INLAND STEEL PRODUCTS INC. PLAINTIFF - v. –, 2023 SKKB 132

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 132 Date: 2023 06 23 Docket: KBG-SA-00919-2022 Judicial Centre: Saskatoon BETWEEN: INLAND STEEL PRODUCTS INC. PLAINTIFF - and – MICHAEL HIGGINS AND ROBERTSON IMPLEMENTS DEFENDANTS CORRECTED JUDGMENT: The text of the original judgment has been changed per the corrigendum released July 17, 2023. (A copy of the corrigendum is appended to this corrected judgment.) Counsel: Robert J. Frost-Hinz for the plaintiff, Inland Steel Products Inc. Jared M. McRorie and Walker A. Paterson for the defendant, Michael Higgins Karen L.

McPeak for the defendant, Robertson Implements ___________________________________________________________________________ JUDGMENT MORRALL J. June 23, 2023 ___________________________________________________________________________ Introduction [ 1 ] The Court was confronted with two applications in this matter. [ 2 ] The first application was brought by the plaintiff, Inland Steel Products Inc. [Inland], in an appearance day notice requesting an order pursuant to Rule 5-12 of The Queen’s Bench Rules compelling the defendant, Michael Higgins [Mr.

Higgins], to serve his affidavit of documents on Inland and to produce copies of certain documents within 10 days, along with costs. This matter was filed with the Court on May 25, 2023. [ 3 ] The other application was brought by Mr. Higgins requesting an order pursuant to Rule 7-9 of The Queen’s Bench Rules striking Inland’s claim in its entirety.

This matter was also filed with the Court on May 25, 2023. [ 4 ] Given the subject matter and legal consequences of the application to strike, I determined that application must be argued and determined first before there could be any consideration of Inland’s application. Therefore, I adjourned Inland’s application sine die to be brought back on three days’ notice after receipt of my decision on Mr. Higgins’ application. As there would be no requirement for any further documents to be filed or steps to be taken in the litigation process should I determine that Mr.

Higgins is successful, it would logically be the first application to proceed. Background

[ 5 ] I will attempt to only include the salient facts when reviewing the various proceedings. [ 6 ] On September 19, 2022, Inland issued a statement of claim against both Mr. Higgins and Robertson Implements [Robertson]. [ 7 ] In the claim, they allege the following: 1) Mr. Higgins was employed by Inland from September 21, 2021 to March 17, 2022; 2) as part of his employment with Inland he executed an employment contract on September 21, 2021, which included confidentiality and non-solicitation clauses.

Upon the termination of his employment from Inland, he executed a release document dated March 20, 2022, which referenced his continuing obligations relating to non-competition and non-solicitation for a period of 12 months following the termination of the employment relationship; 3) following the cessation of employment with Inland, Mr. Higgins subsequently obtained employment with Robertson; 4) it is alleged that Mr.

Higgins solicited at least one employee of Inland to terminate his employment with Inland and accept employment with Robertson; 5) this solicitation is a breach of the employment contract and the release document executed by Mr. Higgins; 6) on July 28, 2022, Inland informed Robertson of Mr. Higgins’ continuing obligations pursuant to the employment contract and release document; 7) despite this acquired knowledge, Robertson continued to assist or permit Mr. Higgins to commit the previously identified breaches; 8) Inland claims against Robertson for unjust enrichment with Robertson receiving a benefit from Mr.

Higgins’ unlawful conduct to Inland’s detriment; and 9) given the contractual breaches and torts identified in the claim, Inland claims to have suffered various types of damages and has taken reasonable efforts to mitigate these damages and they allege they have been irreparably harmed by the conduct of all the defendants. [ 8 ] A statement of defence was filed on October 27, 2022 by Robertson. [ 9 ] A request for particulars was filed on behalf of both defendants on November 1, 2022. In this document they request particulars with respect to the following material: 1) the identity of the employee(

s) Mr. Higgins is alleged to have solicited as well as the dates and times of same; 2) the identity of anyone else he is alleged to have solicited; 3) any correspondence or documentation that is being relied upon to demonstrate this solicitation; 4) any acts that constitute allegations that Robertson continued to assist and permit Mr. Higgins to continue breaching his agreements with Inland; and 5) details of how Robertson has been unjustly enriched due to Mr. Higgins’ actions. [ 10 ] A statement of defence was filed on November 10, 2022 by Mr. Higgins.

In this defence, part of their submissions includes allegations that Inland’s claim discloses no reasonable cause of action by failing to establish a prima facie case. [ 11 ] With respect to the application to strike, no affidavit material was filed by any party. [ 12 ] However, a response to the demand for particulars was filed with the Court on June 5, 2023 by Inland. In that document, which appears to have been served on the defendants on October 31, 2022, they respond as follows to the five requests for particulars in turn: 1) the employee solicited was Oleh Dusaniuk .

However, the full scope and specific acts of solicitation are unknown and will be determined through questioning and document production; 2) the full scope of the solicitation is not known and will be determined through questioning and document production; 3) Inland has not located any specific documentation of Mr. Higgins’ solicitation activities; 4) full particulars of any acts by Robertson that assisted or permitted Mr. Higgins to breach his contracts are unknown and will be discovered through document production and questioning. However, as of July 28, 2022, Robertson continued to employ Mr.

Oleh Dusaniuk despite notification he had been solicited; and 5) they will likely require expert evidence to determine the extent Robertson has been unjustly enriched. The Law [ 13 ] Rule 7-9 of The Queen’s Bench Rules states as follows:

Striking out a pleading or other document, etc. in certain circumstances 7-9(1) If the circumstances warrant and one or more conditions pursuant to subrule (2) apply, the Court may order one or more of thefollowing: (

a) that all or any part of a pleading or other document be struck out; (

b) that a pleading or other document be amended or set aside; (

c) that a judgment or an order be entered; (

d) that the proceeding be stayed or dismissed.

(2) The conditions for an order pursuant to subrule (1) are that the pleading or other document: (

a) discloses no reasonable claim or defence, as the case may be; (

b) is scandalous, frivolous or vexatious; (

c) is immaterial, redundant or unnecessarily lengthy; (

d) may prejudice or delay the fair trial or hearing of the proceeding; or (

e) is otherwise an abuse of process of the Court.

(3) No evidence is admissible on an application pursuant to clause (2)(a). [14] In their notice of application filed May 25, 2023, Mr. Higgins applies to strike the entirety of Inland’s statementof claim without reference to any specific portion of Rule 7-9. However, during argument, it became clear that Rules 7-9(2)(a), 7-9(2)(b)and 7-9(2)(

e) were engaged. [15] With respect to an application to strike under Rule 7-9(2)(a), the Saskatchewan Court of Appeal in Harsch vSaskatchewan Government Insurance, 2021 SKCA 159, [2022] 2 WWR 675, outlined the considerations a Court must take into accountas follows: 17 The legal principles that govern applications to strike pleadings on the basis that they fail to disclose a reasonable cause of actionare well-known.

In Merchant [2017 SKCA 62, [2017] 10 WWR 664], Ryan-Froslie J.A. summarized them in this way: [18] Chief Justice McLachlin, writing for the Supreme Court of Canada, in R v Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3SCR 45 set out the principles governing such applications: (

a) it is incumbent on a plaintiff to clearly plead the facts upon which it relies in making its claim (para 22); (

b) such applications proceed on the basis that the facts pled are true, "unless they are manifestly incapable of being proven" (paras 22and 23); (

c) a claim will only be struck if it is plain and obvious it discloses no reasonable cause of action, that is, it has no reasonable prospect ofsuccess (para 17); and (d) "[t]he law is not static and unchanging", thus, the approach taken in applications to strike "must be generous and err on the side ofpermitting a novel but arguable claim to proceed" (para 21).

See also Sagon v Royal Bank of Canada (1992), (SK CA), 105 Sask R 133 (CA) at para 16 [Sagon]; and Filson vCanada (Attorney General), 2015 SKCA 80 at para 19, 388 DLR (4th) 66 [Filson]. [19] In deciding an application to strike a claim on the basis it discloses no reasonable cause of action, a judge is limited to consideringonly the statement of claim, any document referred to therein, and any response to a request for particulars (Sagon at para 16; Filson atpara 20).

A judge is not permitted to consider affidavit or other extraneous evidence. 18 The requirement to accept the pleaded facts as true when considering an application to strike means that the plaintiff's claim is to beevaluated in its best light. The task for a reviewing judge in an application under Rule 7-9(2)(

a) is to determine, by considering the wholeof the statement of claim, whether sufficient facts have been pleaded to establish the essential legal elements of a cause of action(Harpold [2020 SKCA 98] at para 26; Reisinger [2017 SKCA 11, [2017] 8 WWR 532] at para 20). 19 It is also important to bear in mind two other things. First, in the context of an application under Rule 7-9(2)(a), the question iswhether the statement of claim pleads sufficient facts to establish a cause of action known at law; the plaintiff does not have to pleadfacts to negate defences the defendant may have to that cause of action.

Second, the refusal of a court to strike a claim does not mean thata plaintiff will succeed at trial. It simply means that the claim may proceed to trial, where the plaintiff will have to prove the claim in theusual way (Taheri [2021 SKCA 9, 456 DLR (4th) 306] at para 22). [16] With respect to an application to strike under Rule 7-9(2)(

b) and 7-9(2)(e), the decision of Siemens v Baker,2019 SKQB 99 [Siemens], outlined the considerations a court must take into account as follows: 22 Sagon v Royal Bank (1992), (SK CA), 105 Sask R 133 (Sask CA) is the seminal case relating to striking apleading. It is especially relevant for present purposes because it addressed an application alleging a statement of claim was deficient, in

part, because it was scandalous, frivolous, vexatious, and an abuse of process. Respecting arguments that the pleading ran afoul of whatare now Rules 7-9(2)(

b) and 7-9(2)(e), Sherstobitoff J.A. said this: [18] Striking out an entire claim on the ground that it is frivolous, vexatious or an abuse of process of the court is based on an entirelydifferent footing [than the ground of disclosing no reasonable cause of action]. Instead of considering merely the adequacy of thepleadings to support a reasonable cause of action, it may involve an assessment of the merits of the claim, and the motives of the plaintiffin bringing it. Evidence other than the pleadings is admissible.

Success on such an application will normally result in dismissal of theaction, with the result that the rule of res judicata will likely apply to any subsequent efforts to bring new actions based on the samefacts. Odgers on Pleadings and Practice, 20th Ed. says at pp. 153-154: "If, in all the circumstances of the case, it is obvious that the claim or defence is devoid of all merit or cannot possibly succeed, anorder may be made. But it is a jurisdiction which ought to be very sparingly exercised, and only in very exceptional cases.

Its exercisewould not be justified merely because the story told in the pleadings is highly improbable, and one which it is difficult to believe couldbe proved." (footnotes omitted) [19] Finally, a separate mention should be made of the power of the court to prevent abuse of its process, a power which is inherent aswell as conferred under rule 173. Bullen and Leake [Precedents of Pleadings, 12th ed.] defines the power as follows at pp. 148-149: "The term 'abuse of the process of the court' is a term of great significance.

It connotes that the process of the court must be carriedout properly, honestly and in good faith; and it means that the court will not allow its function as a court of law to be misused but will in aproper case, prevent its machinery from being used as a means of vexation or oppression in the process of litigation. It follows that wherean abuse of process has taken place, the intervention of the court by the stay or even dismissal of proceedings, 'although it should not belightly done, yet it may often be required by the very essence of justice to be done'.

"The term 'abuse of process' is often used interchangeably with the terms 'frivolous' or 'vexatious' either separately or more usually inconjunction." (footnotes omitted) 23 Although these terms are often used interchangeably, it is helpful to differentiate among them. A pleading will qualify as"scandalous" if it levels degrading charges or baseless allegations of misconduct or bad faith against an opposite party. See: Paulsen vSaskatchewan (Ministry of Environment), 2013 SKQB 119 at para 45, 418 Sask R 96 [Paulsen] and the authorities cited there.

Courts inBritish Columbia, for example, have described a scandalous pleading as "one that is so irrelevant that it will involve the parties in uselessexpense and prejudice the [pursuit] of the action by involving them in a dispute apart from the issues".

See: Turpel-Lafond v BritishColumbia, 2019 BCSC 51 at para 23, (2019), 429 DLR (4th) 131 [Turpel-Lafond] quoting from Woolsey v Dawson Creek (City), 2011BCSC 751 at para 28. 24 A pleading will qualify as "vexatious" if it was commenced for an ulterior motive (other than to enforce a true legal claim) ormaliciously for the purposes of delay or simply to annoy the defendants. See: Paulsen, at para 46. Put another way, it is vexatious if itdoes not assist in establishing a plaintiff's cause of action or fails to advance a claim known in law.

See: Turpel-Lafond, at para 23. 25 A pleading will qualify as "frivolous" if it is plain or obvious or beyond reasonable doubt the claim it advances is groundless andcannot succeed. See: Hunt v T & N plc, (SCC), [1990] 2 SCR 959 at 980; Paulsen at para 47; and Wayneroy HoldingsLtd. v Sideen, 2002 BCSC 1510 at para 17. 26 Finally, the concept of a pleading qualifying as an abuse of process is somewhat more expansive than the other categoriesidentified above.

In Bear v Merck Frosst Canada & Co., 2011 SKCA 152, 345 DLR (4th) 152 (Sask CA), for example, the Court ofAppeal described it at para. 36 as "a flexible concept not restricted by the requirements of issue estoppel" reflecting "the inherent powerof a judge to prevent an abuse of his or her court's authority". Writing for the court, Richards J.A. (as he then was) elaborated at para. 38as follows: [38] The need to maintain the integrity of the adjudicative process sits at the heart of the concept of abuse of process.

The Supreme Courtof Canada explained this point as follows in Toronto (City) v C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 SCR 77: [51] Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of theadjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation willyield a more accurate result than the original proceeding.

Second, if the same result is reached in the subsequent proceeding, therelitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly anadditional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in thefirst on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, therebydiminishing its authority, its credibility and its aim of finality.

See also: Cameco Corp. v Insurance Co. of State of Pennsylvania, 2010 SKCA 95, [2010] 10 WWR 385 per Cameron J.A. at paras. 47-50. 27 More recently, the Court of Appeal explained in Canada (Attorney General) v Merchant Law Group LLP, 2017 SKCA 62, [2017]10 WWR 664 [Merchant Law Group (SKCA)] that there "is no set test for determining whether something amounts to an abuse ofprocess". Rather, such a determination is discretionary. See: Merchant Law Group (SKCA) at para 100. 28 Finally, any applicant asserting that a statement of claim runs afoul of Rules 7-9(2)(

b) or (

e) bears the onus to establish that "thealleged cause of action is such that no reasonable person could treat it as bona fide and contend that [the plaintiff] was entitled toapproach the court with such a complaint". See, for example: Kichula v Farm Credit Corp. (1991), (SK KB), 95 SaskR 245 (Sask QB) at para 18; and Rubbert v Boxrud, 2014 SKQB 221 at para 38, 450 Sask R 147. [17] Of note, if a pleading is any of “scandalous, frivolous or vexatious”, it is an abuse of process of the Court andmay be struck out. (See Yashcheshen v Janssen Inc., 2022 SKCA 140 at para 23.)

Position of the Parties [18] Mr. Higgins posits that Inland’s claim and particulars contains no statements connecting the bald allegation ofsolicitation to any facts to be substantiated through evidence. Further, Inland’s responses received through the demand for particularsdemonstrate that they presently have no evidence or facts to support their allegations.

Therefore, there is no reasonable cause of action inthe claim and/or the claim is scandalous, frivolous or vexatious as the claim is simply a fishing expedition. [19] Inland suggests that it had advanced a meritorious claim reasonably capable of success and has pled the requiredfacts to establish the nature of the contract, the parties to the contract, the relevant terms of the contract, which term of the contract wasbreached, the conduct giving rise to the breach and the damage flowing from the breach. Therefore, given that the claim is neitherhopeless nor does it contain a radical defect, Mr.

Higgins’ application to strike must be dismissed. Issues [20] The two issues to determine are as follows: 1. whether Inland’s statement of claim should be struck based on the fact it discloses no reasonable cause of action; and 2. whether Inland’s statement of claim should be struck based on the fact it is either scandalous, frivolous or vexatious. Analysis [21] It is best to begin this analysis by examining The Queen’s Bench Rules that outline what should be contained inpleadings.

Rule 13-8 through to Rule 13-13 set out what should and should not be contained in a statement of claim. [22] As stated in Harpold v Saskatchewan (Corrections and Policing), 2020 SKCA 98 [Harpold]: 29 Rule 13-8 reflects the jurisprudence in relation to the purposes of pleadings, which were described in Ducharme v Davies (1983), (SK CA), 29 Sask R 54 (Sask CA) [Ducharme], in these terms: [64] 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 lawsuit and must be framed with care.

The following passage taken from The Lawof Civil Procedure - Williston and Rolls (vol. 2, [1970] page 636) illustrates why a careful pleading is still important; The function ofpleadings 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 disclosedby them. 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 adjudicatedbetween the parties.

See also Reisinger [2017 SKCA 11, [2017] 8 WWR 532]; Rieger v Burgess, (SK CA), [1988] 4 WWR 577 (Sask CA)(leave to appeal refused, [1988] SCCA No 209 (SCC) (QL)); National Bank Financial Ltd. v Barthe Estate, 2015 NSCA 47 (NS CA) atpara 281, 359 NSR (2d) 258; and Thirsk v Saskatchewan (Public Guardian and Trustee), 2017 SKQB 66 [Thirsk]. [23] Of specific relevance to the issue in the case at bar, the Court in Mallard v Killoran, 2005 SKQB 203 [Mallard],stated as follows: 27 … What is particularly germaine to this application is that evidence is not to be included in a pleading. See Hutchinson v.

SaskatoonFuneral Home Co. (1985), (SK KB), 41 Sask. R. 119 (Sask. Q.B.) and Coble v. Canadian Pacific Railway, (SK KB), [1944] 1 W.W.R. 161 (Sask. K.B.). In the event of non-compliance with Rule 139(1), a pleading or part of apleading may be struck in the discretion of the Court. [24] I point out that litigation in the civil sphere is much different than criminal law processes. In criminal law,before swearing an Information, the police need to have reasonable grounds. Necessarily, this requires direct or inferential evidence of acrime.

Further, the accused has a right to remain silent and cannot be forced to give evidence against himself. [25] In civil law in Saskatchewan, no such right to silence on behalf of litigants exists. A plaintiff may sue adefendant so long as a reasonable cause of action is disclosed in the pleadings or that it does not otherwise run afoul with Rule 7-9. Whilethere must be a nexus between the facts pled in the claim and the cause of action, it initially requires much less than reasonable groundsor specific direct or inferential evidence by the claimant.

More specifically, the defendant does not have the luxury of remaining silent inthe face of the claim and forcing the plaintiff to prove his case without the defendant being questioned or some documentation beingprovided on the defendant’s behalf. [26] In the case at bar, the nexus relied on by the plaintiff to initiate the claim is that Mr. Higgins began employmentat Robertson less than a year after working at Inland, and an employee who formerly worked at Inland with Mr. Higgins joinedRobertson within that year to work.

From the pleadings and particulars, it is clear that Inland has no documentary or eyewitness evidenceof any actual solicitation. Therefore, this Court must determine within the framework of The Queen’s Bench Rules and case law

underpinning the Rules whether the plaintiff’s statement of claim can withstand an application to strike. 1. Whether Inland’s statement of claim should be struck based on the fact it discloses no reasonable cause of action. [27] I begin my analysis by examining whether Mr. Higgins’ application to strike can succeed under Rule 7-9(2)(a)in that Inland’s claim discloses no reasonable cause of action. The facts and analysis in Harpold are instructive for this examinationgiven the conceptual similarities. The Court stated as follows: 57 Respectfully, I do not accept those arguments.

Principally, they are built on assumptions of fact and inferences derived from thoseassumptions - much of which was pleaded in the statement of defence and in the affidavit of C.K. (filed in relation to the frivolousargument ground). As such, the arguments amount to little more than bald assertions that the actions and inactions of the probationofficers in question were taken in good faith. Whether the probation officers acted in good faith is a question of fact. Fact-finding or evenreliance on a defendant's pleadings is beyond the scope of an application to strike under Rule 7-9(2)(a).

As this Court made clear inSagon [(1992), (SK CA), 105 Sask R 133 (CA)] on an application to strike, "the court may consider only thestatement of claim, any particulars furnished pursuant to demand, and any document referred to in the claim upon which the plaintiffmust rely to establish his case" (citations omitted, at para 16). Furthermore, the Corrections and Policing argument ignores Mr. Harpold'spleadings. As I read his pleadings, Mr.

Harpold argues that Corrections and Policing was motivated by an improper purpose when itwithdrew approval for the Fort McMurray job and the other jobs: i.e., continued punishment for his past crimes and as a "set-up" for abreach of his conditions. 58 Corrections and Policing next argues that the probation officers in question lacked any subjective awareness that their conductwas likely to injure Mr. Harpold. Once again, this is an evidentiary issue. To succeed with his claim, Mr.

Harpold will have to prove thiselement of the tort on a balance of probabilities; however, for purposes of an application to strike, the facts as pleaded are taken as beingtrue. As discussed above, a fair reading of his claim satisfies me that Mr. Harpold has pleaded that the actions of the probation officers inquestion were at least reckless and wilfully blind to the harm that would befall him. 59 Corrections and Policing also argues that the damages sought by Mr. Harpold are the product of the conditions of hisrecognizance generated by his criminal wrongdoing and not by any unlawful conduct on its part.

Once again, this argument ignores Mr.Harpold's pleadings in which he alleges that the probation officers acted unlawfully and for an improper motive. b. Conclusion on misfeasance claim 60 In

summary, while the arguments advanced by Corrections and Policing may disclose a potential defence, which would bevindicated at trial or in a

summary judgment application, the Chambers judge was required to consider the application to strike Mr.Harpold's action for disclosing no reasonable cause of action in accordance with the principles set out in Sagon and Swift Current [2007SKCA 27, [2007] 5 WWR 387]. That is, the Chambers judge had to address this question: Assuming the facts as stated in the statementof claim are true, is it plain and obvious that Mr. Harpold's claim discloses no reasonable cause of action?

As Odhavji emphasized, thisis a stringent test: "It is only if the statement of claim is certain to fail because it contains a 'radical defect' that the plaintiff should bedriven from the judgment [seat]" (at para 15). 61 Unquestionably, Mr. Harpold's statement of claim and reply is a long, logorrheic narrative of fact. It is repetitive and contains agreat deal of argument, much of which is irrelevant to his underlying claim. Of course, all of that makes extracting a cause of action avery challenging exercise for the reviewing judge. Nonetheless, that is what was required.

Respectfully, in the specific circumstances ofthis case, I find the Chambers judge erred in failing to assess Mr. Harpold's claim through the lens of the tort of misfeasance in publicoffice, which, in turn, caused her to reach the erroneous conclusion that no cause of action had been pleaded. [28] In the case at bar, the pleadings do not have any of the issues related to length or wordiness that vexed the Courtin Harpold. I find that Inland’s claim sets out an appropriate legal cause of action related to breach of contract and the damages resultingfrom that breach.

It does not contain any evidentiary material related to the specifics of how the breach occurred. However, this is inkeeping with the law outlined in the Mallard decision and, quite simply, in compliance with The Queen’s Bench Rules relating toproperly drafted pleadings. The Court does not appreciate cluttered “logorrheic” pleadings that provide lengthy dissertations that outlinethe precise events that constitute the genesis of the claim. Pleadings should be concise and make the other party aware of their legalstatus and the jeopardy facing the other party.

The discovery portion of the civil process is where the minutiae of the evidence should bedetailed. [29] As noted in the case law, there is a difference between evidence and facts in the context of pleadings. While Mr.Higgins may complain that there is no evidentiary basis for Inland’s claim, that does not necessarily mean that the appropriate facts tosupport their claim were not pled. In the case at bar, Inland stated in their claim that Mr. Higgins solicited an employee contrary to therelease document and employment contract. This is the allegation of fact upon which the claim is based.

As noted in Harpold and otherdecisions, in an application to strike under Rule 7-9(2)(

a) I must assume all allegations of fact to be true. While I am aware of the resultsof the demand for particulars which demonstrate that Inland presently has no specific evidence of this allegation, I must scrutinize thispart of the application without regard to the lack of specific evidence on Inland’s part. I must determine whether the claim is certain tofail. [30] In reviewing the pleadings, including the demand and response to the demand for particulars, I have come to theconclusion that the claim is not certain to fail.

Simply because Inland does not presently have the evidentiary basis to succeed at trial orsummary judgment at this point does not disentitle them from making this claim. Through questioning and document production, theymay obtain the necessary building blocks for their claim to be successful. I find that the nexus between Mr. Dusaniuk joiningMr. Higgins at his employment at Robertson is not so remote that no cause of action could succeed as a result of the breach of the non-solicitation clause. It is possible as a result of that alleged fact that Mr. Higgins could have solicited Mr.

Dusaniuk to quit Inland andwork for Robertson. The timing of the events leading to Mr. Dusanuik’s employment at Robertson allow for that allegation to bepossible. During questioning of either Mr. Higgins or Mr. Dusanuik, they may provide details and/or documents related to a fact ofsolicitation. As I mentioned previously, the civil process does not provide a right to silence in this situation. Inland is entitled to make

this claim and ask questions related to the allegations they propound. [31] That said, I do not believe that it is likely that Mr. Dusaniuk or Mr. Higgins will provide the evidentiary basisfor this claim. “Matlock” moments during questioning are exceedingly rare. It is also unlikely that a “smoking gun” piece ofdocumentary evidence will be found by Inland. There are no doubt risks associated with costs should Inland persist with this claim to thetrial stage without an evidentiary basis for their allegations. However, the timing of the material facts allows for the possibility that theallegations might be true.

As noted in Sagon v Royal Bank of Canada (1992), (SK CA), 105 Sask R 133 (CA), simplybecause proof of a claim is improbable or difficult does not render it incapable of disclosing a reasonable cause of action. Therefore,assuming the material facts of the claim are true, I find that the claim is not certain to fail and Mr. Higgins’ application under Rule 7-9(2)(

a) is dismissed. 2. Whether Inland’s statement of claim should be struck based on the fact it is either scandalous, frivolous orvexatious. [32] That does not end the matter as Mr. Higgins’ application is also based on Rules 7-9(2)(

b) and 7-9(2)(

e) andsome different legal considerations apply in scrutinizing a claim under these Rules. Specifically, as noted in Siemens, the assessment ofthe Court must involve a determination of the merits of the claim with the onus being on Mr. Higgins to prove that the claim isscandalous, frivolous or vexatious, the motives behind why the claim was brought and the additional factor that affidavit material as wellas pleadings can be considered by the Court. Curiously at this stage, no affidavit material was proffered by Mr. Higgins.

This wasperhaps due to the fact that his counsel alleges Inland’s claim is a baseless fishing expedition. [33] Given the lack of material aside from the pleadings, it is clear that there is no basis to allege the claim is eitherscandalous or vexatious. As noted in Siemens, for a claim to be “scandalous” there must be some basis to believe that Inland is levellingdegrading charges or baseless allegations of misconduct or bad faith against Mr. Higgins and/or Robertson. There is no evidence of anysuch scandalous allegations.

To prove that a claim is “vexatious”, the claimant has the onus of demonstrating it was commenced for anulterior motive or maliciously for the purposes of delay or simply to annoy the defendants.

There is no evidence that the allegations werevexatious either by inference or direct evidence. [34] In determining whether Inland’s claim is “frivolous”, the applicant bears the onus of proving that it is plain orobvious or beyond reasonable doubt that the claim the respondent advances is groundless and cannot succeed. [35] At this point, to better understand when a claim is determined to be frivolous, I will review a decision where thelegal principles involving a potentially frivolous or abuse of process claim were applied. [36] In Painchaud v 101183985 Saskatchewan Ltd., 2016 SKQB 139 [Painchaud], the Court was faced with anapplication to strike by one defendant in a fact situation where the plaintiff had sued two individual defendants as a result of a slip andfall claim.

In support and opposition of this motion, affidavits were filed by the plaintiff and both defendants. The upshot of the firstdefendant’s affidavit, who requested the claim to be struck, was that he did not have any ownership interest in the store where theplaintiff’s slip and fall occurred. The affidavit of the second defendant corroborated this state of affairs and admitted her ownership andliability interests.

The plaintiff’s affidavit simply noted that she had witnessed the first defendant in the store on several occasions andnoted that he was the one who called 911 and took control of the situation when the slip and fall occurred. [37] The Court, in examining the law as it was in 2016, found that the terms “frivolous” and “abuse of process” wereinterchangeable terms.

While the case law is now more specific about differentiating these various terms, for the purposes of the matterbefore the Court, the distinctions in the law do not make a difference. [38] In determining the application to strike after reviewing the case law, the Court said as follows in Painchaud: 23 In this instance, I have before me the affidavits of the defendant/applicant and the affidavit of Robin Brown. The purport of theseaffidavits is identical.

To put their comments succinctly, they both depose to the proposition that this defendant had no legal ownershipor responsibility in the market nor did he have any management or employee responsibility. The responding affidavit of the plaintiff, LoisPainchaud, is in my view as is the statement of claim, skeletal as it relates to the involvement of Mr. Garvalena. There is no basis offeredfor the plaintiff's statement of belief set forth in para. 6 that Mr.

Garvalena was aware of the fact that the store fixture was leaking wateron the floor, and that he appeared to have some responsibility for acting or directing the actions of others in relation to the repair andmaintenance of the fixture. Her assertion that he appeared to assume some responsibility for the safety of customers in the store isconsistent with other explanations than ownership, control, employment or responsibility.

A good samaritan might well have chosen todo the same thing. 24 In addition, to simply indicate that this defendant is the husband of the defendant Robin Brown (the sole shareholder of thedefendant 101183985 Saskatchewan Ltd.), is hardly a basis upon which to ascribe liability to the defendant for the plaintiff's injuries. 25 What is significant to me in this instance is the unequivocal assertion by Juan Carlos Rodriguez Garvalena and Robin Brown as tohis non-involvement in the ownership, or management of the Turtleford Main Street Market.

His presence alone does not suggestanything to the contrary. 26 The affidavit of Robin Brown in para. 17 chronicles her counsel's correspondence with counsel for the plaintiff in some detail. Inthis exchange of correspondence, the defendant/applicant Juan Carlos Rodriguez Garvalena's lack of legal involvement in the TurtlefordMain Street Market is clearly demonstrated.

Again, this is supported by corporate documentation. 27 The plaintiff's counsel has also asserted under the umbrella of occupier's liability, that the facts of this matter as set forth in thepleadings and the affidavits, serve to demonstrate that negligence could well be founded on the part of the defendant/applicant. Withrespect, I am unable to agree with this proposition as in my view there is simply no factual basis which has been advanced to provide thenecessary framework for the application of the principles of occupier's liability and resultant negligence.

28 In returning to the rationale set forth in the Saskatchewan Court of Appeal decision in Markwart [2015 SKCA 63 , 36 MPLR (5th) 177 ], I am of the view that an assessment of the merits of the plaintiff's claim vis-à-vis this defendant, leads me to the conclusion that the claim is devoid of all merit and cannot possibly succeed. 29 Accordingly, the defendant/applicant is entitled to have the claim against him struck as being an abuse of the process of the court pursuant to Rule 7-9(2)(e). [ 39 ] Whether I am to determine that this claim is frivolous and/or an abuse of process, I find it is clear that I would need an evidentiary basis to come to a conclusion that the claim is devoid of all merit.

As noted in my analysis under Rule 7-9(2)(a), I found that there is a potential for a reasonable cause of action. To displace that potential in the situation in the case at bar, the case law is clear that I would require some evidence to indicate that no basis for a claim exists. Likely, this would have to be provided in the form of affidavit evidence from Mr. Dusaniuk and Mr. Higgins that Mr. Higgins did not solicit Mr. Dusaniak, if that, in fact, is the case.

At this stage, without any affidavit evidence, I am left with an evidentiary void in a situation where the applicant bears the onus of proving matters which necessarily require material declaring that a certain state of affairs exist. [ 40 ] The decision of Painchaud is a clear example of a situation where the applicants provided uncontroverted affidavit evidence demonstrating that the allegations of fact made by the plaintiff are demonstrably false. As the plaintiff had no meritorious basis to proceed with a claim against that defendant, her claim was properly struck.

Of note, the defendants could not sit idle and attempt to rely on the skeletal nature of the allegations to assist them in striking the claim. They were required to positively provide some evidence to support their position that the plaintiff’s claim was plain or obvious or beyond reasonable doubt groundless without a chance of success. [ 41 ] Given the lack of any evidence and as a result of my ruling that a reasonable cause of action was disclosed by Inland, I find that Mr. Higgins’ application under Rule 7-9(2)(

b) and (

e) of The Queen’s Bench Rules must fail for the reasons expressed above. [ 42 ] Given the complete success of Inland with respect to this application, I assess costs in column 1 for Inland as against Mr. Higgins only in any event of the cause. Given the limited role Robertson played in this application, no costs shall be awarded with respect to their

part in this application. ______________________________J. J.P. MORRALL KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 132 Date: 2023 07 17 Docket: KBG-SA-00919-2022 Judicial Centre: Saskatoon BETWEEN: INLAND STEEL PRODUCTS INC. PLAINTIFF - and – MICHAEL HIGGINS AND ROBERTSON IMPLEMENTS DEFENDANTS

Counsel: Robert J. Frost-Hinz for the plaintiff, Inland Steel Products Inc. Jared M. McRorie and Walker A. Paterson for the defendant, Michael Higgins Karen L. McPeak for the defendant, Robertson Implements ___________________________________________________________________________ CORRIGENDUM TO JUDGMENT DATED JUNE 23, 2023 (2023 SKKB 132) JULY 17, 2023 MORRALL J. ___________________________________________________________________________ [1] In paragraph 27, the reference to Rule 7(2)(

a) has been corrected to read Rule 7-9(2)(a). [2] In paragraph 29, the reference to Rule 7(2)(

a) has been corrected to read Rule 7-9(2)(a). [3] In paragraph 31, the reference to Rule 7(2)(

a) has been corrected to read Rule 7-9(2)(a). [4] In paragraph 32, the reference to Rule 7(2)(

b) and 7(2)(

e) has been corrected to read Rule 7-9(2)(

b) and 7-9(2) (e). [5] In paragraph 39, the reference to Rule 7(2)(

a) has been corrected to read Rule 7-9(2)(a). [6] In paragraph 41, the reference to Rule 7(2)(

b) and (

e) has been corrected to read Rule 7-9(2)(

b) and (e). _________________________J. J.P. MORRALL