J. THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA Date: 20120117 Between: Docket: CACV 2135 Carry the Kettle First Nation and Leila Thompson Coram: Cameron, Jackson, and Herauf JJ.A. Counsel: Philip Gallet for the Appellant Kirk Goodtrack for the Respondent Appeal: From: Q.B.C.No. 1264 of 2010, J.C. of Regina Heard: January 17, 2012 Disposition: Appeal Allowed Reasons: January 17, 2012 By: The Honourable Mr. Justice Cameron In Concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Herauf CAMERON J.A. [1] We have concluded that the order made by the chamber judge striking major portions of the statement of defence and counterclaim of Carry the Kettle First Nation was made in error. The error consists of a failure to address the merits of the application brought by Ms Thompson to strike the impugned portions of these pleadings. Having come to this conclusion, we are left to either set aside the order and remit the application to the Court of Queen’s Bench for appropriate disposition or to address the merits of the application ourselves. In the interests of reducing further cost and delay we have decided to do the latter. [2] Turning to the merits of the application to strike, we note that the principal question is whether the impugned allegations in the statement of defence and counterclaim meet the requirements of Rules 173 and 149 of The Queen’s Bench Rules, particularly in relation to the allegations of fraud. As for the requirements of Rule 173, we are satisfied that, while fraud might have been pleaded more explicitly, having regard for the constituent elements of the tort, the pleading is nevertheless sufficient to answer to the requirements of Rule 173. We are also satisfied, though not without some reservations, that the allegations of fraud are sufficient to answer to the requirements of Rule 149. [3] The pleading furnishes much in the way of particulars of the alleged fraud, specifying the source and purpose of the funds entrusted to Carry the Kettle First Nation that Ms Thompson, while employed in an administrative capacity by the First Nation, is alleged to have diverted to her own use or the use of others, including members of her family. Again, the allegations might have been pleaded more specifically, including more specific identification of the amounts involved and the dates upon which they are alleged to have been diverted. But without at least giving Carry the Kettle First Nation the opportunity to amend its pleadings in these respects so as to be more specific, the allegations cannot fairly be struck out as not answering to the requirements of Rule 149, albeit barely so perhaps. [4] It is, of course, always open to Ms Thompson to apply to the Court of Queen’s Bench for an order requiring Carry the Kettle First Nation to provide further and better particulars should she find herself in the position of not knowing with sufficient certainty of the case she will be expected to meet in the respects under consideration. And discovery, both documentary and oral, lies ahead. [5] On the whole, then, we have decided to allow the appeal, set aside the order under appeal, and dismiss the application to strike. The application is dismissed without prejudice to Ms Thompson’s rights to again turn to the Court of Queen’s Bench, in one context or another, to seek further specifics of the alleged fraud. In the circumstances, we have decided to allow the appeal but without an order for costs in favour of Carry the Kettle First Nations. [6] In leaving the case we want to commend counsel. They presented the case on appeal in keeping with the best traditions of the legal profession, matter their clients should know about and appreciate.
The appellants appealed the order of a Queen's Bench chamber's judge striking out portions of the statement of defence and counter-claim. HELD: The chamber's judge was in error in striking out portions of the statement of defence and counter-claim. The error consists of a failure to address the merits of the application. The Court of Appeal opted to deal with the merits of the application themselves, rather than remitting the matter back to Queen's Bench. While the allegation of fraud might have been pleaded more explicitly, the pleading is nevertheless sufficient to answer the requirements of QB Rule 173. The appellants should have been given an opportunity to amend their pleadings. The appeal was allowed and the application to strike was dismissed without prejudice to respondent's right to seek further particulars.