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QB 271 Pre civil trial

Fiat of Judge Mona Dovell

Richard Klassen holds bank draft he had to get for Brian Dueck's lawyer to avoid being dismissed from civil claim SKQB271-94. David Gerrand took over defending Dueck from Saskatoon City Solicitor Barry Rossman after Rossman successfully duped the court January, 13, 2001. Klassen's lawyer at the time, Ed Holgate, neglected to file his client's affidavit answering to charges of breaking the rules of court. Judge Zarzeczny ruled against Klassen and ordered him to pay Dueck.

A year later: Feb. 19, 2003 | Miazga | Mitchell | Terry Hinz | The $10M+ Lawsuit | Klassens await day in court | The Gerald Morris case traces some of the branches of corruption in the Saskatchewan legal community | Saskatchewan Court of Appeals role in covering malice

Chronology of this story from 1987 to now | More Judge Mona Duvall

QB 1994 271 | Peter Klassen and Michael Ross lawsuit | John Popowich lawsuit


[1] The events that give rise to this civil action occurred between 1987 and 1993. Although allof th plaintiffs, being members of two families (the Klassens and Kvellos) were charged with sexual assault on various children, all of those charges were later stayed.

[2] On January 31, 1994, the plaintiffs commenced this civil action against numerous defendants involved in the conduct of their prosecution, some of which have had the civil claim dismissed as against them over the years for various reasons. The remaining defendants to the civil claim include two Crown prosecutors, the then Executive Director of Prosecutions, a peace officer, a child therapist and counsellor and the Saskatoon Board of Police Commissioners.

[3] All of the parties exchanged their statement as to documents in 1995 and some seven years later the remaining parties are only at the exchange of documents and the examination for discovery stage of the litigation. Counsel for the defendants commenced examining the plaintiff, Richard Klassen, for discovery on behalf of all the plaintiffs on February 1 and 2, 2000. It became necessary for the examination for discovery of Richard Klassen to be adjourned to allow the defendants to bring a motion to prevent the plaintiffs from communicating certain things being disclosed during the discovery of documents and the examinations for discovery stage of litigation.

[4] In January, 2001, the defendants brought a motion pursuant to Rule 237 to restrain the plaintiffs from publishing transcripts or excerpts of transcripts of the examinations for discovery, information given or received during the examinations for discovery or documents or excerpts of documents obtained though disclosure in these civil proceedings as ell as an order pursuant to Rule 173 to stay or dismiss the plaintiffs' action pending compliance with the order made pursuant to Rule 237.

[5] On January 30, 2001, Mr. Justice T. C. Zarzeczny dismissed the defendants' motion to stay or dismiss the plaintiffs' action pending compliance with his order, however, made an order enjoining and restraining the plaintiffs from publishing, in any fashion, the transcripts of the examination for discovery in the action, any documents listed in any statement as to documents of any party to the action, any excerpts of such documents or any information from such examinations or such documents, except in the extent that use is required for proper conduct of this action.

[6] Justice Zarzeczny, however, left it open to the defendants to once again bring a motion to have the claim of the plaintiffs stayed or struck if the plaintiffs insisted upon publishing the information and documentation disclosed during the discovery stage of this civil action despite his order not to do so.

[7] At paragraph 20 of his fiat Zarzeczny J. states:

The order requested by the applicant to stay the plaintiffs' action pending compliance with the orders now issued or upon breach of them is presently denied. It is expected that the plaintiffs, including Richard Klassen, will comply with the spirit and intent of the Court's orders. If not, the applicant may renew this aspect of the application and the relief appropriate to the circumstances will then be considered by this Court.

[8] Unfortunately despite the order of January 30, 2001, the defendants, Dueck and the Saskatoon Board of Police Commissions, believe that one of the plaintiffs in this civil claim, Richard Klassen, has continued to provide non-parties with documentation and information he is receiving during this pre-trial stage in this litigation. The Court is thus once again having to deal with another motion by the defendants, Brian Dueck and Saskatoon Board of Police Commissioners, to have the action of the plaintiff, Richard Klassen, struck or in the alternative stayed pending compliance by Richard Klassen with such direction and orders as this Court may prescribe on the basis of non-compliance with the previous court order of January 30, 2001. While the defendants believe that Richard Klassen has not complied with the spirit and intent of the order of January 30, 2001, Richard Klssen believes he has.

[9] Richard Klassen, as one of the plaintiffs, has also brought a motion requesting production of any and all reports of three police officers: an order producing Brian Dueck for the purpose of his being examined for discovery, an order that Richard Klassen pay only 10 cents per page as opposed to the 25 cents per page being claimed by the defendants for photocopies of documents he is requesting from the derendants, an order that the defendants provide him with a better and more descriptive list of the documents as listed in their statement as to documents and an order allowing him to bring with him a friend, Angela Geworsky, when he reviews the defendants' documents at their counsels' office in Regina.

[10] The Court will deal with each of the parties' motions separately.

1. Defendants', Brian Dueck and Saskatoon Board of Police Commissioners, motion to strike or alternatively stay the plaintiff, Richard Klassen's statement of claim

[11] The order of Mr. Justice Zarzeczny of January 30, 2001, provides:

1. That [the Plaintiff] Richard Klassen and all other plaintiffs who are parties to action Q.B. No 271/94, Judicial Centre of Saskatoon, and their counsel are enjoined and restrained from publishing, in any fashion, the transcripts of examinations for discovery in this action, any documents listed in any statement as to documents of any party to the action, any excerpts of such documents, except to the extent that use is required for the proper conduct of this action.

2. The plaintiff Richard Klassen shall pay costs, on a party/party basis, to the applicant Brian Dueck pursuant to column 4 of the Queen's Bench Tariff of Costs within 30 days of this fiat [on or before March 1, 2001].

[12] The basis of the Defendants requesting that Richard Klassen's action be struck or stayed is two fold:

(a) Richard Klassen has failed to comply with the order of Zarzeczny J. of January 30, 2001, in that he has failed to pay the agreed costs awarded against him in the mount of $1,240.00;

(b) Richard Klassen has failed to keep confidential to this proceeding documents disclosed to him in the context of this action and the contents of examinations for discovery, contrary to law and contray to the specific direction of Zarzeczny J. in his order of January 30, 2001.

[13] The Court will address both grounds upon which the defendants are requesting that Richard Klassen's claim be struck or stayed.

(a) Richard Klassen's non-payment of taxable costs in the amount of $1240.00

[14] Although the taxable costs payable by Richard Klassen had been agreed to by the parties in March, 2001, as at February 14, 2002, Richard Klassen had still not paid the defendant, Brian Dueck, the agreed taxable costs in the amount of $1240.00.

[16] The Court does not accept Richard Klassen's excuse for non-payment by him of the taxable costs awarded against him over a year ago. He was well aware of the fact that the taxable costs had been awarded against him and that it had been agreed that he would pay $1,240.00. He knew that he was under an obligation to pay taxable costs in the amount of $1,240.00 and simply chose not to do so. The defendant, Brian Dueck, had no obligation to repeatedly ask for the taxable costs. As it turns out that aspect of the defendants' motion does not have to be determined by the Court as Richard Klassen delivered to the Court House at Saskatoon on February 15, 2002, a bank draft payable to David Gerrand in the amount of $1,240.00 representing payment in full of the taxable costs awarded against him in the order of Zarzeczny J. of January 30, 2001. It is the Court's understanding that these taxable costs have now been forwarded on to David Gerrand on behalf of his client, Brian Dueck.

(b) Non-compliance with the specific direction as contained in the January 30, 2001 order and the law to keep confidential information and documents disclosed during the discovery stage of this litigation.

[17] The second ground of the defendants' motion to strike or stay Richard Klassen's claim is by far the more serious. To strike or even stay a litigant's statement of claim is indeed an extreme remedy which the Court takes very seriously and only grants in a clear and obvious case. Everyone is entitled to their day in court, however, all parties to a civil action including self-represented litigants must follow the Saskatchewan Queen's Bench Rules of Court and the law and come into this court of equity with clean hands.

[18] The defendants' position was that, notwithstanding the clear wording of this Court's order of January 30, 2001, which Richard Klassen acknowledged that he had read, he had continued to provide documents disclosed to him in these civil proceedings to parties in other actions; had disclosed documents relating to this case to the press and had facilitated their publication in the media; and had disclosed the contents of the examination for discovery in this action and facilitated their publication on the Internet in an offensive manner contrary to the law.

[19] The evidence presented in support of the defendants' position that Richard Klassen was not complying with the previous order of this Court of January 30, 2001, included the statement of Donald A. McKillop, Q.C. as to what Richard Klassen had said to him on January 28, 2002; the comments of Richard Klassen to the Saskatoon StarPhoenix as reported on January 31, 2002; the contents of Richard Klassen's letter to D.A. McKillop, Q.C. of January 31, 2002 and the contents of the affidavit of Angela Geworsky sworn February 8. 2002.

[20] D.A. McKillop, Q.C. swore in his affidavit of January 31, 2002, that Richard Klassen had told him on January 28, 2002, that he would continue to feel free to circulate further documentation provided to him after acknowledging the contents of a notice of motion apparently signed by Johanna Erna Lucas that stated that Richard Klassen had been the one who had nade several thousand pages of documents available.

[21] In a letter dated January 31, 2002, to D.A. McKillop, Q.C., Richard Klassen states in the second paragraph:

I will request a full evidentiary hearing where I can address my reasons for making public the evidence regarding some of your clients allowing two eight year old girls to be violently raped and sodomozed while ignoring the girls' clear cries for help. Your defendants' objections that this evidence is classified as "private" because it sits in boxes of civil discovery material must be seen as a highly irregular misuse of the rules of court.

[22] An article in the Saskatoon StarPhoenix on January 31, 2002 reads in part:

Klassen fears he could be removed from the lawsuit, but believes he has a right to publish what he considers evidence of wrongdoing.

[23] A transcript of a CBC-TV Sask broadcast on February 1, 2002, reads in part:

CHRIS EPP [REPORTER]:

Klassen has consistently revealed information about the case to the CBC program, The Fifth Estate. It has aired two documentaries about it. He also has a website on which he posts the information that he finds.

. . .

Klassen admits he has violated the ban but says he needs access to those documents.

[24] In an affidavit dated February 8, 2002, Angele Geworsky swore that she was present when Richard Klassen met with D.A. McKillop, Q.C. on January 29, 2002, and her recollection of the conversation was that Richard Klassen advised D.A. McKillop, Q.C. that "I could assure you that I would not show anyone anything, if I don't find any crimes to show."

[25]The defendants' are of the view that it is clear and obvious that Richard Klassen has blatantly defied the order of January 30, 2001, and thus his action should be struck or at least stayed at this time.

[26] Richard's position, however, is that his civil claim should not be struck or stayed by the Court as it is his belief that he has not contravened in any manner the order of this Court of January 30, 2001.

[27] Although Richard Klassen's consistent reason for disseminating whatever documentation he has in the past to whomever he has was he believed that crimes had been committed in the past by the defendants and the public had the right to know about those crimes, that was not the reason he gave the Court in chambers on February 14, 2002, for distributing the information and documents he had to non-parties to this litigation.

[28] The reason he gave the Court for providing to non-parties the information or documentation he had was that he was not prohibited from doing so pursuant to the terms of the order of January 30, 2001, as it was his opinion that the only documentation or information he was restrained from publishing in any fashion to non-parties pursuant to the order of January 30, 2001, were the actual transcripts of the examinations for discovery and any document listed in any of the parties' statements as to documents in this action [emphasis mine].

[29] He argued that there was absolutely no evidence before the Court that he has provided to any non-parties to this litigation any of the documents listed in any of the parties' statement as to documents or transcripts of the examinations for discovery. Thus there was no evidence that he had contravened the order of January 30, 2001.

[30] Richard Klassen argued that while certain information had been posted on the Internet by someone other than himself, describing his experiences at his examination for discovery, there was absolutely no evidence before the Court that any information obtained by him during the discovery process had been reproduced or published in any fashion by him to anyone including the media. In support of his position was filed the affidavit of Sheila Steele in which she swore that she was the only one who had the ode to the injusticebusters website and that Richard Klassen had never posted any writings to the site using her code and that Richard Klassen did not have one of his own. Sheila Steele acknowledged that it was her that expressed her own opinion on the website from time to time.

[31] The Court is in total disagreement with Richard Klassen's understanding and interpretation of the scope of this Court's order of January 30, 2001. Not only were the parties and their counsel enjoined and restrained from publishing, in any fashion, the trnscripts of the examinations for discovery in this action, any documents listed in any statement as to documents of any party to the action or any excerpts of such documents, the parties and their counsel were enjoined and restrained from publishing in any fashion any information from such examinations or such documents, except to the extent that use is required for the proper conduct of this action. [Emphasis mine]

[32] The Court is absolutely amazed that counsel for the remaining plaintiffs, Robert J. Borden, would be of the opinion that Richard Klassen's interpretation of this Court's order of January 30, 2001, was correct.

[33] Having determined that Richard Klassen's apparent understanding of the January 0, 2001, order was erroneous and as a reult of that misunderstanding or any other reason Richard Klassen had been providing information and documentation concerning the civil action to non-parties to the litigation in contravention of the January 30, 2001, what is the appropriate remedy to be given by this Court? Should Richard Klassen's action be struck or stayed?

[34] There is certainly a strong argument that as Richard Klassen has already been given one break by this Court in his action not being struck in January, 2001, and that as he knew all along that he was contravening an order of this Court in providing the information to non-parties, this Court should have no hesitation in striking his action. The Court, however, must be cautious especially in a situation where there isuncertainty in the evidence presently before it as to what information was actually provided by Richard Klassen and the actual source of the information given by Richard Klassen.

[35] The difficulty the Court has in determining this application is linking what has been put on the Internet or spoken of by Richard Klassen with the media or D.A. McKillop, Q.C. with any statement or document as either listed in any parties' statement as to documents or any specific document or information arising from the examinations for discovery on the materials presently before the Court.

[36] As an example, the defendants' argued that a handwritten note dated June 1991 attached to the brief of Richard Klassen dated February 10, 2002, was obtained from Sonia Hanson, Matthew Miazga and Richard Quinney's statement as to documents dated May 31, 1995, labelled as document no. 119. The Court has a copy of the Sonia Hanson, Matthew Miazga and Richard Quinney statement as to documents dated May 31, 1995, however, the Court was not provided with a copy of the actual document no. 119 entitled "A file folder labelled "Carol's notes" together with its contents". There is thus no evidence before the Court on this application that the handwritten note attached to Richard Klassen's brief came from document no 119 as listed in the Sonia Hanson, Matthew Miazga and Richard Quinney statement as to documents dated May 31, 1995, or that it arose out of the discovery process.

[37] The Court's dilemma in not making such a match stems in part from the insufficiency in some respects of the defendants' present statement as to documents prepared seven years ago and in particular the documents not all having been properly numbered. Descriptions such as "a file folder labelled x with its contents" or "a collection of Saskatoon City Police occurrence reports" are not sufficient especially in a case such as this and do not comply in all likelihood with Rule 212(4) of the Saskatchewan Queen's Bench Rules. This problem will be addressed further later in this fiat.

[38] Having considered all the evidence before the Court at this time there is no doubt that Richard Klassen has provided documentation and information during the pre-trial state of this litigation to third parties despite the order of this Court of January 30, 2001, and contrary to the law. He says that he did so as he believed he had the right to do so for two reasons. First, to show that a crime had apparently been committed. Second, as the documents were not listed in any parties' statement as to documents. At this stage of the litigation without leave of the Court Richard Klassen had no right whatsoever toprovide non-parties with any information or documentation no matter what his excuse is. In doing so he was acting in contravention of a specific order and the law. Richard Klassen must learn that he, as a self-represented litigant, must follow and comply with the laws and orders of this Court. There is no room for vigilante justice within our judicial system. Hopefully this is crystal clear to Richard Klassen at this time and that he will change his ways. As stated by Baynton J. in Halstead v. Anderson et al. (1993), 115 Sask. R. 257 (Q.B.) at para 39:

. . .Vigilante justice is repugnant to the rule of law. It would be unfair, inequitable, and an abuse of the court, to allow a party to unlawfully pursue his claim in the streets and alleys while concurrently pursuing it through the judicial system.

[39] Having said all that, this Court rightly or wrongly in providing him with every benefit of the doubt is once again prepared to give Richard Klassen one last chance and is not prepared to strike or stay his action at this time.

[40] However, that is not to say that the Court will be as lenient the next time. Assuming that Richard Klassen has now got it straight once and for all that:

NO DOCUMENTATION OR INFORMATION WHATSOEVER OBTAINED BY HIM DURING THE DISCOVERY STAGE OF THE LITIGATION, WITHOUT AN ORDER OF THIS COURT, CAN BE RELEASED TO ANY NON-PARTIES BY HIM.

[41] Any future contraventions of either the order of January 30, 2001, or this order of the Court shall be immediately brought to the attention of myself to be dealt with appropriately. The Court will have no hesitation in striking or staying the action of Richard Klassen upon the appropriate evidence being put before me that he has once again flaunted an order of this Court. In that regard, there are matters that have to be attended to by all of the parties to this litigation immediately to ensure that this litigation proceeds in as orderly a fashion as possible. The Court will outline those when addressing the plaintiffs' moton for a better and more descriptive statement as to documents which may go a long way in preventing Richard Klassen from providing in the future information or at least documentation arising out of the discovery process to non-parties.

[42] Richard Klassen shall acknowlege in writing that he understands his obligations in law not to provide any non-parties to this litigation with copies of any documents or information obtained during the discovery process and provide copies of that acknowledgment to counsel for the defendants and to the Court. In the event that Richard Klassen is not prepared to provide that acknowledgment and accept the terms of this order and is isistent upon continuing with his activities in providing non-parties with information and documentation concerning this civil action at this stage of the litigation, the defendants' counsel are under no obligation to provide him with any further documentation and this matter is to be brought before myself to determine whether his action should be immediately struck or stayed.

[43] The present application of the defendants, dueck and Saskatoon Board of Police Commissioners is dismissed.

2. Richard Klassen's Motion

[44] Richard Klassen's motion has sewveral aspects to it that will all be addressed by the Court.

[45] First, Richard Klassen is requesting production of any and all of the reports prepared by Ron Shindel and Marv Hanson for the defendant, Brian Dueck, in his investigation of the Klassen/Kvello sexual assault charges as are referred to by Brian Dueck. Originally the reports of Arthur Hitchings were also requested, however, these have been found ad provided to Richard Klassen.

[46] Counsel for the defendants advise that they cannot locate any reports of either Shindel or Hanson at this time in the volume of documents in their possession. Keith Rans, the current Superintendent of Criminal Investigations with the Saskatoon Police Service filed an affidavit confirming that he had undertaken a search of the police files and had been unable to locate any reports of either Shindel or Hanson.

[47] The Court accepts that at this time the defendants cannot locate any reports of either Shindel or Hanson amost their documents and as such the Court is not prepared to make an order that the defendants produce documentation that they do not possess. The defendants, however, have an ongoing obligation to disclose documentation as it becomes available and if at anytime in the future any reports are found of eiher Shindel or Hanson they are to be provided to Richard Klassen, assuming privilege is not being claimed on such report.

[48] Second, Richard Klassen is requesting an order that Brian Dueck present himself for the purpose of being examined for discovery and to bring with him at that time certain documentation. The Court is not prepared to make such an order as it is not necessary. If Richard Klassen wishes to examine any of the defendants for discovery all that is required is that he follow the Saskatchewan Queen's Bench Rules of Court providing the defendant, Brian Dueck, with an appointment, a subpoena and appropriate conduct money.

[49] Third, Richard Klassen is requesting an order that he only has to pay 10 cents per page for photocopies of the documents he requests from the defendants' solicitors. Apparently in 1995 an agreement had been reached as between Richard's then counsel, Edward Holgate, and D.A. McKillopo, Q.C. that the appropriate rate for photocopying at that time would be 10 cents per page. Some seven years later it is the position of D.A. McKillop, Q.C. that the going rate for photocopying amongst lawyers is 25 cents per page and thus he shouldn't be bound by an agreement made years ago. The Court agrees. The cost of doing business has increased in the last seven years and 25 cents per page photocopied is certainly reasonable in the year 2002. The rules should not be different for self represented litigants than it is for lawyers representing clients.

[50] The defendants' counsel are entitled to be paid 25 cents per page of photocopying Richard Klassen requests and to make appropriate arrangements for payment with Richard Klassen prior to those photocopies being made and/or released to him. Perhaps it may be more cost efficient for Richard Klassen to view the documents before blindly requesting copies pf the documentation as listed in the defendants' statement as to documents so that he can determine what copies he actually requires.

[51] Fourth, Richard Klassen is requesting that the defendants deliver to him a better and more descriptive list of documents. The Court assumes that he is reqesting an updated statement as to documents with the large number of documents described in more detail. All of the five defendants' statement as to documents go back to 1995, some seven years ago. Although both counsel for the defendants have assured the Court that there are no additional documents that have come to light since 1995 to add to those documents already listed, they were not particularly opposed to filing updated statements as to documents.

[52] Although for the most part thepresent statements as to documents of the defendants were satisfactory and in compliace with the Saskatchewan Queen's Bench Rule 212(4), as previously indicated, the Court has some concerns about documents described as a group of something or a collection of some kind of document. While in some litigation that description may suffice, it does not in this particular file. The Court is cognizant that description is ubjective and may cause more difficulty than assistance. Nothing replaces a document actually being reviewed by a party to establish the significance of that document.

[53] What is paramount in this case is that all of the documents including those in folders and in groups of documents be numbered so that there is a number assigned to each and every piece of paper for easy and determinative reference. That would certainly assist the Court in the future if the situation arose that a determination had to be made as to whether or not a party had disclosed a certain document contrary to any order and the law. It certainly would have been easier for the defendants to establish in their present motion that Richard Klassen had disclosed to a non-party the handwritten note the defendants claim came from their document no. 119 being "a file folder labelled Carol's notes" if that handwritten note had had a number asigned to it which could have been referenced to their documents.

[55]Until such time as all of the parties have prepared and exchanged their updated statements as to documents none of the parties are obligated to provide the others with any of their documents. Once the updated statements of documents have bveen prepared the parties shall organize their documents in an orderly fashion so that all of their documents are in one place to accomodate easy access by the other parties who choose to examine the documents in preparation for the examinations for discovery.

[56] Fifth, Richard Klassen is requesting that he beallowed to bring with him his assistant, Angela Geworsky, to view the defendants' documents. The defendants are objecting to that request on the basis of their past experiences with Mr. Klassen and the complications that could potentially arise if she were to attend with Richard. Richard Klassen has chosen to represent himself. As such, this Court is not prepared to make an order that Angela Geworsky be allowed to attend with Richard Klassen when he is viewing the documents in the offices of the defendants' counsel in Regina.

CONCLUSION

[57] The Court at this time on the evidence before it is not prepared to strike or stay the action of Richard Klassen. The defendant' application is dismissed.

[58] In the event that Richard Klassen refuses to accept the law as set out for him in the fiat of Zarzeczny J. of January 30, 2001, and this fiat with respect to the absolute necessity of non-disclosure by him of any and all documents and information to non-parties during this stage of the litigation and acknowledge in writing that he is prepared to abide by this fiat, this matter is to be brought back to myself for a determination as to whether or not his claim should be struck or stayed immediately.

[59] In the event any new information or evidence comes to the attention of he defendants that would indicate that Richard Klassen is not complying with this order the matter is to be brought back to myself for a determination to be made as to whether or not his claim should be struck or stayed immediately.

[60] All of the motions of Richard Klassen are dismissed except for his motion regarding updated statements as to documents with better detail and description. Both the plaintiffs and the defendants shall prepare and exchange within 30 days of this fiat updated statements as to documents . Until such time as these updated documents are prepared and exchanged the parties are not obligated to provide any further documents to the others.

[61] As all of the parties have had sine succes and some failure on all of the motions before the Court as dealt with in this fiat, there shall be no costs assessed against Richard Klassen or the defendants with repect to these applications.

_____Dovell(signed)___J.

Richard Klassen would like very much to thank the anonymous European donor whose generous contribution could not have come at a more helpful time.