Miller v Jackson, 2021 ABQB 281

Court of Queen’s Bench of Alberta Citation: Miller v Jackson, 2021 ABQB 281 Date: 20210412 Docket: 1903 21771 Registry: Edmonton Between: Stephen Miller and Jocelyn Miller Plaintiffs - and - Thomas Richard Jackson, Lucy Jane Jackson and TLJ Farming Defendants _______________________________________________________ Reasons for Decision of Brian W.

Summers , Master in Chambers Court of Queen’s Bench of Alberta _______________________________________________________ [ 1 ] This case involves cross claims between a farm employee and his employer. [ 2 ] The Plaintiffs/Defendants by Counterclaim, Stephen Miller and his wife Jocelyn Miller (“Mr. Miller” and “Mrs. Miller” respectively and collectively “the Millers”) sue the Defendants/Plaintiffs by Counterclaim Thomas Richard Jackson and Lucy Jane Jackson, (“Mr. Jackson” and “Mrs. Jackson” respectively and collectively “the Jacksons”), who carry on the business of farming as TLJ Farming (also a Defendant), for: (

i) unpaid wages due to Mr. Miller, (ii) damages for tools destroyed in a fire; (iii) revenues owing on a

crop share arrangement with the Jacksons; and (iv) damages for defamation. The Jacksons counterclaim for a mortgage debt against the Millers. [ 3 ] In this application, the Jacksons apply for partial

summary dismissal and partial

summary judgment. They acknowledge that some issues in this case must go to trial, but assert that there are issues that can and should be determined summarily. The position of the Millers is that all issues should go to trial. Background Facts [ 4 ] Mr. Miller was employed by the Jacksons from 2008 until he resigned in March of 2019. Mr.

Miller performed mechanical duties on farm equipment and other farming duties. [ 5 ] In 2016, the Millers wanted to purchase two pieces of crop land (“Miller Lands”), but the Millers’ mortgagee, Agricultural Financial Services Corporation (“AFSC”), wanted the Jacksons to provide a guarantee and collateral mortgage (“Collateral Security”) for the Millers’ mortgage debt to AFSC (“AFSC Mortgage”). The Jacksons did provide the Collateral Security, but in turn required the Millers to provide to them a mortgage over the Miller Lands (“Jackson Mortgage”).

It was also agreed between the Millers and the Jacksons that the Jacksons would farm the Miller Lands and the profits would be split between them in a specified fashion. [ 6 ] Annual mortgage payments were due to be paid by the Millers to AFSC each spring with respect to the AFSC Mortgage. Payments were made to AFSC on the AFSC Mortgage by the Jacksons. The parties disagree as to whether the Jacksons made the mortgage payments voluntarily or at the request of the Millers. The Jacksons say that they were asked to make the payments by the Millers because the Millers did not have the money to make the payments.

The Millers say that they intended to make the mortgage payments from their share of the profits from the farming of the Miller Lands, but the Jacksons failed to pay them or properly account for the profits. [ 7 ] The Jacksons say that that they did account to the Millers for the profits from the Miller Lands, but they paid $45,271.75 more to AFSC on the AFSC Mortgage than the profits payable to the Millers from their farming of the Miller Lands (“Net Payment to AFSC”). [ 8 ] The Jacksons have demanded from the Millers the Net Payment to AFSC. [ 9 ] A fire occurred at the Jackson property. Tools owned by Mr.

Miller were destroyed (“Miller Tools”). The Millers assert that the Jacksons promised to insure the Miller Tools and told the Millers that they were awaiting payment from the insurer. Payment was made by the Jacksons to the Millers with respect to only one of the Miller Tools. [ 10 ] The Millers assert that the Jacksons defamed them in several instances, after Mr. Miller left his employment with the Jacksons. The Litigation [ 11 ] The Millers commenced action against the Jacksons for the following: (

a) Unpaid wages in the amount of $54,000 claimed by Mr. Miller; (

b) Damages in the amount of $33,010.62 for the Miller Tools; (

c) Profits from the Jacksons farming of the Miller Lands not accounted for by the Jacksons (“Unaccounted Farming Profits”); (

d) Discharge of the Jackson Mortgage from the Miller Lands; and (

e) Damages in the amount of $100,000 for defamation of character. [ 12 ] The Jacksons filed a Statement of Defense and Counterclaim. The Counterclaim seeks payment from the Millers for the Net Payment to AFSC ($45,271.75) and foreclosure of the Jackson Mortgage against the Miller Lands. It also seeks damages of $20,000. The Application [ 13 ] The Jacksons apply for

summary judgment against the Millers with respect to the Net Payment to AFSC and a declaration as to the validity of the Jackson Mortgage as securing the Net Payment to AFSC. They also seek

summary dismissal of the Millers’ claims for unpaid wages, damages for destruction of the Miller Tools and Unaccounted Farming Profits due more than two years prior to issuance of the Statement of Claim, on the basis that all such claims are limitation barred. Finally, they seek dismissal of the defamation claims on the basis that the pleadings for such claims are deficient. [ 14 ] I will deal with these issues in the order in which they were argued before me. Defamation [ 15 ] The original Statement of Claim lacked specifics of the defamation claims. Counsel for the Jacksons sought particulars from

the Millers pursuant to Rule 3.61. The Demand for Particulars requested with respect to the defamation claims: (

i) facts that support the allegations; (ii) particulars with names of the individuals to whom the alleged comments were made, dates of, times, and places of the alleged comments or publications; (iii) particulars of the wording of the alleged comments or publications; (iv) the names of the other farmers mentioned; and (

v) any other relevant particulars. [ 16 ] Counsel for the Millers sent a Response to the Demand for Particulars. Although a number of details were provided with respect to the claims for defamation, the Millers refused to identify the individuals to whom the Jacksons made the defamatory statements and stated: ...the individuals who were phoned or talked to by the Defendants have advised that they do not want their names disclosed. They have expressed serious concern and fear that they will be defamed and attacked by the Defendants if their names are disclosed.

They have advised that we can provide the details of their interactions but not their names before attendance at trial. The Response to the Demand for Particulars went on to give particulars of defamatory statements made to persons A to L. [ 17 ] Faced with this application, the Millers sought to amend their Statement of Claim. The Jacksons did not object. The Amended Statement of Claim attaches a

Schedule “A” with 11 paragraphs providing particulars with respect to the defamation claims. Individuals A, B, G and K are identified by name. The other individuals are not. [ 18 ] Counsel for the Jacksons set out three bases as to why the Millers’ pleadings with respect to the defamation claims were deficient: (

a) Persons to whom the alleged defamatory statements were made were not identified; (

b) The exact statements made were not specified but given only in general terms; and (

c) Certain of the alleged statements were not defamatory in nature. [ 19 ] Counsel for the Jacksons said that each of the 11 paragraphs in

Schedule “A” to the Amended Statement of Claim suffered from one or more of the foregoing defects. He identified the categories of defect(

s) for each paragraph in

Schedule “A”. [ 20 ] Rule 13.7(

f) requires that particulars of defamation be pleaded. [ 21 ] Defamation pleadings must contain the details of the publication including the words published by the defendant, the time, place and manner of publication, and to whom the publication was made, so as to provide the defendant with adequate notice of the specific occurrence constituting the wrong: Arcelormittal Tubular Products Roman S.

A. v Canadian Natural Resources Ltd, 2013 ABQB 578 and 1021018 Alberta Ltd. v Bazinet, 2015 ABQB 151 . [ 22 ] In my view, it is not satisfactory for the Millers to make allegations that the Jacksons made defamatory statements to certain individuals, but refuse to identify those individuals. The plan of counsel for the Millers to simply have these people show up at trial is not satisfactory. That is not the way our system of justice works. A defendant is entitled to know the claim made against him or her before trial.

That is even more the case in a defamation suit. [ 23 ] The claims of defamation involving alleged statements made by Mr. Jackson to Persons C, D, E, F, H, I, J and L fail for want of particulars.

Summary dismissal is granted with respect to those claims. [ 24 ] Counsel for the Jacksons sought to have struck the allegations of defamation with respect to the alleged statements made to Persons A, B, G and K (who were identified) on the basis that there was a lack of particulars as to the times and dates of the statements and/or a failure to provide the exact wording of the statements. [ 25 ] In particular, counsel for the Jacksons complains that paragraph 3 of

Schedule “A” to the Amended Statement of Claim inappropriately groups allegations together. That paragraph states: On March 11 between 5:00 p.m. and March 12, Tom Jackson phoned a number of individuals. Some of these individuals he called a number of times. Murray Loree, Norman Olsen, Person C, Person D and Person E advised of being told the same things from Tom Jackson. They advised that they were advised by Tom Jackson that he had bought a farm for the Plaintiffs, and that he had built his current shop for Stephen, and that Stephen and Jocelyn were dishonest people that had taken advantage of him.

They were all advised by Tom Jackson that Stephen was crooked and slimy and that he could not be trusted. Tom Jackson also advised these individuals that the Plaintiffs do not hold up their end of the deals, cannot be trusted to do business with, and also that the Plaintiffs will not pay their land payments. [ 26 ] Murray Loree is Person A and Norman Olsen is Person B. [ 27 ] In addition to the Millers’ Amended Statement of Claim inappropriately grouping allegations of defamation, counsel for the Jacksons complains that exact statements are not provided.

He states that the phrase “...the Plaintiffs will not pay their land payments” is an example of the need to know exact wording, as the exact wording could determine if such a statement is or is not a defamatory statement.

[ 28 ] If that were the only alleged defamatory statement there might be merit to the complaint. But the defamatory statements include other allegations that would be defamatory if said, such as the alleged statement that the Millers are dishonest people and Mr. Miller is crooked and slimy and could not be trusted. [ 29 ] The suggestion by counsel for the Jacksons that an exact quote is required is not reasonable, at least in the context of a telephone conversation.

That could only be possible if the recipient of the call had the forethought to record the call. [ 30 ] I appreciate the need for specificity with respect to defamation pleadings. However, one must keep in mind the rationale for specificity. It is so that the defendant can know the case against him and not be taken by surprise at discoveries and at trial. [ 31 ] As paragraph 3 of

Schedule “A” now stands, following my ruling dismissing the claims with respect to anonymous recipients of calls, the allegation is that Mr. Jackson made calls to Murray Loree (previously called Person

A) and Norman Olsen (previously called Person

B) between March 11 at 5:00 p.m. and March 12 and those calls included statements made by Mr. Jackson that the Millers are dishonest and Mr. Miller was crooked and slimy and could not be trusted. [ 32 ] I find there is sufficient specificity of the defamation claims with respect to the alleged statements made by Mr. Jackson to Murray Loree and Norman Olsen, between March 11 at 5:00 p.m. and March 12, that the Jacksons know the case against them and cannot complain that they will be taken by surprise at discoveries or trial. [ 33 ] The lack of an exact quotation with respect to what is alleged that Mr. Jackson said to Jeff Eckstrand (Person

G) is also not fatal. The allegation is that on March 16, Mr. Jackson called Mr. Eckstrand in distress and said that: the Plaintiffs could not be trusted; Stephen was crooked and slimy; and the Plaintiffs did not make their land payments. This is sufficient that the Jacksons know the claim made against them with respect to the alleged statement made to Jeff Eckstrand. [ 34 ] Likewise, the lack of specific dates when Tyler Rawlick (Person

K) was advised (on numerous occasions) by Mr. Jackson that Mr. Miller was incompetent as a mechanic and should not be trusted to work on any equipment does not invalidate this claim. The lack of exact quotations is not fatal. As stated previously in these Reasons, the important thing is that the Defendants have sufficient knowledge of the allegations that they are able to respond and they will not be taken by surprise at discoveries or trial. [ 35 ] With respect to paragraphs 1 and 2 of

Schedule “A” (as supplemented by paragraphs 1 and 2 of the Response to Demand for Particulars), the allegations are that Mr. Jackson had made posts on Agriville and Facebook that his mechanic had quit his employment with the Jacksons because of harassment by the County of Flagstaff and that the County had been dumping toxic chemicals endangering the health of his (Mr. Jackson’

s) family and farm workers and “these people are sick”. These statements may in fact not be true. But are they defamatory of Mr. Miller? [ 36 ] The Defamation Act RSA 2000, c D-7 defines defamation as libel or slander. [ 37 ] In the case of Chopra v Hodson, 2001 ABQB 380 , Justice Hembroff had to consider the definition of defamation. He stated (at paragraphs 21 and 22): [21] In the Second Edition of the Law of Defamation in Canada, the writer, Raymond Brown at 4.2(2) of his text illustrates judicial

definitions by extracts from numerous cases all of which are cited in his text as follows: The threshold inquiry in every action for defamation is whether there has been a defamatory statement. There must be a false statement of defamatory fact in order for the action to succeed. Broadly speaking, a defamation is a false statement to a person’s discredit. The very essence of a defamatory statement, therefore, is its tendency to injure reputation.

In this context, however, reputation “ is to be interpreted in a broad sense as comprehending all aspects of a person’s standing in the community. ” Our courts are seldom satisfied with a simple definition of what is defamatory. They often address the issue by asking whether the publication has the tendency to adversely affect, disgrace, injure, or prejudice the reputation or character of the plaintiff?

Does it tarnish his good name, or diminish or lower the good opinion, esteem, or regard which others have for him, or the good will or confidence in him, or excite adverse feelings and opinions about him, or cause persons to think worse of him, or cause him to be detested, despised, or, perhaps, pitied, or regarded with feelings of fear, dislike or disesteem, or cause the general public or “ ordinary decent folk in the community, taken in general, to think the less of him”?

The most popular judicial inquiry in determining whether a publication is defamatory is to ask whether the words expose the plaintiff to hatred, contempt and ridicule. However, it is also defamatory if the words expose him or her to disesteem, dislike, enmity, fear, odium, obloquy, or scorn. [22] A further definition of defamation is found in the 6 th Edition of Blacks Law Dictionary, part of which is as follows: An intentional false communication, either published or publicly spoken, that injures another’s reputation or good name.

Holding up of a person to ridicule, scorn or contempt in a respectable and considerable part of the community. Defamation is that which tends to injure reputation; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him. Statement which exposes person to contempt, hatred, ridicule or obloquy.

A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. [ 38 ] More simply, our Court of Appeal has stated: “A publication is considered defamatory if it has the tendency to lower the reputation in the estimation of reasonable persons in the community”: Chohan v Cadsky, 2009 ABCA 334 .

[ 39 ] Paragraphs 1 and 2 of

Schedule “A” (supplemented by Paragraphs 1 and 2 of the Reply to Demand for Particulars) do not hold Mr. Miller up to ridicule, scorn or contempt. However, these pleadings state that Mr. Jackson’s alleged statement “...led to people in the community asking why he (Mr.

Miller) was sick and how he was doing.” [ 40 ] In his textbook (cited by Justice Hembroff above), Raymond Brown states that the very essence of a defamatory statement is its tendency to injure reputation and that reputation is to be interpreted in a broad sense as comprehending all aspects of a person’s standing in the community. [ 41 ] In my opinion, falsely stating that someone is sick could be defamatory of that individual as reasonable persons within the community could think that the person’s fitness to work or function or interact has been affected.

That is certainly an aspect of a person’s standing in the community and therefore could affect that person’s reputation in a broad sense. [ 42 ] In conclusion on this part, the allegations of defamatory statements made to unidentified persons are summarily dismissed (or are struck pursuant to Rule 3.68 which was also referenced in the Jacksons’ application). All other allegations of defamation remain.

Limitations Act Defences Miller Tools [ 43 ] The Jacksons say that as the fire loss which brought about the damage to the Miller Tools occurred more than two years before the Millers’ Statement of Claim was issued this claim is limitation barred. [ 44 ] The allegations in the Amended Statement of Claim are that: Mr. Miller was required to provide his own tools; the Defendants advised Mr.

Miller that they had full insurance coverage for his tools while they were in Jacksons’ shop; the Miller Tools were to be assessed by a representative of the Defendants’ insurer to be included in the insurance coverage that was obtained by the Defendants; the Defendants had made the claim through their insurance for the tools; and it was not until December 11, 2020 that the Plaintiffs were advised that the Defendants had not submitted a claim to their insurer for the Miller Tools. [ 45 ] In essence, this claim is for breach of contract.

That is, the Jacksons failed to insure and/or pursue an insurance claim with respect to the Miller Tools. It is also potentially a claim for deceit. The limitation period for either of these causes of action does not run from the time of the fire. It runs from the time that the Millers knew or ought reasonably to have known that they suffered a loss as a result of the breach of contract or deceit.

The action was commenced within two years of when the Millers knew or reasonably ought to have known that they suffered a loss as a result of the Jacksons’ failure to insure or to make a claim to the insurer. [ 46 ] Counsel for the Jacksons states that the issue of insurance coverage is a red herring. He states that the Millers’ claim is in effect that the Jacksons agreed to cover or protect the Millers for such a loss. But that is not what has been pled. That is a construction of the pleading that is not accurate. Wages Due More than Two Years before the Action was Commenced [ 47 ] Mr.

Miller’s claim for unpaid wages does include amounts due to him more than two years prior to the issuance of the Statement of Claim. The Jacksons assert that the claim for unpaid wages owing more than two years prior to issuance of the Statement of Claim should be summarily dismissed as being limitation barred. However, there are also claims for unpaid wages that are owing within two years of issuance of the Statement of Claim for which the parties will be going to trial. [ 48 ] The Millers assert that the reasoning of Mr.

Justice Lee in Fink v Trakware Systems Inc, 2015 ABQB 133 is applicable and should be applied here. [ 49 ] In the Fink case, the plaintiff received periodic payments within the two year limitation period for liabilities more than two years old and Justice Lee said that these periodic payments were sufficient to engage subsection 8(2) of the Limitations Act.

Section 8 states: Acknowledgment and part payment 8

(1) In this section, “claim” means a claim for the recovery, through the realization of a security interest or otherwise, of an accrued liquidated pecuniary sum, including, but not limited to a principal debt, rents, income and a share of estate property, and interest on any of them.

(2) Subject to subsections (3) and (4) and

section 9 , if a person liable in respect of a claim acknowledges the claim, or makes a part payment in respect of the claim, before the expiration of the limitation period applicable to the claim, the operation of the limitation period begins again at the time of the acknowledgment or part payment.

(3) A claim may be acknowledged only by an admission of the person liable in respect of it that the sum claimed is due and unpaid, but an acknowledgment is effective (

a) whether or not a promise to pay can be implied from it, and (

b) whether or not it is accompanied with a refusal to pay.

(4) When a claim is for the recovery of both a primary sum and interest on it, an acknowledgment of either obligation, or a part payment in respect of either obligation, is an acknowledgment of, or a part payment in respect of, the other obligation. (Emphasis added by Mr. Justice Lee)

[ 50 ] Indeed, payments of wages were made by the Jacksons to Mr. Miller in the two year period prior to the issuance of the Statement of Claim. Mr. Miller asserts that these payments were partial payments of arrears for wages owing more than two years prior to the issuance of the Statement of Claim and such payments are acknowledgments of liability for such wages. Mr.

Miller asserts that wages were constantly in arrears and the accounting by the Jacksons on payment of wages was very poor. [ 51 ] Conversely, the Jacksons argue that the evidence provided by the Millers as to how the unpaid wage claim of $54,000 is broken down was poor and inadequate and the Millers have not been able to prove that payments made within the two years prior to the issuance of their Statement of Claim were partial payments of arrears due more than two years prior to the issuance of the Statement of Claim. [ 52 ] In my view the evidentiary record is not satisfactory that the Court may determine this issue summarily.

Consequently, the Jacksons’ application for dismissal of wage claims accruing more than two years prior to issuance of the Statement of Claim is dismissed. The Defendants’ Application for

Summary Judgment with Respect to Their Counterclaim [ 53 ] The Jacksons admit that there is need for a trial with respect to the amount owing with respect to their counterclaim. Although the amount they paid to AFSC on the AFSC Mortgage is not in dispute, the amount of Unaccounted Farming Profits does need to be determined. Hence, the amount of the Net Payment to AFSC is in dispute and needs to be determined. However, at this stage the Jacksons say that the Court may summarily determine at this time that the Jackson Mortgage is valid and enforceable. [ 54 ] Mr.

Miller swore in his Affidavit that the Jacksons had agreed to cover any shortfall in mortgage payments to AFSC if there were not enough funds generated from Jacksons’ farming of the Miller Lands to cover the payments on the AFSC Mortgage. The Jacksons assert that the Court should still declare the Jackson Mortgage as valid and enforceable and just leave the amount for trial. [ 55 ] I disagree with this suggestion. There may be nothing due and owing under the Jackson Mortgage. Declaring it as valid and enforceable would be inappropriate.

The argument that the Jacksons should not have to prove at trial the due execution and delivery of the Jackson Mortgage because the Court can summarily conclude that at this stage is without merit. Execution and delivery of the Jackson Mortgage may be academic. Furthermore, it is such a small piece of the case, that summarily determining that fact has little value at this stage. The Application of Weir-Jones [ 56 ] In arriving at my decision on this application, I have followed the approach that our Court of Appeal has directed for

summary disposition applications set out in Weir-Jones Technical Services Incorporated v Purolator Courier Ltd, 2019 ABCA 49 . That is, I have followed the core principles of

summary disposition, the standard of proof, the record and fairness. I have considered the key considerations set out in subparagraphs (

a) to (

d) of paragraph 47 of that decision. [ 57 ] In the result, only the claims of defamation with respect to statements alleged to have been made to unidentified persons are summarily dismissed. The balance of the Jacksons’ application is dismissed. Costs [ 58 ] As success on this application has been divided, I direct that costs of this application be in the cause. Heard on the 3 rd day of February, 2021. Dated at the City of Edmonton, Alberta this 12 th day of April, 2021. Brian W. Summers M.C.Q.B.A. Appearances: Travis Lidstone, Weir Bowen LLP for the Plaintiffs/Defendants by Counterclaim

Frank P. K. Friesacher, McCuaig Desrochers LLP for the Defendants/Plaintiffs by Counterclaim