D.P. Ball QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2005 SKQB 542 Date: 20051221 Docket: Q.B.G. 2364/2003 Judicial Centre: REGINA BETWEEN: THOMAS PAUL BEKKATTLA and THE GOVERNMENT OF SASKATCHEWAN Counsel: E.F. Anthony Merchant, Q.C. for the plaintiff Dale K. Beck for the defendant JUDGMENT GUNN J. December 21, 2005 [1] This matter was argued by counsel prior to the decisions of the Supreme Court of Canada denying the application for leave to appeal the decisions of F.P .v. Saskatchewan, 2004 SKCA 59 (CanLII); (2004), 249 Sask. R. 42 (Sask. C.A.) (leave to appeal dismissed [2004] S.C.C.A. No. 311 QL) and R.J.G. v. A.G. (Canada), 2004 SKCA 102 (CanLII); (2004), 249 Sask. R. 244 (Sask. C.A.) (leave to appeal dismissed [2004] S.C.C.A. No. 425 QL) which have relevance to the applications before the court. The decision was reserved pending the decisions of the Supreme Court. Counsel were thereafter given the opportunity to make any additional arguments. [2] The Government of Saskatchewan (“the Government”) seeks an order: (1) pursuant to Rule 164(4) of The Queen’s Bench Rules requiring Thomas Bekkattla (“the Plaintiff”) to provide better particulars in response to its demand for particulars, and in default of so doing, striking the offending portions of the statement of claim; (2) pursuant to Rule 173 of the Rules striking the following pleadings: (a) Paragraph (b) From paragraph 21, the clause “(h) other assaults that will be proven at trial”; (c) From paragraph 23: (i) the words “breach of trust, and breach of fiduciary duty” where they appear in the third line, and (ii) the words “which include but” and “not limited to the following” in the fourth and fifth line, so that the phrase reads “the particulars are”; (d) From paragraph 27, the concluding words “the particulars of which will be proven at trial”; (e) From paragraph 30, the word “punitive” in the fifth line; (f) The whole of paragraphs 31 and 32; (g) The phrase “exemplary and punitive” in clause 33(d) and substituting the words “and exemplary”; (h) The whole of clause 33(e) “Damages for breach of fiduciary duty”; (i) The whole of clause 33(f) “Interest pursuant to The Pre-judgment Interest Act, S.S. 1984-85-86, c. P-22.2.” [3] The applicable rules are the following: 139(1) Every pleading shall contain and contain only statement in summary form of the material facts on which the party pleading relies for his claim or defence, but not the evidence by which the facts are to be proved. pleading shall be as brief as the nature of the case will permit. (2) Where necessary full particulars of any claim, or defence shall be stated in the pleading. 142 party shall refer to any statute or regulation on which his action or defence is founded, and where practicable shall give particulars of the specific sections on which he relies. 164(1) party may at any time before the action is set down for trial deliver notice in writing, requiring from any other party further and better statement of the nature of the claim or defence or further and better particulars of any matter of which particulars should properly be given and such notice shall clearly state the particulars required. (2) The party on whom such notice for particulars is served shall within eight days after service of such notice deliver statement of the particulars required therein. (4) If the party from whom particulars have been required makes default in delivering particulars within the time limited, or the particulars delivered are not satisfactory, the party making the demand may apply for an order requiring the party on whom such notice has been served to give further notice or better particulars and the court may order delivery of particulars on such terms as to costs and otherwise as may seem just. 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; (b) it is immaterial, redundant or unnecessarily prolix; (c) it is scandalous, frivolous or vexatious; (d) it may prejudice, embarrass or delay the fair trial of the action; (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. 1. Does the plaintiff’s response to the Demand for Particulars fulfill the requirements of Rules 142 and 164 of the Rules? 2. Application to strike pleadings pursuant to Rule 173: (a) Are open-ended pleadings proper? (b) Do the pleadings support claim for breach of fiduciary duty and breach of trust? (c) Is the claim for “punitive and exemplary damages” redundant? (d) May pre-judgment interest be claimed for cause of action that pre-dates the proclamation of The Pre-judgment Interest Act on January 1, 1986? Re:(1) Does the plaintiff’s Response to the Demand for Particulars fulfill the requirements of Rules 142 and 164 of the Rules? [4] In paragraphs and of the statement of claim, the Plaintiff alleges statutory and regulatory authority without providing particulars of statutes and regulations. Following is the text of the relevant paragraphs of the statement of claim, as amended, the demand for particulars made in respect of each of these paragraphs and the response provided: 2. The Defendant, the Government of Saskatchewan, pursuant to Section 14 of The Proceedings Against the Crown Act, R.S.S. 1978, c. P-27, represents Her Majesty the Queen in Right of Canada (hereinafter “the Government”) in this proceeding and at all material times was responsible for providing for the education of children under the terms of The Education Act, c. E-0.2 (hereinafter “the Act”). The Demand for Particulars: 1. Particulars as contemplated by Rule 142, of the specific sections of The Education Act, c. E. 0.2, (proclamation in effect as of January 1, 1997) referenced in paragraph of the plaintiffs’[sic] claim by which the plaintiff alleges that the Government of Saskatchewan “was at all material times responsible for providing for the education of children”, or particulars of such other Act or Acts as were in effect during the material times. The Response: 2. There is no specific statutory provision that establishes the responsibility for establishing, operating, and maintaining the school. However, as the Defendant was in charge of the Residential School at the time, the legislation governs its operation and maintenance. This arrangement is within the knowledge and peruse[sic] of the Defendant and, as such, the Plaintiff is not obliged to provide further particulars. 5. At all material times, the Government had responsibility for establishing, operating and maintaining the Residential School for children, and entering into agreements with, inter alia, religious or charitable organizations, for the education of children. Further, pursuant to the Act, the Government was authorized to make and enforce regulations with respect to the standards of buildings, equipment, teaching, education, inspection and discipline in connection with Residential Schools for children. The Demand for Particulars: 2. Particulars of the statutory provisions by which the plaintiff alleges in paragraph of the plaintiff’s claim that the Government of Saskatchewan “had responsibility for establishing, operating and maintaining the Residential School for children, and entering into agreements with, inter alia, religious or charitable organizations, for the education of children.” 3. Particulars, as contemplated by Rule 142, of the specific sections of The Education Act, c. E-0.2, (or such other Act or Acts as were in effect during the material times) by which the plaintiff alleges in paragraph of the plaintiff’s claim that “the Government was authorized to make and enforce regulations with respect to the standards of buildings, equipment, teaching, education, inspection and discipline in connection with Residential Schools for children.” The Response: 2. There is no specific statutory provision that establishes the responsibility for establishing, operating, and maintaining the school. However, as the Defendant was in charge of the Residential School at the time, the legislation governs its operation and maintenance. This arrangement is within the knowledge and peruse[sic] of the Defendant and, as such, the Plaintiff is not obliged to provide further particulars. 3. The Particulars demanded refer to general powers conferred to the Defendant that are all within the knowledge and peruse [sic] of the Defendant and, as such, the Plaintiff is not obliged to provide further particulars. [5] Rule 142 requires party to refer to any statutes or regulations on which his action relies (Judith River Farm and Water Ltd. Partnership v. Saskatchewan 2004 SKQB 227 (CanLII); [2004] S.J. No. 388 QL (Sask. Q.B.), Ball J. at para. 22). Particulars are appropriate to enable party to properly plead in response and to eliminate surprise. (See: Mathew and Lemon v. Cameron et al, (1964) 1964 CanLII 336 (SK QB), 48 W.W.R. (N.S.) 162 (Sask. Q.B.); Donric Enterprises Ltd. v. Northco Foods Ltd. [1994] S.J. No. 482 QL (Sask. Q.B.)). [6] In circumstances where the Plaintiff has no particulars, he should so state. The response that the particulars demanded are “within the knowledge and peruse[sic] of the Defendant and as such, the Plaintiff is not obliged to provide further particulars” does not comply with the Rule (See Koop v. Saskatchewan Power Corp. (1997), 1997 CanLII 11140 (SK QB), 159 Sask. R. 290 (Sask. Q.B.) at para. 12). [7] The Government submits that it is essential for the Plaintiff to reference with particularity the statutes upon which he relies in order for it to properly defend the action and not be taken by surprise. The Plaintiff has referenced statute which was not in effect in 1963-1973 when the Plaintiff claims he was attending the school (paragraph of the statement of claim). [8] The Plaintiff relies on Odger’s Principles of Pleading and Practice in Civil Actions in the High Court of Justice, 22nd Ed. (Stevens Son: London, 1981) where the test to be followed in determining whether particulars are appropriate is set out at page 155 as follows: It is no objection to an application for particulars that the applicant must know the true facts of the case better than his opponent. He is entitled to know the outline of the case that his adversary will try to make against him, which may be something very different from the true facts of the case. His opponent may know more than he does; in any event it is well to bind him down to definite story. Particulars will be ordered whenever the master is satisfied that without them the applicant cannot tell what is going to be proved against him at the trial. But how his opponent will prove it is matter of evidence of which particulars will not be ordered. [Emphasis in original] [9] The Government submits that the issue here is not how something will be proven at trial, but what will be proven at trial. Depending on the particulars of the statutes and regulations relied upon, the Government may rely on The Public Officers’ Protection Act, R.S.S. 19778, c. P-40, as am. (repealed by S.S. 2004, c. L-16.1, effective May 1, 2005) which sets forth certain limitation periods depending on the nature of the claim. [10] The Government identifies the problems facing it by referencing the constitutional and legislative scheme governing education. Section 93 of the Constitution Act, 1867 (U.K.) 30 31, Vict. c, provides: 93. In and for each Province the Legislature may exclusively make Laws in relation to Education, subject and according to the following Provisions: (1) Nothing in any such Law shall prejudicially affect any Right or Privilege with respect to Denominational Schools which any Class of Persons have by Law in the Province at the Union: (2) All the Powers, Privileges, and Duties at the Union by Law conferred and imposed in Upper Canada on the Separate Schools and School Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic Subjects in Quebec; (3) Where in any Province System of Separate or Dissentient Schools exists by Law at the Union or is thereafter established by the Legislature of the Province, an Appeal shall lie to the Governor General in Council from any Act or Decision of any Provincial Authority affecting any Right or Privilege of the Protestant or Roman Catholic Minority of the Queen’s Subjects in relation to Education; (4) In case any such Provincial Law as from Time to Time seems to the Governor General in Council requisite for the due Execution of the Provisions of this Section is not made, or in case any Decision of the Governor General in Council on any Appeal under this Section is not duly executed by the proper Provincial Authority in that Behalf, then and in every such Case, and as far only as the Circumstances of each Case require, the Parliament of Canada may make remedial Laws for the due Execution of the Provisions of this Section and of any Decision of the Governor General in Council under this Section. [11] The legislature has the right to make laws respecting education. In Saskatchewan, the legislature delegated the duty to provide schools and education to the boards of trustees of school districts (or units or divisions, as they were known at various times). For example Section 116, paragraphs 9, 28 and 38 of The Schools Act, R.S.R. 1940, c. 165, provided inter alia: 116. It shall be the duty of the board of every district and it shall have power: 9. subject to the provisions of this Act and the regulations of the department, to provide instruction appropriate to their grades for all pupils who have the right to attend school; 28. to suspend or dismiss any teacher for gross misconduct, neglect of duty or refusal or neglect to obey any lawful order of the board,... 38. to see that the law with reference to compulsory education and truancy is observed; [12] The Plaintiff fails to identify the legislative scheme by which responsibility for education in Ile a la Crosse or specifically, responsibility for education of a group of people that included the Plaintiff, was delegated to the Minister of Education or any other member of executive government. [13] I am satisfied that the Government is entitled to know the case it has to meet. If the Plaintiff knows the statutes and regulations on which he relies, he must provide particulars of same. If he does not have particulars of the statutes and regulations on he relies, he must so state. Re:(2) Application to strike pleadings pursuant to Rule 173: THE PLEADINGS [14] The pleadings which are in issue are set out in the amended statement of claim as follows: 7. This entire paragraph has been deleted. 21. Principal Henry, Mr. Jabois and Father Everett, and other supervisors, teachers or laypersons, in their capacity as supervisors of children at the Residential School, intentionally assaulted the Plaintiff many times while he was student, the particulars of which inter alia, are as follows: (a) The Plaintiff was on numerous occasions strapped on the palms and hands with leather belt and/or whip; (b) The Plaintiff was hit repeatedly over the knuckles and palms with metre and/or yardstick; (c) On other numerous occasions and, without reason, the Plaintiff’s clothing would be pulled down and the Plaintiff’s exposed buttocks would be strapped; (d) On other occasions the Plaintiff was confined to room alone with no outside contact for hours at time and was denied food for that period; (e) The Plaintiff was, on numerous occasions, repeatedly struck on the head with textbook; (f) On numerous occasions, the Plaintiff was struck on the ear and/or had his ears pulled and twisted; (g) The Plaintiff’s hair was pulled; (h) Other assaults which will be proven at Trial. 23. The assaults and resulting injuries and the failure to provide proper education to the Plaintiff as well as the denigration and depreciation of the Plaintiff were caused by the negligence, breach of trust, and breach of fiduciary duty of the Government, the servants, agents, and employees of the Government, the particulars of which include but are not limited to the following: 27. The Plaintiff will also incur further expenses, including expenses for medication, therapy, counselling, hospitalization, rehabilitation, medication, and other forms of medical treatment and care, the particulars of which expenses will be proven at trial. 30. The Defendant conducted itself with brutal and callous disregard and complete lack of care for the Plaintiff and of his rights. The Defendant knew or ought to have known, and was, or should have been, conscious of the probable consequences of its actions and the damages such actions would cause to the Plaintiff. The Plaintiff is entitled to aggravated, punitive and exemplary damages from the Plaintiff. 31. The Defendant was under positive fiduciary duty to protect the Plaintiff from injury to his person, physical or mental health or morals, and the Defendant knew or ought to have known that the Plaintiff would suffer damages if the Defendant failed to carry out its duty. 32. Pursuant to s. 19 of The Department of Health Act, S.S. 1995, as amended, the Plaintiff, on behalf of the Minister of Health, claims such sums for hospital and medical services provided to the Plaintiff, the particulars of which have not been ascertained at this time, but once ascertained and paid will constitute special damages. 33. The Plaintiff therefore claims of the Defendant: (a) General damages; (b) Special damages in an amount to be proven at trial; (c) Damages for past and future loss of income in an amount to be proven at trial; (d) Aggravated, exemplary and punitive damages; (e) Damages for breach of fiduciary duty; (f) Interest pursuant to The Pre-judgment Interest Act, S.S. 1984-85-86, c. P-22.2; [Emphasis added] [15] Sherstobitoff J.A. in Milgaard v. Kujawa, 1994 CanLII 4592 (SK CA), [1994] W.W.R. 305 (Sask. C.A.) at para. 15 set out the standard for striking out claim or portions thereof under Rule 173 as follows: ¶15 Rule 173 and equivalent rules in other jurisdictions have been considered by this Court and the Supreme Court in number of recent judgments: Canada (Attorney General) v. Inuit Tapirisat of Canada, 1980 CanLII 21 (SCC), [1980] S.C.R. 735; Hunt v. T.& plc, (sub nom. Hunt v. Carey Canada Inc.) 1990 CanLII 90 (SCC), [1990] S.C.R. 959 [[1990] W.W.R. 385]; Sagon v. Royal Bank (1992), 1992 CanLII 8287 (SK CA), 105 Sask. R. 133. ¶16 The most authoritative and relevant statement of the standard to apply in these cases is Hunt v. Carey where Wilson J. said, referring to British Columbia and Ontario rules almost identical to R. 173, at p. 980: Thus the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C. O. 18 r. 19: assuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff’s statement of claim discloses no reasonable cause of action? As in England, if there is chance that the plaintiff might succeed, then the plaintiff should not be “driven from the judgment seat”. Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of plaintiff’s statement of claim be struck out under Rule 19(24)(a). (a) Are open-ended pleadings proper? [16] This issue relates to the highlighted portions of paragraphs 21, 23 and 27 of the claim reproduced supra. [17] The Government relies on R.E.L. v. J.G-S. (2000), 2000 SKQB 74 (CanLII), 191 Sask. R. 204 (Sask. Q.B.) where the phrases “without limiting the generality of the foregoing” and “without limitation” were struck. However, that case involved claim for defamation which cannot be pled in general way. [18] The plaintiff cites samples of cases involving similar open ended phrases and submits that such wording is common and should be permitted by the courts. [19] In the circumstances here, I am not prepared to strike the phrases complained of. The conduct of examinations for discovery and undertakings can provide the defendant with particulars of allegations to be made by the plaintiff in order to permit it to properly defend the action. (b) Do the pleadings support claim for damages for breach of fiduciary duty and breach of trust? [20] In F.P. v. Saskatchewan, supra, the Court of Appeal began its analysis of breach of trust and breach of fiduciary duty with the following general comments about pleadings: [57] We now turn to the subsidiary issues concerning the appellants’ claim that the Government is liable on the bases of breach of fiduciary duty and breach of trust. Essentially, these involve the need to properly define the issues in pleadings and comply with the Queen’s Bench Rules designed to achieve that end. This Court commented on the importance of this in Ducharme and Holben v. Davies and Rogoschewsky, 1983 CanLII 2310 (SK CA), [1984] W.W.R. 699; 29 Sask. R. 54 (C.A.), noting that the function of pleading is, among others, to clearly and precisely define the question in controversy. We also made the point that pleadings remain an important component of every lawsuit, they are to be framed with care and in accordance with the Rules, and that they are expected to set forth such facts as are material to the cause or causes of action being advanced. [21] Paragraph 17 of the claim in F.P. (reproduced at paragraph of the judgment) is substantially the same as paragraph 23 in the statement of claim in this case. In F.P. the Court of Appeal noted the applicable principles set out in A.(C). v. Critchley (1998), 1998 CanLII 9129 (BC CA), 166 D.L.R. (4th) 475 (B.C.C.A.) and approved by the Supreme Court of Canada in K.L.B. v. British Columbia 2003 SCC 51 (CanLII); [2003] S.C.R. 403. It then said: ¶61 Applying these principles to the issues in these appeals, we find that the pleadings do not lay foundation for breach of fiduciary duty. There is no allegation in the appellants’ pleadings that the Government acted in its own self-interest and against the interests of either of the appellants. Although there is passing reference to breach of fiduciary duty, no material facts are pleaded in support of any such claims. [22] In the companion case of R.J.G. v. Canada (Attorney General), supra, (leave to appeal to the Supreme Court of Canada dismissed March 3, 2005), the Court of Appeal again addressed the issue of whether there was foundation for the claims of breach of trust and breach of fiduciary duty in the pleadings. It referred to the approach taken in A.C. v. Critchley, supra, which has been approved by the Supreme Court of Canada in K.L.B. v. British Columbia, supra, and at paragraph 27 quoted extensively from the decision of McLachlin C.J.C. speaking for the Court (paras. 48-50) as follows: ¶48 What then is the content of the parental fiduciary duty? This question returns us to the cases and the wrong at the heart of breaches of this duty. The traditional focus of breach of fiduciary duty is breach of trust, with the attendant emphasis on disloyalty and promotion of one’s own or others’ interests at the expense of the beneficiary’s interests. Parents stand in relationship of trust and owe fiduciary duties to their children. But the unique focus of the parental fiduciary duty, as distinguished from other duties imposed on them by law, is breach of trust. Different legal and equitable duties may arise from the same relationship and circumstances. Equity does not duplicate the common law causes of action, but supplements them. Where the conduct evinces breach of trust, it may extend liability, but only on that basis. As wrote in Norberg v. Wynrib, 1992 CanLII 65 (SCC), [1992] S.C.R. 226: “In negligence and contract the parties are taken to be independent and equal actors, concerned primarily with their own self-interest. The essence of fiduciary relationship, by contrast, is that one party exercises power on behalf of another and pledges himself or herself to act in the best interests of the other” ¶49 have said that concern for the best interests of the child informs the parental fiduciary relationship, as La Forest J. noted in M.(K.) v. M.(H.) supra, at p. 65. But the duty imposed is to act loyally, and not to put one’s own or others’ interests ahead of the child’s in manner that abuses the child’s trust. This explains the cases referred to above. The parent who exercises undue influence over the child in economic matters for his own gain has put his own interests ahead of the child’s, in manner that abuses the child’s trust in him. The same may be said of the parent who uses child for his sexual gratification or parent who, wanting to avoid trouble for herself and her household, turns blind eye to the abuse of child by her spouse. The parent need not, as the Court of Appeal suggested in the case at bar, be consciously motivated by desire for profit or personal advantage; nor does it have to be her own interests, rather than those of third party, that she puts ahead of the child’s. It is rather question of disloyalty of putting someone’s interests ahead of the child’s in manner that abuses the child’s trust. Negligence, even aggravated negligence, will not ground parental fiduciary liability unless it is associated with breach of trust in this sense. ¶50 Returning to the facts of this case, there is no evidence that the government put its own interests ahead of those of the children or committed acts that harmed the children in way that amounted to betrayal of trust or disloyalty. The worst that can be said of the Superintendent is that he, along with the social workers, failed properly to assess whether the children’s needs and problems could be met in the designated foster homes; failed to discuss the limits of acceptable discipline with the foster parents; and failed to conduct frequent visits to the homes given that they were overplaced and had documented history of risk (trial judgment, at para. 74). The essence of the Superintendent’s misconduct was negligence, not disloyalty or breach of trust. There is no suggestion but that he was serving anyone’s interest but that of the children. His fault was not disloyalty, but failure to take sufficient care. [Emphasis in Original] [23] The Court of Appeal in R.J.G. applied these principles and found that the pleadings did not lay foundation for either breach of fiduciary duty or breach of trust. On the issue of breach of fiduciary duty, there was no allegation that the Government acted in its own self-interest and against the interest of the plaintiff. No material facts were pleaded in support of claim for breach of fiduciary duty or for claim for breach of trust. [24] The Government demanded full particulars of the breach of trust alleged in paragraph 23 of the claim, including identities of the trustee and the beneficiary of the trust, description of the trust property, and description of how the trust was broken. [25] The Plaintiff’s response was that this was not claim “for breach of actual trust, in its technical legal context The trust that is referred to in the Statement of Claim refers to duty that the Defendant had to the Plaintiff that was breached through its tortious acts.” [26] The Government has demanded particulars of the “breach of fiduciary duty” alleged in paragraph 23, specifically “description of how the government put its interests ahead of the interests of the plaintiff”. [27] The Plaintiff’s response was that this was legal demand for evidence and that he declined to answer as he was not compelled to do so on the authority of Rule 139. He says further that the statements in his claim are sufficient for pleading purposes and do not require the demanded particulars to enable the Government to prepare its defence. [28] Applying the principles set out in F.P. and R.J.G. to the pleadings under consideration here, I find that the pleadings do not lay a foundation for either breach of fiduciary duty or breach of trust and paragraphs 31 and 33(e) are struck. In addition the phrase “breach of trust and breach of fiduciary duty” is struck from paragraph 23. (c) Is the claim for “punitive and exemplary damages” redundant? [29] This issue was canvassed by Klebuc, J. in MacKinnon (Litigation Guardian of) v. Devine 2003 SKQB 548 (CanLII); [2004] W.W.R. 695 (Sask. Q.B.). At paragraph 15 he referred to S.M. Waddams, The Law of Damages, 3d ed. (Toronto: Canada Law Book, 1997) at p. 483: para. 11.10 where the issue is discussed in the following way: An exception exists to the general rule that damages are compensatory. This is the case of an award made for the purpose not of compensating the plaintiff but of punishing the defendant. Such awards have been called exemplary, vindictive, penal, punitive, aggravated, and retributory, but the expressions in common modern use to describe damages going beyond compensatory are exemplary and punitive damages. “Exemplary” was preferred by the House of Lords in Cassell Co. Ltd. v. Broome [[1972] A.C. 1027(H.L.)] but “punitive” has also been used in many Canadian courts including the Supreme Court of Canada in H.L. Weiss Forwarding Ltd. v. Omnus 1975 CanLII 23 (SCC), [1976] S.C.R. 776, 63 D.L.R. (3d) 654]. [30] Mr. Justice Cory in Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] S.C.R. 1130 at para. 196 articulated the essential elements of punitive damages as follows: ¶196 Punitive damages may be awarded in situations where the defendant’s misconduct is so malicious, oppressive and high-handed that it offends the court’s sense of decency. Punitive damages bear no relation to what the plaintiff should receive by way of compensation. Their aim is not to compensate the plaintiff, but rather to punish the defendant. It is the means by which the jury or the judge expresses its outrage at the egregious conduct of the defendant. They are in the nature of fine which is meant to act as deterrent to the defendant and to others from acting in this manner. [31] Ken Cooper-Stephenson, in Personal Injury Damages in Canada, 2d ed. (Toronto: Carswell, 1996) at p. 530 distinguishes aggravated from exemplary damages in these words: Although both are rooted somewhere in the defendant’s misbehaviour, their goals are fundamentally different. The goal of aggravated damages, as we have seen, is to compensate for injured feelings; the goal of exemplary damages is to punish and deter. [32] Klebuc, J. concluded his analysis in MacKinnon, supra by saying that he was satisfied that exemplary damages and punitive damages were synonymous and therefore that only one of them should be pled to avoid confusion. agree with Klebuc J. and direct that any reference to exemplary damages should be read as to include punitive damages and that only one phrase be used. (d) May pre-judgment interest be claimed for cause of action that pre-dates the proclamation of The Pre-Judgment Interest Act on January 1, 1986? [33] In AE Realisations (1985) Ltd. v. North Canada Air Ltd. et al. (1993), 1993 CanLII 6768 (SK CA), 113 Sask. R. 12 the Saskatchewan Court of Appeal said the following at para. [17] The final ground of appeal was that the judge erred in allowing prejudgment interest. The cause of action arose in early 1985. The Pre-Judgment Interest Act, S.S. 1984-85-86, c. P-22.2 did not come into effect until January 1, 1986, and so cannot apply to this case. [34] Further in H.L v. Canada (Attorney General), 2002 SKCA 131 (CanLII); [2003] W.W.R. 421 (Sask. C.A.) (appealed to the S.C.C., but not on this issue) Cameron J.A. held that pre-judgment interest did not apply to actions which pre-date the Act. Here, in paragraph the plaintiff identifies the period of time he attended the school as being between 1963 to 1973 and that the causes of action arose during that time period. As the causes of action clearly predate the coming into force of The Pre-Judgment Interest Act, the provisions of that Act have no application to the plaintiff’s claim. [35] The Government also takes the position that paragraph 32 of the statement of claim should be struck as it is claim on behalf of the Government of Saskatchewan and it cannot be maintained against the Government of Saskatchewan. Re:(3) Order [A] No later than January 15, 2006, the plaintiff shall serve on the Government with copy to be filed with this Court further and better particulars in respect of the demand for particulars made respecting paragraphs and of the statement of claim. In the event the plaintiff fails to comply, the Government may renew its application to strike the offending paragraphs. [B] It is further ordered that the following paragraphs and phrases be struck from the plaintiff’s claim pursuant to Rule 173: a) From paragraph 23 the words “breach of trust, and breach of fiduciary duty”. b) From paragraph 30 the word “punitive” in the fifth line. c) The whole of paragraph 31. d) The whole of paragraph 32. e) The phrase “exemplary and punitive” in clause 33(d) and substituting the word “exemplary”. f) The whole of clause 33(e) “Damages for beach of fiduciary duty”. g) The whole of clause 33(f) “Interest pursuant to The Pre-judgment Interest Act, S.S. 1984-85-86, c. P-22.2.” [36] Costs awarded to the Government in accordance with Rule 173.
The Government seeks an order pursuant to Rule 164(4) of the Queen's Bench Rules requiring the plaintiff to provide better particulars in response to its demand for particulars and pursuant to Rule 173 of the Rules and order striking portions of the pleadings. HELD: 1) The plaintiff has failed to identify the legislative scheme by which responsibility for education in Ile a la Crosse or specifically, responsibility for education of a group of people that included the plaintiff, was delegated to the Minister of Education or any other member of executive government. The Government is entitled to know the case it has to meet. If the plaintiff knows the statute and regulations on which he relies, he must provide particulars. If he does not have particulars of the statutes and regulations, he must so state. 2) The court was not prepared to strike the phrases 'without limiting the generality of the foregoing' and 'without limitation'. The conduct of examination for discovery and undertakings can provide the defendant with particulars of allegations to be made by the plaintiff in order to permit it to properly defend the action.  3) The Government demanded full particulars of the breach of trust and breach of fiduciary duty. The plaintiff's response does not lay a foundation for either and the paragraphs are struck.  4) The court was satisfied that exemplary damages and punitive damages were synonymous and therefore only one of them should be pled to avoid confusion. The court directed that any reference to exemplary damages should be read as to include punitive damages and that only one phrase should be used. 5) As the cause of action clearly predates the coming into force of The Pre-judgment Interest Act, the provisions of that Act have no application to the plaintiff's claim.