Mallard v. Saskatchewan Financial Services Commission et al., (2014) 438 Sask.R. 316 (CA)

• Judge: Richards, C.J.S., Lane and Herauf, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: October 26, 2011
• Jurisdiction: Saskatchewan
• Citations: (2014), 438 Sask.R. 316 (CA);2014 SKCA 78

Mallard v. Sask. Financial (2014), 438 Sask.R. 316 (CA);

    608 W.A.C. 316

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. AU.001

The Saskatchewan Financial Services Commission (appellant/defendant) v. Brian Norvel Mallard (respondent/plaintiff) and Mutual Fund Dealers Association of Canada/Association Canadienne des Courtiers de Fonds Mutuels and Shaun Devlin (defendants)

(CACV2032)

Mutual Fund Dealers Association of Canada/Association Canadienne des Courtiers de Fonds Mutuels and Shaun Devlin (appellants/defendants) v. Brian Norvel Mallard (respondent/plaintiff) and The Saskatchewan Financial Services Commission (defendant)

(CACV2033; 2014 SKCA 78)

Indexed As: Mallard v. Saskatchewan Financial Services Commission et al.

Saskatchewan Court of Appeal

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

July 24, 2014.

Summary:

Mallard, a mutual funds salesperson, commenced an action in 2010 against the Saskatchewan Financial Services Commission and the Mutual Fund Dealers Association of Canada (the MFDA). In paragraphs 33-39 of his statement of claim, Mallard alleged that the Commission and the MFDA had committed the tort of unlawful interference with economic relations by unreasonably delaying his registration. The Commission and the MFDA applied to strike those paragraphs, on the basis that they did not disclose a cause of action. They relied on certain decisions to the effect that an essential element of the tort of interference with economic relations was the commission of an unlawful act against a third party.

The Saskatchewan Court of Queen's Bench, in a decision reported at [2010] Sask.R. Uned. 203, dismissed the applications to strike on the basis that the law was unsettled. The Commission and the MFDA appealed.

The Saskatchewan Court of Appeal, in a decision reported at (2011), 385 Sask.R. 119; 536 W.A.C. 119, dismissed the appeal. The Commission and the MFDA applied for leave to appeal to the Supreme Court of Canada.

The Supreme Court of Canada, in Bram Enterprises Ltd. et al. v. A.I. Enterprises Ltd. et al., (the A.I. Enterprises decision) reported at (2014), 453 N.R. 273, confirmed that the tort was grounded on an unlawful action directed against, not a plaintiff, but a third party. With respect to the applications for leave to appeal filed by the Commission and the MFDA, the Court remanded the case to the Saskatchewan Court of Appeal for disposition in accordance with the A.I. Enterprises ruling.

The Saskatchewan Court of Appeal allowed the appeals of the Commission and the MFDA, and struck paragraphs 33-39, inclusive, of the statement of claim. Mallard was granted leave, should it be required, to amend his statement of claim as it related to the tort of unlawful interference with economic relations.

Practice - Topic 2122.2

Pleadings - Amendment of pleadings - Statement of claim - On appeal - [See Torts - Topic 5023 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See Torts - Topic 5023 ].

Torts - Topic 5023

Interference with economic relations - Elements of liability - Use of unlawful means - The plaintiff, a mutual funds salesperson, commenced an action in 2010 against the Saskatchewan Financial Services Commission and the Mutual Fund Dealers Association of Canada - In paragraphs 33-39 of his statement of claim, the plaintiff alleged that the defendants had committed the tort of unlawful interference with economic relations by unreasonably delaying his registration - The defendants applied to strike those paragraphs on the basis that they did not disclose a cause of action - The chambers judge found the law not sufficiently clear to warrant striking the claim - The Court of Appeal dismissed the appeal - The defendants applied for leave to appeal to the Supreme Court of Canada - In the meantime, the Supreme Court of Canada confirmed that the tort was grounded on an unlawful action directed against a third party (Bram Enterprises Ltd. et al. v. A.I. Enterprises Ltd. et al.), and remanded this case to the Court of Appeal - The defendants submitted that paragraphs 33-39 should be struck because of the ruling in the A.I. Enterprises decision - The plaintiff sought an order allowing him to amend his pleadings - The Saskatchewan Court of Appeal struck paragraphs 33-39 because they did not allege the commission of an unlawful act or acts against a third party - Given that the governing law had changed or been substantially clarified in the wake of A.I. Enterprises, the plaintiff was granted leave, if it was required, to amend his statement of claim in relation to the cause of action in unlawful interference with economic relations.

Cases Noticed:

Bram Enterprises Ltd. et al. v. A.I. Enterprises Ltd. et al. (2014), 416 N.B.R.(2d) 1; 1079 A.P.R. 1; 2014 SCC 12, appld. [para. 5].

Counsel:

Gordon J. Kuski, Q.C., and Philip J. Gallet, for the Saskatchewan Financial Services Commission;

James D.G. Douglas and Caitlin R. Sainsbury, for Mutual Fund Dealers Association of Canada/Association Canadienne des Courtiers de Fonds Mutuels and Shaun Devlin;

Naheed Bardai, for Brian Norvel Mallard.

This appeal was heard on October 26, 2011, and remanded to May 1, 2014, before Richards, C.J.S., Lane and Herauf, JJ.A., of the Saskatchewan Court of Appeal. In reasons written by Richards, C.J.S., the Court delivered the following judgment, dated July 24, 2014.