QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2006 SKQB 322 Date: 20060718 Docket: Q.B. 1287/2005 Judicial Centre: Saskatoon BETWEEN: IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON WINSTON McKAY and MAY HENDERSON DEFENDANT J.S. Abrametz for the plaintiff (respondent) D.A. Racine for the defendant (applicant) FIAT GEREIN, J. July 18, 2006 [1] This is an application for an order striking out the plaintiff’s claim in defamation. I decline to grant the order. THE APPLICATION [2] The application is brought pursuant to Queen’s Bench Rule 173 which provides: 173. The Court may at any stage of an action order any pleading or any part thereof to be struck out, with or without leave to amend, on the ground that: (a) it discloses no reasonable cause of action or defence, as the case may be: (c) it is scandalous, frivolous or vexatious; (e) it is otherwise an abuse of the process of the Court; and may order the action to be stayed or dismissed or judgment to be entered accordingly or may grant such order as may be just. Unless otherwise directed, the offending party shall pay double the costs to which the other party would otherwise be entitled. The grounds in support of the application, as set out in the notice of motion, are these: 1. The Plaintiff’s Statement of Claim discloses no reasonable cause of action. The Statement of Claim does not provide any details of the incidents such as time, place, and audience relating to the alleged defamatory statements. The Statement of Claim does not allege that any of the statements were published by the Defendant. The facts as pleaded would not constitute defamation in law even if proven to be true. 2. The claim is scandalous, frivolous and vexatious. The Plaintiff fails to plead the means by which the statements were made or the dates when, and locations where, such statements were made thus depriving the Defendant of the ability to identify the acts or omissions or the incidents that are alleged to constitute cause of action. The Plaintiff fails to plead any facts as to the dates on which these statements were supposed to have been made, and deprives the Plaintiff of the ability to address the applicable limitation period. 3. As the Plaintiff fails to address the most basic elements of cause of action in defamation, the claim lacks substance and merely serves to scandalize and annoy the Defendant. As such, the Statement of Claim in its entirety is scandalous, frivolous and vexatious and otherwise an abuse of the process of this Honourable Court. While the grounds are set out in three paragraphs, the first two largely say the same thing: that the statement of claim discloses no reasonable cause of action. The last speaks of the claim being scandalous, frivolous and vexatious and an abuse of process. [3] The affidavits of several individuals, including the defendant, have been filed in support of the application. In each of them certain conduct of the defendant is described in some detail. However, they make no reference to the alleged defamatory remarks. THE STATEMENT OF CLAIM [4] This statement of claim alleges malicious defamation on the part of the defendant. The important paragraphs are these. 5. The Defendant, May Henderson, has verbally stated the following and thereby did so publish with respect to the Plaintiff, Winston McKay, to the Saskatoon Indian Metis Friendship Centre board members including Lorraine Hessdorfer, Pat Caron, Shauna Trotchie, Kelly Pruden, Julia M. Durocher, F. Maurice and Rick Daniels on or about the first week of June, 2005; (a) “Winston McKay has been verbally abusive to me for over year”; (b) “Winston McKay’s verbal abuse against me has escalated to physical abuse”; (c) “Winston McKay has harassed employees of the Saskatoon Indian Metis Friendship Centre” and particularly that “he has harassed me”. (d) “Winston McKay has guns and is violent and am afraid he will shoot me”. (e) “Winston McKay should be committed” (meaning to psychiatric treatment). 6. The foregoing statements made by the Defendant, May Henderson, with regard to the Plaintiff, Winston McKay, are untrue and are meant and understood to mean that the Plaintiff, Winston McKay, is untrustworthy, dishonourable, violent, brutish, misogynist and dangerous. 7. The Plaintiff states that, May Henderson’s actions constitute repeated attempts at character assassination of Winston McKay have led to his unjust and wrongful dismissal from the Board of the Saskatoon Indian Metis Friendship Centre. The Plaintiff states the Defendant has breached her duty of care to refrain from defaming the Plaintiff. Alternatively, the Plaintiff states the Defendant was negligent in that regard. 8. The statements made by the Defendant have alleged criminal misconduct, and he has suffered damages thereby. 9. The statements made by the Defendant, May Henderson, were malicious, highhanded and calculated to disparage the Plaintiff in his profession, calling and trade carried on by him at the time they were made. The statements have brought the Plaintiff, Winston McKay’s reputation into disrepute in the Indian and Metis community in Saskatoon, and have undermined his intention to seek an elected position as member of the Saskatchewan Legislative Assembly. The plaintiff then goes on to claim damages in excess of $25,000.00. [5] In Sagon v. Royal Bank of Canada et al. (1992), 1992 CanLII 8287 (SK CA), 105 Sask. R. 133 (C.A.), at p. 139, the test to be applied on applications such as this was set out as follows. In determining whether claim should be struck as disclosing no reasonable cause of action, the test is whether, assuming the plaintiff proves everything alleged in his claim, there is nevertheless no reasonable chance of success, or to put it another way, no arguable case. The court should exercise its jurisdiction to strike on this ground only in plain and obvious cases and where the court is satisfied that the case is beyond doubt: Contrary to the submissions of counsel for the defendant, all the essential elements of a claim in defamation are set out. That being so, a reasonable cause of action is disclosed and the quoted test has not been met. [6] At the hearing of the application counsel for the defendant argued that the claim should be dismissed because the defendant can claim qualified privilege. description of that privilege is found in The Law of Defamation In Canada by Raymond E. Brown; 2nd ed., 1994, Thomson Canada Limited, vol. pg. 673. The defendant must establish that the words spoken or written were published on lawful occasion, that is one “fairly warranted by some reasonable occasion or exigency”. There must be some mutuality of interest or duty between the publisher and recipient. Reciprocity of interest is essential. It must be shown that the publisher had some duty or interest in making the communication, and those to whom it was made had some interest in receiving it, or at least he or she was acting on behalf of someone who had such an interest. However, it must not involve the satisfaction of some duty or interest which is unlawful or contrary to the public interest. See also Haight-Smith v. Neden (2002), 2002 BCCA 132 (CanLII), 211 D.L.R. (4th) 370 and McLoughlin v. Kutasy, 1979 CanLII 39 (SCC), [1979] S.C.R. 311. [7] There may be merit to the defendant’s claim, but it cannot be dealt with in this application. While several affidavits were filed, none of them speak to the circumstances wherein the impugned remarks were made. Most importantly, there is no assertion by the defendant that the remarks were made in the course of her duties or were received by persons with a corresponding duty. [8] recognize that the statement of claim speaks of the remarks being made to board members. However, that phrase may only be descriptive of the persons. In any event, it does not establish that the persons were carrying out some board function at the relevant time. [9] Furthermore, the statement of claim alleges malice. The plaintiff must be afforded an opportunity to establish that. Counsel for the defendant submits that the affidavits filed serve to negative malice. do not agree. Accordingly, cannot say the claim is vexatious or frivolous. [10] further and final submission was made by counsel for the defendant purportedly based on the decision in Mitchell v. Gilpin (2004), 2004 SKQB 311 (CanLII), 250 Sask. R. 246 (Q.B.). The circumstances of that case were markedly different than in this case before me. The plaintiff, Mitchell, was teacher about whom complaints had been made. In the end, Mitchell’s contract of employment was terminated for reasons other than the complaints. She sought redress in respect of the termination and when she was unsuccessful she commenced an action for defamation. [11] On an application to strike the claim, it was decided that the complaints of the defendant related to the workplace and were dealt with in accordance with the regime established for the purpose of dealing with workplace problems. That being so, it was held that it would be an abuse of process to permit the plaintiff to pursue the same matter in this forum. Therefore, the claim was struck. [12] In the instant case, there is no evidence before me about the circumstances surrounding the several remarks. do not even know that the defendant made the remarks, let alone any reason for doing so. Accordingly, it cannot be said that she fits within situation like that in the Mitchell case. It follows that this submission must be rejected. [13] In the result, the application is dismissed. The plaintiff will have his costs which are fixed at $400.00 in any event of the cause.
FIAT: This is an application for an order striking out the plaintiff's claim in defamation pursuant to rule 173 of the Queen's Bench Rules. HELD: The court declined to strike the claim. 1) Contrary to the submissions of counsel for the defendant, all essential elements of a claim in defamation are set out. A reasonable cause of action is disclosed. 2) None of the affidavits filed speak to the circumstance wherein the impugned remarks were made. Most importantly, there is no assertion by the defendant that the remarks were made in the course of her duties or were received by persons with a corresponding duty.