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Saskatchewan
Memo to intervene in its own appeal |
Interim judgment
in Klassen/Kvello lawsuit page 1
(Finding on
the nonsuit application)
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- 2003 SKQB 451
- Q.B.G. A.D. 1994
- No. 271 J.C.S.
- IN THE QUEEN'S BENCH
- JUDICIAL CENTRE OF SASKATOON
- BETWEEN:
- THE ESTATE OF DENNIS KVELLO (by his
personal representative, Diane Kvello),
- DIANE KVELLO, S.K., S.K.,
- KARI KLASSEN,
- RICHARD KLASSEN,
- PAMELA SHARPE,
- THE ESTATE OF MARIE KLASSEN (by her
personal representative Peter Dale Klassen),
- JOHN KLASSEN,
- MYRNA KLASSEN,
- PETER DALE KLASSEN,
- ANITA JANINE KLASSEN
- PLAINTIFFS -
- and -
- MATTHEW MIAZGA,
- SONJA HANSEN,
- THE ESTATE OF RICHARD QUINNEY (by his
personal representative Murray Brown),
- BRIAN DUECK,
- CAROL BUNKO-RUYS DEFENDANTS
- Robert L. Borden and Edward Holgate
for all the plaintiffs except Richard Klassen
- Richard Klassen on his own behalf
- Donald A. McKillop, Q.C. for all the
defendants except Brian Dueck
- David A. Gerrand for Brian Dueck
- JUDGMENT BAYNTON J. October 27, 2003
2
The Nature of the Applications [1] At the conclusion of the plaintiffs'
case in this trial, the defendants brought non-suit motions to
dismiss the various causes of action brought by the plaintiffs
against them. The defendants allege that the plaintiffs have
not adduced sufficient evidence which, if left uncontradicted,
could satisfy a reasonable trier of fact that the elements of
the various causes of action alleged against each separate defendant
have been made out. [2] The plaintiffs maintain that in the peculiar
circumstances of this case, in which there is a considerable
overlap in the multiple causes of action and the multiple defendants,
these motions artificially split and sever the case and unduly
prolong it. The motions also require the plaintiffs to make submissions
respecting all the legal and factual issues raised by the case
in two stages instead of one at the end of the trial in the usual
manner.
Issues
[3] The non-suit motions raise
three issues: 1. Are the multiple defendants entitled in the
circumstances of this case to bring non-suit motions? 2. If so,
what is the legal test to be applied to the evidence and the
law respecting the causes of action pled? 3. If the defendants
are entitled to bring their motions, should any or all of the
causes of action be dismissed against any or all the defendants
for the
3
various reasons advanced by
the defendants?
Background Facts
[4] In brief, the plaintiffs
were charged with and prosecuted for numerous sexual assault
offences involving several foster children on the strength of
fabricated "disclosures" of sexual abuse by those children.
The allegations of abuse were made against many other individuals
who are not plaintiffs in this action, many of which were not
pursued by the authorities. Many of the allegations were bizarre
and included ritualistic abuse, murder, the ingestion of feces
and blood, sexual assaults on animals, group sex and other incredible
sexual acts. The plaintiffs did not commit any of the offences
alleged by the foster children.
[5] The 12 plaintiffs in this
action consist of a brother and sister who were charged as young
offenders, four pairs of spouses (one of whom is deceased and
two pairs who were foster parents), a single woman who was a
foster parent and a deceased grandmother who had been a foster
parent at one time. All the charges against the plaintiffs were
eventually stayed at various stages of the prosecution. But the
most serious charges were not stayed against any of the plaintiffs
until after they had been committed to stand trial at their preliminary
inquiry and not until the eve of their trial. The convictions
of three of the non-plaintiffs in a separate trial were subsequently
overturned and one other nonplaintiff pled guilty to one count
of sexual assault against each of four children.
[6] The nub of the plaintiffs'
action is a claim for damages for malicious prosecution against
the five defendants consisting of a child therapist, Carol Bunko-Ruys,
an investigating police officer, Brian Dueck, two prosecutors,
Matthew Miazga and Sonja Hansen (her name is incorrectly spelled
in the style of cause) and the estate of a former
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director of public prosecutions,
Richard Quinney, now deceased. The action also includes other
causes of action including a negligence claim against the therapist,
a negligent investigation claim and false imprisonment claim
against the police officer and a claim that the plaintiffs' s.
7 rights guaranteed by the Canadian Charter of Rights and
Freedoms were breached. The action also alleges conspiracies
on the part of the defendants to injure the plaintiffs.
[7] The evidence adduced by
the plaintiffs consists of notes made by a foster mother respecting
"disclosures" she solicited from some of the children
who made the allegations of sexual abuse. It also consists of
notes, memos and correspondence authored by the defendants, videotapes
of police interviews of the children and of the plaintiffs, an
audiotape, numerous documents, the transcripts of the preliminary
inquiries, the trial and an appeal application in the Court of
Appeal and almost the complete transcripts of the examination
for discoveries of the defendants by Richard Klassen and counsel
for the other plaintiffs. The evidence also included the testimony
of a host of witnesses called by the plaintiffs over a period
of almost four weeks.
[8] No expert witnesses were
called by the plaintiffs, a failure that the defendants allege
is fatal to the plaintiffs' claim of negligence against the therapist
and the plaintiffs' claim of negligent investigation against
the police officer. The defendants also maintain that this latter
claim is not a cause of action known to the law in Saskatchewan
and that any claim for breach of Charter rights cannot
stand apart from the malicious prosecution claim. The primary
submission by the defendants is that the plaintiffs have failed
to provide any or sufficient evidence of malice, an essential
element of the malicious prosecution action.
[9] The defendants provided
an undertaking to the court through their counsel at
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the outset of the applications.
It is to the effect that if their non-suit applications are not
wholly successful and they call evidence, only the defendants
themselves will give evidence and no counsel for the defendants
will lead, nor expect, such evidence to "point the finger
of liability at any other defendant". The pleadings filed
by the defendants make no claim against, nor assert any right
to, contribution or indemnity from any other defendant in the
lawsuit. This was done to induce the court not to apply the multiple
defendant restriction respecting non-suit applications.
The Law
Applications
for Non-suit 1.
The Entitlement to Bring the Non-suit Motions
[10] In the circumstances of
this case, the non-suit motions strike at the heart of the plaintiffs'
action. The submissions respecting the motions consumed almost
three days of trial time. I realize that the motions have the
effect of prolonging the trial and duplicating in part the legal
and factual submissions that the plaintiffs are required to make
to the court. As well, the motions do not single out a specific
aspect of the plaintiffs' actions, as is usually the case, but
challenge every aspect of it. Because of this, the court is in
effect required to consider twice, not just once at the end of
the trial in the usual fashion, all the various legal issues
and the whole of the evidence adduced by the plaintiffs.
[11] But despite these consequences,
I am satisfied that the defendants are entitled to bring these
non-suit motions. I am also satisfied that it is not open to
me, absent the consent of the parties, to defer my ruling until
my judgment at the end of the trial. To do so in this case would
deny the defendants their rights granted by The Queen's Bench
Rules.
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Rule 278A provides as follows:
278A At the close of the plaintiff's case the defendant
may, without being called upon to elect whether he will call
evidence, move for dismissal of the action. [Emphasis added]
2. The Historical
Basis for Rule 278A
[12] I will comment briefly
on the purpose of the rule by way of explanation for the reason
this trial was adjourned for a significant period of time at
the close of the plaintiffs' case. Prior to 1991 when the rule
was enacted, the common law required the applicant defendants
to elect to call no evidence before being entitled to bring an
application for a non-suit. Such an application was rare because
of the inherent risk to the defendants in bringing it. The common
law rule of practice fostered protracted litigation in that some
trials that should have been concluded at the end of the plaintiffs'
case, were carried on unnecessarily until the end of the defendants'
case.
[13] Under the "new"
rule, the defendants can now, without electing whether to call
evidence and with little risk other than incurring costs, bring
a non-suit application. The rule addresses the problem with the
common law rule that I have outlined. If each of the defendants
is successful in all respects, the litigation will be expedited
as the ruling on the non-suit will determine the outcome of the
trial itself. Even if the action is dismissed against some of
the defendants, or if some of the causes of action are dismissed
against some of the defendants, the litigation will be expedited
to some degree. But if each of the defendants is unsuccessful
in all respects, the litigation will be hindered because the
trial will be segmented and its flow interrupted. This is so
even if the defendants subsequently decide to call no evidence
because the court will be required to consider the whole of the
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plaintiffs' case in two stages
using two different evidentiary standards. The first to determine
if a prima facie case has been made out, the second to
determine if the case has been made out on a balance of probabilities.
[14] In certain circumstances,
even where the litigation is expedited, the rule can result in
delays in the litigation, particularly in lengthy trials where
the non-suit issue is not specific but pertains to the whole
case in general. The delays are more pronounced in cases that
involve legal and factual issues which are largely dependent
on inferences to be drawn from facts established by a substantial
amount of direct evidence. They are even more pronounced in cases
where a substantial amount of documentary evidence has not been
seen by the judge because it has not been tendered until the
close of the plaintiffs' case, the time when the non-suit application
is brought.
[15] The consideration of the
examination for discovery evidence in this manner is more efficient
than having counsel spend days reading it into the record in
open court. The portions of the transcripts that would otherwise
be orally read into the court record, or alternatively a list
of the desired questions and answers, can be made part of the
record as court exhibits. The judge can then read the transcripts
in his or her chambers when preparing the judgment after the
conclusion of the trial and considerable trial time is saved.
Where a non-suit application is brought however, even though
there is still a saving of trial time, the court has no other
recourse but to adjourn the trial in order to read and consider
the evidence not heard in open court. 3. The Non-suit Test and
the Relevant Considerations
[16] The general legal test
to be applied in determining non-suit applications is
8
well established. It is whether
a prima facie case has been made out at the conclusion
of the plaintiffs' case in the sense that a reasonable trier
of fact (a judge or properly instructed jury) could find in the
plaintiffs' favour on the basis of the uncontradicted evidence
adduced. Where the nature of the case requires the drawing of
inferences of fact from other facts established by direct evidence,
the test includes the question of whether the inferences that
the plaintiffs seek could reasonably be drawn from the direct
evidence adduced if the trier of fact chooses to accept the direct
evidence as fact.
[17] I use the term prima
facie case to indicate that the applicants have a lesser
onus than having to demonstrate the absence of "any"
evidence on a material issue. The case law clearly establishes
that the applicants need only demonstrate the absence of "sufficient"
evidence, which if left uncontradicted, could satisfy a reasonable
trier of fact that the case has been made out on a balance of
probabilities. The ruling on a non-suit motion is a question
of law. The determination of the credibility or believability
of the evidence is a question of fact to be subsequently determined
in the action if the non-suit application fails.
[18] As authority for the comments
I have just outlined, I rely primarily on Reid v. Kraus et
al., 2000 SKCA 32, (2000), 189 Sask. R. 122 (C.A.) and Sopinka,
Lederman and Bryant in The Law of Evidence in Canada,
2d ed. (Toronto: Butterworths, 1999) at s. 5.4 and on the quotations
from these authorities referred to in Palmer-Johnson v. Tochor,
2003 SKQB 197, (2003), 33 C.P.C. (5th) 116 (Q.B.), a decision
of my colleague Zarzeczny J.
[19] I have also considered
and adopted the following collateral legal principles that apply
to non-suit applications:
1. The court must consider
the evidence which has been presented in a fashion
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most favourable to the plaintiffs
and must draw reasonable inferences from the evidence to determine
whether, if a jury were present, that jury would be in a position
to make a decision based upon the evidence adduced. This involves
a weighing of the evidence to determine on the whole what tendency
the evidence has to establish the issue in dispute including
all such inferences of fact the jury would be warranted in drawing
from the direct facts they found to be proved. But the determination
of credibility issues must be left for the subsequent determination
by the trier of fact. Moody's Equipment Ltd. v. Royal and
Sun Alliance Insurance Co. of Canada et al., 2002 SKQB 507,
(2002), 226 Sask. R. 237 (Q.B.), a decision of my colleague Allbright
J., and the citations of authorities referred to therein.
2. The fact that there are
multiple defendants in the lawsuit usually precludes an application
by any of them for a non-suit even where there is no asserted
claim of contribution. Moody's Equipment Ltd., supra.
But this restriction does not apply where it is clear that no
evidence led by the remaining defendants could result in liability
attaching to the defendants who seek the non-suit. Stillwater
Forest Inc. v. Clearwater Forest Products Ltd. Partnership,
2000 SKQB 110, [2000] S.J. No. 211 (Q.B.), a decision of my colleague
Pritchard J. Her decision also demonstrates that the court must
consider the non-suit application from the perspective of each
cause of action pled in the lawsuit except in cases where the
law respecting those causes of action is not well settled.
3. At the non-suit stage, it
is not the function of the court to decide the substantive issues
to be tried or to make substantive rulings respecting the application
or non-application of common law principles or statutory
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provisions to the facts of
the case as they may ultimately be found. These substantive determinations
are properly left as matters to be decided and determined after
all the evidence is in and complete legal briefs are filed. Travel
West (1987) Inc. v. Langdon Towers Apartments Ltd., 2000
SKQB 294, [2000] S.J. No. 418 (Q.B.), a decision of my colleague
Zarzeczny J. and a case that relied on Reid v. Kraus, supra,
and which dismissed the non-suit application and dealt with the
substantive issues in the final judgment. The appeal from the
final trial judgment was allowed on other grounds, 2002 SKCA
51, (2002), 217 Sask. R. 233 (C.A.). The extensive appeal judgment
indicated that it was not the facts but the application of legal
principles to those facts which was primarily in dispute between
the parties. The decision also indicates the wisdom of the trial
court dismissing the non-suit application on the basis that it
required the court to rule primarily on substantive legal issues.
The determination of those substantive issues was deferred until
the trial judgment and was made with the benefit of all the evidence
and full legal submissions. Had the trial court done otherwise,
the Court of Appeal would likely have had no other alternative
but to order a new trial at the considerable expense of all the
parties. Obviously, a ruling on legal issues pursuant to a non-suit
application brought midway through the trial might well shorten
the trial by narrowing the focus of the litigation. But where
the parties desire a legal interpretation or a ruling on legal
issues that is likely to determine the outcome of the litigation
or that is likely to significantly affect the course of the trial,
there are more efficient and timely ways of doing so, such as
a Rule 188 application by the
11
consent of the parties. Views
expressed by some of the Justices of the Supreme Court of Canada
in Nelles v. Ontario, [1989] 2 S.C.R. 170 as to the advisability
of the court determining unsettled legal issues on the basis
of a preliminary motion, do not strictly apply to a non-suit
motion. But the views indicate the potential problems that preliminary
rulings can pose for the parties and the appeal courts.
4. The failure to adduce the
evidence of an expert witness usually entitles a defendant to
successfully bring a non-suit application in cases alleging professional
negligence except where the alleged negligence is so evident
that the trier of fact can determine the issue on the basis of
"common sense". Palmer-Johnson v. Tochor, supra.
I have discussed this aspect of this decision more fully later.
5. The examination for discovery
read-in admissions of one party are not receivable as evidence
against another party in the action unless it is a conspiracy
case and there is independent proof of common design of the nature
set out by Grotsky J. in Culzean Inventions Ltd. v. Midwestern
Broom Co., [1984] 3 W.W.R. 11 (Sask. Q.B.) at paras. 64 and
65.
4. The Material
Relied Upon
[20] I have carefully considered
all the evidence presented in this case to the date the non-suit
applications were brought on behalf of each of the defendants.
I described the nature of this evidence previously. The quantity
of the evidence I read after I reserved my
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decision on the non-suit application,
in the form of documents, examination for discovery read-ins
and preliminary inquiry and trial transcripts, exceeded that
of the evidence I heard at trial in the form of videotaped interviews
and the testimony of the witnesses called by the plaintiffs.
Much of the material I read was repetitive, redundant and had
little or no relevance to the case before me. But by its very
nature, the essence of this case is the cumulative effect of
detail upon detail and the findings and inferences that can and
will be drawn from those details.
[21] I have also carefully
considered all the legal authorities cited to me by counsel and
some additional ones I have found to be relevant to the various
causes of action relied upon by the plaintiffs in the case before
me. Although non-suit motions require the court to focus primarily
on the evidence, they also require the court to determine what
causes of action are relied upon by the plaintiffs and what constitutes
the various elements of those causes of action. Only then is
the court able to determine whether there is sufficient evidence
respecting each of those elements to enable it to rule on the
non-suit motions. >
> > 2
|
 Truth can never be
told so as to be understood, and not be believ'd. William Blake, The Proverbs of Hell
Truth suppress'd, whether
by courts or crooks, will find an avenue to be told. Sheila Steele, injusticebusters.com
- Publisher Sheila Steele Co-founder
Richard Klassen
-
- The
final judgment
-
-
-
-
- Carol
Bunko-Ruys exams for
discovery
-
- Carol
Bunko Ruys reports
-
- The Thompson papers
-
- Anita's
diary
-
Dueck's files
introductory
comments and Dueck's Statement as to Documents | 01
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| "blood in panties"
investigation notes |
The Prosecutor's Statement
as to Documents | MacNeil
Clinic report from 1987
Sermonette
on McKillop and Quennell, the Static Duo
- Oct.
2003: Ontario Supreme Court rules on internet status
- Canadian Police Arrest Author, May 5, 2003
-
- Don Smith:
Video soft-porn artist convicted after an astonishing series
of violations of his charter rights
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