NOTICE OF APPEAL Q.B. No 1082 of A.D. 1994

Q.B. No 1082 of A.D. 1994
C A N A D A
PROVINCE OF SASKATCHEWAN

IN THE COURT OF APPEAL FOR SASKATCHEWAN

B E T W E E N:

JAMES GARRY HUNTER,

APPELLANT(PLAINTIFF)

- and -

THE GOVERNMENT OF SASKATCHEWAN
SASKATCHEWAN ENVIRONMENT AND PUBLIC SAFETY
MINES POLLUTION CONTROL BRANCH OF SASKATCHEWAN ENVIRONMENT AND PUBLIC SAFETY

RESPONDENT(DEFENDANTS)

NOTICE OF APPEAL

JAMES G. HUNTER
P.O. BOX 7645
SASKATOON, SASKATCHEWAN
S7K 4R4

NOTICE OF APPEAL

TAKE NOTICE that James Hunter above named Appellant hereby appeal to the Court of Appeal from the orders of the Honourable Justice Wright J. delivered in the above matter on the 12th day of August, 1994.

And further take notice that the said appeal is taken upon the following grounds:

1. That Justice Wright was wrong in law in striking out the claim of the Appellant(Plaintiff) under rule 173(a) . Under rule 173(a) with the assistance of counsel, the judge must consider the following questions:

(1) Are the facts relied on by the applicant confined to facts contained in the opponent's pleadings or facts contained in the applicant's pleadings which the opponent has admitted?

(2) Does the applicant in his or her pleadings dispute any of the facts in the opponent's pleadings which the appellant opposes to strike out?

(3) Do the facts in the opponent's pleading clearly raise the issue and provide the facts necessary to determine the issue?

If questions 1, 2 and 3 cannot be favourably answered, then a rule 173(a) application should be dismissed.

2. With respect to question 1. The Notice of Motion of the Respondent(Applicants) on page two states : AND FURTHER TAKE NOTICE THAT in support of the said application will be read the following: (b) Affidavit of Peter Courtney.

Unlike applications pursuant to rule 188 where agreed statements of fact are allowed, or applications under rule 173(c) where limited affidavit evidence is permitted, no evidence by affidavit or otherwise is admissible with respect to an application under rule 173(a): Attorney General of Canada v. Inuit Tapirisat of Canada and the National Anti-Poverty Organization, supra; Govan Local School Board, supra, p. 497; Marshall v. Saskatchewan, Petz and Adams, [1983] 2 W.W.R. 92; 20 Sask.R. 309 (C.A.) American Hoist of Canada Ltd. v. Schule (1993), 29 Sask.R. 47 (Q.B.); McKay (H.R.) Trucking Ltd. v. Birch Hills Co-operative Association Ltd., Midland Industrial Structures Ltd. and Federated Co-Operatives Ltd. (1993), 26 Sask.R. 309 (Q.B.); Balacko v. Eatons's of Canada Ltd. (1967), 60 W.W.R.(N.S.) 22 (Sask. Q.B.).

In American Hoist, supra, Grotsky, J., stated the principle at p. 51:

"On an application to strike out a statement of claim on the ground that it discloses no reasonable cause of action the only documents which may properly be considered are the notice of motion, the statement of claim itself, particulars furnished pursuant to a demand therefor, and any document which is referred to in the statement of claim upon which the plaintiff must rely for the establishment of his claim, for such a document is to be considered for the purposes of an application as forming part of the pleading: Hogan v. Brantford (City) (1909-10), 1 O.W.N. 226. ..."

Documents referred to in a statement of claim which are merely evidentiary and from which a plaintiff's claim does not arise should not be considered: Balacko v. Eaton's of Canada Limited, supra, at p. 26.

3. The affidavit of Peter Courtney dealt solely with affidavit evidence. The claim of the Plaintiff (Respondent-Appellant) did not arise from this evidence and is not relied upon for the establishment of his claim. The Appellant(Respondent) filed affidavit evidence that responded to the affidavit evidence of Peter Courtney. Justice Wright has considered affidavit evidence from both parties in his Judgment.

4. Under rule 173(a) a court is only concerned as to whether a reasonable cause of action or defence exists. The overarching purpose of rule 173 is to save the court and the parties the cost, time and inconvenience of dealing with seriously defective or unmeritorious pleadings, claims or defences. With the acceptance of the affidavit of Peter Courtney, the Order of Justice Wright sets two standards for the court. One for lawyers and another for nonlawyers. The fact that the claim is defective does not justify this.

5. The Appeal shall be set for hearing in the City of Saskatoon.

The Appellant(Respondent) therefore asks for the following orders:

a. A reversal of the order with respect to costs.

b. Costs to the Appellant(Respondent).

c. Costs

Dated at Saskatoon, Saskatchewan, this day of September, 1994.

This document was prepared by:

JAMES HUNTER
Appellant address for service
whose address for service is: in the City of Regina is:
P.O. Box 7645 278 Cavendish Street
Saskatoon, Saskatchewan Regina, Saskatchewan
S7K 4R4 S4N 4J7


TO THE RESPONDENT

- THE GOVERNMENT OF SASKATCHEWAN