Cheryl McLean, Doug McLean, v. E.M., S.M., and L.M.,, 2019 SKCA 15

Court of Appeal for Saskatchewan Docket: CACV3079 Citation: McLean v McLean , 2019 SKCA 15 Date: 2019-01-31 Between: Cheryl McLean, Doug McLean, and E.M., S.M., and L.M., minors by their litigation guardian, Cheryl McLean Appellants (Plaintiffs) And Peter Ian McLean, Bonnie McLean, William Burge, Darren Wouters, Kyle Wyonzek, John Tonge, John Doe #1, John Doe #2, John Doe #3, John Doe #4, John Doe #5, John Doe #6, John Doe #7, John Doe #8, John Doe #9, John Doe #10 Respondents (Defendants) And Her Majesty the Queen in Right of Saskatchewan and the Attorney General of Canada Respondents (Defendants) Before: Richards C.J.S., Whitmore and Schwann JJ.A.

Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Whitmore In concurrence: The Honourable Chief Justice Richards The Honourable Madam Justice Schwann On Appeal From: 2017 SKQB 127 , Melfort Appeal Heard: June 8, 2018 Counsel: Thomas Engel for the Appellants Grant Carson for Peter McLean Chris Bernier for Saskatchewan and the Attorney General of Canada Whitmore J.A. I.

Introduction [ 1 ] The appellants appeal from the decision of a judge of the Court of Queen’s Bench in Chambers striking the majority of the appellants’ statement of claim as disclosing no reasonable cause of action, leaving only the appellants’ claim against the respondent, Peter McLean, for losses caused by the breakup of their joint farming operation. II. Background [ 2 ] The appellants are family members. Doug McLean and Cheryl McLean are husband and wife and E.M., S.M., and L.M. are their children. [ 3 ] Peter McLean is the brother of Doug McLean. Bonnie McLean is the wife of Peter.

To avoid confusion, I will refer to each McLean individually by their first names, hereafter. [ 4 ] The Chambers judge described the other parties in his decision ( McLean v McLean , 2017 SKQB 127 [ Chambers Decision ]): [ 5 ] The claim lists the Queen in Right of Saskatchewan who, the claim submits, is vicariously liable for the actions of defendant Crown prosecutor William Burge and Victim Services employee defendants John Does #8, #9 and #10 as defendants. The plaintiffs have agreed to discontinue the action against these defendants without costs.

Although the claim has not been formally amended to reflect the discontinuance, I will not address the complaints against them. [ 6 ] The defendant the Attorney General of Canada is, pursuant to the claim, vicariously responsible for the impugned actions of RCMP members Darren Wouters, Kyle Wyonzek, John Tonge, John Does numbered 1 through 7 and the defendant Victim Services employees John Does #8, #9 and #10. [5] The Chambers Decision concisely set out the backdrop leading up to the issuance of the statement of claim: [8] The essential background facts, as set out in the claim, are that: • on November 15, 2013, the defendant Peter threatened the plaintiffs [over the telephone] with a gun.

• Peter was immediately arrested, charged and taken into custody and an order that he not have contact with the plaintiffs was issued. • Peter later violated the no contact order and was arrested and charged. • Peter pled guilty to charges of some nature, which are not specified in the claim, but which I assume were related to his threatening the plaintiffs with a gun. • The charges in respect of violating the no contact order were stayed by the Crown. • Peter received a suspended sentence, a $2,500 fine, a 10-year firearm prohibition and three years’ probation. [6] The appellants commenced an action against Peter and Bonnie.

Their statement of claim is not a model of good pleading. The appellants claimed damages in relation to mental distress and anxiety, legal fees incurred to take steps to ensure their safety and protection, costs of ordering transcripts of criminal proceedings, legal costs, and costs to divide the farming operation that had been jointly-owned by Doug and Peter.

The appellants further claimed that Peter’s conduct was high-handed and malicious, and warranted an award of aggravated and punitive damages. [ 7 ] Against Bonnie, specifically, the appellants claimed that she knew Peter had a restricted weapon without being the holder of a license and that he had ammunition for it but did nothing about it. She was, therefore, alleged to be a party to a criminal offense and negligent.

The appellants further claimed that, because Bonnie was a member of the RCMP, the investigation of the incident of November 15, 2013, should have been conducted by members of the RCMP who were not from the RCMP detachment where Bonnie had been employed. [ 8 ] The appellants claimed the RCMP had a duty to diligently investigate the November 15, 2013, incident and to do so in an unbiased fashion. They allegedly failed to do this and were said, therefore, to be negligent and biased in favour of Peter and Bonnie.

The appellants further claimed that the RCMP, the Crown, and the Northeast Regional Victim Services [Victim Services] failed to inform the appellants that Peter was being released on or about December 16, 2013, and were, therefore, negligent in failing in their duty to provide such information to the appellants as victims. [ 9 ] In addition, the appellants claimed that Darren Wouters (an RCMP officer) had pushed Doug out of an RCMP detachment building, thereby committing criminal assault. [ 10 ] The appellants claimed the Attorney General of Canada [Canada] was vicariously responsible for the impugned actions of the RCMP members Mr.

Wouters, Mr. Kyle Wyonzek, Mr. John Tonge, and Messrs. John Doe #1–7, and Victim Services employees, John Does #8–10. [ 11 ] The respondents applied to strike the statement of claim. III. The Court of Queen’s Bench Chambers Decision [ 12 ] In his decision, the Chambers judge framed the appellants’ statement of claim in broad terms: [9] Counsel for the plaintiffs submitted at the hearing of this application that the crux of the action is found at para. 9 of the claim: 9.

This claim arises out of a situation where the RCMP, in order to protect one of its former members, Bonnie McLean, and the member’s husband, Peter McLean, acted negligently and actively participated in the cover-up of the criminal acts of Peter McLean, for an improper purpose, damaging the plaintiffs. [ 13 ] The Chambers judge went on to say it was difficult to understand what causes of action were pleaded. He stated he was advised in Court that the appellants were pleading negligent investigation and misfeasance of public office.

The Chambers judge considered these claims and the other claims that the facts alleged appeared to support, and determined the appellants claimed the following damages: (

a) mental distress and anxiety; (

b) legal fees to have a legal representative take steps to ensure their safety and protection; (

c) costs to order the transcripts of the criminal proceedings against Peter; (

d) legal costs and losses to divide the farming operation previously operated by Doug and Peter; and (

e) distrust of public officers. [ 14 ] The Chambers judge began his analysis by stating that “[i]f there is no damage, there is no tort” (at para 11). He then went on to examine each of the heads of damage claimed by the appellants. As for the claim for mental distress, the Chambers judge found that mental distress and anxiety were not compensable injuries in and of themselves in Saskatchewan. [ 15 ] With respect to legal fees incurred to have a legal representative take certain steps, the Chambers judge found there were no allegations of fact in the statement of claim to support such a claim. He concluded the simple assertion of damages could not ground a

claim. [ 16 ] With respect to the cost of transcripts, the Chambers judge found that this matter appeared to flow from the appellants’ complaint that they had to obtain transcripts of the court proceedings involving Peter because the defendants did not tell them about Peter’s court appearance.

The Chambers judge suggested the “expense of the transcript might qualify as a taxable disbursement in an assessment for costs but was not a proper head of damages in this instance” (at para 16). [ 17 ] The Chambers judge found, similar to the claim for damages for mental distress and anxiety, that distrust of public officers was not a compensable loss, and that the RCMP officers did not owe a private law duty of care to the appellants.

The Chambers judge found the facts as pleaded did not amount to a cover-up by the RCMP and the appellants had not pleaded any facts to establish the officers knew that their actions were likely to cause the appellants damage. The Chambers judge found that, in fact, the appellants had suffered no compensable damages at the hands of the RCMP.

Therefore, the claim for misfeasance of public office could not stand. [ 18 ] The Chambers judge found the mere allegation that an RCMP officer pushed one of the appellants out of the door of an RCMP detachment building did not amount to “a civil right of action on a harmed party” (at para 36). Referring to Ausiku v Hennigar , 2011 YKCA 5 at para 24 , 309 BCAC 277, he said, “a breach of the Criminal Code cannot, standing alone, constitute a civil tort in Canada”.

Further, he found the appellants had not claimed any compensable loss. [ 19 ] Finally, the Chambers judge found there were no facts pleaded to support a claim of intentional infliction of mental suffering and that such a claim was not compensable in any event. [ 20 ] As the claim against the Government of Saskatchewan and the Victim Services employees was withdrawn, the Chambers judge concluded there was no action against the Government of Saskatchewan, as the co-employer of the Victim Services employees. [ 21 ] The Chambers judge struck the claim against Bonnie.

He found that, even if she were a party to the offense committed by Peter – because she knew he had a gun and did nothing about it – this, in and of itself, could not amount to a civil cause of action. He found the claims against all the parties, except Peter, were without merit and were not salvageable. [ 22 ] The claim against Peter for costs and losses related to dividing the farm operation was allowed to stand. IV. Jurisdiction and Standard of Review [ 23 ] This Court has jurisdiction to hear this appeal pursuant to s. 7(2) (

a) and s. 10 of The Court of Appeal Act, 2000 , SS 2000, c C- 42.1 . [ 24 ] Whether a statement of claim discloses a reasonable cause of action has been held by this Court in Canada (Attorney General) v Merchant Law Group LLP , 2017 SKCA 62 , [2017] 10 WWR 664 [ Merchant Law ], to be a question of law reviewable on a correctness standard. Therefore, a reviewing court will show no deference to the decision-maker’s reasoning process; it will undertake its own analysis of the question and, if the appellate Court does not agree with the decision-maker, that Court will substitute its own view and provide a correct resolution. V. Issues [ 25 ] The appellants raise the following issues: (

a) Did the Chambers judge err in striking the cause of action for civil battery against the respondent, Mr. Wouters? (

b) Did the Chambers judge err in striking the cause of action for civil assault against the respondent, Peter? (

c) Did the Chambers judge err in striking the cause of action for intentional infliction of mental suffering caused by the respondent, Peter? (

d) Did the Chambers judge err in ruling that causing a person to distrust the RCMP did not constitute compensable damages? (

e) Did the Chambers judge err when he struck the claim for harassment? VI. Preliminary Matter [ 26 ] This appeal is concerned, in a large part, with whether “mental distress and anxiety” constitutes damage compensable at law. It is also concerned with a claim for “intentional infliction of mental suffering”. Additionally, the terms “mental harm” and “mental injury” frequently make appearances in the quoted materials.

To avoid confusion, I will briefly address how these terms will be used in this judgment. [ 27 ] A mental injury is an injury, much like a physical injury, that may ground recovery of damages at law: Saadati v Moorhead, 2017 SCC 28 at para 2 , [2017] 1 SCR 543 [ Saadati ]. I will favour this term throughout the analysis that follows. [ 28 ] The term mental harm is often used to refer to a mental injury.

It does not appear to be incorrect to use the term mental harm where damages for a mental injury are claimed, but it seems fairly clear from the Supreme Court’s decision in Saadati that mental injury is the preferred term when describing compensable damage in the tort context.

[29] The term mental distress and anxiety is a specific term used by the appellants in their statement of claim to describe the natureof the mental injuries they sustained at the hands of some of the respondents. Variations of the term appear in the case law, and Iunderstand the term to be essentially synonymous with mental injury for the purposes of the present matter. [30] The intentional infliction of mental suffering is a tort claimed by the appellants in their statement of claim. It also is known byother names, such as intentional infliction of nervous shock.

It is a tort recognized by this and other courts by those specific names. Thereferences to mental suffering and nervous shock may be outmoded following Saadati, which, again, places emphasis on the term mentalinjury. However, I will follow the language used in the statement of claim and make reference to intentional infliction of mentalsuffering. VII. Analysis A. Did the Chambers judge err in striking the cause of action for civilbattery against the respondent, Mr.

Wouters? [31] The Chambers judge observed there was no specific claim of civil battery contained in the statement of claim, but noted thatparagraph 32 of the statement of claim alleged Mr.

Wouters pushed Doug out of an RCMP detachment building and that this actionconstituted an “illegal application of force and constituted criminal assault” (quoted in the Chambers Decision at para 35). [32] The Chambers said the following about statutory breaches, such as breaches of the Criminal Code: [36] A statutory breach does not, in and of itself, confer a civil right of action on a harmed party (Canada v Saskatchewan Wheat Pool, (SCC), [1983] 1 SCR 205).

More particularly in respect of the allegation of criminal assault, the court in Ausiku vHennigar, 2011 YKCA 5 held, at para 24, “a breach of the Criminal Code cannot, standing alone, constitute a civil tort in Canada”.Thus, no cause of action is sustainable for criminal assault. [33] In Chambers, the appellants stated that if permitted to amend the claim, “civil battery would be pleaded” (at para 37).

TheChambers judge disallowed the proposed amendment on the basis that the appellants “could not succeed because the battery resulted inno compensable damages”. [34] The appellants submit that the Chambers judge erred in his finding that the facts pleaded did not amount to civil battery sincethey had pleaded in their statement of claim that Doug was subject to more than trivial contact; he was pushed through three doors whilebeing threatened with criminal prosecution.

The appellants submit a reviewing court must accept the facts as alleged in the claim to betrue; and also, that the court should read those alleged material facts having regard to the claim as a whole and in the context of theparagraph in which they are pleaded. The appellants submit the facts pleaded are thus sufficient to allege the tort of civil battery. [35] Alternatively, the appellants submit they should be allowed to amend the pleadings to add the following to the end ofparagraph 32: “This act of pushing the plaintiff Doug McLean by Wouters was harmful and offensive to the plaintiff Doug.

This batterycaused the plaintiffs to distrust the RCMP”. [36] As to damages, the appellants submit they suffer from distrust of the RCMP resulting from Mr. Wouter’s alleged battery. [37] The Government of Saskatchewan, Canada, the RCMP officers, and the unknown respondents, submit that the Chambersjudge correctly held there was no cause of action sustainable on an allegation of criminal assault.

These respondents state the allegedillegal application of force and alleged violation of the Criminal Code does not amount to a civil tort in Canada. [38] On the application to strike, these respondents submit that a claim must not only make allegations of material facts, but it mustcharacterize and relate those facts to a particular cause of action.

In support of this relational concept, Canada refers to Country PlazaMotors Ltd. v Indian Head (Town), 2005 SKQB 442, 272 Sask R 198: [8] The first principle governing pleading is set out in Rule 139 of The Queen’s Bench Rules [repealed], which states: 139(1) Every pleading shall contain and contain only a statement in a

summary form of the material facts on which the party pleadingrelies for his claim or defence, but not the evidence by which the facts are to be proved. A pleading shall be as brief as the nature of thecase will permit.

(2) Where necessary full particulars of any claim, or defence shall be stated in the pleading. The above language has been carried forward in s. 13-8(1)(

c) of The Queen’s Bench Rules currently in force. [39] In the alternative, these respondents submit that even if the Chambers judge erred in striking the alleged claim, because itreferences a criminal assault, the claim should nevertheless be struck on the grounds it is frivolous and vexatious. Although the decisionof the Chambers judge was based on the conclusion that the claim did not disclose a reasonable cause of action, the application to strikewas also brought on the basis of Rule 7-9(2)(

b) and Rule 7-9(2)(c), namely that the claim is scandalous, frivolous, or vexatious and is anabuse of process. In such an application, a court may examine the merits of the claim and the motives for bringing it. Canada submits theappellants’ claim is without merit and is brought for an ulterior motive, that is, to embarrass the RCMP. [40] It is not contested that a Chambers judge has the authority to strike a claim where it discloses no reasonable cause of action:Rule 7-9(2)(

a) of the Queen’s Bench Rules. The governing test for whether a judge should strike a claim was summarized by this Courtin Merchant Law. The salient question from Merchant Law is whether the appellants have clearly pleaded the facts on which they willrely in making their claim.

[41] The law on this point is fairly clear. The requirements for pleadings are set out in The Queen’s Bench Rules: Pleadings: general requirements 13-8(3) A party shall plead specifically any matter, fact or point of law that: … (

b) if not specifically pleaded, might take the other party by surprise … . … Pleadings: other contents 13-11(4) Conclusions of law may be pleaded but only if the material facts supporting those conclusions are pleaded. [42] Rules 13-8 and 13-11 indicate that, in general, the goal of the pleadings is to alert the defendant to the case they must meet. Ifthat has been accomplished by the claimant, drawing a conclusion of law, like a conclusion that the facts pleaded can support a particularcause of action, is not essential. In Reisinger v J.C.

Akin Architect Ltd., 2017 SKCA 11, [2017] 8 WWR 532, this Court, in the context ofan application to strike a claim under Rule 7-9, explained as follows: [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 withother facts, properly plead the essential elements of the cause of action. … … [49] It is readily possible to properly and clearly plead a cause of action based on a recitation of narrative facts alone without what maybe considered classic legal formulations of the cause of action.

Nevertheless, the basic elements of the cause of action must bediscernable in the whole of the pleading. (Emphasis added) [43] Therefore, the question becomes whether the facts pleaded by the appellants cover the basic elements of a cause of action inbattery. [44] In Non-Marine Underwriters, Lloyd’s of London v Scalera, 2000 SCC 24, [2000] 1 SCR 551 [Scalera], the Supreme Courtconsidered the elements of the tort of battery: [8] The traditional rule, as noted, is that the plaintiff in an action for trespass to the person (which includes battery) succeeds if she canprove direct interference with her person.

Interference is direct if it is the immediate consequence of a force set in motion by

an act of thedefendant: see Scott v. Shepherd (1773), 2 Black. W. 892, 96 E.R. 525 (K.B.); Leame v. Bray (1803), 3 East 593, 102 E.R. 724 (K.B.).The burden is then on the defendant to allege and prove his defence. Consent is one such defence. [45] The Supreme Court has made clear that battery is actionable without proof of damages (see Norberg v Wynrib, (SCC), [1992] 2 SCR 226 at 263).

No injury need be sustained: Scalera at para 16; see also Collins v Pelletier, 2014 SKCA 130 atpara 13, 446 Sask R 303 [Collins-CA]. [46] In short, all that is required of plaintiffs claiming civil battery is that they plead facts that, if true, would establish there hasbeen a direct physical interference with their person. There is no need to establish that damages have been incurred.

Battery, as asubcategory of trespass to the person, is actionable per se, without proof of damages. [47] In their statement of claim, the appellants alleged the following: “Wouters opened the door of the detachment and pushedDoug McLean through three doors and told him not to come back, and that if he did, Wouters would put Doug McLean in jail”.Mr. Wouters is thereby alleged to have deliberately made physical contact with Doug, forcing him out of an RCMP detachment againsthis will. These facts support a cause of action in battery.

No claim identifying the damage that flowed from the battery was necessary. [48] Having regard to the above, it is my respectful view that the Chambers judge erred when he narrowly construed the claim as astatutory breach and when he required damages to have been sustained in respect of a battery claim. It is not plain and obvious that thefacts pleaded cannot support a cause of action in battery. [49] Further, I would not accede to the respondents’ argument that the claim in civil battery is scandalous, frivolous, or vexatiousor is an abuse of process.

The record does not warrant any such conclusion. [50] In the result, the Chambers judge’s decision to strike the claim against Mr. Wouters should be set aside.

B. Did the Chambers judge err in striking the cause of action for civil assault against the respondent, Peter? [ 51 ] On this issue, the Chambers judge said the following: [50] The facts as pled in respect of Peter’s criminal conduct are blood-curdling: 10. On or about November 15th, 2013, Peter McLean and Doug McLean got into an argument while on the family farm. Following the argument, Doug McLean and Peter McLean then each went to their respective homes. 11. When Peter McLean arrived back at his home, he called his sister, Pat Taylor, and asked her to come to his house.

When Pat Taylor arrived, Peter McLean told Pat Taylor that he was going to kill the plaintiffs. He had an improperly registered 1918 Luger pistol and he pinned Pat Taylor against the wall, with the gun to her head. Pat Taylor managed to escape and found Bonnie McLean nearby, who called the RCMP. Peter McLean left the home shortly before Bonnie McLean arrived back at their home. 12.

After Peter McLean left his home, he called Doug McLean numerous times and fired the gun a number of times and with each discharge stated over the phone that it was the sound of each of the plaintiffs’ heads going off. [51] The plaintiffs do not assert a cause of action in civil assault but the facts pled would certainly support one if the injuries were compensable at law. [ 52 ] There is one paragraph in the claim that contains a specific reference to damages of a different nature: 34.

As a result of Peter McLean’s criminal acts on November 15, 2013, and the resulting no contact order between Peter McLean and the plaintiffs, the farming operation which was previously jointly-owned by Doug McLean and Peter McLean had to be divided between Doug McLean and Peter McLean, causing economic damage and expense to the plaintiffs. [ 53 ] Peter’s counsel interpreted this paragraph as being a claim for damages resulting from a court order, which of course could not stand. I do not read it so restrictively. The reference to the no contact order is superfluous and can simply be ignored.

That leaves the assertion that Peter’s criminal conduct (which I take to be short-hand for the conduct set out in paras. 10–12 of the claim) resulted in the division of the family farm, “causing economic damage”. This part of the claim is deficient in that it does not specify the causal link between Peter’s conduct and the division of the farm and resulting economic damage. Nor does it set out the nature of the damages with sufficient particularity. … [57] I will not allow the plaintiffs to amend the remainder of the claim.

In my view, it is simply not salvageable. [52] The appellants contend the Chambers judge made two errors in respect of the civil assault claim. First, they say it was an error for the Chambers judge to find the facts required to make out the claim in civil assault were not pleaded. Second, they say it was an error for the Chambers judge to decide that mental distress and anxiety are not compensable damages at law, which was part of the basis for his conclusion that the claim was not salvageable and that he should not allow it to be amended.

The appellants have specifically invoked the Supreme Court’s decision in Saadati , noted above, to support their position that the Chambers judge erred in relying on a number of Saskatchewan cases that would suggest mental distress and anxiety do not represent compensable damages at law: see, for example, Satara Farms Inc. v Parrish & Heimbecker, Limited , 2006 SKQB 229 , 280 Sask R 44; and Knife v Charles , 2005 SKQB 516 , 272 Sask R 111.

In the appellants’ view, their claim of mental distress and anxiety was enough to ground their claim in civil assault. [53] In the alternative, the appellants “seek leave from the Court to amend the damages to read that the appellants suffered ‘significant mental distress and anxiety’ to clarify that the mental injury they experienced was serious and prolonged per the requirements in Saadati ”. [ 54 ] Peter submits that the statement of claim does not use the term assault or battery and, as such, the Chambers judge was correct in finding the appellants did not assert a cause of action in civil assault.

Peter further states there were no material facts pleaded that support a claim of mental injury to the infants or to Cheryl. He says the claim does not even reveal whether the parties spoke contemporaneously or whether the exchange involved a message manager.

Peter contends the Chambers Judge “correctly held that there was no cause of action sustainable on an allegation of criminal assault and was correct to strike out this portion of the claim”. [ 55 ] At a minimum, Peter says the failure to plead any material facts suggesting that injury was imminent supports the Chambers judge’s determination that the claim was not salvageable, even by way of amendment.

In some circumstances, the failure to plead material facts is suggestive that such facts do not exist. [ 56 ] Peter continues that the assault claim against him was struck on the ground the damages could not be awarded for mental distress and anxiety, and he observes that no particular appellants are alleged to have suffered such damage. [ 57 ] I have already explained that it is not necessary for claimants to name a specific cause of action when the statement of claim sufficiently details the facts needed to establish the elements of that cause of action.

I would thus give no effect to Peter’s argument that the appellants were required to name civil assault as a cause of action in their statement of claim. [ 58 ] In my view, there are two issues that need to be addressed. The first is Peter’s argument that the claim does not disclose material facts that could support a cause of action in civil assault.

The second is the question of damages and whether they needed to be claimed in reference to the alleged civil assault in order to sustain that cause of action. [ 59 ] Allen Linden and Bruce Feldthusen, in Canadian Tort Law , 10th ed (Toronto: LexisNexis, 2015) at 49, provide a definition of

civil assault: §2.42 Assault is the intentional creation of the apprehension of imminent harmful or offensive contact. The tort of assault furnishesprotection for the interest in freedom from fear of being physically interfered with.

Damages are recoverable by someone who is madeapprehensive of immediate physical contact, even though that contact never actually occurs. (Underline emphasis added) See also Gould v Regina (East) School Division No 77, (SK KB), [1997] 3 WWR 117 (QB); Sirois v Gustafson, (SK KB), 2002 SKQB 452, [2003] 3 WWR 110; Wuttunee v Merck Frosst Canada Ltd., 2007 SKQB 29, [2007] 4 WWR309 [Wuttunee]; and Pelletier v Collins, 2012 SKQB 318 [Collins-QB], 403 Sask R 125, rev’d Collins-CA (on other grounds). [60] Here, the facts pleaded certainly establish the intentional creation of the apprehension of harmful contact.

The question is,how imminent does the harm have to be? Courts are often reluctant to grant damage awards for civil assault where the threat in questionwas a threat of future harm. Despite this, there have been instances where courts took threats of future harm to be sufficient to ground aclaim of civil assault.

See, for example, Dunne v Gauthier, 2000 BCSC 1603, [2000] BCTC 899 [Dunne]; or Warman v Grosvenor(2008), (ON SC), 92 OR (3d) 663 (Sup Ct) [Warman]. [61] My references to Dunne and Warman, and to the suggestion in those cases that the imminent harm requirement of civil assaultmight not be as strict as Peter suggests, should not be taken as an endorsement of the proposition that imminent harm is no longerrequired in claims for civil assault.

In Wuttunee v Merck Frosst Canada Ltd., 2008 SKQB 229, 312 Sask R 265, Klebuc J. (as he thenwas) dismissed a civil assault claim because the plaintiffs had only identified worry and concern over potential harm that may havebefallen them as a result of a certain medication being withdrawn from the marketplace. The critical qualities of fear of actual harm andits imminence were absent from the plaintiff’s claim in that case.

Both Dunne and Warman are useful examples of how imminence mightbe understood, but they do not attenuate the fundamental requirements of the tort of civil assault. [62] In the within case, the statement of claim set out the events underpinning the civil assault claim against Peter as follows: 10. On or about November 15, 2013, Peter McLean and Doug McLean got into an argument while on the family farm. Following theargument, Doug McLean and Peter McLean then each went to their respective homes. 11. When Peter McLean arrived back at his home, he called his sister, Pat Taylor, and asked her to come to his house.

When Pat Taylorarrived, Peter McLean told Pat Taylor that he was going to kill the plaintiffs. He had an improperly registered 1918 Luger pistol and hepinned Pat Taylor against the wall, with the gun to her head. Pat Taylor managed to escape and found Bonnie McLean nearby, whocalled the RCMP. Peter McLean left the home shortly before Bonnie McLean arrived back at their home. 12. After Perter McLean left his home, he called Doug McLean numerous times and fired the gun a number of times and with eachdischarge stated over the phone that it was the sound of each of the plaintiffs’ heads going off. … 35.

As a result of the actions of the defendants, or any one or more of them, the plaintiffs:

a) Suffered and continue to suffer from mental distress and anxiety … . [63] Civil assault, like battery, is a subcategory of trespass to the person. As such, civil assault is actionable without proof ofdamage: see Gayton v Lacasse, 2010 ABCA 123, 482 AR 179. Accordingly, whether mental distress and anxiety are compensabledamage at law was of no moment in deciding whether to strike a claim in civil assault.

It would certainly make the claim moremeaningful from a damage recovery perspective if the appellants were able to connect some specific form of damage to their claim incivil assault, but that is not strictly required. [64] In my view, the Chambers judge erred in striking the claim on the basis the pleadings failed to identify a compensable injury.No injury was necessary. A generous reading of the claims militates in favour of permitting the action in civil assault against Peter toproceed to trial, even though the pleadings do not disclose the facts necessary to establish the imminence of the threat.

Given that nostatement of defence has been filed, amendments to the statement of claim, to address the identified shortcomings, are in order. As notedin Sagon v Royal Bank of Canada (1992), (SK CA), 105 Sask R 133, a court has the discretion to permit amendmentsto a defective claim: [17] Rule 173 [the predecessor to Rules 7-9(1) and (2)] permits amendment rather than striking out in appropriate cases.

Bullen andLeake’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) (See also, 628356 Saskatchewan Ltd. v Water Security Agency, 2018 SKQB 4 at para 16, 78 CLR (4th) 53.)

C. Did the Chambers judge err in striking the cause of action for intentional infliction of mental suffering caused by the respondent, Peter? [ 65 ] The Chambers judge addressed the claim for intentional infliction of mental suffering by writing, “Finally, the plaintiffs’ brief refers to the ‘intentional infliction of mental suffering’. There are no facts pleaded in the claim that could support this cause of action. None. In any event, ‘mental suffering’ is not compensable at law” ( Chambers Decision at para 40). [ 66 ] Let me begin with the second issue (the question of whether mental suffering is compensable).

It is important to draw specific attention to the Chambers judge’s conclusion, as seen earlier in his decision, that mental suffering is not compensable at law. In that earlier conclusion, the Chambers judge addressed what he understood to be the law of compensable mental injury: [12] It is well established there must be a physical injury or recognizable psychiatric illness before recovery is possible.

In Mustapha v Culligan of Canada Ltd. , 2008 SCC 27 at para 9 , [2008] 2 SCR 114, the Supreme Court held that “[t]he law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury”. (See, as well: Hill v Hamilton-Wentworth Regional Police Services Board , 2007 SCC 41 at para 32 , [2007] 3 SCR 129 [ Hill ]; Satara Farms Inc. v Parrish & Heimbecker, Ltd. , 2006 SKQB 229 , 280 Sask R 44; Knife (Litigation Guardian of) v Charles , 2005 SKQB 516 , 272 Sask R 111). [13] The plaintiffs plead no facts from which it could be inferred that the psychological effect of the defendants’ conduct rose to the level that could ground an award of damages.

They plead only “mental distress and anxiety”. [14] In Thompson v Saanich (District) Police Department, 2010 BCCA 308 , 320 DLR (4th) 496, the Court of Appeal agreed with the judge at first instance that “there was no pleading of a recognizable psychiatric illness; and thus no basis in the pleading for an award of damages.” Although the court held that there were several reasons why the Statement of Claim in that instance should be struck, the failure to plead that they suffered injuries that were compensable at law was, “on its own”, sufficient to strike the claim. [ 67 ] The Chambers judge was of the view that only recognizable psychiatric or psychological conditions could ground damages for injuries described as mental harm.

Accordingly, he viewed the mental suffering claimed by the appellants as insufficient to ground the claim of intentional infliction of mental suffering. [ 68 ] The appellants rely on the Supreme Court decision of Saadati , which was released shortly after the Chambers Decision , and Guschewski v Guschewski , 2017 ONSC 4553 .

They state, in their factum, that pleading mental distress and anxiety, without more, sufficiently details the damages required for the third requirement of the tort of intentional infliction of mental injury. [ 69 ] Alternatively, the appellants seek leave to amend the statement of claim to clarify that the mental distress and anxiety experienced were severe, serious, prolonged, and is ongoing, to match precise language used in relevant Supreme Court decisions. [ 70 ] Peter argues Saadati does not alter the fundamental proposition that in order to claim damages for a form of mental injury, the appellants must plead facts establishing a visible and provable illness or recognizable physical or psychological harm.

In support of his position, Peter relies on the passages of the Chambers Decision cited above and, in particular, on an

interpretation of Mustapha v Culligan of Canada Ltd. , 2008 SCC 27 , [2008] 2 SCR 114 [ Mustapha ], as accepted by some appellate courts in Canada. Such an

interpretation requires facts of provable illness or recognizable physical or psychological harm to be pleaded to ground recovery of damages. [ 71 ] Peter further submits the Chambers judge properly considered whether the appellants should be allowed to amend the pleadings and concluded that the claim was “simply not salvageable” ( Chambers Decision at para 57), following the legal principle set out in R v Imperial Tobacco Canada Limited , 2011 SCC 42 , [2011] 3 SCR 45. [ 72 ] Peter also submits the appellants’ request to amend the statement of claim to suggest that “the mental distress and anxiety experienced was severe, serious and prolonged and is ongoing” is nothing more than pleading a legal requirement.

This amendment lacks any statement of material facts (facts that would have to apply individually to each of the four appellants). Accordingly, he argues the Chambers judge was justified in concluding that these claims were not salvageable. [ 73 ] In Mustapha , the Supreme Court reduced the threshold for claiming mental injury as compensable damages in tort proceedings. In particular, McLachlin C.J.C. de-emphasized the role of medical evidence in such cases: [8] Generally, a plaintiff who suffers personal injury will be found to have suffered damage.

Damage for purposes of this inquiry includes psychological injury. The distinction between physical and mental injury is elusive and arguably artificial in the context of tort. As Lord Lloyd said in Page v. Smith , [1996] 1 A.C. 155 (H.L.), at p. 188 : In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded.

Nothing will be gained by treating them as different “kinds” of personal injury, so as to require the application of different tests in law [italic emphasis added by McLachlin C.J.C.]. [9] This said, psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset. Personal injury at law connotes serious trauma or illness: see Hinz v. Berry , [1970] 2 Q.B. 40 (C.A.), at p. 42 ; Page v. Smith , at p. 189; Linden and Feldthusen, at pp. 425–27. The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury.

I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept. The need to

accept such upsets rather than seek redress in tort is what I take the Court of Appeal to be expressing in its quote from Vanek v. GreatAtlantic & Pacific Co. of Canada (1999), (ON CA), 48 O.R. (3d) 228 (C.A.): “Life goes on” (para. 60). Quite simply,minor and transient upsets do not constitute personal injury, and hence do not amount to damage. (Italic emphasis in original) [74] The Supreme Court subsequently clarified the law in Saadati.

The British Columbia Court of Appeal in Saadati v Moorhead,2015 BCCA 393, 390 DLR (4th) 63 (rev’d Saadati), had interpreted the Mustapha decision as not having eliminated the requirement fora plaintiff to claim and prove a recognizable psychiatric condition. In taking this position, the British Columbia Court of Appeal adoptedthe Ontario Court of Appeal’s position in Healey v Lakeridge Health Corporation, 2011 ONCA 55, 328 DLR (4th) 248 [Healey].

InHealey, Sharp J.A. conducted a comprehensive review of the post-Mustapha case law and ultimately found it “impossible to imagine thatMcLachlin C.J.C. could have intended her brief description of the type of psychological injuries that qualify as being compensable tochange a well-established, though at times contested, rule” (at para 61). The Chambers judge who authored the decision now underappeal relied on these authorities in his reasoning.

Importantly, though, he did not have the benefit of the Supreme Court’s decision inSaadati when he was deciding this matter, which, as mentioned above, was issued shortly after his decision was rendered. [75] In Saadati, the Supreme Court clarified the threshold for establishing compensable injury: [2] This Court has, however, never required claimants to show a recognizable psychiatric illness as a precondition to recovery for mentalinjury. Nor, in my view, would it be desirable for it to do so now.

Just as recovery for physical injury is not, as a matter of law,conditioned upon a claimant adducing expert diagnostic evidence in support, recovery for mental injury does not require proof of arecognizable psychiatric illness.

This and other mechanisms by which some courts have historically sought to control recovery formental injury are, in my respectful view, premised upon dubious perceptions of psychiatry and of mental illness in general, whichCanadian tort law should repudiate. (Italic emphasis in original) [76] The remainder of Saadati makes it abundantly clear that it is endorsing the approach taken in Mustapha.

In dismissing theproposition that diagnostic tools used by psychiatric professionals should be relied upon to identify compensable mental injury, theSupreme Court observed the following: [31] Confining compensable mental injury to conditions that are identifiable with reference to these diagnostic tools is, however,inherently suspect as a matter of legal methodology.

While, for treatment purposes, an accurate diagnosis is obviously important, a trierof fact adjudicating a claim of mental injury is not concerned with diagnosis, but with symptoms and their effects (Mulheron, [“Rewritingthe Requirement for a ‘Recognized Psychiatric Injury’ in Negligence Claims” (2012), 32 Oxford J Leg Stud 77] at p. 88). …Downloading the task of assessing legally recoverable mental injury to the [Diagnostic and Statistical Manual of Mental Disorders] and[International Statistical Classification of Diseases] therefore imports an arbitrary control mechanism upon recovery for mental injury,conditioning recovery not upon any legally principled basis directed to the alleged injury, but upon conformity with a legally irrelevantclassification scheme designed to facilitate identification of particular conditions (L.

Bélanger-Hardy, “Thresholds of Actionable MentalHarm in Negligence: A Policy-Based Analysis” (2013), 36 Dal. L.J. 103, at pp. 113–15; Mulheron, at pp. 87–88). … [37] None of this is to suggest that mental injury is always as readily demonstrable as physical injury. While allegations of injury tomuscular tissue may sometimes pose challenges to triers of fact, many physical conditions such as lacerations and broken bones areobjectively verifiable. Mental injury, however, will often not be as readily apparent.

Further, and as Mustapha makes clear, mental injuryis not proven by the existence of mere psychological upset. While, therefore, tort law protects persons from negligent interference withtheir mental health, there is no legally cognizable right to happiness. Claimants must, therefore, show much more – that the disturbancesuffered by the claimant is “serious and prolonged and rise[s] above the ordinary annoyances, anxieties and fears” that come with livingin civil society (Mustapha, at para. 9).

To be clear, this does not denote distinct legal treatment of mental injury relative to physicalinjury; rather, it goes to the prior legal question of what constitutes “mental injury”. Ultimately, the claimant’s task in establishing amental injury is to show the requisite degree of disturbance (although not, as the respondents say, to show its classification as arecognized psychiatric illness). (Italic emphasis in original) [77] Saadati makes it clear that proving mental injury in the tort context does not require the plaintiff to prove a recognizedpsychiatric illness.

A diagnosis of such illness may be helpful to a trier of fact, but it is but one factor to be weighed. The task of the trierof fact is, at all times, concerned with symptoms and effects in determining the level of harm experienced by the plaintiff.

The plaintiff isto show on a balance of probabilities that he or she has sustained mental injury that is serious and prolonged and that the degree of injuryrises above the ordinary annoyances, anxieties, and fears that come with living in a civil society. [78] Thus, the law is now clear that a psychiatric diagnosis is not necessary for proving compensable mental injury, just as avisible physical injury is not required to ground a claim of injury. It is open to plaintiffs to claim damages for mental injury.

TheChambers judge erred in holding otherwise. [79] The appellants also take issue with the Chambers judge’s finding that, the issue of compensable damages aside, the factsalleged in the pleadings could not support a claim of intentional infliction of mental suffering and the finding that mental suffering ormental distress and anxiety do not constitute compensable damages.

[ 80 ] The appellants further submit that the test to prove the tort of intentional infliction of mental suffering only requires plaintiffs to establish the following: (

a) the conduct against them was flagrant or outrageous; (

b) the conduct against them was intended to cause harm; and (

c) the conduct resulted in visible and provable mental injury.

The appellants submit that this tort was pleaded in the statement of claim against Peter where it states that he threatened to kill the appellants with a gun: the threat was intended to terrify the appellants, and the conduct resulted in damages in the form of mental distress and anxiety. [ 81 ] I would agree with the appellants that Peter’s alleged phone call to Doug, where he threatened to shoot the appellants, fired a gun, and said that each sound of the firearm discharging was the sound of their heads going off, combined with the appellants’ allegation of their having suffered mental distress and anxiety, is enough to satisfy the pleading requirements for the tort of intentional infliction of mental suffering in an absolutely bare bones manner. [ 82 ] I conclude the Chambers judge erred in striking this particular claim.

D. Did the Chambers judge err in ruling that causing a person to distrust the RCMP did not constitute compensable damages? [ 83 ] The appellants made a number of claims against the RCMP, including that the RCMP conducted a negligent investigation, committed misfeasance of public office, was biased in favour of Peter, and harassed the appellants’ family by tailgating them. Only the harassment claim was pursued on appeal. [ 84 ] As will be discussed more fully below, the Chambers judge dismissed the harassment claim.

The main reason for his decision was that harassment is simply not a recognized tort in Saskatchewan. A secondary reason for his decision was that no damages had been claimed in respect of the alleged harassment. His conclusion on this point was supported by a finding that “distrust of the RCMP” was a subcategory of mental distress and anxiety, which he had already ruled out as a head of compensable damages earlier in his decision. [ 85 ] The appellants disagree that “distrust of the RCMP” is subsumed by mental distress and anxiety or mental injury.

They acknowledge distrust of the RCMP has never been judicially considered as a compensable head of damages in Saskatchewan, but suggest distrust of the police has recently been held to be a form of damage resulting from police misconduct in other jurisdictions.

The appellants thus rely on distrust of police (or of the RCMP) as a discrete head of damages in connection with the pleading of their claim in civil harassment, if such a tort exists, against the RCMP. [ 86 ] In its factum, Canada (for the RCMP) submits the Chambers judge was “correct in his determination that the proposed head of damage of ‘distrust of the RCMP’ was but a subcategory of mental distress and anxiety and therefore was not a compensable damage”. It submits the appellants have no authority for the proposition that distrust of police is a discrete head of compensable damages at law.

Canada further submits that this Court need not concern itself with the question of whether distrust of the RCMP is a discreet compensable head of damages because, in its view, civil harassment is not an actionable tort and thus the question of damages is moot in respect of that claim. [ 87 ] Returning to the appellants’ claim for a moment, it is important to note that, in addition to pointing to distrust of the RCMP as damages grounding their harassment claim, the appellants also note distrust of the RCMP in reference to their battery claim against Mr. Wouters, a member of the RCMP. I have already noted that Mr.

Wouters may be liable for civil battery on the facts pleaded by the appellants. Contrary to the submission of Canada, then, it falls to this Court to decide whether distrust of the RCMP is a compensable head of damages that may be claimed in reference to the alleged battery.

This is so regardless of whether or not civil harassment is found to be an actionable tort. [ 88 ] In Elmardy v Toronto Police Services Board , 2015 ONSC 2952 at paras 2 and 110 , 126 OR (3d) 130 [ Elmardy ] (varied 2017 ONSC 2074 (Div Ct) ), a case relied upon by the appellants, the Ontario Superior Court of Justice included distrust of police in its general damages calculation: [110] Mr. Elmardy seeks $75,000 in general damages in relation to the battery committed upon him by Constable Pak. The battery consisted of two punches in the face and some further minor contact that caused little or no injury. Mr.

Elmardy’s cheek was swollen for a few days. His lip cut healed quickly. His knees were better within a week. General damages are to compensate a plaintiff for the injuries suffered. This includes emotional losses such as the plaintiff’s claim to have been humiliated and to now distrust police .

Considering tort cases dealing with similar injuries, in my view, an award of $5,000 for general damages for pain and suffering is appropriate although it may well be at the high end of the range for such injuries. (Emphasis added) [ 89 ] The judge did not parse the damages award or assign a specific amount to distrust of police. He based the amount on similar injuries. Although there is no instance where distrust of police was compensated as a discrete head of damage, Elmardy expressly refers to distrust of police as an example of an emotional loss.

The Chambers judge appears to have agreed with this view, treating distrust of the RCMP in his reasons as a subcategory of mental distress and anxiety or mental injury. [ 90 ] I agree with the Chambers judge insofar as he connected the idea of distrust of the RCMP with the idea of mental distress and anxiety or, again, in post- Saadati nomenclature, mental injury. It is important, however, to draw a distinction between evidence of a mental injury and a subcategory of mental injury.

[ 91 ] Rather than viewing distrust of the RCMP as a subcategory of mental injury and, thus, as a discrete item of damages to be proven, it should be asked whether the appellants’ distrust of the RCMP is a manifestation of mental injury, or, in other words, if the appellants’ distrust of the RCMP is a fact that would support the conclusion that a mental injury has been sustained.

The practical effect of this is that distrust of the RCMP ought not be characterized as a form of mental injury but rather, in effect, as evidence of mental injury. [ 92 ] In short, the way to establish compensable mental injury is to lead evidence that establishes the fact of the mental injury and shows that the damage is significant. Showing a claimant has developed a distrust of the RCMP or other police that has disrupted everyday life might be part of the evidence indicating that there is a compensable mental injury.

It is not, however, a compensable head of damage on its own. [ 93 ] A claim for distrust of the RCMP is not the same as claiming compensable damages. It is open to the appellants to adduce evidence of distrust of the RCMP at trial if, as in Nagy v Canada , 2005 ABQB 26 , 373 AR 338 (aff’d Phillips v Nagy , 2006 ABCA 227 , 397 AR 94), that evidence supports a conclusion that a compensable damage has occurred. But, as I have explained, it is not the fact of distrust of the RCMP that needs to be proven to recover damages.

The appellants have chosen to claim mental distress and anxiety (i.e., mental injury), and so it falls to them to explain how distrust of the RCMP supports that claim. [ 94 ] In view of the foregoing discussion, I conclude the Chambers judge was correct in deciding distrust of the RCMP is not, on its own, a compensable head of damages at law. E. Did the Chambers judge err when he struck the claim for harassment? [ 95 ] In the statement of claim, the appellants referred to criminal harassment perpetrated by unknown members of the RCMP.

The appellants subsequently applied to amend the statement of claim to refer to civil harassment. The Chambers judge dismissed the claim for criminal harassment and also denied the application to amend the claim because the amendment “would not assist the plaintiffs because harassment has not been characterized as a distinct actionable tort in Saskatchewan” ( Chambers Decision at para 39). [ 96 ] The appellants challenge this finding, and argue the facts pleaded, concerning alleged harassment by the unknown RCMP members, are very serious.

They state they were harassed through a dangerous driving pattern by an RCMP member that was intended to scare Doug into not complaining or continuing to report to the RCMP his concerns about the investigation into Peter’s actions. [ 97 ] The appellants concede the law on whether harassment constitutes a tort is divided in Canada. They are right to do so. In Alberta and Ontario, harassment has been found to be a viable tort; in British Columbia, the courts have recognized a tort of harassment in some instances.

On the other hand, Newfoundland courts have held “[t]here is no independent tort of harassment or discrimination. All such actions are subsumed under the comprehensive scheme set out in the Human Rights Code [RSNL 1990, c H-14 (repealed)]” ( Hagan v Drover , 2009 NLTD 160 at para 180 , 291 Nfld & PEIR 193).

Manitoba does not recognize the notion of a tort of harassment: Hyra v Rolston , 2012 MBQB 160 at para 29 , 279 Man R (2d) 200. [ 98 ] In the present matter, the Chambers judge referenced Collins-QB (a decision of the Court of Queen’s Bench for Saskatchewan) and noted, “harassment has not been characterized as a distinct actionable tort in Saskatchewan” ( Chambers Decision at para 39) as it is subsumed by the tort of intentional infliction of mental injury. [ 99 ] This authority notwithstanding, the appellants argue that civil harassment has not been definitively ruled out as an actionable tort in this jurisdiction.

They suggest this Court has yet to make a clear ruling on the matter, and no statute rules out the possibility of a common law tort of harassment in Saskatchewan. They also contend that the body of law concerning the tort of harassment has evolved and grown over the last number of years and that, in the context of an application to strike, it is too early for the Court to dismiss this potential cause of action without it being fully litigated at trial.

The appellants argue this Court must recognize that because the law is constantly evolving, it would be improper to terminate claims that are novel but are arguable: see Imperial Oil v New Brunswick (Minister of Finance) , 2009 NBCA 20 , 310 DLR (4th) 59. [ 100 ] In further support of their position, the appellants submit there are practical benefits to recognizing a tort of harassment because it covers previously unprotected interests. The appellants point to the distinctions between the proposed tort of harassment and the recognized tort of intentional infliction of mental suffering.

First, with the tort of harassment, a defendant can be held liable for recklessly causing emotional harm, whereas one must prove that the defendant intended to cause the injury in the tort of intentional infliction of mental suffering. Second, say the appellants, with harassment there need only be emotional harm caused to the plaintiff, whereas intentional infliction of mental suffering requires provable illness.

The appellants submit that these differences are not trivial and could make a difference in holding individuals accountable to claimants who have suffered harm where they might be precluded from so doing because the test for intentional infliction of mental injury is so strict. [ 101 ] Canada states the Chambers judge correctly recognized that a breach of the Criminal Code “does not constitute a civil tort” (at para 39). [ 102 ] In respect of the application to amend the statement of claim, Canada states the Chambers judge correctly held there was no basis for a claim in harassment as no such tort has been recognized in Saskatchewan, and that claims in harassment are best evaluated in the context of existing torts.

In support of this proposition, Canada refers to the following decisions of this Court: Collins-CA ; Paso Services Ltd. v Ratz , 2008 SKQB 356 , 322 Sask R 79; Windrem v Couture , 2009 SKQB 339 at paras 132–134 , 341 Sask R 131; and Riley v Saskatchewan Power Corporation , 2009 SKQB 342 at paras 17–18 , 340 Sask R 71 [ Riley ]. [ 103 ] In response to the appellants’ suggestion that recognition of a proposed new tort is necessary to allow for compensation of

individuals who do not meet the requirements for intentional infliction of mental suffering, Canada makes two points. First, it submitsthat, contrary to the assertion of the appellants, reckless disregard has already been recognized as a potential element of intentionalinfliction of mental suffering: see Riley at para 10.

Second, it submits that following Mustapha (and now Saadati) provable psychiatricillness is no longer strictly required for claims of intentional infliction of mental suffering. [104] Finally, Canada argues that even if harassment were a distinct tort in this province, the pleadings do not set out a sufficientfactual basis to establish a reasonable cause of action. [105] I find myself in general agreement with the submissions of Canada. [106] In Collins-QB, Dawson J. stated the following: [27] In Saskatchewan, harassment has not been characterized as distinct actionable tort.

In that regard, Justice Foley, in the case of PasoServices Ltd. v. Ratz et al., 2008 SKQB 356, 322 Sask. R. 79, said the following, commencing at paras. 49 through 57: [49] The activity of harassment, by definition, encompasses conduct by one which is said to annoy, vex or beleaguer another throughsome form of repetitive or constant interference. The victim of the harassment may well react emotionally or act against interest andnotionally suffer “damage”. [50] Canadian courts have not generally found harassing conduct to be a recognized, distinct tort at common law.

Rather, harassment hasbeen characterized as a possible aspect of such accepted torts as intentional infliction of mental suffering (Prinzo v. Baycrest Centre forGeriatric Care (2002), (ON CA), 161 O.A.C. 302; 215 D.L.R. (4th) 31 (C.A.)) and intimidation (Daishowa Inc. v.Friends of the Lubicon et al. (1996), (ON SC), 88 O.A.C. 1; 33 C.R.R. (2d) 322 (Div. Ct.)). … [57] In

summary, I decline to characterize “harassment” as a distinct actionable tort and dismiss this particular aspect of Ratz’s claim. (Emphasis added) [107] When Collins-QB was appealed to this Court, the decision was overturned, in part, for reasons that are not relevant here. Whatis relevant, however, is what this Court said about the tort of harassment (Collins-CA): [11] In her reasons, the Chambers judge carefully and critically reviewed each of the 12 causes of action or purported causes of actionthe Collinses had pled against the Peltiers, being: (

a) assault and battery; (

b) conspiracy to injure; (

c) a “constitutional tort” under s. 8with respect to “privacy rights”; (

d) harassment; (

e) intentional infliction of emotional suffering; (

f) intimidation; (

g) invasion of privacy;(

h) malicious prosecution; (

i) nuisance; (

j) property conversion; (

k) trespass; and (

l) unlawful interference with the enjoyment ofproperty. [12] In short, I found no error in her reasoning in nine of the ten instances where the Chambers judge found the statement of claim lackeda sufficient factual foundation to support a cause of action, failed to plead the requisite elements of a known cause of action, or pled acause of action not known or not recognized in law (i.e., the claims itemised under para. [11](

a) to (f), (h), (i), and (

l) above).

Havingreviewed the materials before the Court, I find the Chambers judge’s conclusions with regard to these “causes of action” are well-supported in her reasons and by the law and, therefore, they withstand appellate scrutiny. (Emphasis added.) [108] As the Chambers judge in Collins-QB struck the claim of harassment for not being a cause of action recognized inSaskatchewan and, as this Court said it found no error in the Chambers judge’s finding that the statement of claim pleaded a cause ofaction not recognized in law, this can only lead to the conclusion that this Court has effectively determined that the tort of harassment isnot recognized in Saskatchewan. [109] Accordingly, I would dismiss this ground of appeal.

VIII. Conclusion [110] The outcome is that the Chambers Decision is set aside with the following result: (

a) Doug may proceed with the claim against Mr. Wouters for civil battery; (

b) Doug and Cheryl may proceed with the claim against Peter for civil assault; and (

c) Doug and Cheryl may proceed with the claim against Peter for intentional infliction of mental injury. [111] By way of a clarification, Doug and Cheryl’s children, E.M., S.M., and L.M., may not proceed with their claims. The statementof claim alleges no facts on which they could found a cause of action, with the exception of the claim in harassment. However, asexplained above, that claim is not well founded as a matter of law. [112] In all other respects, the appeal is dismissed. [113] The appellants’ success on appeal has been mixed. [114] As against Canada, the appellants have succeeded in showing the Chambers judge erred when he decided the appellants’ civil

battery claim against Mr. Wouters was insufficiently pleaded. However, the appellants have failed in their arguments respecting distrust of the RCMP as a compensable damage, and respecting harassment as an actionable tort.

On the basis of this divided success, no costs are awarded against Canada. [ 115 ] As against the respondent Peter, the appellants have been successful in showing the Chambers judge erred when he decided the appellants’ claims for civil assault and intentional infliction of mental suffering were insufficiently pleaded, and that the Chambers judge erred in finding mental distress and anxiety are not compensable damages at law. Accordingly, one set of costs should be awarded against Peter. “Whitmore J.A.” Whitmore J.A. I concur. “Schwann J.A.” for Richards C.J.S. I concur. “Schwann J.A.” Schwann J.A.