Edward Joyce Plaintiff And: Sherry Gambin-Walsh First Defendant And: Bruce Chaulk Second Defendant And: Perry Trimper Third Defendant And: Dwight Ball Fourth Defendant, 2022 NLSC 179

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Joyce v. Gambin-Walsh , 2022 NLSC 179 Date : December 22, 2022 Docket : 202004G0069 Between: Edward Joyce Plaintiff And: Sherry Gambin-Walsh First Defendant And: Bruce Chaulk Second Defendant And: Perry Trimper Third Defendant And: Dwight Ball Fourth Defendant Before: Justice Sandra Chaytor Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: December 8-9, 2021

Summary: The Plaintiff, a member of the House of Assembly of Newfoundland and Labrador, brought this action against another member, Gambin- Walsh; the former Commissioner for Legislative Standards, Chaulk; the former Speaker of the House of Assembly, Trimper; and former Premier Ball. The action centres upon a complaint made by Gambin-Walsh to Chaulk against Joyce alleging that Joyce breached provisions of the Code of Conduct for Members of the House of Assembly . The complaint was investigated and opined upon by Chaulk pursuant the House of Assembly Accountability, Integrity and Administration Act .

Joyce was ultimately sanctioned by the House of Assembly as a result of Chaulk’s findings. Joyce seeks damages against the Defendants for their respective roles played in the circumstances surrounding the complaint, its investigation, his sanctioning, and his removal from Cabinet and the Liberal Caucus. The Defendants brought applications to strike the Statement of Claim primarily pursuant to Rule 14.24(1)(

a) as disclosing no reasonable cause of action on the basis that parliamentary privilege applied and therefore the Court lacked jurisdiction to adjudicate the matter. Held: The Statement of Claim as against Chaulk and Trimper is struck in its entirety as disclosing no reasonable cause of action due to the applicability of parliamentary privilege. The Statement of Claim as against Ball is struck in its entirety as disclosing no reasonable cause of action due to the applicability of parliamentary privilege or Crown prerogative.

The allegations contained in the Statement of Claim against Gambin-Walsh upon which the causes of action of misfeasance in public office and malicious prosecution are struck out as disclosing no reasonable cause of action due to the applicability of parliamentary privilege. The allegations supporting the defamation cause of action based upon the complaint, statements made by Gambin-Walsh in the complaint process, or which rely upon information contained in Chaulk’s investigative report, are struck as disclosing no reasonable cause of action due to the applicability of parliamentary privilege.

Allegations founding the defamation cause of action based on statements made by Gambin-Walsh to the media are not covered by parliamentary privilege. This aspect of the pleading however is deficient as it lacks the material facts to support the cause of action. Rather than strike the pleading the Court allowed the Plaintiff time to file an amended Statement of Claim. The Defendants are awarded their costs on a Column 3 basis. Appearances: J. John Noseworthy Appearing on behalf of the Plaintiff Augustine F. Bruce, K.C. Appearing on behalf of the First Defendant Andrew A. Fitzgerald, K.C.

Appearing on behalf of the Second Defendant Bernard M. Coffey, K.C. Appearing on behalf of the Third Defendant Gregory M. Smith, K.C. Appearing on behalf of the Fourth Defendant

Authorities Cited: CASES CONSIDERED: Walsh v. TRA Co., 2007 NLCA 50; Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42; Atlantic LotteryCorp. Inc. v. Babstock, 2020 SCC 19; Operation Dismantle Inc. v. R., [1985] 1 S.C.R. 44; Montreal Trust Co. v. Hickman, 2001 NFCA42; Canada (House of Commons) v. Vaid, 2005 SCC 30; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House ofAssembly), (SCC), [1993] 1 S.C.R. 319; Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018SCC 39; Saunders v. Nunatsiavut Government, 2022 NLSC 142; Harvey v.

New Brunswick (Attorney General), (SCC),[1996] 2 S.C.R. 876; Tafler v. British Columbia (Commissioner of Conflict of Interest), (1998) (BC CA), 108B.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; Royal Canadian Mounted Police DeputyCommissioner v. Canada (Attorney General), 2007 FC 564; 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;Humby Enterprises Limited v. A.L. Stuckless & Sons Ltd., 2003 NLCA 20 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] Edward Joyce is a long-standing member of the House of Assembly of Newfoundland and Labrador and a former CabinetMinister. He commenced this action against another member of the House of Assembly, Sherry Gambin-Walsh; the Commissioner forLegislative Standards for the Province, Bruce Chaulk; the Speaker of the House of Assembly, Perry Trimper; and the Premier of theProvince, Dwight Ball.[1] [2] In 2018, Gambin-Walsh made allegations of harassment and intimidation against Joyce as a member of the House ofAssembly.

On June 7, 2018, Gambin-Walsh submitted a request to Chaulk, as the Commissioner of Legislative Standards, pursuant tosection 36(1) of the House of Assembly Accountability, Integrity and Administration Act, S.N.L 2007, c. H-10.1 (the “HAAIA Act”)seeking an opinion on Joyce’s conduct (the “Complaint”). In the Complaint, Gambin-Walsh contended that Joyce had breached severalprovisions of the Code of Conduct for Members of the House of Assembly (the “Code of Conduct”). [3] Chaulk conducted an inquiry into the Complaint pursuant to the HAAIA Act (the “Complaint Process”).

This culminated with areport dated October 18, 2018 (the “Joyce Report”). Chaulk concluded that Joyce had breached one principle of the Code of Conductand recommended that Joyce be reprimanded. [4] The Joyce Report was submitted to the Management Commission of the House of Assembly (“Management Commission”).

Itwas then tabled in the House of Assembly and debated following which Joyce was sanctioned by the House of Assembly. [5] Joyce subsequently commenced this civil action on April 16, 2020 seeking damages against the Defendants for their respectiveroles played in the circumstances surrounding the Complaint, the Complaint Process, and his ultimate sanctioning by the House ofAssembly. Joyce alleges that he has suffered damages because of the Defendants’ actions and statements.

He claims “losses, includingbut not limited to, being removed from Cabinet, having to resign from Liberal caucus” as well as “damage[s] to his reputation” and“financial losses including salary and pension entitlements.” [6] No Defences have yet been filed. In response to the Statement of Claim, each Defendant filed an application to strike it outpursuant to Rule 14.24 of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. C-42, Sch. D. (the “Rules”). [7] The primary basis of each Application is Rule 14.24(1)(a): the Statement of Claim discloses no reasonable cause of action.

TheDefendants submit that because the allegations founding the Statement of Claim are the subject matter of parliamentary privilege, theCourt lacks jurisdiction over the proceeding. In particular, they contend that two parliamentary privileges apply: (1) the House ofAssembly’s privilege over the control of its own process, including its disciplinary authority over its members; and (2) the parliamentaryprivilege of freedom of speech. [8] 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 is

because p arliamentary privilege ensures that legislative bodies have the ability to manage their own decisions and processes without interference from the Court. [ 9 ] Therefore, if I determine that parliamentary privilege applies to the entirety of the allegations in the Statement of Claim, the Court lacks jurisdiction to adjudicate the action. [ 10 ] If I do not find that parliamentary privilege applies, the Defendants raise alternative grounds to strike the action. [ 11 ] Ball, in bringing his Application to strike pursuant to Rule 14.24(1)(a), also relies upon Crown prerogative.

He contends that the allegations against him as Premier concerning the removal of Joyce from Cabinet and caucus would require the Court to review actions and processes that fall within the scope of Crown prerogative. Such a review by the Court, he submits, is precluded. [ 12 ] All the Defendants alternatively rely upon Rule 14.24(1)(d): that the action should be struck as it is an abuse of process. In this regard, they contend that Joyce is seeking to litigate the Complaint and Complaint Process that has already been dealt with by the House of Assembly.

They submit this is a collateral attack on the proceedings of the House of Assembly and therefore constitutes an abuse of process. [ 13 ] Trimper and Ball also base their respective Applications alternatively on Rule 14.24(1)(b): that the action is frivolous and vexatious. They each also seek the alternative remedy of being removed as a party to the action pursuant to Rule 7.04(2)(

a) should the action survive against other Defendants. [ 14 ] This is my decision on the merits of the Applications to strike. [2] issues [ 15 ] The issues to be determined are: 1. Should the Statement of Claim be struck out against any of the Defendants pursuant to Rule 14.24(1)(

a) as disclosing no reasonable cause of action? In answering this question, it is necessary to address: (

a) The applicability of parliamentary privilege to the allegations in the Statement of Claim; and (

b) The applicability of Crown prerogative to the allegations against Ball. 2. Alternatively, should the Statement of Claim be struck out against any of the Defendants as being an abuse of process pursuant to Rule 14.24(1)(d)? 3. Alternatively, with respect to Trimper and Ball should the Statement of Claim be struck out pursuant to Rule 14.24(1)(

b) on the ground that it is frivolous or vexatious? 4. Alternatively, should Trimper and Ball be removed as parties pursuant to Rule 7.04(2)(a)? [ 16 ] For the reasons that follow, I have decided that: 1. With respect to the action as against Gambin-Walsh: (

a) The allegations that Gambin-Walsh defamed Joyce to the media survive the Applications to strike. These statements are not covered by parliamentary privilege. Furthermore, abuse of process does not pertain to these allegations as the alleged statements were not part of the Complaint Process. (

b) All other allegations against Gambin-Walsh contained in the Statement of Claim are struck out as disclosing no reasonable cause of action. These allegations encroach on matters that fall within the scope of the House of Assembly’s parliamentary privilege to discipline its members or the parliamentary privilege of freedom of speech. The Court has no jurisdiction to adjudicate these matters. 2. With respect to the action as against Chaulk and Trimper, the Statement of Claim is struck out in its entirety as disclosing no

reasonable cause of action. The claims against these Defendants encroach upon matters that fall within the scope of the House ofAssembly’s parliamentary privilege to discipline its members or the parliamentary privilege of freedom of speech. The Court has nojurisdiction to adjudicate these matters. 3.

With respect to the action as against Ball, the Statement of Claim is struck in its entirety on the basis of disclosing no reasonablecause of action as the claims against him encroach upon matters that fall within either the scope of the House of Assembly’sparliamentary privilege to discipline its members or parliamentary privilege of freedom of speech, or Crown prerogative. 4.

Given the dismissal of the action against Chaulk, Trimper and Ball based upon the Statement of Claim disclosing no reasonablecause of action, there is no need to address the alternative grounds for dismissal raised by those Defendants. analysiS Issue 1: Should the Statement of Claim be struck out against any of the Defendants pursuant to Rule 14.24(1)(

a) as disclosingno reasonable cause of action? The Test to Strike a Claim on the Basis of Rule 14.24(1)(a) [17] 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; [18] In Walsh v. TRA Co., 2007 NLCA 50, the Court of Appeal held that a claim will be struck pursuant to Rule 14.24(1)(

a) only ifit is plain and obvious that it has no chance of success. [19] In Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42, at paragraph 17, the Supreme Court articulated that a claim shouldbe struck if it has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should be allowed toproceed to trial. [20] 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. [21] 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 notto be 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). [22] In determining applications to strike, the Court must bear in mind, as cautioned by the Newfoundland and Labrador Court ofAppeal in Montreal Trust Co. v. Hickman, 2001 NFCA 42, that striking a pleading is a drastic step.

Before making an order to strike, theCourt should consider whether the deficiency can be cured by either an amendment to plead specific facts or by way of an order forparticulars. [23] I now turn to the analysis of whether the Defendants have established on a balance of probabilities that, assuming the facts pledare 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. [24] This analysis begins with a review of the Statement of Claim.

I will provide a general overview of the whole of the Statementof Claim followed by a breakdown of the specific allegations against each Defendant. Review of the Statement of Claim General Overview of the Statement of Claim [25] The Statement of Claim is quite detailed.

It is 40 pages in length and comprised of 241 paragraphs. [26] The Statement of Claim centres upon the Complaint, the Complaint Process, Chaulk’s findings in the Joyce Report, and thecircumstances leading up to and including the tabling of the Joyce Report before the House of Assembly. [27] Each Defendant is described as a holder of public office and the allegations detail each of their statements, actions and inactionsin relation to the Complaint, the Complaint Process and its aftermath. The action against all Defendants is based in the tort ofmisfeasance in public office.

As well, other causes of action are alleged against each Defendant as noted below in the summaries of theclaims against each Defendant. [28] Joyce claims he has suffered losses, including having been removed from Cabinet. He seeks jointly and severally against theDefendants over $400,000 in special damages (including diminished income, salary, and pension) in addition to general damages. Joyce

further alleges that the Defendants acted with malice, and bad faith, and outside their authority and jurisdiction. Thus, he claims entitlement to punitive, aggravated and exemplary damages. The Claim against Gambin-Walsh [ 29 ] The allegations against Gambin-Walsh comprise a significant portion of the Statement of Claim. They are set out in paragraphs 6 through 125. [ 30 ] The allegations chronicle Gambin-Walsh making a complaint to Ball on April 25, 2018, resulting in Joyce’s removal from Cabinet and his subsequent resignation from the Liberal caucus.

It continues with a narrative of Gambin-Walsh’s submission of the Complaint to Chaulk.

Joyce claims that the allegations of bullying and harassment made by Gambin-Walsh were untrue and known by her to be untrue. [ 31 ] The Statement of Claim contains an emboldened heading entitled “The First Defendant’s June 7, 2018 Complaint.” Within this heading are sub-headings dealing with specific subject matters raised in the Complaint and Joyce’s response to those issues at the time it was investigated by Chaulk. [ 32 ] This is followed with a breakdown of the allegations supporting the individual causes of action alleged against Gambin-Walsh set out in the following headings: Defamation (paragraphs 68 – 98); Misfeasance in Public Office (paragraphs 99 - 109); and Malicious Prosecution (paragraphs 110- 125). [ 33 ] With the exception of paragraphs 64 and 84 (which references statements allegedly made by Gambin-Walsh to the media), the allegations asserted against Gambin-Walsh supporting the causes of action alleged relate to her statements and actions made in the course of the Complaint and the Complaint Process.

The Claim against Chaulk [ 34 ] Paragraphs 126 to 195 of the Statement of Claim deal specifically with the allegations against Chaulk. This portion of the Statement of Claim is divided into headings based on the causes of action alleged against Chaulk being: Defamation (paragraphs 126- 155); Malicious Prosecution (paragraphs 156 – 168); Negligent Investigation (“paragraphs 169-178): and Misfeasance in Public Office (paragraphs 179-195). [ 35 ] Paragraphs 3, 126 and 170 of the Statement of Claim make it clear that the action against Chaulk is based upon his role as the Commissioner for Legislative Standards.

Reference is made to Chaulk’s duty to handle matters related to the Code of Conduct and the requirement that he act pursuant to his legislative authority and not act in bad faith. [ 36 ] It is alleged that Chaulk, as an officer of the House of Assembly responsible for Legislative Standards, had a duty of care towards members of the House of Assembly and that he breached his duty to act in good faith in failing to remain independent and avoid conflicts of interest. [ 37 ] With respect to each cause of action it is alleged that Chaulk exceeded the authority conferred on him by legislation and acted in bad faith (or lack of good faith) towards Joyce. [ 38 ] With respect to the allegations of defamation, the Statement of Claim references statements written by Chaulk in the last two paragraphs of the Joyce Report and Chaulk’s alleged comments in a technical briefing of the Joyce Report to the Management Commission. [ 39 ] With respect to malicious prosecution, the Statement of Claim focuses on Chaulk’s conclusion that Joyce violated a principle of the Code of Conduct for which it is alleged there was no factual basis or legal authority.

Joyce claims that but for this finding, the Complaint Process would have been fully resolved in his favour. [ 40 ] With respect to negligent investigation, it is alleged that Chaulk fell below the standard of a reasonable investigator. It is alleged that in the Complaint Process, Chaulk denied Joyce procedural fairness, failed to be independent, and made misleading and false statements in the Joyce Report and to the Management Commission. [ 41 ] Similar allegations are made with respect to misfeasance in public office.

It is alleged that Chaulk did not comply with statutory requirements such as meeting the time line to file the Joyce Report; that he made false statements about Joyce’s willingness to participate in the process; and exceeded his authority in making a finding that was not applicable to the circumstances. [ 42 ] Overall, it is alleged that Chaulk’s words, actions, and omissions throughout the Complaint Process caused Joyce damages.

The Claim against Trimper [ 43 ] Paragraphs 196 to 214 of the Statement of Claim deal specifically with the allegations against Trimper. [ 44 ] The cause of action alleged against Trimper is misfeasance in public office.

The allegations concern his actions and rulings in his capacity as Speaker of the House of Assembly and as Chair of the Management Commission in relation to the Complaint, the Complaint Process, and the Joyce Report. [ 45 ] Paragraph 197 states that at all material times Trimper was Speaker of the House of Assembly and the Chair of the Management Commission and therefore had statutory powers and duties to fellow members of the House of Assembly and to the public as to how these powers are exercised.

It also states that as an elected member of the House of Assembly he has statutory powers and duties pursuant to the HAAIA Act . [ 46 ] As Chair of the Management Commission, it is alleged that during a technical briefing of the Management Commission in

which Chaulk presented his findings in the Joyce Report, Trimper withheld information and allowed Chaulk to give false information. [47] As Speaker of the House of Assembly, it is alleged that Trimper allowed false information to go before the House of Assemblyregarding Joyce. As well, that Trimper limited Joyce in asking questions about the Complaint or the Joyce Report in the House ofAssembly. Joyce alleges that he stood on three Points of Privilege to attempt to resolve the matter in the House of Assembly.

Two ofthese attempts were denied by Trimper and the third was pending at the time of issuance of the Statement of Claim. [48] Overall, the Statement of Claim alleges that Trimper breached his statutory duty, exceeded his authority, and acted maliciouslyand in bad faith toward Joyce. As a result, it is alleged that Joyce was prevented from making full answer and defence to the Complaintand consequently suffered damages. The Claim against Ball [49] There is one cause of action alleged against Ball: misfeasance in public office.

The specific allegations in support of the claimare set out in paragraphs 215 to 232 of the Statement of Claim. [50] The action against Ball is based on his actions or inactions in his role as an member of the House of Assembly and as thePremier. It is alleged that in those roles, Ball had a statutory duty to act in good faith towards Joyce pursuant to the HAAIA Act and thathis actions or omissions “in the course of the disciplinary process” were unlawful in that they were contrary to his statutory duty. [51] Paragraph 218 contains allegations related to Joyce’s removal from Cabinet.

It references a discussion between Ball and Joyceculminating in Joyce’s removal from Cabinet.

Included in this context is an allegation that Ball released Joyce’s name publicly withouthis permission and that once he was removed from his Cabinet position the news received province-wide and nation-wide attention,causing a negative impact on his reputation. [52] The nature of the remaining allegations against Ball pertain to his actions and inactions related to the Complaint and theComplaint Process up to Ball voting in agreement with the Joyce Report. [53] It is alleged that Ball acted maliciously towards Joyce in the course of the Complaint Process in that he refused to disclosepotentially exculpatory information; that he misled the House of Assembly; and was in a conflict of interest by having contact withChaulk and Joyce while the investigation was ongoing. [54] Overall, it is alleged that Ball permitted and enabled a “flawed disciplinary process” against Joyce to occur. [55] As a result of Ball’s actions and omissions, Joyce alleges he was prevented from making a full answer and defence in theComplaint Process and has suffered damages.

Issue 1(a): The Applicability of Parliamentary Privilege Burden of Proof [56] The Defendants, as the parties seeking to rely on the immunity provided by parliamentary privilege, have the onus ofestablishing its existence and scope and its applicability to the allegations in the Statement of Claim (Canada (House of Commons) v.Vaid, 2005 SCC 30, at para. 29(8)).

Parliamentary Privilege: Its meaning and Importance [57] In Vaid, Binnie, J. characterized parliamentary privilege in Canada as the sum of the privileges, immunities and powersenjoyed by the Senate, the House of Commons, and provincial legislative assemblies, and by each member individually, without whichthey could not discharge their functions (Vaid, at para. 29(2)). [58] 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. (as she then was), atparagraph 144 of New Brunswick 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. [59] 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 fonction publique et parapublique du Québec, 2018 SCC 39, at para. 19).

The Necessity Test and the Privileges Claimed [60] Not all activities of a legislative assembly are protected from judicial review.

Rather the historical foundation of everyparliamentary privilege is necessity. [61] The necessity test requires that the Defendants establish that the sphere of activity for which privilege is claimed is so closelyand directly connected with the fulfilment by the legislative assembly, or its members, of their functions as a legislative and deliberativebody, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their workwith dignity and efficiency. Necessity in this context is to be read broadly (Vaid, at paras. 46 and 29(7)).

[62] More recently in Chagnon, at paragraph 30, the Supreme Court emphasized that the necessity test demands that the sphere ofactivity over which parliamentary privilege is claimed be more than merely connected to the legislative assembly’s functions. Theimmunity sought must also be necessary to the legislative assembly’s constitutional role. [63] Proof of necessity is required to establish the existence and scope of a category of privilege.

Once the category and its scope areestablished, it is for the legislative assembly, not the courts, to determine whether in a particular case the exercise of the privilege isnecessary or appropriate (Chagnon, at para. 32). [64] In Vaid, the Supreme Court of Canada set out a two-step test for parliamentary privilege at the federal level. The first part ofthe test is to ask if the privilege has already been authoritatively established by precedent.

If so, there is no need for the Court to continueto step two, which is to ask whether the privilege is supported as a matter of principle under the necessity test. [65] In the case before me, the categories of parliamentary privilege claimed by the Defendants are the House of Assembly’sprivilege over the control of its own process including to discipline its members and the privilege of freedom of speech.

In Vaid, atparagraph 29(10), the Supreme Court acknowledged both as established categories. [66] A question arose on the Applications as to whether, if the parliamentary privileges claimed by the Applicants had already beenauthoritatively established, the Court needed to continue to step two of the Vaid test and determine if the privileges are supported underthe necessity test. [67] In the case before me, unlike Vaid, (which dealt with parliamentary privilege at the federal level), I am dealing with an inherentparliamentary privilege of a provincial legislative assembly.

In my view, in such circumstances the necessity test must be met. [68] I recently had occasion to write on this question in Saunders v. Nunasiavut Government, 2022 NLSC 142 (at paras. 68-73).

Forthe reasons articulated in that decision, it is my view that at the provincial level, even if a category of inherent parliamentary privilegehas been authoritatively established, it must always meet the necessity test. [69] As noted in sub-paragraph 29(8) of Vaid, however, the fact that a subject matter has long been recognized as an acceptedcategory of parliamentary privilege may be of evidential value relevant to meeting the necessity test: Proof of necessity may rest in

part in "shewing that it has been long exercised and acquiesced in" (Stockdale v. Hansard, at p. 1189). … [70]

Section 19 of the House of Assembly Act, R.S.N.L. 1990, c. H-10 (the “House of Assembly Act”), expressly provides the Houseof Assembly and its members “those and similar privileges, immunities and powers that are now held, enjoyed and exercised by theHouse of Commons of the Parliament of Canada and by the members of that House of Commons.” [71] Discipline of members of a legislative assembly has long been held to be within the sphere of parliamentary privilege relatingto controlling the assembly’s own proceedings and settings standards (Harvey v.

New Brunswick (Attorney General), (SCC), [1996] 2 S.C.R. 876, at paras. 61-62). [72] In Harvey, at paragraph 64, McLachlin, J. (as she then was) stated, “The history of the prerogative of Parliament and legislativeassemblies to maintain the integrity of their processes by disciplining, purging and disqualifying those who abuse them is as old asParliament itself.” [73] In my view, the House of Assembly’s ability to discipline a member continues to be closely and directly connected with thefulfillment of its function as a legislative and deliberative body, such that outside interference would undermine the level of autonomyrequired to enable the assembly to do its work with dignity and efficiency.

This has not changed with time. [74] In Harvey, at paragraph 67, McLachlin, J. stated, “It is thus clear that Parliament and the legislatures of Canada are notconfined to regulating procedure within their own chambers, but also have the power to impose rules and sanctions pertaining totransgressions committed outside their chambers.” [75] Although the allegations by Gambin-Walsh against Joyce, for which the House of Assembly ultimately sanctioned him, did notconcern his conduct within the House of Assembly, this does not diminish the necessity of the House of Assembly’s ability to govern theconduct of members if it is integral to maintaining the House of Assembly’s dignity and independence.

The conduct that was the subjectof the Complaint Process involved the interaction of members of the House of Assembly, in their role as members, and was investigatedas a breach of the Code of Conduct governing their behavior. [76] With respect to the parliamentary privilege of freedom of speech, in New Brunswick Broadcasting at paragraph 133,McLachlin, J. stated, “the need for the right of freedom of speech is so obvious as to require no comment.” [77] I have no difficulty in finding that the parliamentary privileges claimed exist and continue to meet the necessity test.

Bothprivileges clearly remain necessary in contemporary times to maintain the dignity and efficiency of the House of Assembly. [78] In fact, Joyce does not contest that these remain necessary parliamentary privileges. He contends, however, that the scope of theprivileges in the circumstances of this case should not extend so as to provide immunity to the Defendants from civil action. [79] I now turn to address the scope of the claimed parliamentary privileges. The Scope of the Privileges

[ 80 ] Joyce contends that the scope of parliamentary privilege to discipline members and the privilege of freedom of speech should not extend to cover the circumstances of this case for the following reasons: (1) the process was not authorized by the legislation invoked; (2) the process utilized was external to the House of Assembly; (3) the Complaint Process was flawed due to errors of law, exceeding authority, and lack of procedural fairness; and (4) the Defendants acted in bad faith towards him and in a manner that misled the House of Assembly. [ 81 ] In my analysis of whether the Defendants have met the onus of establishing that the allegations contained in the Statement of Claim should be struck due to the applicability of parliamentary privilege, I will address each of the arguments raised by Joyce.

(1) The process employed was not authorized by the HAAIA Act [ 82 ] Joyce contends that Chaulk did not have the statutory authority to conduct a harassment investigation pursuant to the HAAIA Act . Therefore, Joyce submits that having utilized an unauthorized process, the scope of the House of Assembly’s parliamentary privilege to discipline him was exceeded. [ 83 ] The Complaint was investigated by Chaulk pursuant to

Part V of the HAAIA Act .

Part V is entitled, “Ethics and Accountability.” At the time of undertaking the Complaint Process there was no specific reference to harassment allegations in the HAAIA Act . Subsequent amendments to the legislation now include sections 42.1 through 42.11 which specifically apply to harassment complaints. [ 84 ] Further, although section 36(1) of the HAAIA Act provides for a member to seek an opinion from Chaulk regarding an alleged contravention of the Code of Conduct by another member, Joyce contends the Code of Conduct did not include issues arising from relationships between members of the House of Assembly.

Therefore, Joyce submits that Chaulk did not have the authority to conduct the investigation into the Complaint. [ 85 ] In my view, the fact that the legislation utilized to investigate a disciplinary issue did not specifically pertain to the type of complaint lodged does not mean that the scope of the House of Assembly’s privilege to discipline a member was exceeded. The process employed goes to the manner in which the House of Assembly exercised its privilege – not the scope of the privilege.

If there were deficiencies or errors in the process chosen or implemented, such issues fall within the jurisdiction of the House of Assembly to address – not the Court.

(2) The Process was External to the House of Assembly [ 86 ] Joyce further submits that the scope of the House of Assembly’s parliamentary privilege to discipline members should not extend to the Complaint Process as it was external to the House of Assembly. He conceded that if the debate around the Complaint and the investigation had remained within the House of Assembly, parliamentary privilege would apply.

However, instead the investigation was delegated to Chaulk. [ 87 ] By operation of s. 34 (2) of the House of Assembly Act , Chaulk, as the Commissioner of Legislative Standards, is an officer of the House of Assembly. This is not contentious and is pled by Joyce in the Statement of Claim. [ 88 ] Section 35(2) of the HAAIA Act provides that the Code of Conduct shall be treated as a standard against which the actions of a member may be judged for the purpose of censure by the House of Assembly and by the public. It provides as follows: 35(2) The code of conduct adopted under subsection (1) shall be (

a) treated as a standard against which the actions of a member may be judged for the purpose of censure by the House of Assembly and by the public; and (

b) in addition to other standards of duty and responsibility imposed on members by this Act and any other law. [ 89 ] Gambin-Walsh’s request for an opinion to Chaulk was made pursuant to s.36(1) of the HAAIA Act . That provision operates, in part, to discipline members of the House of Assembly who are alleged to be in contravention of the Code of Conduct . [ 90 ] Section 36(1) of the HAAIA Act states: 36.

(1) A member who has reasonable grounds to believe that another member is in contravention of the code of conduct adopted under subsection 35(1) may, by application in writing setting out the grounds for the belief and the nature of the alleged contravention, request that the commissioner give an opinion respecting the compliance of the other member with the provisions of the code of conduct. [ 91 ]

Section 38 of the HAAIA A ct required that Chaulk’s opinion be reported to the Management Commission and from there to the House of Assembly. According to the allegations in the Statement of Claim, this process was followed. [ 92 ] Pursuant to

section 39 of the HAAIA Act , in providing his opinion, if Chaulk determined that Joyce breached an obligation under the Code of Conduct , he could make recommendations regarding penalties. [ 93 ] Section 40(1) of the HAAIA Act states: 40.

(1) A recommendation in a report of the commissioner shall not take effect unless the report is sent to the commission under subsection 38(1) and concurred in by resolution of the House of Assembly. [ 94 ] Pursuant to Section 40(1) , any recommendations provided by Chaulk could not take effect unless submitted to the Management Commission and concurred in by resolution of the House of Assembly. This means that, if Joyce were to be disciplined, only the House of Assembly could do so.

Chaulk’s opinion, as contained in the Joyce Report, was submitted to the Management Commission and then presented to the House of Assembly where it was debated. This resulted in a resolution of the House of Assembly to sanction Joyce.

[95] The parliamentary privilege of legislative assemblies to discipline members has been found in Canadian jurisprudence toinclude external investigative processes implemented to assist the House of Assembly in the exercise of its privilege. It has also beenheld that information related to processes of legislative assemblies conducted outside the assembly, including statements of participants,are protected by the parliamentary privilege of freedom of speech. [96] In Tafler v.

British Columbia (Commissioner of Conflict of Interest), (1998) (BC CA), 108 B.C.A.C. 263, 49B.C.L.R. (3d) 328 (C.A), the Conflict of Interest Commissioner for the House of Assembly of British Columbia (a role equivalent to thatof 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 carrying out his statutory powers were decisions made within, and with respect to, the privileges ofthe legislative assembly. Hence, the steps taken and decisions made were not reviewable by the court. [97] In Kirby v.

Chaulk, 2021 NLSC 86, Dale Kirby filed a request under the 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 in his investigation of a complaint against Kirby(which was investigated in a similar manner as that of the Complaint against Joyce). Chaulk refused to produce the files. TheInformation and Privacy Commissioner agreed with the refusal. Kirby appealed that decision to this court. The Court upheld the decisionto refuse disclosure of Chaulk’s investigative files.

In so doing, Knickle, J. (as she then was) noted, at paragraph 60, the necessity ofensuring the proper functioning and independence of the House of Assembly extends to the management of its members, includingdiscipline. This privilege extended to the independence of control over information related to the investigation. [98] 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. [99] 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 the 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. [100] 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: Once a person attends and participates in a parliamentary committee proceeding, the absolute privilege applies to his statements made inthe 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. [101] The important public interest protected by such parliamentary privilege is addressed by the court in Rothmans at 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. [102] Ultimately, it was the House of Assembly that had the power to discipline Joyce and it was by way of resolution of the House ofAssembly that he was sanctioned.

The role of Chaulk was to gather information to assist the House of Assembly in its debate anddecision as to whether there had been a breach of the Code of Conduct and if so, whether sanction of Joyce was appropriate. In so doing,I find Chaulk acted as a statutory delegate of the House of Assembly to assist the House of Assembly in its exercise of its parliamentaryprivilege to discipline a member. [103] Although the Complaint Process unfolded outside the walls of the House of Assembly, it was nonetheless a process of the Houseof Assembly.

It was undertaken by the Commissioner of Legislative Standards, an officer of the House of Assembly. It concerned acomplaint regarding the conduct of a member of the House of Assembly into allegations of violations of the Code of Conduct andculminated with a decision by the House of Assembly to sanction. [104] I conclude that the Complaint Process and all actions, omissions or statements by participants in the Complaint Process as well asall information gathered in the process are covered under the umbrella of the House of Assembly’s parliamentary privilege to disciplineits members.

[ 105 ] I am also of the view that parliamentary privilege over freedom of speech is applicable to the circumstances of the Complaint Process. Although the process was not conducted by a committee of the House of Assembly, it was conducted by the Commissioner of Legislative Standards, an officer of the House of Assembly. Further, the Complaint Process assisted the House of Assembly in exercising its parliamentary privilege to discipline a member. In my view, statements by participants in such a process are covered under the protective umbrella of the parliamentary privilege of freedom of speech.

(3) Errors of Law, Exceeding Authority, and Lack of Procedural Fairness [ 106 ] Joyce contends that in the Complaint Process, Chaulk committed errors of law, exceeded his authority, and failed to provide Joyce with procedural fairness. Therefore, Joyce submits that the scope of the parliamentary privilege to discipline members should not extend to provide immunity to those involved in a fundamentally unfair and flawed process.

In other words, the scope of parliamentary privilege should not extend to a process that was not conducted in compliance with lawful authority. [ 107 ] Specifically, Joyce submits that having embarked upon the Complaint Process pursuant to the HAAIA Act , it was incumbent on Chaulk to follow the requirements of that legislation and he did not do so. For example, he contends Chaulk did not comply with provisions of the HAAIA Act which required Joyce to have a reasonable opportunity to make representations.

Further, Chaulk did not meet the statutory time period required for completion of the Joyce Report. [ 108 ] Joyce further contends that Chaulk found him to be in breach of a

section of the C ode of Conduct that does not pertain to relationships between members of the House of Assembly. As well, the Statement of Claim alleges Joyce was denied procedural fairness in the investigatory process including not having been interviewed or provided full disclosure. [ 109 ] Chaulk relied upon

section 51 of the House of Assembly Act as prohibiting an action against him as Commissioner of Legislative standards in relation to his opinion as stated in the Joyce Report. [ 110 ]

Section 51 of the House of Assembly Act states as follows: Action doesn't lie 51.

(1) No action lies against the commissioner in respect of any advice, certificate, opinion or report made by the commissioner within the authority given the commissioner under this Part.

(2) Neither the commissioner nor an officer or employee of the office of the commissioner is a competent or compellable witness in a proceeding in a court arising out of or in relation to any advice, certificate, opinion, or report made by the commissioner, except in relation to a question whether the commissioner acted within the authority given him or her under this Part. [ 111 ] Joyce contends that

section 51 does not give protection to Chaulk as he alleges that Chaulk did not “act within the authority given to him” under the HAAIA Act . If he did not act within the authority given to him as alleged by Joyce, then he may be subject to civil action. [ 112 ] Joyce’s submission, if accepted, would mean that

section 51 of the House of Assembly Act abrogates the House of Assembly’s parliamentary privilege over the Complaint Process to the extent that if Chaulk acted outside his authority, the Court would be permitted to adjudicate by way of a civil action matters that would otherwise be protected by privilege. [ 113 ] In my view,

section 51 does not pertain to the circumstances of this case including the Complaint Process.

Section 51 falls under

Part II of the House of Assembly Act which is entitled “Conflicts of Interest.” Pursuant to section 40(1) of the House of Assembly Act a member may request an opinion of the Commissioner regarding the obligations of the member under

Part II or of a code of conduct. In my view, this means a member may request Chaulk to provide an opinion under the Code of Conduct for conflict of interest matters pertaining to that member. [ 114 ] The request for Chaulk’s opinion in this case was made under

Part V of the HAAIA Act , not the House of Assembly Act . It was a request by one member for Chaulk’s opinion regarding another member. Further, it was an opinion on harassment allegations, not issues of conflict of interest. [ 115 ] There is no provision in

Part V of the HAAIA Act equivalent to that of

section 51 of the House of Assembly Act . [ 116 ] On the other hand,

section 3 (

b) of the HAAIA Act states that a purpose of the legislation is to place responsibility with individual members to conduct their public and private affairs so as to promote public confidence in the integrity of each member, while maintaining the dignity and independence of the House of Assembly [emphasis added]. [ 117 ] Furthermore,

section 65 of the HAAIA Act applies to all of the parts of the HAAIA Act . It states as follows: Construing of Act

65. Unless otherwise expressly provided in this Act, this Act shall not be construed as depriving the House of Assembly, a committee of the House of Assembly or a member of a right, immunity, privilege or power that the House of Assembly, committee or member might, but for this Act, have been entitled to exercise or enjoy. [ 118 ] No provision in the HAAIA Act at the time relevant to this action, expressly or otherwise, provided wording that could be construed as depriving the House of Assembly, its members, or its committees of the parliamentary privileges claimed so as to expose them to liability in a civil action. [ 119 ] Giving a fair, large and liberal construction and

interpretation of the HAAIA Act harmoniously with its objects, I conclude that there has been no statutory abrogation or curtailment of the parliamentary privilege to discipline its members. [ 120 ] I do not accept that the issues identified by Joyce with respect to the Complaint Process go to the scope of the parliamentary privilege of the House of Assembly to discipline its members. Issues of legal errors or procedural unfairness in the Complaint Process speak to the method employed by the House of Assembly to investigate a complaint of misconduct.

That goes to the exercise of the House of Assembly’s privilege – not its scope. The lawfulness of the exercise of the privilege by the House of Assembly cannot be reviewed by the Court. [ 121 ] The Complaint Process carried out by Chaulk was part of the House of Assembly’s exercise of its privilege to discipline a member. The process lies squarely within the exclusive jurisdiction of the House of Assembly. Joyce’s recourse was to raise these issues in the House of Assembly during the debate and deliberation on the Joyce Report.

For the Court to adjudicate these issues in a civil action for damages would require the Court to examine how the House of Assembly exercised its privilege to discipline a member of the House of Assembly. That would result in an unacceptable infringement of the Court into the jurisdictional arena of the legislative branch.

(4) Bad faith and Misleading the House of Assembly [ 122 ] Joyce claims the Defendants acted with malice and bad faith towards him throughout various stages of the Complaint Process. These allegations are detailed in the Statement of Claim. [ 123 ] Joyce submits that because of the Defendants’ conduct, the House of Assembly was deprived of accurate and complete information relevant to the Complaint.

Therefore, he contends that the scope of the parliamentary privilege to discipline should not extend to protect misconduct that frustrated the House of Assembly from properly fulfilling its legislative function in disciplining him. [ 124 ] All of these allegations against the Defendants may be true. Indeed, I am to assume the facts as pled are true.

The jurisprudence clearly establishes, however, that even when egregious behavior is alleged, if parliamentary privilege applies, the person aggrieved cannot pursue a remedy through the Court. [ 125 ] Duffy involved a civil action commenced by Senator Duffy in which he alleged unlawful and potentially criminal interference in the investigation that led to the decision by the Senate to reprimand him. Notwithstanding those serious allegations, the Ontario Court of Appeal held that it had no jurisdiction to adjudicate the action.

This was because adjudication by the court would unavoidably call into question the disciplinary and internal decisions taken by the Senate on matters that ordinarily fall within established categories of parliamentary privilege ( Duffy , at paras. 80 and 81 ). [ 126 ] In Rothmans , at paragraph 31, the court stated: … because the immunity is absolute, any self-serving motivations of the person participating before the committees would not affect the privilege. Motive is irrelevant to an absolute privilege. In Roman Corp. v.

Hudson's Bay Oil & Gas Co ., the court struck out a statement of claim noting that it had "no power to inquire into what statements were made in Parliament, why they were made, who made them, what was the motive for making them or anything about them" [ 127 ] Royal Canadian Mounted Police Deputy Commissioner v. Canada (Attorney General) , 2007 FC 564 dealt with the issue of using testimony before the House of Commons’ Public Accounts Committee.

At paragraph 65, the court stated: Finally, if Parliament has reason to believe that a witness has deliberately misled the House, it is up to Parliament, and Parliament alone, to initiate proceedings and discipline such conduct. Misleading the House is contempt of the House punishable by the House: if a court or another entity was allowed to inquire into whether a member or a witness had misled the House, this could lead to exactly the type of conflict between two spheres of government that the wider principle of parliamentary privilege is designed to avoid.

The courts would be trespassing on Parliament's jurisdiction: Pepper (Inspector of Taxes) v. Hart (1992), [1993] A.C. 593 (U.K. H.L.) ; Hamilton v. Al-Fayed (No.1) , [2000] 2 All E.R. 224 (U.K. H.L.) . [ 128 ] Contrary to Joyce’s assertion, it is not that bad behavior is protected by parliamentary privilege.

Rather, when parliamentary privilege applies, Joyce’s recourse to address these alleged transgressions lies exclusively within the House of Assembly. [ 129 ] I find that the allegations against the Defendants with respect to having acted maliciously or in bad faith does not affect the scope of the privilege of the House of Assembly to discipline Joyce. The Defendants are alleged to have acted with bad faith in the exercise of the activity over which parliamentary privilege applies. This is an issue for the House of Assembly to address – not the Court.

Conclusion on Scope of the Privileges [ 130 ] I am satisfied that the Applicants have established that the circumstances of the Complaints and the Complaint Process fall within the scope of the parliamentary privileges of the House of Assembly to discipline its members and the parliamentary privilege of freedom

of speech. Conclusion on Issue 1(a): Parliamentary Privilege Applies [ 131 ] The discipline of Joyce is protected by the House of Assembly’s parliamentary privilege over its internal affairs. The process employed in the exercise of that privilege is not subject to oversight by the Court. The Defendants’ participation in the Complaint Process is covered by the privilege.

Further, the scope of the privilege covers control over the information related to the Complaint, including the contents of the Joyce Report. [ 132 ] Statements made by the Defendants throughout the Complaint Process up to and including the resolution of the House of Assembly to sanction Joyce are also protected by the parliamentary privilege of freedom of speech.

This includes: (1) the statements by Gambin-Walsh in the Complaint; (2) the communications to or by Chaulk, whether written or verbal, in the Complaint Process and in formulating his opinion; (3) the communications within the Management Commission; and (3) the statements of the Defendants in the House of Assembly. [ 133 ] The adjudication of this action would largely require the Court to review the Complaint Process which ultimately led to the House of Assembly’s decision to reprimand Joyce to determine if a compensable wrong was inflicted upon Joyce.

This would require the Court to: make a determination as to whether the Complaint Process was flawed; examine the respective roles, conduct, and motivation of the Defendants in the process; examine information and documentation gathered by Chaulk through the Complaint Process; and to examine statements and actions of the Defendants through the process.

All of this would involve the Court infringing upon a core function of the House of Assembly’s parliamentary privilege. [ 134 ] Except for the allegations concerning the media statement made by Gambin-Walsh and Joyce’s removal from Cabinet by Ball, the allegations against the Defendants concern the roles played by them and their actions, inactions, and statements made throughout the Complaint Process that led to the House of Assembly sanctioning Joyce.

This impugned conduct of the Defendants is integrally connected to the proceedings of the House of Assembly including the House of Assembly’s investigation, deliberations, and decision made regarding the sanction of Joyce. Raising these allegations before the Court would unavoidably call into matters that fall squarely within the claimed categories of parliamentary privilege. I am satisfied that the Defendants have established that these allegations contained in the Statement of Claim have no reasonable prospect of success and are struck pursuant to Rule 14.24(1)(a).

Issue 1(b): The Applicability of Crown Prerogative [ 135 ] The allegations in paragraph 218 of the Statement of Claim concern Joyce’s removal from his Cabinet position. The decision by Ball to remove Joyce from Cabinet was not part of the Complaint Process. It was not a decision of the House of Assembly and is not protected by the parliamentary privilege of the House of Assembly to discipline Joyce. [ 136 ] Although Joyce pleads that his removal by Ball from his Cabinet position received wide media coverage that “caused a negative impact on his reputation”, he does not claim the words used by Ball were untrue.

In fact, Joyce does not claim against Ball in defamation. His claim against Ball is based solely in one cause of action, namely misfeasance in public office. [ 137 ] In Guergis v. Novak , 2013 ONCA 449 , the plaintiff, a former Member of Parliament and Cabinet Minister, was removed from caucus 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.

The defendants were successful on a motion to have the action struck on the basis of it not disclosing a reasonable cause of action and as being an abuse of process. The motion judge’s dismissal of the action was upheld in all but one respect.

The court of appeal held that the tort claims arose from the plaintiff’s removal from Cabinet and from caucus and were an attempt to get around the non-justiciability of the Prime Minister's exercise of prerogative power and parliamentary privilege. [ 138 ] In Guergis , at paragraph 86 , the Ontario Court of Appeal, in holding that the exercise of the prerogative was beyond judicial review, stated as follows: The Prime Minister's exercise of the Crown prerogative and Parliamentary privilege extends not only to the fact of removal from office but also to how it was exercised.

As Laskin J.A. held at para. 65 of Black : Once [the Prime Minister's] exercise of the honours prerogative is found to be beyond review by the courts, how the Prime Minister exercised the prerogative is also beyond review . Even if the advice was wrong or careless or negligent, even if his motives were questionable, they cannot be challenged by judicial review. [Emphasis added.] [ 139 ] I find that the decision by Ball, as Premier, to remove Joyce from Cabinet, is a matter of Crown prerogative. Neither the prerogative, nor the manner in which it was exercised by Ball, is reviewable by the Court.

Therefore, the allegations in the Statement of Claim including those set out in paragraph 218 cannot be used to ground a cause of action of misfeasance in public office against Ball. These allegations are struck as disclosing no reasonable cause of action. Conclusions on Striking due to no Reasonable Cause of Action [ 140 ] I will now address whether the specific allegations against each Defendant should be struck as disclosing no reasonable cause of action.

[141] Details of the specific paragraphs of the Statement of Claim that are struck or to be amended are set out below in the

Summaryand Disposition

section of this decision. Conclusion on Action against Gambin-Walsh [142] The vast majority of the allegations against Gambin-Walsh in the Statement of Claim concern the laying of the Complaint and herparticipation in the Complaint Process. These allegations are struck as disclosing no reasonable cause of action due to the applicability ofparliamentary privilege. [143] Specifically, the allegations in the Statement of Claim supporting the claims for malicious prosecution and misfeasance in publicoffice relate to the laying of the Complaint by her and her participation in the Complaint process.

An adjudication of these allegationswould require the Court to inquire into the manner in which the House of Assembly exercised its parliamentary privilege to discipline amember. It would also require an impermissible examination by the Court of the statements made by Gambin-Walsh in the Complaintand through the Complaint Process. Therefore, all allegations pertaining to these causes of action are covered by parliamentary privilegeand are struck. [144] Paragraph 69 alleges that Gambin-Walsh made defamatory statements about Joyce which has damaged his reputation.

It furtherstates that Joyce sought, but has not received, an apology and/or retraction from Gambin-Walsh. [145] Paragraphs 91-97 of the Statement of Claim contain further statements to support the defamation cause of action against Gambin-Walsh.

For example, paragraph 91 states that Gambin-Walsh’s statements would, in the estimation of right-thinking members of society,tend to lower Joyce’s reputation as a duly elected member of the House of Assembly and Cabinet Minister. [146] To the extent that paragraphs 69 and 91-97 of the Statement of Claim pertain to the alleged media statements by Gambin-Walshreferenced in paragraphs 64 and 84 of the Statement of Claim, these paragraphs are not struck. [147] Overall, with respect to the defamation cause of action, to the extent that any the allegations in the Statement of Claim refer,explicitly or implicitly, to the Complaint, or other statements made by Gambin-Walsh, whether written or verbal, within the ComplaintProcess, or rely upon the information contained in the Joyce Report (for example, the allegations contained in paragraphs 70 and 78 ofthe Statement of Claim), these statements and information are protected by parliamentary privilege.

They cannot form the basis for acivil action in defamation. These paragraphs are struck. [148] Paragraphs 64 and 84 of the Statement of Claim concerns statements allegedly made by Gambin-Walsh to the media on April 26,2018. [149] In Guergis, although the appellate court upheld the striking of the majority of the statement of claim, it allowed 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 by parliamentary privilege. [150] Similarly, in this case, I find that the statements allegedly made by Gambin-Walsh to the media were not part of the ComplaintProcess.

Therefore, even though those comments may have been in relation to the same subject matter, they do not fall within theprotective umbrella of the claimed parliamentary privileges. [151] Furthermore, as discussed below, abuse of process does not pertain to the allegations contained in paragraphs 64 or 84, as thoseallegations were not part of the Complaint Process. [152] Although Joyce submits that the statements referenced in paragraphs 64 and 84 were defamatory and caused him damages, that isnot specifically pled nor is the defamatory nature of the alleged comments readily apparent from the pleading. [153] Paragraph 64 of the Statement of Claim reads as follows: On April 26, 2018, following a Cabinet meeting, the First Defendant gives an interview with the various media outside of the House ofAssembly.

When she is speaking to the media, she indicates that it was the Plaintiff who leaked the First Defendant’s name as the personwho made the complaint about the Plaintiff.

The Plaintiff states that he did not release the First Defendant’s name and that the FirstDefendant knew this, and should have known this. [154] Paragraph 84 of the Statement of Claim reads as follows: The Plaintiff states that in an interview on April 26, 2018 with local media outside the House of Assembly which was televised, andreported provincially and nationally, and subsequently posted online, the First Defendant stated: “I’m talking about this now because, unfortunately, Minister Joyce… Unfortunately, today my name has been put out in the generalpublic and you know, my intent was for the process to work itself out but that’s not happening and I wish for it to happen and I want it tohappen, and I am standing here speaking to you because I want the process, and I want people to feel comfortable and come forward ifthey experience any form of harassment.” [155] The issue of the sufficiency of pleadings in the context of providing material facts to substantiate the relevant cause of action wasdealt 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 a

sufficiently 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.). [156] 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 the subject of much judicial and academic commentary. [157] In Tupper v.

Wheeler, 2005 NSCA 74 the Nova Scotia Court of Appeal found the statement of claim in a defamation action to bedeficient 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. [158] In Miller v. Squires, 2008 NLTD 25, Hoegg J. (as she then was), at paragraph 11 stated, “In a defamation suit, the material factssupporting the constituent elements of defamation must be pleaded." [159] The constituent elements of defamation were set out by the Supreme Court in Grant v.

Torstar Corp., 2009 SCC 61 at paragraph28. The plaintiff must prove three elements: 1) the defendant made a defamatory statement, in the sense that the impugned words wouldtend 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 wordswere communicated to at least one person other than the plaintiff.

Where these steps are met, falsity of the words and damages arepresumed and then the onus shifts to the defendant to advance an applicable defence. [160] 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). [161] Even when it is not possible however 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. [162] 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. [163] Paragraphs 64 and 84 of the Statement of Claim are deficient in terms of what is required to be pled for a defamation action. Thepleading is not sufficiently particularized for Gambin-Walsh to know the case against her and to be able to plead to it. Before striking theoffending paragraphs, however, I am to determine whether an amendment of the Statement of Claim would cure the defect (HumbyEnterprises Limited v. A.L. Stuckless & Sons Ltd., 2003 NLCA 20). [164] In Montreal Trust Co. v.

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

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 whatthe intent of the pleader is and that by the addition of omitted material facts upon which the claimant will be relying or the variation ofexisting pleaded material, a cause of action known to the law would be said to exist.

It would be unfair to the pleader in suchcircumstances, and a violation of the principle that cases should, if possible, be disposed of on their merits, to strike the claim withoutallowing the pleader an opportunity to attempt to cure the defect (but with, perhaps, appropriate penalties in costs). [165] I am to assume that the facts as stated in the pleading can be proven and, then, reading the claim generously, assess whether it isplain and obvious that the Statement of Claim discloses no reasonable cause of action. Put another way, the claim has no reasonableprospect of success.

In applying this test, however, I must distinguish between allegations of fact and conclusions of law. The latter arenot presumed to be proven for the purpose of determining whether a pleading discloses a reasonable cause of action. [166] Although little in the way of the material facts to support a claim in defamation have been pled, based upon a generous reading ofJoyce’s claim, I cannot find that it is plain and obvious that the pleading discloses no reasonable cause of action.

Rather, althoughlacking material facts, it is apparent that Joyce is alleging there were defamatory statements made by Gambin-Walsh in the mediainterview on April 26, 2018 and that he has suffered damages as a result. [167] I conclude that there is sufficient indication in the Statement of Claim of a potential cause of action in defamation againstGambin-Walsh. To borrow the analogy utilized by Green J.A, in Montreal Trust Co. v. Hickman, the “bare bones” of a cause of actionhas been made out.

What is missing is the flesh on the skeleton to provide the crucial material facts required of an action based indefamation. If this is done, the defective pleading could be cured. [168] Rather than taking the draconian measure of striking the action altogether, I am prepared to allow Joyce thirty days from thefiling of the Order to file an Amended Statement of Claim to cure the deficiencies in the pleading.

If Joyce does not file an AmendedStatement of Claim sufficiently particularizing the defamation cause of action allegedly arising from the media interview by Gambin-Walsh within the time allotted, the Statement of Claim, in its entirety will be struck as disclosing no reasonable cause of action.

[ 169 ] All other allegations against Gambin-Walsh contained in the Statement of Claim are struck out as disclosing no reasonable cause of action.

Conclusion on Action against Chaulk [ 170 ] The Statement of Claim makes it clear that the action against Chaulk is based upon his role as the Commissioner for Legislative Standards in the investigation and handling of the Complaint. [ 171 ] The entirety of the allegations against Chaulk pertain to his actions, omissions, and statements related to the Complaint Process, his communications regarding the investigation, and his opinion as expressed in the Joyce Report. [ 172 ] An adjudication by the Court of these allegations would necessitate a review and reconsideration of an investigation to which parliamentary privilege applies.

It would also involve the Court reviewing Chaulk’s technical briefing with the Management Commission, his information session in the House of Assembly, and the debate that ensued in the House of Assembly regarding the Joyce Report that led to the decision of the House of Assembly to discipline Joyce. This would clearly involve an intrusion by the Court into the exclusive jurisdiction of the House of Assembly. [ 173 ] I conclude that the allegations against Chaulk are not reviewable by the Court. They fall within matters that are clearly subject to parliamentary privilege.

Therefore the Statement of Claim as against Chaulk is struck out in its entirely as disclosing no reasonable cause of action.

Conclusion on Action against Trimper [ 174 ] The entirety of the allegations in the Statement of Claim against Trimper relate to the Complaint and the aftermath of the handling of the Joyce Report which ultimately led to Joyce being sanctioned by the House of Assembly. [ 175 ] Through this action, Joyce is seeking to challenge actions or rulings by Trimper in his capacity as Speaker of the House of Assembly or Chair of the Management Commission in relation to the Complaint, the Complaint Process, and the Joyce Report. [ 176 ] In my view, the allegations against Trimper are the most obvious examples of Joyce asking the Court to cross the impermissible line into the jurisdiction of the House of Assembly. [ 177 ] I conclude that the allegations against Trimper are not reviewable by the Court.

They fall within matters that are clearly subject to parliamentary privilege. The Statement of Claim as against Trimper is struck out in its entirely as disclosing no reasonable cause of action. Conclusion on Action against Ball [ 178 ] The cause of action alleged against Ball is misfeasance in public office.

The allegations in the Statement of Claim supporting this cause of action concern Ball’s actions, inactions, and statements as a member of the House of Assembly, and as Premier, in dealing with the Complaint and his participation in the Complaint Process. [ 179 ] To adjudicate the claim against Ball, the Court would have to review the allegation that the Complaint Process was flawed and, if so, whether Ball’s actions and statements may have contributed to the flawed process.

This would include a review of the allegations that Ball had improper communications with Chaulk and Joyce during the Complaint Process and refused to disclose exculpatory information to assist the House of Assembly in its deliberation on the Joyce Report.

It is evident that this would involve the Court delving into matters that rest exclusively within the jurisdiction of the House of Assembly. [ 180 ] Except for the allegations contained in paragraph 218, I conclude that the allegations against Ball fall within the protection of the parliamentary privilege of the House of Assembly to discipline its members and the parliamentary privilege of freedom of speech. [ 181 ] The allegations in paragraph 218 concern Joyce’s removal from his Cabinet position. The decision by Ball, as Premier, to remove Joyce from Cabinet, is a matter of Crown prerogative.

Neither the prerogative, nor the manner in which Ball exercised it, is reviewable by the Court. Therefore these allegations cannot be used to ground a cause of action of misfeasance in public office or otherwise. [ 182 ] I conclude that the allegations against Ball are not reviewable by the Court as they fall within matters that are subject to parliamentary privilege or Crown prerogative. The Statement of Claim as against Ball is struck out in its entirely as disclosing no reasonable cause of action.

Issue 2: Alternatively, should the Statement of Claim be struck out against any of the Defendants as it is an abuse of process pursuant to Rule 14.24(1)(d)? [ 183 ] The basis of this alternative ground to strike the action was that the Statement of Claim is an abuse of process because, through it, Joyce seeks to litigate the Complaint which was investigated and dealt with by the House of Assembly. [ 184 ] I have already struck the entirety of the Statement of Claim as against Chaulk, Trimper and Ball due to the application of parliamentary privilege or Crown prerogative. Therefore, t

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