QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2014 SKQB 177 Date: 2014 06 18 Docket: Q.B.G. No. 455 of 2014 Judicial Centre: Saskatoon BETWEEN: DEAN BRENT BELL, LARRY BOOTH, and GRAHAM SCOTT FEDORWICK PLAINTIFFS (RESPONDENTS) and XTREME MINING DEMOLITION INC., and LEONARD BANGA DEFENDANTS (APPLICANTS) and POTASH CORPORATION OF SASKATCHEWAN INC. Counsel: Scott D. Giroux for the applicants/defendants Gary J. Caroline for the respondents/plaintiffs Shaunt Parthev, Q.C. appearing for Potash Corporation JUDGMENT ALLBRIGHT J. June 18, 2014 [1] On April 4, 2014 the plaintiffs commenced an action against the defendants Xtreme Mining & Demolition Inc., Leonard Banga and the Potash Corporation of Saskatchewan Inc. The statement of claim contains 87 paragraphs and advances fundamental causes of action. [2] The first claim, wrongful dismissal, is advanced by the plaintiffs against the defendants, Xtreme Mining & Demolition Inc. and Leonard Banga. The second cause of action is a claim for defamation brought against the defendant Leonard Banga, and the third cause of action, inducing breach of contract, is brought against the defendant Potash Corporation of Saskatchewan Inc. [3] An extensive list of items sought in relief accompanies each of the three causes of action, and in every instance, damages over and above what might be referred to as normal damages are sought. [4] The application before me engages Rules 13-8, 7-9(1) and 7-9(2) of The Queen’s Bench Rules. Rule 13-8 provides in part as follows: 13‑8(1) Every pleading must: ... (c) contain only statement in summary form of the material facts on which the party pleading relies for the party’s claim or defence, but not the evidence by which the facts are to be proved; and ... This Rule is very similar to former Rule 139(1) of the former Queen’s Bench Rules which reads as follows: 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. [5] Rule 7-9 of The Queen’s Bench Rules provides as follows: 7‑9(1) If the circumstances warrant and one or more conditions pursuant to subrule (2) apply, the Court may order one or more of the following: (a) that all or any part of pleading or other document be struck out; (2) The conditions for an order pursuant to subrule (1) are that the pleading or other document: ... (c) is immaterial, redundant or unnecessarily lengthy; (d) may prejudice or delay the fair trial or hearing of the proceeding; or ... The new Rule 7-9 is also similar to former Rule 173 which provides in part as follows: 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: ... (b) it is immaterial, redundant or unnecessarily prolix; ... (d) it may prejudice, embarrass or delay the fair trial of the action; [6] While there are some differences in the wording of the relevant new rules from the prior rules, am satisfied that the essence and spirit of the current rules do not materially differ from the former rules. [7] The applicants amended notice of application seeks the following relief: 1. The Defendants, XTREME MINING & DEMOLITION INC. (“Xtreme”) and LEONARD BANGA (“Banga”), request the following relief: a. An Order pursuant to Queen’s Bench Rule 7-9(1) striking out portions of the Plaintiffs’ Statement of Claim; b. Costs of this application. [8] The grounds for making the application are set forth in the amended notice of application in the following form: 2. The Claim contains paragraphs which are not limited to material facts but rather plead matters of evidence and/or are immaterial. Specifically, a. Paragraphs 14, 15, and 16 regarding details of the motorcycle shop, employees and the ownership of the business and real property, is are immaterial. b. Paragraph 22, concerning the health condition of the Plaintiff, DEAN BRENT BELL, is immaterial; c. Paragraphs 35 through 41 and 46 are not limited to material facts as each contains matters of evidence and/or immaterial facts; d. Paragraph 50 pleads evidentiary matters, which matters are inadmissible in any event as the meeting referred to therein was conducted on Without Prejudice basis; e. Paragraph 55 contains immaterial and/or evidentiary matters concerning the health condition of the Plaintiff, DEAN BRENT BELL; f. Paragraph 67 a), c), and d) are matters of evidence as they contain statements made by the media outlets involved, not limited to statements attributable to the defendants themselves, and as such are evidentiary in nature and/or are immaterial; and g. Paragraph 68 is not limited to material facts, as it pleads matters of evidence and immaterial facts. [9] The parties are in agreement that the materials to be considered by me on this application are the pleadings alone. That, of course, involves simply the statement of claim, as no statements of defence have yet been filed. THE IMPUGNED PARAGRAPHS OF THE STATEMENT OF CLAIM [10] The relevant (impugned) pleadings in the statement of claim are the following: (a) Paragraphs 14, 15 and 16. [11] Paragraphs 14, 15 and 16 of the statement of claim read as follows: 14. From 2003 to 2011, Mr. BELL owned and operated motorcycle shop in Regina, Saskatchewan which at all times employed between and people (the “Motorcycle Shop”). Mr. BELL also owned the land on which the Motorcycle Shop was situated. 15. In 2010, XTREME and Mr. BANGA induced Mr. BELL to close the Motorcycle Shop to work for XTREME on full-time, permanent basis. In order to convince Mr. BELL to accept full-time, permanent employment, XTREME and Mr. BANGA made representations that Mr. BELL could work for XTREME until Mr. BELL chose to retire. 16. In 2011, in reliance upon XTREME’s and Mr. BANGA’s representations which reliance was reasonable in the circumstances, Mr. BELL closed the Motorcycle Shop, sold the land it was situated on and accepted the offer of full-time, permanent employment with XTREME and Mr. BANGA. (b) Paragraphs 22 and 55 [12] Paragraphs 22 and 55 of the statement of claim read as follows: 22. In or about October 2012, Mr. BELL was diagnosed with prostate cancer. XTREME and Mr. BANGA were aware of Mr. BELL’s medical condition. 55. The conduct of XTREME and Mr. BANGA in terminating Mr. BELL’s employment while Mr. BELL was suffering from prostate cancer was callous and showed wanton disregard for Mr. BELL’s dignity, feelings and well-being. (c) Paragraphs 35 to 41 and 46 [13] Paragraphs 35 to 41 and 46 in the statement of claim read as follows: 35. On or about January 15, 2013, Leonard BANGA summoned XTREME employees at PCS Cory, including the Plaintiffs, to mandatory meeting. At this meeting Mr. BANGA stated that Jesse Bitz, former XTREME employee and then-member of the Hells Angels Motorcycle Club, had threatened and intimidated other employees during the course of his employment with XTREME. Mr. BANGA said that as result of Mr. Bitz’s conduct XTREME was instituting new policy regarding violence and harassment in the workplace. Mr. BANGA then distributed copies of the new policy to those present. 36. Mr. Bitz had been employed by XTREME at PCS Cory until the summer of 2012 when he was laid off. XTREME later hired Mr. Bitz to work as supervisor at the Agrium company’s Vanscoy mine site (“Agrium Vanscoy”). XTREME dismissed Mr. Bitz in or about December 2012 after Mr. Bitz allegedly threatened worker at Agrium Vanscoy. 37. In or about December 2012, shortly after XTREME dismissed Mr. Bitz, Mr. BANGA asked Mr. Bitz to meet him at gas station on the outskirts of Saskatoon. At this meeting, Mr. BANGA said words to the effect that Mr. Bitz’s career in the mining industry was finished. Mr. BANGA and Mr. Bitz then had brief physical altercation. Mr. BANGA clandestinely made an audio recording of the encounter (the “Recording”). 38. In or about December 2012, Mr. BANGA presented the Recording to Mr. BOOTH and asked Mr. BOOTH to make efforts to have Mr. Bitz expelled from the Hells Angels Motorcycle Club. Mr. BOOTH advised Mr. BANGA that it was not within Mr. BOOTH’s power to have Mr. Bitz expelled. Mr. BANGA was displeased with this answer. 39. On or about January 15, 2013 Mr. BANGA sent letter regarding Mr. Bitz to the Chief Mines Inspector at the Saskatchewan Ministry of Labour Relations and Workplace Safety (the “Ministry”). The letter included the following passages. am writing you this letter as my official statement regarding Jesse Bitz. Jesse Threatened to Kill me off site and we had fight off the mine site. Once was informed of other death threats (By Jesse) by my workers we all had confidential documented conversation. [...] Jesse Bitz has been terminated due to his actions. Jesse also stated that “the whole Hells Angels club was going to get me”. feel this is one man trying to use the Hells Angels club to his advantage. At NO time did the Hells Angels club ever threaten me or anyone else at work. This is an isolated case of just ONE worker making threats and not the Hells Angels club. Many workers that belong to the Hells Angels club have done lot of great work for XMD for many years. 40. In or about January 2013, Mines Inspector with the Ministry interviewed numerous XTREME employees at PCS Cory and Agrium Vanscoy about the conduct of Mr. Bitz. Shortly after the Mines Inspector’s investigation, the Ministry revoked Mr. Bitz’s underground mining supervisor certificate. 41. On numerous occasions between December 2012 and June 2013, Mr. BANGA asked the Plaintiffs to make efforts to have Mr. Bitz expelled from the Hells Angels Motorcycle Club. Each time, the Plaintiffs responded that it was not within their power to have Mr. Bitz expelled. Mr. BANGA was consistently displeased with this answer. 46. In or about July 2013, most former XTREME employees who re‑applied to XTREME were rehired to work at PCS Cory. Several of those who were rehired had criminal records. At least one of those rehired was on parole. Messrs. BELL and FEDORWICK were not rehired. (d) Paragraph 50 [14] Paragraph 50 of the statement of claim pleads the following: 50. On or about September 6, 2013 Messrs. BOOTH and FEDORWICK attended meeting at the Saskatoon office of Mr. BANGA’s legal counsel. Present were Messrs. BANGA, BOOTH and FEDORWICK; Mr. BANGA’s legal counsel; and member of the Hells Angels Motorcycle Club who was not employed by XTREME. At this meeting, Mr. BANGA stated words to the effect that the Mosiac company had compelled XTREME to institute hiring process similar to that described by Mr. BANGA at the June 26, 2013 meeting of PCS Cory employees. Mr. BANGA stated that all XTREME employees at Mosiac Esterhazy had consequently been laid off and that XTREME would only rehire those who successfully completed vetting process that involved criminal record check and third-party screening. (e) Paragraph 67(a), (c) and (d) [15] Paragraph 67(a), (c) and (d) plead the following: 67. At various times in 2013 and 2014, the particulars of which are described below, the defendant LEONARD BANGA falsely and maliciously communicated to various individuals, including to members of the news media, words to the effect that the Plaintiffs had perpetrated acts of violence and intimidation while working for XTREME. The substance of the words can be reasonably inferred from the content of numerous media reports, including the following, each of which was posted on the respective outlet’s website and became widely available. (a) On August 24, 2013, the StarPhoenix published an article titled “Mine firm ousts Hells Angels” which contained the following passages. [...] The Hells Angels were purged from Xtreme’s ranks following multiple death threats and other intimidation, as well as attacks on Banga and an employee. [...] Five men some with Hells Angels connections, some with troubling criminal records, and some with both were not hired back last month Banga said he’s not against the Hells Angels he remains personal friends with several of them. But as an employer who awards cash bonuses for performance, safety and attitude, he said he is against employees who create an unsafe workplace. This story was republished on December 28, 2013 as top story in the StarPhoenix’s “Year in Review”. (c) On January 29, 2014, the CBC News published an online article titled “Mining firms watch case of Hells Angels at Xtreme Mining” that included the following passage. Until last year, Hells Angels from the Saskatoon chapter worked at the Agrium potash mine near Vanscoy and at the Potash Corp. mine at Cory. They lost those high-paying jobs when Leonard Banga at Xtreme Mining and Demolition decided he didn’t want Hells Angels in his company. This decision has triggered alleged death threats and potential lawsuit. [...] “If you’re applying for job and you’re member of group or club that’s considered to be an organized crime group, if you’re part of that and you can’t find work well, guess what? Maybe change your life,” [Mr. BANGA] said in an interview. Banga said he introduced the questionnaire because of complaints from other workers of threats and intimidation from the Hells Angels. (d) On January 29, 2014, Radio-Canada published French-language online article that referred to Mr. BANGA as saying that unnamed members of the Hells Angels Motorcycle Club brought handguns to XTREME worksites, threatened to kill other employees and engaged in violence and intimidation that prevented other staff from doing their jobs. The relevant portions of that article read as follows. En août 2013, Leonard Banga licencié tous les employés de Xtreme Mining qui faisaient partie du groupe de motards. Selon lui, la violence qu’ils causaient empêchait le personnel de faire son travail. Aujourd’hui, l’homme d’affaires précise que des membres des Hells, qu’il refuse de nommer, ont apporté des armes de poing au travail et menacé de mort des employés. Il veut maintenant s’assurer qu’aucun membre du club ne puisse travailler de nouveau chez Xtreme Mining. Il mis en place un nouveau code de conduite qui empêche ses nouveaux employés d’être liés au crime organisé. (f) Paragraph 68 [16] Paragraph 68 in the statement of claim provides as follows: 68. From February 2013 to June 26, 2013, the Plaintiffs were the only members of the Hells Angels Motorcycle Club employed by XTREME at PCS Cory. No members of the Hells Angels Motorcycle Club were employed by XTREME at PCS Cory after June 26, 2013. Therefore, Mr. BANGA’s references to members of the Hells Angels Motorcycle Club in paragraph 67 would lead reasonable people to believe that Mr. BANGA was referring to the Plaintiffs. THE POSITION OF THE APPLICANTS AND RESPONDENTS RELATING TO THE IMPUGNED PORTIONS OF THE STATEMENT OF CLAIM (a) Paragraphs 14, 15 and 16. [17] The applicants assert that while they accept the proposition that these paragraphs may be relevant to determination of the notice that an employer induced an employee away from previous position of employment, whether or not the plaintiff Bell owned land in Regina, employed three to seven people at his motorcycle shop and sold the land in 2011 are wholly irrelevant to the issue of any such inducement and whether or not he was terminated without cause and without reasonable notice. Further, the issue is the inducement of Bell, not whether Bell employed other individuals or Bell’s land holdings. In short, the applicants suggest that these particular aspects of the claim do not assist in determining what the defendants did and do not offer assistance as to why the plaintiff says it legally matters. [18] The respondents (plaintiffs) counter this proposition by noting that the size and nature of Mr. Bell’s business and his interest in the underlying real property are material facts going to the question of whether Mr. Bell is entitled to an extended notice period on the ground that the applicants (defendants) induced him to abandon his previous secure employment and that such proposition is well-established employment law principle. (b) Paragraphs 22 and 55 [19] The applicants assert that this paragraph does not relate to any particular allegation that Mr. Bell’s employment was terminated because of his medical condition or that his medical condition played any role whatsoever in the termination. Mr. Bell was diagnosed with prostate cancer nine months prior to the termination of his employment. Accordingly, the applicants assert that these pleadings are irrelevant. If such were permitted to remain in the claim, they would only serve to delay and prejudice the action, as the parties would be required to fully traverse all of the medical evidence and circumstances pertaining to the medical condition. The respondents contend that the health condition of an employee at the time of dismissal is plainly material for claim for moral damages. Again, it is suggested that this is well-established employment law principle recognized and endorsed by Canadian courts. (c) Paragraphs 35 to 41 and 46 [20] It is the position of the applicants that within the overall claim, each of the plaintiffs have alleged that they performed their duties competently, faithfully and diligently. Following from this, they have alleged that their employment was terminated without cause or reasonable notice. The applicants’ position continues to the effect that none of the matters pertaining to the “employment of Jesse Bitz”, who is not party to the lawsuit, and the termination of that employment have any bearing upon the germane issues in this action, nor do such inform them in any way. If the issues between Banga and Bitz, non-party, are to be traversed during the course of the lawsuit, such would prejudice and delay the trial of the action. Continuing, it is the position of the applicants that the allegations in para. 46 with respect to other employees being hired back, that some had criminal records and that one of the individuals who was rehired was on parole are similarly irrelevant. This is so for the fact there is no attempt to connect these averments to the causes of action set forth in the statement of claim. [21] The plaintiffs submit that paras. 35 through 41 plead facts which, if proven, would establish that the defendants were fully aware that the plaintiffs were in no way responsible for any acts of intimidation and harassment and that the defendants dismissed the plaintiffs for an improper and malicious purpose. The submission continues that these facts are material to the issue of wrongful dismissal and any resulting moral damages. Further, these facts are material to the issue of defamation in that, if proven, they would establish that Mr. Banga willfully impugned the plaintiffs’ characters by falsely linking them to acts of intimidation and harassment that Mr. Banga knew the plaintiffs had no part in. [22] The respondents assert in relation to para. 46 that it pleads facts which, if proven, would establish that the defendants’ rehiring procedure was indeed designed for an inappropriate purpose. As such, it is clearly material to the issues of wrongful dismissal and any damages, including moral damages, flowing therefrom. (d) Paragraph 50 [23] The applicants assert that regardless of the ultimate admissibility of the evidence in this respect, this paragraph pleads evidence that should be struck. The allegation is that the defendants acted unfairly or in bad faith by being dishonest as to the reasons for the dismissal, and the applicants suggest an alternative pleading in language which would be appropriate in the following fashion: The Defendants acted unfairly or in bad faith in terminating the Plaintiffs as the Defendants represented to the Plaintiffs that Mosaic had adopted and implemented policy to exclude members of the Hells Angels from the workplace. That representation was false. [24] The applicants also impugn this particular paragraph on the basis that the plaintiffs by pleading that there was meeting and the words that Banga is alleged to have said at such meeting, they are pleading how they intend to prove the material facts as opposed to actually pleading those material facts. The applicants contend they as defendants should not have to plead what their recall was of any meeting and the matters that transpired at any meeting in response to such an improper pleading and that they would be prejudiced by being required to plead evidence as that would be tantamount to providing discovery at the pleading stage. [25] The plaintiffs in response contend that the facts pleaded in para. 50 are material in that, if proven, they establish pattern of behaviour on the part of Mr. Banga that raises the presence of bad faith in the defendants’ dismissal of the plaintiffs. As such, these facts are material to the issue of wrongful dismissal and to any moral damages flowing from it. In addition, the plaintiffs assert that the meeting described in para. 50 was neither expressly nor impliedly conducted on without prejudice basis. The plaintiffs were not represented by counsel at that meeting and were at no time advised that the meeting was being conducted on without prejudice basis. In essence, the plaintiffs respond with the proposition that if the defendants choose to allege that the meeting was conducted on without prejudice basis, they are free to plead that specifically in their statement of defence. (e) Paragraph 67(a), (c) and (d) [26] The applicants assert that these excerpts from para. 67 pertain to matters of evidence rather than fact. The applicants are of the view that the specific wording of these pleadings confirms that the plaintiffs are using the excerpts as evidence to support their allegation that the defendant Banga made defamatory comments about the plaintiffs to various individuals and that such evidentiary facts should be struck out. To that end, the applicants assert that plaintiff in defamation action must establish that the words complained of are defamatory in their natural and ordinary meaning or, alternatively, by their innuendo meaning. If the words are not defamatory in their natural and ordinary meaning, plaintiff must allege and prove innuendo from extrinsic evidence. The applicants ask that these paragraphs be struck in their entirety, however, alternatively submit that the court should at least strike out portions of the impugned provisions. The plaintiffs have not alleged defamatory innuendo, and extrinsic evidence is wholly irrelevant and impermissible to the determination of whether the words alleged to have been published are defamatory. The specific portions of the paragraphs identified by the applicants are submitted to be simply extrinsic evidence, and as the claim is not based upon innuendo, they are immaterial to the plaintiffs’ actions in defamation and that traversing them will only engage the parties in issues that are unrelated to the real issues at stake. Finally, the significant portions of the paragraphs are extrinsic evidence reported on by news agencies and are not statements directly attributable to the defendant Banga and do not refer to actual statements that Banga is alleged to have made. As consequence, as it is statements that are the subject of claim in defamation, these portions are irrelevant. [27] The plaintiffs in response submit that these statements are plainly material to the issue of defamation because they contain indirect quotes attributable to the defendant Banga. As the courts have long ago abandoned the “severe” approach to pleading defamation which required the pleading of the impugned words verbatim, somewhat more relaxed standard ought to be applied. To that end, counsel for the plaintiffs references the comments of Zarzeczny J. of this court in Duke v. Puts, 1997 CanLII 11015 (SK QB), [1998] W.W.R. 510, 161 Sask.R. 299 (Sask. Q.B.). [28] Further, the statements of media outlets reproduced at para. 67(a), (c) and (d) of the statement of claim describe the alleged defamatory statements with sufficient certainty, clarity and precision that the defendants ought to be fully equipped to respond. The content of the impugned words is clear and unambiguous, and it is equally clear that such words were very likely spoken by Mr. Banga to or in the presence of the respective journalists on or shortly before the respective dates of publication. In essence, the plaintiffs have provided “sufficient facts surrounding the incidents to identify the incidents to the defendant”. These “incidents’ are fundamentally material to the plaintiffs’ case as they are necessary to adequately define the nature of the action and the issues to be tried. (f) Paragraph 68 [29] It is the applicants’ position that this entire paragraph is evidentiary in nature and the whole paragraph should be struck. The information contained in the paragraph, namely the number of Hells Angels employed by Xtreme and the dates of their employment are ostensibly pled by the plaintiffs as evidence in support of their claim that Banga defamed them individually by allegedly making statements regarding the Hells Angels generally. The applicants contend that the plaintiffs are using the contents of this paragraph in an attempt to prove their allegation that the defendant Banga defamed them and their evidentiary facts contrary to prevailing Canadian jurisprudence. [30] The plaintiffs in response submit that these facts go to the question of whether Mr. Banga’s statements would be viewed by reasonable persons as implicating the plaintiffs, and, as such, they are plainly material to the issue of defamation. The purpose of paragraph 68 is to establish that Mr. Banga’s impugned statements related to the plaintiffs, and, as such, the facts pleaded, are clearly material and ought not to be struck. [31] In 1996 had occasion to comment in fashion upon “appropriate pleadings”. In Bush v. Saskatchewan (Minister of Environment and Resource Management), [1996] S.J. No. 534 (QL) (Sask. Q.B.), commented at para. 21 as follows: 21 The perfectly drafted pleading has probably never occurred, or in any event, is rarity. Indeed, most pleadings, particularly in hindsight, admit of deficiencies, some more serious than others. While there are alternatives that could have been chosen in drafting various portions of this Statement of Claim, there is no precise standard against which Statement of Claim may be measured to ascertain its adequacy. There will always be personal element in the drafting of pleadings and each application such as that before me must be examined in light of the specific facts and circumstances in the pleadings being examined. While the years have passed, remain of the view that this observation is still relevant. Each instance of questioned or impugned pleadings must be examined on its own merit, bearing in mind the particular nature of the cause of action or causes of action being advanced. [32] am also in agreement with Laing J. and his comments in Ceapro Inc. v. Saskatchewan, 2003 SKQB 221 (CanLII), 237 Sask.R. 94. In Ceapro Inc. at para. 19 he comments: 19 ... It is not the role of the court to fine tune the pleadings offered by the parties to an action or to suggest wording for the pleadings. The court’s role is simply to determine if the pleading meets the minimum requirements. [33] In Ducharme v. Davies, 1983 CanLII 2310 (SK CA), [1984] W.W.R. 699, 29 Sask.R. 54, the Saskatchewan Court of Appeal in the words of Cameron J.A. comments at para. 15 in the following fashion in addressing the fundamental purpose of pleadings: 15 While pleadings are no longer subject to the precise, complex, and occasionally oppressive requirements they once were, nevertheless they remain an important aspect of every law suit and must be framed with care. The following passage taken from The Law of Civil Procedure‑‑Williston and Rolls (vol page 636) illustrates why careful pleading is still important: 16 The function of pleadings is fourfold: 1. To define with clarity and precision the question in controversy between litigants. 2. To give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issues disclosed by them. defendant is entitled to know what it is that the plaintiff asserts against him; the plaintiff is entitled to know the nature of the defence raised in answer to his claim. 3. To assist the court in its investigation of the truth of the allegations made by the litigants. 4. To constitute record of the issues involved in the action so as to prevent future litigation upon the matter adjudicated between the parties. [34] It is against this canvass of judicial commentary that propose to address the various impugned provisions contained in the statement of claim giving rise to the applicants’ motion. am also mindful of the oft reiterated proposition by courts, and certainly including courts in Saskatchewan, that pleading is to be taken as meaning stating material facts which are the constituent elements of any cause of action. Ball J. noted in Country Plaza Motors Ltd. v. Indian Head (Town), 2005 SKQB 442 (CanLII), 272 Sask.R. 198 at para. 8: ...In the simplest terms, statement of claim must describe what the defendant did, and why the plaintiff says it legally matters‑that is, why the defendant's conduct is actionable. [35] In variation of this theme, Gabrielson J. in Kaukinen v. Saskatchewan Water Corp., 2006 SKQB 199 (CanLII), 281 Sask.R. 113, observed at para. 15 In this case, while the plaintiffs have pleaded number of facts, they have failed to relate the facts pleaded to any specific cause of action. find therefore that the applicants have established that the plaintiffs’ claim could be struck in its entirety. However, rather than strike the statement of claim at this time, which could work an injustice to the plaintiffs, am prepared to grant them period of time within which to file proper pleadings. [36] Lastly, in addressing the impugned portions of the statement of claim dealing with the “defamation” cause of action, am mindful of the comments of Zarzeczny J. in Duke v. Puts, supra, at paras. 16-18. Zarzeczny J. observed: 16 On the other hand the applicants contend that even in the Berry case [1924 CanLII 182 (SK CA), [1924] W.W.R. 1279] Haultain C.J.S. at pp. 1281 and 1282 considered passage from Odger on Libel and Slander, [citation omitted] concluding that: “... If the plaintiff does not know the exact words uttered, and cannot obtain leave to interrogate before statement of claim, he must draft his pleadings as best he can and subsequently apply for leave to administer interrogatories, and after obtaining answers amend his statement of claim, if necessary”. Haultain C.J.S. concludes in this regard: ... What Mr. Odger evidently means is, that, if the exact words are not known, some words alleged to be the exact words must be set forth verbatim. These words would necessarily be words having meaning consistent with the information available to the plaintiff at the time ... 17 MacLeod J. in Eashappie et al. v. Miller (1995), 1995 CanLII 5725 (SK QB), 133 Sask. R. 175, adopted the statement contained in C.E.D. (West.), Vol. 11A, Title 47, paragraph 220, as follows: 220. As general rule, the precise words complained of must be set out verbatim in the statement of claim so that the court may judge whether or not there is good cause of action. It is not sufficient to merely give the substance or purport of the alleged defamatory words. Just exactly how much should be quoted of an article that contains defamatory imputation is not, however, always easy to resolve. It has recently been stated that rule of common sense is to be followed in deciding this: the question is simply whether the plaintiff’s claim is clear enough for the defendant to be able to plead to it ... 18 similar conclusion was reached by the High Court of Ontario in the case of Magnotta Winery Ltd. v. Ziraldo (1995), 1995 CanLII 7122 (ON SC), 25 O.R. (3d) 575. At p. 583, the following summary of the “common sense approach” is made: ... [I]t is open to the court in limited set of circumstances to permit plaintiff to proceed with defamation action in spite of an inability to state with certainty at the pleading stage the precise words published by the defendant. The plaintiff must show: that he has pleaded all of the particulars available to him with the exercise of reasonable diligence; that he is proceeding in good faith with prima facie case and is not on “fishing expedition”; normally this will require at least the pleading of coherent body of fact surrounding the incident such as time, place, speaker and audience; that the coherent body of fact of which he does have knowledge shows not only that there was an utterance or writing emanating from the defendant, but also that the emanation contained defamatory material of defined character of and concerning the plaintiff; that the exact words are not in his knowledge, but are known to the defendant and will become available to be pleaded by discovery of the defendant, production of document or by other defined means, pending which the plaintiff has pleaded words consistent with the information then at his disposal. [37] These comments were echoed by Barclay J. in R.E.L. v. J.G., 2000 SKQB 74 (CanLII), 191 Sask.R. 204, wherein he adopts the common sense approach to the pleading of defamation and notes the following requirements at para. 42: 42 accept that the Court may allow some leniency in the pleading of defamation where the exact words are not known to the plaintiff and are within the knowledge of the defendant. However in any case, the plaintiff must plead all of the particulars available to him, some words consistent with the allegation and then show that the words have defamatory character. Further, the plaintiff must provide sufficient facts surrounding the incident, such as time, place, speaker and audience, to identify the incident to the defendant. [38] In considering The Queen’s Bench Rules and comparing or contrasting them to the former Queen’s Bench Rules, am satisfied that the fundamental principles underlying former Rule 139(1) are applicable to the new Rule 13-8. In similar fashion, am satisfied that the jurisprudence and interpretation surrounding former Rule 173 is relevant and applicable when considering and applying the new Rule 7-9. [39] In considering the applicants’ amended notice of application, observed that in the catalogue of impugned pleadings, the consistent theme is that the specific pleadings in question are immaterial and on secondary basis that some plead evidentiary matters or combination of both. This chronicle reflects the wording of Rule 7-9(2) where the Rule references pleading or pleadings that is or are immaterial, redundant or unnecessarily lengthy or such as “may prejudice or delay the fair trial or hearing of the proceeding”. This Rule is to be considered in conjunction with Rule 13-8(1) which provides in part that every pleading must “contain only statement in summary form of the material facts on which the party pleading relies for the party’s claim or defence, but not the evidence by which the facts are to be proved”. THE IMPUGNED PLEADINGS [40] do not propose to reiterate the well-reasoned submissions of counsel for both the applicants and the respondents, as have set them forth in my recitation of the respective positions of the parties on the series of impugned pleadings. propose to set forth what my views are on each of the paragraphs in question in summary fashion. (a) Paragraphs 14, 15 and 16 [41] In considering these paragraphs am in agreement with the submission of the plaintiffs. To that end, agree that “The size and nature of Mr. Bell’s business and his interest in the underlying real property are material facts going to the question of whether Mr. Bell is entitled to an extended notice on the ground that the Defendants induced him to abandon his previous secure employment”. In light of the relief being sought by the plaintiffs, am certainly unable to say that these paragraphs are immaterial. Accordingly decline to strike paragraphs 14, 15 and 16. (b) Paragraphs 22 and 55 [42] In considering para. 22, am also in agreement with the submission of the plaintiffs. The start point in this particular analysis is to inquire as to whether the health condition of an employee at the time of his dismissal is material to claim for moral damages. am of the view that it is. agree that it has been recognized as such. (See Altman v. Steve’s Music Store Inc., 2011 ONSC 1480 (CanLII), [2011] O.J. No. 1136 (QL)). As I am satisfied that there is a basis for this pleading, I am unable to conclude that it is immaterial, and accordingly I decline to strike para. 22. [43] In similar fashion, am of the view that the allegations set forth in para. 55 have not been demonstrated to be immaterial. Again, the nature of the plaintiffs’ claim under the heading “moral damages” generates relevance on the issue of the health condition of an employee at the time of the dismissal. As it has this relevance, it cannot be said to be immaterial and, therefore, is not to be struck. While it may fairly be argued that it has the potential to be considered to be possessed of some “evidentiary” component, in my view it is limited and does not warrant the paragraph being struck. (c) Paragraphs 35 to 41 and 46 [44] In considering these matters, more particularly paras. 35 through 41, find that am in agreement with the fundamental position of the defendants. At the heart of my conclusion is the proposition that the matters being referenced as being relevant to the cause of action of wrongful dismissal are in fact not relevant. The claim by the plaintiffs for wrongful dismissal does not require these paragraphs, and in my view they are extraneous. agree with the defendants when they suggest that allowing these extraneous, irrelevant or immaterial provisions to remain in the statement of claim will require the defendants to respond on basis which would in the normal course be outside of what would be required in responding to claim of wrongful dismissal. At trial the plaintiffs may well be in position to adduce evidence to the effect underlying these provisions in the statement of claim in an attempt to demonstrate wrongful dismissal, but they are not in my view appropriate to be contained in the statement of claim, and direct that paras. 35 through 41 are to be struck. [45] The same criticism cannot fairly be leveled at para. 46 by the defendants. In my view this paragraph has an apparent nexus or relevance to the cause of action of wrongful dismissal and is, therefore, material, and as it is material, decline to strike the paragraph from the statement of claim. (d) Paragraph 50 [46] have considered with some care the position of the defendants that para. 50 pleads evidentiary matters which the defendants suggest are inadmissible in any event, as the meeting referred to was conducted on without prejudice basis. am not satisfied that it has been demonstrated from the pleadings that this was “without prejudice” meeting. The trappings which would be required to suggest such designation are absent. While there is an element of some evidentiary matters being set forth, it is obvious to me why the plaintiffs consider it necessary to set these forth within the context of para. 50. am also in agreement with the suggestion by the plaintiffs that if the defendants wish to pursue the suggestion that the meeting was on without prejudice basis and, therefore, should not be relied upon, they are at liberty to do so in an appropriate pleading in the statement of defence. Accordingly, I am not persuaded that para. 50 should be struck, and I decline to do so. (e) Paragraph 67(a), (c) and (d) [47] am mindful of the rationale of Zarzeczny J. in Duke v. Puts, supra. While an isolated interpretation of these pleadings may suggest that matters of evidence are being pled, essentially for the reason that they contain statements made by the media outlets involved, they appear to me to be legitimate attempt on the part of the plaintiffs to draft the pleadings in the best possible form, the plaintiffs being unable at this stage to know with certainty the exact words uttered by the defendant and having no current mechanism to ascertain such. As noted, this was echoed by Barclay J. in R.E.L. v. J.G., supra, wherein again he fairly concluded: ... accept that the Court may allow some leniency in the pleading of defamation where the exact words are not known to the plaintiff and are within the knowledge of the defendant. ... In this instance have asked myself if there is some impediment to the defendants drafting an appropriate statement of defence to deal with these particular pleadings, and have concluded that no such impediment is apparent to me. Accordingly, while there is obviously some lack of attribution of direct quotations to the defendant Banga, again am satisfied that the plaintiffs have pled the matter in way which is not offensive to the general principles of pleading. For these reasons decline to strike para. 67(a), (c) and (d). (f) Paragraph 68 [48] While I have considered the very able comments of Mr. Caroline on behalf of the plaintiffs, I am simply struck by the fact that para. 68 is both irrelevant and immaterial. It has to my mind no direct or even inferential nexus to the claim by the plaintiffs for wrongful dismissal. Accordingly, as this is my view of the paragraph, I direct that it is to be struck from the statement of claim. [49] am appreciative of the efforts of both Mr. Giroux and Mr. Caroline in addressing this matter orally and through their briefs. [50] am of the view that no costs should be ordered at this time, but rather direct that the costs in this matter as between the applicants and the respondents (not including the defendant Potash Corporation of Saskatchewan Inc.) are to be costs in the cause. No costs of this motion are to, in any event, be granted to Potash Corporation of Saskatchewan Inc. or against Potash Corporation of Saskatchewan Inc. Order accordingly. J. G.N. ALLBRIGHT
Civil Procedure – Pleadings – Statement of Claim – Striking OutCivil Procedure – Queen’s Bench Rule 7-9 The plaintiffs commenced an action against the defendants that included three causes of action: a claim against Xtreme Mining and Banga for wrongful dismissal; a claim for defamation brought against Banga; and for inducing breach of contract against Potash Corp. The defendants, Xtreme and Banga, brought an application pursuant to Queen’s Bench rules 7-9(1), (2), and 13-8 for an order that portions of the statement of claim be struck out as immaterial. The plaintiffs included in their pleadings regarding the first cause of action paragraphs that described the details of the plaintiff Bell’s business and real property, which he owned before he was hired by the applicants. Regarding the plaintiff’s pleadings respecting the second cause of action, they included details of the plaintiff Bell’s health condition at the time he was dismissed from employment. The plaintiffs pleaded a description of the contents of a meeting between them, Banga and his legal counsel in connection with the second cause, which, if proven, would establish that the plaintiffs were not responsible for acts of intimidation and that the defendants dismissed the plaintiffs for an improper and malicious purpose. The facts were material to the issue of wrongful dismissal and defamation. The other paragraphs that were considered immaterial by the applicants dealt with remarks made by Banga to the media. HELD: The court dismissed the application with respect to the plaintiffs’ pleadings about the plaintiff’s prior business and health condition. Similarly, the plaintiffs’ pleadings with regards to the meeting were not struck, nor were the paragraphs related to the reporting in the media as the plaintiffs were not certain of the exact words used by the defendant, and therefore could not draft anything at that time. It allowed the application respecting the pleadings that related to an individual who was not a party and struck the paragraphs in question as irrelevant and immaterial.