Focus On

CIVIL PROCEDURE - Actions - Case management - Striking out pleadings or allegations

Friday, October 01, 2021 @ 6:36 AM  

Lexis Advance® Quicklaw®
Appeal by self-represented Yashcheshen from a fiat in her Yorkton action that required her to file an amended statement of claim by a deadline and from a decision that dismissed her Saskatoon action. In the Yorkton action, the appellant alleged the RCMP discriminated against her by not making reasonable accommodation for her medical condition during the employment application process and improperly disseminated her personal health information. When the appellant attempted to file her amended statement of claim after the deadline imposed by the fiat, the court refused to accept it for filing. As a result, the Yorkton action was dismissed. With a few minor exceptions, the Saskatoon action was identical to the amended Yorkton claim the appellant had attempted to file. The Attorney General applied to strike the Saskatoon action as an abuse of process. A chambers judge struck the Saskatoon action on the basis it was technically deficient.

HELD: Appeal allowed. The case management judge did not conduct the analysis required under Rule 4-44 of the Queen’s Bench Rules prior to making the fiat. There was nothing in his reasons to indicate he turned his mind to the question of whether any delay was inordinate and if so, whether it was excusable, or if it was inexcusable, whether the interests of justice favoured permitting the action to proceed. The failure to conduct that analysis was an error in principle. The delay in question could not reasonably be characterized as inordinate. The case management judge erred by dismissing the Yorkton claim. The appellant did not establish a reasonable apprehension that the chambers judge was biased in the Saskatoon action. The appellant was denied procedural fairness when the chambers judge struck the Saskatoon action based on grounds the Attorney General had not raised in its application. The chambers judge should have given the appellant an adequate opportunity to respond before proceeding to grant relief on grounds not asserted in the notice of application.

Yashcheshen v. Canada (Attorney General), [2021] S.J. No. 369, Saskatchewan Court of Appeal, G.R. Jackson, L.M. Schwann and J.D. Kalmakoff JJ.A., August 31, 2021. Digest No. TLD-September272021010