Byron Douglas Harpold Appellant (Plaintiff) v. Saskatchewan (Corrections and, 2023 SKCA 98

Court of Appeal for Saskatchewan Docket: CACV4045 Citation: Harpold v Saskatchewan (Corrections and Policing) , 2023 SKCA 98 Date: 2023-08-25 Between: Byron Douglas Harpold Appellant (Plaintiff) And Saskatchewan (Corrections and Policing) Respondent (Defendant) Before: Caldwell, Leurer and McCreary JJ.A. Disposition: Appeal dismissed Written reasons by: The Court On appeal from: QBG 414 of 2019, Regina Appeal heard: January 23, 2023 Counsel: Byron Harpold on his own behalf Deena Wahba for the Respondent The Court I.

Introduction [ 1 ] This appeal arises from a claim made by Byron Harpold against Saskatchewan (Corrections and Policing) [Corrections and Policing]. A Court of Queen’s Bench judge sitting in Chambers granted

summary judgment dismissing Mr. Harpold’s claim: Harpold v Corrections and Policing (21 June 2022) Regina, QBG 414 of 2019 (Sask) [ Chambers Decision ]. [ 2 ] Mr. Harpold appeals against the Chambers Decision . His appeal must be dismissed. Our reasons follow. II. Background [ 3 ] Mr. Harpold’s claim arose from a series of events that occurred while he was subject to supervision by Corrections and Policing. Mr. Harpold had entered into an undertaking dated October 26, 2017, and agreed to comply with certain conditions pursuant to s. 810.1 of the Criminal Code .

Among these conditions were requirements that he obtain the approval of Corrections and Policing before he changed his residence or employment. He was also required to report, in person, on a weekly basis to a probation officer. Mr. Harpold’s claim related to how two of the probation officers assigned to him discharged their supervisory function under The Correctional Services Act, 2012 , SS 2012, c C-39.2 [ Act ], and how they dealt with some of the discretionary aspects of the conditions of his recognizance. [ 4 ] In early November of 2017, Mr.

Harpold requested permission to accept employment with Thompson Construction in Fort McMurray, Alberta. Corrections and Policing initially granted Mr. Harpold permission to work there for the period between November 17 to December 1, 2017. However, at the end of the two-week period, Corrections and Policing decided that the work arrangement could not continue because Mr. Harpold’s parole conditions required him to report in person weekly, which was not feasible if he was working in Alberta. [ 5 ] Mr.

Harpold alleged that, because of the probation officers’ inflexible position respecting his residency and reporting requirements, he was required to forgo lucrative employment in both Alberta and Saskatchewan. He consequently claimed damages of more than $300,000 for lost wages and other expenses, along with damages for loss of reputation. [ 6 ] In August of 2019, Corrections and Policing successfully applied to the Court of Queen’s Bench to have Mr. Harpold’s claim struck on the basis that it did not disclose a reasonable claim. On appeal, that decision was overturned by this Court, which determined that Mr.

Harpold had substantively pleaded the tort of misfeasance in public office: Harpold v Saskatchewan (Corrections and Policing) , 2020 SKCA 98 [ Harpold No. 1 ]. [ 7 ] Although this Court concluded that Mr. Harpold’s statement of claim disclosed a reasonable cause of action, it also held that “whether that claim can survive the scrutiny of a

summary judgment application or trial is another matter” (at para 69). After Harpold No. 1 was rendered, a case management conference was convened before McMurtry J. At its conclusion, the court record was endorsed to reflect that Mr. Harpold had agreed that “his claim relates to permission granted on Nov 17/17 to work in Fort McMurry [ sic ] that was approximately two weeks later was [ sic ] rescinded” and that these “are the facts underlying the claim he is making” ( Chambers Decision at para 7). Thereafter, Corrections and Policing applied to have Mr. Harpold’s claim dismissed by way of a

summary judgment application. [ 8 ] In the Chambers Decision , the Chambers judge concluded that the dispute was amenable to

summary disposition and that judgment should be granted dismissing Mr. Harpold’s claim. As part of his analysis, the Chambers judge discussed several leading cases, including Odhavji Estate v Woodhouse , 2003 SCC 69 , [2003] 3 SCR 263 [ Odhavji Estate ] and Ontario (Attorney General ) v Clarke , 2021 SCC 18 , 456 DLR (4th) 361 [ Clarke ]. As he noted, the essential elements of the tort of misfeasance in public office are that: (1) the

official engaged in deliberate and unlawful conduct in their capacity as a public official; (2) the official knew or was aware that the impugned conduct was unlawful and would likely harm the plaintiff; and (3) the injuries suffered by the plaintiff as a result of the unlawful conduct are compensable in damages. [ 9 ] After a review of the evidence, the Chambers judge concluded that “Mr. Harpold has failed to satisfy the first element of the test for misfeasance in public office laid down in Odhavji and Clarke ” (at para 48 ). He went on and found that Mr.

Harpold had “failed to establish a factual basis which would support a finding that the second element of the tort of misfeasance in public office has been made out” (at para 54). Finally, the Chambers judge determined that “[even] if it was possible for Mr. Harpold to get to the third element of the tort of misfeasance in public office, [he] has failed to prove any compensable damage on a balance of probabilities” (at para 61). These conclusions allowed the Chambers judge to state that Mr.

Harpold had “failed to present any, let alone sufficient, evidence to demonstrate on a balance of probabilities that [Corrections and Policing officials] have committed the tort of misfeasance in public office” (at para 62). On this basis, he granted judgment in favour of Corrections and Policing, dismissing Mr. Harpold’s action in its entirety. III. Issues [ 10 ] Although Mr. Harpold raises several grounds in his notice of appeal and written argument, as we see it, there are three questions that require this Court’s attention, as follows: (

a) Did the Chambers judge err in finding that Mr. Harpold was not given written permission to work permanently with Thompson Construction? (

b) Did the Chambers judge err in finding that Mr. Harpold’s probation officer did not act in bad faith? (

c) Did the Chambers judge err in finding that there were no genuine issues requiring a trial? IV. Analysis A. Finding of no permanent permission [ 11 ] Mr. Harpold’s first argument is that the Chambers judge erred when he failed to find that Mr. Harpold had been granted permission to work permanently in Fort McMurray. His submission is grounded in the fact that the offer of employment he received was for permanent work and that the letter signed by his probation officer stated that he had “permission to reside at the Fort Hills Camp [located north of Fort McMurray] for employment purposes”.

There are several reasons why we can give no effect to this argument. [ 12 ] This Court must respect the Chambers judge’s findings of fact unless any particular finding is a product of palpable and overriding error: Hryniak v Mauldin , 2014 SCC 7 at para 81 , [2014] 1 SCR 87; Deren v SaskPower , 2017 SKCA 104 at para 41 [ Deren ]; and Stromberg v Olafson , 2023 SKCA 67 at para 112 [ Stromberg ].

A palpable and overriding error is one that is “so obvious that it can easily be seen or known” and which must or may well have altered the result ( Housen v Nikolaisen , 2002 SCC 33 at para 5 , [2002] 2 SCR 235 ). [ 13 ] We can identify no such error in the Chambers judge’s findings relating to the permission given to Mr. Harpold to reside at the Fort Hills Camp.

The statement granting that permission was preceded by a description of his work and travel arrangements for the period starting November 17 and ending December 1, following which it was stated that he would be “flying out of Fort McMurray back to Saskatchewan”. It was following this two-week period that Mr.

Harpold was advised by his probation officer that no further permission would be given for him to work and reside in Alberta “because officials in the Ministry of Community Corrections determined that his reporting requirements under his s. 810.1 recognizance could not adequately be complied with on an ongoing basis” ( Chambers Decision at para 43(b)). This was a finding that was open to the Chambers judge on the record. We see no error in him reaching this conclusion. [ 14 ] In both his notice of appeal and written argument, Mr.

Harpold explains that he would not have accepted the job had he known that the permission was only for a limited period of time. However, this does not change the text of the letter that Mr. Harpold received. Moreover, this submission misses the root reason why his claim failed under the first element of the tort. [ 15 ] In the latter regard, the Chambers judge held that there was no evidence that Corrections and Policing’s officials had committed any action that could be characterized as contrary to law. Rather, the Chambers judge concluded that the departmental officials and police personnel familiar with Mr.

Harpold’s case had determined that “permitting him to return to Alberta for another two-week period during which the reporting requirements of his recognizance would effectively be suspended was not appropriate in the circumstances”. The Chambers judge agreed with the submission by Corrections and Policing that these officials had an obligation “to monitor the activities of individuals subject to their supervision in accordance with the law”. Here, it appeared to these officials that “their ability to comply with these responsibilities [had been] compromised” (at para 45).

He concluded on this issue by stating that the “evidence before the court on this

summary judgment application discloses that [the probation officer’s] decisions respecting an authorization for Mr. Harpold to work in Alberta were consistent with discretionary powers given to her as a correction official pursuant to [the Act ], among other enactments, as well as the common law” (at para 47). We see nothing in the record that convinces us that the Chambers judge erred in the reasons he gave for his conclusion that no trial was required to determine that Mr.

Harpold’s claim failed because he could not prove the first element of the tort of misfeasance in public office. [ 16 ] For these reasons, we must dismiss Mr. Harpold’s first argument. B. Finding of no bad faith [ 17 ] The Chambers judge concluded that Mr. Harpold had failed to show that his probation officer had “acted in bad faith with the

intention of injuring or otherwise harming” him (at para 50). He also observed that s. 111 of the Act immunized the applicable officials “for actions carried out ‘in good faith’ which are subsequently [found] to be contrary to the Act or regulations”. In this regard, he concluded that “there is nothing in the record which would displace the operation of this provision” (at para 53). [ 18 ] Mr. Harpold attacks these findings. In his written argument he says that the applicable officials “did not consider the financial harm [that refusing further permissions] was going to cause” to him.

He also suggests that under the applicable labour laws he was supposed to give his employee notice of his intention to quit his job, which was not considered by Corrections and Policing employees. However, neither of these points address the bona fides of the decisions taken by the officials in question. [ 19 ] Accordingly, we find no error in the Chambers judge’s finding that Mr. Harpold could not prove bad faith by Corrections and Policing officials. C. No genuine issue requiring a trial [ 20 ] Apart from the specific errors Mr.

Harpold alleges, which have been reviewed above, several other points that he makes can be distilled to the more general assertion that the Chambers judge should have recognized that there was sufficient uncertainty in the evidence to merit a trial. [ 21 ] This Court has held that whether a genuine issue for trial exists is a question of mixed fact and law, reviewable on appeal on the palpable and overriding error standard (see, for example, Deren at para 41 ).

More recently, in Stromberg , Barrington-Foote J.A., (with Richards C.J.S. in concurrence) stated that the “decision as to whether there is a genuine issue for trial on a

summary judgment application is discretionary” (at para 117). He then quoted the following passage from Kot v Kot , 2021 SKCA 4 , 63 ETR (4th) 161: [20] ... appellate intervention in a discretionary decision is appropriate where the judge made a palpable and overriding error in their assessment of the facts, including as a result of misapprehending or failing to consider material evidence. Appellate intervention is also appropriate where the judge failed to correctly identify the legal criteria which governed the exercise of their discretion or misapplied those criteria, thereby committing an error of law.

Such errors may include a failure to give any or sufficient weight to a relevant consideration. [ 22 ] We can see no error in the Chambers judge’s determination that there was no genuine issue requiring a trial in this case. There is no such issue if, on

summary judgment, facts can be found, law applied and a fair and just determination of the merits achieved: Michel v Saskatchewan , 2021 SKCA 126 at para 116 . Here, the evidence was straightforward. The affidavits filed by the parties stood without contradiction on material points. There was no cross-examination of the affiants that would cast any doubt on any material points. No errors in principle have been identified. [ 23 ] Before concluding on this question, we do wish to identify an issue that was not raised directly by Mr. Harpold, but which touches on this ground of appeal.

It is possible to interpret the Chambers Decision as reflecting that the Chambers judge determined that there was no genuine issue requiring a trial before he had examined the evidence that led him to conclude that Mr. Harpold’s claim should be dismissed. In this regard, beginning at paragraph 24 of his reasons, the Chambers judge considered whether

summary judgment was appropriate. He stated that he “accept[ed] Saskatchewan’s submissions that a fair and just adjudication of Mr. Harpold’s claim can be made based on the record” before him (at para 29). Only after this did the Chambers judge review the evidence in relation to the elements of the tort of misfeasance in public office. [ 24 ] This Court has previously explained that it is generally inappropriate to decide if

summary judgment is a suitable process before getting into the nitty gritty of the evidence. The reasons for this were set out in McCorriston v Hunter , 2019 SKCA 106 , 33 RFL (8th) 310 as follows: [44] The assessment of whether

summary judgment is appropriate as a process and whether there is a genuine issue requiring trial must generally be answered at the same time , because in most cases they are two sides of the same coin.

Summary judgment can be granted if “there is no genuine issue requiring trial with respect to a claim or defence” (Rule 7-5(1)(a)). In connection with this, the existence of a “genuine issue” is seldom in dispute. Instead, in most cases, the issue at large when a motion for

summary judgment is presented is whether the resolution of that issue requires a trial in order to sort out the facts. To assess if a trial is required, a Chambers judge must get into the detail of how the issue and evidence interrelate, and then decide if the evidence allows the issue to be fairly resolved. This follows from the idea that no genuine issue requiring a trial exists if facts can be found , law applied, and a fair and just determination on the merits achieved.

In the course of undertaking this process, the judge has discretion whether, if necessary, to use the so-called “new powers” set out in Rule 7-5(2) (i.e., to weigh evidence, evaluate credibility, and draw reasonable inferences) in order to sort out the facts. However, the fundamental question does not change – the question remains whether a trial is required to reach a fair and just determination of the issue.

These points were said, perhaps more succinctly, in Blue Hill Excavating Inc. v Canadian Western Bank Leasing Inc. , 2019 SKCA 22 , [2019] 4 WWR 393, with reference to paragraph 49 of Hryniak : [41] This test presupposes that when

summary judgment is granted the court has reached a fair and just determination ; the point simply being that the

summary judgment process is appropriate in any particular case because it is possible for the court to reach a fair and just determination of the issue(

s) before it. Therefore, when

summary judgment is granted, the issues of process and merits are inextricably intertwined. (Emphasis in original) See also Stromberg at paras 75–77 . [ 25 ] It is possible to read the Chambers Decision as demonstrating an error of the kind described in McCorriston . However, there is also a second way to view it. [ 26 ] The Chambers judge may have discussed the need for a trial before he dug deeply into the evidence in response to Mr. Harpold’s argument that a trial was required so that he could, by using pre-trial discovery, gain access to information that was not before

the court in any of the affidavits. In this regard, Mr. Harpold asserted that a Corrections and Policing official had justified the decision to refuse further permission for him to work in Alberta based on “new information”. Corrections and Policing had denied the existence of any alleged “new or additional information” (see Chambers Decision at para 26). [ 27 ] The Chambers judge concluded that the mere allegation that evidence may be uncovered in the discovery process leading to a trial did not justify dismissal of the

summary judgment application in this case. He referred to Canada (Attorney General) v Lameman , 2008 SCC 14 at para 11 , [2008] 1 SCR 372 [ Lameman ], for the proposition that, during the

summary judgment application process, each side “must ‘put its best foot forward’ with respect to the existence or non-existence of material issues to be tried” ( Chambers Decision at para 22). He also quoted from a later passage from Lameman wherein the Court noted that a “summary judgment motion cannot be defeated by vague references to what may be adduced in the future, if the matter is allowed to proceed” (at para 19, as referred to in Chambers Decision at para 23). The Chambers judge’s rejection of Mr.

Harpold’s argument that a trial was required so that he could gain access to further information using pre-trial discovery was, therefore, on strong jurisprudential ground. More fundamentally, paragraph 29 of the Chambers Decision , from which any concern about the order that the Chambers judge decided matters emerges, can be seen as part of his reasoning following this authority. [ 28 ] In any event, even if the Chambers judge was reasoning more broadly, and had concluded that a

summary disposition was appropriate without first examining all the evidence, there is no effect on the bottom-line result in this case. Here, the Chambers judge found that Mr. Harpold’s claim failed because three elements of the tort could not be met. For Mr. Harpold to succeed under this ground, it is not enough for him to show that a trial was required under one of the elements, he must convince us that the Chambers judge erred in seeing no genuine issue for trial in connection with all three of the elements. Given the uncontradicted nature of the evidence before the Chambers judge, the result of the

summary judgment application was inevitable. [ 29 ] The Chambers judge did not err in finding that there was no genuine issue requiring a trial. V. Conclusion [ 30 ] In

summary, we have not identified any extricable error in principle by the Chambers judge that affects his bottom-line conclusion. We also do not see any palpable and overriding error in the Chambers judge’s findings of fact in relation to his conclusion that Mr. Harpold’s action for misfeasance in public office should be summarily dismissed. [ 31 ] In the result, the appeal is dismissed. Corrections and Policing shall have its costs, in the usual manner. “Caldwell J.A.” Caldwell J.A. “Leurer J.A.” Leurer J.A. “McCreary J.A.” McCreary J.A.