Supreme Court

McMeekin v. NWT Liquor Commission (No.2), 2008 NWTSC 87
Date: 2008 11 04
Docket: S-0001-CV-2008000165

 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES

BETWEEN:

 GREG MCMEEKIN
 Plaintiff

 - and -


 NORTHWEST TERRITORIES LIQUOR COMMISSION
 Defendant

 MEMORANDUM OF JUDGMENT


[1] A number of motions related to this matter were before me in Chambers on October 15, 2008.  This is my ruling on those motions.

A) BACKGROUND

[2] To put this matter in context, I must refer briefly to some of the circumstances that led up to this litigation, including aspects of its procedural history to date.

[3] What is at the origin of this matter is a process involving the Department of Finance of the Government of the Northwest Territories.  That Department is responsible for the operation of the Northwest Territories Liquor Commission.  During the Fall of 2006, the Department issued a Request for Proposal for the operation of a liquor outlet in Hay River to replace an outlet operated by Hay River Liquor Retailers (1999) Inc.  Mr. McMeekin submitted a proposal in this process.  His proposal was unsuccessful.  Matters took their course and Hay River Liquor Retailers (1999) Inc. was the successful proponent.


[4] Issues then arose as to the zoning of the property where the company proposed  to operate the outlet.  A development permit sought by Hay River Retailers (1999) Inc. was approved by the Hay River Development Appeal Board, but that decision was challenged.  In 5142 NWT Ltd. et al. v. Town of Hay River 2008 NWTSC 02, this Court granted an appeal from the decision and directed the Board to conduct a new hearing into the permit.  No such hearing ever concluded.  Hay River Retailers (1999) Inc. withdrew its development permit application.  The Liquor Commission later announced to all those who had submitted proposals in the process that the Liquor Commission had cancelled the Request for Proposals.

[5] Mr. McMeekin takes issue with a number of aspects of how this matter was handled by the Liquor Commission.  He filed an Originating Notice seeking various things by way of relief.  The Liquor Commission filed a motion seeking to strike out the Originating Notice.  The application to strike was heard in this Court on August 1, 2008.  On August 25, Schuler J. issued her decision, reported at McMeekin v. NWT Liquor Commission, 2008 NWTSC  67.

[6] Schuler J. concluded that the only claim in the Originating Notice that could proceed was Mr. McMeekin’s claim for damages or restitution from the Commission.  In dealing with that aspect of the Originating Notice, Justice Schuler wrote:

The claims for restitution and the award of the contract contemplated by the RFP [Request for Proposals] to Mr. McMeekin are capable of being understood as a claim that there was unfairness in the RFP process and that Mr. McMeekin should have been the successful proponent and therefore seeks damages or restitution from the Liquor Commission for what he claims he would have earned under the contract he says he should have been awarded.  Such claims are sometimes made in situations of tender calls and it may be doubtful that a claim could succeed in this case because of the stipulation that the RFP that “This is not a Request for Tenders or otherwise an offer”.  However, even if this claim has merit, about which I make no finding at all, it does not lend itself to the summary procedure of originating notice and affidavits.

McMeekin v. NWT Liquor Commission, supra, at para. 29.

[7] In the conclusion of her decision, Schuler J. further stated:


if Mr. McMeekin decides to proceed with that claim, he will have 30 days from the date of these reasons to file a statement of claim setting out particulars of his claim. The statement of claim can be filed in the same court action that was commenced by the Originating Notice.  The Commission will then have the time set out in the Rules of Court to file its statement of defence.  The case can proceed from there in the usual manner.

McMeekin v. NWT  Liquor Commission, supra, at para. 38.

[8] Mr. McMeekin filed a statement of claim on September 19, 2008. On the same date he also filed a Notice of Motion that appears to relate to the same subject-matter as is covered by the statement of claim: both are a claim for monetary compensation associated with financial losses Mr. McMeekin claims to have suffered as a result of not having been awarded the contract by the Liquor Commission.

[9] Mr. McMeekin filed a second Notice of Motion on October 3, 2008, seeking an Order that the action be entered for trial pursuant to Rule 319(3) of the Rules of the Supreme Court of the Northwest Territories, R-010-96.  He filed a third Notice of Motion on October 8, 2008, asking that this case be referred to case management.

[10] The Liquor Commission has, for its part, filed two Notices of Motion.  The first, filed September 24, 2008, seeks:

1.  that Mr. McMeekin’s Notice of Motion filed September 19th be struck;

2.  that Mr. McMeekin be compelled to amend his statement of claim so that the statements of fact he relies on be set out in consecutively numbered paragraphs, and that references to exhibits be removed from the body of the claim;

3.  a Declaration that service of the statement of claim verified in the Affidavit of Service sworn September 16 2008 was improper and ineffective;

4. An Order preventing the time period allotted for the filing of a statement of defence  from running until an amended statement of claim that conforms with the Rules of Court has been filed and served on the Liquor Commission; and

5.  Costs.



[11] The Liquor Commission’s second Notice of Motion, filed October 7, 2008,  seeks an Order striking out the statement of claim, as well as costs.

B)  ANALYSIS

[12] I will address each  motion separately, dealing first with the three motions filed by Mr. McMeekin.

1.  Mr. McMeekin’s motions

a)  Motion filed September 19, 2008:

[13] This Court has already decided that the proper way for Mr. McMeekin to advance his claim is that he do so by way of statement of claim.  The relief sought in the Notice of Motion filed September 19 pertains to the same  subject matter as the one raised in his Originating Notice, and as what is outlined in the statement of claim that he has now filed.

[14] The process of a Notice of Motion is not any better suited to deal with Mr. McMeekin’s claim than was the process of filing an Originating Notice.  This Court has already decided that his claim should be dealt with by way of statement of claim.  It follows that other processes are not available to Mr. McMeekin.  Unless and until the earlier decision is reversed on appeal, Mr. McMeekin’s claim for monetary compensation  must be dealt with through the statement of claim process.

b)  Motion filed October 3, 2008:

[15] This motion asks that the certificate of readiness prepared by Mr. McMeekin be filed and that the matter be entered for trial immediately.


[16] Ordinarily, a certificate of readiness is filed jointly by the parties to a litigation  (Rule 319).  Once that is done, a trial date is set.  The purpose of the certificate of readiness is to confirm that the various procedural steps set out in the Rules of Court have been complied with and that the  parties are ready to proceed to trial.  Paragraph (3) of the Rule contemplates one party being permitted to file a certificate of readiness without the consent of the other, but that is an exceptional measure, reserved for situations where that party has not responded, is uncooperative, or there is another good reason why the matter should be entered for trial at the instance of only one of the parties.

[17] I understand from Mr. McMeekin’s submissions at the hearing of these motions that he feels very strongly that this matter has dragged on for a long time because the events leading up to it occurred two years ago.  I appreciate that he has concerns about that and is eager to move this matter along.  But the process that he has launched by filing his statement of claim is, from the point of view of the usual procedure in civil litigation, in its very early stages.  Filing a statement of claim is the first of  many steps in a lawsuit.

[18] The procedural steps set out in the Rules of Court exist, among other reasons, to ensure that what is at issue in the litigation is clearly identified.  Pleadings are filed to narrow down the issues.  Statements as to documents are exchanged so that each party is aware of relevant material that is within the knowledge or control of the other.  Examinations for discovery are conducted so that each party can obtain the information it needs about the case that the other party proposes to present.  Ultimately the objective of all these rules is that each party have full disclosure of the case that the other intends to present, so that trials can proceed in a fair and orderly fashion.

[19] There are cases where, for various reasons, the parties agree to forego some of these procedural steps.  For example, parties may agree not to conduct examinations for discovery.  But absent such agreement, a party cannot impose short cuts on another.  That is so even if that party sincerely believes that there will be no benefit to following the usual procedures.  What Mr. McMeekin is asking the Court to do is set aside all of the usual rules for the sake of expediency, over the protests of the other party.  The Court cannot do that.  The Liquor Commission has the right to raise the issues it has raised about the validity of the statement of claim, and to obtain rulings before matters proceed further.

[20] There are many rules in the Rules of Court.  To a person who is not used to working with them, it can be challenging to navigate through all these processes.  Nevertheless, all parties to litigation, including those who, as Mr. McMeekin, choose to represent themselves, must comply with them.

[21] Under the circumstances, I am unable to grant Mr. McMeekin’s application to have this matter entered for trial.

c)  Motion filed October 8, 2008:

[22] Some of what I have referred to in dealing with Mr. McMeekin’s second motion also applies to his request to have this matter referred to case management.

[23] The purposes of case management are to expedite the disposition of the action; to establish early and continuing control so that the case will not be protracted because of lack of management; to discourage wasteful pre-trial activities; to improve the conduct of trial through more thorough preparation, and; to facilitate the settlement of the case (Rule 283).

[24] Rule 283 also states that case management can be directed at any stage of an action, so Mr. McMeekin is entitled to present his application now even though proceedings, as I have already stated, are in their very early stages.  The fact that he is entitled to make the application of course does not mean he is necessarily entitled to the relief that he seeks.

[25] In submissions, the Liquor Commission argued that while there could be a stage in the proceedings where case management might become useful, it is premature to make such an order at this point.  I agree.  A necessary  step is that pleadings that conform with the Rules of Court be filed by both parties so as to circumscribe and clarify the issues to be litigated.  It would not be proper for this Court to advise either party as to how those pleadings should be framed, or to have influence or input into those pleadings.  This is something the parties have to deal with themselves.

[26] I find, for those reasons, that there would be no benefit in referring the matter to case management at this stage.

2.  Liquor Commission’s motions

a)  Motion filed October 7, 2008:


[27] This motion seeks an Order striking Mr. McMeekin’s statement of claim.  Some of the Defendant’s complaints are substantive (failure to plead material facts with respect to a claim of restitution or damages, failure to disclose a reasonable cause of action, vexatiousness, frivolousness, abuse of the court’s process).  Other complaints are based on prejudice to the Defendant in preparing its statement of defence.

[28] Mr. McMeekin filed his statement of claim following a decision of this Court saying that this was the avenue open to him if he wanted to pursue his claim for compensation against the Liquor Commission.  Under those circumstances, I think it is problematic for the Liquor Commission to argue that the statement of claim should be struck.  Some of the arguments made in support of the application to strike are not convincing.  For example, the Defendant points to the use of the term “restitution” in the statement of claim and argues that this term has a specific legal meaning, and is not the same as compensation for damages, which appears to be what Mr. McMeekin seeks.  In my view that is an overly technical reading of the statement of claim.

[29] Most of the Defendant’s arguments, and the ones I find more  persuasive, go not to the issue of whether the statement of claim should be struck, but to the question of whether it should be amended to conform to the Rules of Court.  This is part of what the Defendant seeks in its second motion, which I now turn to.

b)  Motion filed September 24, 2008:

[30]  The Defendant points to several defects in the statement of claim and argues that in its current form, it does not comply with the Rules of Court.  I agree with that submission.

[31] Some of the defects relate to the contents of the statement of claim.  Rule 106 requires that a statement of claim contain only a statement in summary form of the materials facts on which the party relies on for his or her claim.  Rule 106 prohibits reference to evidence and exhibits.  The statement of claim filed by Mr. McMeekin refers to evidence and exhibits, and it also includes submissions.  This is improper.

[32] The form of the document is also problematic.  A statement of claim must be structured with paragraphs consecutively numbered (Rule 107).  This requirement exists so that a defendant may be in a position to respond, in its pleadings, to the allegations made in each paragraph.


[33] I conclude that the Defendant is entitled to the relief it seeks in Paragraphs 3(a) and (b) of this Notice of Motion.  The statement of claim filed does not conform to the Rules of Court.  It would be difficult for the Defendant to draft a statement of defence that would  respond cogently to the document that has been filed. It is important that the issues to be litigated in this action be clearly identified through the pleadings, to ensure that the matter proceeds efficiently.

[34] As I indicated during the hearing of these motions, it is not the Court’s role to give Mr. McMeekin advice about how to word his statement of claim.  It would be inappropriate for the Court to do so.  I attempted, during the hearing of this matter, to explain to Mr. McMeekin, in very general terms, how a statement of claim should be drafted.  That is as far as I think the Court can go.

[35] The second aspect of this motion is a request to strike Mr. McMeekin’s Motion filed September 19, 2008.  As already stated at Paragraphs 13 and 14 of this Memorandum, I agree that this motion should be struck because it contravenes an earlier Order of this Court as to what process should be followed by Mr. McMeekin to advance his claim.

[36] For these reasons, an Order will issue as follows:

1.  Mr. McMeekin’s motion filed September 19, 2008, is struck, pursuant to Rule 129(1)(a)(iv) of the Rules of Court;

2.  Mr. McMeekin’s motion to have the matter entered for trial is dismissed;

3.  Mr. McMeekin’s motion to have the matter referred to case management is dismissed;

4.  The Liquor Commission’s motion to have the statement of claim struck is dismissed; and


5.  The Liquor Commission’s motion for an Order that Mr. McMeekin amend his statement of claim is granted on the following terms:

(a)  Mr. McMeekin shall file a fresh statement of claim; he need not comply with Rule 136 dealing with amendments of pleadings; the new statement of claim must be drafted in compliance with the Rules of Court, and in particular, Rules 106 and 107;

(b)  The new statement of claim shall be filed and served on the Defendant within 30 days of the filing of this Memorandum of Judgment; and

(c)  The Defendant will have 30 days from service to file a statement of defence or take whatever other action it deems appropriate.

[37] Under the circumstances, there will be no order as to costs for any of these motions.




L.A. Charbonneau
        J.S.C.

Dated at Yellowknife, NT, this
4th day of November 2008

The Applicant was self-represented
Counsel for the Respondent:  William M. Rouse


S-0001-CV-2008000165



IN THE SUPREME COURT OF THE
NORTHWEST TERRITORIES



BETWEEN:

 GREG MCMEEKIN
 Applicant

 - and -


NORTHWEST TERRITORIES LIQUOR COMMISSION
 Respondent





 MEMORANDUM OF JUDGMENT OF
  THE HONOURABLE JUSTICE L.A. CHARBONNEAU