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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.
THE ESTATE OF DENNIS KVELLO (by his personal representative, Diane Kvello),
THE ESTATE OF MARIE KLASSEN (by her personal representative Peter Dale Klassen),
and -
THE ESTATE OF RICHARD QUINNEY (by his personal representative Murray Brown),
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

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.


[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 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 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 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.

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 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 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 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 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 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 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.

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