Hope v. Gourlay, 2015 SKCA 27

• Judge: Richards, C.J.S., Caldwell and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: January 28, 2015
• Jurisdiction: Saskatchewan
• Citations: 2015 SKCA 27;(2015), 457 Sask.R. 43 (CA)

Hope v. Gourlay (2015), 457 Sask.R. 43 (CA);

    632 W.A.C. 43

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. MR.063

Kevin Hope and Fay Hope (appellants/plaintiffs) v. Robert Gourlay (respondent/defendant)

(CACV2580; 2015 SKCA 27)

Indexed As: Hope v. Gourlay

Saskatchewan Court of Appeal

Richards, C.J.S., Caldwell and Herauf, JJ.A.

March 27, 2015.

Summary:

The Hopes were developing land in a municipality. They disagreed with the municipality as to who should bear the costs of relocating a road. Gourlay was the reeve of the municipality. The Hopes alleged that they were defamed by Gourlay at an annual general meeting. Gourlay moved to strike the claim as failing to disclose a reasonable cause of action and/or as scandalous, frivolous and vexatious.

The Saskatchewan Court of Queen's Bench granted the motion and awarded Gourlay double solicitor and client costs. The Hopes appealed.

The Saskatchewan Court of Appeal allowed the appeal only to the extent of setting aside the costs award. The chambers judge had not erred in striking the claim.

Libel and Slander - Topic 684

The statement - What constitutes defamatory statements - Libel - What constitutes a defamatory statement - [See second Libel and Slander - Topic 6128 ].

Libel and Slander - Topic 6128

Practice - Pleadings - Statement of claim - Defamation - The chambers judge dismissed the plaintiffs' action in defamation on the basis that, inter alia, the statement of claim failed "to plead the exact words complained of, which are to be set out verbatim in the pleadings" - The Saskatchewan Court of Appeal held that the chambers judge had erred in taking this approach, which was "grounded on an outdated principle" - There was no rule or principle of pleading to the effect that a claim for defamation should be struck simply and only because it did not reproduce verbatim the words alleged to be defamatory - A plaintiff should identify the exact words at the root of the claim if that was possible - If that was not possible, the claim might still be allowed to stand if the pleading identified the offending communication with sufficient precision and particularity that the defendant knew the case against him or her and was able to plead to it and prepare a defence - See paragraphs 17 to 25.

Libel and Slander - Topic 6128

Practice - Pleadings - Statement of claim - Defamation - The Hopes were developing land in a municipality - They disagreed with the municipality as to who should bear the costs of relocating a road - Gourlay was the reeve of the municipality - The Hopes alleged that they were defamed by Gourlay at an annual general meeting - A chambers judge granted Gourlay's motion to strike the claim as failing to disclose a reasonable cause of action - The Saskatchewan Court of Appeal dismissed the Hopes' appeal - There was no lack of precision in identifying the alleged defamatory words - Further, the words were necessarily communicated to identifiable third parties and the Hopes had pled sufficient facts to support their allegations of bad faith - However, there was "simply nothing in the impugned words, in and of themselves, that would or could lower the Hopes' reputations in the eyes of a reasonable person" - The Hopes had not pled any extrinsic facts that would make Gourlay's otherwise innocent comments defamatory in their effect - This was not a superficial drafting error, but a fundamental flaw in the Hopes' theory of Gourlay's liability - The chambers judge had not erred in striking the claim - See paragraphs 26 to 43.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See second Libel and Slander - Topic 6128 ].

Practice - Topic 7454

Costs - Solicitor and client costs - Entitlement to - Improper, irresponsible or unconscionable conduct - The Hopes alleged that they had been defamed by Gourlay - A chambers judge granted Gourlay's motion to strike the claim as failing to disclose a reasonable cause of action and/or as scandalous, frivolous and vexatious - The chambers judge awarded Gourlay double solicitor and client costs - The Saskatchewan Court of Appeal allowed the Hopes' appeal from the costs award - A defendant was not entitled to solicitor and client costs simply because a claim was proven to be meritless or was being struck as scandalous, frivolous or vexatious - Normally, solicitor and client costs were awarded due to behaviour related to the prosecution or defence of a claim - As there was no suggestion that the Hopes had acted scandalously, outrageously or reprehensibly in the conduct of this litigation, there was no basis for an award of solicitor and client costs - Further, the award of double solicitor and client costs appeared to be unprecedented - The chambers judge had failed to act judicially - The award was set aside - See paragraphs 46 to 51.

Practice - Topic 7457

Costs - Solicitor and client costs - Entitlement to - Where claim or defence irrelevant, scandalous or without merit - [See Practice - Topic 7454 ].

Practice - Topic 7466.5

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - Defamation actions - [See Practice - Topic 7454 ].

Practice - Topic 8301.2

Costs - Appeals - Appeals from order granting or denying costs - Variation of motion judge's decision - [See Practice - Topic 7454 ].

Cases Noticed:

R.L.T.V. Investments Inc. v. Saskatchewan Telecommunications et al., [2009] 9 W.W.R. 15; 331 Sask.R. 78; 460 W.A.C. 78; 2009 SKCA 83, refd to. [para. 16].

Mann et al. v. Hawkins et al. (2011), 385 Sask.R. 59; 536 W.A.C. 59; 2011 SKCA 146, refd to. [para. 16].

St. Pierre v. Bigstone et al., [2011] 5 W.W.R. 594; 371 Sask.R. 35; 518 W.A.C. 35; 2011 SKCA 34, refd to. [para. 16].

Sagon v. Royal Bank of Canada et al. (1992), 105 Sask.R. 133; 32 W.A.C. 133 (C.A.), refd to. [para. 17].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 17].

Grant et al. v. Torstar Corp. et al., [2009] 3 S.C.R. 640; 397 N.R. 1; 258 O.A.C. 285; 2009 SCC 61, refd to. [para. 18].

Berry v. Retail Merchants Association, [1924] 2 D.L.R. 916 (Sask. C.A.), not folld. [para. 20].

Pylot et al. v. Cariou et al. (1987), 60 Sask.R. 116 (Q.B.), refd to. [para. 21].

MacKay et al. v. Stomp et al. (1992), 103 Sask.R. 168 (Q.B.), refd to. [para. 21].

Symons v. Toronto-Dominion Bank, [1997] Sask.R. Uned. 95; [1997] 9 W.W.R. 132 (Q.B.), refd to. [para. 21].

Duke et al. v. Puts (1997), 161 Sask.R. 299 (Q.B.), refd to. [para. 22].

R.E.L. v. J.G-S. (2000), 191 Sask.R. 204; 2000 SKQB 74, refd to. [para. 22].

Bell et al. v. Xtreme Mining & Demolition Inc. et al. (2014), 448 Sask.R. 255; 2014 SKQB 177, refd to. [para. 22].

Wilchuk v. W & W Enterprises Ltd. et al., [2002] Sask.R. Uned. 191; 2002 SKQB 471, refd to. [para. 22].

Lysko v. Braley et al. (2006), 212 O.A.C. 159; 79 O.R.(3d) 721 (C.A.), refd to. [para. 23].

Central Minera Corp. v. Lavarack et al., [2001] B.C.T.C. 349; 2001 BCSC 349, refd to. [para. 23].

550433 Alberta Ltd. v. Stealth Alarms Systems Inc. et al. (1998), 234 A.R. 111; 1998 ABQB 1081, refd to. [para. 23].

McNabb v. Equifax Canada Inc. et al. (1999), 143 Man.R.(2d) 72 (Q.B.), refd to. [para. 23].

Hynes v. Suncor Energy Inc. (2014), 352 Nfld. & P.E.I.R. 69; 1097 A.P.R. 69; 2014 NLTD(G) 97, refd to. [para. 23].

Wallace v. Lawrence (2002), 203 N.S.R.(2d) 197; 635 A.P.R. 197; 2002 NSCA 36, refd to. [para. 23].

Siemens et al. v. Bawolin et al., [2002] 11 W.W.R. 246; 219 Sask.R. 282; 272 W.A.C. 282; 2002 SKCA 84, refd to. [para. 47].

Hope v. Pylypow et al. (2015), 457 Sask.R. 55; 632 W.A.C. 55; 2015 SKCA 26, refd to. [para. 48].

Authors and Works Noticed:

Brown, Raymond, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (2nd Ed.) (2012 Looseleaf, Release 4), vol. 5, s. 19.1 [para. 39].

Fridman, Gerald Henry Louis, The Law of Torts in Canada (3rd Ed. 2010), p. 615 [para. 37].

Osborne, Philip, The Law of Torts (4th Ed. 2011), p. 409 [para. 37].

Counsel:

Kevin Hope, appearing on his own behalf;

Ashley Smith and Tyson Bull, for the respondent.

This appeal was heard on January 28, 2015, by Richards, C.J.S., Caldwell and Herauf, JJ.A., of the Saskatchewan Court of Appeal. On March 27, 2015, Richards, C.J.S., delivered the following reasons for judgment for the court.