ALISA R. LOMBARD Plaintiff (Respondent) - v. -, 2022 SKKB 224

KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 224 Date: 2022 10 11 Docket: QBG-SA-00618-2022 Judicial Centre: Saskatoon ___________________________________________________________________________ BETWEEN: ALISA R. LOMBARD Plaintiff (Respondent) - and - HELEN SEMAGANIS, K.C., I.P.C., DONALD WORME, K.C., I.P.C., SEMAGANIS WORME LEGAL Defendants (Applicants) - and - FAITH BARON Defendant (Applicant) Counsel: Matti Lemmens for the plaintiff (respondent), Alisa R. Lombard Timothy P. Hawryluk, K.C. for the defendant (applicant), Faith Baron Adam R.

Touet for the defendants (applicants), Helen Semaganis, K.C., I.P.C., Donald Worme, K.C., I.P.C., and Semaganis Worme Legal ___________________________________________________________________________ FIAT CURRIE J. October 11, 2022 ___________________________________________________________________________ Introduction [ 1 ] Helen Semaganis and Donald Worme are the partners of the Saskatoon law firm Semaganis Worme Legal. Alisa Lombard, who also is a practising lawyer, had been a partner of Ms. Semaganis and Mr. Worme in the predecessor law firm, Semaganis Worme Lombard. [ 2 ] Ms.

Lombard has left the partnership, and in the aftermath of that departure Semaganis Worme Legal has commenced an action (“the partnership action”) against Ms. Lombard, alleging certain improprieties by Ms. Lombard and claiming recovery of judgment from her. [ 3 ] In the action that is before me here (“the defamation action”), Ms. Lombard now sues Ms. Semaganis, Mr. Worme and Semaganis Worme Legal for defamation. Her allegation of defamation relates to the contents of the statement of claim in the partnership action. In this defamation action Ms. Lombard also sues Faith Baron, who is the lawyer representing Ms.

Semaganis, Mr. Worme and Semaganis Worme Legal in the partnership action. [ 4 ] There are two applications before me. Ms. Baron applies for an order striking out Ms. Lombard’s statement of claim, as against Ms. Baron, in this defamation action. Ms. Baron says that the statement of claim discloses no reasonable cause of action against her ( The Queen’s Bench Rules , Rule 7-9(2)(a)). In the alternative, she says that the claim against her is frivolous and vexatious (Rule 7-9(2)(b)). [ 5 ] Ms. Semaganis, Mr.

Worme and Semaganis Worme Legal (collectively, “the law firm”) apply for an order striking out paragraphs 6(a)-(

c) of Ms. Lombard’s statement of claim in this defamation action, on the ground that the claims appearing

in those clauses disclose no reasonable cause of action against the law firm. In the alternative, the law firm says that those claims against it are frivolous, vexatious and an abuse of process (Rule 7-9(2)(e)). [ 6 ] With the agreement of the parties, I have directed suspension of the required mandatory mediation session ( The Queen’s Bench Act, 1998 , SS 1998, c Q-1.01 , s 42) until after these applications have been determined. The allegation of defamation [ 7 ] Ms. Lombard’s statement of claim in this action provides: STATEMENT OF CLAIM Statement of facts relied on: The Parties 1. The Plaintiff, Alisa R.

Lombard, is an individual residing in Ottawa, Ontario. Ms. Lombard is an active member of the Law Society of Saskatchewan and the Law Society of Ontario. 2. The Defendants, Helen Semaganis, Q.C., I.P.C. and Donald Worme, Q.C., I.P.C., are individuals residing in Saskatoon, Saskatchewan, and did so at all relevant and material times. Both Ms. Semaganis and Mr. Worme are active members of the Law Society of Saskatchewan. 3. The Defendant, Semaganis Worme Legal (“SW Legal”), is a partnership carrying on business in Saskatoon, Saskatchewan. To the best knowledge of Ms. Lombard, Ms. Semaganis and Mr.

Worme are the principals and sole partners of SW Legal. 4. The Defendant, Faith Baron, is an individual residing in Saskatoon, Saskatchewan. Ms. Baron is legal counsel to Ms. Semaganis, Mr. Worme and SW Legal, and is an active member of the Law Society of Saskatchewan. 5. Ms. Lombard, Ms. Semaganis and Mr. Worme entered into a partnership doing business as Semaganis Worme Lombard Barristers and Attorney-at-Law (the “Partnership”) pursuant to a partnership agreement with an effective date of February 28, 2019 (the “Partnership Agreement”). The Defamatory Statements 6.

The Defendants, or any of them, made statements regarding Ms. Lombard as follows: (

a) on or around April 18, 2022, Ms. Semaganis and Mr. Worme, through SW Legal and Ms. Baron, filed a Statement of Claim with the Court of Queen’s Bench for Saskatchewan in Q.B. No. 381 of 2022 (the “Statement of Claim”). The Statement of Claim alleges, inter alia , that Ms. Lombard converted, diverted and/or misappropriated client funds to her own benefit, despite the Defendants being aware that no such conversion, diversion or misappropriation occurred because Ms. Lombard was ready, willing and able to place those funds into trust pending the resolution of the dispute between the parties.

The Statement of Claim includes the following specific statements: (i) “[3.] …Lombard withdrew from the partnership”; (ii) “[4.] The Partnership discovered that, while Lombard was a partner, she converted, diverted, and/or misappropriated funds that should have been received by the Partnership from a client, and she entered into a contract for legal services directly with a client without the consent of the other partners”; (iii) “[7.] …she advised the client to make payment to a bank account in her sole name, rather than to the bank account of the Partnership”; (iv) “[11.] Semaganis and Worme made several demands for the return of the funds to the Partnership, but all such demands have been ignored and/or refused by Lombard”; and (v) “[18.] The Plaintiff claims that as a partner of the Partnership, Lombard had duties of loyalty and good faith and that she breached those duties when she misrepresented information about the Partnership’s banking affairs to a client and/or clients, and converted and/or diverted and/or misappropriated funds received from a client and/or clients of the Partnership.

Lombard is therefore liable to the Partnership in an amount of at least $107,606.40, the exact amount of damages to be determined at trial”; (

b) on April 27, 2022, Alex McPherson, editor for the news publication allSaskatchewan.com communicated in writing with Ms. Lombard to obtain her comment on the Statement of Claim, which Ms. McPherson described as “multiple allegations regarding your handling of clients and funds while with the firm under its previous name”; (

c) on or around April 28, 2022, the Business Insider published an

article on the allegations contained in the Statement of Claim, including its allegations of Ms. Lombard’s alleged conversion, diversion and misappropriation and of client monies; and (

d) on May 30, 2022, Ms. Lombard learned that Mr. Worme had met with the relative of Ms. Lombard’s client in the offices of Semaganis Worme Legal some time prior. During Ms. Lombard’s subsequent meeting with that individual, Ms. Lombard was informed that Mr. Worme told the relative of her client that Mr. Worme was “charging Ms. Lombard for stealing over $100,000” from him, that the matter was currently before the Courts and that, as such, “Ms. Lombard has no credibility”; 7. The Defamatory Statements tend to lower the esteem of Ms. Lombard in the minds of ordinary members of the public, such that they lowered Ms.

Lombard’s reputation in the eyes of a reasonable person, and were communicated to one or more third parties, either directly or by virtue of being published on the Internet.

8. The Defendants knew that the Defamatory Statements would cause irreparable harm to the esteem of Ms. Lombard. Despite having the knowledge, the Defendants chose to make the Defamatory Statements. 9. The purpose of the Defamatory Statements was malicious and driven by ill will. In particular, Ms. Lombard states, and the fact is, that: (

a) Ms. Lombard, Ms. Semaganis, Mr. Worme and the Partnership are co-defendants in an Action in Court of Queen’s Bench of Saskatchewan File Number QBG 235-2021 (the “Maurice Law Action”), in which Action Ms. Baron represents Ms. Semaganis, Mr. Worme and the Partnership. The Defendants filed the Statement of Claim in an attempt to improperly influence the outcome of the Maurice Law Action; (

b) Ms. Semaganis and Mr. Worme deliberately made the Defamatory Statements to smear Ms. Lombard’s reputation and take her clients following the end of the Partnership; and (

c) SW Legal was not a party to the Partnership Agreement and has no standing to bring the claims made in the Statement of Claim against Ms. Lombard. As such, the Statement of Claim reflects a transparent attempt by the Defendants to damage Ms. Lombard’s reputation by commencing a hopeless and vexatious legal proceeding. 10. The Defamatory Statements were intentionally widely disseminated to the public to defame and smear the reputation of Ms. Lombard, and to cause her significant stress, embarrassment, harm and financial loss. Ms. Lombard was defamed as a result. 11. As a result of the Defamatory Statements, Ms.

Lombard has suffered an irreparable loss of her reputation, significant stress, embarrassment and emotional harm. Ms. Lombard’s career and business, respectively, and their future opportunities for profit, have been put in jeopardy, as she has been stigmatized in the legal community due to the Defamatory Statements, including the indigenous legal community in particular. 12. Ms. Lombard seeks general damages for defamation in the sum of $750,000 or such further or other amount as this Honourable Court may award in the circumstances. 13.

Further, given the high-handed and morally reprehensive conduct of the Defendants, Ms. Lombard seeks punitive and exemplary damages in the sum of $300,000, or such further or other amount as this Honourable Court may award in the circumstances. 14. Furthermore, Ms. Lombard also seeks aggravated damages in the sum of $300,000, or such further or other amount as this Honourable Court may award in the circumstances. 15. Ms. Lombard pleads and relies upon the relevant provisions of The Libel and Slander Act , RSS 1978 c L-14 . Remedy sought: 16. Ms.

Lombard proposes that the trial of this action be heard at the Court of Queen’s Bench for Saskatchewan in Saskatoon. 17. Ms. Lombard claims against the Defendants, Ms. Semaganis, Mr. Worme, SW Legal and Ms. Baron, jointly and severally: (

a) a permanent injunction enjoining, restraining and prohibiting the Defendants from directly or indirectly defaming, disparaging or otherwise damaging Ms. Lombard’s reputation; (

b) general damages for defamation in the amount of approximately $750,000 or such further or other amount as this Honourable Court may see fit to grant in the circumstances; (

c) punitive and exemplary damages in the sum of $300,000 or such further or other amount as this Honourable Court may see fit to grant in the circumstances; (

d) aggravated damages in the sum of $300,000 or such further or other amount as this Honourable Court may see fit to grant in the circumstances; (

e) special damages in an amount to be proven at trial; (

f) a public apology from the Defendants to Ms. Lombard; (

g) interest pursuant to The Pre-judgment Interest Act , SS 1984-85-86, c P-22.2 ; (

h) costs of this Action on a solicitor-client, full indemnity basis; and (

i) such further and other relief as this Honourable Court may see fit in the circumstances. [ 8 ] Ms. Baron asserts that the entirety of Ms. Lombard’s claim cannot succeed against her, because the claim against her is based on the pleading in the partnership action, and a pleading is protected by absolute privilege. The law firm makes the same assertion in relation to paragraphs 6(a)-(

c) of the statement of claim. The law firm recognizes that the allegation in paragraph 6(

d) of the statement of claim discloses a reasonable cause of action. Applicable Rules of Court [ 9 ] The defendants’ applications are made under Rule 7-9 of The Queen’s Bench Rules : 7-9(1) If the circumstances warrant and one or more conditions pursuant to subrule (2) apply, the Court may order one or more of the

following: (

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

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

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

d) that the proceeding be stayed or dismissed.

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

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

b) is scandalous, frivolous or vexatious; (

c) is immaterial, redundant or unnecessarily lengthy; (

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

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

(3) No evidence is admissible on an application pursuant to clause (2)(a). The law of absolute privilege and pleadings [10] Statements made in pleadings are protected from defamation action by absolute privilege. This principle is partof a broader principle that applies to court proceedings, as discussed by Justice Smith in Sauvé v Merovitz, (Ont SupCt), at paras 35-38: [35] The English Court of Appeal in Munster [(1883), 11 QBD 588, 52 LJQB 726 (CA)] also quoted from the text, Gatley on Libeland Slander, 8th ed. (1974), at page 160, which referred to Razzell v.

Edmonton Mint Ltd., (AB KB), [1981] 4W.W.R. 5 (Alta. Q.B.), where Dea J. stated that public policy and convenience require that in the following circumstances a man shouldbe free from responsibility for publication of defamatory words and that an absolute privilege attaches to the following statements: 1. Statements made in the course of judicial proceedings; 2. Statements made in the course of quasi judicial proceedings; 3. Statements contained in documents made in judicial or quasi-judicial proceedings.

I agree and find that absolute privilege attaches in the above three circumstances. [36] Similar conclusions were reached in Ontario in the cases of Web Offset Publications Ltd v. Vickery (1998) (ON SC), 40 O.R. (3d) 526 (Gen.Div.); affd (ON CA), 43 O.R. (3d) 802n (C.A.) and in Hall v. Baxter (1922), 22O.W.N. 207 (H.C.J.), where Orde J. made the following statement: No action will lie for defamatory statements made or sworn in the course of a judicial proceeding before any Court of competentjurisdiction:” Odgers on Libel and Slander, 5th ed., p. 233.

This defence of absolute privilege applies to statements in the writ, in thepleadings, and in affidavits, as well as to statements by the Judge, counsel, and witnesses in open Court. And the privilege is extended tostatements though made falsely and maliciously. [37] In the Law of Defamation, second edition, Volume I, by Raymond E. Brown, Carswell Thompson professional publisher, at page1-34, the author states: There is also an absolute privilege for all those communications made in the course of, or incidental to, the processing of and furtheranceof judicial and quasi-judicial proceedings. [38] Mr.

Sauvé argues that a claim for absolute privilege is defeated by malice, but I find that this is clearly not the case forstatements made by counsel at a motion or in affidavits or in facta filed with the court based on the case law cited above. [11] The same principle was discussed by Justice Allbright in Getz v Opseth, 2005 SKQB 69, 261 Sask R 1, atpara 12: [12] In considering more closely the issue of absolute privilege, no action for defamatory statements can exist where such statementsare made in the course of judicial or quasi-judicial proceedings.

Rather such statements are protected by the principle of absoluteprivilege. … [12] Malice does not provide an exception to the application of absolute privilege. This was addressed by JusticeSmith in Sauvé at paragraphs 36 and 38. It was further addressed by Justice Dietrich in Royal Crown Academic School Inc. v Wu, 2017ONSC 7295 at paras 17-18: [17] Statements made on a limited range of occasions, referred to as occasions of absolute privilege, should be immune from legalattack.

Where absolute privilege applies no action can be brought regardless of whether the words were written or spoken maliciously,without justification or excuse, or negligently: see 1522491 Ontario Inc. v. Stewart, Esten Professional Corp., 2010 ONSC 727, 100

O.R. (3d) 595 (Div. Ct.) (“1522491”) at paras. 32-33, 35. [18] As noted by Karakatsanis, J. in granting leave to appeal the decision of the motions judge in 1522491 Ontario Inc. v. Stewart,Eston Professional Corp., (ON SCDC), [2009] O.J. No. 1413 (Div. Ct.), statements will attract absolute privilege inthe litigation context if they were made on occasions that are prepatory, preliminary, intimately connected, necessary or incidental to theinstitution of proceedings provided the communications on such occasions are intimately connected to the litigation: see para. 8.

Atpara. 17, Karakatsanis, J. notes that “[w]hile an inquiry into the purpose of the statements must be made to determine whether thestatements were ‘for the purposes of, or prepatory to, the commencement of judicial proceedings’, motivation, bad faith or malice behindthe communication is irrelevant to absolute privilege provided it was intimately connected with the litigation”. [13] The matter was stated even more plainly by Justice Ferrier in 1522491 Ontario Inc. v Stewart, EstenProfessional Corp., 2010 ONSC 727, 100 OR (3d) 596, at paras 34-35: [34] Absolute privilege applies to false or malicious statements in pleadings and factums: Big Pond Communications 2000 Inc. v.Kennedy (2004), (ON SC), 70 O.R. (3d) 115, [2004] O.J.

No. 820 (S.C.J.); Web Offset Publications Ltd. v. Vickery(1998), (ON SC), 40 O.R. (3d) 526, [1998] O.J. No. 6478 (Gen. Div.), affd (1999), (ON CA), 43O.R. (3d) 802, [1999] O.J. No. 2760 (C.A.), leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 460. [35] It makes no difference that the words may be totally and knowingly false and spoken mala fides and with actual malice andwithout justification or excuse: Brown [Raymond E. Brown, The Law of Defamation in Canada, loose-leaf, 2d ed, (Toronto: Carswell,1999)] at 12-36 to 12-37; Web Offset, supra, per Kruzick J. (Gen.

Div.), at paras. 38-39. [14] A defamatory statement in a pleading, then, is protected from court action by absolute privilege. This is so evenif the statement was intentionally and knowingly malicious. Failure to disclose a reasonable cause of action [15] Briefly summarized, the test under Rule 7-9(2)(

a) is whether it is plain and obvious that the claim cannotsucceed at trial: Sagon v Royal Bank of Canada (1992), (SK CA), 105 Sask R 133 (CA). [16] Ms. Lombard claims in this action that the law firm and Ms. Baron made defamatory statements in the statementof claim in the partnership action. As I have reviewed, such pleadings are protected by absolute privilege from a defamation claim.Therefore, it is plain and obvious that the claim based on the statement of claim in the partnership action cannot succeed against any ofthe defendants, and so it discloses no reasonable cause of action. [17] Furthermore, paragraphs 6(

b) and (

c) of the statement of claim do not include any allegations against any of thedefendants. Paragraph 6(

b) includes an allegation that Mr. McPherson knew of the contents of the statement of claim in the partnershipaction, but that clause does not include an allegation that any of the defendants published those defamatory words to Mr. McPherson.Similarly, paragraph 6(

c) includes an allegation that the Business Insider knew of the contents of the statement of claim in thepartnership action, but that clause does not include an allegation that any of the defendants published those defamatory words to theBusiness Insider. [18] In addition, paragraph 6(

b) does not allege a communication to a third person (from which damage to Ms.Lombard’s reputation might be proven or inferred), but rather refers to a communication made to Ms. Lombard herself. Such acommunication cannot form the basis of a claim for defamation, as Ms. Lombard is presumed not to have formed a lower opinion ofherself as a consequence of hearing the words from Mr. McPherson. [19] Ms. Lombard argues, however, that her statement of claim suggests that the defendants published the contents ofthe defamatory words beyond including them in the statement of claim in the partnership action.

She argues that it is implied in herstatement of claim that the defendants communicated those words to Mr. McPherson and to other persons including the Business Insider. [20] In that regard, Ms. Lombard points to paragraphs 7 and 10 of her statement of claim. She says that the readermay infer that it was the defendants who engaged in the communications referred to in those paragraphs. I do not accept that argument.Those paragraphs allege only that the statements were communicated to one or more third parties, directly or via the internet, bysomeone.

The identity of that “someone” is not pleaded, however. [21] Inferring that the “someone” is one or more of the defendants is not logical or reasonable. Indeed, one mayconclude that, in light of the pleadings in paragraph 6(

b) and (c), it is more likely that the “someone” is Mr. McPherson or the BusinessInsider. In any event, a proper pleading in a statement of claim does not leave a defendant wondering whether a particular allegationrelates to that defendant or to someone else – and thus wondering whether the pleading amounts to a claim that the defendant mustaddress. As I discuss below, under the topic of whether to permit an amendment, a pleading of defamation requires the pleading ofdetails sufficient to allow a defendant to know just what is being alleged against that defendant.

There is no such pleading in paragraph 7or 10. [22] One might suggest, though, that it must be obvious that Ms. Lombard is referring to the defendants inparagraphs 7 and 10, since it is the defendants that she is suing in the action. That is a possibility for me to consider, in light of theobservations of Justice Caldwell in Reisinger v J.C. Akin Architect Ltd., 2017 SKCA 11, 411 DLR (4th) 687, at para 20: [20] One of the tasks of a judge reviewing a pleading under Rule 7-9 is to determine whether sufficient facts to establish the requiredlegal elements of the cause of action have been pleaded.

The reviewing judge in discharging this task must have regard to the statementof claim as a whole. Specifically, he or she must review any recitation of allegations that appear to be customary formulations of theelements of specific causes of action as may be found, for example, in such texts as Bullen & Leake & Jacob’s Canadian Precedents ofPleadings, 2d ed (Toronto: Carswell, 2013). The reviewing judge must also have regard to the non-formulaic allegations of factcontained in the statement of claim. It is for him or her to determine whether the combined effect of any technical pleading, together with

other facts, properly plead the essential elements of the cause of action. … [23] In fact, as I have said, it is not obvious that in paragraphs 7 and 10 Ms. Lombard is referring to the defendants.After all, Ms. Lombard devotes all of paragraphs 6(

b) and (

c) of her statement of claim to a discussion of publication by persons (Mr.McPherson and Business Insider) who are not defendants in this action. There is no safe inference or assumption to be made about theidentity of the person who is said to have engaged in the communication referred to in paragraphs 7 and 10. [24] The claim against Ms. Baron is set out in para 6(

a) of Ms. Lombard’s statement of claim. Paragraphs 6(b)-(

d) donot assert a claim against Ms. Baron. The claim against Ms. Baron is based entirely on the statements in the statement of claim in thepartnership action. Those statements are protected by absolute privilege from defamation action. It is plain and obvious that the claimagainst Ms. Baron cannot succeed. Accordingly the statement of claim discloses no reasonable cause of action as against Ms. Baron. [25] The claim against the law firm likewise is set out in para 6(

a) of Ms. Lombard’s statement of claim. Paragraphs6(

b) and (

c) do not assert a claim against the law firm. Ms. Lombard asserts a claim, not the subject of these applications, against onlyMr. Worme in para 6(d). Again, the claim against the law firm is based entirely on the statements in the statement of claim in thepartnership action. Those statements are protected by absolute privilege from defamation action. It is plain and obvious that the claimsthat are set out in paragraphs 6(a)-(

c) of the statement of claim disclose no reasonable cause of action as against the law firm. Frivolous, vexatious, abuse of process [26] In the alternative, the defendants ask the court to find that the impugned parts of the statement of claim arefrivolous, vexatious and an abuse of process. [27] A frivolous claim is one that is “groundless and pursued for the purpose of delay or embarrassment”: C & JHauling Ltd. v Mistik Management Ltd., 2010 SKQB 60, 351 Sask R 199, at para 15. There is no evidence before me that thisdefamation action falls under that description.

I do not find this action to be frivolous. [28] A vexatious claim is one that is pursued for an ulterior motive such as to annoy or embarrass the defendants.There is no evidence before me that this defamation action falls under that description. I do not find this action to be vexatious. [29] Justice Reilly addressed abuse of process in the context of a lack of a reasonable cause of action, in Dooley vC.N.

Weber Ltd. (1994), (ON SC), 118 DLR (4th) 750 at 757 (Ont SC): … To the extent that any action is based upon statements in a pleading, the claim will disclose no reasonable cause of action.Otherwise expressed, the action has no reasonable chance of success in law, and to permit it to continue would constitute an abuse of theprocess of the court. [30] I agree with this approach. A claim that discloses no reasonable cause of action would, if allowed to proceed,constitute an abuse of the court’s process. As the law firm has alleged, paragraphs 6(a)-(

c) of the statement of claim falls under thisdescription. Possible amendment [31] Sometimes, when a deficiency in a pleading is identified, the court permits a party to amend the pleading ratherthan striking out the pleading. Ms. Lombard requests such permission, should the court find a deficiency in her statement of claim. [32] Typically an amendment is permitted when the substance of the allegation is evident but the pleading of theallegation is missing an essential element or a required detail.

Justice Barrington-Foote discussed this prospect in Thirsk v Saskatchewan(Public Guardian and Trustee), 2017 SKQB 66 at para 11: [11] On an application to strike all or part of a claim pursuant to Rules 7-9(1)(

a) of The Queen’s Bench Rules on the ground specifiedin Rule 79(2)(a) – that it discloses no reasonable cause of action – the court has the discretion to permit amendments to cure the defects.That is so even where the pleader has not applied to amend. That discretion was described by Sherstobitoff J.A. in relation to formerRule 173 in Sagon v Royal Bank of Canada (1992), (SK CA), 105 Sask R 133 (Sask CA) [Sagon], as follows: [17] Rule 173 permits amendment rather than striking out in appropriate cases.

Bullen & Leake’s Precedents of Pleadings, 12th ed.,summarizes the practice this way at p. 143: Where the statement of claim or defence as pleaded discloses no reasonable cause of action or defence because some material avermenthas been omitted or because the pleading is defectively stated or formulated, the court, while striking out the pleading, will not dismissthe action or enter judgment, but will give the party leave to amend and if necessary to serve a fresh pleading to correct or cure thedefects appearing in the original pleading.

On the other hand, if the court is satisfied that the pleading discloses no reasonable cause ofaction or defence, as the case may be, and that no amendment, however ingenious, will correct or cure the defect, the pleading will bestruck out and the action dismissed or judgment entered accordingly. [footnotes omitted] [33] At first glance it may appear that Ms. Lombard need only make an amendment alleging that the defendantspublished the defamatory words not only in the statement of claim in the partnership action but also to other persons.

Such a bareassertion, however, would be insufficient to meet the requirements of pleading in a defamation action. [34] The pleading of defamation requires specificity in describing the alleged defamation. This requirement is basedon fairness to the defendant. The defendant is entitled to know what the defendant is alleged to have published, and to whom, and when,and how. Chief Justice Richards addressed this requirement in Hope v Gourlay, 2015 SKCA, 2015 SKCA 27 , [2015] 6 WWR317, 27 at paras 18-19, 22, 24-25:

[18] The pleadings in issue here concern an allegation of defamation. A plaintiff must prove three things in order to be successful insuch an action: (

a) the impugned words were defamatory in the sense that they tended to lower the plaintiff’s reputation in the eyes of areasonable person, (

b) the words in issue referred to the plaintiff, and (

c) the words were communicated to at least one person other thanthe plaintiff. See: Grant v Torstar Corp., 2009 SCC 61 at para 28, [2009] 3 SCR 640. [19] With that bit of background, I turn now to the various features of the Chambers judge’s decision which the Hopes have calledinto question. The first is his view that the Hopes were required to identify the “exact words” said to be defamatory. I agree with theHopes that he erred in taking this approach.

It is grounded on an outdated principle. … [22] All of that said, the more recent Queen’s Bench decisions on this issue tend to have taken a more forgiving approach to thepleading of a defamation claim. See, for example: Duke v Puts (1997), (SK KB), 161 Sask R 299; R.E.L. v J.G-S.,2000 SKQB 74, 191 Sask R 204; Bell v Xtreme Mining & Demolition Inc., 2014 SKQB 177; Wilchuck v W & W Enterprises Ltd., 2002SKQB 471.

The sense of those decisions is that, if a statement of claim reveals the words said to be defamatory with sufficientparticularity to allow the defendant to understand the case against him or her and to defend it, then the claim should not be struck forfailing to disclose a cause of action. … [24] Given the developments in the case law in Saskatchewan and elsewhere, I conclude that there should be no rule or principle ofpleading to the effect that a claim for defamation must be struck simply and only because it does not reproduce verbatim the wordsalleged to be defamatory.

To that extent, Berry v Retail Merchants Association [ (SK CA), [1924] 2 DLR 916 (SaskCA)] should no longer be followed. [25] A plaintiff must, of course, identify the exact words at the root of a claim for defamation if that is possible. But, when it is not, aclaim might still be allowed to stand if the pleading nonetheless identifies the offending communication with sufficient precision andparticularity that the defendant knows the case against him or her and is able to plead to it and prepare his or her defence.

Anyassessment in this regard must be undertaken with an appreciation for the fact that, in a defamation action, the words said to bedefamatory are the very heart of the plaintiff’s claim.

The defendant should not be required to shoot at a fuzzy or a moving target.[Emphasis added] [35] In Reed v Dobson, 2021 SKQB 252 at para 228, Justice Mitchell summarized the requirements of pleadingdefamation: [228] Like any pleading, a claim for defamation must set out a concise statement of the material facts upon which the plaintiff relies.These material facts should include: (1) particulars of the allegedly defamatory words; (2) publication of the words by the defendant;(3) to whom the words were published; (4) that the words were defamatory of the plaintiff in their plain and ordinary meaning or byinnuendo; and (5) the time and place the defamatory words were made, if possible.

See, for example: Catalyst Capital Group Inc. vVeritas Investment Research Corp., 2017 ONCA 85 at para 23, 136 OR (3d) 23 [Catalyst]. [36] A pleading of defamation that fails to include these elements is a deficient pleading. On application, such apleading would be struck out by the court for failing to disclose a reasonable cause of action. It is not enough, then, for Ms. Lombard toallege merely that the defendants published the defamatory words to others.

She must set out the details of such publication – to whom,and when, and how. [37] Often a party whose pleading is the subject of an application to strike will submit a draft amendment, in case thecourt concludes that the pleading is deficient. The draft amendment sets out how the party proposes to remedy the alleged deficiency,and so to save the pleading from being struck out. [38] Here Ms. Lombard has not provided a draft amended pleading. That is understandable, because Ms. Lombardacknowledges that she does not have any details of the defendants’ alleged publication to other persons.

She is unaware of whether thedefendants in fact have communicated the contents of their statement of claim to other persons, and so she is unaware of to whom suchcommunication may have been made, or when, or in what manner (whether by social media, email, fax, post or some other method). Ms.Lombard thinks that the defendants engaged in such communication, but (as the law firm’s counsel suggested at the hearing of theseapplications) for all she knows there are no such details to obtain because Mr.

McPherson and the Business Insider learned of thepartnership action not from the defendants but simply in the course of reviewing the publicly-accessible files of this court. [39] The significance of this circumstance is that Ms. Lombard is not able to amend her statement of claim to remedythe deficiency that I have identified. The situation is like that described at the conclusion of Justice Sherstobitoff’s remarks as quoted inThirsk, in that no amendment will correct or cure the defect. For this reason, there is no point in giving her leave to amend, and I declineto do so.

Determination of the applications [40] As against Ms. Baron, the statement of claim in this action does not disclose a reasonable cause of action.Accordingly, the statement of claim is struck out as against Ms. Baron. [41] As against the law firm, the statement of claim in this action does not disclose a reasonable cause of action inrelation to the claims set out in paragraphs 6(a)-(

c) of the statement of claim, and those claims constitute an abuse of process.Accordingly, paragraphs 6(a)-(

c) of the statement of claim are struck out. Costs

[ 42 ] The defendants have succeeded in establishing the grounds for striking Ms. Lombard’s pleadings. They have incurred expense in so doing. As the successful parties, they are entitled to costs of the application (and, in Ms. Baron’s case, costs of the action). In similar circumstances Justice Allbright fixed costs in the amount of $3,000.00: Babatunde v Bank of Canada , 2017 SKQB 62 at para 72 . Justice Hildebrandt fixed costs in the same amount in Mitchell v Candle Lake (Resort Village) (12 August 2022) Prince Albert, QBG-PA-00031-2022 (Sask QB).

One reasonably may conclude that the defendants here were put to an expense equivalent to that incurred by the defendants in those matters. I find that $3,000.00 is an appropriate amount at which to fix the costs for each set of defendants. [ 43 ] Ms. Baron will have from Ms. Lombard the costs of this action, which I fix in the amount of $3,000.00. The law firm will have from Ms. Lombard the costs of this application, which I fix in the amount of $3,000.00, payable in any event of the cause.

Conclusion [ 44 ] The statement of claim in this action is struck out as against Faith Baron, and the within action against her is dismissed, with costs in the amount of $3,000.00. [ 45 ] Paragraphs 6(a)-(

c) of the statement of claim in this action are struck out as against Helen Semaganis, Donald Worme and Semaganis Worme Legal, with one set of costs in the amount of $3,000.00, payable in any event of the cause. “G.M. Currie” J. G.M. CURRIE