Dale Kirby Plaintiff And: Bruce Chaulk First Defendant (DISCONTINUED) And: Colin Holloway Second Defendant And: Pam Parsons Third Defendant And: HIS MAJESTY THE KING IN RIGHT OF NEWFOUNDLAND v. LABRADOR, 2022 NLSC 180

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Kirby v. Chaulk , 2022 NLSC 180 Date : December 22, 2022 Docket : 202001G4056 Between: Dale Kirby Plaintiff And: Bruce Chaulk First Defendant (DISCONTINUED) And: Colin Holloway Second Defendant And: Pam Parsons Third Defendant And: HIS MAJESTY THE KING IN RIGHT OF NEWFOUNDLAND AND LABRADOR FOURTH Defendant (discontinued) Before: Justice Sandra R Chaytor

Place of Hearing: St. John’s, Newfoundland and Labrador Date(

s) of Hearing: December 8-9, 2021

Summary: The Defendants, Holloway and Parsons, brought applications to strike the Statement of Claim primarily pursuant to Rule 14.24(1)(

a) asdisclosing no reasonable cause of action on the basis that parliamentary privilege applied and therefore the Court lacked jurisdiction toadjudicate the matter. The Plaintiff, a member of the House of Assembly of Newfoundland and Labrador, commenced this action against Holloway andParsons, for breach of statutory duty, malicious prosecution, misfeasance in public office, and defamation. The subject matter of theaction largely concerns complaints made by Holloway and Parsons against Kirby that he had breached provisions of the Code of Conductfor Members of the House of Assembly.

The complaints were investigated and opined upon by the Commissioner for LegislativeStandards pursuant the House of Assembly Accountability, Integrity and Administration Act. Held: All allegations founding the causes of action of breach of statutory duty, malicious prosecution, and misfeasance in public officeare covered by the House of Assembly’s parliamentary privilege to discipline its members and the parliamentary privilege of freedom ofspeech. Therefore, those portions of the Statement of Claim are struck out as disclosing no reasonable cause of action.

With respect to the defamation cause of action, all allegations related to the complaints or the investigation of the complaints are coveredby parliamentary privilege and struck out. Allegations that Holloway and Parsons made defamatory statements to the media, or otherwiseoutside the complaints and the investigative process, are not covered by parliamentary privilege. Those allegations however are notsupported by the requisite material facts to found an action in defamation. The inadequate pleading was not struck. Rather the Plaintiffwas allowed an opportunity to file an Amended Statement of Claim.

Holloway and Parsons are awarded their costs on a Column 3 basis. Appearances: William A.F. Hiscock Appearing on behalf of the Plaintiff Jonathan E. Noonan Appearing on behalf of the Second Defendant Catherine D. Quinlan Appearing on behalf of the Third Defendant Authorities Cited: CASES CONSIDERED: Roberts v. Browning Ferris Industries Ltd. (1998), (NL CA), 170 Nfld. & P.E.I.R. 228,522 A.P.R. 228 (Nfld. C.A.); Walsh v. TRA Co., 2007 NLCA 50; Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42; Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19; Operation Dismantle Inc. v.

R., (SCC), [1985] 1 S.C.R. 441;Montreal Trust Co. of Canada v. Hickman 2001 NFCA 42; Canada (House of Commons) v. Vaid, 2005 SCC 30; New BrunswickBroadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), (SCC), [1993] 1 S.C.R. 319; Newfoundland &

Labrador (Child & Youth Advocate) v. Newfoundland & Labrador (House of Assembly), 2009 NLTD 189; Chagnon v. Syndicat de lafonction publique et parapublique du Québec, 2018 SCC 39; Joyce v. Gambin-Walsh, 2022 NLSC 179; Tafler v. British Columbia(Commissioner of Conflict of Interest) (1998), (BC CA), 108 B.C.A.C. 263, 49 B.C.L.R. (3d) 328 (C.A); Kirby v.Chaulk, 2021 NLSC 86; Duffy v. Canada (Senate), 2020 ONCA 536; Gagliano v. Canada (Procureur général), 2005 FC 576; Ontario v.Rothmans Inc., 2014 ONSC 3382; Sussman v. Eales, [1986] CarswellOnt 529, 25 C.P.C. (2d) 7 (C.A.); Botiuk v.

Toronto Free PressPublications Ltd., (SCC), [1995] 3 S.C.R. 3; Guergis v. Novak, 2013 ONCA 449; Petten v. E.Y.E Marine Consultants(1994), (NL SC), 120 Nfld. & P.E.I.R. 313, 373 A.P.R. 313 (Nfld. S.C.(T.D)); Tupper v. Wheeler, 2005 NSCA 74;Miller v. Squires, 2008 NLTD 25; Grant v. Torstar Corp., 2009 SCC 61; Lysko v. Braley (2006), (ON CA), 212O.A.C. 159, 79 O.R. (3d) 721 (C.A.); Hope v. Gourlay 2015 SKCA 27; Hynes v. Pro Dive Marine Services Ltd. 2016 NLCA 17; HumbyEnterprises Limited v. A.L. Stuckless & Sons Ltd., 2003 NLCA 20; Hynes v.

Pro Dive Marine Services Ltd., 2014 NLTD(G) 3; Neary v.Fagan, 2016 NLTD(G) 63 STATUTES CONSIDERED: House of Assembly Accountability, Integrity and Administration Act, S.N.L 2007, c. H-10.1; House ofAssembly Act, R.S.N.L. 1990, c. H-10 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. C-42, Sch. D REASONS FOR JUDGMENT Chaytor, J.: INTRODUCTION AND BACKGROUND [1] Dale Kirby, served as a member of the House of Assembly of Newfoundland and Labrador from 2011 to 2019. For a portion ofthat time, he held a Cabinet position until he claims he was asked by the Premier to resign in April 2018.

He alleges this happenedbecause of allegations of harassment made against him by other members of the House of Assembly, Colin Holloway and Pam Parsons. [2] In 2018, Holloway and Parsons made allegations of harassment against Kirby as a member of the House of Assembly. Eachsubmitted a request pursuant to section 36(1) of the House of Assembly Accountability, Integrity and Administration Act, S.N.L 2007, c.H-10.1 (the “HAAIA Act”) to Chaulk, as the Commissioner for Legislative Standards, seeking his opinion on Kirby’s conduct (“theComplaint(s)”).

The Complaints alleged that Kirby had breached provisions of the Code of Conduct for Members of the House ofAssembly enacted pursuant to

section 35 of the HAAIA Act (the “Code of Conduct”). [3] Chaulk conducted an inquiry into the Complaints pursuant to the HAAIA Act (the “Complaint Process”) culminating with tworeports both entitled “the Kirby Report.” The Kirby Report dated August 24, 2018 dealt with the complaint by Holloway. It did not findany violation of the Code of Conduct. The Kirby Report dated October 3, 2018 dealt with the Complaint by Parsons.

In it, Chaulkconcluded that Kirby had breached one principle of the Code of Conduct. [4] On August 11, 2020, Kirby commenced this civil action seeking damages against the Defendants for the respective roles eachis alleged to have played in the circumstances surrounding the Complaints and the Complaint Process. The Statement of Claim alsoalleges that Holloway and Parsons made defamatory statements about Kirby outside the Complaint Process.

Kirby claims he has suffereddamages and loses including being removed from Cabinet, having to resign from Liberal caucus, reputational loss, and economic lossesrelated to loss of employment and future employment prospects, including diminished income, salary and pension. [5] All four defendants responded to the Statement of Claim by filing applications to strike the action pursuant to Rule 14.24 ofthe Rules of the Supreme Court, 1986, S.N.L. 1986, c. C-42, Sch. D (the “Rules”). The primary basis for the applications is that theStatement of Claim should be struck pursuant to Rule 14.24(1)(

a) of the Rules as disclosing no reasonable cause of action. This is on thebasis that the allegations in the pleading fall within the scope of the House of Assembly’s parliamentary privilege to discipline itsmembers and the parliamentary privilege of freedom of speech. Thus, they submit, the Court has no jurisdiction to adjudicate the action. [6] After the filing of the applications to strike but prior to the hearing, Kirby discontinued the action against Chaulk and theGovernment.

Therefore, the only applications remaining before the Court are those of Holloway and Parsons. [7] It is well established that the Court can determine the existence and scope of parliamentary privilege. If such privilege isestablished, however, the lawfulness of the exercise of the privilege by the House of Assembly cannot be reviewed by the Court.

This isbecause parliamentary privilege ensures that legislative bodies have the ability to manage their own decisions and processes withoutinterference from the Court. [8] Therefore, if I determine that parliamentary privilege applies to the entirety of the allegations in the Statement of Claim, theCourt lacks jurisdiction to adjudicate the action. [9] If I do not find that parliamentary privilege applies, Holloway and Parsons raise alternative and additional grounds to strike theaction. [10] Holloway submitted, alternatively, that the pleading should be struck as disclosing no reasonable cause of action because theComplaint made by him against Kirby is shielded from civil action by the common law principle of witness immunity.

[ 11 ] Parsons grounded her Application in the following additional and alternative grounds to strike: 1. the claim based in defamation should be struck pursuant to Rule 14.24(1)(

a) in that the allegations are vague and unspecified and therefore there is no reasonable cause of action disclosed; 2. the action should be struck pursuant to Rule 14.24(1)(

b) as being false, scandalous, frivolous or vexatious; and 3. the action should be struck pursuant to Rule 14.24(1)(

d) because it is an abuse of process as matters subject to parliamentary privilege are not reviewable by the Court and intrude upon the exclusive jurisdiction of the legislature to discipline its members. [ 12 ] The parties filed Memoranda of Fact and Law on all the issues identified in the Applications. At the time of the hearing, counsel for Kirby conceded that most of the allegations against Holloway and Parsons contained in the Statement of Claim would be covered by the parliamentary privilege of the House of Assembly to discipline its members.

This was the reason Kirby had discontinued the action against the other two defendants. [ 13 ] Kirby contended however, that any statements made outside the Complaint Process, including statements to the media, would not be protected by parliamentary privilege.

Kirby further submitted that if it were ultimately determined that Holloway and/or Parsons were responsible for “leaking” the Kirby Reports to the media, prior to the release by the House of Assembly, then the statements made by them in the reports would no longer be protected by parliamentary privilege. [ 14 ] Although Kirby conceded most of the allegations in the Statement of Claim, are covered by parliamentary privilege, I will analysis the entirety of the Statement of Claim to satisfy myself that Holloway and Parsons have met the burden of establishing what, if any, portions of the Statement of Claim should be struck. [ 15 ] This is my decision with respect to Holloway and Parsons’ Applications to strike the Statement of Claim. [1] issues [16] I have summarized the issues to be determined as follows: 1.

Should all or part of the Statement of Claim be struck pursuant to Rule 14.24(1)(

a) as disclosing no reasonable cause of action due to the: (

a) applicability of parliamentary privilege? (

b) vague and unspecified nature of the allegations grounding the defamation cause of action? (

c) applicability of witness immunity? 2. Should all or part of the Statement of Claim be struck pursuant to Rule 14.24(1)(

b) as being false, scandalous, frivolous or vexatious? 3. Should all or part of the Statement of Claim be struck as being an abuse of process pursuant to Rule 14.24(2)(d)? [17] For the reasons that follow, I have decided: 1. With respect to the Rule 14.24(1)(

a) basis for striking: (

a) Applicability of Parliamentary Privilege (

i) All allegations against Holloway and Parsons contained in the Statement of Claim (except those referenced in (ii), (iii) and (iv) below) are struck out as disclosing no reasonable cause of action. These allegations encroach upon matters that fall within the scope of the House of Assembly’s parliamentary privilege to discipline its members and the parliamentary privilege of freedom of speech. The Court has no jurisdiction to adjudicate these matters.

(ii) The allegation in paragraph 12 of the Statement of Claim that in “subsequent public statements and in conversations andcorrespondence with other political actors” Holloway and Parsons defamed Kirby, survives the Applications to strike.

These allegedstatements are not covered by parliamentary privilege. (iii) Insofar as the allegation in paragraph 16 of the Statement of Claim that Holloway and Parsons “knowingly made false statementsabout Kirby and caused them to be made public”, is referencing statements made outside the Complaints and Complaint Process, thesestatements are not covered by parliamentary privilege and therefore this allegation is not struck. (iv) The allegation in paragraph 19 of the Statement of Claim that Holloway and Parsons made public statements in giving mediainterviews, and otherwise, with intent to damage the reputation of the Plaintiff is not struck.

These statements are not covered byparliamentary privilege. (

b) Vague and Unspecified Nature of the Allegations: Although the allegations contained in paragraphs 12, 16, and 19 of the Statement of Claim referenced in 1(a)(ii),(iii) and (iv) lack thematerial facts to support a cause of action based in defamation, I am not prepared to strike those portions of the Statement of Claimwithout permitting Kirby an opportunity to amend the Statement of Claim to properly plead the material facts. (

c) Applicability of Witness Immunity: Given that the allegations relevant to this issue have been struck out due to the applicability of parliamentary privilege, there is no need todeal with this alternative basis for striking. 2. The portions of the Statement of Claim that have survived the Applications to strike on the basis of parliamentary privilege,are not struck as being false, scandalous, frivolous or vexatious pursuant to Rule 14.24(2)(b). 3.

The portions of the Statement of Claim that have survived the Applications to strike on the basis of parliamentary privilege,are not struck as being an abuse of process pursuant to Rule 14.24(2)(d). 4. Kirby shall file an Amended Statement of Claim pleading the requisite material facts, including the alleged defamatory words,within thirty (30) days following the filing of the Order. In the event that he fails to do so, the entirety of the action including paragraphs12, 16 and 19 is struck as being a deficient pleading that discloses no reasonable cause of action. 5.

As Holloway and Parsons were substantially successful, they shall have their costs against Kirby on Column 3 basis. analysiS Issue 1: Should all or part of the Statement of Claim be struck pursuant to Rule 14.24(1)(

a) as disclosing noreasonable cause of action? The Test to Strike a Claim on Basis of Rule 14.24(1)(a) [18] Rule 14.24(1)(

a) states: 14.24.

(1) The Court may at any stage of a proceeding order any pleading, affidavit or statement of facts, or anything therein, to bestruck out or amended on the ground that (

a) it discloses no reasonable cause of action or defence; [19] In Roberts v. Browning Ferris Industries Ltd. (1998), (NL CA), 170 Nfld. & P.E.I.R. 228, 522 A.P.R. 228(Nfld. C.A.), the Court of Appeal confirmed the test for striking a claim pursuant to Rule 14.24(1)(

a) stating, “A statement of claim, orthe impugned portion, will not be struck unless, proceeding on the assumption that the facts alleged in it can be proven, it is plain andobvious, on its face, that it cannot succeed at law. Where, plainly and obviously, it cannot succeed, it will be struck.”

[20] In Walsh v. TRA Co., 2007 NLCA 50, the Court of Appeal reiterated that a claim will be struck pursuant to Rule 14.24(1)(a)only if it is plain and obvious that it has no chance of success. [21] In Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42, at paragraph 17, the Supreme Court stated that a claim should bestruck if it has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should be allowed to proceedto trial. [22] More recently, in Atlantic Lottery Corp. Inc. v.

Babstock, 2020 SCC 19, at paragraph 18, the Supreme Court confirmed theimportance of applications to strike as a tool to resolve legal disputes promptly, rather than referring them to a full trial. This includesresolving questions of law by striking claims that have no reasonable chance of success. [23] For the purpose of an application to strike, it is well established that the Court is to assume that the facts as pled in theStatement of Claim are true. I must distinguish however between allegations of fact and conclusions of law.

Conclusions of law are not tobe presumed to be proven for the purpose of determining whether the pleading discloses a reasonable cause of action (OperationDismantle Inc. v. R., (SCC), [1985] 1 S.C.R. 441). [24] In determining applications to strike, the Court must bear in mind that striking a pleading is a drastic step. Before making anorder to strike, the Court should consider whether the deficiency can be cured by either an amendment to plead specific facts or by wayof an order for particulars (Montreal Trust Co. of Canada v.

Hickman 2001 NFCA 42). [25] I now turn to the analysis of whether the Defendants have established on a balance of probabilities that, assuming the facts aspled are true, it is plain and obvious, that the action has no reasonable chance of success because the Statement of Claim discloses noreasonable cause of action. Review of the Statement of Claim [26] The Statement of Claim is comprised of 37 paragraphs.

It is clear from a review of the pleading that the action largely centresupon the laying of the Complaints and the Complaint Process. [27] The following causes of action are alleged against Holloway and Parsons: breach of statutory duty; malicious prosecution;misfeasance in public office; and defamation. [28] Paragraphs 1- 6 of the Statement of Claim identify the parties and their particulars. In paragraph 3, Holloway is described to be,at all times material to the action, a member of the House of Assembly.

This is followed by the statement that he “made a complaintregarding the Plaintiff’s conduct to the Premier, and subsequently filed a formal complaint with the First Defendant.” Parsons isdescribed in the same manner in paragraph 4. [29] Paragraph 7 of the Statement of Claim alleges that Holloway and Parsons met with the Premier in relation to the Complaintsand as a result of the allegations, Kirby was asked to resign from Cabinet and caucus. [30] Paragraphs 9 and 10 of the Statement of Claim reference that Holloway and Parsons requested Chaulk, as Commissioner forLegislative Standards, to conduct an investigation into the allegations of harassment against Kirby.

In the course of the investigationsconducted by Chaulk, Kirby alleges that he did not receive relevant documentation and as a result he did not receive an opportunity tomake full answer and defense. [31] Paragraph 11 of the Statement of Claim references that Chaulk did not find Kirby in violation of any of the alleged breaches ofthe Code of Conduct raised by Holloway and that he was found to have violated one provision of the Code of Conduct with respect toParsons’ Complaint. [32] Paragraph 12 of the Statement of Claim alleges that the Complaints were baseless, without merit, made for the purpose ofgaining certain political advantages, and intended to cause harm to Kirby’s reputation.

It is further asserted that the statements ofHolloway and Parsons related to the Complaints as well as in subsequent public statements, and conversations and correspondence withother political actors, constitute defamation. [33] In Paragraph 13 of the Statement of Claim, Kirby repeats the foregoing and alleges that the statements made by Holloway andParsons would in the estimation of right thinking members of society tend to lower Kirby’s reputation as a duly elected member of theHouse of Assembly and Cabinet Minister. [34] In Paragraph 14 of the Statement of Claim, Kirby repeats the foregoing and alleges that Holloway and Parsons’ statements arereasonably understood by others to be defamatory; Holloway and Parsons intended the statements to be communicated as fact; and thatthese statements were intended to disparage Kirby as a member of the House of Assembly and Cabinet minister. [35] Paragraph 15 repeats the foregoing and alleges that the statements made by Holloway and Kirby would reasonably cause othersto believe that Kirby acted in an improper manner towards them, that their statements have caused harm to Kirby, and that they knew, orought to have known, such harm would befall Kirby when they made these statements. [36] In Paragraph 16, Kirby alleges that Holloway and Parsons knowingly made false statements about him, caused them to bemade public, and caused him to be subjected to a disciplinary process based on allegations which they knew, or ought to have known,had no merit. [37] Paragraph 17 alleges that Holloway and Parsons had duties toward Kirby as outlined in the House of Assembly Act, R.S.N.L.1990, c.

H-10; the HAAIA Act, and the Code of Conduct and that the conduct of Holloway and Parsons as outlined in the Statement ofClaim is in breach of these duties.

[38] Paragraph 18 alleges that the Complaints amounted to malicious prosecution in that the Complaints were resolved substantiallyin favor of Kirby; that Holloway and Parsons initiated the investigation without reasonable and probable cause; and that the Complaintswere motivated by malice or a primary purpose other than that of carrying the law into effect. [39] Paragraph 19 alleges that public statements made by Holloway and Parsons, in giving media interviews and otherwise,demonstrate the malicious intent and intent to damage the reputation of Kirby particularly among his constituents, Cabinet, members ofthe House of Assembly, Government, public officials, and the general public. [40] Paragraphs 20-29 of the Statement of Claim deal with the allegations against Chaulk and his role as Commissioner forLegislative Standards in the Complaint Process.

These paragraphs do not pertain to Holloway or Parsons but further show that the crux ofthis action is the Complaints and alleged deficiencies in the Complaint Process. [41] Paragraph 30 states that Chaulk, Holloway, and Parsons’ actions constituted deliberate and unlawful conduct in their officialpublic roles and that they were aware this conduct was unlawful and likely to harm Kirby’s interest, amounting to misfeasance in publicoffice. [42] Paragraph 31 alleges that Chaulk, Holloway, and Parsons acted outside what was reasonable pursuant to the statute and theCode of Conduct and their actions were taken in bad faith with hostile animus and malice toward Kirby. [43] Paragraph 32 states that the Fourth Defendant is vicariously liable for the tortious conduct directed against Kirby by Chaulk. [44] Paragraphs 33 and 34 plead the losses allegedly suffered by Kirby as a result of the Defendants’ conduct and claims that theDefendants are jointly and severally liable to him for the losses.

Such losses include being removed from Cabinet, having to resign fromthe Liberal caucus, reputational loss and economic loss related to loss of employment, and impact on his future employment prospectsincluding diminished income potential and pension. [45] Paragraph 35 pleads the legislation that Kirby relies upon which includes the House of Assembly Act; the HAAIA Act;Defamation Act, R.S.N.L. 1990, c. D-3; Proceedings Against the Crown Act, R.S.N.L. 1990 c. P-26; Judgment Interest Act, R.S.N.L.1990 c. J-2; and Transparency and Accountability Act, S.N.L. 2004 c.

T-8.1. [46] Paragraphs 36 and 37 deal with the nature of relief sought jointly and severally against the Defendants and includes a claim foraggravated and punitive damages. (

a) Striking due to applicability of parliamentary privilege [47] For the reasons that follow, I am satisfied that Holloway and Parsons have met the test to strike the vast majority of theallegations contained in the Statement of Claim as disclosing no reasonable cause of action due to the applicability of parliamentaryprivilege. This includes all allegations founding the causes of action of misfeasance in public office, malicious prosecution, and breach ofstatutory duty. It also includes all allegations of defamation which are based upon statements made in the Complaints or through theComplaint Process.

The allegations of defamatory statements made outside the Complaints and Complaint Process are not covered byparliamentary privilege. [48] In Canada (House of Commons) v.

Vaid, 2005 SCC 30 Binnie, J. at paragraph 29(2), characterized parliamentary privilege inCanada as “the sum of the privileges, immunities and powers enjoyed by the Senate, the House of Commons and provincial legislativeassemblies, and by each member individually, without which they could not discharge their functions.” [49] Parliamentary privilege is an essential feature of our constitutional democracy as it helps maintain the constitutional separationof powers between the legislative, executive, and judicial branches of Government. As stated by McLachlin, J. at paragraph 144 of NewBrunswick Broadcasting Co. v.

Nova Scotia (Speaker of the House of Assembly), (SCC), [1993] 1 S.C.R. 319: … Our democratic government consists of several branches: the Crown, as represented by the Governor General and the provincialcounterparts of that office; the legislative body; the executive; and the courts. It is fundamental to the working of government as a wholethat all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show properdeference for the legitimate sphere of activity of the other. [50] In Newfoundland & Labrador (Child & Youth Advocate) v.

Newfoundland & Labrador (House of Assembly), 2009 NLTD 189,at paragraph 15, Orsborn J. stated: Respect for the existence and parameters of parliamentary privilege helps to ensure that the constitutional separation of powers betweenthe legislature, the executive and the court is maintained.

It serves to delineate the proper constitutional boundaries and, once establishedin any given circumstance, prevents the court from interfering in matters which in Canada's constitutional governance framework, to putit shortly, are none of the court's business. [51] Therefore, when parliamentary privilege applies, the subject matter falls within the authority of the legislative assembly. TheCourt is deprived of jurisdiction over the privileged matter and it is immune from civil claims (Vaid, at para. 4; Chagnon v.

Syndicat dela function publique et parapublique de Québec, 2018 SCC 39, at para. 19). [52] Not all activities, however, of a legislative assembly are protected from judicial review. Rather the historical foundation ofevery parliamentary privilege is necessity.

Therefore, to establish that parliamentary privilege applies, Holloway and Parsons must meetthe necessity test. [53] The necessity test requires that the sphere of activity for which privilege is claimed be so closely and directly connected withthe fulfilment by the House of Assembly, or its members, of their functions, as a legislative and deliberative body, that outsideinterference would undermine the level of autonomy required to enable the Assembly, and its members, to do their work with dignity and

efficiency. Necessity in this context is to be read broadly (Vaid at paras. 46 and 29(7)). [54] For the reasons articulated in the companion case, Joyce v. Gambin-Walsh, 2022 NLSC 179, I find that the House ofAssembly’s parliamentary privilege over the control of its own process, including the discipline of its members as well as the parliamentary privilege of freedom of speech exist and continue to meet the necessity test.

Both privileges clearly remain necessary incontemporary times to maintain the dignity and efficiency of the House of Assembly. [55] The parliamentary privilege of legislative assemblies to discipline members has been found in Canadian jurisprudence toinclude the investigative processes implemented to assist the House of Assembly in the exercise of its privilege. It has also been foundthat the statements of participants in processes of legislative assemblies conducted outside the assembly, are protected by parliamentaryprivilege over free speech. [56] In Tafler v.

British Columbia (Commissioner of Conflict of Interest) (1998), (BC CA), 108 B.C.A.C. 263,49 B.C.L.R. (3d) 328 (C.A), the Conflict of Interest Commissioner for the House of Assembly of British Columbia (a role equivalent tothat of Chaulk) carried out an investigation of a member of the House of Assembly. The court determined that the work and decisionsundertaken by the Commissioner in the carrying out his statutory powers were decisions made within, and with respect to, the privilegesof the legislative assembly. Hence, the steps taken and decisions made were not reviewable by the court. [57] In Kirby v.

Chaulk, 2021 NLSC 86, Kirby filed a request under Access to Information and Protection of Privacy Act, S.N.L.2002, c. A-1.1 requesting disclosure of the complete investigative files of Chaulk regarding the Complaints. Chaulk refused to producethe files. The Information and Privacy Commissioner agreed with the refusal. On appeal by Kirby, the Court upheld the decision torefuse disclosure of the files. In so doing, Knickle J. (as she then was) noted, at paragraph 60, the necessity of ensuring the properfunctioning and independence of the House of Assembly includes the discipline of its members.

The Court held that this parliamentaryprivilege extends to the independence of control over information related to the investigations of the Complaints. [58] In Duffy v. Canada (Senate), 2020 ONCA 536, at paragraph 64, the Ontario Court of Appeal noted that parliamentary privilegeover free speech applies not only to speech in the House of Commons and the Senate but also before their respective committees. [59] In Gagliano v.

Canada (Procureur général), 2005 FC 576, the court concluded that parliamentary privilege applied to precludetestimony made before the Public Accounts Committee of House of Commons from being used in cross-examination in a subsequentcommission of inquiry. At paragraphs 108 and 109, the court stated: [108] Parliamentary privilege helps to demarcate the legitimate spheres of jurisdiction, and is therefore a fundamental aspect of ourconstitutional democracy.

It makes those powers, privileges and immunities which are necessary to Parliament's functioning in thepresent Canadian context subject to the exclusive jurisdiction of Parliament. It is my opinion that precluding cross-examination based onevidence presented to a parliamentary committee is necessary for that committee, primarily because it encourages witnesses to speakopenly. [109] It is also essential to the proper functioning of the committee in its investigative or inquisitorial role.

And it forecloses thepossibility that a finding of fact by a court or a commission of inquiry will contradict a finding of fact by a parliamentary committee orparliament as a whole. [60] In Ontario v. Rothmans Inc., 2014 ONSC 3382, the defendant tobacco company was successful on an application to strikeportions of the statement of claim on the basis that parliamentary privilege of freedom of speech applied.

The portions struck includedreferences to presentations that the defendant made to the House of Commons Standing Committee on Health, Welfare and SocialAffairs, to federal legislative committees, and to the House of Commons Standing Committee on Health. At paragraphs 32, the courtstated: [32] Once a person attends and participates in a parliamentary committee proceeding, the absolute privilege applies to his statementsmade in the course of that proceeding, with the result that the statements cannot be used in a civil action against him. The surroundingcircumstances are simply not relevant.

In this case, the Crown had pleaded that the defendants made the Presentations to various Houseof Commons standing committees and federal legislative committees. That is sufficient to invoke the privilege. [61] The important public interest protected by the parliamentary privilege is addressed by the court in Rothmans and paragraph 17: … The important public interest protected by such privilege is to ensure that the member or witness at the time he speaks is not inhibitedfrom stating fully and freely what he has to say.

If there were any exceptions which permitted his statements to be questionedsubsequently, at the time when he speaks in Parliament he would not know whether or not there would subsequently be a challenge towhat he is saying. Therefore he would not have the confidence the privilege is designed to protect. [62] As previously noted, it is clear that this action centres on Complaints made by Holloway and Parsons as members of the Houseof Assembly against fellow member, Kirby. Ultimately, it was the House of Assembly that had the power to discipline Kirby as one of itsmembers.

Chaulk, as the Commissioner of Legislative Standards, carried out an inquiry pursuant to the HAAIA Act to assist the House ofAssembly in the exercise of its parliamentary privilege. [63] In my view, the Complaint Process is covered under the umbrella of the House of Assembly’s parliamentary privilege todiscipline its members. The scope of that privilege protects all information related to the complaints including the content of the KirbyReports, the Complaints, and any statements made by Holloway and Parsons in the Complaints Process.

[64] I further conclude that parliamentary privilege over freedom of speech is applicable. Although the Complaints Process was not conducted by a committee of the House of Assembly, it was nonetheless a process by which the House of Assembly invoked its privilege to discipline. The Complaints Process was undertaken by the Commissioner of Legislative Standards, an officer of the House of Assembly. It concerned Complaints regarding the conduct of a member of the House of Assembly for alleged violations of the Code of Conduct and it culminated with a decision by the House of Assembly.

Statements made by participants in such a process, are covered under the protective umbrella of the parliamentary privilege of freedom of speech. [65] As such, the statements by Holloway and Parsons including the content of the Complaints and any other statements made by them, whether written or verbal, in the Complaint Process are further protected by the parliamentary privilege of freedom of speech. [66] The impugned conduct of Holloway and Parsons referenced in the Statement of Claim regarding laying the Complaints and participating in the Complaint Process is integrally connected to the proceedings of the House of Assembly, including the House of Assembly’s investigation and deliberations regarding the discipline of one of its members.

Raising these allegations before the Court in a civil action would unavoidably involve the Court reviewing matters that fall squarely within the House of Assembly’s parliamentary privilege. [67] Specifically, the allegations in the Statement of Claim supporting the claim for malicious prosecution concern the laying of the Complaints by Holloway and Parsons. The allegations upon which the cause of action of misfeasance in public office and the allegations of breach of statutory duty by Holloway and Parsons relate to the laying of the Complaints and the Complaint Process.

An adjudication of these allegations to determine if a compensable wrong was inflicted on Kirby would require the Court to inquire into the manner in which the House of Assembly exercised its parliamentary privilege to discipline a member. It would also require an examination by the Court of the statements of Holloway and Parsons made in the Complaints and through the Complaint Process. For the Court to undertake such an adjudication would be an infringement of a core function of the House of Assembly’s parliamentary privileges.

Therefore, all allegations pertaining to these causes of action are covered by parliamentary privilege and are struck. [68] With respect to the cause of action based in defamation, to the extent that any of the allegations in the Statement of Claim refer, explicitly or implicitly, to the Complaints, or other statements made by Holloway or Parsons, whether written or verbal, within the Complaint Process, these statements are protected by parliamentary privilege and cannot form the basis for a civil action in defamation. [69] I conclude that except for the allegations concerning the media and public statements made by Holloway and Parsons outside the Complaint Process as referenced in paragraphs 12, 16, and 19 of the Statement of Claim, all allegations against Holloway and Parsons concern the roles played by them and their actions and statements made through the Complaints and the Complaint Process.

These statements and actions are protected by parliamentary privilege.

Effect on Parliamentary Privilege of the Alleged Public Release of the Reports [70] Kirby submits that while statements made by Holloway and Parsons may have been privileged within the Complaint Process and thereby have immunity, if they publicly released the Kirby Reports containing those statements, the protection from immunity is lost. [71] I conclude that the unsubstantiated allegation that either Holloway or Parsons released the reports does not defeat the parliamentary privileges that protect the content of the reports from civil action. [72] In support of this submission, Kirby relies upon Sussman v.

Eales , [1986] CarswellOnt 529, 25 C.P.C. (2d) 7 (C.A.) . In Sussman , the defendant made a complaint to the Royal College of Dental Surgeons about the plaintiff, a dentist. Mistakenly, the complaint was also sent to the president of the Waterloo Dental Society. The plaintiff sued the defendant for defamation for both filing the complaint and sending it to the unrelated third party. The applications judge dismissed the action finding that the defendant’s confidential complaint was immune from civil suit and the mistake in sending the complaint to a third party was inconsequential.

On appeal, the dismissal of the action in relation to the complaint to the college was upheld but the dismissal of the claim with respect to sending the complaint letter to the third party was overturned. The appellate court found that the distribution of the letter to an outside party constituted a publication which was not necessary to the initiation of the quasi-judicial proceeding. If any privilege attached to the letter, it would be at most, qualified privilege as distinct from absolute privilege. [73] There is a significant factual difference between this case and Sussman .

In Sussman , there was no question that the defendant had distributed the complaint to an outside party. In the case before me, it is not specifically alleged in the Statement of Claim that Holloway or Parsons released the reports. Kirby submits that this is, in part, what is alluded to in Paragraph 16 of the Statement of Claim where it is alleged that Holloway and Parsons “knowingly made false statements about Kirby and caused them to be made public.” Counsel for Kirby concedes, however, that Kirby does not know who released the reports.

It is Kirby’s intention, if the action survives, to utilize the discovery process to seek further information in an effort to substantiate the allegations concerning the release of the reports. [74] Civil actions should not be commenced without a factual foundation to support the allegations and certainly should not be brought against individuals on an unsubstantiated suspicion that they may have acted in a tortious manner. Kirby has not laid a factual foundation for Holloway or Parsons having released the reports.

Kirby admits that he is seeking to use the civil litigation discovery process after the commencement of an action to not only to attempt to acquire material facts to form the basis of the cause of action, but also to identify the perpetrator of the alleged tortious conduct for which he has already commenced action against Holloway and Parsons.

In my view, this is tantamount to utilizing litigation for a fishing expedition and is not appropriate. [75] I would add that the outcome sought by Kirby in alleging that Holloway or Parsons were responsible for the release of the reports is to further his action based in defamation as he alleges that the statements contained in the reports were defamatory.

The argument being that by releasing the reports, one or both of them, published false information that Kirby alleges defamed him. [76] Any action based in defamation where the defendant is not identified as the party who published the defamatory material is not sustainable. The inability to identify the defendant in a defamation action is a fatal defect in the pleading. Publication by the defendant is

an essential element of a defamation action (Botiuk v. Toronto Free Press Publications Ltd., (SCC), [1995] 3 S.C.R. 3 atparas. 75-76). [77] I cannot conclude that the House of Assembly’s parliamentary privileges over Holloway and Parsons’ statements contained inthe reports was waived simply because Kirby holds an unsubstantiated suspicion that one of them released the reports before the publicrelease by the House of Assembly.

Much more would be required to establish that the jurisdiction of the House of Assembly has beenousted and the Court could assume jurisdiction. [78] In my view, Sussman is further distinguishable from the circumstances of this case in that it dealt with documents that weresubject to witness immunity, not parliamentary privilege. In this case, I have found that the reports and the investigatory materials,including Holloway and Parsons’ statements contained therein, are subject to parliamentary privilege. When parliamentary privilegeapplies, the Court does not have jurisdiction over the subject matter.

Furthermore, the privilege belongs to the House of Assembly – notthe person who made the statements. Therefore, it is up to the House of Assembly to decide whether privilege is waived. If Kirby hadmaterial facts to substantiate that Holloway and/or Parsons released the reports, as members of the House of Assembly, they may havecommitted a breach of a privilege of the House of Assembly. That is a matter for the House of Assembly to determine as opposed toforming the basis of a civil action against that member.

Statements Made Outside the Complaint Process [79] I now turn to the submission by Parsons that statements allegedly made outside the Complaints or Complaint Process, asreferenced in paragraphs 12, 16, and 19 of the Statement of Claim, should also be covered by parliamentary privilege.

This submissionwas endorsed by Holloway. [80] For the reasons that follow, I find that statements allegedly made by Holloway and Parsons outside of the Complaints orComplaint Process are not covered by parliamentary privilege. [81] Paragraph 12 of the Statement of Claim includes an assertion that the public statements by Holloway and Parsons, and inconversations and correspondence with other political actors, constitute defamation. Paragraph 16, in part, alleges that Holloway andParsons knowingly made false statements about Kirby and caused them to be made public.

Paragraph 19 alleges that public statementsmade by Holloway and Parsons, in giving media interviews, and otherwise, demonstrate the malicious intent to damage the reputation ofKirby. [82] In Guergis v. Novak, 2013 ONCA 449, the plaintiff, a former member of Parliament and Cabinet Minister was removed fromcaucus and her ministerial position by then Prime Minister, Stephen Harper. The plaintiff commenced a civil action based in defamation,misfeasance in public office, and other torts against several defendants including the Prime Minister and members of Parliament.

Thedefendants were successful on a motion to have the action struck on the basis of it not disclosing a reasonable cause of action and asbeing an abuse of process. The motion judge’s dismissal of the action was upheld in all but one respect. The court of appeal stated thatthe tort claims arose from the plaintiff’s removal from Cabinet and caucus and were an attempt to get around the non-justiciability ofparliamentary privilege and the Prime Minister's exercise of prerogative power.

The court of appeal allowed, however, a claim ofdefamation to proceed against one of the defendants, a member of Parliament, who had made comments in a media interview about theremoval of the plaintiff from her positions. The statements made in the media interview were not protected from civil action. [83] Parsons submitted that a different result should result in this case from that of Guergis.

In doing so, she submitted that thescope of parliamentary privilege of freedom of speech should include public statements made by members of the House of Assembly ifthose statements were made in the course of advocating and performing their functions as members. [84] Parsons contends that the nature of the allegations against her in the Statement of Claim concerns her speech as a member ofthe House of Assembly.

Therefore, whether her impugned comments were made to Chaulk, to members of the House of Assembly, or tothe media, they were statements made in the course of her work as a member of the House of Assembly and should be protected by theparliamentary privilege of freedom of speech. [85] Counsel for Parsons submitted that traditionally advocacy by members of the House of Assembly was limited to the House ofAssembly. That was their performative venue where they advocated, questioned colleagues, and represented their constituents.

However,in contemporary times, much of that advocacy occurs in other public forums such as through the media and social media.

Therefore, itwas submitted that such public statements should be considered a necessary part of members of the House of Assembly performing theirlegislative function and covered by parliamentary privilege as if the statements were made within the confines of the House ofAssembly. [86] It must be remembered that the importance of parliamentary privilege in our democracy is to help preserve the constitutionalseparation of powers between the legislative, executive, and judicial branches of Government. [87] Parsons’ submission largely concentrates upon the advocacy role of a member of the House of Assembly as opposed to theoverall functioning of the legislative assembly.

The latter is the focus of the necessity test. The test demands that the sphere of activityover which parliamentary privilege is claimed be more than merely connected to the legislative assembly’s functions. The immunitysought must also be necessary to the legislative assembly’s constitutional role (Chagnon, at para 30).

[88] It would be a significant expansion of the scope of parliamentary privilege of freedom of speech to include media statementsand other forms of public speech by members outside of the House of Assembly, its internal processes, or committees. Proof of necessityis required to establish the scope of a category of privilege.

Parsons has not established, on the Application, that immunity from civil suitfor such communications is necessary to the House of Assembly’s constitutional role. [89] I am not prepared to expand the scope of the parliamentary privileges claimed to the statements alleged to have been made byHolloway or Parsons external to the Complaints and the Complaint Process. [90] I will now turn to address Parsons’ alternative submission that the allegations regarding these external statements should bestruck as disclosing no reasonable cause of action, as they are vague and unspecified. (

b) Striking the pleading due to vague and unspecified allegations [91] Paragraphs 12, 16, and 19 of the Statement of Claim contain vague and unspecified references to statements allegedly made byHolloway and Parsons outside the Complaints and the Complaint Process.

I have concluded that those statements are not covered byparliamentary privilege. [92] Parsons contended that if the alleged defamatory statements were not covered by parliamentary privilege, they shouldnonetheless be struck as disclosing no reasonable cause of action due to the vagueness of the allegations and lack of specificity. [93] Kirby concedes that specific defamatory statements allegedly made by Holloway and Parsons have not been pled.

If the actionbased in defamation survives the Applications to strike, it is his intention to amend the Statement of Claim to include the specificstatements and material facts to support the cause of action. [94] For the reasons that follow, I find that the allegations contained in paragraphs 12, 16 and 19 of the Statement of Claims are notsufficient to found a cause of action in defamation.

I am prepared however to allow Kirby an opportunity to amend the Statement ofClaim with respect to those paragraphs to plead the requisite material facts. [95] The issue of the sufficiency of pleadings in the context of providing material facts to substantiate the relevant cause of actionwas dealt with by Green J. (as he then was) in Petten v. E.Y.E. Marine Consultants (1994), (NL SC), 120 Nfld. &P.E.I.R. 313, 373 A.P.R. 313 (Nfld.

S.C.(T.D.)), at para 95: The basic notion behind Rules 14.03, 14.11 and 14.24 is that pleadings should be so framed that they contain all material facts in asufficiently clear, organized and concise form such that all the constituent elements of each cause of action being alleged are set out. Thedefendant is entitled to know the causes of action to which he or she must respond and the nature of the factual basis upon which each ofthe causes of action is alleged to be founded.

This is merely an exemplification of one of the general themes of the Rules: conduct ofproceedings must be characterized by disclosure so that other parties will not be taken by surprise. The defendant must not be left tospeculate or guess the particulars of the case alleged against him or her or of the remedy sought: Genge v. F.B.D.B. (1990), (NL SC), 85 Nfld. & P.E.I.R. 275 (NF S.C., T.D.). [96] Given the technical nature of the tort of defamation, pleadings are of critical importance.

The requirement to plead certainmaterial facts in a defamation action has been subject to much judicial and academic commentary. [97] In Tupper v. Wheeler, 2005 NSCA 74, the Nova Scotia Court of Appeal found the statement of claim in a defamation action tobe deficient in that it failed to set out any details of the alleged defamatory comments, such as to whom they were made, when they weremade, or to include the words themselves or their essence. [98] In Miller v.

Squires, 2008 NLTD 25, Hoegg J. (as she then was), at paragraph 11 stated, “In a defamation suit, the materialfacts supporting the constituent elements of defamation must be pleaded." [99] The constituent elements of defamation were set out by the Supreme Court in Grant v. Torstar Corp., 2009 SCC 61 atparagraph 28.

The plaintiff must prove three elements: 1) the defendant made a defamatory statement, in the sense that the impugnedwords would tend to lower the plaintiff's reputation in the eyes of a reasonable person; 2) the words in fact referred to the plaintiff; and 3)the words were communicated to at least one person other than the plaintiff. Where these steps are met, falsity of the words and damagesare presumed and then the onus shifts to the defendant to advance an applicable defence. [100] Historically in a defamation action, the plaintiff was required to plead the exact words that were alleged to be defamatory.

Thatrequirement has been more relaxed in recent case law where the plaintiff is not able to state with certainty at the pleading stage theprecise words published by the defendant (Lysko v. Braley (2006), (ON CA), 212 O.A.C. 159, 79 O.R. (3d) 721(C.A); Hope v. Gourlay 2015 SKCA 27; Hynes v. Pro Dive Marine Services Ltd. 2016 NLCA 17). [101] However, even when it is not possible to identify the exact words, the plaintiff is nonetheless required to provide sufficientparticularity to enable the defendant to know the case that has to be met. [102] In Hope v.

Gourlay at paragraph 25, the Saskatchewan Court of Appeal stated: A plaintiff must, of course, identify the exact words at the root of a claim for defamation if that is possible. But, when it is not, a claimmight still be allowed to stand if the pleading nonetheless identifies the offending communication with sufficient precision andparticularity that the defendant knows the case against him or her and is able to plead to it and prepare his or her defence.

Anyassessment in this regard must be undertaken with an appreciation for the fact that, in a defamation action, the words said to bedefamatory are the very heart of the plaintiff's claim. The defendant should not be required to shoot at a fuzzy or a moving target. [103] Paragraphs 12, 16, and 19 of the Statement of Claim are clearly deficient in terms of what is required to be pled for a defamationaction. The crucial “what” was said is not pled. As well, the pleading lacks the specifics of “to whom” the statements were made and

“when” the statements were allegedly made. [104] Paragraph 12 simply alleges that statements of Holloway and Parsons made in public and in conversations and correspondence with other political actors, constitute defamation. Paragraph 16, merely alleges that Holloway and Parsons knowingly made false statements about Kirby and caused them to be made public. Paragraph 19, just alleges that the public statements made by Holloway and Parsons in giving media interviews, and otherwise, demonstrate the malicious intent of the defendants and their intent to damage Kirby’s reputation.

No particulars are given as to what was alleged to have been said, to whom, and when such statements allegedly occurred. This is woefully inadequate to establish a cause of action in defamation. It is also insufficient to permit Holloway or Parsons to respond. [105] Paragraphs 12, 16, and 19 must disclose the alleged defamatory words with sufficient precision and particularity that Holloway and Parsons will know the case against him or her and be able to plead to it.

As well, it is expected that Kirby would plead the identity of the parties referenced in each paragraph to whom it is alleged the statements were made and when such statements occurred. [106] I have concluded that the Statement of Claim does not contain the material facts to support an action based in defamation. Before striking the offending paragraphs, however, I am to determine whether an amendment of the Statement of Claim would cure the defect ( Humby Enterprises Limited v. A.L.

Stuckless & Sons Ltd. , 2003 NLCA 20 ). [107] It is only the paragraphs regarding the alleged defamation outside the Complaints and the Complaint Process that have survived the Applications to strike on the basis of parliamentary privilege. If I were to strike these paragraphs, the entire action would be struck. [108] Kirby relies upon Hynes v . Pro Dive Marine Services Ltd ., 2014 NLTD(G) 3, in asking the court for an indulgence in permitting him an opportunity to amend the pleading as opposed to striking it out.

In Hynes , Hurley, J. dealt with an application to strike a pleading due to insufficient material facts having been pled to substantiate a cause of action in defamation. Notwithstanding that the plaintiff had previously amended the Statement of Claim, the Court allowed the plaintiff a further opportunity to amend to include the requisite material facts. [109] I am mindful of the caution given by the Court of Appeal in Montreal Trust Co. v.

Hickman , that striking a pleading is a drastic step and that before doing so the court should consider whether the deficiency can be cured by either an amendment to plead specific facts or by way of an order for particulars.

At paragraph 12, the court stated: There will be many situations where a cause of action cannot be said to exist on the material facts as pleaded but it will be apparent what the intent of the pleader is and that by the addition of omitted material facts upon which the claimant will be relying or the variation of existing pleaded material, a cause of action known to the law would be said to exist.

It would be unfair to the pleader in such circumstances, and a violation of the principle that cases should, if possible, be disposed of on their merits, to strike the claim without allowing the pleader an opportunity to attempt to cure the defect (but with, perhaps, appropriate penalties in costs). [110] I am to assume that the facts as stated in the pleading can be proven and, then, reading the claim generously, assess whether it is plain and obvious that the Statement of Claim discloses no reasonable cause of action.

Put another way, the claim has no reasonable prospect of success. [111] In applying this test, however, I must distinguish between allegations of fact and conclusions of law. The latter are not presumed to be proven for the purpose of determining whether a pleading discloses a reasonable cause of action. For example, in this case, the allegations contained in paragraph 12 of the Statement of Claim that the alleged statements by Holloway and Parsons constituted defamation is not an allegation of fact.

It is a conclusion of law. [112] Although very little in the way of the material facts to support a claim in defamation have been pled, based upon a generous reading of Kirby’s claim, I cannot find that it is plain and obvious that the pleading discloses no reasonable cause of action.

Rather, although lacking significant and material facts, it is apparent that Kirby is alleging there were defamatory statements made by Holloway and Parsons about him and that the statements were made public. [113] I conclude that there is sufficient indication in the Statement of Claim of a potential cause of action in defamation against Holloway and Parsons. To borrow the analogy utilized by Green J.A, in Montreal Trust Co. v. Hickman , the “bare bones” of a cause of action has been made out.

What is missing is the flesh on the skeleton to provide the crucial material facts required of an action based in defamation. If this is done, the defective pleading could be cured. [114] Kirby has not previously sought to amend the Statement of Claim. Instead of taking the draconian measure of striking the action altogether, I am prepared to allow Kirby thirty (30) days from the filing of the Order to file an Amended Statement of Claim to cure the deficiencies in the pleading.

If he does not file an Amended Statement of Claim addressing the issues identified in this decision within the time stipulated, the Statement of Claim, in its entirety will be struck as disclosing no reasonable cause of action. (

c) The Applicability of Witness Immunity [115] As an alternative argument Holloway submitted that if the allegations in the Statement of Claim pertaining to the Complaints and the Complaints Process were not struck due to the applicability of parliamentary privilege, then they should be struck as disclosing no reasonable cause of action because such statements are covered by witness immunity. [116] I have determined that the majority of the allegations are protected from civil suit by parliamentary privilege.

This includes the statements made by Holloway and Parsons in the Complaints and those throughout the Complaint Process. [117] In Neary v. Fagan , 2016 NLTD(G), at paragraph 15, Stack, J. provided a useful

summary of the principle of witness immunity: The witness immunity rule is part of a larger immunity which applies to participants in judicial or quasi-judicial proceedings. An absolute privilege or immunity attaches to those communications which take place during, incidental to and in the processing and furtherance of judicial or quasi-judicial proceedings. No civil action can be brought in respect of words spoken or written during the ordinary course of

those proceedings. The protection of this privilege extends to all the participants in the judicial or quasi-judicial proceeding, including the judge, jury members, witnesses, parties and their counsel. [118] I do not need to apply the principle of witness immunity in this case as the statements that Holloway contends it would protect, are protected by parliamentary privilege. [119] Neither parliamentary privilege nor witness immunity, however, apply to the alleged defamatory statements made by Holloway and Parsons outside the Complaints or the Complaint Process.

Conclusion on Issue 1: No reasonable cause of action [120] All allegations founding the causes of action of misfeasance in public office, breach of statutory duty, and malicious prosecution are subject to parliamentary privilege. Therefore, these allegations are struck as disclosing no reasonable cause of action. [121] With respect to the cause of action based in defamation, parliamentary privilege applies to the Complaints and any statements made by Holloway or Parsons through the Complaint Process.

Therefore any allegations of defamation referencing these statements are struck as disclosing no reasonable cause of action. [122] The allegations of defamation concerning alleged media and other statements made by Holloway and Parsons outside the Complaint Process as referenced in paragraphs 12, 16, and 19 of the Statement of Claim are not covered by parliamentary privilege. However the requisite material facts have not been pled to make out a defamation cause of action. Kirby shall have thirty (30) days from the filing of the Order to file an Amended Statement of Claim to address these deficiencies.

If he does not do so, the entire claim will be struck. [123] Details of the specific paragraphs of the Statement of Claim that are struck, or are to be amended, are set out below in the

Summary and Disposition

section of this decision. Issue 2: Should the Statement of Claim or any part thereof be struck pursuant to Rule 14.24(1)(

b) as being false, scandalous, frivolous or vexatious? [124] Rule 14.24(1)(

b) of the Rules provides that: 14.24(1) The Court may at any stage of a proceeding order any pleading, affidavit or statement of facts, or anything therein, to be struck out or amended on the ground that … (

b) it is false, scandalous, frivolous or vexatious; [125] Parsons raised 14.24(1)(

b) as an alternative basis to strike the allegations in the Statement of Claim. Based on Parsons’ Memorandum of Fact and Law, it appears this submission focuses on the allegations of defamation arising from the Complaint and the Complaint Process. These allegations have already been struck as being subject to parliamentary privilege. [126] I will nonetheless consider whether Parsons’ statements and communications allegedly made outside the process that have survived the

section 14.24(

a) portion of the Applications to strike, should be struck as being false, scandalous, frivolous or vexatious. [127] With respect to whether this aspect of the pleading is false or scandalous, there is no evidence before the Court on the Applications to assess the veracity or merits of the allegations. I cannot conclude at this stage that the cause of action in defamation is false or scandalous so as to be struck pursuant to Rule 14.24(1)(b). [128] The meaning of frivolous or vexatious under Rule 14.24(1)(

b) was considered by the Court of Appeal in Hynes v. Pro Dive Marine Services Ltd. , at paragraph 13 : The meaning of frivolous or vexatious under rule 14.24(1)(

b) is discussed in Walsh v. Johnson , 2010 NLCA 6 , 293 Nfld. & P.E.I.R. 101 . A frivolous action is one that has "no substance", or "is obviously unsustainable or without arguable merit" (paragraphs 19 and 21). A vexatious action is [20] ... one that is brought for an improper purpose such as to harass, annoy or embarrass a party and not for the legitimate purpose of seeking the vindication of legal rights.

A frivolous action may also be vexatious if the respondent is required "to engage counsel and respond to something that cannot succeed ... because it would be an abuse of the court's process" (paragraph 21). [129] The most that can be gleaned from the Statement of Claim is that Kirby is alleging Holloway and Parsons made unspecified defamatory statements about him to others, including the media. For the reasons articulated above, this is an inadequate pleading to found a cause of action in defamation.

I cannot, however, on the basis of what is before the Court on these Applications, conclude that the action has no substance, has been brought for an improper purpose, or is an abuse of the court’s process in terms of it requiring Holloway or Parsons to respond to something that cannot succeed.

[130] Therefore, Parsons has not met the onus of establishing that the allegations regarding statements and communications made by the Defendants outside the Complaint Process should be struck as being false, scandalous, frivolous or vexatious. Issue 3: Should the Statement of Claim, or any part thereof, be struck as being an abuse of process pursuant to Rule 14.24(2)(d)? [131] Parsons raised this as an alternative ground for striking the action.

The submission being that the action is an abuse of process because it concerns matters subject to parliamentary privilege that are not reviewable by the Court and intrude upon the exclusive jurisdiction of the House of Assembly. [132] In essence, the submission is that Kirby is seeking to litigate the Complaints which were investigated and dealt with by the House of Assembly through its process. [133] The only remaining aspect of the Statement of Claim that has survived the Rule 14.24(1)(

a) analysis is the cause of action based in defamation arising from Holloway and Parsons alleged public comments which were not part of the Complaint or the Complaint Process. Therefore, Rule 14.24(1)(

d) is of no benefit to Holloway or Parsons with respect to those comments. [134] Although not raised by Parsons, I would add that I have dealt with the conclusory type statements that have been improperly pled (which could also give rise to a Rule 14.24(1)(

d) basis to strike) in the

section of this decision dealing with the lack of material facts pled. Rather than strike the pleading, I have allowed Kirby an opportunity to amend those portions of the Statement of Claim. Costs [135] Holloway and Parsons were substantially successful on their Applications. Holloway and Parsons asked the Court to award costs to them on a greater scale than Column 3. This is because they filed Memoranda of Fact and Law primarily devoted to the issue of parliamentary privilege and counsel for Holloway and Parsons prepared for the hearing on the understanding that was the key issue.

They learned for the first time during oral submissions that Kirby was conceding that most of the allegations in the Statement of Claim were covered by parliamentary privilege and going forward with the action he would concentrate on the defamation cause of action. [136] Kirby took a reasonable course of action in evaluating and discontinuing the action against Chaulk and the Government. He did not, however, conduct a timely re-evaluation of the action against Holloway and Parsons in terms of paring down the causes of action that truly remained in contention.

There was ample time from the filing of the Applications until the hearing date for such an evaluation to have occurred. [137] I accept the submission of counsel for Holloway and Parsons that a considerable amount of time, effort, and expense went in to the preparation of Applications largely on the issue of the applicability of parliamentary privilege.

This may not have been warranted had they had clear communication from Kirby as to his intention to narrow the focus of the litigation going forward. [138] Although Holloway and Parsons have not been entirely successfully in the Applications, had I not granted an opportunity for Kirby to amend the pleading, the entirety of the action would have been struck. I am exercising my discretion and awarding costs to each of them on their respective Applications as against Kirby. I am not prepared, however, to award costs on a basis greater than Column 3 of the Scale of Costs in the Appendix to Rule 55 of the Rules.

summary and disposition [139] The Applications are granted, in part, on the following basis:

(1) The last sentence of paragraphs 3 and 4 of the Statement of Claim and the entirety of paragraphs 7, 8, 9, 10, 11, 17, 18, 30, 31 of the Statement of Claim are struck as their contents relate to matters to which parliamentary privilege applies and therefore disclose no reasonable cause of action;

(2) Paragraph 12 of the Statement of Claim is struck except for the allegation that the statements of the Second and Third Defendants in subsequent public statements and in conversations and correspondence with other political actors constitute defamation;

(3) The surviving portion of paragraph 12 is a deficient pleading and is to be amended to plead the material facts of the defamation cause of action that has survived the Applications;

(4) Any explicit or implied reference to the Complaints or Complaint Process in paragraphs 13, 14 and 15 of the Statement of Claim is struck. Otherwise the allegations in these paragraphs may remain to support the allegations contained in the surviving portions of paragraphs 12, 16 and 19 of the Statement of Claim;

(5) The last line in paragraph 16, “and caused the Plaintiff to be subjected to a disciplinary process based on allegations which they knew or ought to have known had no merit” is struck;

(6) The surviving portion of paragraph 16 is a deficient pleading. It is to be amended to plead the material facts of the defamation

cause of action that has survived the Applications;

(7) Paragraph 19 is a deficient pleading. It is to be amended to plead the material facts of the defamation cause of action;

(8) Paragraphs 33, 34, 36 and 37 are to be amended to reference only damages and losses claimed to result from the cause of action based in defamation that has survived the Applications;

(9) Paragraph 35 is to be amended to plead only the legislation upon which the defamation cause of action is based;

(10) Paragraphs 2, 5, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30 and 32 are to be removed from the Amended Statement of Claim to reflect that the action has been discontinued against Chaulk and the Government and paragraph 6 as well as the style of cause are to be amended accordingly;

(11) The Amended Statement of Claim shall be filed within thirty (30) days following the filing of the Order failing which the entire action shall be struck as being a deficient pleading in that it discloses no reasonable cause of action; and

(12) Holloway and Parsons shall have their costs against Kirby on Column 3 of the Scale of Costs in the Appendix to Rule 55 of the Rules . _____________________________ Sandra R Chaytor Justice [1] By Order April 30, 2021, the Applications were heard at the same time as applications to strike brought by the Defendants in a similar action commenced by Edward Joyce [action number: 202004G0069 4056]. A separate decision regarding those Applications is issued at the same time as this decision.