Docket: 1860 Patricia Bigstone Appellant (Defendant) - v. -, 2011 SKCA 34

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2011 SKCA 34 Date: 20110315 Between: Docket: 1860 Patricia Bigstone Appellant (Defendant) - and - Garnet St. Pierre Respondent (Plaintiff) - and - Saskatchewan Power Corporation Appellant (Defendant) Between: Docket: 186 1 Saskatchewan Power Corporation Appellant (Defendant) - and - Garnet St. Pierre Respondent (Plaintiff) - and -

Patricia Bigstone Respondent (Defendant) Coram: Jackson, Smith and Ottenbreit JJ.A. Counsel: Randall M. Sandbeck for the Appellant , Patricia Bigstone James S. Ehmann, Q.C. for the Appellant, Saskatchewan Power Corporation Christopher N.H. Butz for the Respondent Appeal: From: Q.B.G. No. 1512 of 2008, J.C. Regina Heard: November 16, 2010 Disposition re 1860: Dismissed Disposition re 1861: Dismissed Written Reasons: March 15, 2011 By: The Honourable Mr. Justice Ottenbreit In Concurrence: The Honourable Madam Justice Jackson In Dissent: The Honourable Madam Justice Smith

Ottenbreit J.A. I. Introduction [ 1 ] The plaintiff, Garnet St. Pierre (“St. Pierre”), commenced an action in tort pursuant to s. 2 of The Privacy Act , R.S.S. 1978 c. P-24 (“the Act ”) against the defendants, Saskatchewan Power Corporation (“SPC”) and Patricia Bigstone (“Bigstone”), alleging that Bigstone had violated his privacy while she was an employee of SPC. [ 2 ] SPC and Bigstone, in separate applications, moved under Rule 173(

a) of The Queen’s Bench Rules to strike out the statement of claim on the ground it disclosed no reasonable cause of action and under Rule 173(

c) on the ground that the statement of claim had no merit and was scandalous, frivolous or vexatious and an abuse of the court’s process. The Chambers judge dismissed each of the applications. After obtaining leave, SPC and Bigstone have each separately appealed this decision. The appeals were heard together and this is the decision on each of the appeals. II. Evidence and Background [ 3 ] Bigstone was the personal and property guardian of her grandmother, Mary St. Pierre. Mary St. Pierre, in 2003, transferred her home in Yorkton to St. Pierre who was her grandson.

Bigstone commenced an action for recovery of the house from St. Pierre on the basis that the transfer was an unconscionable transaction and that he had breached his fiduciary duty and position of trust with Mary St. Pierre. After trial, Bigstone was successful. This decision was upheld on appeal. The full text of the trial judgment can be found at 2008 SKQB 350 . [ 4 ] Mary St. Pierre had lived with her two sons in the house. Although they looked after their mother, they let the house fall into disrepair and failed to pay the taxes. At trial, the Court found that St.

Pierre had received title to the house on the basis that his grandmother could continue to live in the house and he would do the repairs and pay the taxes. He persuaded her to move out of the house temporarily to live with her daughter so he could do repairs. But by the third week of October 2003, about one month after the transfer, St. Pierre had evicted Mary St. Pierre’s sons with whom she lived from the house and placed an advertisement in the local newspaper for a house available for rent. He had the house rented by the first week of November 2003. St.

Pierre’s grandmother did not return to the house although she wanted to do so. By January 2004, she needed medical attention and was hospitalized. [ 5 ] In cross-examination during the trial, Bigstone disclosed that she had used her position as a customer service representative with

SPC to access SPC records to confirm her grandmother’s residence had been rented to a third party. [6] St. Pierre commenced an action for damages for violation of his privacy pursuant to the Act two months after the decision of the trialjudge declaring the house transfer unconscionable. He alleged Bigstone’s accessing of the records of SPC was an actionable violation ofhis privacy rights pursuant to the Act, and alleged SPC was vicariously liable for Bigstone’s actions. [7] The substance of St. Pierre’s claim can be found at paras. 7 to 11 of the statement of claim: 7.

Between September 2003 to March 2007, the Defendant, Patricia Bigstone, improperly accessed information on the Plaintiff, byway of utilizing the Sask Power Corporations informational data base through accessing information that was stored within theircomputers, while on duty as an agent of Defendant, Saskatchewan Power Corporation for her own personal gains. 8. The Defendant, Patricia Bigstone, used the improperly received information to assist in commencing legal proceedings againstthe Plaintiff. 9. The Defendant, Patricia Bigstone, wilfully and without right, violated the privacy of the Plaintiff. 10.

As a result of this violation, the Plaintiff has suffered injury and damages. 11. The Defendant, Saskatchewan Power Corporation is vicariously liable for the actions of it’s employee, Defendant, PatriciaBigstone. St.

Pierre served a Reply to Demand for Particulars indicating that Bigstone was the source of the information that forms the basis of theallegations of his claim but, beyond that, provided no further details about the accessing of the information or the nature of it. [8] On the application below, Bigstone swore an affidavit admitting that she accessed the SPC records and indicating that she believedshe had the authority to confirm that the property had been rented out pursuant to her appointment as her grandmother’s personal andproperty guardian. She stated that St.

Pierre had advertised their grandmother’s house for rent in the newspaper as well as posted for rentsigns on the property. She had accessed the SPC information after she had been advised that the property had been rented out. Shealleged that the information respecting the renting of the property was not private information. III.

Decision of the Chambers Judge [9] The Chambers judge determined the following at p. 4: I am not satisfied that it is plain and obvious that the plaintiff’s claim as pled for breach of privacy against the defendant Bigstone andfor vicarious liability against Sask Power will fail as disclosing no reasonable cause of action.

The issues of whether the defendantBigstone’s actions breached the plaintiff’s privacy rights and whether her acts were so connected to authorized acts to justify theimposition of vicarious liability (even in light of her comment that she was acting outside her employment) must be resolved at trial. Likewise, it cannot be said that it is plain and obvious that litigation privilege applies, as the defendants argue, such that no evidence ofthe defendant Bigstone’s conduct may be introduced at trial. On the application under Rule 173(

c) and (e), the court can consider the affidavit evidence to determine whether the claim is frivolous,vexatious, scandalous and/or an abuse of process. If it is obvious that the case is devoid of all merit or cannot possibly succeed or if it isobvious the claim is an abuse, the claim should be struck (Sagon v. Royal Bank of Canada (1992), (SK CA), 105Sask. R. 133 (C.A.)). Again, I am not satisfied that this test has been met in this case.

While the defendants argue the plaintiff has an ulterior motive inpursuing this claim, if on the facts and law there was a privacy breach, the claim would not be viewed as vexatious or abusive. Theoutcome of this claim depends on the evidence sought to be adduced and the evidence admitted at the trial. [10] She dismissed both applications to strike. Leave to appeal was granted but not on grounds having to do with issues related tolitigation privilege or vicarious liability, which were also argued before the Chambers judge. IV.

Position of the Parties [11] Bigstone argues that the information accessed by her was information related to property and is therefore not private information towhich the Act applies. More generally, she argues that St. Pierre does not plead material facts necessary to establish a reasonable cause ofaction for breach of privacy. With respect to Rule 173(c), Bigstone argues that even if all the facts pleaded are considered in their bestlight, there is no reasonable chance of success for St.

Pierre’s claim in that there is no reasonable expectation of privacy in regard to thebilling information for the home in Yorkton and this information is not covered by the Act. Bigstone argues that the fact and timing ofthe rental of the property was not private information. St. Pierre had advertised the property for rent publicly and, in any event, he wasunder an obligation to make this information available to her. Bigstone submits that she had the authority to access the information. Sheargues that there were no further facts that a trial would uncover.

[12] SPC argues, with respect to Rule 173(a), that the pleading in para. 9 of the statement of claim that Bigstone “violated the privacy ofthe plaintiff” is a mere conclusion of law and meaningless and unsupported by material facts in the pleadings. SPC submits that theconcept of “reasonable expectation of privacy” as expounded in the Charter of Rights and Freedoms (the “Charter”) cases istransportable to privacy as contemplated by the Act. SPC argues that St.

Pierre has failed to plead that the information retrieved byBigstone was of a “personal and confidential nature” not knowingly exposed by the plaintiff to the public and information which tendedto reveal intimate details of the lifestyle and personal choices of the plaintiff.

SPC argues that the phrases “information on the plaintiff”and “information that was stored within…computers” and “improperly” appearing in paras. 7 and 8 of the statement of claim areimprecise, ambiguous and lacking in particularity and could refer to non-personal and non-confidential information which reveals nolifestyle or personal choices of St. Pierre. SPC argues that nothing pleaded by St.

Pierre can be interpreted as facts material to establishinga foundation for the existence of a reasonable expectation of privacy. [13] With respect to Rule 173(c), SPC argues that nothing in the statement of claim and the evidence in Bigstone’s affidavit, includingthe reasons of the Queen’s Bench judge below, supports the existence of a reasonable expectation of privacy on the part of St. Pierrerespecting the information that Bigstone retrieved, and therefore the claim cannot succeed. V.

Jurisdiction and Standard of Review [14] Whether the Chambers judge erred in determining that it was not clear and obvious that there was no reasonable cause of action andthat the action is frivolous and vexatious is a question of law. The standard of review in this case is correctness: Housen v. Nikolaisen,2002 SCC 33, [2002] 2 S.C.R. 235 at para. 8. VI. Analysis A. Introduction [15] The issue in these appeals is whether it is plain and obvious that St. Pierre’s claim discloses no reasonable cause of action or isfrivolous, vexatious or otherwise an abuse of the court.

For the reasons hereinafter set forth, the appeals of SPC and Bigstone aredismissed. B. Reasonable Cause of Action [16] The test with respect to striking a claim under Rule 173(

a) because it discloses no reasonable cause of action was set forth in Sagonv. Royal Bank of Canada (1992), (SK CA), 105 Sask. R. 133 (C.A.). It reads as follows at pp. 139 and 140: In determining whether a claim should be struck as disclosing no reasonable cause of action, the test is whether, assuming theplaintiff proves everything alleged in his claim, there is nevertheless no reasonable chance of success, or to put it another way, noarguable case.

The court should exercise its jurisdiction to strike on this ground only in plain and obvious cases and where the court issatisfied that the case is beyond doubt: … [17] With respect to the requirement that facts which are pleaded should support conclusions, Cameron J.A., in Ducharme v. Davies, (SK CA), [1984] 1 W.W.R. 699 (Sask.

C.A.), citing a passage from The Law of Civil Procedure, Williston and Rolls,vol. 2 at pp. 654 and 677 said as follows: In construing a pleading, the presumption is always against the pleader because he is taken to have stated his own case in the bestpossible light and in the manner most favourable to himself. ... In an action for damages for negligence, the plaintiff must in his statement of claim specifically plead such facts as are intended to berelied upon as establishing negligence with sufficient particularity to enable the other party and the court to know on what allegations hebases his case.

To plead merely that the defendant was negligent is to plead a conclusion of law. Such a plea is bad unless accompaniedby a plea of the particular facts in respect of which the negligence is alleged. [18] The task before the Chambers judge was whether the essential elements of the statutory tort had been pleaded to the extent thatthey set out an arguable case which met the threshold in Sagon. [19] Whether the pleadings are sufficient is informed by the provisions of the statute and the case law which has interpreted the Act.

Todate the Act has received very little judicial consideration in Saskatchewan and what information is private under the Act and what arethe essential elements of the statutory tort have yet to be fully defined by our courts. There has been no consideration of the Act by this

Court. The germane portions of the Act are found in ss. 2, 3 and 6: 2 It is a tort, actionable without proof of damage, for a person wilfully and without claim of right, to violate the privacy of anotherperson. 3 Without limiting the generality of

section 2, proof that there has been: (

a) auditory or visual surveillance of a person by any means including eavesdropping, watching, spying, besetting or following andwhether or not accomplished by trespass; (

b) listening to or recording of a conversation in which a person participates, or listening to or recording of messages to or from thatperson passing by means of telecommunications, otherwise than as a lawful party thereto; (

c) use of the name or likeness or voice of a person for the purposes of advertising or promoting the sale of, or any other trading in, anyproperty or services, or for any other purposes of gain to the user if, in the course of the use, the person is identified or identifiable andthe user intended to exploit the name or likeness or voice of that person; or (

d) use of letters, diaries or other personal documents of a person; without the consent, expressed or implied, of the person or some other person who has the lawful authority to give the consent is primafacie evidence of a violation of the privacy of the person first mentioned. 6(1) The nature and degree of privacy to which a person is entitled in any situation or in relation to any situation or matter is that whichis reasonable in the circumstances, due regard being given to the lawful interests of others.

(2) Without limiting the generality of subsection (1) in determining whether any act, conduct or publication constitutes a violation ofthe privacy of a person, regard shall be given to: (

a) the nature, incidence and occasion of the act, conduct or publication; (

b) the effect of the act, conduct or publication on the health and welfare, or the social, business or financial position, of the person or hisfamily or relatives; (

c) any relationship whether domestic or otherwise between the parties to the action; and (

d) the conduct of the person and of the defendant both before and after the act, conduct or publication, including any apology or offer oramends made by the defendant. [20] Apart from the Act, the development of the concept and categories of privacy interests has been largely driven by Charter cases.The generally accepted categories include personal, territorial and informational privacy: R. v. Tessling, 2004 SCC 67, [2004] 3 S.C.R.432. The Supreme Court of Canada, in R. v.

Duarte, (SCC), [1990] 1 S.C.R. 30 at p. 46, stated that informationalprivacy: [M]ay be defined as the right of the individual to determine when, how, and to what extent he or she will release personal information. [21] In Charter analyses, the extent to which the state can infringe these interests is defined in part by the concept of reasonableexpectation of privacy. As an initial observation, the Act does not appear to be designed, like ss. 7 and 8 of the Charter, as a shield tolimit state infringement of privacy, but rather a sword to allow compensation for infringement of privacy.

This suggests that the privacythe Act protects may be more extensive, and different in some respects, than privacy under the Charter. The analytical approach towhether an expectation of privacy exists and is breached in a particular case may be different than the approach into Charter cases. [22] Black’s Law Dictionary, 9th ed. provides the following

definitions of privacy: The condition or state of being free from public attention, to intrusion into or interference with one’s acts or decisions. autonomy privacy – An individual’s right to control his or her personal activities or intimate decisions without outside interference,observation or intrusion. informational privacy – A private person’s right to choose to determine whether, how and to what extent information about oneself iscommunicated to others, especially sensitive and confidential information. This general definition of privacy has as its hallmarks a person’s freedom from attention, intrusion or interference. [23]

Section 2 does not define privacy but we know from the

preamble to s. 3, which reads “without limiting the generality of

section 2”,that the concept is arguably quite broad.

Section 3 gives examples not of the types of privacy but of prohibited acts which infringe

privacy. Generally speaking the examples all have the salient features of “attention to”, “intrusion into” or “interference with” found inthe general definition of privacy referred to above. From the examples set forth in s. 3, some of the kinds of privacy protected by the Actcan be inferred and generally speaking, they would arguably be the same kinds enunciated in Tessling.

However, none of the categoriesof the examples of prohibited acts speak to necessarily compromising a biographical core of personal information or intimate details ofthe lifestyle and personal choices of individuals although the prohibited acts can certainly do so in a particular case. Rather, the listedcategories speak of a privacy interest that is both more broad and less intimate than the Charter concepts, which would, for example, notprohibit surveillance in a public place under most circumstances. [24] Likewise, s. 3(

b) potentially casts a wide net, making any listening to or recording of a conversation, not just the interception oftelecommunications, a violation of privacy. Again, there is no suggestion in s. 3(

b) that accessing of core biographical information is anessential element. The gist of this subsection is arguably the act of an unexpected and unwarranted intrusion into the conversation. [25]

Section 3(

c) deals with acts amounting to unauthorized use and exploitation of someone’s personal characteristics for gain wherethe person becomes identified to the public. Intention to exploit appears to be an essential element here, and core biographicalinformation and intimate details are arguably not essential. It might be enough, for example, if a picture of a person is used as part of theexploitation.

Section 3(

d) deals with the use of the documents of a person. It may be inferred that an infringement such as this may resultin a greater likelihood of compromising confidential and more intimate information. Although accessing the letters, diaries and otherpersonal documents may be part of the breach, an essential element here as in 3(

c) is use of those papers. [26] Based on just the examples in s. 3, the Act appears to make actionable intrusive behaviours which cover a wide spectrum of privacyinterests. More importantly, the wording of the Act does not limit the privacy interests to those kinds set forth in s. 3. The exact ambitof the Act has yet to be determined.

It may be expected, however, that whether a particular behaviour breaches an expectation of privacywill be fact specific. [27] The wording of the Act arguably does not require that a claim alleging a breach of privacy respecting information must necessarilyplead that the information accessed is confidential or reveals intimate details of the lifestyle and personal choices of the plaintiff. This isnot to say that the Act does not make the accessing of such information actionable and that certain Charter concepts of privacy andCharter analysis would not be apt in a particular case.

To what extent Charter concepts and a Charter approach would be helpfulremains to be determined. What is clear is that the Charter concept of reasonable expectation of privacy and its corollary concepts arearguably not congruent with the “privacy” or an “expectation of privacy”, the violation of which is actionable under the Act. Based on anexamination of the Act, pleadings in terms of Charter concepts of reasonable expectation of privacy are arguably not therefore essentialto a claim under the Act.

The argument of SPC that the pleading is deficient because it lacks sufficient facts which would allege aviolation of an expectation of privacy identical or very similar to the Charter concept fails. [28] Cases respecting the Act have been few. They are instructive only in providing examples of the nature of the privacy interestarguably protected. In Kish v. Chapple (1999), (SK KB), 179 Sask. R. 124 (Q.B.), the court struck out a statement ofclaim on the basis that it did not disclose a reasonable cause of action.

The plaintiff alleged that the defendant was involved in an illegalinvestigation of the plaintiff and alleged facts to substantiate the existence of an investigation. The court concluded that an investigationmay be considered prima facie in violation of the individual’s privacy but determined that the facts alleged did not support a finding thatthe defendant “wilfully and without a claim of right violated the plaintiff’s privacy.” [29] In Peters-Brown v. The Regina District Health Board, (1996), (SK KB), 136 Sask.

R. 126 (SKQB), the courtappears to have assumed that the confidential patient information was potentially covered by the Act. However, the case was decided onthe basis that the disclosure of information was not wilful. [30] In Jess v. Saskatoon District Health Board, 2007 SKQB 357, 305 Sask. R. 207, the release of confidential medical records of theplaintiff were caught by the ambit of the Act, but the court ultimately found that the disclosure was authorized or required by a law andwas therefore not a violation of the plaintiff’s privacy. [31] In Cole v.

Prairie Centre Credit Union Ltd., 2007 SKQB 330, [2008] 1 W.W.R. 115 which was an application for certification of aclass action, the proposed plaintiffs were customers of the defendant who, it was alleged, had improperly discarded a number ofcomputers containing confidential information. One of the causes of action was a claim under the Act. For the purposes of theapplication it was assumed that the confidential information in the computers fell within the Act. The cause of action in respect of the Actwas not certified, because no facts establishing wilfulness were pleaded. [32] In R. v.

McCullough, 2001 SKQB 361, 210 Sask. R. 240, the Court considered whether to exclude the fruits of search warrants. The

accused alleged that certain information including a diagram about corporate organization, an agreement for sale and an offering memorandum may have been received by the police in violation of his s. 8 Charter rights but also in violation of his rights under the Privacy Act .

The court dismissed the application on an evidentiary basis but in obiter stated that there was a “real issue” as to whether or not the information was personal information as defined by the Privacy Act and whether or not the accused was entitled to claim privacy, even if the information was his to control. [ 33 ] The foregoing cases deal with the more obvious kinds of informational privacy and involve situations where the information was assumed to be confidential and covered by the Act . Unfortunately, none of these cases have examined the essential ingredients necessary to plead a claim under the Act .

This leaves the Act as the primary guideline for pleading. [ 34 ] At this stage of the development of the jurisprudence respecting the Act , a claim must contain allegations so that, at a minimum, the following is clear: 1. the action is pursuant to the Act ; 2. there is

an act or actions which are claimed to be a violation of privacy which comes within the arguable scope of the Act ; 3. the privacy is that of a person; 4. the type of privacy interest violated is generally identifiable; and 5. the violation is wilful and without claim of right. [ 35 ] St. Pierre’s claim meets these minimum requirements. The pleading, where it states in para. 7 “information on the plaintiff,” although imprecise and somewhat ambiguous, is enough to identify the privacy interest and that the interest is St. Pierre’s and therefore personal.

The pleadings also allege the act of “accessing” and that the act was wilful and without claim of right. To that extent, the claim as a whole accords with the arguably wide ambit of s. 2 and with the spirit of the examples of violation of privacy as set forth in s. 3 of the Act . [ 36 ] The admonition of Ducharme , supra , respecting the requirement to plead facts and not merely conclusions of law, is to ensure that there is sufficient particularity to enable the other party and the Court to know on what allegations a party bases his case.

That goal serves, of course, many purposes including avoiding pointless litigation. Applying Ducharme to this case, it cannot be said that Bigstone and SPC do not know on what facts St. Pierre bases his action. As unembellished as St. Pierre’s facts may be, it is clear that his claim for a breach of privacy under the Act goes at least this far: an employee of a Crown corporation accessed the records of the corporation to obtain information about St. Pierre’s activities for the employee’s own purposes.

Using the words of Sagon , the Chambers judge was unable to conclude that “there is …no reasonable chance of success” or that there was no “arguable case.” She did not find that it was a “plain and obvious” case. I find no error in her conclusion. C.

Frivolous, Vexatious and Abuse of Process [ 37 ] In Sagon , supra , Sherstobitoff J.A., speaking on behalf of this Court, on the appeal of an application to dismiss because the claim was frivolous, vexatious or an abuse of the court process, explained the approach to be used at para. 18: [18] Instead of considering merely the adequacy of the pleadings to support a reasonable cause of action, it may involve an assessment of the merits of the claim, and the motives of the plaintiff in bringing it. Evidence other than the pleadings is admissible.

Success on such an application will normally result in dismissal of the action, with the result that the rule of res judicata will likely apply to any subsequent efforts to bring new actions based on the same facts. A substantial portion of SPC’s and Bigstone’s submissions on this issue depends on the argument that St. Pierre had no expectation of privacy in the “information”, and therefore the action has no merit. Success under Rule 173(

c) in this case is therefore partially dependant on success under Rule 173(a). As explained above, Charter concepts of expectations of privacy might not be congruent with those of the Act . I have determined that the Chambers judge did not err in failing to strike the cause of action as pleaded. As a result, this arm of the argument fails. [ 38 ] The second arm, that even if there is a reasonable cause of action the claim in any event has no merit, also cannot succeed. On this issue we turn to the information contained in the affidavit of Bigstone.

Nothing in the affidavit forces a conclusion that the claim, at trial, would have no merit. Despite Bigstone’s arguments that merely property information and possibly the information of third parties were accessed, and that in any event such information would not be private, the relevance of such assertions must be tested by determining the ambit of the Act . The alleged wilfulness of the accessing of the information is confirmed by her affidavit. However, the alleged lack of right to do so is put into issue by the affidavit.

It remains to be seen what the nature of the information was, whether confidentiality is relevant, and whether the information related to St. Pierre at all, and what other facts or principles may come into play. The resolution of

this case therefore depends on disputed and unknown facts, none of which are on the record. The claim is not at this stage clearly unmeritorious, frivolous, vexatious or an abuse. The Chambers judge made no error on this point. VII. Conclusion [ 39 ] We can see no error made by the Chambers judge in her determination of the applications to strike. Both appeals are dismissed with costs to St. Pierre. DATED at the City of Regina, in the Province of Saskatchewan, this 15th day of March, A.D. 2011. “OTTENBREIT J.A.” OTTENBREIT J.A. I concur “JACKSON J.A.” JACKSON J.A.

Smith J.A. (in dissent) [ 40 ] I have had the opportunity to read the opinion of Ottenbreit J.A. and I am unable to agree with his conclusion that this appeal should not be allowed. It is my view that the statement of claim in this action ought to have been struck pursuant to Rule 173(

a) on the basis that the pleadings do not disclose a reasonable cause of action. In particular, the pleading is vague in the extreme and fails to allege sufficient material facts to support the conclusions of law on which it relies. [ 41 ] The background facts are set out in the judgment of my colleague. A few merit emphasis. The respondent, Mr. St. Pierre, had convinced his elderly grandmother, Mary St. Pierre, to transfer her home to him on the condition that he pay the back taxes owing on the house and that he allow her to remain living in the house.

Within a month of the transaction he had arranged for Mary St. Pierre and her two sons to be removed from the house, had placed a mortgage on the property and had rented out the house to a third party. The appellant, Ms Bigstone, was a granddaughter and also the property guardian for Mary St. Pierre. She successfully brought an action to have the transaction set aside on the basis of unconscionability. The trial decision was upheld on appeal to this Court. [ 42 ] Ms Bigstone was employed by the respondent the Saskatchewan Power Corporation as a customer service representative.

As such, she had access to Sask Power billing accounts. During the course of the trial, on cross-examination of Ms Bigstone, the respondent learned that she had confirmed information that the Mary St. Pierre house had been rented to third party tenants by accessing billing information in relation to the house in the computer records of her employer.

Ms Bigstone also indicated that the property had been advertised for rent in the newspaper, “for rent” signs had been posted on the property, and other relatives had told her the house had been rented to third parties. [ 43 ] Subsequent to the trial, the respondent issued a statement of claim naming the two appellants as defendants. The relevant portions of the claim make reference, in paragraphs 4 and 5, to the plaintiff’s purchase of the Mary St.

Pierre house and the fact that “some members of the family [including Ms Bigstone] responded negatively to the purchase.” It is otherwise confined to the following allegations: 6. The Defendant, Patricia Bigstone, by virtue of her employment with the Defendant, Saskatchewan Power Corporation, had as part of her job responsibilities, inter alia , a duty to look after new or transferring power subscribers. 7.

Between September 2003 to March 2007, the Defendant, Patricia Bigstone, improperly accessed information on the Plaintiff, by way of utilizing the Sask Power Corporations informational data base through accessing information that was stored within their computers, while on duty as an agent of Defendant, Saskatchewan Power Corporation for her own personal gains. 8. The Defendant, Patricia Bigstone, used the improperly received information to assist in commencing legal proceedings against the Plaintiff. 9. The Defendant, Patricia Bigstone, wilfully and without right, violated the privacy of the Plaintiff. 10.

As a result of this violation, the Plaintiff has suffered injury and damages. 11. The Defendant, Saskatchewan Power Corporation is vicariously liable for the actions of it’s [ sic ] employee, Defendant, Patricia Bigstone.

12. By virtue of

Section 2 of the Privacy Act, R.S.S. 1978, C. P-24, s. 2, any wilful violation of the privacy of another person is, inand of itself, in [sic] actionable tort. 13. The Plaintiff is entitled to damages in accordance with

Section 7 of the Privacy Act. [44] The phrase “information on the plaintiff”, in paragraph 7, is vague and ambiguous.

Presumably, it means “information about or inrelation to the plaintiff,” but the statement of claim does not set out the nature of the information about the plaintiff that the defendantBigstone is alleged to have accessed, the original source of the information or circumstances in which it came to be stored in thecomputers of Sask Power, or any other facts or circumstances to support the bare legal claim that by accessing this information thedefendant Bigstone violated the privacy of the plaintiff.

Nor does the statement of claim set out any facts to support the bare claim that,as a result, “the Plaintiff has suffered injury and damages”. [45] The respondent Bigstone demanded particulars in relation to both points, asking the plaintiff to “identify the source of theinformation that forms the basis of the allegation”, and to provide the particulars of the loss and injury alleged. The respondent, in hisreply to this demand, indicated, oddly, that “the Defendant, Patricia Bigstone” was the source of the information that forms the basis ofthe allegation.

He refused to provide any particulars of loss or injury, claiming that these were more properly the subject of examinationfor discovery. This response was, in my view, inadequate on both points. [46] On an application pursuant to Rule 173(

a) to strike a statement of claim on the ground that it fails to disclose a reasonable cause ofaction, the plaintiff enjoys the advantage of the presumption of truth of all allegations of fact in the pleadings. However, the plaintiff alsobears the burden of enunciating in the pleadings the material facts relied upon for each cause of action asserted. It is not sufficient simplyto plead a conclusion of law. This is well established in the jurisprudence and is articulated in Queen’s Bench Rule 141, which reads: A party may raise any point of law in his pleading.

Conclusions of law may be pleaded provided that the material facts supporting suchconclusions are pleaded. [47] The rationale for this requirement was well articulated by Conrad J.A., of the Alberta Court of Appeal, in Tottrup v. Alberta (Minister of Environmental Protection), 2000 ABCA 121, 186 D.L.R. (4th) 226, addressing the issue of whether the plaintiffs had pledfacts sufficient to support the allegation of a duty of care in a claim for negligence. She commented: 7 Under Rule 129 (1)(a) [the equivalent of Rule 173(a)] neither the plaintiff nor the defendant is entitled to rely on affidavitevidence.

If a plaintiff has not alleged facts capable of supporting a cause of action, then a defendant ought not be put to the time,expense and consequences of further litigation. Conversely, if it is not plain and obvious that no cause of action exists, an application tostrike must fail. 8 The principles governing an application to strike a statement of claim for failure to disclose a cause of action are relatively settled.In brief, the Court must assume that the allegations of fact made by the plaintiff are true. The Court then determines whether those factsdisclose a cause of action in law.

The test set out by the Supreme Court in Hunt v. Carey Canada Inc., (SCC), [1990] 2S.C.R. 959 at 980 is whether it is " . . . plain and obvious' that the plaintiff's statement of claim discloses no reasonable cause of action."Caution is required before concluding that the plaintiff has no chance of success. The plaintiff is entitled to a broad reading of thepleadings. …. Subject to limitation questions, the Court may grant leave to include further facts if an application is made.

In addition, adetermination that there is no cause of action on one set of pleadings is generally no bar to framing a new action on different facts. 9 Although the pleadings should be liberally interpreted, the Court has a duty to apply the Rule as it is intended. If the alleged facts,examined in light of the existing law, do not disclose a cause of action the claim should be struck. Needless litigation should be avoided. 10 With respect, I do not agree with my colleague, Russell J.A., that the question raised in this case should wait until a

summaryjudgment application before examining whether a duty could be found. She concludes that the Chambers Judge erred because, in basinghis decision on the grounds that the statutes did not impose any mandatory duties on the Ministers, he failed to appreciate that thepleadings also alleged a duty "at law." She then concedes that had the pleadings alleged only a breach of duties or powers imposed bystatute, then assuming no such duties existed, the claim should be struck. But, because of the bare allegation of a "duty at law," the claimcannot be struck.

This suggests that although to plead a statutory duty is insufficient to establish a cause of action (where uponexamination no such duty exists) merely alleging a duty at law will suffice, even though there are no facts pled upon which a court couldconclude that such a duty at law was owing. With respect, I do not agree. 11 In my view, it is not the allegation of a duty at law that is critical, but the facts alleged supporting such a duty. For example, astatement of claim alleging only that "A" breached a duty owed to "B" thereby causing damage does not, in my view, disclose a cause ofaction.

Pleadings are allegations of fact and, in my view, where negligence is alleged, that allegation must be supported by facts capableof sustaining a determination that a duty was owed, that

an act or omission occurred breaching that duty, and that damages resulted.On a motion to strike it is the allegations of fact that must be examined to determine whether a cause of action exists. 12 There is no need to wait for an application for

summary judgment. An application for

summary judgment requires swornevidence. Frequently, it involves extensive affidavits and cross-examinations. For the purposes of a R. 129(1)(

a) application there is noneed (in fact no opportunity) for sworn evidence. The plaintiff receives the benefit of an assumption that all the facts which he or she haschosen to plead are true. It is not necessary to wait for

summary judgment to evaluate whether those facts, interpreted in light of theexisting law, establish a cause of action.

13 It is an appropriate function of the Court to consider and determine these questions of law on the basis of the alleged facts. Theexistence of a duty of care, for example, may depend on the facts of the case, but whether certain facts could sustain a finding of such aduty is a question of law. It is therefore proper, in the circumstances of this case, to ask whether a duty of care and a breach of that dutyby these Ministers could be found on the facts alleged by the plaintiff.

The Court ought not to refuse to strike solely on the grounds thatthe facts may, at some later stage, turn out to be different from those alleged. 14 That it is appropriate to determine these questions now is clear from the fact that some of the most important negligence cases ofthe last century have been determined in the context of applications to strike, including both Donoghue v. Stevenson, (FOREP), [1932] A.C. 562 (H.L.) and Anns v. London Borough Council of Merton, [1978] A.C. 728 (H.L.). [Emphasis added] [48] The same principles have been expressed by this Court on a number of occasions.

See, for example, F.P. v. Saskatchewan, 2004SKCA 59, [2005] 3 W.W.R. 257; Ducharme et al. v. Davies and Rogoschewsky, (SK CA), [1984] 1 W.W.R. 699, 29Sask. R. 54 (C.A.); and Saskatchewan Provincial Court Judges Association et al v. Saskatchewn (Minister of Justice), (SK CA), [1996] 2 W.W.R. 129, 137 Sask.

R. 204 (C.A.). [49] This passage from the majority judgment of Cameron J.A. in Ducharme is of most assistance: 65 While pleadings are no longer subject to the precise, complex, and occasionally oppressive requirements they once were,nevertheless they remain an important aspect of every law suit and must be framed with care. The following passage taken from The Lawof Civil Procedure, Williston and Rolls, vol. 2 (1970), p. 637, illustrates why a careful pleading is still important: The function of pleadings is fourfold: 1. To define with clarity and precision the question in controversy between litigants. 2.

To give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issues disclosed bythem. A defendant is entitled to know what it is that the plaintiff asserts against him; the plaintiff is entitled to know the nature of thedefence raised in answer to his claim. 3. To assist the court in its investigation of the truth of the allegations made by the litigants. 4. To constitute a record of the issues involved in the action so as to prevent future litigation upon the matter adjudicated betweenthe parties.

To the extent para. 6 of the statement of defence is relied upon to found the claim for reduction of the child's damages, on the basis nowbeing advanced, as opposed to that put forward at trial, it fails to fulfil most, if not all, of these basic functions. With respect that is myopinion of it. 66 I think it would be useful to refer to three additional passages from The Law of Civil Procedure (which appear respectively at pp.651, 654, and 677): In pleadings it is necessary that the material facts be stated clearly and definitely in a concise

summary way ... The facts must be allegedwith certainty and with precision and not left to be inferred from vague or ambiguous expressions or from statements of circumstancesconsistent with different conclusions. If vague and general language is used nothing is defined and the issue may become hopelesslyconfused. In construing a pleading, the presumption is always against the pleader because he is taken to have stated his own case in the bestpossible light and in the manner most favourable to himself.

In an action for damages for negligence, the plaintiff must in his statement of claim specifically plead such facts as are intended to berelied upon as establishing negligence with sufficient particularity to enable the other party and the court to know on what allegationshe bases his case. To plead merely that the defendant was negligent is to plead a conclusion of law.

Such a plea is bad unlessaccompanied by a plea of the particular facts in respect of which the negligence is alleged. [emphasis added] [50] In the instant case, the plaintiff alleges that the defendant Bigstone “willfully and without right, violated the privacy of thePlaintiff.” He relies on s. 2 of The Privacy Act, R.S.S. 1978, c. P-24. The relevant provisions of that statute are as follows: 2 It is a tort, actionable without proof of damage, for a person wilfully and without claim of right, to violate the privacy of anotherperson. 3 Without limiting the generality of

section 2, proof that there has been: (

a) auditory or visual surveillance of a person by any means including eavesdropping, watching, spying, besetting or following andwhether or not accomplished by trespass; (

b) listening to or recording of a conversation in which a person participates, or listening to or recording of messages to or from thatperson passing by means of telecommunications, otherwise than as a lawful party thereto;

(

c) use of the name or likeness or voice of a person for the purposes of advertising or promoting the sale of, or any other trading in, any property or services, or for any other purposes of gain to the user if, in the course of the use, the person is identified or identifiable and the user intended to exploit the name or likeness or voice of that person; or (

d) use of letters, diaries or other personal documents of a person; without the consent, expressed or implied, of the person or some other person who has the lawful authority to give the consent is prima facie evidence of a violation of the privacy of the person first mentioned. . . . 6

(1) The nature and degree of privacy to which a person is entitled in any situation or in relation to any situation or matter is that which is reasonable in the circumstances, due regard being given to the lawful interests of others.

(2) Without limiting the generality of subsection (1) in determining whether any act, conduct or publication constitutes a violation of the privacy of a person, regard shall be given to: (

a) the nature, incidence and occasion of the act, conduct or publication; (

b) the effect of the act, conduct or publication on the health and welfare, or the social, business or financial position, of the person or his family or relatives; (

c) any relationship whether domestic or otherwise between the parties to the action; and (

d) the conduct of the person and of the defendant both before and after the act, conduct or publication, including any apology or offer or amends made by the defendant. [ 51 ] It is my view that the plaintiff has failed to allege facts sufficient to establish a breach of privacy within the meaning of the Act . Paragraph 7 of the statement of claim, quoted above, states only that the defendant Bigstone accessed information about the plaintiff that was stored in the computers of Sask Power.

Despite a demand for particulars, no particulars of the nature of the information accessed or the circumstances of its being stored in the Sask Power computers is alleged, nor have any particulars been offered in the ensuing litigation. From the context provided by paragraphs 4 and 5 of the statement of claim, one may reasonably infer that the information alleged to have been accessed by Ms Bigstone was billing information relating to the Mary St. Pierre house, in a period of time after the plaintiff had purported to purchase the house from Mary St. Pierre.

However, the plaintiff does not allege that he was the occupant of the house at the time, that the billing related to his personal consumption of power, that it related to his liability to pay for that consumption, or that the information accessed was in any other way personal or private. [ 52 ] It is quite clear, in my view, that the meager facts alleged by the plaintiff cannot bring the claim within the “examples” of violation of privacy set out in s. 3 of the Act . The plaintiff does not allege anything other than that the defendant Bigstone obtained information concerning him.

This does not fall within “auditory or visual surveillance of a person” ( s. 3 (a)), “listening to or recording of a conversation in which a person participates” ( s. 3 (b)), “use of the name or likeness or voice of a person” ( s. 3 (c)), or “use of letters, diaries or other personal documents of a person” ( s. 3 (d)). [ 53 ] While these examples of violation of privacy are not intended to be exhaustive, the only other way violation of privacy can be established under the Act is pursuant to s. 6 .

This provision requires the plaintiff to establish some entitlement to privacy in relation to the acts of the defendant complained of, bearing in mind the considerations set out in that section.

While it clearly is not possible to set out all circumstances that might entitle a person to some degree of privacy, it is possible to be certain that no one is entitled to privacy in relation to any and all information relating to himself or herself. [ 54 ] Accordingly, in my view, merely establishing that the defendant has “accessed” some information, in some sense relating to oneself, is clearly not sufficient to establish a violation of privacy within the meaning of the Act . [ 55 ] I agree that the Charter cases defining “reasonable expectation of privacy” for the purpose of determining the scope of the protection offered by s. 8 of the Charter may not apply to all examples of violation of privacy within the meaning of the Act .

However, s. 6 of the Act does require a determination of “the nature and degree of privacy to which a person is entitled”, a closely related, if not identical, concept. Where purely informational privacy is concerned, not involving the activities identified in s. 3 of the Act , this would seem to me to require, at a minimum, that the information in question be personal and confidential. It is difficult to imagine circumstances in which a person might be held to have violated the privacy of an individual by merely “accessing” or finding out information that does not meet this test.

In the instant case, if, for example, (as in fact has been admitted by Ms Bigstone and is assumed to be true by the respondent in his argument on this appeal), what Ms Bigstone accessed was billing information indicating that the Mary St. Pierre house had been rented to third party tenants, the appellant would, absent special circumstances about which one can only speculate, have no entitlement to privacy in relation to that information (although the tenants, of course, might).

I would add that I do not understand the suggestion that it is not necessary to plead that the information accessed was confidential although that fact might be highly relevant at trial. If it is material, it must be pled.

[ 56 ] I cannot agree with the wide ambit my colleagues would give to The Privacy Act , and, in particular, to the concept of informational privacy established and protected by that statute. This

interpretation of the Act appears to be based on an

interpretation of s. 3 of the Act to the effect that that

section not only makes actionable, potentially, the conduct specifically and narrowly described in that section, but also expands the notion of “the nature and degree of privacy to which a person is entitled” for the purpose of s. 6 of the Act , making a person entitled to privacy in relation to all the information that might be gleaned from such activities, no matter how it is obtained.

Thus, for example, the assumption seems to be that because “surveillance” of a person is made potentially actionable by s. 3 (a), and it is a person’s activities that are discoverable by means of surveillance, a person therefore has a legislatively protected privy interest in any information about his activities, however obtained and that any investigation or inquiry into a person’s conduct is therefore potentially actionable (i.e., absent consent, lawful excuse, etc.). [ 57 ] I do not agree that such an extraordinary expansion of the notion of legally protected privacy interest is the purpose or intent of this section, or of the Act in general.

It is not the intention of the Act to make merely investigating, seeking to find out, accessing, or gathering information about a person an actionable violation of that person’s privacy, in the absence of the conduct described in s. 3, or other unusual circumstances. Certainly s. 3 is not itself this broad. Such an

interpretation would subject all authors of an unauthorized biography to liability. [ 58 ] Finally, I do not agree that it is sufficient to plead

an act or actions that are claimed to violate privacy. The actions complained of must be pled with sufficient particularity that it is possible to determine, as a matter of law, whether they constitute or reasonably could constitute a violation of privacy within the meaning of the Act . It is not enough that the plaintiff claim that they do. This is to plead a conclusion of law without pleading the supporting facts, contrary to this Court’s decision in Ducharme , supra and other authorities cited. [ 59 ] Another way of saying this is that determining whether the pleadings disclose a reasonable cause of action within the meaning of Rule 173(

a) one must examine both the implicit legal conclusions (whether the cause of action relied upon is one known to law) and the material facts pled (whether these would, if proven, establish the legal cause of action relied upon). In the instant case, the facts as pled are entirely consistent with there being no liability under The Privacy Act . This is because whether a cause of action arises in relation to Ms Bigstone’s access to computer records depends entirely on the nature and source of the information she accessed.

If, as appears entirely plausible in the context of this case, the information accessed by Ms Bigstone simply showed that utilities consumed in the Mary Bigstone house were being billed to a party other than Mr. St. Pierre, then, while this is, in a negative sense, information about Mr. St. Pierre, this clearly would not be information in which Mr. St. Pierre has a privacy interest. [ 60 ] Where the issue is whether the plaintiff has pled sufficient material facts to support a cause of action, it is, with respect, irrelevant that the defendant knows the true facts of the matter.

The facts known to the defendant may well be such as to make it entirely clear that no liability can arise. The point of an application pursuant to Rule 173(

a) is not to obtain information. It is to avoid being put to the trouble and expense of defending a claim that has no possible merit. [ 61 ] In my view, ignoring the requirement to plead sufficient facts to support the cause of action relied upon, on the basis that we do not know what evidence may be called at trial, and it is therefore not “plain and obvious that the claim cannot succeed” significantly undermines the importance of Rule 173(

a) with significant implications for the broader jurisprudence. Many recent cases in this Province, for example, involving certification of class actions, have foundered on the requirement to plead sufficient material facts. (See, for example, Hoffman v. Monsanto Canada Inc. , 2007 SKCA 47 , 283 D.L.R. (4th) 190 and Wuttunee v. Merck Frosst Canada Ltd. , 2009 SKCA 43 , [2009] 5 W.W.R. 228).

On this view of the law, it would be sufficient to plead that a specific tort was committed, “on facts known only to the defendant and to be proven at trial.” [ 62 ] The fact that the existence of a cause of action is highly fact specific does not relieve a plaintiff from the obligation to plead the material facts upon which he or she relies. It enhances that obligation. Otherwise there would be no basis for determining whether the claim discloses a claim that would merit a trial. By the same token, the purpose of the “plain and obvious” test for striking a statement of claim pursuant to Rule 173(

a) is not to encourage or protect pleadings that are so vague or devoid of factual pleadings that it is impossible to determine whether, if proven, they would establish a legal cause of action.

The only uncertainty in the instant case is that we do not know the nature and source of the information the plaintiff alleges was accessed by Ms Bigstone. [ 63 ] In addition, where, as in the instant case, the facts of a claim are clearly not complex, and very little evidence could possibly be relevant, it is not appropriate, in my view, for this Court to duck the question of whether, in law, the facts pled do or could support a cause of action on the basis that the legal issue is novel and difficult.

This approach defeats the goal of judicial efficiency and vastly increases the costs to litigants. [ 64 ] In this case it is conceded that the nature of the information alleged to have been acquired by the defendant Bigstone is not pled.

The statement of claim does not allege that the plaintiff was the source of the information or that it was provided in confidence. None of the facts set out in s. 3 of the Act as prima facie evidence of a violation of privacy is alleged. No other circumstances are pled that would or could establish that the plaintiff was entitled to privacy in relation to the information in question. The mere fact that the information in some way concerned the plaintiff is clearly not sufficient to establish this.

In short, the respondent failed to plead facts sufficient, if proven to be true, to establish the tort of violation of privacy that he alleges. [ 65 ] I would allow the appeal and strike the statement of claim on the ground that it discloses no reasonable cause of action. DATED at the City of Regina, in the Province of Saskatchewan, this 15th day of March, A.D. 2011. “SMITH J.A.” SMITH J.A.