2021 NLSC 82, 2021 NLSC 82

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Penney v. L.B. , 2021 NLSC 82 Date : June 4, 2021 Docket : 200401T1834 Between: Ellsworth JAMES Penney Plaintiff/FIRST DEFENDANT BY COUNTERCLAIM And: L.B. First Defendant/ Second Respondent And: L.M. Second Defendant/FIRST PLAINTIFF BY COUNTERCLAIM And: N.G. Third Defendant/ Fourth respondent And: J.M. Fourth Defendant/SECOND PLAINTIFF BY COUNTERCLAIM (discontinued) And: M.B. Fifth Defendant applicant

And: Attorney General of Canada Sixth Defendant/ sixth respondent And: Her Majesty in Right of Newfoundland and Labrador Seventh Defendant/ seveneth respondent Restriction on Publication: By court order made on the 14th day of September, 2020, information that may identify the First Defendant, Second Defendant/First Plaintiff by Counterclaim, Third Defendant, Fourth Defendant/Second Plaintiff by Counterclaim, and the Fifth Defendant as complainants or witnesses in proceedings in action 200401T1834, in the Supreme Court of Newfoundland and Labrador, Trial Division, shall not be published in any documents, broadcasted, or transmitted in any way.

Before: Justice Rosalie McGrath Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: November 9 and 10, 2020

Summary: The Court struck out all claims against the Third and Fifth Defendants on the basis that the pleadings disclosed no reasonable cause of action against them. The claims against the First and Second Defendants in defamation and malicious prosecution were not struck as it was not plain and obvious that they could not succeed.

The issues of whether the common law witness immunity rule applied to statements made prior to the commencement of a police investigation, and whether the First and Second Defendants has initiated the prosecution such as to attract liability for malicious prosecution, were matters to be determined at a trial. Appearances: Averill J. Baker Appearing on behalf of the Plaintiff/ First Defendant by Counterclaim L.B. Appearing on his own behalf

L.M. Appearing on his own behalf N.G. Appearing on his own behalf Jonathan E. Noonan Appearing on behalf of the Fifth Defendant Corinne Bedford Appearing on behalf of the Sixth Defendant David G. Rodgers Appearing on behalf of the Seventh Defendant Authorities Cited: CASES CONSIDERED: BAE-Newplan Group Ltd. v. Altius Minerals Corp., 2012 NLCA 21; Neary v. Fagan, 2016 NLTD(G) 63;Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115; Grant v. Torstar Corp., 2009 SCC 61; Kvello v. Miazga, 2009 SCC 51;Martin v. Watson, [1996] AC 74, [1995] 3 All ER 559; Small v.

Newfoundland (Department of Human Resources & Employment), 2003NLSCTD 90; Nelles v. Ontario, (SCC), [1989] 2 S.C.R. 170; Proulx c. Québec (Procureur général), 2001 SCC 66;Symington v. Halifax (Regional Municipality), 2011 NSSC 474; Casey v. Automobiles Renault Canada Ltd. (SCC),[1965] S.C.R. 607; Chopra v. T. Eaton Co., 1999 ABQB 201; Roy v. Prior, [1971] AC 470, [1970] 2 All ER 729; Evans v. LondonHospital Medical College, [1981] 1 All ER 715, [1981] 1 WLR 184; Kazas v. Peterson, [1992] O.J. No. 1666, 35 A.C.W.S. (3d) 139(Ct. J. (Gen. Div.)); Rajkhowa v.

Watson (1998), (NS SC), 167 N.S.R. (2d) 108, 502 A.P.R. 108 (S.C); Teskey v.Toronto Transit Commission, (ON SC), [2003] O.J. No. 5314, 127 A.C.W.S. (3d) 1023 (Sup. Ct.); Lincoln v.Daniels, [1962] 1 QB 237 [1961] 3 All ER 740; Workum v. Olnick, 2006 BCCA 528; Mayer v. Mayer, (BC SC),[1995] 2 W.W.R. 97, 99 B.C.L.R. (2d) 166 (S.C.); Horn Abbot Ltd. v. Reeves, 2000 NSCA 88; GRI Simulations Inc. v. Pro-DiveOceaneering, 2004 NLCA 74; Walsh v. TRA Co., 2007 NLCA 50; Dyson v. Attorney-General, [1911] 1 KB 410; 1908-10] All ER RepExt 1097 STATUTES CONSIDERED: Defamation Act, R.S.N.L. 1990, c.

D-3 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT McGrath, J.: INTRODUCTION [1] The First, Second, Third, and Fifth Defendants (the “Individual Defendants”) have applied to this Court pursuant to Rule14.24(1)(

a) of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D (the “Rules”) to strike out the claims against them on thebasis the pleadings disclose no reasonable cause of action.

They say the claims are based on testimony in a prior criminal trial that isprotected from civil action by the common law principle of witness immunity. [2] The testimony at issue arose in the course of a criminal investigation and trial in which the Plaintiff was charged with threecounts of sexual assault and one count of indecent assault. [3] The First and Second Defendants were complainants in respect of these charges, with the underlying events alleged to haveoccurred when they were under the age of sixteen.

These two complainants made statements to police officers and Crown counsel aspart of the investigation and prosecution. They also testified at trial. The Third, Fourth, and Fifth Defendants also provided statementsin the course of the criminal investigation and testified as Crown witnesses. [4] At trial, the Plaintiff was convicted of indecent assault and two counts of sexual assault. However, the convictions wereoverturned on appeal by the Supreme Court of Newfoundland and Labrador, Court of Appeal (as it then was) on the basis that the trial

judge’s written decision indicated he had reasonable doubt as to the guilt of the Plaintiff. [ 5 ] Following the reversal of the convictions, the Plaintiff brought this action against the Individual Defendants, as well as the Fourth, Sixth and Seventh Defendants. The claim against the Fourth Defendant, J.M., was discontinued as she passed away prior to the hearing of this application. [ 6 ] The Sixth Defendant was sued in its capacity as the government entity responsible for the Royal Canadian Mounted Police (“RCMP”), the police force that investigated the Plaintiff in respect of the charges.

The Seventh Defendant was sued as the government entity responsible for the Crown Attorney’s office who prosecuted the charges. The Sixth and Seventh Defendants took no

part in this application to strike portions of the Amended Statement of Claim. [ 7 ] With respect to the claims against the Individual Defendants, the Plaintiff claimed that these Defendants gave false and defamatory testimony, and that they, as well as the Fourth Defendant, conspired with each other to intentionally harm him. [ 8 ] It is the Fifth Defendant, M.B., who brought this application to strike the Amended Statement of Claim just weeks prior to the rescheduled trial dates.

All other self-represented Individual Defendants followed suit by bringing their own applications that essentially mirrored the application of M.B. issue [ 9 ] Should this Court strike the Plaintiff’s claims against the Individual Defendants under

section 14.24(1) (

a) of the Rules on the basis that the pleadings disclose no reasonable cause of action? LAW AND ANALYSIS A. Rule 14.24(1)(a) – Review of Pleadings [ 10 ] All Individual Defendants seek to have the entirety of the Amended Statement of Claim struck as against them under

section 14.24(1) (

a) of the Rules on the basis that it discloses no reasonable cause of action. This is because all Individual Defendants claim they have immunity from civil suit based upon long-settled law that a witness cannot be sued in respect of evidence given in support of a judicial proceeding. [ 11 ] Rule 14.24 reads as follows: Striking out pleadings, etc. 14.24.

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

a) it discloses no reasonable cause of action or defence; (

b) it is false, scandalous, frivolous or vexatious; (

c) it may prejudice, embarrass or delay the fair trial of the proceeding; or (

d) it is otherwise an abuse of the process of the Court, and may order the proceeding to be stayed or dismissed or judgment to be entered accordingly.

(2) Unless the Court otherwise orders, no evidence shall be admissible by affidavit or otherwise on an application under rule 14.24(1) (a). [ 12 ] Rule 14.24(1)(

a) was judicially considered by the Newfoundland and Labrador Court of Appeal in the 2012 decision of BAE- Newplan Group Ltd. v. Altius Minerals Corp , 2012 NLCA 21 . At paragraphs 11 and 12, Justice Welsh summarized the approach for determining an application under this rule as follows: 11 Applying this rule, all or part of a statement of claim will be struck only if it is plain and obvious that it cannot succeed ( Walsh v. TRA Co ., 2007 NLCA 50 , 268 Nfld. & P.E.I.R. 111 (N.L. C.A.), at paragraphs 13 to 16 ). In addition, Wells C.J.N.L., for the Court in Walsh , explained:

[16] I conclude, therefore, that if there is any possible basis whatsoever on which a plaintiff might successfully argue entitlement at law, it is inappropriate to anticipate any defence a defendant may plead, even though it may be a very strong one, and, on the basis of evaluating that defence, strike the Statement of Claim as having no chance of success.... On an application under rule 14.24(1) (a), it is not appropriate to make a preliminary determination of the success of any defence the defendant might plead.

If a plaintiff has pleaded facts on which a cause of action can reasonably be argued, a plaintiff is not to be "driven from the judgment seat" by anticipating defences that might be successful. 12 Unless the court orders otherwise, an application under this rule is restricted to the facts stated in the statement of claim, which would include replies to demands for particulars and any amendments. Evidence by affidavit or otherwise is not permitted (rule 14.24(2)). To provide a context for the analysis, it is assumed that the facts set out in the statement of claim can be proved ( Humby Enterprises Ltd. v. A.L.

Stuckless & Sons Ltd ., 2003 NLCA 20 , 225 Nfld. & P.E.I.R. 268 (N.L. C.A.), at paragraph 13 ). [ 13 ] To summarize, assuming the facts set out in the Amended Statement of Claim can be proved, I must look at those facts to determine whether they form the basis upon which a plaintiff could reasonably argue the causes of action that have been plead.

I should only strike the claim if it is plain and obvious that the Plaintiff cannot succeed. [ 14 ] The relevant portions of the Amended Statement of Claim setting out the underlying facts are summarized below. [ 15 ] There is no dispute that the Plaintiff has pleaded facts to support his claim that he was charged with four offences under the Criminal Code under two separate Informations. These charges were laid after the First and Second Defendants made reports to the RCMP of historic sexual and indecent assaults committed against them by the Plaintiff.

The Plaintiff denied that he committed these acts. [ 16 ] At paragraph 24 of the Amended Statement of Claim, the Plaintiff notes that he was found guilty by a trial judge on three of the four charges.

However, at paragraph 27, the Plaintiff says that he pursued the matter to the Court of Appeal and was successful in “having all charges overturned and being fully and totally vindicated in all respects of the allegations, charges and convictions”. [ 17 ] The Plaintiff alleges that the history of the relationship between the Plaintiff and each of the Individual Defendants was the driving force behind the “fabricated, defamatory, slanderous, injurious, and otherwise negligent actions” of the Defendants that resulted in the filing of the Informations and his initial conviction.

The Amended Statement of Claim alleges the following tortious conduct in respect of each Individual Defendant. [ 18 ] With respect to the First Defendant, paragraphs 16 to 18 of the Amended Statement of Claim state that, prior to the criminal allegations, the Plaintiff had dealings with the First Defendant and his family members relating to the collection of taxes on overdue accounts. As well, he had reported these individuals for driving infractions, leading to charges being laid against them.

The Plaintiff alleges the First Defendant admitted that these prior dealings with the Plaintiff lead him to make allegations against the Plaintiff.

As well, the pleadings state that, at or about the time these allegations were made, the First Defendant was charged with assault, with the Plaintiff as the complainant. [ 19 ] As such, the Plaintiff alleges it was clear, obvious, and apparent that the allegations made by the First Defendant, which were historical in nature and not supported by any concrete evidence, were a “vexatious, malicious, vengeful, intentional attack” on the Plaintiff by the First Defendant. [ 20 ] At paragraph 19 of the Amended Statement of Claim, the Plaintiff alleges that, similar to the allegations made against the First Defendant, the Plaintiff had reported the Second Defendant for driving infractions on several occasions.

The Plaintiff contends the allegations made by the Second Defendant against him were driven by that reporting. The Plaintiff says that the Second Defendant specifically admitted during the criminal trial that he had made the reports “maliciously, vengefully, and intentionally.” [ 21 ] At paragraph 10 of the Amended Statement of Claim, the Plaintiff alleges that, in the course of investigating the allegations of the First and Second Defendants, the RCMP conducted interviews with various potential witnesses, including the Third, Fourth, and Fifth Defendants.

Upon completion of the investigation, criminal charges were laid against the Plaintiff. [ 22 ] At paragraph 20, the Plaintiff alleges that the testimony the Third and Fifth Defendants “spoke at trial and as part of the investigation” by the RCMP and the Crown, was “false, contrived, vexatious, and vengeful, spurred on for the very same reasons and in support of the false allegations brought by the First and Second Defendants.” [ 23 ] At paragraph 21 of the Amended Statement of Claim, the Plaintiff alleges that the actions of all Individual Defendants, collectively, were an “intentional attempt to destroy the Plaintiff’s reputation, standing and overall life, fueled by an obvious thirst for revenge and was in fact malicious, defamatory, and slanderous.” The Plaintiff states that these actions had a destructive effect on his life, virtually destroyed his standing in the community, caused him to be involved in an emotional and lengthy legal battle, and left him with a tainted reputation and lowered sense of self-worth and belonging. [ 24 ] In their applications and briefs, the Individual Defendants describe the cause of action alleged against them as being a conspiracy among the complainants and other witnesses to fabricate testimony and harm the Plaintiff, citing paragraph 12-21 of the Amended Statement of the Claim.

They say this claim is untenable as it offends the witness immunity rule. [ 25 ] However, after reciting the underlying facts, the Plaintiff claims at paragraph 30 that all Defendants are jointly and severally liable to him for:

(

a) defamation and slander; (

b) intentional and malicious destruction of character and reputation; (

c) malicious prosecution, wrongful arrest, detainment and conviction; (

d) negligence; and (

e) such other actions as to be determined prior to trial. [ 26 ] It is notable that the Plaintiff was not represented by legal counsel when the original Statement of Claim containing this wording was drafted. Plaintiff’s current counsel, in response to the application to strike, describes the cause of action alleged against the Individual Defendants to be essentially a claim for malicious prosecution.

However, as the Plaintiff did not file a Further Amended Statement of Claim or seek to do so, I will deal with all named causes of action in this decision. [ 27 ] Two of the causes of action alleged in the pleadings were not argued on this application and do not require a great deal of consideration. In respect of the claim labelled as intentional and malicious destruction of character and reputation, there is no such claim known to law. That wording more properly describes the harm allegedly suffered by the Plaintiff or elements that must be proven to establish the claims of defamation or malicious prosecution.

As such, there is no possible basis upon which the Plaintiff could successfully argue entitlement at law. This alleged claim against the Individual Defendants should be struck. [ 28 ] Further, the allegations in the Amended Statement of Claim do not set forth facts to support the essential elements of negligence as against the Individual Defendants. In particular, there is no allegation or any basis in the facts that have been plead to indicate that the Individual Defendants owed the Plaintiff any duty of care or that they somehow breached that duty.

Nor was it suggested that the pleading could be amended to make such a claim. As such, the Plaintiff cannot reasonably argue a cause of action in negligence. This claim against the Individual Defendants should also be struck. [ 29 ] That then leaves the claims of defamation and slander, as well as malicious prosecution, wrongful arrest, detainment and conviction. [ 30 ] With respect to the claims of defamation and slander, there is really just the one cause of action in defamation as the Defamation Act , R.S.N.L. 1990, c.D-3 , defines defamation to include both libel and slander.

The Individual Defendants say that witness immunity bars such a claim. [ 31 ] With respect to the claim for malicious prosecution, wrongful arrest, detainment and conviction (referred to by the Plaintiff and in this decision as “malicious prosecution”), the Plaintiff asserts that the witness immunity rule is not absolute and does not apply to that claim. [ 32 ] The Fifth Defendant also asserts that malicious prosecution has not been adequately pleaded. Even if it had, he says that witness immunity applies not only to defamation actions but to all civil actions.

The other Individual Defendants also support this submission. B. Witness Immunity [ 33 ] The Individual Defendants refer to a 2016 decision of this Court in Neary v. Fagan , 2016 NLTD(G) 63, in which Justice Stack had occasion to consider a Rule 14.24(1) (

a) application to strike a claim seeking damages after a defendant allegedly gave false testimony in a prior civil trial.

The applicant asserted that the witness immunity rule effectively precluded the Plaintiff from taking a civil action. [ 34 ] At paragraph 15 of Neary , the witness immunity rule was described as an absolute privilege or immunity that attaches to communications which take place during, incidental to or in the processing and furtherance of judicial or quasi-judicial proceedings: 15. … No civil action can be brought in respect of words spoken or written during the ordinary course of those proceedings.

The protection of this privilege extends to all the participants in the judicial or quasi-judicial proceedings, including the judge, jury members, witnesses, parties and their counsel. [ 35 ] At paragraphs 19 and 20, Stack, J. identified two policy considerations behind the witness immunity rule. First, it is critical that witnesses be willing to tell the whole truth as they see it, free of concern about consequences to themselves. A second policy rationale is that the immunity protects the substance of the evidence from collateral attack in other proceedings.

Witnesses should feel unencumbered to give testimony without fear of being harassed by an action or allegation that they gave false evidence or they gave their evidence maliciously. The rule also preserves judicial resources by preventing re-litigation of the veracity of evidence given in a previous trial. [ 36 ] In considering whether the witness immunity rule applied, Justice Stack relied upon the decision of the Nova Scotia Court of Appeal in Elliott v. Insurance Crime Prevention Bureau , 2005 NSCA 115 , in which that court provided a thorough review of witness immunity.

[37] The Individual Defendants also rely upon that same Nova Scotia decision as a leading authority. In particular, they assert thatthe following points from Elliott are relevant to their application: (

a) Witness immunity applies to all testimony in court and all evidence provided incidental to or in furtherance of judicial proceedings. (

b) Witness immunity applies not only to defamation actions but any civil action. The Individual Defendants refer to paragraph 113 ofElliott as follows: 113 While the immunity is most familiar in defamation cases, it also bars other causes of action. Halsbury says that: "A witness isprotected from civil proceedings in respect of the evidence which he gives in judicial proceedings, and in respect of things said or done inthe course of preparing evidence for such proceedings.

The protection is against actions of any sort, and is not limited to actions for libeland slander.": Halsbury's Laws of England, 4th ed., vol. 17 (London: Butterworths, 1976) at ¶ 261 (emphasis added). Similarly, inMartini v. Wrathall (1999), 1999 NSCA 105 , 180 N.S.R. (2d) 38 (N.S. C.A.) (at ¶ 6) and Horn Abbot Ltd. v. Reeves (2000),2000 NSCA 88 , 189 D.L.R. (4th) 644 (N.S. C.A.) (¶ 15), this Court approved the proposition that witness immunity applies toall tort actions. (See also Smith v. Canadian Pacific Railway (2003), 2003 MBQB 290 , 181 Man. R. (2d) 150 (Man. Master).

Itis not disputed in this case that the immunity applies to negligence actions. [original emphasis] (

c) Witness immunity extends from what is said in court to out-of-court statements about the anticipated nature of that witness’testimony. (

d) The evidence must have sufficient connection to a judicial proceeding to attract protection. [38] In their briefs, the Individual Defendants placed great reliance on the above statement in Elliott, as repeated in Neary, that thewitness immunity rule applies to preclude all civil causes of action, not just actions in defamation. Generally, I do not disagree with thatstatement but it cannot be forgotten that an initial determination must be made that a defendant’s impugned conduct falls within thescope of the witness immunity rule.

It is not enough to say that the claim pleaded is in respect of statements made during a judicialproceeding and the claim therefore attracts witness immunity. [39] At paragraph 120 of Elliott, the court set out four questions that must be answered to determine whether a defendant cansuccessfully claim witness immunity: 1. What is the conduct that forms the basis of the cause of action - that is, what is the “gist and essence” of the claim? 2. What is the scope of the claimed immunity and does the “gist and essence” of the claim fall within it? 3. Is the scope of the claimed immunity settled by authority? 4.

If not, does the claimed immunity meet the test of necessity? 1. What is the conduct that forms the basis of the cause of action? [40] At paragraph 122 of Elliott, the court noted the conduct giving rise to the claim must be based upon, or sufficiently connectedto, some protected occasion in order for witness immunity to apply. The first question to answer is therefore: what is the “gist andessence” or “essential character” of the claim? [41] At paragraph 125, the court noted that this requires a judge to assess the nature of the claims set out in the pleadings, includingany particulars.

In both Elliott and Neary, the respective courts began their analysis by carrying out that exercise. [42] In Elliott, the plaintiffs had been denied a claim made under their fire insurance policy. The insurer accused the plaintiffs ofarson, relying on various investigations and reports into the cause of the fire. The plaintiffs then commenced an action against theinsurer seeking payment under the policy. In the course of the insurance coverage proceeding, the insurer called various investigatorsand authors of reports as witnesses.

The trial judge in the insurance action found in favour of the plaintiffs on the basis that the insurerhad not proven that it was the plaintiffs who had set the fire.

The plaintiffs then sued the persons who prepared the investigations andreports, alleging negligence in respect of their investigations. [43] The defendants in Elliott applied to strike out the claim both on the basis that no duty of care existed and that they wereimmune from suit under the witness immunity doctrine. [44] In carrying out step one of the witness immunity analysis, the court determined the gist and essence of the claims by reviewingthe statement of claim, as expanded by additional particulars.

In respect of one group of defendants, it described the claims as beingnegligent reporting to the insurer prior to rejection of the proof of loss and negligently failing to retract or qualify opinions oncepresented with the plaintiff’s expert evidence. In respect of another group of two defendants, it described the gist and essence of theclaim as being negligent investigation and reporting up to the point just before the insurance coverage proceeding was commenced (inrespect of one defendant) or shortly before the trial on the insurance action began (in respect of the other defendant).

[ 45 ] In Neary , Justice Stack also began his analysis by considering what cause of action could be discerned from the pleadings. While no category of tort law was invoked, the vaguely worded claim could be described as one of defamation, negligent (or fraudulent) representation, malicious prosecution, or deceit. [ 46 ] In this case, in looking at the conduct alleged in the Amended Statement of Claim that could form the basis of these causes of action, it is useful to set out the essential elements of the two claims; defamation and malicious prosecution.

Later in this decision, I will consider whether the facts support those causes of action. [ 47 ] With respect to the claim of defamation, in the Supreme Court of Canada decision in Grant v.

Torstar Corp. , 2009 SCC 61 , at paragraph 28 , the court held that a plaintiff must prove the following three elements in a defamation action: 1) the defendant made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; 2) the words in fact referred to the plaintiff; and 3) the words were communicated to at least one person other than the plaintiff. [ 48 ] The only conduct plead to support the allegation of defamation with respect to the Third and Fifth Individual Defendants are the statements made by them both at trial and as part of the investigations of the RCMP and the Crown.

With respect to the pleading as it relates to the First and Second Defendants, the only references to statements are the allegations initially made to the RCMP. Presumably, statements would have also been made to the Crown and testimony given at trial by these two Defendants. However, those statements and testimony are not specifically referenced in the pleading. [ 49 ] The essential elements of a cause of action for malicious prosecution were set out by the Supreme Court of Canada in Kvello v. Miazga , 2009 SCC 51 . The four essential elements which must be proven are:

(1) That the prosecution was initiated by the defendant;

(2) That the prosecution was terminated in favour of the plaintiff;

(3) That the prosecution was undertaken without reasonable and probable cause; and

(4) That the prosecution was motivated by malice or a primary purpose other than that of carrying the law into effect. [ 50 ] As noted above, counsel for the Fifth Defendant was initially of the view that the claim for malicious prosecution was brought against the government entities. That is understandable as it is certainly more common for malicious prosecution claims to be brought against police investigators and the Crown.

However, that is not to say that a viable claim cannot be made against a private individual. [ 51 ] In fact, the lower court decisions in Kvello dealt with a malicious prosecution claim against a child therapist who had reported alleged abuse, as well as claims against the Crown and investigators.

The Saskatchewan Court of Appeal reversed the finding of the trial judge that the child therapist was liable in malicious prosecution and that ruling was not appealed to the Supreme Court of Canada. [ 52 ] However, that Saskatchewan Court of Appeal decision is useful as the court referred to leading authorities that recognize a complainant may be liable for malicious prosecution in certain circumstances. In particular, at paragraphs 60 to 63, the court referred to a House of Lords decision in Martin v.

Watson , [1996] AC 74, [1995] 3 All ER 559 , that has been followed in Canada: 60 The trial judge failed to take into account and to apply the judgment of the House of Lords in Martin v. Watson , [1995] 3 All E.R. 559 (U.K. H.L.) . That case involved neighbours, one of whom reported to the police that the other had exposed himself to her. The police, acting upon the report charged the neighbour. The prosecution was dismissed when the Crown offered no evidence. In the House of Lords, Lord Keith of Kinkel carefully reviewed reported decisions throughout the Commonwealth, including Canada.

He concluded as follows, at pp. 567-568: Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant. 61 Clerk & Lindsell on Torts , 18 th ed. (London: Sweet & Maxwell, 2000) at 16-11 summarizes this to mean: The judgment clearly establishes that the claimant must demonstrate that the defendant acted in such a manner as to be responsible directly for the initiation of proceedings.

The responsibility for initiating the prosecution must be his, not the result of a truly independent judgment to prosecute on the part of the police, or some other third party. [Emphasis added] 62 Clerk & Lindsell elaborates at 16-12. A person who gives information to the police on the basis of which the police decide to prosecute will not be liable for malicious prosecution unless:

(1) The defendant falsely and maliciously gave information about an alleged crime to a police officer stating a willingness to testifyagainst the claimant and in such a manner as makes it proper to infer that the defendant desired and intended that a prosecution bebrought against the claimant.

(2) The circumstances are such that the facts relating to the alleged crime are exclusively within the knowledge of the defendant so that itis virtually impossible for the police officer to exercise any independent discretion or judgment on the matter.

(3) The conduct of the defendant must be shown to be such that he makes it virtually inevitable that a prosecution will result from thecomplaint. His conduct is of a nature that "... if a prosecution is instituted by the police officer the proper view of the matter is that theprosecution has been procured by the complainant". [Martin v. Watson, [1996] A.C. 74 (H.L.) at 86-87] 63 Martin v. Watson has been followed and applied in Canada: Wood v. Kennedy (1998), (ON SC), 165 D.L.R.(4th) 542 (Ont. Gen. Div.) and Small v.

Newfoundland (Department of Human Resources & Employment) (2003), 2003 NLSCTD 90, 227 Nfld. & P.E.I.R. 1 (N.L. T.D.). [53] In the Small v. Newfoundland (Department of Human Resources & Employment), 2003 NLSCTD 90, decision referenced in thequote above, Justice Mercer (as he then was), noted at paragraph 103 that the Supreme Court of Canada had not dealt with the firstelement of the claim of malicious prosecution, ie., the initiation of proceedings, in what were then the leading decisions of Nelles v.Ontario, (SCC), [1989] 2 S.C.R. 170 and Proulx c. Québec (Procureur général) 2001, SCC 66.

Therefore, JusticeMercer relied upon the test from Martin v. Watson, noting at paragraph 104 that this analysis has been adopted by Canadian courts. [54] At paragraph 105 of Small, Justice Mercer applied the three part test from Martin but found, on the evidence adduced at trial,that the plaintiff had not proven that the defendants/complainants initiated criminal proceedings against the plaintiff.

In particular, hefound that the province and its employees (the defendants) had not acted maliciously or falsely in providing information to the police. [55] Further, the facts relating to the alleged crime were not exclusively within the knowledge of the defendants or any one of them. As such, there was no impediment or restriction on the investigating officer exercising his own discretion or judgment on the matter.

Infact, the investigating officer did just that in deciding not to lay charges in respect of some of the information provided to him. [56] Finally, with respect to the third part of the test, the Court found that the conduct of the defendants did not make it virtuallyinevitable that a prosecution would result, noting the significance of a police decision not to lay certain charges arising out of parts of theinformation provided. [57] In a more recent decision of the Nova Scotia Supreme Court in Symington v. Halifax (Regional Municipality), 2011 NSSC 474,the Court had occasion to consider an application for

summary judgment dismissing a claim for malicious prosecution on the basis thatthe claim was unsustainable as pleaded. The Court carried out a thorough review of Canadian cases relating to the issue of whether adefendant had initiated criminal proceedings. [58] The Court referred to the Supreme Court of Canada decision in Casey v. Automobiles Renault Canada Ltd. (SCC), [1965] S.C.R. 607 as being the leading case on point with respect to the first element of malicious prosecution. In that case, asales manager of the defendant company was instructed to lay a charge of theft against the plaintiff.

While the magistrate noted on theInformation that the charge had been withdrawn at the request of the defendant, the Supreme Court of Canada found that the action hadnevertheless been instituted.

At paragraph 39 of Symington, the court noted that the Supreme Court of Canada concluded as follows: I am therefore of the opinion, with great respect to the views expressed in the Court below, that, as the respondent had caused everythingto be done which could be done wrongfully to set the law in motion against the appellant on a criminal charge, an action for maliciousprosecution lay against the respondent, the other required elements of that tort being established. [59] While Casey dealt with a situation where the company’s representative swore the Information himself, the court in Symingtonfound that private individuals may be held to have initiated proceedings even when it is the police who laid the information.

The courtreferred to a quotation from Chopra v. T. Eaton Co., 1999 ABQB 201, at paragraph 173 as follows: 173. The test to determine whether one initiated proceedings was discussed in Danby v. Beardsley (1880), 43 L.T. 603.

Lopes J.concluded that there is no authority outlining what constituted the prosecutor in an action for malicious prosecution, and then outlinedthe test himself as follows, at p.604: “is there any evidence to show that the defendant was actively instrumental in putting the law inforce?” [60] At paragraphs 175 and 184 of the decision in Chopra, Brooker, J. noted that, while it would be much more difficult to establishthat a person that did not swear an information was “actively instrumental” in setting the law in motion, there are other ways one can“cause everything to be done wrongfully to set the law in motion”.

It is not an absolute requirement that the defendant swear theinformation or lay the charge to have initiated the prosecution.

A judge must consider all the circumstances in determining whether adefendant has initiated proceedings. [61] Based on the above authorities, I conclude that a private individual may be liable for malicious prosecution if that individualwas actively instrumental and did all they could do to put the law into motion, making it inevitable that a charge would be laid by thepolice. [62] In respect of a claim of malicious prosecution, it is therefore the impugned actions of maliciously and wrongfully setting the

law in motion that is the gist and essence of the cause of action. A plaintiff will not be able to prove that a defendant initiated proceedings solely on the basis that the defendants provided a false and malicious statement to the police in the course of an investigation. 2. Does the gist and essence of the claim fall within the scope of the immunity claimed? [ 63 ] The second step in the analysis is to consider whether the gist and essence of the claim falls within the scope of the witness immunity doctrine.

At paragraph 129 of Elliott , the court noted that this requires a consideration of the degree of connectivity between the cause of action and the conduct for which immunity is claimed.

The degree of connection has been described as being that the action must be “in respect of” or “derived from” a protected activity; it must “constitute” or be “an essential element” of the cause of action; or the cause of action must be “based upon” or “based solely upon” the protected conduct. [ 64 ] At paragraphs 128 to 130 of Elliott , the Nova Scotia Court of Appeal held that the negligent conduct alleged was the defendants’ investigation and reporting of something that might possibly result in litigation and in which the defendants were possible witnesses.

The broad immunity asserted by the defendants would therefore apply to those activities. [ 65 ] At paragraph 11 of Neary , Justice Stack recognized that the timing and context surrounding the making of the statement(

s) underlying the cause of action may also be highly relevant to a determination of whether witness immunity applies.

In Neary, Justice Stack described the facts underlying the claim to be that the Respondent had knowingly provided false information to the trial judge, with intent to mislead the Court, and further provided false evidence to the Court of Appeal. [ 66 ] While Justice Stack noted that the claim was vaguely worded, he determined that it did not matter what cause of action was pleaded as the only impugned conduct raised in the pleadings was the making of statements by the Defendant in the course of giving testimony before the Court at first instance and during the appeal process.

All words were spoken during the course of court proceedings and clearly fell within the scope of the witness immunity doctrine. [ 67 ] However, it is notable that the Nova Scotia Court of Appeal in Elliott relied upon a 1971 decision of the English House of Lords, Roy v.

Prior , [1971] AC 470, [1970] 2 All ER 729 in which it was held that an action should not be defeated simply because one step in the course of the impugned conduct involved the giving of evidence. [ 68 ] At paragraph 123 of Elliott , the court noted that this English case involved a claim for abuse of process that was allowed to proceed even though one aspect of the claim involved an allegation that a solicitor had made false statements in court, resulting in a warrant being issued for the plaintiff’s arrest.

The House of Lords described the gist and essence of the claim as the defendant’s alleged instigation of the plaintiff’s arrest maliciously and without cause. Unlike the claim in Neary , the alleged giving of evidence was only one step in the course of the impugned conduct giving rise to the cause of action. [ 69 ] In respect of the defamation claim, the gist and essence of the conduct alleged against all Individual Defendants is their conduct in making statements to others that tended to lower the Plaintiff’s reputation in the eyes of a reasonable person.

As noted above, the only allegations of statements made by the Third and Fifth Defendants to others are statements made to the RCMP and the Crown in the course of their investigation, and testimony given in Court. The only facts pleaded in respect of the First and Second Defendants is the making of allegations to the RCMP.

Whether witness immunity extends to those statements will be discussed in answering the third question: ie., is the scope of the claimed immunity established by authority. [ 70 ] In respect of the claim for malicious prosecution, as noted above, that cause of action is in respect of or derived from the actions of the Individual Defendants in causing everything to be done maliciously and wrongfully to initiate proceedings or set the law in motion.

In this case, in respect of all Individual Defendants, the alleged malicious and wrongful acts include the provision of statements to the RCMP and, in the case of the Third and Fifth Defendants, the statements made to the Crown and their testimony in court. However, generally that conduct alone would not give rise to a claim of malicious prosecution. This then leads to a consideration of the third step in the four part analysis from Elliott . 3. Is the scope of the claimed immunity established by authority? [ 71 ] It was the third part of the four step analysis that was the main point of contention in Elliott .

The issue was whether witness immunity extended to out of court statements made by persons carrying out investigations and reports for third parties where litigation may be possible, and in the circumstance where some of them later became witnesses to proceedings and others did not. [ 72 ] At paragraph 102 of Elliott , the court noted that determining whether immunity extends to out of court statements can often be a grey area. However, the court noted that statements made to a professional person as to the party’s anticipated evidence at trial are generally immune.

Paragraph 115 reads as follows: 115 The core of witness immunity is well established by authority. A witness has immunity in respect of what he or she says and does in court or in testimony before a quasi-judicial proceeding: Darker v. Chief Constable of the West Midlands (2000), [2001] 1 A.C. 435 (U.K. H.L.) at 463 . The immunity also extends to a statement made by a witness if the statement is as to the nature of the evidence the witness can give and it is made to a professional person preparing the evidence to be presented in court: Watson v. Jones ; Halls v.

Mitchell [ 73 ] Further, at paragraph 144 of Elliott , the Nova Scotia Court of Appeal noted that a relevant consideration is whether the investigations were carried out for the purpose of collecting evidence for a proceeding that was contemplated at the time, whether the person is ultimately called as a witness or not. [ 74 ] In Elliott , in respect of certain of the reports, proceedings were known to be possible at the time of the reports but there was no evidence that proceedings were actually contemplated.

At paragraph 189, the court was influenced by the fact that the evidence did not establish that the investigators thought they were preparing evidence for proceedings. Further, the reports were delivered to the insurer, not counsel. These reports were not caught by the witness immunity doctrine.

[75] While Elliott was dealing with an immunity claim in the context of statements made in relation to prior civil proceedings, thecourt did a thorough overview of the leading English and Canadian authorities, including those dealing with statements made in priorcriminal proceedings. [76] In particular, at paragraphs 170 and 171, the court commented on the nature of the immunity where there is a public law duty toinvestigate. At paragraph 170, the court quoted the statement of Drake, J. in Evans v.

London Hospital Medical College, [1981] 1 All ER715, [1981] 1 WLR 184, at page 192 as follows: …the protection exists only where the statement or conduct is such that it can fairly be said to be part of the process of investigating acrime or a possible crime with a view to a prosecution or a possible prosecution in respect of the matter being investigated. [77] While Elliott did not specifically deal with the issue of whether the authorities support a claim to witness immunity in respectof complaints to the police, the court did note, at paragraph 196, that this issue has been more controversial.

They then went on tosummarize some of the relevant authorities. [78] At paragraph 196, the court referred to a 1992 decision from Ontario, Kazas v. Peterson, [1992] O.J. No. 1666, 35 A.C.W.S.(3d) 139 (Ct. J. (Gen. Div.)).

In that case, it was held that absolute immunity applied to both testimony of a complainant during acriminal proceeding and to complaints or communications made as a necessary incident to the commencement of that proceeding.However, the Nova Scotia Court of Appeal felt that subsequent case law suggests that this formulation was overly broad. [79] In particular, at paragraph 198, reference was made to a later decision from Nova Scotia, Rajkhowa v. Watson (1998), (NS SC), 167 N.S.R. (2d) 108, 502 A.P.R. 108 (S.C).

After thoroughly reviewing several authorities, Hood, J. found thatthree conditions must be met before privilege applies to statements made to police: a. There must be a direct connection between the making of the statement and the proceedings; b. The statement must be necessary in order for the witness to give evidence; and c. It must be in the public interest that the information be given. [80] In that case, there had been no ongoing investigation at the time information was provided but the police did commence one asa result of the defendant’s statement. Ultimately, however, no charges were laid.

Hood, J. found that no immunity applied to thestatement as there was no proceeding to which it was connected. [81] In a 2003 decision from Ontario, Teskey v. Toronto Transit Commission, (ON SC), [2003] O.J. No. 5314,127 A.C.W.S. (3d) 1023 (Sup. Ct.), referred to in paragraph 200 of Elliott, Wilson, J. also considered the scope of witness immunity inrespect of matters prior to trial. She held that, while absolute immunity applies to preparation of witnesses prior to trial and to theirparticipation during the trial, it does not apply to statements and documents prepared before an investigation has commenced.

Absoluteimmunity applies to “matters of advocacy” – that is, those things which are “intimately associated” with the judicial process. Thestatements or documents must have been prepared or provided for the purpose of a possible action or prosecution and at a time when apossible action or prosecution is being considered. No such absolute immunity applies to “matters of detection”. 4. Does the immunity claimed meet the test of necessity? [82] The fourth and final part of the analysis requires a consideration of whether the immunity claimed is necessary to cover aparticular situation.

At paragraph 205 of Elliott, the court referred to the English Court of Appeal decision in Lincoln v. Daniels, [1962]1 QB 237 [1961] 3 All ER 740 in which absolute privilege in respect of proceedings in or before a court of justice was divided into thefollowing three categories: a. Everything that is said in the course of proceedings by judges, parties, counsel and witnesses, including the content of documents inevidence; b. Everything that is done from the inception of the proceedings onwards and extending to all pleadings and other documents broughtinto existence for the purposes of the proceedings; and c.

Situations in which it is necessary in practical terms to extend the immunity “…in order to protect those who are to participate inthe proceedings from a flank attack…” (page 753 of Lincoln v. Daniels) [83] In speaking of this third category, at paragraph 208 of Elliott, the court held that in the case where a person testifies, thenecessity analysis must take into account the two underlying rationales for the rule: (

i) encouraging candour and cooperation in thegiving of evidence; and (ii) avoiding a multiplicity of litigation with the value of the evidence being tried over again. [84] At paragraph 210, the court noted that this often encompasses an assessment of the closeness of the connection between thestatement made in court and the out of court statement.

In respect of statements made in the gathering of evidence, the court noted thefollowing: …Statements made by or to a person discharging a statutory or other public duty to gather evidence for pending or contemplatedproceedings will generally be protected: see (X)Minors; Taylor; Ayangamn, and Evans. The need for candour is clear in those settingsand the public duty strengthens the case for prosecution, particularly where there is a duty to cooperate with the investigation. [85] The Individual Defendants referred to the British Columbia Court of Appeal decision in Workum v. Olnick, 2006 BCCA 528 as

support for its position that witness immunity is necessary in the circumstances before the Court. That case involved an appeal of adecision to strike a claim for conspiracy to give false evidence. [86] While the court in Workum did confirm the underlying rationale that a witness’ testimony should not be tried over again inanother claim, the court merely found that there was nothing to take the matter before it out of the general witness immunity ruleapplying to testimony in court. However, the court did not undertake any real analysis as the underlying proceedings were still ongoingbefore various tribunals.

At paragraphs 12 and 13, the court said that the truth or falsity of all that had been said in evidence will be forthe various tribunals to decide, with the appellant having the opportunity to make his defence in those proceedings. [87] Another case referred to by the Individual Defendants is the British Columbia Supreme Court decision in Mayer v. Mayer, (BC SC), [1995] 2 W.W.R. 97, 99 B.C.L.R. (2d) 166 (S.C.). At paragraph 17 of that decision, the court held thatthere would be little value in the witness immunity rule if it did not also protect those who were alleged to have conspired to commitpurgery.

This immunity includes not only statements made in the witness stand, but statements made to a party or a party’s solicitor inthe course of preparation for trial. [88] Finally, in the Nova Scotia Court of Appeal decision in Horn Abbot Ltd. v. Reeves, 2000 NSCA 88, the court held at paragraph25 that the witness immunity rules applies in criminal proceedings where the statement or conduct is such that it is part of theinvestigation of a crime or possible crime but does not extend outside the relevant proceedings.

Further, the immunity rule is not to becircumvented by alleging a conspiracy between witnesses to make false statements. C. Analysis [89] I approach my analysis of the issues raised being mindful that this application was brought under Rule 14.24(1)(a). While nocounsel or party raised an objection to how this application was commenced, there are limits on what the court can consider anddetermine under this Rule.

I would note that the issue of the application of witness immunity could have been more fully argued underanother Rule, such as Rule 17A (Summary Trial), which would have allowed affidavit evidence, or Rule 38 (Preliminary Determinationof Fact or Law), if the parties had been able to provide an agreed statement of facts. [90] In fact, I note that Elliott was decided under a Nova Scotia rule that is similar to this Court’s Rule 38. The parties hadsubmitted an agreed statement of facts and asked that the Court make a preliminary determination on the issue of whether witnessimmunity applied.

There was a sufficient evidentiary basis for a more detailed examination of how the facts applied to the legal issue. Mayer was also decided by way of

summary trial on the basis of affidavit evidence. [91] Certain of the other cases submitted by the parties were decided on the basis of an application to strike pleadings but it isevident from a review of these decisions that the courts clearly recognized that a plaintiff should not be denied his or her right to have thematter decided on the merits other than in plain and obvious cases where the pleading is bad beyond argument. [92] As a result, while the rule allowing a Court to strike pleadings can be a useful rule of civil procedure to effect a just andexpeditious resolution of certain cases, I must be mindful of the limitations on the rule as expressed by Justice Welsh in the quotationfrom BAE-Newplan reproduced above. [93] My role on an application to strike pleadings is not to make a preliminary determination of the success of any defence, even ifthe defence may be a strong one.

I am restricted solely to looking at the facts pleaded in the Amended Statement of Claim anddetermining whether those facts, if proven, disclose any possible basis on which the Plaintiff could argue entitlement at law. [94] I also note the comments of the Court of Appeal in respect of Rule 14.24 (1)(

a) at paragraph 13 of GRI Simulations Inc. v. Pro-Dive Oceaneering, 2004 NLCA 74, reproduced at paragraph 25 of Neary, as follows: 13. The prime concerns addressed by the rule, as explained by the authorities, are to prevent misuse of the courts' resources, which arenot inexhaustible and to prevent vexatious actions. In addressing those it is established that a plaintiff should not be readily driven fromthe judgment seat. Proceedings should, if possible, be disposed of on their merits — Montreal Trust at para. 12.

Therefore, the ultimatesanction of striking a statement of claim should be reserved for the irremediably defective claim. That was established in MontrealTrust in the following passages: [12] There will be many situations where a cause of action cannot be said to exist on the material facts as pleaded but it will be apparentwhat the intent of the pleader is and that by the addition of omitted material facts upon which the claimant will be relying or the variationof existing pleaded material, a cause of action known to the law would be said to exist.

It would be unfair to the pleader in suchcircumstances, and a violation of the principle that cases should, if possible, be disposed of on their merits, to strike the claim withoutallowing the pleader an opportunity to attempt to cure the defect (but with, perhaps, appropriate penalties in costs). [13] ...

It is only when the court is satisfied that no basis for an amendment exists or the defect could not be cured by any realisticamendment, as for example, where no matter what amendment could be made no cause of action known to the law could possibly exist,should the remedy of striking out be employed. ... . . . . . [15] Furthermore, a statement of claim should not generally be struck out where the deficiency lies in the lack of particulars of a claimthat is otherwise supported by a "bare bones" plea of appropriate material facts. In this situation, the problem lies not in any failure to

identify a potentially applicable cause of action but in the failure to demonstrate how the identified cause of action is specifically applicable to the specific claims against the particular defendant. ... . . . . . [53] ...

So long as it discloses an intention to assert a skeleton, or even a ghost of a claim known to the law (even though all of the constituent elements may not be properly pleaded), then the court may, if it is of the opinion that the claim can be properly described and fairly asserted without irremediable prejudice to the other side, allow the claimant to put flesh on the skeleton (and maybe even supply a few missing bones), by permitting or ordering amendments and/or particulars to ensure, amongst other things, that: (

i) the pleading clearly indicates which of the facts alleged relate to which cause of action against which defendant; and (ii) sufficient particulars are given to enable the defendant to know what particular factual scenarios are being alleged that, if proven, will constitute each cause of action and will justify each of the remedies sought. (Per Green J.A. at paras. 12, 13, 15 and 53) It is of course in the application of the foregoing general principles that differences arose. [ 95 ] As such, the pleading should not be struck unless it is irremediably defective, ie., there is no “skeleton” or “ghost” of a claim once the portions that clearly offend the witness immunity rule are struck.

That was the case in Neary , where the entire foundation of the claim was based on statements made in judicial proceedings. [ 96 ] I must also recognize the statements in Walsh v. TRA Co. , 2007 NLCA 50 referred to in BAE-Newplan , in which the Court of Appeal referred with approval to the general observations of Lord Justice Fletcher Moulton respecting the striking of a statement of claim, at pages 418 to 419 of Dyson v.

Attorney-General , [1911] 1 KB 410 ; 1908-10] All ER Rep Ext 1097, including the following comment: …Differences of law, just as differences of fact, are normally to be decided by trial after hearing in Court, and not to be refused a hearing in court by an order of a judge in chambers. [ 97 ] I have therefore considered the above principles on this application to strike when carrying out the four part analysis of the witness immunity rule. [ 98 ] Having carried out my analysis, I find that it is plain and obvious that the claim for defamation as against the Third and Fifth Defendants cannot succeed.

It is not sustainable as it violates the witness immunity rule. The impugned conduct is specifically described as testimony “spoke at trial and as part of the investigation”. [ 99 ] It is beyond question that statements made at trial are barred by the witness immunity rule.

However, I also find that the scope of the claimed immunity bars statements made by the Third and Fifth Defendants to the RCMP and Crown in the course of their investigation or preparation for prosecution. [ 100 ] While Elliott notes that whether immunity extends to out of court statements can sometimes be a grey area, it is relevant whether the statements were made for the purpose of collecting evidence for a proceeding that was contemplated at the time.

Even taking a narrow view of the scope of witness immunity, the authorities indicate that if a statement is made in the course of an ongoing investigation of a possible crime, with a view to a possible prosecution, witness immunity applies ( Evans , Darker and Teskey ). [ 101 ] In this instance, the facts pleaded indicate the impugned statements of the Third and Fifth Defendants were provided to the RCMP as part of an investigation that had already commenced after the complainants made allegations.

The statements were made in the course of the police gathering evidence for a possible prosecution, with criminal charges ultimately being laid once the investigation was complete. Further, any statements made to the Crown in respect of testimony to be given at trial are squarely within the scope of the witness immunity rule.

I therefore find that witness immunity applies to the defamation claim against those Defendants. [ 102 ] While it is therefore not necessary to consider the fourth part of the test from Elliott , I also find it is necessary to apply witness immunity to the defamation claims against the Third and Fifth Defendants. With respect to statements made to police officers discharging their public duty to investigate, and to the Crown with respect to testimony to be given at trial, the need for candour is clear.

Persons should not fear a flank attack when co-operating with police and the Crown by providing a statement as to their anticipated evidence in a possible or pending prosecution. [ 103 ] While certain statements in the Amended Statement of Claim indicate the Plaintiff attempted to frame the actions of all Individual Defendants as being part a conspiracy to harm him, the conduct alleged against the Third and Fifth Defendants that resulted in harm to the Plaintiff was their statements to police and the Crown and testimony at trial.

As noted by the Nova Scotia Court of Appeal in Horn Abbot , at paragraph 34, where the only allegations against defendants are a bare conspiracy between witnesses to make false statements, the witness immunity rule cannot be circumvented. [ 104 ] In respect of the claim in defamation against the First and Second Defendant, the law is less settled. As noted in Elliott , the extent to which the witness immunity rule applies to out of court statements can be a grey area.

While the case law indicates the need to give immunity to statements made to police officers who are investigating a possible crime for a potential prosecution, the law is not so straight forward with respect to communications made to police before an investigation has begun and at a time when a prosecution is not being contemplated. In this case, the police had no ongoing investigation at the time they were approached by the First and Second Defendants. Further, they were not even aware of any potential crime.

[ 105 ] In making the foregoing statement, I make no comment on the ultimate strength or weakness of the Plaintiff’s defamation claim against the First and Second Defendants. I have also not heard submissions on any other deficiencies that may or may not be argued in respect of that claim. However, where there are differing views on the law and the application of the facts to the law, the matter should proceed to trial.

This is not an appropriate instance in which to strike a pleading. [ 106 ] With respect to the claims of malicious prosecution, I find that it is not plain and obvious that such a claim cannot succeed in circumstances where statements made to police and at trial are only a part of the impugned conduct. The material facts required to succeed in a claim for malicious prosecution against a private individual are focused on the acts of the defendant(

s) in initiating an investigation and doing all that is required to set the law in motion such that it is inevitable that charges will be laid. [ 107 ] In respect of the First and Second Defendants, while the pleadings certainly could and should be clearer in setting out the material facts to support the claim of malicious prosecution, I cannot say that they are irremediably defective. [ 108 ] In looking at the four elements required to be proven in a claim for malicious prosecution, the Amended Statement of Claim does not specifically allege that the First and Second Defendants initiated the prosecution.

However, it is alleged that charges were laid as a result of allegations made by the First and Second Defendants, which spurred an investigation and, ultimately, the laying of two Informations. It is also alleged that the First and Second Defendants acted for the purpose of destroying the Plaintiff’s reputation and causing him to be involved in a lengthy legal battle.

It could be argued that these allegations form the “skeleton” of a claim that the prosecution was initiated by the First and Second Defendants; ie., they were actively instrumental and did all they could to put the law into motion, making it evitable that charges of historical sexual crimes would be laid by the police. [ 109 ] With respect to the second element of a claim for malicious prosecution, the Plaintiff has pleaded that the prosecution was terminated in his favour. [ 110 ] The third element of a claim for malicious prosecution requires the Plaintiff to plead facts showing that the prosecution was undertaken without reasonable and probable cause.

The Plaintiff has pleaded that the First and Second Defendants knew the allegations were false and that it should have been evident the allegations were driven by vengeance. [ 111 ] With respect to the fourth and final element, the Plaintiff has alleged that the allegations made by the First and Second Defendants were false, malicious, vengeful and an intentional attack on the Plaintiff. The material facts pleaded would also lead a defendant to conclude that the First and Second Defendants’ primary purpose in making the allegations was not to carry the law into effect but to harm the Plaintiff.

As a result, the fourth element has been pleaded. [ 112 ] The pleadings contain the bare bones of the cause of action of malicious prosecution and should therefore not be struck. However, the First and Second Defendants are entitled to have further particulars of the claim in order to know the case they have to meet.

More specifically, the Plaintiff must amend his claim or plead particulars as to how it is that the First and Second Defendants initiated the prosecution; ie., what particular actions did they take? [ 113 ] On the other hand, with respect to the claim of malicious prosecution as against the Third and Fifth Defendants, I find that it is plain and obvious that this claim has no chance of success. The conduct giving rise to the claims against the Third and Fifth Defendants relates only to statements made to the RCMP and the Crown during their investigation and testimony at trial.

No facts are pleaded that give rise to an allegation that these Defendants instigated the investigation or prosecution. It cannot be said that the pleaded facts contain the bare bones of an allegation those Defendants did all that was required to set the law in motion, making it inevitable that charges would be laid. That is the first and essential element in a claim for malicious prosecution. [ 114 ] There is therefore no possible basis upon which the Plaintiff could successfully argue a claim of malicious prosecution against those Defendants at law.

It is plain and obvious that the Plaintiff cannot succeed in a claim for malicious prosecution action against the Third and Fifth Defendants. As that portion of the pleading must be struck, I do not even need to consider whether witness immunity applies to those malicious prosecution claims. However, as noted above, as the only conduct actually alleged against the Third and Fifth Defendants is caught by the witness immunity rule, the action would be barred.

CONCLUSION [ 115 ] Applying the above analysis to the claims as pleaded, I find it is plain and obvious that all claims against the Third and Fifth Defendants cannot succeed and they should be struck. [ 116 ] With respect to the claims against the First and Second Defendants, applying the high threshold to strike pleadings under Rule 14.24(1) (a), I cannot state that it is plain and obvious that the claims of defamation and malicious prosecution against those Defendants have no chance of success.

However, the Plaintiff must either further amend the Statement of Claim and/or provide further and better particulars of the actions of the First and Second Defendants that form the basis of the allegation that they instigated the prosecution. [ 117 ] The Plaintiff must further amend the Statement of Claim, in accordance with these reasons for judgment: (

i) to clearly indicate which of the facts alleged relate to each cause of action; and (ii) to delete causes of action not known at law. [ 118 ] As the Fifth Defendant was successful in his application and his counsel took the lead in filing briefs and making submissions, he is entitled to costs of the application on Column 3 of the Scale of Costs under Rule 55 of the Rules . While the Third Defendant was also successful, he did not retain counsel.

His application and brief mirrored that of the Fifth Defendant with the exception of minor changes to reflect his personal circumstances, and he made little to no oral submissions. I therefore exercise my discretion to award him costs at Scale 1 of the Scale of Costs under Rule 55 , solely in relation to the preparation and filing of the application and associated affidavit as

well as his memorandum of fact and law. [ 119 ] While the First and Second Defendants were not successful, their applications essentially mirrored those of the Fifth Defendant and added little additional court time for submissions. Further, the pleadings were deficient and an order for an amendment and/or further particulars was warranted. I therefore exercise my discretion to make no award of costs against the First and Second Defendants. _____________________________ Rosalie McGrath Justice