) BY

GWENK. RANDA~L, Q.C.

SECTION "A"

SECTION "B"

SECTION "C II

I N D E X

Page Number

Introducti on .

Judicial Review...................................... 3

-Denial of Natural Justice............... 5

-Lack or Absence of Jurisdiction............... 6-Error of Law on The Face of The Record........ 8

Practice and Procedure............. 9

Check List........................................... 12

Part Fifty-Two - Judicial Review (Amendments toQueen's Bench Rules with Respect to Judicial Review). 13

Precedent Notices of Motion.......................... 19

- Stay of Proceedings................ ..........•.. 21- Order of Prohibition, Writ of Certiorari and

Writ of Mandamus 24- Writ of Certiorari and Writ of Mandamus......... 29- Writ of Quo Warranto, Writ of Prohibition....... 33- Peremptory Writ of Mandamus... 37- Writ of Certiorari.............................. 40

- Order of Prohibition, Writ of Certiorari, alsoapplication under the Canadian Charter of Rights 43

- Application under The Constitution Act 47

SECTION IIA II

JUDICIAL REVIEW - BACKGROUND PAPER & PRECEDENTS

INTRODUCTION:

Administrative Law or "Public Law" is concerned with the

organization and functions of government. Administrative Law, as such,can be defined as the body of legal rules relating to the regulation ofthe administration of government. In a sense, we are dealing with rules,most but not all of which are rules of law, that are concerned with the

conduct of the general business of the government of the country withinthe broad principles laid down by the policy makers. Policy lays downa general principle; the administrative process involves applicationsof that general principle to particular facts or set of circumstances.

The administrative process consists of carrying on thebusiness of government----or regulating the affairs of individuals in a'

particular community in the interests of all. Lassiez Faire died inthe 12th Century and today the state concerns itself with the welfareof its individual members. Pensions, allowances, hospitals, and a state

medical service, free legal aid, environmental concerns with emphasis onhousing, sanitation, clean food, water and air, the optimum use of thecountry's natural resources and the education of children, plus many others

are among the purposes of modern government. To carry out these complicatedtasks, government has to utilize all its functions which have traditionallybeen divided into three main groups----executive, legislative, and judicial.

Simply put, the function of the executive is to initiate,formulate and direct general policy. It also includes administration, which

involves the implementation and application of policy. This is the functionof government with which Administrative Law is most concerned. Thelegislative function consists of enacting rules binding on citizens whichare accepted without question by the Courts as law. The judicial functionincludes interpretation, definition and arbitration.

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The Courts become involved in Judicial Review applications

where litigants apply to obtain remedies against a Minister, PublicAuthority or a Public Officer. Recourse is also had to the Courts for the

annullment or variation of administrative orders, to restrain unlawfulacts by administrative tribunals or to compel the performance of a public

duty. These are typical situations in which the Courts become involved inJudicial Review.

Broadly speaking, Judicial Review reduces itself to three

questions:

1. What is the nature of the power of review;2. What materials may the Court examine in determining

an application for Judicial Review; and

3. What remedy can the Court give.

Firstly, the nature of the power of review -- One of the first maxims ofadministration law is that in the absence of a contrary intention expressed

in the Statute, a power is to be exercised only by the authority upon whichit has been conferred. If a tribunal has been improperly appointed or haspurported to delegate its power to decide to another body, Judicial Reviewmay be available to set aside the decision of the tribunal. The nature ofthe power of review is determined by an examination of the legislation.

A litigant may apply for direct, ancillary or incidental review. Directreview is by way of appeal or stated case, it being remembered that noappeal exists excepts by Statute. Ancillary review is available by wayof the prerogative remedies which will be discussed later. Incidental

review occurs where a question as to the validity of a decision arisesin proceedings which do not have that as its main object as, for instance,enforcement proceedings.

What materials may the Court examine--In an application for Judicial Review

it is important to remember that the Court is limited to an examination ofthe record of the tribunal. The record is described by Lord Denning in the

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case of R. v. Northumberland Compensation Appeal Tribunal, ex parte Shaw,

(1952) 1 A.E.R. 122:

liThe record must contain at least the document whichinitiates the proceedings, the pleadings, if any,and the adjudicatton, but not the evidence, nor thereasons, unless the tribunal chooses to incorporatethem. II

It will be noted that the Court does not review a transcript of theevidence at the hearing to determine whether the decision made was right

or wrong. If the tribunal had the power by Statute to make the decisionwhich it made, the Court will not review the decision itself. It isimportant to remember that the Court reviews only the manner in which thetribunal proceeded.

What remedy can the Court give --In applications for Judicial Review, theCourt can grant relief which is prohibitory, mandatory, nullitory, penal,declaratory, restitutionary or compensatory.

JUDICIAL REVIEW:In Administrative Law, it should be remembered that most

statutory tribunals are intended to make final decisions in their areas ofjurisdiction. Usually, the statute creating the tribunal contains a"privative clause", an example of which is:

"There is no appeal from an order or decision of theboard under this Act, the board may determine anyquestion of fact necessary to its jurisdiction, andits proceedings, orders and decisions shall not bereviewable by any Court of Law or by any certiorari,mandamus, prohibition, injunction or other proceedingwhatever ."

Clauses such as this are intended to ensure that thetribunal's decision is final and not subject to appeal or review by theCourts.

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Generally, Courts will resist attempts to obtain appeals

indirectly. However, even in the face of a privative clause, the Courts

will, in a proper case, review a tribunal's decision, although not as anappeal. Judicial Review, as the words imply, is not an appeal from a

decision itself, but a review of the manner in which the decision is made.The Court will not review the tribunal's decision on the facts. The

Court will only review the procedure and scope of the final decision.

The function of the Court is to see that lawful authority

is not abused by unfair treatment-rot to attempt itself to decide the matterentrusted to that tribunal by law. The purpose of Judicial Review is toensure that the individual receives fair treatment-not to ensure that the

tribunal, after according fair treatment, reaches a conclusion which iscorrect in the eyes of the Court.

There are three main remedies in Judicial Review: certiorari,prohibition and mandamus. Certiorari, which quashes an order of a

statutory tribunal has been the most important judicial remedy inAdministrative Law. This remedy is used after the tribuna1's proceedings

are completed and after a final decision is made. Prohibition issues torestrain a tribunal from further proceeding with a matter before it, and may

be brought before the proceedings commence or at any time before a finaldecision is rendered. Mandamus, usually used to compel the performance ofpublic duties, is also used to compel statutory tribunals to exercise theirjurisdiction. Disobedience to these orders is punishable as a contempt ofCourt.

The grounds upon which these applications are founded are,in summary, threefold: denial of natural justice, lack of jurisdiction;and error of law on the face of the record. Denial of natural justicemeans the tribunal was affected by bias, or did not listen fairly to bothsides. Lack of jurisdiction means the board decided a question it had no

power by statute to decide. Error of law means the tribunal exercised its

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power to decide improperly or mistakenly. IIMistakenlyll means under the

influence of a misdirection in law.

In summary, no tribunal has jurisdiction to make a legal

error on which the decision of the case depends. If it makes an error,it goes outside its jurisdiction and certiorari will lie to correct it.

a) Denial of Natural Justice and Fairness:IINatural justice ll is nothing more than fair play­

what seems to be fair to a given Court in a given case.

One of the questions to be considered is whether a

tribunal is required to hold a hearing. It is common for Courts to takethe view that a hearing is required unless it is expressly dispensed withby clear statutory language. Generally, hearings will not be required if:

the tribunal is carrying out an administrative function only; no rightsare affected; notice or a hearing is impractical; or if the inquiry's

decision is not final or binding.

The scope of Judicial Review in this area hasrecently expanded in Canada. Formerly, certiorari was available for abreach of natural justice only if the tribunal was a statutory one. Now,the doctrine of the IIduty to be fair ll has been expanded to include Courtsupervision of administrative tribunals which are not judicial or quasi­judicial.

Until recently certiorari and prohibition wereavailable only with respect to statutory tribunals who had a duty toexercise a judicial function. If the function of the tribunal wasadministrative only, mandamus was the only remedy available. Mandamus

simply compelled the exercise of the public duty. There was no requirementfor such tribunals to observe the rules of natural justice.

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Courts now hold that an administrative body has aduty to be fair even though it is a purely administrative body and the

principles of natural justice would not ordinarily apply. The leading

case in this area is Nicholson v. Ha1dimend-Norfo1k Regional Board ofCommissioners of Police, (1978) 88 D.L.R. (3d) 671, a decision of the

Supreme Court of Canada. Chief Justice Laskin relied on the doctrine ofthe "duty to be fair" to review a purely administrative function of thePolice Commission. However, Laskin continued to recognize the categories

of judicial and administrative functions .of tribunals. It is stillnecessary to distinguish between these functions to determine whet~er ornot the rules of natural justice apply, or whether the tribunal simply has

a duty to be fair.

In brief, in the sphere of the so-called quasi­judicial, the rules of natural justice run, and in the administrativeor executive field there is a general duty of fairness. One begins with

the premise that any public body exercising power over subjects may beamenable to judicial supervision.

It should be remembered that where a tribunal

denies natural justice, its decision is voidable not void. It isvoidable at the option of the person who was denied a hearing.

b) Lack or Absence of Jurisdiction:In Administrative Law, the term "absence of

jurisdiction" covers the following situations where a tribunal purports:i) to exercise legal authority which has not been

lawfully delegated to it;ii) to exercise unlawfully legal authority which has

been lawfully delegated to it;

iii) unlawfully refuse to exercise legal authoritywhich has been lawfully delegated to it; and

iv) to act where no legal authority whatever hasbeen delegated to it.

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The following grounds for review fall under the lack

or absence of jurisdiction head:i) Whenever a tribunal purports to take jurisdiction

on the authority of a statute or regulation whichhas never been enacted or which has been repealed;

ii) Whenever a tribunal purports to take jurisdictionon the basis of a statute or regulation which is

voi d;iii) Whenever a tribunal purports to take jurisdiction,

on the basis of a non-existent inherent

jurisdiction;iv) Whenever a tribunal purports to take jurisdiction

without having complied with mandatory formalprerequisites;

v) Whenever a tribunal purports to take jurisdictionover a matter in respect of which it is functusofficio; and

vi) Whenever a tribunal purports to take jurisdiction

on the basis of an errorous determination of factor law.

The fall owing five cases are reasonably representativeof absence of jurisdiction:

i) Re Lyle v. Minister of Employment and Immigration,

(1982) 133 D.L.R. (3d) 64, on the problem ofrepeal and replacement of statutes and regulation~

ii) Emms v. The Queen, (1979) 2 S.C.R. 1148, on theproblem of void statutes and regulations;

iii) S &MLaboratories v. The Queen, (1980) 99 D.L.R.(3d) 160, on the problem of inherent jurisdiction;

iv) Sorco of Canada Limited v. Anti-Dumping Tribunal,

(1981) F.C.R. 233, on the problem of formal

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prerequisites; and

v) Re Ferman v. Alberta PharmaceuticalAssociation, (1981) 120 D.L.R. (3d) 320, on the

problem of functus officio.

c) Error of Law on the Face of the Record:Error of law may include:

i) Breaches of the principles of natural justice orthe duty to be fair;

ii) Considering irrelevant evidence;iii) Ignoring relevant evidence; and

iv) Acting for an improper motive.

Awards of tribunals are reviewable for error oflaw apparent on the face of the record. There is a distinction between,

cases where a question of law becomes material, as distinct from the casein which a specific question of law is referred to a tribunal. In theformer case, the Court can interfere if and when any error of law appearson the face of the record, but in the latter case no such interference ispossible upon the ground that it so appears that the decision upon thequestion of law is an errorous one. In other words, if the error of lawis made within the jurisdiction of the tribunal, the Court will notinterfere.

Generally speaking, a question of construction is

a question of law. To be reviewable, an error of construction must amountto an error of such magnitude that the interpretation adopted by thetribunal may not be reasonably borne by the wording of the document inquestion. Such an error is considered to be beyond the jurisdiction of thetribunal. A tribunal has the right to be wrong, but not where the wrongamounts to an amendment of its statute. Review of questions of law tend,

in practice, to become review only of the reasonableness (rather than therightness) of administrative determinations. While the Courts possess the

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power to substitute their own judgment for that of the tribunal, they will,

more often than not, uphold administrative findings on issues of law where

they have a rational basis, particularly where there are questions ofinterpretation which are of central importance to the tribunal's work.

It should also be remembered that prerogativeremedies are extraordinary judicial remedies. This means that if there is

other relief possible, for example an appeal, that remedy must be resortedto before an application is made to the Court for a prerogative remedy. If

the alternative remedy fails, the Court will consider a prerogative Writapplication.

PRACTICE AND PROCEDURE:

Applications for Judicial Review are governed by Part 52 ofthe Rules of Court which have recently been proclaimed by the Court ofQueen's Bench. Some good reference texts in the area are:

DeSmith, Judicial Review of Administrative Actions, Steven &Sons Limited;

Reid, Administrative Law and Practice, Butterworths;Griffith &Street, Principles of Administrative Law, Pitman.

The Queen's Bench Act provides that both the Court of Appealand the Court of Queen's Bench have concurrent jurisdiction in JudicialReview applications. These applications are commenced by Notice of Motionin the Court of Queen's Bench on any Chamber day, or by appointment in theCourt of Appeal. [Rule 664(1)]

It is now provided that an applicant may join a claim for adeclaration as alternate relief in a claim for Judicial Review. A claimfor an injunction or damages may be joined as collateral relief. [Rule

664(2)]

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All applications must state the grounds upon which they are

based in the Notice of Motion. In exceptional circumstances, the grounds

may be varied by leave of the Court and with notice to all parties.

[Rule 664(3) and 670]

Affidavit material in support of an application for Judicial

Review will include the documents making up the record, as discussedearlier. It should be remembered that applications for certiorari and

prohibition are final, not interlocutory applications. This means thatthe affidavit in support must be sworn by someone with personal knowledge

of the proceedings. Affidavits on information and belief are notadmissible.

In Re Municipality of Brockenhead, (1922) 1 W.W.R. 785;

Beauchene and Peltier v. Gunson, (1928) 2 W.W.R. 497.

Service requirements are covered by Rule 667. The timelimits for service are the same as those found in the regular Queen1s Bench

Rules. The Attorney General must be served with any application in whichhe has an interest (being all cases where the decisioQ of a StatutoryBoard is challenged). The Attorney General can now be served by Registeredor Certified Mail, in the same way that service on other parties isprovided for in the regular Rules.

A certiorari application must be brought within six monthsof the date of the order complained of. For other types of JudicialReview, the Court may refuse an application which is brought after unduedelay. [Rule 676]

An application for Judicial

stay of proceedings. It may be necessaryinterim basis for a stay of proceedings.ex parte, or upon such directions as the

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Review does not operate as a

to apply to the Court on anSuch an application may be made

Court may make with respect to

service upon other parties. [Rule 668]

Attached is a checklist with respect to possible grounds

for Judicial Reviews as well as precedent Notice of Motion with respectto types of applications for Judicial Review.

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CHECK LIST

DELEGATION LEGISLATION:-defects in appointment-express power to delegate

NATURAL JUSTICE:

-duty to hold hearing-reasonable opportunity to be heard:

-notice-<;ounsel-witness and cross-examination-open or closed proceedings-mandatory or directory procedural requirements-rules of evidence-ri ght to present argument

-fa i rness-bias:

-actual-real likelihood-statutory authorization-waiver

LACK OR EXCESS OF JURISDICTION:

-preliminary or collateral-excess of jurisdiction-declining jurisdiction-timing of judicial intervention-abuse of discretionary power:

-bad faith-improper considerations-unreasonableness-no reasons

ERROR ON THE FACE OF THE RECORD:

-what constitutes the record-findings of fact-privative clause-affidavit evidence

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SEC T ION II B It

PART FIFTY-TWO - JUDICIAL REVIEW

(Amendments to Queen's Bench Rules

with Respect to Judicial Review)

)

- 13 -

COURT OF QUEEN'S BENCH~ROVINCE Of SASKATCHEWAN

2ffecti ve 1, 1983 The Crown ? ractice Rules are re-

)

pealed and the ~ueen's Bench Rules are amended as follows:

ay deletin.'5 Rule 396.

dy adding the following after rule 663:

?ART FIFTy-nvOJUDICIAL REVIEW

ooL.. (U An application for judicial review by way of

mandamus. prohibition. ~ warranto, certiorari. or to quash

?roceedings may be commenced by notice of motion.

(2) In an application for judicial review, other than a

p roceedin~ to \¥'hich the Criminal Code a pp lies, an a pp licant may

claim

(a) a declaration as collateral or 'lltel'."nate

relief; or

(b) an injunction or dama~es as collateral relief

and the court may ~rant such relief if it considers that haVing

regara, to all the circumstances of the case it would be just .lnd

":\Jnvenient to do sv.

(3) r:very application shall state the grounds on which

it is made and the relief sought.

Ol>5. (1) An a pplica tion may be made by any persc:: ha·.. i ng

5ucn interest as the ccurt considers sufficient in the mcJ.P~r to

·..... nicn the .;ipplicaticn relateS.

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(2) In any event, an a pp lica tion may be made or­

continued with the fiat or- consent of the Attorney Gener-a I, a copy

of which shall be filed and served on every party to the

pr-oceeding.

666. (1) The person making the application shall be shown

only as the applicant in the style of cause.

(2) Any two or more persons who, acting together,

exercise power under a collective title may be named as a respond­

ent under such title.

667. (1) Each person interested or likely to be affected by

the application shall be served with the notice of motion and all

material in support of the application.

(2) The Attorney General or his designate sha 11 be

served in any case where he would appear to have an interest.

Such service may be made by registered mail with post office

acknowledgement of receipt card or by certified mail.

(3) The court, if of the 0plnlOn that any perscn ought

to have been served, may adjourn the hearing on such terms,

if any, as it may direct, and may give directions for serviceI

on s~ch person.

668. (1) The court may make such interim orders as it sees

fit, including orders pr-eserving the status quo or the IJosition

of the parties, and may ex tend, modify or set aside a ny such

orders.

(2) An a.pplication for judicial review shall not consti­

tute a stay of the proceedings to which the applicaticn relates l

but the court may grant a stay of such proceedings en applicaticn

made for that purpose.

(3) An interim order may be granted. ~ parte or on

such notice, including short notice or notice given orally, as the

court may direct.

669. (1) Where an application is made for an order by way

of certiorari or to quash proceedings a notice to the following

effect, adapted as may be necessary and addressed to the court,

tribunal or other authority shall be endorsed in or on the notice

of motion:

"You are required by the rules of Court forthwith to return

to the local registrar of this court at the Court House

(address in full) Saskatchewan, the conviction, order,

decision, (or as the case may be) and the reasons. therefor,

together with the process commencing the proceedin,5' and ·the

warrant, if any, issued thereon."

(2) All things required by subrule (1) to be returned

to the local registrar shall be deemed to be part of the record.

(3) On receiving a Notice of Motion so er.dorsed, the

court, tribunal or other a uthority shall return forthwith to the

court the convict lon, order. decision, (or a s the case may be) and

reasons therefor together with the process commencin~ the fJro­

ceed~ng. a nd all other thin,5s touching the proceed ing, with a·

certifica te in the fonowing form:

"Pursuant to notice in these proceedings I herewith return

to this Honourable Court the follOWing papers and documents,

that is to say,

(1) the conviction, order or decision (or, as the case

may be) and the reasons therefor;

(2) the process commencing the proceeding .:lnd the

warrant issued thereon;

And 1 hereby certify to this Honc'..lrable Ccurt tha t 1 ha ve

a bove truly set forth a 11 the pa pers a nJ documents ir1 :;.y

custody or power to be returned to this Honourable C.)un

pursuant to the notice." (Name set out legibly, anG

sig:1ature) .

- 16 -

(4) Unless otherwrise ordered, compHance with sub-rule

(3) may be made "'ith respect to any paper or document

(a) by sending a copy of the paper or document

if the copy is not less legible than the

orig inal, and

(b) by endorsing on or a ttaching to each such

copy a certifica te as follo",s:

"1 certify that this paper (or document) is

a true copy of the original, that the copy

is not less legible than the original, and

that the copy contains every matter or thing

set forth in or shown by the origina I"

(name, set out legi.bly. and signature).

(5) II the papers and documents, or any of them. are

not in the possession of the person required to transmit them,

he shall so state and explain the circumst~nces.

(6) The return and certificate as set forth in this rule

shall have the same effect as a return to a ",rit of certiorari.

670. (1) ~"lith leave of the court, a party may be substituted

or added at any stage of the proceedings.

(Z) The court may at any time, on such terms and

conditicins as the court thinks fit, permit a party to alter or

amend the application or file additional material for the purpose

of determining the real questions or issues raised by the

applica tion.

(3) Where the applicant intends to apply tC' amend

the" a pp lica tion or to file further rna terial, he shall, un less

otherwise ordered, give notice of his intenTion to do so to every

party to the proceedings.

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671. (1) The court may order a person having custody or

control of any material or evidence in any proceeding, to produce

a t or before the hearing

) ( a ) the \lihole or any part of the record of that

proceeding, or a copy thereof, or

(b) the whole or any part of the evidence in that

proceeding, or a copy thereof.

(2) Unless otherwise ordered, where compliance with

the order would require a transcription of evidence or unusual

expense, no transcription shall be required or expense incurred

unless the proper fees therefor have been paid.

Heari.ng and Di.sposition:

672. Any person who desires to be heard in opposition to

or in support of the application and who appears to have such

interest as the- court considers sufficient in the ma tter, may be

heard, with leave of the court, on such conditions as the court

considers appropriate, not'Nithstanciing that he has not been served

or named as a party.

673. No \lirit of mandamus, prohibition, certiorari or ~

warranto shall be issued, but all necessary directions shall be

by Ofder.

67/. Where the court is satisfied that there are grounds

for qua.,shing or declaring void a decision to which the applic..J.tion

relates, the court, ~in additiolLto granting such relief, may remit~

the matter to the court, tribunal or other authority concerned with

the direction to rehear it or to reconsider it and reach a decision

according to 1a \Ii.

675. (1) Subject to any statutory prOVlS Lon limiting ~ne time

in which an application for judicial review may be made, where

there has been undue delay in mak ~nJ an a pp lica tion, the court

i'iay ::-efuse to grant any relief sou~ht if the order '..,ould be likely

tc cause substantial hardship to or substantially prejudice the

ri.-5hts of any person or ""'ould be detrimental to good administr3-.:. --

-18 -(2) Not\w"ith.;ta.ndin~ sub-t"ule (1). no application in

tr.e nature of cel:"tiQ:"ari may be made after the expiration of 0

mont:-ls from the date of the j udgm~nt. conviction 01:" ordel:". ~ ithout

l~avlIa of the court.

07b. These rules are adopted ....... ith necessary ~cdification.

as rules in applications to which the prcvl:iion:s of the Cri.~inal

Code apply.-

SEC T ION II C II

PRECEDENT NOTICES OF MOTION

Q.B. NO •••••.•- 19 - --

of A.D. 19 .•••.

IN THE QUEEN'S BENCH

JUDICIAL CENTRE OF ••••..•••.•••.•••

IN THE MATTER OF JUDICIAL REVIEW PURSUANT TOPART FIFTY-TWO OF THE ,RULES OF COURT.

BET WEE N :

...........................Applicant;

- and -

•••••••••• e- ••••••••••••••••

Respondent (s)

NOTICE OF MOTION

This document was delivered by •••••••••••••••••• ,

Barristers and Solicitors, •• laddress} ••.•••••••••••..•••.••••• ,

and the address for service is: •••••••••••••••••••••••••••..•••

Lawyer in charge of file: ..................Telephone: .

- 20 '-"

NOTICE OF MOTION

Take Notice That:

1. An application will be made to the presiding judge in

chambers at the court house in •••••••••••••• , Saslcatchewan

on the ........ day of ••••••••••• , 19 ••••• , at the hour

of ten o'clock in the forenoon or so soon thereafter as

counsel may be heard on behalf of the applicant for the

relief set forth below.

2. The application is for an order quashing a decision of

the •••••••••••••••••••••••• Board dated the •••••• d~y

of , 19 .

3. The grounds of the application are:

4. In support of this application will be read:

(i)

(ii)

(iii) etc ••••

Dated at •••••••• the •••••••• day of ••••••••• , 19 •••••

Signature

TO: THE RESPONDENT TRIBUNAL

NOTICE

You are required by the Rules of Court forthwith toreturn to the local registrar of this court at thecourt house in •••.•••••••••• , Saskatchewan, the conviction,order, decision, (or as the case may be) and the reasonstherefore, together with the process commencing theproceeding, and the warrant, if any, issued thereon.

AND TO:

The Attorney General for Saskatchewan,And To each person interested or likely to be affected.

- 21 - /1"...' r

_ "'t :- I ..... ~.~.;-_ ..".; \

IN THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN

JUDICIAL CENTRE OF SASKATOON

IN THE MATTER OF THE ~£DICAL PROFESSION ACT,R.S.S. 19_, CHAPTER __' AS AMENDED~ AND

IN THE MATTER OF CERTAIN PROCEEDINGS UNDERTHE MEDICAL PROFESSION ACT, R.S.S. 19

AGAINST DR.

BET WEE N:

DR. ofin the Province of Saskatchewan,

APPLICANT-and-

DR. , of ,in the Province of Saskatchewan, Chairman '"and all other members of the Discipline

. Committee of the" College of Physicians andSurgeons of Saskatchewan,

RESPONDENTS

MEMORANDUM OF RELIEF

THIS is an application for a stay of proceedings

pursuant to a Notice of Hearing served on the applicant pursuant

or purportedly pursuant toSecti~n 46(1) of The Medical Pro-

fession Act, pursuant to which Notice the Applicant appeared

at 10:00 o'clock in the forenoon on "this date, the 16th day

of September, 19__, before the said Discipline Ccmmittee.

A true copy of the Notice of Hearing dated the 15th

day of July, A.D. 19 is annexed to the Affidavit of Dr.

, the Applicant herein, as Exhibit "A" thereto.-------...,.--The applicant is asking for a stay of proceedings

until a motion to this Honourable Court for a oreroaative Writ- -

of Prohibition directed to the Discipline Committee of the

College of Physicians and Surgeons of Saskatchewan can be

served and ~~e motion dealt with in this Honourable Court, or

in the alternative until this Honourable Court has heard and

made disposition of an application made by Dr.

to quash a Writ of Subpoena servea ~?C~, . . .f";:~ -~t~.--....~ I _ .... - zaid

__________, in respect of the proceedings against ~~e Applicant

before the said Discipline Committee, which said Subpoena is

shown as Exhibit "AN to the Affidavit of the said Applicant,

and which said Notice of Motion is Exhibit "e" to ~~e Affidavit

of the said Applicant.

While the applicant is entitled to make this appli-

cation ex parte, counsel for the Applicant advised the said

Discipline committee, and Mr. J.L. Robertson, Q.C., counsel for

the said Discipline Committee, of the Applicant's intention to

make this application and is taking steps to serve a' copy of

this ~.emorandum and of the Affidavit of the Applicant on the

said J. L. Robe'rtson r Q·.C~'

The following authorities will be referred to:

1. Re B'lackwoods Beverages Limited (No.1) (1956)

18 W.W.R. (NS) 481 @ 484-6;

__ 2 .._ Re Trade union Act - Simosons Sears Limi ted vs,

D'epartment Store Organizing Committee Local 10'04

(1956) 19 W.W.R. (NS) 439 @ 440

- 23 -

ALL OF w'"HICH IS RESPECTFULLY SUBMITTED.

DATED at the City of Saskatoon, in the Province of

Saskatchewan, this 16th day of September, A.D. 19__•

GOLDENBERG, TAYLOR Or TALLIS

Per:-------------SOLICITORS FOR TEE ~~PLIC~T, whoseaddress for service is at theiroffice 801 Canada Buildinq~.Saskatoon,

Saskatchewan, S7K 1M2.

_ J, _

- 24 - ,

IN THE COURT OF QUEEN'S BENCH(CROWN SIDE)

~uDICIAL CENTRE OF REGINA

! \ ." ... ,

.:"- '\.. ..

IN THE MATTER OF THE TRADE UNION ACT, 1972: AND

IN THE MATTER OF THE CROWN PRACTICE ROLES: A:.~D

IN TEE ~~TTER OF A CERTAIN ORDER PuRPORTEDLYMADE BY THE LABOUR RELATIONS BOARD FOR THEPROVINCE OF SASKATCHEWAN DATED THE 7TH DAY OFFEBRUARY, A.D. 1975.

a E 'I' WEE N: .

HER MAJESTY THE QUEEN on the relation ofSHERWOOD WOODROW SIl-1MONS, on his own be­half and on behalf of all members ofSERVICE EMPLOYEES' INTERNATIONAL UNION,LOC-U ~:o. 299, chartered by the ServiceEmployees' International Union, and SERVICEEMPLOYEES' INTERNATIONAL UNION, LOCAL NO.299, chartered by the Service Employees'International Union, .

APPLICANT

- and -THE LABOUR RELATIONS BOARD OF THE PROVINCEOF SASKATCSEWAN, and THE BOl1..RD OF GOVERNOPSOF THE SOUTH SASKATCHEWAN HOSPITAL CENTRE,carrying on business under the firm nameand style of the Plains Health Centre, andSASKATCHEWAN GOVER..~MENT &o..rPLOY;:02;S'ASSOCIATION, a,.l'ldCANADIAN UNION OF PUBLIC EMPLOYEES, LOCALNO. 1838,all of the City of Regina,in the Province of Saskatchewan,

RESPONDENTS

NOTICE OF MOTION

TAKE NOTICE that an application will be made to the

Presiding Judge in Chambers at the Court House, in the City

- 25 -

of Regina, in the Province of Saskatchewan, on Tuesday, the

4th day of March, A.D. 1975, at the hour of 10:00 o'clock

in the forenoon or so soon thereafter as counsel may be heard

on behalf of the Applicant;

Labour Relations Board for the Province of Saskatchewan, and

to The Board of Governors of the South Saskatchewan Hospital

Centre, carrying on business under the fi:t.""II1 name and style

of the Plains Health Centre, and to the Saskatc.ewan Govern-)

ment Employees' Association, and to the Canadian Union o~

Public Employees, Local No. 1838, to prohibit them from

further proceeding pursuant to the Order of the Labour Re­

lations Board dated the 7th day of February, A.D. 1975;

Upon the fo llowinc;' grounds:

(1) That the Labour Relations Board is

without jurisdiction to make the

said Order in that it denied to the

employees concerned the right to

select~~e within Applicant as J-' •...ne~r

representative for ~~e p~2ose of

bargaining collectively;

(2) That t-lo],e Labour Relations Board had

no jurisdiction to make the said Order,

or in the alternative, lost or deprived

itself of jurisdiction to make the said

Order in that it failed to hear and

determine the Intervention of the with-

in Applicant;

- 26 -

(3) That the Labour Relations Board erred

in law as to a condition precedent to

its jurisdiction to make the said Order,

namely, by failing to hear and determine

the Inte.::venticn of t.ns <;-ii thin }\.?? :'.i.G2nt,

or alternatively, by failing to consider

matters relevant to the exercise of its

jurisdiction to make the said Order,

namely, the evidence that employees in

the bargaining unit described in the said

Order wished to be represented for ~~e

purpose of bargaining collectively by

the wi thin Applicant, and that 'such

error deprives the Board of jurisdiction

to make the said Order and is apparent

on the face- of the record;

(4) That in making the said Order the

Labour Relations Board declined to

exercise its jurisdiction in ~~at it

failed to consider, or railed properly

according to law to consider matters

relevant to the exercise of its juris­

diction, namely, evidence that employees

in the bargaining unit described in the

said Order wished to be represented for

the purpose of bargaining collectively

by the within Applicant;

-·1 ..

- 27 -

(5) That in making the said Order the

Labou= Relations Board declined jur-

isdiction in that it did not hear

and determine the application of the

Respondent, Service Employees'

Inte~~ational Union, the Intervention

of the Respondent, Canadian Union of

Public Employees, and the Intervention

of the within Applicant, according to

(6) Such further and other grounds as counsel

may advise and this Honourable Court may

allow.

AND FURTHER TAKE NOTICE that the said Court will

be moved at the time and place aforesaid to grant a writ of ~i\

certiorari to quash the said Order upon the grounds herein- !

before set forth;

&~D FURTHER TAKE NOTICE that ~~e said Court will

be moved at the time and place aforesaid for ~~ Order for

a writ of mandamus directed to the Respondent, the Labour'.

Relations Board for the Province of Saskatchewan, directing

the said Board to hear and determine ~~e Intervention of

the within Applicant according to law, upon the grounds

hereinbefore set forth.

AND FURTHER TAKE NOTICE that at the time and place

- 28 _

aforesaid the Court will be moved for an Order dispensing

with the giving of security for costs in the within matter

and for an Order quashing the said Order of the Labour

Relations Board without the actual issue of the Writ of

Certiorari.

AND FURTHER TAKE NOTICE that in support of the said

application will be read this Notice of Motion with proof of

service, and Affidavit of Sherwood Woodrow Simmons, and such

further and other material as counsel may advise and this

Honourable Cour~ may allow.

DATED at the City of Saskatoon, in the Province of

Saskatchewan, this 24th day of February, A.D. 1975.

GOLDENBERG, TAYLOR & TALLIS

Per:-------------SOLICITORS FOR THE APPLICANT ----whose address for service inRegina, Saskatchewan, is at~~e of=ice of GRIFFIN, BEKE,OLIVE & Wp..LLER, 3a0 Bank ofCanada Building, 2220 - 12thAvenue, Regina.

TO: The Respondents;

The Labour Relations Board of the Province of Saskatchewan;

The Board of Governors of ~~e South Saskatchewan HospitalCentre, carrying on business under the name and styleof Plains Health Centre;

Saskatchewan Government Employees' Association;

Canadian Union of Public Employees; Local No. 1838.

ANDTO: The Attorney General for the Province of Saskatchewan. V'

IN THE COURT OF APPEAL FOR SASKATCHEWAN

'. - 29 -

'_ '. I' ">;-1

(CROw'"N SIDE)

'\ '. . .. .

.-." 1

IN THE MATTER OF THE TRADE UNION ACT, 1972, R.S.S.1972,. CHAPTER 137; AND

IN THE ~1A.TTER OF AN ORDER OF THE LABOUR RET.ATIONSBOJ......tID OF Sll.5IO.TCHE'WAN r D~.TED TF.E 30TE: jJp.y ~" JlU-rUJ.:...RY r

A.D. 1979. '\

BET WEE N:

HER MAJESTY THE QUEEN ON TEE RELATION OF ALBERTTHOLL , on his own behalf and on behalfof all other members of RETAIL, ~mOLESALE AND .DEPARTMENT STORE ONION, LOCAL 542, and RETAIL,WHOLESALE AND DEPARTl-1ENT STORE ONION, LOCAL 542, ,of the City of Saskatoon, in the Province ofSaskatchewan,

APPLICANTS

- and -

FEDERATED CO-OPERATIVES LL~ITED a body corporateincorporated under the laws of Saskatchewan withHead Office in the City of Saskatoon, in theProvince of Saskatchewan

- and -

THE LABOUR RELATIONS BOARD OF SASKATCHEWAN.

RESPONDENTS

NOTICE OF MOTION

TAKE NOTICE that an application will be made to the

Court of Appeal for Saskatchewan at a date and time to be fixed

by the Court of Appeal for Saskatchewan on behalf of the

Applicants;

FOR Ml ORDER that a Writ of Certiorari do issue out

of this Honourable Court quashing anOrder.of ~~e LABOUR RELATIONS

BOARD OF SASKATCH~1ANdated the 30th day of January, A.D. 1979,

- _.~ .._---.:.-.. '.

- 30 -

dismissing an application by the Applicant, RETAIL, WHOLESALE

AND DEPART~~NT STORE u~ION, LOCAL 542 for ~~ Order pursuant

to Section 42 of The Trade Union Act, 1972, upon the following

grounds:

1.

elined to exercise, or acted in excess of its jurisdiction in

dismissing the application of the Applicant trade union pursuant

to Section 42 of The Trade Union Act, 1972;

2. THAT the LABOUR RELATIONS BOARD OF SASKATCHEWAN de-

elined to exercise, or acted in excess of its jurisdiction by

failing to take into account a matter relevant to the said

application, namely the contents of a Letter of Understanding

dated the· 1st day of November, A.D. 1977 signed by represent·atives

of the Applicant trade union and the Respondent FEDERATED CO­

OPERATIVES LI~~TED concerning technological change in any facility

operated by the Respondent FEDERATED CO-OPERATIVES LIMITED.

3. ~.T the LABOUR RELATIONS BOARD OF SASKATCHEWAN de-

elined to exercise or acted in excess of its jurisdiction in

taking into account matters extr~~eous to ~~e said application,

namely the provisions of Regulation 171/72 of the Province of

Saskatchewan •

4. THAT the LABOUR RELATIONS BOARD OF SASKATCHEWAN erred

in law in that it failed to hear and determine the application

of the Applicant trade union pursuant to Section 42 of The Trade

Onion Act, 1972, according to law.

5. THAT the LABOUR RELATIONS BOARD OF SASKATCHEWAN de-

- 31 -

clined to exercise or acted in excess of its jurisdiction in

holding that the application of the Applicant trade union pur­

suant to Section 42 of The Trade Onion Act, 1972 did not affect

a ·significant" number of employees in accordance with Section

42 of The Trade' Onion Act, 1972 aforesaid.

6. SUCH further and other grounds as the case may require

and this Honourable Court may allow.

AND FURTHER TAKE NOTICE that at the time and place

aforesaid this Honourable Court will be moved for an Order that

a Writ of Mandamus do issue directed to th.e Respondent the

LABOUR RELATIONS BO~-RO OF SASKATcs:E"IlAN directing the said BOA.RD

to hear and. determine the application of the Applicant trade

union pursuant to Section 42 of The Trade Onion Act according

to law, upon the ground.s hereinbefore set forth.

AND FURTHER TAKE NOTICE ~~at at the time ~~d place

~~Cl.~es~d_ this. Honourable Court will be moved for an Order dis­

pensing with the giving of security for costs in the within .

matter, and for an Order quashL~g the Order of the ~300R RELATIONS

BOARD OF SASKAT~-W~~ aforesaid wi~~out ~~e actual issue of

the Writ of Certiorari.

AND FURTHER TAKE NOTI~ that in support of t...""le said

application will be read this Notice of Motion with proof of

service, an Affidavit of ALBERT THOLL and such further and

other material as Counsel may advise and this Honourable Court

may allow.

- 32 -

DATED at the City of Saskatoon, in the Province

of Saska:tcl'lewa.'1 :'::is 19th. dz.:.y of F~1::'"i.lary, A.D. 1979.

GOLDENBERG, TAYLOR, RA.i.'iDALL, BUC-"{WOLD& HALSTEAD

Per:----------------solicitors for the Applicantwhose address for se.rvice inRegina is at the office of Grafand Zar:eczny, Barristers andSolicitors, 2132 Broad Street,Regina, Saskatchewan S4P lYSe

to: The Respondents,FEDERATED CO-OPERATIVE LI.."'!ITED ~

THE LABOUR P''l:'I';'''l'IONS BOARD OF SASKATCEE"'vJ'AN.

~m TO:

TBE A'l'TOF.NEY GENERAL for the Province ofSaskatchewan.

,.., .. ' .... , ..'

.. I• I .. ',".: I \ I ..'. ,,'. '.. r·L:•. ·1 '. '....."

- 33 -

. I",

,\ ~ I....

) .O.B. No.

IN r..E COOR'= OF Qu.::......'!:'N' S 3SNCH(CROw"'N SI DE)

JUDICIAL CENTRE OF SASKATOON

of A.D. 1978.

IN THE MAT'l'ER OF THE SASUTCHEWAN ~..sSIS,!,]l...;,'iCE ACT, 1972, S.5.CH~..PTER 35, .?.lID ~..;,'1ENDMENTS T:::ZP,':",:,O ;..2'.\0 r~ ::--:, r~GtJ..u.?_T:;' or.'!STHEREUNDER.

IN THE MATTER OF THE CROWN PRACTICE ROLES AND THE WITHINAPPLICATION FOR AN INFO~ATIOU IN THE NATURE OF A 000 WARRANTOAND PROHOBITION.

IN THE ~A'l"TER OF A DUTY u""PON THE w"ELFARE BOARD PURPORTED TOBE ESTABLISHED UNDER THE DEPARTMENT OF SOCIAL SERVICES ACT,TO ARRANGE FOR THE HEA..lUNG OF AND THE DISPOSAL OF &~ APPEALFROM THE DECISION OF A LOCAL COMMITTEE ESTABLISHED ONDER TEEPROVISION OF SECTION 41 OF TEE SASKATCHEWAN ASSISTANCEREGULATIONS.

BET WEE N:

MA.EU.ENE DOGNIEZ,of the City of Saskatoon,in the Province of Saskatchewan,

~LATOR

PLA.!NTIIT

- and -

LAR..~ E. BRIE:<LEY, THE UNITADMINISTRATOR AND DIRECTORDEPARTMENT OF SOCIAL SERVICES,in the City of Saskatoon,in ~~e Province of Saskatchewan,

DEFENDANT

- and -

THE WELFARE BOARD PURPORTED TO BEESTABLISHED ONDER TEE DEPARTMENTOF WELFARE ACT, REVISED STATUTESOF SASKATCHEWAN, 1963, CHAPTER 38,as represented by J. CARMICHAEL,Secretary, bo~~ of ~~e City ofRegina, L'1 the Province ofSaskatchewan,

DEFENDANTS

.. ­-.

- 34 -

NOTICE OF MOTION

T~~ NOTICE ~~at this Honourable Court will be

moved at the Court House, at the City of Saskatoon, in

the Province of Saskatchewan, on Friday, the 7th day of

April, A.D. 1978, at ~~e hour of 10:00 o'clock L~ ~~e

forenoon, or so soon thereafter, as Counsel can be heard

on behalf of the Relator for leave of this Honourable

Court that an Info=:nation in the nature of a Quo Warranto

be exr~bited against you, the Welfare Board purported to be

established under the Department of Welfare Act, to show by

what authority you claim to exercise the office of the

Welfare Appeal Board, on ~~e ground ~~at:

Section ~3(3) of the Saskatchewan Assistance

Regulations made pursuan~ to the Saskatchewan Assistance

Act, S.S. 1966, c. 79, purports to allow an appeal to "the

Welfare Board established under ~~e Department of Welfare

Act", from a decision of the 'Local Appeal Board Committee.

The pu.-ported "Welfare Board" does not exist in law because

the Department of Welfare Act, c. 38, R.S.S. 1965 was

repealed by s. 18 of the Depar-~nt of Social Services Act,

S.S. 1972, c. 35:

AND FURTHER TAKE NOTICE that this Honourable Court

will be further moved on behalf of the Plaintiff for an Order

that a Writ of Prohibition do issue out of this Honourable-- -Court prohibitinq the Welfare Board as pu.-ported to be

established under The Department of Welfare ~ct, fram

hearing the Appeal of the Unit Administrator pursuant to the

- 35 -

onit Administrator's Appeal under Section 43(3) of The

Saskatchewan A~sistance Regulations, such Notice of Appeal

having been communicated to J. CAP~CHAEL, Secretary, by

letter of January 26, 1978.

FOR SUCH FUR~ER OP~ER as this Eoncurable Court

may deem proper and may see fit to grant.

FOR THE COSTS OF THE WITHIN ACTION.

AND FURTHER TAKE NOTICE that this Application

is made on the fo llowing grounds:

1. That t..lote Welfare Board does not exist in

law and, therefore, has no jurisdiction.

2. Alternatively, that t..~e Welfare Board purported

to be established under The Department of Welfare Act,

did not hear and dispose of an Appeal to the Welfare Board

by the Unit Administrator within thirty (30) days after

receipt of such Notice of Appeal by ~lote Director or Unit

Administ=ator as is required pursuant to Section 43(4) of

The Saskatchewan Assistance Regulations.

IT IS E'URTEl::R REQUESTED t..~a"t:, . if necessary, a."'l

Order be granted pursuant to Rules 447 a..."'1d 534 of t..~e Queen's

Bench Rules of Court abridging t..~e time for service of

the within Notice of Motion:

IT IS FURTHER ~QUESTED also, if necessary, that

an Order be granted staying any action by the purported

"Welfare Board" while this Application is sub judice.

&~ FURTHER TAKE NOTICE that in sup~ort of this

--, '.

- 36 -

Application will be read the following:

(a) This Notice of Motion with proof of

service;

(b) The Affidavit of Marlene Doqniez:

(c) Such turther and o~~er wa~e=i~l as Cou~tlsel

may deem proper .and this Court may see fit

to permit.

DATED at the City of Saskatoon, in the Provi.."1ce

of Saskatchewan, this day of , A.D. 1978.

WARDELL, BECKIE, HOLGATE & H1'..LDEFl<'..AN

Per:

Solicitors for the Plaintiff.

TO: TEE DEFENDANT -LARRY E. BRIERLEY, TEE ONIT ADML'1!STRATORDEPAR'I'MEN'l' OF SOCI.?U, SERVICES, in theCity of Saskatoon, in the Province ofSaskatchewan

TO: THE DEFENDANTS -TEE w"'ELFA?J:: BOARO PU?.EOP.TEO TO EE:':STP.~LIS'Ff1:;D ONDER TEE DEPA.R~ OFWELFARE ACT, Fu:.VISED STATUTES OFSASKATCE:EWAN, 1965, CHAPTER 38,as represented by J. CARMICHAEL,Secretary, both of the City ofRegina, in the Province of Saskatchewan.

- 37 -"

~ '\ • \. ."" .'-. ,', i 't' ..... '\ l .J ~ ... I • • - ~

IN THE COURT OF QUEEN'S BENCH FOR SASKATCHEWAN

JUDICI;'.L CENTRE: OF SASKATOON

(CROWN SIDE)

IN THE MATTER OF AN APPLIC.~TION BY CONSTABLE P.M. GUSTAR, OF TEE ROYAL C1-.NADIAN MOUNTED POLICEAS INFORvj\NT ON BEID\.LF OF EER rr.iA..J~STY ';~'S QrEENAND THE AT'l'ORNEY GENERAL FOR THE PROVINCE OFSASKATCHE'IlAN, FOR A WRIT OF !-4..ANDAMOS TO COMPELHIS HONOUR JUDGE H. D. PARKER, JUDGE OF TEEPROVINCIAL MAGISTRATE t S COURI' FOR SASKATCHEWAN,TO HEAR AND DETERMINE AN INFORMATION DATED TEE26TH DAY OF F"='...13RUARY, A.D. 1965 AT NAJ:C.~,

SASKATCREW~..N CHARGING HANS KRIEG ONDER SECTION127 OF 'mE VEHICLES ACT AND walCH INFORMATIONTHE SAID JUDGE OF THE MAGISTRATE' S COURTDECLINED TO HEAR ON TEE GROUND THAT THE WAIVEROF JURISDICTION WAS INVALID

BETWEEN:

HER MAJESTY TEE QUEEN on the relation ofCONSTABLE P.M. GUSTAR, a member of theRoyal Canadian Mounted Police, Informant,and THE ATTORNEY GENERAL FOR THE PROVINCEOF SASKATCHEWAN,

APPLIO..NTS

- a..?ld -

HIS HONOUR JUDGE B.D. PARKER, a Judge ofthe Magistrate's Court for ~~e Provinceof Saskatchewan, and Bans Krieg, ofSaskatoon, Saskatchewan,

RESPONDENTS

NOTrCE OF MOTION

TAKE NOTICE that this Honourable Court will be

moved at the Court House in the City of Saskatoon, in the

Province of Saskatchewan, on ~hursday, the 9~~ day of

- 38 -

Sept2mber, A.D. 1965 at the hour of 10:00 o'clock in ~~e

forenoon or so soon ~~ereafter as counsel can be heard

on behalf of the Applicants:

FOR AN ORDER that a peremptory. writ of ~an~~-·':..

do issue, directed to His aonour Judge H.D. Parker, a Judge

of the Magistrate's Court for the Province of Saskatchewan,

commanding him to hear and dete=m.ine the matter of an

information of the Applicant (Informant) Constable P.M.

Gustar of the Royal Canadian Mounted Police dated the 26th

day of February, A.D. 1.965 at Melfon, Saskatchewan charging

the Respondent Hans Krieg ~~at he, the said Hans Krieg, on

the 27th day of August, A.D. 1964 at Naicam District, in

the Province of Saskatchewan did d+ive a motor vehicle on a

public highway without due care and attention contrary to

Section 127 of The Vehicles Act of ~~e Province of

Saskatchewan and requiring ~~e said ?espondent H.D. Parker,

Esq. to try the said Respondent Hans Krieg on ~~e said

charge:

OPON THE FOLLOWING GROUNDS:

(1) THAT the learned Respondent, His Honou» Judge

H.D. Parker, erred in holding that ~~e waiver of Acting

Judge Eisner dated ~~e 12th day of March, A.D. 1965 was

invalid for uncertainty.

(2) THAT the learned Respondent, His HonOur JUdge

H.D. Parker erred in holding ~~at he had no jurisdiction

because of an invalid waiver and should have proceeded to

hear and dete~ne the said charge which was before h~.

- 39 -

(3) THAT the learned Responden t, His Honour Judge

H.D. Parker further erred· in holding that ~~e waiver should

have been ei~~er to a named court or to the Judge of the

Magistrate's Court sitting at Naicam, Saskatchewan on the

ith day of May, A.D. 1955.

(4) THAT in refusing to exercise his said jurisdiction,

the learned Respondent, eis Honour Judge H.D. Parker failed

to hear and detennine the said information as required by law.

(5)

advise.

Such further and other grounds ~s coUnsel may

AND FURTHER ,TAKE ~TOTICE that on the return of his

Motion will be read this Notice of Motion, the Affidavit of

Constable ~.M. Gustar, the Affidavit of Calvin Tallis and

such further and other ~aterial' as counsel may advise and

his Honourable Court may allow.

DATED at the City of Saskatoon, ill the Province

of Saskatchewan this 25th day of August, A.D. 1965.

CALVIN F. TALLIS, Agent of the. Attorney General

TO: His Honour Judge H.D.Parker

AND TO: Hans Krieg.

I" '-/~'- '-~. "f

\

I' ,..... '--

''-'" I I .-

,~,. '-.. I~~.. • '-'

- 40 -

.'-'""';

IN THE COURT OF QUZEN I S BENCE: FOR S;'_SKATCEt'lAN

(CROWN SIDE)

JUDICIAL CENTRE OF SA.;KATOON

IN THE MATTER OF AN APPLICATION BY CORPORALGEORGE CHARLES VANDER KRACHT, OF THE ROYALCANADIAN MOUNTED POLICE, AS INFORMANT ONBEHALF OF HER MAJESTY THE QUE....~, AND THEATTORNEY GENERAL FOR THE PROVINCE OF SASK­ATCHEWAN, FOR A WRIT OF CERTIORARI WITHRESPECT TO AN ORDER DATED THE 5TH DAY OFDECEMBER, A.D. 1978, MADE BY HER HONOURJUDGE M11..RD.N N'EDGE, A JUDGE OF THE MAGIS­TMTE' S COURT OPON JW INFO~..ATION DATEDAUGUST, 1978, AT SASKATOON, SASK.ATCHETIiAN,CHARGING MA-~ORIE G. PAUL UNDER SECTION111 OF TF.E CRIMINAL CODE OF CANADA.

BETWEEN:

~ MAJESTY THE QUEEN, on the relation ofCorporal George Charles Vander Kracht, aMember of the Royal Canadian Mounted Police,

INFORMANT

and

THE ATTORNEY Gl-.NERAL FOR THE PROVINCE OFSASKATCEEWAN ,

and

B:ER HONOUR JUDGE MARIAN WEDGE, a Judge of t.."le~Aqistrate's Court for the Province of Saskatchewan,

and

MARJORIE G. PAUL, of Saskatoon, Saskatchewan,

RESPONDENTS

- 41 -

NOTICE OF MOTION

TAKE NOTICE that an a~plication will be made to the

presidinq Judge in Chambers, at the Court House, in ~~e City

of Saskatoon, in the Province of Saskatchewan, on Friday, ~~e

26th day of January, A.D. 1979, at the hour of ten o'clock in

the forenoon, or so soon thereafter as counsel may be heard

on behalf of the Applicant, for an Order that a Writ of

certiorari do issue quashing the Order of Her Honour Judge

Marian Wedge delivered at a preliminary hearing held at the

Court House, in the City of Saskatoon, in ~~e Province of

Saskatchewan, on the 5th day of December, A.D. 1978, wherein

Her Honour Judge Wedge ordered that Wilfred Tucker, Agent for

the Attorney General, make available to counsel for the accused,

Marjorie G. Paul, his autho~ization from the Attorney General

for the Province of Saskatchewan, pursuant to Section 178(12)

of the Criminal Code of Canada;

AND FURT~R ~AKE NOTICE that the said application

will be made upon ~~e following grounds:

1. That the learned Respondent, Her Honour Judge

Marian Wedge, erred in law in directing the said Wilfred Tu~~er

to produce a designation in writing required by Section 178(12)

of the Criminal Code of Canada.

2. That the learned Respondent, Her Honour Judqe

Marian Wedge, erred in law in directing production of document-

ation from the said Wilfred Tucker who was not' a witness at

the said preliminary hearing, and who was, in fact, the

".... c... ...

- 42-

prosecutor acting as Agent at the preliminary hearing for the

Att~rney General for Saskatchewan.

3. That the learned Respondent, Her Honour Judge

Marian Wedge, erred in law in directing the said Wilfred Tucker

to produce the designation aforesaid in that an Order for the

production of the said designation is contrary to Section 178

(14) of the Criminal Code of Canada.

4. That the learned Respondent, Her Honour Judge

Marian Wedge, erred in law in directing that the said Wilfred

Tucker produce the said designation aforesaid in that the

production of the said designation is not relevant to the

matters to be considered by Her Honour Judge Marian Wedge on

the said preliminary hearing.

5. Such further ana other grounds as counsel may

advise and this Honourable Court may allow.

AND FURTHER TAKE NOTICE that filed in support of the

said application will be read this Notice of Motion with proof of

service, the affidavit of'Jeremy Nightingale, and such further and

other material as counsel may advise and this Honourable Court may

allow.

DATED at the City of Saskatoon, in the Province of

Saskatchewan, this 16th day of January, A.D. 1979.

GOLDENBERG, TAYLOR, RANDALL, BUCKWOLD& w--r.STE1L_nPer:

=S-o.....l..,.i-c-.i....,t-o-r-s-~..,..J..-o-r-...,.t .....h-e----:A::-p-p-."l-ri-c.....a-::n:-;t---

TO: HER HONOUR JUDGE MARIAN WEDGE .ANDMARJORIE G. PAUL, and her solicitors,Hendersen, Donlevy & Company

-82-

~ .. '..-'. ·.r..~

... -..i~.. .TC/~

;;-

)

- 43 -

(".'::-;.~o.

IN THE COURT OF QUEEN'S BENCH

(CROWN SIDE)

JUDICIAL CENTRE OF REGINA

/(:1"'Yof A.D. 1983.

IN THE MATTER OF AN INFORMATION SWORN ON THE 15TH DAY OF JULY,1982 PRESEI\TTLY BEFORE THE PROV INCIAL COURT OF SASKATC!·E\\'AN, COURTP,OOM NO.1, AT THE COURT HOUSE, 2425 VICTORIA AVENUE, REGINA,ALLEGING SEVEN COUNTS OF FRAUD BY THE APPLICANT BETWEEN THE 15THDAY OF OCTOBER AND THE 3RD DAY OF NOVEMBER, 1976.

BETWEEN:

THE BANK OF NOVA SCOTIA,APPLICANT(ACCUSED)

- and -

HER l\LJ\JESTY THE Ql:EEN and HI S HONOUR JUDGER. H. ALLAN, the Presiding Judge of theProvincial Court for S~skatchewan, at theCi ty of Regina, OJ' the Presiding Judge,

NOTICE OF MOTION

Sask.

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&<:.:- "-".\Jr'{ }l.l.. \. . ,_.. ,.'''; ,i'~('~' pEP MACPHERSON, LESLIE & TY~.DEPlJtY"XTTORNE1. ~RE1tXIJ',.....;.'l,..s.4

f··-' Barristers and Solicitors2161 Scarth Street

REGINA,

,-".-" '

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NOTICE OF MOTION****************

TAKE NOTICE that an application will be made to the

presiding Judge in Chambers at the Court House at the City of

Regina, in· the Province of Saskatchewan, on Thursday,

the 10th day of February, A.D. 1983 at 10 o'clock in the forenoon

~ or so soon thereafter as counsel can be heard on behalf of the

Applicant for an Order of Prohibition directed to His Honour

Judge R. H. Allan or the presiding Judge at Court Room No.1 in

the Court House at 2425 Victoria Avenue, Regina, Saskatchewan, to

prohibit him from proceeding further in the above mentioned

Information s\';orn on the 15th dav cf c~u]y, ]982 v;itr"ut :he

"ctual issue (.f a \\'rit of Prohibition 1.;':)0)", the :OJlc.,·,\ing gl'cc'nds:

1. That the said Judge is without jurisdiction to hear and

determine a preliminary hearing based on the said Information

because the Information is an abuse of process of the Courts.

2. That the said Judge is without jurisdiction because the

said Information is contrary to and deprives the Applicant of its

fundamental rights and freedoms guaranteed by the Canadian

Charter of Rights, and in particular, the provisions of Section 7

and Section 11 (a) and (b) thereof.

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3 •

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Such further and other grounds as counsel may advise

and this Honourable Court may allow.

AND FURTHER TAKE NOTICE that the Applicant will also

request on the return of the motion that the said Information be

c. quashed without the actual issue of a Writ of Certiorari and that

the giving of security therefore as required by Rule 12 of the

Crown Practice Rules of Court be dispensed with .

.:'.~'\JD FURTHER T:\KE NOTICE that in the alternative to the

[O:''':r:'cj;~g, the /.pplicc.::t \"::Jl c.ppl~.' ur:cer Sectio!1 24 of the

Court considers approFl':ate and just in the cirCl:mstances to see

that its rights and freedoms as guaranteed by the Charter shall

not be infringed or de~ie~.

AIm FURTHER TP~E NOTICE that on the return of this

~otion there will be read this Motion with proof of service, the

Affidavits of Gary G. W. Semenchuck,Q.C., Ian Strang, Francis

Newbould, Q.C. and Lee Mapplebeck and such further and other

material as counsel may advise and this Honourable Court may

permit.

DATED at the City of Regina, in the Province of

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Saskatchewan, this ~A. day of February, A.D. 1983.

10:

.~\TJ) TO:

The Attorney General for theProvince of Saskatchewan.

His Honour R. H. Al Ian

Thi~ I\otice of Illation wa~ ceJi\'ered b,::

1.12 cPhe '!'" son, l....e 51 1 C: (~ :)? f: rr:-:d 1: ,

E 2. 1" r is:. e :r S 2. r, C. ~ 0 1 i cit c. r E; ,

2161 Scarth Street,Regina, Saskatchewan. S4P 2V4

ana the ~ddress for service is the same as above.

Lawy e r inch a r g e 0 f f i 1e : W. M. Ell i 0 t t, Q . C .Telephone: (306) 527-2641

)

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IN THE COuRT OF QUEEN'S BE~CIl

JUDICIAL CENTRE OF REGINA

IN THE l·1ATTER OF THE CO~STITUTION ACT, 198.1, AND IN THE NATTEROF AN INQUIRY RELATING TO THE P.RODUCTIOi-J, l·Lll...NUFACTURE, PURCHASE,SALE, DISTRIBUTION AND SC?PLY OF BUSINESS FO~~S AND PART IIOF THE Cm·1.i3INES INVESTIG'::'.TION ACT (1978) R.S. c.C-23.

BETi'lEEN:

R. L. CR..ZiIN INC. of Otta\va, Ontario, andJOHN LYNCH, LARRY BUBICK, ROY KENYON, andGEORGE YOUNG,·all of the City of Regina,in the Province of Saskatchewan,

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1'100?-E; CORPOEt:;TION LIHITED of Toronto, Ontario,and JJo...l·1.ES A. SC-ll...RSBROOK, ANTHONY HARIA, BRUCETurFS, ]~~C JOHNS?O:~, all of the City of Regina,in the Pro7ince of Saskatchewan,; GORDON MENUZcf the City of Saskatoon, in the Province ofSaskatche'';2...:.""l; and GORDO~ "IAI KI,'iRI GHT , of theCi ty of ';';in:-~i:?eg, in the Province of I,1ani toba,

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Lj;;';SO~~ B1jSI:,~SS FO?':·lS (?'1..).,NIT03.l;) LTD., of~innipeg, ~a~itoba, and DEA~ ALLEN, JIMPriIS~~Y and BR~D ?2~DERSO~, all of the City ofRegina, in the Province of Saskatchewan, andR..~Y VERTEFEUILLE and HAROLD ST. JOHN, bothof the City of Winnipeg, in the Province of1,la:li toba,

APPLICANTS- and -

L. A. COUTURE, Q.C. of OttaHa, Ontario, andThe Restrictive Trade Practises Commissionestablished under the authority of theCo!i1bines Investigation Act and LA';';SON A. ~\'.

HU~TER, Director of Investigation and Research,Co~bines Investigation,

RESPONDENTS

NOTICE OF MOTION

MacPHERSON, LESLIE & TYE~~1AN

Barristers & Solicitors2161 Scarth Street

Regina Sask~

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NOTICE OF MOTION

TAKE NOTICE Ta~T ~~ APPLICATION will be made to the

Presiding Ch~~bers Judge o~ Thursday, the 15th day of July,-

A.D. 1982, at 10:00 o'clock in the forenoon or as soon as counsel

may be heard thereafter, for an Order pursuant to section 24(1)

of the Constitution Act 1981 providing such remedy as this

Honourable Court considers appropriate and just in the circum-

stances. This Motion is brought on each of the following several

grounds:

1) That the procedure set forth in Part II of the

Co~i~es I~vestigation Act is rendered inoperative

by Sectio~ 52 of the Constitution Act·1981.

2) Th=~ the ~~oce~~re established for the said inquiry

as declared by t~e...... .cappoln:....ee 0,,- the Rest:dctive

Trade Practises CO:iU-nission, Hr. L. A. Couture, Q.C.,

one of the Respondents herein, is a procedure which

abrogates the rights of the Applicants herein and

deprives them of their rights as established by

Sections 1, 7, 9, and 10 of the Constitution Act 1981.

3) That the refusal of counsel for the Director and

L. A. Couture, Q.C. to, inter alia:

a) allow access by the Applicants to the evidence

filed by the Director during the said inquiry,

and;

,1.

b)

, ,

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to allow counsel for each Applicant to be

present duri~g the inquiry and, therefore,

constitutes a deprivation of the l~gal. r~ghts

set forth in the said Sections 1, 7, 9 and la,

" and;

that the conduct of the Respondent, Mr. L. A.

Couture, Q.C~ and his statements to the Applicant,

Dean Allen, constitute a denial of the funda-

mental rights guaranteed in the said Constitut'ion

Act and in particular his suggestion that the

said Allen could face prosecution if he did not

aba~do~ his counsel1s advice to rely on the

Cana::'ia..'1 Charter of Rights and Freedoms in the

circ~~stances of this inquiry, represents an

unco~stitutional deprivatio~, infringe2ent and

denial of the rights guaranteed in the said Act,

including the right to counsel and the right to

assert his legal rights without fear of reprisal.

AND FURTHER TAKE NOTICE THAT in addition to any other

remedy this Court should determine to be appropriate and just, '

this Honourable Court will be moved for the following:

1) A declaration that the proposed inquiry procedure is

repugnant to the Canadian Charter of Rights and Freedoms;

2) A mandatory order directing the Director of Investigation

and Research and the Respondent, L. A. Couture, Q.C.,

,

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to give effect to the rights o~ the Applicants herein

as such rights are guaranteed in the said Charter;

3) A declaration that, in the absence of an according

of the principles of fundamental justice by the

Respondents to the Applicants during the course of

the said inquir~a refusal by a witness to answer,

and the action of counsel in so advising a witness

is not an offence within 'the meaning of Sections 40

and 41 of the. Co~bines Investigation Act;

4) An interi~ Order staying the Respondents from pro-

ceeding ~ith the said inquiry until such time as

this l·:Gtio:;. can be hear-d;

5) Ar. O~~e~ restrai~ing the Res?o~cents fro~ ~eprivin~

or continuin; to deprive the Applicants of the

of fundawental justice in the said inquiry.

. '-prl:-:clp.:..es

AND FURTHER TAKE NOTICE THAT in suppor-t of this Notice

will be read:

a) The Affidavit of Roy Kenyon.

b) The Affidavit of Alfred Dean Allen.

c) The Affidavit of Deborah B. Pacholka.

d) Such further and other material as counsel may

advise and this Honourable Court may permit.

ALL OF ~vHICH IS R:CSPECTFULLY SUB.l'-HTTED.

DATED at the City of Regina, in the Province 'of

day of July, A.D. 1982.Saskatchewan, this

f)L./---'

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51

J·jacPHERSON, LESLIE & TYERHAN

.c::~~~~ ...•.....,,~? ??Per': .. " \-- )·~-=~::..:../a,l.>--c.._~~

solicitors for the Applicants,Moore Corporation Limited, JamesA. Scarsbrook, Anthony Maria,Bruce Tuffs, Alec Johnston,Gordon Menuz and Gordonh'aimvright.

GAULEY & ~'7~=_

Per: f~-U-SOlic~tor7~~th~APPlicants,R. L. Craln ., JDhn Lynch,Larry Hubick, Roy Kenyon andGeorge Young.

""'>.10"::>5"""-.. DOL>F\I7\N SliP"" ,.", ,7\ N1 u ~.__ ~oJ'" ", .:W; i.u-", • ,'\,"::1-.1 ",lh.

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(~Jl..Lt/\/·\ j(: ./r I L~-; / . JPer: \ V,\ V tA""-A..

Solicitors for the ApplicantsLawson Business Forms (l'·lani toba)Ltd., Dean Allen, Jim Paisley,Brad Anderson, Ray Vertefeuilleand Harold St. John, whose addressfOr service in the Province ofSaskatchewan is McDougall, Ready,Wakeling, 700 - 2010 - 11thAvenue, Regina, Saskatchewan.