MATT SAWATZKY Plaintiff - v. -, 2023 SKKB 199

KING’S BENCH FOR SASKATCHEWAN Citation: 2023 SKKB 199 Date: 2023 09 25 Docket: QBG-PA-00195-2021 Judicial Centre: Prince Albert ___________________________________________________________________________ BETWEEN: MATT SAWATZKY Plaintiff - and - PRINCE ALBERT GOLF AND CURLING CLUB INC. and KELLY TIMMERMAN Defendants Counsel: Randall T. Klein, K.C. for the plaintiff Robert J. Affleck for the defendant ___________________________________________________________________________ FIAT SCHERMAN J.

September 25, 2023 ___________________________________________________________________________ The Matters for Decision [ 1 ] The plaintiff, Matt Sawatzky, has commenced a claim against the defendant Prince Albert Golf and Curling Club Inc. [PAGCC] for wrongful dismissal and defamation and against the defendant Kelly Timmerman for defamation.

PAGCC and Timmerman, collectively [applicants], have defended the proceedings and have brought an application to strike aspects of the claim on grounds including that: a. the claim against Timmerman in his personal capacity should be struck on the grounds that the pleadings do not disclose a reasonable cause of action in that regard; and b. the allegations respecting defamation do not have meet the standards of precision required in a defamation claim. [ 2 ] The applicants seek to strike paragraphs 5, 25, 26, 32, 33, 34, 35, 36 and 39 of the claim.

Background Facts [ 3 ] Sawatzky was employed by PAGCC as the general manager of its operations on April 25, 2016. He was terminated on a “without cause” basis on July 3, 2020, with four weeks’ pay in lieu of notice. At paragraph 24 of his claim, he pleads that: 24.

PAGCC, through its officers, agents and employees and TIMMERMAN in his personal capacity, and in his capacity as Chair of the Board of Directors and President of PAGCC, have falsely and maliciously published words defamatory of the plaintiff. [ 4 ] Other paragraphs of the claim provide further allegations regarding the claim of defamation. [ 5 ] In his defence, Timmerman admits the plaintiff’s allegation at paragraph 3 of the claim that Timmerman “at all material times was the Chair of the Board of Directors, Vice President, and, commencing in the fall of 2018, president of PAGCC”.

He goes on to state that at all times relevant to the defamation claim, he acted exclusively in his capacity of Director of PAGCC’s Board.

The Applicable Law Striking on the Grounds of Disclosing no Reasonable Cause of Action [ 6 ] It is well established that an application to strike on the grounds that the pleadings disclose no reasonable cause of action is grounded in a review of the pleadings only and that affidavit evidence is not permitted. [ 7 ] In Wilson v Saskatchewan Water Security Agency , 2023 SKCA 16 at para 17 [ Wilson ] , the Court of Appeal quoted from Collins v Saskatchewan Rural Legal Aid Commission , 2002 SKQB 201 at para 11 , the law governing applications to strike

pursuant to former Rule 173(a) (now Rule 7-9(2)) of The Queen’s Bench Rules as being: [11] … (

i) The claim should be struck where, assuming the plaintiff proves everything alleged in the claim there is no reasonable chance ofsuccess. (Sagon v. Royal Bank of Canada et al. (1992), (SK CA), 105 Sask.R. 133 at 140 (C.A.)); (ii) The jurisdiction to strike a claim should only be exercised in plain and obvious cases where the matter is beyond doubt. (Sagon, at140; Milgaard v. Kujawa et al. (1994), (SK CA), 123 Sask.R. 164 (Sask.

C.A.)); (iii) The court may consider only the claim, particulars furnished pursuant to a demand and any document referred to in the claim uponwhich the plaintiff must rely to establish its case (Sagon, at p. 140); (iv) The court can strike all, or a portion of the claim (Rule 173); (

v) The plaintiff must state sufficient facts to establish the requisite legal elements for a cause of action. (Sandy Ridge Sawing Ltd. v.Norrish and Carson (1996), (SK KB), 140 Sask.R. 146 (Q.B.)). Regarding Defamation Pleadings [8] The law and practice regarding defamation proceedings imposes unique requirements of precision. Theauthors Julien Porter & David A. Potts in their text Canadian Libel Practice (Toronto: Butterworths, 1986) at para 147, state thefollowing: 147. Libel actions may be instituted by a writ of summons or, in the case of Ontario, a statement of claim (Rules of Civil Procedure,O.

Reg. 560/84, R. 14). If the action is instituted by a writ of summons, the writ should specify: (

i) that the claim is for damages for libel or slander; (ii) if the claim is for the slander, the exact words must be reproduced; (iii) it should indicate how the libel or slander was published. [9] CED (online) Defamation XVI at §134 (WL)(20 Sept 2023) provides the following

summary: The pleadings in a libel action must define the issues to be tried.1 Actions for defamation are almost the only survivors in which regularity of pleading is insisted upon.2 More depends on the pleadings, as a rule, in actions for defamation than in other cases.3 Every pleading must contain a concise statement of the material facts on which the party relies, but not the evidence by which they are to be proved.4 In Alberta and British Columbia, a pleading respecting an action for defamation must give particulars.5 The material facts for the plaintiff in a defamation action to plead in the statement of claim are the publication by the defendant,6 the words published,7 that the words were published of the plaintiff8 and, where necessary, the facts relied on as causing them to be understood as defamatory or as referring to the plaintiff, and knowledge of those facts by the persons to whom they were published.9 Ifthe words are slander that is not actionable per se, the material facts include any additional facts making those words actionable, such as that they were calculated to disparage the plaintiff in an office held by him or her or that they caused special damage.10 Similarly, the defendant must plead with sufficient precision and clarity so as to enable the plaintiff to know what he or she will be obliged to prove and what case he or she must prepare to meet.11 Either in addition to or alternatively to denying some or all of the plaintiff's pleaded case, the defendant may put forward one or more substantive defences which defeat the plaintiff's claim.12 The defendant must specifically traverse any claim for damages.13 If the words are actionable only on proof of special damage, the defendant should, where appropriate, object that no special damage is pleaded or that it is too remote or insufficient in point of law.14 There are special requirements for pleading facts in mitigation of damages or otherwise in relation to quantum.15 Every pleading must contain the necessary particulars of any claim or defence.16 If the particulars are insufficient or inadequate, the opposite party may be entitled to an order for further and better particulars.17 It will be considered a fatal flaw if pleadings do not describe how the words are defamatory against them.18 [Footnotes indicated but not included] [10] In Hope v Gourlay, 2015 SKCA 27, 384 DLR (4th) 235, the Court of Appeal adopted what is sometimesreferred to as the modern approach to defamation pleading, stating as follows: [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.

[23] In light of the conflicts in the Saskatchewan case law, there is an obvious need to confirm and clarify the proper approach to beused by a court or judge in testing a pleading to determine if it reveals a cause of action in defamation. On that front, it appears there ismuch to recommend moderating the strict requirement that the offending words must always be reproduced verbatim. This is clearly thedirection that the law has moved in other Canadian jurisdictions.

See, for example: Lysko v Braley (2006), (ON CA),79 OR (3d) 721 (CA) at paras 100-103; Central Minera Corp. v Lavarack, 2001 BCSC 349 at paras 12-14; 550433 Alberta Ltd. v StealthAlarm Systems Inc., 1998 ABQB 1081 at paras 18-20, 234 AR 111; McNabb v Equifax Canada Inc. (1999), (MBKB), 143 Man R (2d) 72 (QB) at para 21; Hynes v Suncor Energy Inc., 2014 NLTD(G) 67 at paras 34-35, 352 Nfld & PEIR 69;Lawrence v Wallace, 2002 NSCA 36 at para 6, 203 NSR (2d) 197. [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. [11] Then, recently in Wilson the Court said as follows: [23] Second, the requirement to plead sufficient facts to establish all elements of the cause of action is reflected in Rule 13-8(1)(c),which provides that a pleading must contain “a statement in

summary form of the material facts on which the party pleading relies for theparty’s claim or defence, but not the evidence by which the facts are to be proved”. The Chambers judge correctly identified the threeelements of a cause of action in defamation that must be proven, and thus pleaded Hope [2015 SKCA 27, 457 Sask R 43] at para 17 andGrant [2009 SCC 61, [2009] 3 SCR 640] at para 28. [24] What, then, is sufficient to meet this requirement?

As noted in Thirsk, “the focus in dealing with an application to strike all orpart of a claim as disclosing no cause of action is on substance — that is, on whether the pleadings adequately serve their purpose —rather than form” (at para 21). The key purposes of pleadings include defining the real issues in dispute and giving the other party fairnotice of what is claimed: Reisinger v J.C. Akin Architect Ltd., 2017 SKCA 11 at paras 13–14, 411 DLR (4th) 687; Thirsk at paras 19–20.

This is the lens through which a judge hearing such an application — including an application to strike a defamation claim — shoulddetermine whether the pleading passes muster. [25] This approach is consistent with the reasoning in Hope.

Hope confirmed that the requirement to plead material facts whichwould, if made out, establish the claim, no longer means that the pleading must reproduce verbatim the allegedly defamatory words.Rather, the issue is whether the impugned language is identified with sufficient precision and particularity that the defendantknows the case against them and is able to plead to it and prepare their defence. [26] The same approach should be applied in determining whether there is sufficient notice of the other facts necessary toidentify the allegedly defamatory statements.

This too accords with the focus on whether the pleadings adequately serve their purpose.It also recognizes that a plaintiff may not know or be reasonably capable of determining exactly what was communicated, when,by whom and to whom, other than in the course of the action.

The pleadings may still survive, however, if it is readily apparent thatthe allegations in the statement of claim and particulars are sufficient to enable the defendant to identify the allegedly defamatorylanguage and its publication to the extent necessary to enable them to plead and prepare their defence. [Emphasis added] Analysis Striking the Personal Claim against Timmerman on the Grounds of Disclosing No Reasonable Cause of Action [12] The law governing this application is as stated in Wilson at paragraph 11 above. [13] In paragraph 3 of the claim, the plaintiff alleges that at all materials time Timmerman “was the Chair of theBoard of Directors, Vice President, and, commencing in the fall of 2018, president of PAGCC”.

While alleging at paragraph 24 that“Timmerman in his personal capacity” defamed him, the claim nowhere provides any allegations or particulars of words he published inhis personal capacity, as opposed to as an officer of PAGCC. [14] Timmerman served and filed a request for particulars that asked for: a. particulars of the words alleged to have been published by Timmerman in his personal capacity; b. the dates so published; and c. to whom so published while acting in his personal capacity. [15] The reply to that request was: The particulars of the defamatory publications of the Plaintiff and the individuals to whom the defamatory words or statements werepublished are thereafter set out in paragraphs 27 through to and including paragraph 42 of the Statement of Claim.

At all material timesMr. Timmerman was acting in both his personal capacity and in his capacity as a director or officer of Prince Albert Golf & Curling ClubInc.

[ 16 ] This response is not a proper response. It provides no particulars of any words or actions in Timmerman’s personal capacity as opposed to his role as an officer and director of PAGCC. It repeats the allegation that “at all material times Mr. Timmerman was acting in both his personal capacity and in his capacity as a director or officer”. [ 17 ] If at all material times Timmerman was acting in his capacity as a director or officer, I am unable to find a basis in logic or law to conclude that at the same time and in the same circumstances he is also acting in a personal capacity.

Counsel provided no legal authority for the proposition that a person, while acting as a director or officer, can also be held responsible personally for his or her actions while so acting. The pleadings allege no facts that would justify a conclusion that he was also acting, in the circumstances, in a personal capacity. [ 18 ] Accordingly, I am of the opinion that the claim discloses no reasonable cause of action against Kelly Timmerman in his personal capacity. Thus, I order that paragraph 5 and any reference in the balance of the pleadings to acting in his personal capacity shall be struck.

The Application to Strike the Defamation Pleadings [ 19 ] The first element that needs to be pleaded and, thus, be known to the defendant(

s) in a defamation claim is the words allegedly published. As stated in paragraph 25 of Wilson , it is no longer necessary that the pleadings reproduce verbatim the alleged defamatory words. The issue is whether the impugned language is identified with sufficient particularity that the defendant knows the case against them and be able to plead to it and prepare their defence.

Identification of the Alleged Defamatory Words [ 20 ] Paragraph 24 of the claim alleges defamatory words were published but does not state the precise language alleged nor there identify the words with sufficient particularity to permit the defendants to know the case against them and be able to plead to it and prepare their defence. [ 21 ] At paragraph 32 of the claim, the plaintiff states that what was published was “that the Plaintiff was aware of and responsible for the Extra Pay, that the Plaintiff was a thief and that he was stealing from PAGCC”. [ 22 ] Why these words were not pleaded as part of paragraph 24, where one would expect them to be identified, is a puzzle, but I am satisfied that this statement does identify with sufficient particularity the sense or nature of the defamatory words alleged so as to permit the defendants to know the case against them and prepare their defence. [ 23 ] Then, at paragraph 34 of the claim, an innuendo claim is made in which it is alleged “the innuendo was that the Plaintiff had lied to the Board, that he is not trustworthy, that he is a thief, that he had fraudulently stolen and obtained funds from PAGCC, that he was challenged with direct questions about the Extra Pay and he lied or made misrepresentations in his answers, and that the Board misplaced its trust in the Plaintiff.” This statement in paragraph 34 can appropriately be read as an allegation of the innuendo to be drawn from the above quoted words in paragraph 32.

Accordingly, I am satisfied that this statement identifies the innuendo of the defamatory words identified in paragraph 32 with sufficient particularity so as to permit the defendants to know the case against them and prepare their defence. [ 24 ] Once again, I am of the view that good drafting and logical presentation of the claim would have had this innuendo allegation immediately follow the plea of the alleged defamatory word within paragraph 24. But casual drafting and organization is not a basis to strike a claim.

The Liability for Republication Claims [ 25 ] At paragraph 35 of the claim, the allegation is made that the defamatory publications of the defendants were repeated by others and that the defendants are responsible for such republication. At paragraph 36, the claim provides particulars of two republications.

Paragraph 39 states all of PAGCC, the Board and Timmerman are responsible for any republication. [ 26 ] The law with respect to republication of a defamatory statement is that every republication of a defamation is a new publication that gives rise to a separate cause of action for which the person republishing is liable There are only three exceptions pursuant to which the original publisher also becomes liable along with the republisher, namely: a. where the original publisher authorized or intended the republication; b. if the original statement is such that the person to whom it is made is under some moral, legal or social duty to repeat it to another and the original utter knows of that obligation; and c. if the repetition or republication to a third person is in some other way the natural and probable result of the original publication. ( CED (online) Defamation V at §24 (WL)(20 Sept 2023) ) [ 27 ] No allegations are made in the claim of any facts that would support a finding that any of the three exceptions apply.

Further: a. paragraph 36(

a) references one John Toner, not a defendant in the action, stating he had heard many times that Matt was stealing without any allegation regarding the source(

s) from whom he so heard nor with an allegation that the source of what he heard was the defendants; b. paragraph 36(

a) references one Norm Vetter, not a defendant in the action, speaking of negative and disparaging comments being made about Matt without any allegation that the source of those comments was the defendants; and

c. there is no allegation in paragraph 36 that connects the alleged republications to the alleged defamatory publication identified in paragraph 32 or the innuendo alleged in paragraph 34. [ 28 ] It is my opinion and finding that paragraphs 35, 36 and 39 of the claim should be struck by reason that the pleadings do not allege facts which, if proven, could support a Court finding a reasonable cause of action against the defendants for republication. Accordingly, I order that paragraphs 35, 36 and 39 be struck from the claim.

Particulars of When, Who and to Whom [ 29 ] Wilson , at para 26 , states that the test of deciding whether the allegations provide the defendants with sufficient precision and particularity to permit the defendants to know the case against them and be able to prepare their defence should also apply to when or how those words were communicated, by whom and to whom. [ 30 ] The defendants say that paragraph 25 does not particularize with sufficient particularity in this respect. I find that the words “and to other residents of Prince Albert, Saskatchewan” lacks the necessary particularity and shall be struck.

I have already ordered that the words “personally and” regarding the defendant Timmerman be struck. The remainder of this paragraph so amended, in my opinion satisfies the test and shall remain. [ 31 ] I find that paragraph 26 lacks the necessary degree of precision and particularity. It shall be struck. [ 32 ] I find that paragraph 33 need not be struck. The plaintiff has elsewhere indicted the time frame within which the matter was being addressed by Timmerman and PAGCC and the circumstances in which the matter was being considered by the Board are apparent.

This paragraph may be unnecessary, but I do not find a basis within Rule 7-9 to strike it. Conclusion and

Summary [ 33 ] For the reasons provided above, I strike the following provisions of the statement of claim: a. paragraph 5 and any subsequent reference in the claim to Timmerman “in his personal capacity”; b. the words “and to other residents of Prince Albert, Saskatchewan” in paragraph 25 and the entirety of paragraph 26; and c. paragraphs 35, 36 and 39. [ 34 ] Since the applicants have been largely successful in their application, I order that the applicant PAGCC shall have the costs of the application on the basis of a

Part 6, Contested Matter, under Column 2 of the Tariff. Since the applicant Timmerman played a limited role in seeking only his removal as a personal capacity defendant, which was a less complex matter, he shall have costs on same basis but under Column 1. “B. Scherman” J. B. SCHERMAN