [122] Third, with respect to s. 12(2)(

a) of the Regulations, while a vexatious litigant order may meet the requirements of thatsubsection, it does not do so automatically. Context is important. Such an order may be grounded on actions that have been struck orpreviously litigated as opposed to on-going proceedings. Further, vexatious litigant orders are prospective in nature, in the sense that they

affect a litigant’s ability to bring future actions, and they are directed at the litigant themselves, not the actions they intend to bring. On the other hand, cancellation of a fee waiver certificate is retrospective in nature, because it affects an existing entitlement in on-going litigation. Such certificates should not be cancelled in legitimate actions that are being properly pursued, even by an otherwise vexatious litigant.

To do so, would be inconsistent with the scheme and objects of The Fee Waiver Act . [ 123 ] While the Government can apply to cancel all of a litigant’s fee waiver certificates, in my view, it must provide evidence on an action-by-action basis as to the circumstances justifying cancellation of a batch of certificates held by the same litigant. Here, not only do we not know for which on-going actions Ms. Yashcheshen holds a fee waiver certificate, but the evidence justifying cancellation of her certificates for such on-going actions is lacking. [ 124 ] Ms.

Yashcheshen’s appeal with respect to the cancellation of her fee waiver certificates has merit. The Chambers judge’s order must be set aside, except with respect to Teva’s action being QB 1242/18. This decision should not be viewed as barring the Government of Saskatchewan from applying, with proper evidence, to cancel Ms. Yashcheshen’s fee waiver certificates in her other on-going actions. G. Did the Chambers judge err by ordering costs against Ms. Yashcheshen? [ 125 ] The Chambers judge ordered Ms.

Yashcheshen to pay $200 to Teva as costs with respect to the application to strike her statement of claim and $200.00 with respect to the vexatious litigant application. The former order has been set aside in this appeal. The latter order remains to be dealt with. [ 126 ] Ms. Yashcheshen’s position is that the Chambers judge had no jurisdiction to order costs against her as she is an indigent litigant who held a fee waiver certificate. This is an argument that has been raised by Ms.

Yashcheshen and rejected by this Court in other appeals: Yashcheshen v University of Saskatchewan , 2019 SKCA 67 at paras 32–35 , 62 Admin LR (6th) 15; Yashcheshen v Canada (Attorney General) , 2021 SKCA 116 at para 23 and Yashcheshen v Law Society Admissions Council Inc. , 2021 SKCA 149 at para 45 . It is a position that is wholly without merit. [ 127 ] Costs are a discretionary decision that fall within the purview of a judge hearing a matter.

The financial circumstances of a litigant are a factor to be considered in awarding costs, but it is not a determinative factor (see Rule 11–1(4)). [ 128 ] Further, s. 7(3) of The Fee Waiver Act states that costs may be awarded against litigants who hold fee waiver certificates: 7(3) When determining whether to make an order for costs to or against the holder of a fee waiver certificate, a court or public body may take into account one or more of the following: (

a) access to justice; (

b) fairness to the parties; (

c) the conduct of the parties; (

d) any other factor that the court or public body considers appropriate [ 129 ] In my view, the Chambers judge did not err in ordering Ms. Yashcheshen to pay costs to Teva with respect to the vexatious litigant application. The costs ordered were not significant–$200. This was obviously due to Ms. Yashcheshen’s financial circumstances. Ordinarily, costs follow the cause. Teva was successful in its application and accordingly, costs would generally be in order. [ 130 ] Ms. Yashcheshen’s appeal with respect to costs is dismissed. VI. CONCLUSION [ 131 ] Ms.

Yashcheshen’s appeal with respect to the application to strike her statement of claim is allowed and the matter remitted to the Court of Queen’s Bench to reconsider the application in light of Ms. Yashcheshen’s proposed amended statement of claim. [ 132 ] Ms. Yashcheshen’s appeal with respect to whether s. 6 of The Fee Waiver Act offends s. 7 of the Charter is allowed. That issue is also remitted to the Court of Queen’s Bench for determination. [ 133 ] Ms.

Yashcheshen’s appeal with respect to the vexatious litigant order is allowed in part but only to the extent that reference to “other applications” shall be removed from that order. [ 134 ] Ms. Yashcheshen’s appeal with respect to the cancellation of her fee waiver certificates is allowed in part. The Chambers judge’s order shall be set aside and instead an order cancelling her fee wavier certificate in QB 1242 of 2018 is granted. [ 135 ] All of Ms. Yashcheshen’s remaining grounds of appeal are dismissed. [ 136 ] Ms.

Yashcheshen shall pay to Teva costs for her application to adduce fresh evidence fixed at $200. [ 137 ] As the results are mixed, there shall be no order as to costs with respect to the appeal proper. “Ryan-Froslie J.A.”

Ryan-Froslie J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Leurer J.A.” Leurer J.A.