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Holowachuk v. Mollard, 2004 SKQB 276 (CanLII)

PDF Format Date: Docket: URL: 2004-06-17 QB04323 QBG334/04JCS http://www.canlii.org/en/sk/skqb/doc/2004/2004skqb276/2004skqb276.html

Reflex Record (noteup and cited decisions)

2004 SKQB 276 Q.B.G. No. 334 IN THE QUEENS BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: LORRAINE HOLOWACHUK PLAINTIFF (RESPONDENT) - and KATHY MOLLARD, ROBERT DOIG, SASKATOON BOARD OF POLICE COMMISSIONERS, TIM SELLAR, GREG H. ROBERT, LEE JONES DEFENDANTS (APPLICANTS) W.A. Bischoff L. Holowachuk representing herself for the applicants A.D. 2004 J.C.S.

FIAT June 17, 2004

ROTHERY J.

[1] The Saskatoon Board of Police Commissioners, Tim Sellar, Greg H. Robert and Lee Jones apply to have the cause of action against them struck on the basis it discloses no reasonable cause of action as required by Rule 173 of The Queens Bench Rules. Sellar, Robert and Jones also apply to have certain paragraphs struck as being immaterial, redundant or unnecessarily prolix. [2] The plaintiff, representing herself, commenced this action against the applicants, along with an action against a former police officer, Robert Doig and one Kathy Mollard. The action describes a sequence of events where Doig and Mollard sought a peace bond against the plaintiff. The three police officers, Sellar, Robert and Jones, were involved in receiving the complaint. The court was not satisfied that the evidence was sufficient to order the plaintiff to enter a recognizance and the information against her was dismissed. [3] The plaintiff now sues the defendants for malicious prosecution, negligence, false arrest and false imprisonment, breach of her Charter rights, and conspiracy. She sues the Saskatoon Board of Police Commissioners for being vicariously liable for the actions of Sellar, Robert and Jones. [4] The application by the Saskatoon Board of Police Commissioners under Rule 173(a) that the claim discloses no reasonable cause of action against it is successful. The law is settled on this point. The Police Act, 1990, S.S. 1990-91, c. P-15.01, does not create a master/servant relationship between the Board and the police officers. A full discussion of this legal principle is found in Klein v. Board of Police Commissioners of Regina reflex, (1995), 130 Sask. R. 203 (Q.B.). The claim is struck against the Saskatoon Board of Police Commissioners. [5] The law is also settled with respect to the plaintiffs claim in para. 31 that the defendants have deprived her of the rights guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms. This is an action between the plaintiff and the defendants as private parties. There is no element of government intervention necessary to make the Charter applicable. See: Retail, Wholesale and Department Store Union, Local 580, Al Peterson and Donna Alexander v. Dolphin Delivery Ltd., 1986 CanLII 5 (S.C.C.), [1986] 2 S.C.R. 573 at 598-99. [6] Therefore, para. 31, and the portions of paras. 33 and 35 pertaining to the Charter are hereby struck from the claim as disclosing no reasonable cause of action. [7] As to the claims against Sellar, Robert and Jones for malicious prosecution, negligence, false arrest and false imprisonment, and conspiracy, the allegation that the pleadings are immaterial, redundant or unnecessarily prolix is without merit. This case cannot be compared to the pleadings before the court in Amendt v. Canada Life Assurance Company, [1999] S.J. No. 157 (Q.B.) (QL). As stated by Goldenberg J. at para. 19, I am unable to fathom a claim against these defendants from the materials before me. [8] Oppositely, the plaintiff has composed a claim that is readable and is clear in providing a basis for her allegations. While some of the sentences may offend Rule 139(1) that the pleadings contain only a statement in a summary form of the material facts on which the party pleading relies for his claim, it is not so egregious that paragraphs be struck out. The additional material simply assists the defendants in knowing the claim that they must meet. [9] As to whether these pleadings disclose a reasonable cause of action, I am mindful of the comments made by Gerein J. (as he then was) in Pich v. Big C First Nation 1994 CanLII 5004 (SK Q.B.), (1994), 121 Sask. R. 20 (Q.B.) at para. 7 that are applicable here: [7] When examining a particular pleading the court is not to look at it in the abstract, but as it describes the relationship between the parties. It is within that context that the pleading must be viewed and its merit determined. . . . [10] Counsel for the applicants submits that the facts pled do not lead to malice. That is a determination for the trial judge. [11] Counsel for the applicants also suggests that the claim of negligence does not plead the essential element that the police officers were acting outside their authority as required by s. 10(3) of The Police Act, 1990. While I agree that the plaintiff has not made such a statement, her pleadings include an allegation of gross negligence and allegations of placing false information on the police file and providing false information to the prosecutor. That amounts to allegations of a police officer acting outside his authority. The necessary pleadings for negligence are found in the plaintiffs claim. [12] In summary, the applicants are successful in their motion for the dismissal of the claim against the Saskatoon Board of Police Commissioners and the claim against all defendants based on a breach of the Charter. The other portions of the application are dismissed.

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