Byron Douglas Harpold Appellant (Plaintiff) v. Ministry of Corrections and, 2020 SKCA 98

Court of Appeal for Saskatchewan Docket: CACV3520 Citation: Harpold v Saskatchewan (Corrections and Policing) , 2020 SKCA 98 Date: 2020-08-12 Between: Byron Douglas Harpold Appellant (Plaintiff) And Ministry of Corrections and Policing Respondent (Defendant) Before: Schwann, Barrington-Foote and Tholl JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Mr. Justice Barrington-Foote The Honourable Mr.

Justice Tholl On application from: QBG 414 of 2019, Regina Application heard: June 11, 2020 Counsel: Byron Harpold on his own behalf Deena Wahba for the Respondent Schwann J.A. I. Introduction [ 1 ] The appellant, Byron Douglas Harpold, appeals from a decision made by a Court of Queen’s Bench judge striking his statement of claim because it failed to disclose a reasonable cause of action and was frivolous and an abuse of process. [ 2 ] For the reasons that follow, I would allow Mr. Harpold’s appeal. II. Background [ 3 ] Mr.

Harpold commenced an action by statement of claim against “Corrections and Policing (Legal Services Division)” on February 11, 2019, which, as I understand it, was intended to refer to the Ministry of Corrections and Policing of the Government of Saskatchewan. Pursuant to s. 12 of The Proceedings Against the Crown Act, 2019 , SS 2019, c P-27.01 , the proper designation for this defendant in these proceedings is the Government of Saskatchewan. However, for ease of reference, I will refer to the Government of Saskatchewan as Corrections and Policing throughout. [ 4 ] Mr.

Harpold was being supervised by Corrections and Policing as a result of entering into an undertaking and, subsequently, a recognizance pursuant to s. 810.1 of the Criminal Code . He was subject to numerous conditions, including the following: (

a) live at a residence approved by his probation officer and not change that residence without the prior written permission of that probation officer; (

b) remain at his approved residence from 11:00 p.m. until 7:00 a.m., absent written permission from his probation officer to be elsewhere; (

c) report any and all accepted offers of employment; (

d) not to have employment or accept any offer of employment without prior written approval from his probation officer “where it could reasonably be expected that a child under the age of sixteen years might be present”; and (

e) not own or access a device capable of connecting to the Internet or capable of storing information; [ 5 ] The Custody, Supervision and Rehabilitation Services Division of Corrections and Policing is responsible for the administration of The Correctional Services Act, 2012 , SS 2012, c C-39.2 . This legislation applies to adult offenders who fall under provincial jurisdiction. Several probation officers with Corrections and Policing were responsible for supervising Mr. Harpold and monitoring his compliance with the terms of his recognizance. [ 6 ] Mr.

Harpold, who was self-represented in the Court of Queen’s Bench as he is now on appeal, filed a 3-page statement of claim followed by a 14-page reply to the statement of defence that had been filed by Corrections and Policing [collectively, the claim or his pleadings]. [ 7 ] The nub of Mr. Harpold’s claim relates to how two of his probation officers discharged their supervisory function under The Correctional Services Act, 2012 , and, in particular, how they dealt with some of the discretionary aspects of his conditions. More specifically, Mr.

Harpold cites their refusal to modify the residency condition that requires him to live at a specified residence (his

mother’s home in Saskatchewan) and to allow him to accept employment in his chosen field as a heavy equipment operator. Because of their steadfast and inflexible position, Mr. Harpold alleges he had to forgo lucrative employment in both Alberta and Saskatchewan. In consequence, he claims damages in excess of $300,000 for loss of wages and other expenses, along with damages for loss of reputation in the industry. [ 8 ] In its statement of defence, Corrections and Policing admits that its probation officers supervised Mr.

Harpold while he was subject to an undertaking and recognizance under The Correctional Services Act, 2012 . While Corrections and Policing concedes that one of its probation officers had initially granted Mr. Harpold permission to work in a work camp near Fort McMurray, Alberta, and subsequently revoked her permission, it maintains that permission had been granted to work temporarily and not on a permanent basis. It also admits that it had denied Mr. Harpold permission to work in Carlyle, Saskatchewan, because the proposed accommodations were unsuitable. [ 9 ] Corrections and Policing applied to strike Mr.

Harpold’s claim in its entirety. It asserted that Mr. Harpold’s pleadings were defective because he failed to plead any recognized cause of action and, even if one were pleaded, s. 111 of The Correctional Services Act, 2012 , was a complete answer to his claim.

Section 111 provides immunity protection for anything done or omitted to be done in good faith in the exercise of any power under this statute. In the alternative, Corrections and Policing argued the pleadings should be struck as being frivolous, vexatious and an abuse of process. [ 10 ] The Chambers judge who heard the matter described Mr.

Harpold’s claim in the following terms ( R v Harpold (24 September 2019) Regina, QBG 414 of 2019 (Sask) [ Chambers Decision ]): [3] The plaintiff drafted his own statement of claim registering complaints about Probation Services and alleging an “agreement” with the probation officer whereby he would be allowed to work in Alberta.

The following is an excerpt his statement of claim: 3 Probation Officer – [C.K.] … gave me written approval, to go to work … in Ft McMurray, AB as I am currently under a 810 order recognizance, I worked my two weeks, staying in work camp then on my one week off, I fly home … and Mum and I drive … so I can report … then [C.K.] tells me she had bad news for me, telling me I had to quit my job, due to not being able to report in person to the Ft McMurray RCMP, once per week, as she had called the police there, letting them know what work camp I was at, and the hours I would be working, and that I would be reporting to [C.K.] on my one week off, I spent lots of funding for work gear and flights to and from work, we both agreed to the terms of my employment, then she backed out of our agreement, after I just started my new job … . [4] The rest of the plaintiffs claim consists of a running complaint, in similar form and verbiage that Probation Services will not “allow” him to work because they continue to disapprove of his prospective employment opportunities.

The plaintiff acknowledges that the reason Probation Services would not approve of him moving to another location was that he would not be able to report to the local RCMP detachment as often as the recognizance required and which was deemed to be appropriate for public safety.

His claims that he lost three jobs were rooted in either his inability to get several judges to amend his recognizance or in the decision by Probation Services not to approve him leaving the jurisdiction. [5] The rest of the claim deals with his various general complaints regarding the decisions Probation Services made while supervising him in accordance with the conditions of the recognizance. He also takes issue with the decisions of a Provincial Court judge to refuse to amend the conditions of his recognizance. He states he appealed the decision to the Court of Queen’s Bench but was unsuccessful. III.

Decision of the Chambers Judge [ 11 ] The Chambers judge began her decision with the general observation that some leeway is called for with self-represented litigants and, as such, precise pleadings cannot be expected.

However, as the Chambers judge cautioned, “indulgence should not be taken as permission to ignore the basic rules of civil procedure” (at para 6). [ 12 ] Next, the Chambers judge outlined the provisions of The Queen’s Bench Rules that were applicable to the application before her, namely Rule 13-8 (the purpose of pleadings), Rule 1-4 (the need to identify the real issues in dispute in order to facilitate a quick resolution of claims), and Rule 7-9 (the grounds for striking pleadings). [ 13 ] With that foundation in mind, the Chambers judge then turned to Mr.

Harpold’s pleadings, which she characterized broadly as “nothing more than long script of grievances against Probation Services who was tasked with supervising the plaintiff” (at para 22). The Chambers judge isolated what she thought was the root of Mr. Harpold’s action, which, in her view, was a claim in contract: [23] Taken at its highest, the plaintiffs claim appears to be rooted in contract but of course there was no actual contract or “deal” between the probation officer and the plaintiff.

The probation officer initially determined that the temporary move might be acceptable but later discussions with the Crown prosecutor and the police moved the probation officer to have second thoughts regarding public safety. [ 14 ] The Chambers judge also assessed Mr. Harpold’s claim as a generalized complaint about how the courts have refused to amend the conditions of his recognizance. In her view, this part of Mr. Harpold’s claim amounted to little more than “a back door attempt to launch a collateral attack on the terms of the recognizance” (at para 24).

In the end, having, as she said, “mined the plaintiff’s” claim, the Chambers judge concluded she could find “nothing that comes close to disclosing a reasonable cause of action”. [ 15 ] The Chambers judge next considered the alternative argument of whether Mr. Harpold’s claim was frivolous and an abuse of process. Her bottom-line determination in response to this prong of the application was grounded in the conclusion that the relationship between Mr.

Harpold and Corrections and Policing “is not one that springs from a contract” (at para 26), because probation officers are public servants obliged to supervise offenders who are placed on conditions by court order. Finally, in reference to s. 111 of The Correctional Services Act, 2012 , the Chambers judge noted that Mr. Harpold did “not allege that probation officers acted in bad faith when they did not give him the required approval to live and work where he wanted” (at para 29). [ 16 ] In the end, the Chambers judge concluded Mr. Harpold’s claim disclosed no reasonable cause of action and that it was an abuse

of the court’s process. She went on to find that his pleadings were not salvageable and that the entire claim was “beyond redemption” (atpara 31). Mr. Harpold’s claim was struck in its entirety. He appeals from that finding. IV. Fresh evidence [17] Mr. Harpold applies to adduce fresh evidence on appeal. The proposed fresh evidence principally consists of a publicationentitled High Risk Offenders: A Handbook for Criminal Justice Professionals (Ottawa: Department of Justice, 2001) [Handbook],published by the Government of Canada. Mr. Harpold asserts this publication governs s. 810 and 810.1 orders.

He claims he only foundout about the existence of the Handbook after the application to strike his pleadings was heard by the Chambers judge. [18] Corrections and Policing opposes the introduction of this evidence. It believes the Handbook was before the Chambers judgeand, in any event, submits that it is irrelevant to the issue at hand. [19] The exercise of this Court’s discretion to admit fresh evidence on appeal is guided by the principles set out in R v Palmer, (SCC), [1980] 1 SCR 759 [Palmer]: (

a) the evidence should not be admitted if, by due diligence, it could have been adduced at trial; (

b) the evidence must be relevant and bear upon a decisive or potentially decisive issue at trial; (

c) the evidence must be credible in that it is reasonably capable of belief; and (

d) the evidence must be such that, if believed, it could reasonably, when taken with the other evidence adduced at trial, beexpected to have affected the result. [20] In my view, there are two fundamental reasons why Mr. Harpold’s application fails to satisfy the Palmer test. First, theHandbook is dated May 2001 and, as such, it was clearly available at the time of the Chambers application. In the absence of anyexplanation from Mr. Harpold to the contrary, a reasonable inference can be drawn that, with the exercise of some due diligence on hispart, it could have been adduced on the application to strike.

Second, since the Handbook is largely directed to the imposition of theconditions in the initial instance, and not with after-the-fact compliance and monitoring, it is hard to see its relevance in light ofMr. Harpold’s claim. Although Mr. Harpold is clearly not happy with the wording of his conditions, the gist of his claim takes issue withwhether the probation officers acted in bad faith in the exercise of their statutory functions by refusing to grant approval for his chosenplace of employment or by revoking the permission that had been granted. V.

Standard of Review [21] A decision as to whether a statement of claim discloses a reasonable cause of action is a question of law reviewable on thecorrectness standard: Filson v Canada, 2015 SKCA 80 at para 22, 388 DLR (4th) 66 [Filson]; Canada (Attorney General) v MerchantLaw Group LLP, 2017 SKCA 62, [2017] 10 WWR 664 [Merchant]; and McLean v McLean, 2019 SKCA 15, [2019] 5 WWR 67[McLean]. This means – as observed in McLean – that an appellate court may undertake its own analysis of the question at hand andsubstitute its own view on the matter.

The standard of correctness also applies to “whether a claim is scandalous, frivolous or vexatious”(Hope v Gourlay, 2015 SKCA 27 at para 16, 384 DLR (4th) 235). [22] Before leaving the standard of appellate review issue, I pause to observe that a different view on the matter is taken by theManitoba Court of Appeal: see Mirage Consulting Ltd. v Astra Credit Union Ltd., 2008 MBCA 105 at paras 12, 231 Man R (2d) 269, andHomestead Properties (Canada) Ltd. v Sekhri, 2007 MBCA 61 at para 13, [2007] 8 WWR 635.

Those decisions hold that where thereviewing judge has correctly stated the law, the question of whether it is plain and obvious that the case must fail is a discretionarydecision. As such, an appellate court ought not intervene with the decision unless it is clearly wrong.

Similarly, judges from this Court intwo leave to appeal decisions have held that the question of whether a claim is sufficiently pleaded is a question of law, but thedetermination of whether it should be struck is an exercise of discretion: see Lombard General Insurance v Stomp Pork Farm Ltd., 2008SKCA 146, [2009] 4 WWR 505 (Chambers), and Fox v PW Lorch & Associates Ltd., 2012 SKCA 93, 399 Sask R 226 (Chambers). [23] Since this appeal turns on a question of law, and Corrections and Policing adopted the correctness standard in its factum, adetermination of whether Mr.

Harpold’s claim was sufficiently pleaded will be reviewed on that basis. Whether the standard of review forsuch matters should be further refined will be left to another day. VI. Analysis A. The Law [24] The appropriate starting point to this appeal is Rule 7-9 of The Queen’s Bench Rules, which deals with applications to strike outall or any part of a pleading: Striking out a pleading or other document, etc. in certain circumstances 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 thefollowing: (

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). [25] A useful

summary of the governing principles with respect to an application to strike a pleading for failing to disclose areasonable cause of action is found in Swift Current (City) v Saskatchewan Power Corporation, 2007 SKCA 27, [2007] 5 WWR 387[Swift Current]: [18] These general principles were summarized by Gunn J. in the case of Collins v. McMahon, 2002 SKQB 201, [2002] S.J. No. 318(QL): [11] The principles which apply to an application to strike a plaintiff’s claim under Rule 173(

a) are the following: (

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.)). As noted, see Sagon v Royal Bank of Canada (1992), (SK CA), 105 Sask R 133 (CA) at para 16 [Sagon]. [26] When called upon to review a claim in response to an application under Rule 7-9(2)(a), the reviewing judge is required todetermine whether sufficient facts have been pleaded to establish the legal elements of a cause of action by considering the whole of thestatement of claim.

It is for the reviewing judge “to determine whether the combined effect of any technical pleading, together with otherfacts, properly plead the essential elements of the cause of action” (Reisinger v J.C. Architect Ltd., 2017 SKCA 11 at para 20, 411 DLR(4th) 687 [Reisinger]). [27] In the matter under appeal, apart from a reference to an alleged contract, Mr. Harpold did not specify any cause of action byname. His failure to do so raises the broader issue of noncompliance with the technical requirements of pleadings and the approach to betaken by a reviewing judge.

Like the Queen’s Bench Chambers judge, I will first address the basic principles and requirements ofpleadings and then consider whether failure to meet the required technicalities gives rise to a pleading that discloses no reasonable causeof action. [28] Rule 13-8(1) of The Queen’s Bench Rules is germane to this discussion: Pleadings: general requirements 13-8(1) Every pleading must: (

a) be divided into paragraphs, numbered consecutively, and each allegation must, as far as is practicable, be contained in a separateparagraph; (

b) be signed by the party’s lawyer or, if the party is self-represented, by the party; (

c) contain only a statement in

summary form of the material facts on which the party pleading relies for the party’s claim or defence, butnot the evidence by which the facts are to be proved; and (

d) be as brief as the nature of the case will permit.

(2) If necessary, full particulars of any claim or defence must be stated in the pleading.

(3) A party shall plead specifically any matter, fact or point of law that:

(

a) makes a claim or defence of the other party not maintainable; (

b) if not specifically pleaded, might take the other party by surprise; or (

c) raises issues not arising out of the preceding pleadings.

(4) A party shall refer to any enactment on which the party’s action or defence is founded and, if practicable, give particulars of thespecific sections on which the party relies. [29] Rule 13-8 reflects the jurisprudence in relation to the purposes of pleadings, which were described in Ducharme v Davies(1984), (SK CA), 29 Sask R 54 (CA) [Ducharme], in these terms: [64] While pleadings are no longer subject to the precise, complex, and occasionally oppressive requirements they once were, neverthelessthey remain an important aspect of every lawsuit and must be framed with care.

The following passage taken from The Law of CivilProcedure – Williston and Rolls (vol. 2, [1970] page 636) illustrates why a careful pleading is still important; The function of pleadings isfourfold: 1. To define with clarity and precision the question in controversy between litigants. 2. To give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issues disclosed by them. Adefendant is entitled to know what it is that the plaintiff asserts against him; the plaintiff is entitled to know the nature of the defenceraised in answer to his claim. 3.

To assist the court in its investigation of the truth of the allegations made by the litigants. 4. To constitute a record of the issues involved in the action so as to prevent future litigation upon the matter adjudicated between theparties.

See also Reisinger; Rieger v Burgess, (SK CA), [1988] 4 WWR 577 (Sask CA) (leave to appeal refused, [1988] SCCANo 209 (QL)); National Bank Financial Ltd. v Barthe Estate, 2015 NSCA 47 at para 281, 359 NSR (2d) 258; and Thirsk v Saskatchewan(Public Guardian and Trustee), 2017 SKQB 66 [Thirsk]. [30] The second rule of some import to the issue at hand is Rule 1-3 of the Foundational Rules; the salient portions of which provideas follows: Purpose and intention of these rules 1-3(1) The purpose of these rules is to provide a means by which claims can be justly resolved in or by a court process in a timely and costeffective way.

(2) In particular, these rules are intended to be used: (

a) to identify the real issues in dispute; (

b) to facilitate the quickest means of resolving a claim at the least expense. [31] The decisions in both Reisinger and Thirsk address how Rule 1-3 and Rule 13-8 fit together. As noted in Reisinger, therequirement to identify the real issues in dispute – as per Rule 1-3 – operates to “inform, as the case may require, applications under Rule7-9, especially those under Rule 7-9(2)(b), (c), (

d) and (e). Poorly drafted claims in the sense that they are logorrheic may, depending onthe degree, offend Rule 1-3 and Rule 13-8 and affect analysis under the aforementioned subrules of 7-9(2)” (emphasis added, at para 38). [32] Thirsk followed and arguably expanded Reisinger. It is an important decision in two respects. First, Thirsk observed thattechnical non-compliance with the rules governing pleadings does not inexorably lead to the conclusion that the pleading under reviewmust be struck.

At paragraph 21 of that decision, the court emphasized the need for a reviewing court to focus on substance over formwhen dealing with an application to strike a claim for disclosing no reasonable cause of action. [21] All of this does not mean, however, that pleadings which fail to comply with Rule 13-8 and Rule 1-3 – and indeed, even pleadingswhich fall far short of doing so − must be struck.

Reisinger illustrates that the focus in dealing with an application to strike all or part of aclaim as disclosing no cause of action is on substance – that is, on whether the pleadings adequately serve their purpose − rather thanform. The court found that the claims in contract and conspiracy were properly pled.

It did so despite describing the statement of claim as(at para. 47) “undoubtedly prolix and hard to understand” and “logorrheic”, or excessively wordy. (Emphasis added) In reference to the result in Reisinger, the judge in Thirsk observed as follows: [23] The point, in other words, was not the mere fact that the statement of claim breached Rules 1-3 and 13-8. It was that those breacheswere such that the statement of claim did not serve the essential functions of pleadings.

It failed to adequately define the issues in disputeand to give fair notice to the other side of what was claimed, in relation to all but the two causes of action which survived. The fact that itmay have been possible for the court to find allegations which could be stitched together to disclose all essential elements of a claim wasnot enough. See also Robin Hood Management Ltd. v Gelmich, 2014 SKQB 347 at para 5, 459 Sask R 183. [33] The second important point that comes out of Thirsk concerns the issue of access to justice and the challenges posed by self-represented litigants.

Thirsk identified the competing interests at play. On the one hand, the Foundational Rules are intended to promote

access to justice through the promotion of a proportionate court process. In that vein, as the judge in Thirsk emphasized, “pleadings playan important role in achieving that result. The technical rules relating to pleadings, and the substantive concerns that underpin those rules,promote a fair and efficient adversarial process” (at para 25). To that end, an application to strike pleadings is designed to screen outclaims having no chance of success that, if allowed to proceed, simply and unnecessarily drive up costs for the litigants.

In this respect,fairness must be seen from the vantage point of both plaintiff and defendant. [34] The obvious countervailing point is that strict adherence to the technical rules of pleadings may, in some circumstances,prevent access to the court process.

This is “particularly so in relation to self-represented litigants” (Thirsk, at para 26). [35] The delicate balance between a proportionate, fair and efficient adversarial process and access to justice was identified by BallJ. in Country Plaza Motors Ltd. v Indian Head, 2005 SKQB 442, 272 Sask R 198: [13] Although the trend in Saskatchewan is to permit a party to have his day in court and not to examine pleadings with a microscope, aplaintiff’s pleadings must nevertheless raise a justiciable claim against each of the defendants.

Where it is impossible to distill a disparatenumber of allegations into coherent and material facts on which a cause of action against the defendants can be based, the claim will bestruck. That is so whether or not the plaintiff is represented by legal counsel. In Saskatchewan Wheat Pool v. Kieling, (SK KB), [1994] 3 W.W.R. 714; (1993), 117 Sask. R. 218 (Q.B.), Armstrong J. stated at para. 43: [43] Lay people cannot be expected to draft precise, correct legal pleadings.

Nevertheless, one cannot be allowed to do whatever onewants, however one wants whenever one wants and the court still be in control of its own processes. [36] In my view, the reasoning in Thirsk is sound and should be adopted. [37] Obviously, where a statement of claim is verbose and poorly drafted, or fails to include technical language, it becomes moredifficult to extract the material facts and identify the real issues in dispute and the cause of action pleaded.

That said – and picking up onthe importance of substance over form when determining if the claim presents a reasonable cause of action (as this Court noted inReisinger) – it remains possible for a cause of action to be pleaded based on a recitation of narrative facts alone, without a classic legalformulation of the cause of action, so long as the required elements of the cause of action are discernable from the whole of the pleading.To that end, I underscore the caution expressed in Reisinger: “Where there are nothing more than headings referring to torts and where thereviewing judge and the defendant must, as in this case, laboriously wade through 20 pages of pure fact to try to find the pony in the barn,the state of the pleadings must be construed against the pleader” (emphasis in original, at para 49).

B. Application of the principles of pleading [38] Mr. Harpold, correctly in my view, does not take issue with the law set out by the Chambers judge concerning the striking ofpleadings. Rather, Mr. Harpold argues the Chambers judge erred in how she applied the law to his pleadings and, as I understand hisargument, erred in over-emphasizing his failure to specify a cause of action by name. I will examine Mr. Harpold’s appeal from theperspective of the dual bases on which the Chambers judge struck his claim. 1. No reasonable cause of action [39] As noted above, the Chambers judge construed Mr.

Harpold’s claim as “nothing more than a long script of grievances againstProbation Services who was tasked with supervising the plaintiff” (at para 22). She said that – taken at its highest – his claim appears tobe rooted in a breach of contract but she went on to discount breach of contract as a possible cause of action because “there was no actualcontract or ‘deal’ between the probation officer and the plaintiff” (at para 23).

Although the Chambers judge did not expand on this point,I take her to have implicitly concluded that the supervisory function exercised by probation officers pursuant to statute cannot and did notgive rise to a private law claim in contract. [40] The Chambers judge went on to dismiss the possibility of any meeting of the minds between Mr. Harpold and his probationofficers: “The probation officer initially determined that the temporary move might be acceptable but later discussions with the Crownprosecutor and the police moved the probation officer to have second thoughts regarding public safety” (at para 23).

I pause to note herethat these facts are not asserted in Mr. Harpold’s claim. Accordingly, the Chambers judge was not entitled to consider them under thisground based on the principles set out in Sagon. [41] Regardless, I am satisfied that the Chambers judge did not err in her conclusion about a possible claim in contract. Sheidentified the principles of law correctly. Although she did not provide expansive reasons for striking Mr. Harpold’s claim on this basis, Ido not read his claim as containing any facts capable of supporting the existence of a contract as that concept is understood at law.

Theexistence of an agreement or oral representations – as asserted by Mr. Harpold – is not the equivalent of a contract: “A contract is a legallyrecognized agreement between two or more persons which gives rise to an obligation that may be enforced in the courts” (footnotesomitted, Warren H.O. Mueller, CED, 4th ed vol 13 (Toronto: Thomson Reuters, 2018) at I.1§1, (WL ProView)). [42] The Chambers judge implicitly recognized that, in exercising their supervisory duties and obligations over Mr.

Harpold underThe Correctional Services Act, 2012, the probation officers were discharging powers and responsibilities imposed on them by statute. Assuch, she can be seen as having categorized his complaint against those officials as one of public, not private law. There is nothing in thepleadings to suggest the agreement – as alleged by Mr. Harpold – falls within the parameters of contract law so as to ground a claim for abreach of contract, and, as such, I see no error with her analysis of the contract allegation. [43] The Chambers judge offered an additional basis for striking Mr.

Harpold’s claim for disclosing no reasonable cause of action.As she saw it, his pleadings amounted to little more than a collateral attack on the terms of his recognizance. While it is clear from thepleadings that Mr. Harpold wanted to have his conditions amended, I am satisfied the portions of his pleadings that pertain to his efforts inthat regard merely serve as background narrative to his fundamental complaint: breach of agreement and, as discussed below, misfeasancein public office. It is to that cause of action that I now turn.

a. Misfeasance in public office [ 44 ] Tort law in Canada has evolved in recent years to the point where it now recognizes the intentional tort of misfeasance in public office. The seminal decision affirming the existence of this cause of action is Odhavji Estate v Woodhouse , 2003 SCC 69 , [2003] 3 SCR 263 [ Odhavji ]: see also Swift Current ; Filson ; Powder Mountain Resorts Ltd. v British Columbia , 2001 BCCA 619 , [2001] 11 WWR 488; and Pedigree Poultry Ltd. v Saskatchewan Boiler Hatching Egg Producers’ Marketing Board , 2020 SKQB 100 [ Pedigree Poultry ] (currently under appeal CACV3636).

The misconduct contemplated by this tort is broadly defined, recognizing that its purpose is “to protect each citizen’s reasonable expectation that a public officer will not intentionally injure a member of the public through deliberate and unlawful conduct in the exercise of public functions” ( Odhavji at para 30 ).

The Supreme Court confirmed that the tort is not limited to the unlawful exercise of a particular statutory or prerogative power but is “more broadly based on unlawful conduct in the exercise of public functions generally” (at para 17). [ 45 ] The tort of misfeasance in public office can arise in one of two ways. The first scenario is where the conduct is specifically intended to injure a person or class of persons. The second situation is where a public officer acts with knowledge that they have no power to do the act complained of and that the act is likely to injure a person.

As discussed in Odhavji , the constituent elements common to both iterations of this tort are twofold: “(

i) deliberate and unlawful conduct in the exercise of public functions; and (ii) awareness that the said conduct is unlawful and likely to injure the plaintiff” (at para 32) – also see Leanne Berry, “Misfeasance in Public Office: Elements of Cause of Action”, in Remedies in Tort , loose-leaf (2019 – Rel 9) vol 3 (Toronto: Thomson Reuters, 2019) at 24-123, s 61.1). [ 46 ] With regard to the first element, an examination of the nature of the impugned misconduct asks whether it was deliberate and unlawful. Misconduct can embrace both acts or omissions (see Odhavji at para 24 ).

The second element requires there to be a nexus between the plaintiff and the public officer. That is to say, a plaintiff must establish that the public officer exhibited a conscious disregard for the interests of those affected by the misconduct in question. Instead of applying the proximity requirement needed in negligence actions, a plaintiff must prove that the defendant had subjective foresight that his or her conduct was unlawful and that it was likely to harm the plaintiff.

As the Court commented in Odhavji , although misfeasance in public office is an intentional tort, “At the very least, according to a number of cases, the defendant must have been subjectively reckless or wilfully blind as to the possibility that harm was a likely consequence of the alleged misconduct” (citations omitted, at para 38).

See also Pedigree Poultry where the court concluded that it was sufficient to prove subjective recklessness or wilful blindness as to both the illegality of the conduct and likely damage to the plaintiff: [173] Although misfeasance is an intentional tort that requires proof of deliberate unlawful conduct, it is not necessary to prove the defendant actually knew his or her act or omission was unlawful and likely to damage the plaintiff.

It is sufficient to prove subjective recklessness or wilful blindness as to these two factors: Odhavji , at paras 26 and 38 ; J.P. v British Columbia (Children and Family Development) , 2017 BCCA 308 at para 29 , 1 BCLR (6th) 17 [ J.P .]; Powder Mountain Resorts Ltd. v British Columbia , 2001 BCCA 619 at para 7 , [2001] 11 WWR 488 [ Powder Mountain ]; Alberta (Minister of Infrastructure) v Nilsson , 2002 ABCA 283 at paras 72 and 95 , 220 DLR (4th) 474 [ Nilsson CA ]; and Foschia , [2009 ONCA 499] at para 24. [ 47 ] A person alleging the tort of misfeasance in public office has a tough hill to climb.

Aside from issues of proof, the Supreme Court in Odhavji identified several restrictions that narrow the ambit of this tort. For example, the tort would not apply in cases of mere inadvertence, a negligent failure to adequately discharge the obligations of office, or even the blatant disregard for official duties absent proof of a conscious disregard for the interests of those affected by the alleged misconduct (see paras 26–29). In addition, a plaintiff must also prove the “tortious conduct was the legal cause of his or her injuries, and that the injuries suffered are compensable in tort law” (at para 32).

See also Swift Current at para 30 . [ 48 ] Mr. Harpold’s pleadings do not specifically identify the tort of misfeasance in public office by name. This is not altogether surprising because even learned academics continue to refer to this tort under the broad umbrella of “developing torts” (Erika Chamberlain, “What is the Role of Misfeasance in a Public Office in Modern Canadian Tort Law?” (2009) 88 Can Bar Rev 579–605). See also Lewis Klar, “Developing Torts”, Remedies in Tort , loose-leaf (Rel 2020-8) (Toronto: Thomson Reuters, 2020) at §61.1.

That technical omission aside, I must ask myself whether the basic elements of this cause of action are capable of being discerned from the whole of Mr. Harpold’s pleadings. [ 49 ] Mr. Harpold’s statement of claim lays out a narrative about three well-paying jobs that he either lost or had to forgo because of the actions or inactions of his probation officers. As I read his claim, Mr. Harpold pleads breach of an understanding he had with C.K., one of his probation officers, in relation to a position in a remote, isolated location near Fort McMurray, Alberta.

He claims C.K. gave him “written approval” to work for a specific company in Fort McMurray. The work arrangement entailed two weeks on and one week off. According to his pleadings, the arrangement called for him to fly home and reside in Saskatchewan with his mother on his off week. Mr. Harpold alleges C.K. authorized this work arrangement, permitted him to travel to Alberta to work, understood that he posed no risk because he resided in an isolated work camp, and that he could have reported by telephone or in person when he returned to Saskatchewan.

He claims to have expended money for work-related gear and airfare. [ 50 ] After spending two weeks on the job in Alberta, Mr. Harpold alleges that C.K. “backed out of our agreement”.

This allegation is repeated in his reply along with what he sees as the deliberate nature of the alleged breach: [statement of claim at 2] Why did [C.K]. give me written approval ( Ref to: court transcript ), that would be a deliberate setup for a breach of my conditions! … [reply at 5] … Also, my employment and my consulting firm … is not part of my crimes in the past, but i do believe why my employment is targeted is by what i read at file sharing at SaskPen when i resided at Oskana Center Prior, which [G.H.] the Maintenance Program Facilitator said … i will quote it: “ I believe [Mr.

Harpold] is committing more crimes while at work, for which he has not got caught for, even tho there is no evidence of this ”! This the same reason why i was denied employment by my parole officer [A.M.] to work for … [B.D.] whom i worked for on my first statutory release on the … project, in July 2017 i was on 12 hr confinement at Oskana, could only drive up town for only 2 hrs per day between 12 noon – 4 pm, on weekends i was confined to Oskana 24 hrs/day.

… [at 12] … My loss of wages and damages with my employers is not my fault, as Probation … admitted she made a mistake, if it was my fault then i should have been charged for breaching my conditions, but was not, then Probation … lied to judge Halliday in court Dec 22/17 as i did my own judges application to amend my conditions to save my employment … . She had lied in court on the phone with the judge, stating i was not supposed to leave the jurisdiction, which is not stated in the recognizance. (Emphasis in original) [ 51 ] Mr.

Harpold argues that C.K.’s rescission of her permission was arbitrary, inconsistent with the governing legislation, irrational and motivated by a desire to punish him for his past criminality or set him up to be in breach of his conditions. [ 52 ] Mr. Harpold also alleges that requests to relax the conditions of his recognizance, so he could work in Saskatchewan, but outside of the vicinity of his designated place of residence, were denied.

Similar to the Alberta job, he argues denial was grounded in bad faith by his probation officers, which was driven by their desire to punish him, not to facilitate his rehabilitation. He goes on to assert that his probation officers refused or rescinded his job related requests because they had asserted a higher level of supervision was called for. Yet, as he alleges, an enhanced designation required an amendment to his recognizance, absent which the probation officers acted without lawful authority to rescind his employment approval or disallow employment outside of his place of residence. At bottom, Mr.

Harpold asserts that he has been, and continues to be, treated unfairly, and that his probation officers have acted arbitrarily and for improper purposes. He goes on to allege that, in some cases, they acted without lawful authority and without regard to the harm it caused him. On this point, he pleads, “I was in a low risk environment away from the community and now i am in a high risk environment cause i have no employment and cannot operate my own consulting firm as well!” [ 53 ] Mr.

Harpold also asserts a violation of his rights under ss. 2, 11 and 15 of the Charter , none of which was addressed by the Chambers judge. Finally, Mr. Harpold seeks damages in excess of $300,000 for lost wages and loss of reputation. [ 54 ] An examination of the whole of Mr. Harpold’s pleadings, with an eye to the elements of the tort of misfeasance in public office, supports his claim because of the following: (

a) it focusses on the actions and inactions of probation officers in their capacity as public servants (statement of claim at para 3 and reply to defence at 6); (

b) the impugned conduct pertains to the exercise of powers by certain probation officers under The Correctional Services Act, 2012 (statement of claim at para 3 and reply to defence at 8); (

c) the probation officers knowingly acted unlawfully and in a manner they knew would harm him (statement of claim at para 3 and reply to defence at 7, 10 and 12); and (

d) he suffered compensable damages caused by the actions and inactions of the probation officers (statement of claim at paras 3 and 4 and reply to defence at 11). [ 55 ] Corrections and Policing advances a number of arguments to sustain the Chambers Decision . [ 56 ] First, it argues that Mr. Harpold has not pleaded directly any incident or example of unlawful conduct on the part of the probation officers and, in any event, asserts that the officers in question were exercising discretionary authority and did not act in excess of their statutory powers.

Corrections and Policing submits the impugned actions were in complete accordance with their statutory duties and legislative mandate and that, as a matter of statutory authority, probation officers are entitled to change course when new information comes to light. [ 57 ] Respectfully, I do not accept those arguments. Principally, they are built on assumptions of fact and inferences derived from those assumptions – much of which was pleaded in the statement of defence and in the affidavit of C.K. (filed in relation to the frivolous argument ground).

As such, the arguments amount to little more than bald assertions that the actions and inactions of the probation officers in question were taken in good faith. Whether the probation officers acted in good faith is a question of fact. Fact-finding or even reliance on a defendant’s pleadings is beyond the scope of an application to strike under Rule 7-9(2)(a).

As this Court made clear in Sagon , on an application to strike, “the court may consider only the statement of claim, any particulars furnished pursuant to demand, and any document referred to in the claim upon which the plaintiff must rely to establish his case” (citations omitted, at para 16). Furthermore, the Corrections and Policing argument ignores Mr. Harpold’s pleadings. As I read his pleadings, Mr.

Harpold argues that Corrections and Policing was motivated by an improper purpose when it withdrew approval for the Fort McMurray job and the other jobs: i.e., continued punishment for his past crimes and as a “set-up” for a breach of his conditions. [ 58 ] Corrections and Policing next argues that the probation officers in question lacked any subjective awareness that their conduct was likely to injure Mr. Harpold. Once again, this is an evidentiary issue. To succeed with his claim, Mr.

Harpold will have to prove this element of the tort on a balance of probabilities; however, for purposes of an application to strike, the facts as pleaded are taken as being true. As discussed above, a fair reading of his claim satisfies me that Mr. Harpold has pleaded that the actions of the probation officers in question were at least reckless and wilfully blind to the harm that would befall him. [ 59 ] Corrections and Policing also argues that the damages sought by Mr. Harpold are the product of the conditions of his recognizance generated by his criminal wrongdoing and not by any unlawful conduct on its part.

Once again, this argument ignores Mr. Harpold’s pleadings in which he alleges that the probation officers acted unlawfully and for an improper motive. b. Conclusion on misfeasance claim [ 60 ] In

summary, while the arguments advanced by Corrections and Policing may disclose a potential defence, which would be vindicated at trial or in a

summary judgment application, the Chambers judge was required to consider the application to strike

Mr. Harpold’s action for disclosing no reasonable cause of action in accordance with the principles set out in Sagon and Swift Current . That is, the Chambers judge had to address this question: Assuming the facts as stated in the statement of claim are true, is it plain and obvious that Mr. Harpold’s claim discloses no reasonable cause of action? As Odhavji emphasized, this is a stringent test: “It is only if the statement of claim is certain to fail because it contains a ‘radical defect’ that the plaintiff should be driven from the judgment [seat]” (at para 15). [ 61 ] Unquestionably, Mr.

Harpold’s statement of claim and reply is a long, logorrheic narrative of fact. It is repetitive and contains a great deal of argument, much of which is irrelevant to his underlying claim. Of course, all of that makes extracting a cause of action a very challenging exercise for the reviewing judge. Nonetheless, that is what was required. Respectfully, in the specific circumstances of this case, I find the Chambers judge erred in failing to assess Mr.

Harpold’s claim through the lens of the tort of misfeasance in public office, which, in turn, caused her to reach the erroneous conclusion that no cause of action had been pleaded. 2. Frivolous and abuse of process [ 62 ] Corrections and Policing argues that even if the claim should not have been struck as disclosing no reasonable cause of action, the Chambers judge did not err in striking it for being frivolous and an abuse of process. [ 63 ] Determining whether a claim is frivolous, by necessity, involves an assessment of its merits and the motivation of the claimant.

Evidence beyond the pleadings may be considered: Merchant at paras 56–57 and Sagon at para 18 . An action is frivolous if it is groundless and lacks substance: see Hope v Pylypow , 2015 SKCA 26 , 384 DLR (4th) 255, or Paulsen v Saskatchewan (Ministry of Environment) , 2013 SKQB 119 , 418 Sask R 96. [ 64 ] The Chambers judge struck Mr. Harpold’s claim on this basis because (

a) it did not spring from contract because the probation officers were public servants obliged to supervise offenders who are placed on conditions by a court, (

b) s. 111 of The Correctional Services Act, 2012 , provides good faith immunity protection for probation officers, and (

c) the lawsuit is a collateral attack on decisions that were made in the Provincial Court. On the latter point, the Chambers judge observed that Mr. Harpold had not specifically pleaded bad faith and that, based on the evidence, she found as a fact that the officers had acted in good faith in accordance with the court order and the interests of public safety. [ 65 ] In my view, although I see no error with the Chambers judge’s analysis of Mr. Harpold’s contract claim, the Chambers Decision cannot be sustained because the Chambers judge failed to take into account the tort of misfeasance in public office.

Furthermore, the good faith immunity protection prescribed by s. 111 is simply a defence and, at that, hinges on a factual finding of good faith. While Mr. Harpold did not specifically plead bad faith, he should be given an opportunity to amend his pleadings to respond directly to this defence. Finally, the collateral attack issue is a red herring. The essence of Mr.

Harpold’s claim rests on the actions of the probation officers in refusing or revoking approvals related to his employment – motivated, he would argue, by arbitrary decision-making and a desire to punish him for his prior criminal convictions. [ 66 ] The Chambers judge erred by failing to assess the merits of the potential misfeasance claim to the extent permitted on an application. That task, accordingly, falls to this Court. In my view, the evidence comprised of a brief affidavit from C.K. – which does not address the misfeasance issues or the conflicting affidavits filed by Mr.

Harpold – is insufficient for this Court to conclude that his claim is groundless and lacks substance. VII. Conclusion [ 67 ] Mr. Harpold’s appeal is allowed and the Chambers Decision is set aside. There will be no order as to costs. [ 68 ] I hasten to add that this decision does not mean a pleading such as Mr. Harpold’s is generally acceptable. His statement of claim is seriously flawed. It fails to comply, in many respects, with the technical rules that govern the form of pleadings, which serve an important purpose.

However, it discloses a cause of action and, for that reason, was sufficient to survive an application to strike. The fact he is self-represented is a relevant consideration. [ 69 ] I would also add that pleading a claim is not the same thing as proving it. While I find Mr. Harpold has substantively pleaded the tort of misfeasance in public office, whether that claim can survive the scrutiny of a

summary judgment application or trial is another matter. “Schwann J.A.” Schwann J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Tholl J.A.” Tholl J.A.