James Hynes First Plaintiff And: Barry HYNES Second Plaintiff And: Seaforce Technologies Inc. Third Plaintiff And: Seaforce Diving Limited Fourth Plaintiff And: Pro Dive marine services Limited First Defendant And: David Squires Second Defendant, 2021 NLSC 154

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Hynes v. Pro Dive Marine Services Limited , 2021 NLSC 154 Date : November 19, 2021 Docket : 201201G3477 Between: James Hynes First Plaintiff And: Barry HYNES Second Plaintiff And: Seaforce Technologies Inc. Third Plaintiff And: Seaforce Diving Limited Fourth Plaintiff And: Pro Dive marine services Limited First Defendant And: David Squires Second Defendant Before: Justice Daniel M. Boone Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: June 4, September 14 and October 4, 2021

Summary: The Plaintiff sought leave to amend his Statement of Claim, which had been amended numerous times before. The Court allowed certainof the amendments, including amendments setting out allegations of defamation against third parties in support of a claim for the tort ofunlawful means, and an express plea of inducing breach of contract. Other proposed amendments were not allowed as they containedimpermissible argument, inference, and conclusion. Appearances: Gregory M. Smith, Q.C. and Shane R. Belbin Appearing on behalf of the Plaintiffs Kevin F. Stamp, Q.C.

Appearing on behalf of the Defendants Authorities Cited: CASES CONSIDERED: Hynes v. Pro Dive Marine Services Ltd., 2014 NLTD(G) 81; Hynes v. Pro Dive Marine Services Ltd., 2016NLCA 17; Butler v. Kloster Cruise Ltd. (1992) (NL SC), 98 Nfld. & P.E.I.R. 138, 311 A.P.R. 138(Nfld. S.C.(T.D.));Kavanagh v. Newfoundland (Minister of Education), 2000 NFCA 2; Snow (Guardian ad litem of) v. Kashyap (1995), (NL CA), 125 Nfld. & P.E.I.R. 182, 433 A.P.R. 321 (Nfld. S.C. (App. Div.)); Humby Enterprises Ltd. v. A.L. Stuckless & Sons Ltd. 2003NLCA 20; McNamara Construction Co. v.

Newfoundland Transshipment Ltd. (2002), (NL SC), 213 Nfld. &P.E.I.R. 1 , 640 A.P.R. 1 (N.L.S.C.(T.D.)); Hynes. v. Pro Dive Marine Services Ltd., 2014 NLTD(G) 81; Hynes v. Pro Dive MarineServices Ltd., 2016 NLCA 17; Bram Enterprises Ltd. v. A.I. Enterprises Ltd., 2014 SCC 12; Alleslev-Krofchak v. Valcom Ltd., 2010ONCA 557, leave to appeal refused, [2011] 1 S.C.R. xi (note); STATUTES CONSIDERED: Limitations Act, S.N.L. 1995, c. L-16.1 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] The Plaintiff claims that the Defendants said things about him that caused damage to his reputation and caused TechnipCanada to terminate a contractual relationship with him. [2] The original Statement of Claim was issued in June 2012; since then, the Statement of Claim has been amended six times. [3] The first amendment was made with leave granted by Hurley J. following an application to strike the Statement of Claim. [4] The second amendment was allowed on application of the Plaintiffs for leave to amend. [5] The Defendants applied to strike that version of the Statement of Claim and their application succeeded in part but Hurley J.granted leave for further amendments, leading to a fourth version of the Statement of Claim in March, 2014. [6] The Defendants immediately applied to strike this version.

Goodridge J., as he then was, ordered (Hynes v. Pro Dive MarineServices Ltd., 2014 NLTD(G) 81) some of the fourth version struck, allowed leave to amend certain paragraphs, but denied leave toamend others, which decision was upheld on appeal (Hynes v. Pro Dive Marine Services Ltd., 2016 NLCA 17). [7] The Plaintiffs filed the fifth version of their pleading based on that decision in June 2016.

The Defendants applied to strikethat pleading and on the hearing of that application before Paquette J., a paragraph in that pleading was struck by consent. [8] In November 2017, the sixth version of the Statement of Claim with further amendments was filed on consent.

[9] I allowed the Second, Third, and Fourth Plaintiffs leave to discontinue their claims subject to an order as to costs. [10] The remaining Plaintiff, James Hynes, now applies for leave to further amend the Statement of Claim. The Defendants opposethis application. [11] Resolution of the issues in this matter will necessarily involve consideration of the previous decisions of the Court regardingthe Plaintiff’s pleadings. [12] I have decided that some of the proposed amendments should be allowed. ISSUES [13] The following issues arise: 1.

Does the form of the proposed Amended Statement of Claim comply with Rule 15.03? 2. Should the application to further amend the Statement of Claim be denied because it pleads a new cause of action? 3. Does the proposed Amended Statement of Claim plead a cause of action or allegations of fact which were already ordered struck bythe Court? 4. Does the proposed Amended Statement of Claim include impermissible inferences, argument and conclusions? 5. Does the proposed Amended Statement of Claim include sufficient particulars?

Legal Principles Governing Amendments [14] The Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D provide for amendments: 15.02Amending the text of pleadings filed with the Court 15.02

(1) If an amendment does not include the addition, deletion, substitution or correction of the name of a party to a proceeding, aparty may amend a pleading filed by that party other than an order: (

a) once without the leave of the Court if the amendment is made not later than 20 days from the date the pleadings are deemed to beclosed or 5 days before the hearing under an originating document; (

b) at any time with the written consent of all of the parties filed with the Court; or (

c) at any time with leave of the Court on such terms as it thinks just. 15.02(2) The Court may allow an amendment notwithstanding the effect of the amendment will be to add or substitute a new cause ofaction, if the new cause of action arises out of the same or substantially the same facts as the original cause of action. [15] The Rule provides that the power to amend is discretionary. In exercising discretion, Butler v. Kloster Cruise Ltd. (1992) (NL SC), 98 Nfld. & P.E.I.R. 138, 311 A.P.R. 138(Nfld.

S.C.(T.D.)) at para. 12, per Russell J.: 12 The power to amend is discretionary and a number of authorities have referred to four principles to be applied when determiningwhether to allow an amendment. To be allowed, an amendment (1) must not cause injustice to the other side, (2) must raise a triableissue, (3) must not be embarrassing, and (4) must be pleaded with particularity. (See 385925 Ontario Limited v. American Life InsuranceCo. et al (1984) (ON SC), 48 O.R. (2d) 142; Shore v.

Cantwell & Cantwell (1975) (NS SC), 21N.S.R. (2d) 288). [16] This statement of the law has been applied many times by this Court and approved by the Court of Appeal: Kavanagh v.Newfoundland (Minister of Education), 2000 NFCA 2, at para. 22. [17] The primary purposive consideration for the Court in deciding whether to grant an amendment is that the proceedings shouldbe structured so as to allow the real issues between the parties to be decided: Snow (Guardian ad litem of) v. Kashyap (1995), (NL CA), 125 Nfld. & P.E.I.R. 182, 433 A.P.R. 321 (Nfld. S.C. (App. Div.)), at para. 87, per Mahoney J.A.

Issue 1: Does the form of the proposed Amended Statement of Claim comply with Rule 15.03? [18] The Plaintiff has proposed amending the Statement of Claim through wholesale, rather than piecemeal, redrafting. TheDefendants take the position that this is not contemplated by Rule 15. In the alternative, the Defendants say that it would be unjust toallow a comprehensive redrafting of the Statement of Claim that presents a pleading without any resemblance to the Plaintiff’s priorpleadings on which the defence of the case has been based to date.

[19] Rule 15 does contemplate that piecemeal redrafting would be the ordinary course.

This is implicit in Rule 15.03(5), whichprovides that amendments must be underlined or otherwise marked so as to distinguish the change from the original pleading. [20] However, Rule 15 also contemplates that sometimes a complete redrafting is appropriate: 15.03(1) Where any amendment would make a document difficult or inconvenient to read, a new document, as amended, and bearing thedate of the original document, shall be filed, and served upon all the parties. [21] The Rule does not mandate either piecemeal or wholesale redrafting.

The Plaintiff says that the amendments he wishes tomake now would, if required to be fit within the current Statement of Claim, make that pleading difficult to follow and comprehend. This would seem to follow from the number of times that the pleadings have been amended. [22] Consequently, the conditions for application of Rule 15.03(1) are met and the amendment can take the form of an entire andthorough redraft so long as other requirements of pleading and amendment are met. [23] The complete redraft of the Statement of Claim will not work any injustice to the Defendant that cannot be compensated for incosts.

Notwithstanding the considerable passage of time since this proceeding started and the rather unusual amount of focus andattention that has been paid to the pleadings, the litigation has not advanced very much in other ways. For instance, only one oraldiscovery has been conducted. The Defendants have not demonstrated any formal steps taken in reliance on the pleadings, anyirrevocable informal actions such as destruction of documents, or any change in availability of witnesses or information. [24] I anticipate that the Defendants will wish to file a comprehensively amended Defence to respond to this amendment.

However,the effort required in that regard can be accounted for in costs and is not a sufficient reason to deny the amendment. Issue 2: Should the application to further amend the Statement of Claim be denied because it pleads a new cause of action? [25] As well as alleging defamation, all the prior iterations of the Statement of Claim alleged that the Defendants interfered with thePlaintiffs’ contractual and economic relations.

The parties agree that this allegation would sound in the tort, now known as causing lossby unlawful means, which I will discuss later in these reasons. [26] The proposed amendments plead a separate and new cause of action: inducing breach of contract. [27] The Defendants argue that this cause of action is insufficiently pleaded in the proposed amendments. [28] The parties agree that the elements of the tort of inducing breach of contract are as set out by the Court of Appeal in HumbyEnterprises Ltd. v. A.L.

Stuckless & Sons Ltd. 2003 NLCA 20, at para. 60, adopting from the decision of Orsborn J. (as he then was) inMcNamara Construction Co. v. Newfoundland Transshipment Ltd. (2002), (NL SC), 213 Nfld. & P.E.I.R. 1 , 640A.P.R. 1 (N.L.S.C.(T.D.)) 60 The six components of the tort are succinctly listed by Orsborn J., in McNamara Construction Co. v. NewfoundlandTransshipment Ltd. (2002), (NL SC), 213 Nfld. & P.E.I.R. 1 (Nfld. T.D.), at paragraph 723: The tort of inducing breach of contract has six elements, each of which must be proven: 1. Intention to cause loss; 2. Knowledge of an existing contract; 3.

Breach of an existing contract; 4. Wrongful procurement; 5. Actual damage as a necessary consequence; 6. Lack of justification. 61 Orsborn J. continues, at paragraph 724: The tort involves intentionally "procuring", or inducing, a third party to breach its contract so as to damage the other contracting(complaining) party. It is an intentional tort.

Proof of an intent to inflict economic harm is required; simple negligence and foreseeabilityof consequences are not enough. [29] A plaintiff in a tort action is required to plead sufficient material facts that, if proven at trial, would establish the elements ofthe tort. The Plaintiff in the proposed Amended Statement of Claim alleges that he was in a 10-year contractual relationship withTechnip Canada; that this was known to the Defendant; that the contract had an indefinite term but that Technip breached it by

terminating it without reasonable notice to the Plaintiff; that the Defendants intentionally and successfully sought to have the contract terminated by falsely alleging to Technip that the Plaintiff was in a conflict of interest; and that the Plaintiff suffered the loss of the money he would have earned if the contract had continued or if he had been given reasonable notice of termination. The original Statement of Claim did not allege that the Plaintiff lost a specific contract with Technip as a result of the statements by the Defendants.

This allegation appeared in the first Amended Statement of Claim filed in October 2012. The remaining material facts that would establish the elements of the tort of inducing breach of contract were pleaded in all versions of the Statement of Claim. Rule 15.02(2) provides that an amendment can add a new cause of action if that new cause of action arises out of substantially the same facts as originally pleaded.

Therefore, the addition of the named cause of action for inducing breach of contract does not preclude an Order allowing the amendment. [ 30 ] The Defendants further submitted that the amendment to add this cause of action ought not be allowed because the limitation period has expired. The Limitations Act , S.N.L. 1995, c. L-16.1, s. 11(3) and (4) provide as follows: 11(3) Where an application for an amendment to an action to which this or another Act applies is made after the expiration of the limitation period for that action, the court may allow that amendment (

a) to change the pleading or originating process; or (

b) to substitute or change the plaintiff or defendant, provided that (

c) that amendment involves a non-prejudicial error and that it arises out of the facts set out in the original pleadings. 11(4) The court may allow an amendment under subsection (3) on terms as to costs that the court considers just, notwithstanding that between the issuance of the originating documents and the application for amendment, a new cause of action disclosed by the amendment would have been barred by a lapse of time. [ 31 ] There is insufficient information before me to determine whether the limitation period applicable to the claim for inducing breach of contract has expired, or whether the failure to specifically plead that tort was the result of a non-prejudicial error.

However, the Plaintiff says that if I allow the amendment then he will agree that that Order would be without prejudice to the Defendants pleading a limitation defence to the action. For the sake of expediency, I will order that the amendment pleading the tort of inducing breach of contract is allowed, without prejudice to the Defendants’ pleading and relying on a limitation defence in respect of that cause of action.

Issue 3: Does the proposed Amended Statement of Claim plead a cause of action or allegations of fact which were already ordered struck by the Court? [ 32 ] The Plaintiff claims that allegations that the Defendants made about him caused him loss. But, the Plaintiff also claims that the Defendants made allegations that others were acting in concert with him and that these allegations also caused him loss.

The Plaintiff relies on material facts related to statements made by the Defendants about those other persons as establishing the tort of interference with economic relations. [ 33 ] The Defendants say that these allegations in the Statement of Claim were previously struck by Order of Goodridge J. (as he then was) and that it constitutes a collateral attack and abuse of process for the Plaintiff to attempt to re-plead those allegations. [ 34 ] In order to sort out this question, it will be necessary to follow the path of the decisions of Goodridge J. and Hurley J. (along with the various iterations of the Statement of Claim that were before them at the material time), with a necessary detour to discuss the doctrinal underpinnings of the tort of unlawful means. [ 35 ] Goodridge J., in Hynes . v.

Pro Dive Marine Services Ltd. , 2014 NLTD(G) 81, dealt with the claim based on allegations that the Defendants defamed non-parties, at paragraph 49 where he struck the last seven lines of paragraph 24 of the Statement of Claim, and in paragraph 77, where he struck the last four lines of paragraph 37 of the Statement of Claim: 49 The last seven lines of paragraph 24 ( after the quote) are frivolous and vexatious and are struck. 77 The last four lines are new, and add that that the Defendants defamed non-parties and that conduct toward non-parties was an intentional interference with the First Plaintiff's economic interests.

The material facts to establish the links of logic are absent. The pleading does not support a cause of action for intentional interference with economic interests and is frivolous and vexatious. The plea of defamation against non-parties is also frivolous and vexatious.

[ 36 ] The wording here clearly implies that Goodridge J. found that the allegations that the Defendants defamed non-parties were frivolous and vexatious because they did not support, and therefore were extraneous to, any cause of action. The Court of Appeal, at Hynes v. Pro Dive Marine Services Ltd. , 2016 NLCA 17 , at para. 39 , upheld this decision of Goodridge J. as being consistent with its definition of a frivolous and vexatious pleading, found at paragraph 13 of its decision: 13 The meaning of frivolous or vexatious under rule 14.24(1)(

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

A frivolous action may also be vexatious if the respondent is required "to engage counsel and respond to something that cannot succeed ... because it would be an abuse of the court's process" (paragraph 21). [ 37 ] The full text of paragraph 37 of the March 4, 2014, Further Amended Statement of Claim before Goodridge J. (underlined portions illustrating the new edits) read as follows: 37.

The Plaintiffs further state that the statements and complaints by the Defendants to Technip, Husky Energy, the CNLOPB and Suncor, by their persistent and repetitive nature and in their context, implied or by innuendo, indicated that the Plaintiff and Technip or Technip’s employees may be involved in a conspiracy to improperly influence the tender processes in their favour and/or for some improper, fraudulent and even illegal benefit.

The Defendants have complained that Technip Canada did not have the rules, procedures, protocols or willingness to detect and prevent actual conflicts of interest and improper actions by contractors or employees, thereby stating and/or implying or through innuendo indicating that the Plaintiffs were engaging in improper, unethical and or illegal actions with or without Technip’s knowledge.

In the context of the recent SEC settlement Squires knew or should have known that his complaint would lead to significant action by Technip that would harm and damage the Plaintiffs and place an unfair and damaging cloud of suspicion over them.

It is further alleged that the defamation of Technip, Sam Allen and Jason Muise, outlined above, while not actionable by the Plaintiffs directly, was an intentional interference with James Hynes economic interests which caused the loss of his contract in 2013. [ 38 ] Goodridge J. struck the allegations that the Defendants defamed third parties as he did not see a connection between that conduct and the tort of intentional interference with economic relations. [ 39 ] However, Goodridge J., at paragraphs 20-21, refused to strike the pleading at paragraph 8 of the Statement of Claim before him, which then read in part: 8…Simply put, it is alleged that a defamatory campaign was launched against the Plaintiffs by the Defendants, it was directed at Technip specifically, that campagin will be described in significant detail below including many of the exact words used, but it is also alleged that similar, if not identical campaigns were directed at CNOLPB, Husky Energy and Suncor Energy by the Defendants using the same words and implying the exact same wrongdoing by the Plaintiffs and Technip, thereby defaming the plaintiffs and other persons outlined herein and intentionally interfering with the Plaintiffs and their economic relationship with Technip. [ 40 ] Therefore, Goodridge J. did not strike the cause of action for intentional interference with economic relations.

He only struck the allegations of defamation against non-parties as not supporting such an action. [ 41 ] In the earlier decision of Hurley J., he also refused to strike the Plaintiffs’ asserted action of intentional interference with contractual relations, which he noted was a tort distinct from the tort of inducing breach of contract: Paragraph 29 — Intentional Interference with Contractual Relations 42 Some issue was taken with this paragraph at the hearing with respect to the claim of intentional interference with contractual relations.

Counsel for the Defendants referred to a decision of this Court in Imperial Oil Ltd. v. C & G Holdings Ltd. (1986), 58 Nfld. & P.E.I.R. 326 , 174 A.P.R. 326 (Nfld. T.D.) ) which, in part, dealt with an action for inducing breach of contract. However, these are separate and distinct torts. There are a number of elements applicable to the tort of inducing breach of contract which are not relevant to the intentional interference with contractual relations. The ingredients of the latter tort are (

i) interference with the Plaintiffs' business or economic interest; (ii) an intention to harm the Plaintiff by unlawful means; and (iii) financial loss. It is not necessary that there be an actual breach of contract involved. (see G.H.L. Fridman, The Law of Torts in Canada , 3d ed. (Toronto: Carswell, 2010) pp. 808-9.) 43 A review of paragraph 29 of the Further Amended Statement of Claim indicates that this claim relates to an anticipated loss of business and profits rather than a breach of contract by a third party.

As the other aspects of the tort of intentional interference with contractual relations have been properly pleaded, this cause of action can proceed. [ 42 ] The Supreme Court of Canada considered the law governing the “unlawful means” tort in 2014, in a decision that was released several months before the application was heard by Goodridge J., but was not cited to him: Bram Enterprises Ltd. v. A.I. Enterprises Ltd. , 2014 SCC 12 . In that decision at paragraph 2, Cromwell, J. for the Court said about the tort of unlawful interference with economic relations:

2 While this tort is far from new, its scope is unsettled and needs clarification. There is not even any generally accepted nomenclature for the tort. It is variously referred to as "unlawful interference with economic relations", "interference with a trade or business by unlawful means", "intentional interference with economic relations", or simply "causing loss by unlawful means". I will refer to it by either the latter name or simply as the "unlawful means" tort. [ 43 ] The Supreme Court, at paragraph 5, defined the tort of causing loss by unlawful means as follows: 5 … A.

What is the scope of liability for the tort of causing loss by unlawful means? In light of the history and rationale of the tort and taking into account where it fits in the broader scheme of modern tort liability, the tort should be kept within narrow bounds.

It will be available in three-party situations in which the defendant commits an unlawful act against a third party and that act intentionally causes economic harm to the plaintiff. (Other torts remain relevant in two-party situations, such as for example, the tort of intimidation.) [ 44 ] The Court went on to find, at paragraph 76, that to constitute "unlawful means" conduct must give rise to a civil cause of action by the third party. [ 45 ] In this case, the Plaintiff claims that the Defendants defamed Technip Canada and Sam Allen by suggesting that they were effectively in cahoots with the Plaintiff, and that these statements were made with the intention of pressuring Technip’s corporate parent to end the economic relationship between Technip Canada and the Plaintiff. [ 46 ] Although, the Bram Enterprises decision was not cited to Goodridge J., the Plaintiffs did cite and rely on the decision of the Ontario Court of Appeal in Alleslev-Krofchak v.

Valcom Ltd ., 2010 ONCA 557 , leave to appeal refused, [2011] 1 S.C.R. xi (note) . The Ontario Court of Appeal at paragraph 60 in that case decided that the tort would be made out by “unlawful means … [that] (

i) cannot be actionable directly by the plaintiff; and (ii) must be directed at a third party, which then becomes the vehicle through which harm is caused to the plaintiff.” In that case, the Plaintiff relied on defamation against non-parties as supporting her action for the tort of unlawful means.

The Ontario Court of Appeal found that defamation of non-parties could not support the action because that conduct would have been actionable at the suit of the third parties. [ 47 ] The Supreme Court in Bram Enterprises disagreed (see paras. 77 and 82) with the holding that the conduct that constitutes the unlawful means must not be otherwise directly actionable (although the Court otherwise agreed with the definition utilized by the Ontario Court of Appeal - see para. 71). [ 48 ] The circumstance now facing the Court is that the cause of action for unlawful means is still alive in the pleadings (it was not struck by either Hurley J. or Goodridge J.) but certain material facts on which the Plaintiff relies to support the cause of action have been struck.

At the time that Goodridge J. struck these allegations from the pleadings, the law cited to him held that these allegations could not establish the tort. [ 49 ] I am hesitant, of course, to allow the Plaintiff to repeat allegations that another judge previously ordered struck, especially where his order to do so was upheld by the Court of Appeal.

However, I am persuaded that these allegations were ordered struck based on a matter of law that was not accurately argued before Goodridge J. [ 50 ] I am also mindful that this matter is still only in the pleadings stage, notwithstanding the extraordinarily lengthy time that it has remained stuck there. The purpose of pleadings is to ensure that the real matters in issue between the parties are tried fairly.

The injustice that would result if the Plaintiff is restrained from relying on material facts that could (if proven) establish a tort outweighs the inconvenience to the Defendant of having to defend these allegations. Indeed, the Defendant has continued to defend the allegations of defamation of non-parties throughout the pleadings to date.

The latest version of the Defence expressly takes issue with the allegation that the Defendants defamed non-parties in order to intentionally interfere with the Plaintiff’s business. [ 51 ] Therefore, I exercise my discretion to allow the proposed amendments to plead allegations of defamation against non-parties as an element of the cause of action for the unlawful means tort. This cause of action is one that has not previously been ordered struck, and it is not one that is bound to fail.

Issue 4: Does the proposed Amended Statement of Claim include impermissible inferences, argument, and conclusions? [ 52 ] In the Court of Appeal decision in this matter, at paragraphs 21-23, the Court drew the line around impermissible argument, both generally and with particular application to a claim in defamation, as follows: 21 In general, statements drawing inferences and conclusions are not properly included in pleadings. It is the material facts, including any relevant extrinsic facts, that must be pleaded in order to enable the defendant to plead in response.

Seaforce submits that, pursuant to rule 14.04 , "conclusions of law are specifically allowed". Rule 14.04 provides: A party by a pleading may raise any point of law. 22 A point of law is not the same as a conclusion. Pleading a statutory provision, for example, or perhaps a principle of law such as contributory negligence, would amount to raising a point of law. A conclusion of law, by contrast, involves the application of the law to

the facts, a matter for the judge to assess. Drawing conclusions engages argument to which a defendant could only reply by argument. That is not the intended purpose of pleadings. Where a pleading sets out conclusions that amount to argument, that portion should be struck as improper. 23 Depending on the circumstances, the court may take a less strict approach to the inclusion of statements that may be characterized as conclusions, but which are intended to indicate or explain how the plaintiff views the alleged words to be defamatory.

On balance, the court may determine that such statements do not constitute argument and do not interfere with the defendant's ability to respond. [ 53 ] Both Hurley J. and Goodridge J. struck portions of previous versions of the Statement of Claim because they included argument, inference, and conclusions. The Defendants say that the version currently proposed again contains argument, inference, and conclusion. [ 54 ] The line between a pleading of material fact and points of law on one hand, and impermissible inferences of fact and conclusions of law on the other, can sometimes be hard to discern.

The Court does not always take a strict approach to the assessment of pleadings and allows a certain leeway to plaintiffs to present their case. However, in this case, the previous versions of the Statement of Claim have been criticized by two judges of this Court and by the Court of Appeal for containing argument.

The Plaintiff has drifted to the end of the leeway that might otherwise have been allowed to him and he must be required to get back on course. [ 55 ] I find that the following portions of the proposed Amended Statement of Claim contain impermissible argument in the form of conclusion or inference, and these amendments will not be allowed: Paragraph 31 “Squires’ concerns were misguided by a false belief” Paragraph 37 “the meaning of Squires’ 13 April 2006 email, as it would be understood by its intended readers, was a reiteration of Squires’ earlier statement to Allen that Technip Canada should terminate its contractual and business relationship with Hynes.” Paragraph 55 “He made no personal efforts to determine this factual information about the 63462 Newfoundland and Labrador Limited.” Paragraph 68 …Squires continued to monitor for any new ‘evidence’ of his allegation of conflict of interest.” Paragraph 85 “Squires’ concern was not explicitly with the character of Hynes, but rather of Technip Canada, and more specifically the character of Technip Canada President, Allen.” Paragraph 92 “This email, sent without any efforts by Squires to verify its details, was intended to further Squires’ message that Technip Canada was complicit in unethically direct sourcing work to Seaforce companies - a message which was factually inaccurate.” Paragraph 118 “he referred to what he perceived as the Suncor issue.” [ 56 ] I have not accepted all of the Defendants’ position in respect of the language that the Defendants say included argument.

Where I have not accepted the Defendants’ position, it is because the specific language challenged in those instances, although argumentative, involves a characterization of the Defendants’ conduct, behavior or language, which is a necessary element of a cause of action relied upon by the Plaintiff. Issue 5: Does the proposed Amended Statement of Claim include sufficient particulars? [ 57 ] The Defendants argue that one paragraph (33) of the proposed amended Statement of Claim contains an allegation of oral communication without specifics.

In this paragraph, the Plaintiff recounts a phone call to which he was not a party. I find that sufficient particulars have been pled. The Plaintiff alleges the essence of the communication. As Plaintiff was not a party to this conversation, it would be unlikely that he could recount the words with precision. If this was the only communication on which the Plaintiff relied to plead defamation, I still would have struck it because he failed to plead the exact words used.

However, as this conversation can be considered as part of the narrative context, I will allow the amendment to include this reference. [ 58 ] The Defendants object to paragraphs 155 and 163 of the proposed amended Statement of Claim because they say that these paragraphs include allegations of unspecified innuendo. I agree that innuendo must be particularized but the reference to innuendo in these paragraphs obviously is intended to refer back to and incorporate allegations of innuendo particularized in, respectively, paragraphs 153 and 162. These amendments are allowed.

Conclusion and Disposition [ 59 ] The Plaintiff’s Application to amend the Statement of Claim is allowed, with the exception of the parts of paragraphs 31, 37, 55, 68, 85, 92 and 118 set out earlier in these reasons. [ 60 ] Although the Plaintiff has largely been successful in this Application, the Plaintiff also bears responsibility for this matter still being in the pleadings stage after nine years, and for this being the fourth application to amend.

Further, in this Application, the Plaintiff originally proposed amendments that contained significantly more language, which the Defendants impugned as including argument, inference, and conclusion. However, during the course of the hearing of this application, the Plaintiffs withdrew or altered the language used in the proposed amendments to account for the Defendants’ arguments.

Although this saved the Court the time of having to deal with this language, it did not save the Defendants’ time. [ 61 ] I therefore am awarding the Defendants their costs of this Application as well as the costs of drafting and filing an Amended Defence, all taxed on Rule 55, Scale of Costs, Column III of the Rules of the Supreme Court, 1986 , S.N.L. 1986, c. 42, Sch. D . ___________________________ Daniel M. Boone Justice