Douglas Wilson Appellant (Plaintiff) v. Saskatchewan Water Security Agency, 2023 SKCA 16

Court of Appeal for Saskatchewan Docket: CACV3909 Citation: Wilson v Saskatchewan Water Security Agency , 2023 SKCA 16 Date: 2023-01-27 Between: Douglas Wilson Appellant (Plaintiff) And Saskatchewan Water Security Agency Respondent (Defendant) Before: Barrington-Foote, Tholl and Kalmakoff JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Barrington-Foote In concurrence: The Honourable Mr. Justice Tholl The Honourable Mr. Justice Kalmakoff On appeal from: QBG 63 of 2019, Swift Current, Appeal heard: February 10, 2022 Counsel: Jean-Pierre Jordaan for the Appellant Justine A.

Shenher for the Respondent Barrington-Foote J.A. I. INTRODUCTION [ 1 ] In a fiat dated September 3, 2021 [Fiat], a Chambers judge ordered that Douglas Wilson’s defamation claim against the Water Security Agency [WSA] be struck pursuant to Rule 7-9(2)(

a) of The Queen’s Bench Rules , on the basis that the second amended statement of claim [statement of claim] disclosed no reasonable cause of action. Mr. Wilson has appealed the Fiat. He alleges that the Chambers judge erred in finding that the statement of claim, together with his responses to demands for particulars, did not contain sufficient information to identity the allegedly defamatory statements. Mr.

Wilson also contends that the Chambers judge erred by failing to order that the statement of claim could be amended to specifically identify the missing dates, identities and words , which had been disclosed by the WSA in affidavit evidence filed in support of its application in the alternative to strike the claim pursuant to Rule 7-9(2)(

b) or (e). [ 2 ] For the reasons that follow, I have concluded that the statement of claim should not have been struck, and that the appeal should be allowed. II. BACKGROUND [ 3 ] The WSA is a Saskatchewan Crown Corporation that has regulatory authority in relation to water bodies in Saskatchewan pursuant to The Water Security Agency Act , SS 2005, c W-8.1 . Mr. Wilson is a rancher who owns farmland adjacent to a body of water that has been subject to regulation and, for that reason, has interacted with employees of the WSA.

The defamation claim that was struck by the Chambers judge is based on statements allegedly made by the WSA and its employees as to Mr. Wilson’s conduct in the course of those interactions. [ 4 ] The original statement of claim in the underlying action was issued May 24, 2019. It was amended first on May 27, 2019, and again on November 12, 2019. Among other things, the amended statement of claim contains the following allegations: 3. The Plaintiff and Defendant have been in a dispute over the Defendants management of the water supply to the Maple Creek (Creek not town) for a number of years. 4.

On May 23, 2019 an employee of the Defendant, acting within the scope of his employment, wrote a letter to the Plaintiff's legal representative with the following words (Defamatory Words). “.. .because of past comments made by Mr. Wilson to WSA officials alluding to violence on his part against WSA officials . ..” 5.

Employees of the Defendant whom are unknown to the Plaintiff, for which the Defendant are vicariously liable, are saying to each other and to other unknown persons (verbally or in writing) that the Plaintiff is a violent person. [ 5 ] The statement of claim expressly alleges that the words quoted [Defamatory Words] are defamatory and that Mr. Wilson intends to rely on the entirety of those words and on all earlier and subsequent versions published by the WSA and its employees. It asserts that the natural and ordinary meaning of the Defamatory Words is that Mr.

Wilson is a violent person who has threatened the WSA’s representatives and that they impute criminal acts to him. It claims that the Defamatory Words are false and that the WSA and its employees were “subjectively actuated by malice”.

[6] The WSA requested particulars from Mr. Wilson. In his first response, Mr. Wilson explained that he had inferred that theallegations of violence had been made by persons other than the WSA’s general counsel, Ali’i Lafontaine, the author of the May 23, 2019letter to Mr. Wilson’s lawyer. However, he stated that he did not know exactly who had made those allegations and to whom they hadbeen made, other than to Mr. Lafontaine.

He also responded that he did not know the exact words that had been used at this time, but thatthey were to the effect that he was a violent person and/or had alluded to violence against the WSA’s officials and representatives. [7] Mr. Wilson’s second response to the request for particulars [second response] was as follows: 1. What alleged defamatory words were spoken or written? a. Words to the effect or sting (sic) that the Plaintiff is or may be a dangerous person and has alluded to violence towards employees,officials or representatives of the Defendant; 2. Who spoke or wrote the alleged defamatory words? b.

Employees, officials or representatives of the Defendant who visited the Plaintiff’s ranch on or about May 8, 2018, and otherinspection dates, whose identities are unknown to the Plaintiff; 3. When were the alleged defamatory words spoken or written? c. On or about May 8, 2018, and other inspection dates the employees, officials or representatives of the Defendant visited thePlaintiff’s ranch; 4. To whom were the words spoken or written? b.

To the employees, officials or representatives of the Defendant who visited the Plaintiff’s ranch on or about May 8, 2018, andother inspection dates as well as their supervisors. [8] In the Fiat, the Chambers judge first outlined the law to be applied on an application to strike pursuant to Rule 7-9(2)(a), citingSagon v Royal Bank of Canada (1992), (SK CA), 105 Sask R 133 (CA).

She explained, relying on Grant v Torstar,2009 SCC 61, [2009] 3 SCR 640 [Grant], that a plaintiff in a defamation action must prove three things: that the impugned words aredefamatory; that they referred to the plaintiff; and that they were published by being communicated to at least one person other than theplaintiff. She concluded that the first two requirements were not contentious, as the WSA had applied to strike the claim solely on thebasis of the third of these three elements. [9] As to that third element, the Chambers judge noted that Mr.

Wilson alleged that there had been communication to his lawyer,to persons employed with the WSA, and to other unknown persons. She held that communication to Mr. Wilson’s lawyer could notconstitute communication to an “other” person within the meaning of the third requirement. Mr. Wilson concedes that she was correct inso finding. [10] As to communication with persons other than the WSA’s lawyer, the Chambers judge concluded that the statement of claim didnot contain sufficient particulars to meet the test that applies where the application is to strike a defamation claim.

In this context, she citedthe approach adopted by Richards C.J.S. in Hope v Gourlay, 2015 SKCA 27, 457 Sask R 43 [Hope], which was as follows: [25] A plaintiff must, of course, identify the exact words at the root of a claim for defamation if that is possible. But, when it is not, aclaim might still be allowed to stand if the pleading nonetheless identifies the offending communication with sufficient precision andparticularity that the defendant knows the case against him or her and is able to plead to it and prepare his or her defence.

Any assessmentin this regard must be undertaken with an appreciation for the fact that, in a defamation action, the words said to be defamatory are thevery heart of the plaintiff's claim. The defendant should not be required to shoot at a fuzzy or a moving target. [11] In the view of the Chambers judge, neither the statement of claim nor the particulars would enable the WSA to know the case ithad to meet, as it would not know who had spoken or written the words, who had heard or seen them, and when, where or how often theyhad done so.

For that reason, she ordered that the claim be struck as disclosing no reasonable cause of action pursuant to Rule 7-9(2)(a). [12] Having so found, the Chambers judge declined to consider whether the claim should be struck pursuant to Rule 7-9(2)(

b) or (e)as scandalous, frivolous, vexatious or an abuse of process, which were the alternative grounds advanced by the WSA. The WSA had filedaffidavit evidence in support of that aspect of the application. In his affidavit, Mr. Lafontaine deposed that WSA employees were expectedto report aggressive or violent behaviour or actions that might escalate to violence, to protect the safety of field employees who oftenworked in remote locations in small teams. He attested that field employees had reported interactions with Mr.

Wilson to the legaldepartment and their superiors as a result of the WSA’s interactions with him, which included ongoing litigation. [13] As to the letter of May 23, 2019, Mr. Lafontaine explained that its purpose was to request Mr. Wilson’s lawyer to advise Mr.Wilson not to interfere with the WSA’s pending work, and that the WSA legal department had been told by a field employee, KevinWingert, that Mr. Wilson had indicated that he was prepared to be violent to get his way. Mr. Lafontaine also stated that the May 23 letterwas sent only to Mr. Wilson’s lawyer. That letter, which was appended to Mr.

Lafontaine’s affidavit, contained the following statement: Due to the confusion related to the title and because of the past comments made by Mr. Wilson to WSA officials alluding to violence onhis part against WSA officials, require Mr. Wilson’s assurance that he will not attempt to prevent WSA officials or their authorized agentsfrom entering the land in question to perform their duties. If required, we will obtain an ex parte court order for entry and other relief asnecessary.

In any event we will be contacting the local RCMP detachment to advise them of our attendance and our legislative authority toattend the property… [14] The WSA also filed an affidavit of Mr. Wingert, its Director of Rural Water Services. Mr. Wingert confirmed that it was hisstandard practice to report rude or abusive behaviour and threatening actions directed at the WSA or its employees. He stated that he hadhad many encounters with Mr. Wilson and had reported interactions that were aggressive or of a concerning nature to his superiors and to

the WSA legal department. Mr. Wingert deposed that Mr. Wilson had, in a telephone conversation, threatened to “make things ugly” forthe WSA, as it was destroying his livelihood, and that he had said he would “turn violent”. These allegations were repeated in a March 16,2016, email from Mr. Wingert directed to a lawyer in the WSA legal department, and copied to four WSA staff, that was appended to hisaffidavit. [15] There was also a June 25, 2018, email from Mr.

Wingert to a lawyer in the WSA legal department, copied to four WSAemployees, including three of the four employees who had been copied with the March 16 email. The June 25 email contained Mr.Wingert’s report of interactions with Mr. Wilson, including as to Mr. Wilson’s demeanour toward Mr. Wingert and other unnamed WSAemployees who attended a site to do remedial work on May 8, 2018. It stated that Mr. Wingert had referred to WSA staff as “assholes,idiots and liars”, and that Mr. Wilson’s hired man had “aggressively jumped out of Mr. Wilson’s vehicle”, had been told to stop byMr.

Wilson, and had “stood in an intimidating manner” outside the truck until the WSA staff left the site. [16] Mr. Wilson filed an affidavit in response to the Lafontaine and Wingert affidavits. He denied that he had tried to intimidate orhad threatened violence against any representative of the WSA or that he was aggressive or threatening toward Mr. Wingert during theirtelephone conversation. He claimed that he had threatened legal action but had not threatened violence in any way.

He asserted that “therumours spread by [the WSA] have been following him around” and that he believed they were “made out of malice and with the intentionof painting [him] as a troublemaker, so people and other government organizations lose interest in assisting [him]”. III. ANALYSIS A. What is the legal test on an application to strike a statement of claim asdisclosing no reasonable claim in defamation? [17] I would first note that, with the one exception discussed below, the Chambers judge correctly identified the law that governs anapplication to strike pursuant to Rule 7-9(2)(a). The

summary of the principles to be applied on such an application that is most oftenreferred to by this Court is found in Collins v Saskatchewan Rural Legal Aid Commission, 2002 SKQB 201, which adopts the reasoning inSagon: [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.)). [18] This statement accords with the principles cited and the approach taken by the Chambers judge. [19] However, the Chambers judge did not refer to another principle that was engaged in this case. As Ryan-Froslie J.A. recentlyreiterated in Yashcheshen v Teva Canada Ltd., 2022 SKCA 49, [2022] 8 WWR 60, “where feasible a plaintiff should be given anopportunity to amend their pleadings to correct deficiencies before those pleadings are struck” (at para 43). Rule 7-9(1)(

b) speaks to thisauthority, providing that where one or more of the conditions specified in Rule 7-9(2) exist, the court may order the pleading or otherdocument to be amended. [20] The court may permit amendments to cure a defective pleading even if the pleader has not applied to amend: Taheri v Buhr,2021 SKCA 9 at para 80, 456 DLR (4th) 306; Thirsk v Saskatchewan (Public Guardian and Trustee), 2017 SKQB 66 at para 11 [Thirsk].Indeed, as a rule, an order permitting such an amendment should be made if it is apparent that it would correct the defect.

This approachaccords with Sherstobitoff J.A.’s comments in Sagon, referring to Rule 173, the predecessor to Rule 7-9: [17] Rule 173 permits amendment rather than striking out in appropriate cases.

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

On the other hand, if the court is satisfied that the pleading discloses no reasonable cause of action ordefence, as the case may be, and that no amendment, however ingenious, will correct or cure the defect, the pleading will be struck outand the action dismissed or judgment entered accordingly. [footnotes omitted] (emphasis added) [21] The law has not changed on this point, despite the differences between Rule 173 and Rule 7-9. I note that same generousapproach is taken where there has been an application to amend.

As Ryan-Froslie J.A. commented in Canada (Attorney General) vMerchant Law Group LLP, 2017 SKCA 62, [2017] 10 WWR 664:

[35] …This Court has repeatedly stated that a Chambers judge should only refuse to amend pleadings where the proposed amended pleadings could be struck pursuant to Rule 7-9 (formerly Rule 173): Rekken Estate v. Health Region No. 1 , 2015 SKCA 36 (Sask CA) at para 9 , (2015), 384 DLR (4th) 174 (Sask CA) [Rekken]; Boart Longyear Inc. v. Mudjatik Enterprises Inc. , 2016 SKCA 22 (Sask CA) at para 24 , [2016] 5 WWR 40 (Sask CA) [Boart]. [ 22 ] Two other points bear emphasis.

First, the principle that a judge may consider only the claim, the response to a request for particulars, and documents referred to in the claim that are relied on by the plaintiff, mirrors Rule 7-9(3), which provides that no evidence is admissible on an application pursuant to Rule 7-9(2)(a). This rule precludes the consideration of any evidence, regardless of how it came to be before the court, including evidence filed in support of an alternative application to strike pursuant to Rule 7-9(2)(b), (c), (

d) or (e). However, that does not mean that a judge who has concluded that a pleading is defective cannot take account of such evidence when deciding whether the party pleading should be permitted to amend to cure the defect. That is so regardless of whether an application to amend has been filed. [ 23 ] Second, the requirement to plead sufficient facts to establish all elements of the cause of action is reflected in Rule 13-8(1)(c), which provides that a pleading must contain “a statement in

summary form of the material facts on which the party pleading relies for the party’s claim or defence, but not the evidence by which the facts are to be proved”. The Chambers judge correctly identified the three elements of a cause of action in defamation that must be proven, and thus pleaded Hope at para 17 and Grant at para 28 . [ 24 ] What, then, is sufficient to meet this requirement?

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

This is the lens through which a judge hearing such an application — including an application to strike a defamation claim — should determine whether the pleading passes muster. [ 25 ] This approach is consistent with the reasoning in Hope . Hope confirmed that the requirement to plead material facts which would, if made out, establish the claim, no longer means that the pleading must reproduce verbatim the allegedly defamatory words.

Rather, the issue is whether the impugned language is identified with sufficient precision and particularity that the defendant knows the case against them and is able to plead to it and prepare their defence. [ 26 ] The same approach should be applied in determining whether there is sufficient notice of the other facts necessary to identify the allegedly defamatory statements. This too accords with the focus on whether the pleadings adequately serve their purpose.

It also recognizes that a plaintiff may not know or be reasonably capable of determining exactly what was communicated, when, by whom and to whom, other than in the course of the action. The pleadings may still survive, however, if it is readily apparent that the allegations in the statement of claim and particulars are sufficient to enable the defendant to identify the allegedly defamatory language and its publication to the extent necessary to enable them to plead and prepare their defence. B.

Did the Chambers judge err in finding that the statement of claim, together with the particulars, did not disclose a reasonable cause of action? [ 27 ] I will now deal with the application of these principles to this appeal. [ 28 ] In his factum, Mr. Wilson lists the following facts that he says were pled in the statement of claim or disclosed in the responses to the request for particulars: (

a) Employees of WSA who are unknown to Wilson for which WSA is vicariously liable are saying to each other and to other unknown persons (verbally or in writing) that Wilson is a violent person. (

b) The words were to the effect or sting (sic) that Wilson is or may be a dangerous person and has alluded to violence towards employees, officials or representatives of the WSA. (

c) The words were spoken by employees, officials or representatives of WSA who visited Wilson's ranch on or about May 8, 2018, and other inspection dates, as well as other persons whose identities are unknown to Wilson. (

d) The words were spoken or written to the employees, officials or representatives of WSA who visited Wilson's ranch on or about May 8, 2018, and other inspection dates, as well as their supervisors. (

e) At all material times, these employees acted within the course and scope of their duties when they wrote the letter and when they spread the rumour that Wilson is a violent person. (

f) The defamatory words are, in their entirety and in their context, as well as the innuendo arising from them, false and defamatory of Wilson. WSA and its employees were subjectively actuated by malice when the defamatory words were published. [ 29 ] I agree that this constitutes a fair

summary of facts that were pled or disclosed. I would add that the statement of claim and responses to particulars also specifically identify Mr. Lafontaine as a WSA employee who was told by others of alleged threats of violence by Mr. Wilson. [ 30 ] The question, then, is whether these allegations were sufficient to meet the test described above? Although the exact words are not identified, the nature of the impugned communications — that is, alleged threats of violence toward WSA employees, agents or representatives — are sufficiently clear for this purpose. The Chambers judge did not suggest otherwise.

The identity of the employees, agents and representatives of WSA that visited Mr. Wilson’s ranch on May 8, 2018, and on other inspection dates, and their supervisors, while not known to Mr. Wilson, should be known to the WSA. The WSA should be able to ask present and former employees, agents or representatives if they discussed or reported, or received reports of, threats of violence by Mr. Wilson in the context of the dealings with

the WSA identified by Mr. Wilson, as well as what they said or wrote, when they did so, and to whom. [31] In light of all of this, it is my view that the allegations by Mr. Wilson were sufficient to enable the WSA to plead and to prepareits defence in relation to this group of people, at the times specified in the second response to particulars. The same cannot be said for theallegation that “other persons whose identities are unknown to Wilson” defamed Mr.

Wilson [32] I note that in reaching this conclusion, I have not considered the evidence filed by the WSA in support of its Rule 7-9(2)(b)application, which included Mr. Wingert’s emails. Just as it is not open to a judge hearing a Rule 7-9(2)(

a) application to take account ofsuch evidence, it is not open to this Court when undertaking a correctness review of a decision that a claim is defective to do so. However,that does not mean that such evidence cannot be considered when the judge is deciding whether they should permit a defective pleading tobe amended. That issue is addressed below. C.

Did the Chambers judge err by failing to order that the statement of claimbe amended to specifically identify the missing dates, identities and words? [33] In light of my conclusion that the claim should not have been struck, it is not strictly necessary to determine if the Chambersjudge erred by failing to order that the statement of claim could be amended to cure the defects. However, it is useful to address that issuefor the sake of clarity. [34] In this context, I would first note that it was clear on the face of it that the affidavit evidence filed by the WSA disclosedcommunications by Mr.

Wingert that fell squarely within the ambit of the more general allegations contained in the pleadings. Thatevidence, which included emails directed to other WSA employees, confirmed that the WSA was able to identify the who, what, whenand to whom of at least these instances of allegedly defamatory statements with the characteristics identified by those pleadings andparticulars. [35] The Chambers judge was obliged to take account of this evidence when deciding whether the pleading should be struck, orwhether she should instead order that it be struck only if Mr.

Wilson failed to file an amendment that cured the defect. Given that theaffidavit clearly disclosed sufficient particulars of alleged defamatory statements, she should have made such an order. [36] Given that the statement of claim and particulars disclose a cause of action, it is for Mr. Wilson to decide if he shouldnonetheless seek to further amend the statement of claim, whether as a result of the evidence filed by the WSA, or as a result of anyfurther evidence that may come to light while the action is ongoing.

The WSA is entitled to know what is in issue, and to be able to pleadand to prepare its defence, and to effectively engage in the litigation processes contemplated by The Queen’s Bench Rules. D. Did the Chambers judge err by failing to strike the statement of claimpursuant to Rule 7-9(2)(

b) or (e)? [37] Rule 7-9(2)(

b) provides that a pleading may be struck if it scandalous, frivolous or vexatious. Rule 7-9(2)(

e) provides that itmay be struck if it is otherwise an abuse of process. The WSA submits that Mr. Wilson’s claim should be struck on these grounds as well.It argues that the evidence it had filed was sufficient to enable this Court to make that decision. [38] This ground of appeal can be readily disposed of. The evidence filed by the WSA does not amount to a denial that any of itsemployees made the allegedly defamatory statements, at least to others within the WSA. Rather, it confirms that at least one WSAemployee properly reported that Mr. Wilson had made threats and explains why they felt it necessary to do so.

In substance, the WSAasserts truth as a defence. [39] However, Mr. Wilson’s affidavit denies those allegations. He claims that they are part of a smear campaign to discredit him andhis concerns about the environment.

Given this dispute over the crucial facts, I am unable to conclude that the claim is scandalous,frivolous, vexatious or an abuse of process, as the evidence is far from sufficient to enable this Court to make the credibilitydeterminations that would be necessary to do so. [40] The WSA also argues that the claim is frivolous and an abuse of process because the communications at issue were made by itsemployees in the course of carrying out their duties and are accordingly protected by qualified privilege. However, the WSA does not takeissue with Mr.

Wilson’s submission that it could be liable if its employees’ allegations as to what he said were malicious, as Mr. Wilsonclaims. That argument is based on the content of those allegations and his evidence that they are entirely unfounded. [41] Mr. Wilson is correct on this point. Malice does defeat the defence of qualified privilege. That was affirmed by McLachlinC.J.C. in Grant, as follows: [30] Both statements of opinion and statements of fact may attract the defence of privilege, depending on the occasion on which theywere made.

Some “occasions”, like Parliamentary and legal proceedings, are absolutely privileged. Others, like reference letters or creditreports, enjoy “qualified” privilege, meaning that the privilege can be defeated by proof that the defendant acted with malice: seeHorrocks v. Lowe (1974), [1975] A.C. 135 (U.K. H.L.). … [42] Further, malice may be found even if the plaintiff has not proven express malice.

As Lord Diplock said in Horrocks v Lowe(1974), 1975 AC 135, if the defendant “publishes untrue defamatory matter recklessly, without considering or caring whether it be true ornot, he is in this, as in other branches of the law, treated as if he knew it to be false” (at 150): see also Botiuk v Toronto Free PressPublications Ltd., (SCC), [1995] 3 SCR 3 at paras 96–97; Senft v Vigneau, 2020 YKCA 8 at para 88. [43] For these reasons, even if the statements at issue were made by WSA employees in the course of their duties, the defence ofqualified privilege could be defeated by a finding of malice.

Here, too, it is not open to this Court to decide that there was no malicewithout making credibility determinations that cannot be made on the basis of the record before us.

[ 44 ] Finally, I note that the defence of solicitor-client privilege was raised in passing by the WSA. Even if that defence could made out in relation to reports made by WSA employees to Mr. Lafontaine, an issue that was not addressed by the WSA, the WSA did not explain why it would protect communications made by Mr. Wingert or others to their supervisors and other colleagues. That too is an issue that could not be resolved on the basis of the limited evidence and submissions before this Court. IV. CONCLUSION [ 45 ] In the result, I have concluded that Mr. Wilson’s appeal should be allowed.

The decision by the Chambers judge that the claim be struck and the award of costs are set aside. Mr. Wilson asked for costs in this Court, but not in the court below. I would award him costs of this appeal on Column 3 of the Tariff. “ Barrington-Foote J.A. ” Barrington-Foote J.A. .I concur. “ Tholl J.A. ” Tholl J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.