Executive Summary: Key Legal and Evidentiary Issues

• Peter John Nygard commenced a defamation action in 2023 against the Canadian Broadcasting Corporation, Timothy Sawa, and April Telek arising from CBC stories about his alleged sexual misconduct while he operated an international fashion business.
   
• Central to the defendants' motions to strike is a nearly 700-page affidavit sworn by CBC journalist Timothy Sawa, which Nygard cross-examined on March 10, 2025, generating eleven refused undertakings that form the subject of this motion.
   
• Both an associate judge and a Court of King's Bench judge dismissed Nygard's motion to compel production of answers to the refused undertakings, finding the requested information irrelevant to the motions to strike.
   
• Leave to appeal an interlocutory order to the Manitoba Court of Appeal requires satisfying two criteria: whether the proposed appeal has sufficient merit, and whether it is of sufficient importance to warrant the attention of the province's highest court.
   
• Because the defendants' motions proceed under rule 25.11(1)(d) — failure to disclose a reasonable cause of action — no evidence beyond the face of the pleading is admissible, rendering the disputed undertakings irrelevant to the motion to strike.
   
• Granting leave would be contrary to the architecture of civil appellate proceedings, as Nygard had already obtained one fresh-hearing appeal and was effectively seeking to re-argue the same points rejected by the judge.

Facts of the case

In 2023, Peter John Nygard commenced a defamation action in Manitoba against the Canadian Broadcasting Corporation (CBC), journalist Timothy Sawa, and April Telek. The claim arose from stories published by the CBC about Nygard's alleged sexual misconduct during his time operating an international fashion business. In response, each of the defendants moved to strike the claim on the grounds that it is scandalous, frivolous, or vexatious; constitutes an abuse of the court's process; or fails to disclose a reasonable cause of action, pursuant to rules 25.11(1)(b)–(d) of the Manitoba King's Bench Rules, Man Reg 553/88.

In support of their motions to strike, the defendants filed an affidavit sworn by Sawa, a journalist with the CBC. The affidavit, nearly 700 pages including attachments, addressed the journalistic history of reporting on Nygard's alleged sexual misconduct, alleged procedural irregularities in the claim, evidence as to Nygard's reputation in the community, assertions about his improper use of the courts to intimidate, claims as to the likely truth of the sexual misconduct allegations, and a history of his criminal proceedings in Canada and the United States.

On March 10, 2025, Nygard cross-examined Sawa on the affidavit. Sawa provided twenty-five undertakings during the cross-examination. Counsel for Sawa took eleven further requests for undertakings under advisement, later refusing them on the basis of relevance and that they went beyond the proper scope of cross-examination (the refused undertakings). The refused undertakings related primarily to information sought by Nygard about the CBC's reporting in relation to a 1993 sexual assault allegation said to have occurred in Winnipeg, Manitoba, at his company's Canadian headquarters. That allegation had given rise to a criminal prosecution against Nygard, which was later stayed by the Provincial Court because of lost evidence (see R v Nygard, 2025 MBPC 64; R v Nygard, 2025 MBPC 43).

Nygard moved for an order compelling production of answers to the refused undertakings. On April 9, 2025, an associate judge dismissed the motion, finding that the requested production, prior to discovery, was not appropriate or proportionate, as the information sought was not relevant to the issues on the motions to strike the claim. Nygard appealed that order to a judge of the Court of King's Bench. On October 30, 2025, the judge dismissed the appeal for reasons similar to those of the associate judge. Nygard then moved for leave to appeal that interlocutory order to the Court of Appeal of Manitoba.

Policy and legislative provisions at issue

The threshold question on the motion was whether leave to appeal was required under section 25.2 of The Court of Appeal Act, CCSM c C240. Section 25.2(1) provides that an appeal must not be made to the Court of Appeal with respect to an interlocutory order of a Court of King's Bench judge unless leave to appeal is granted by a judge or the court. The parties agreed that none of the exceptions set out in section 25.2(2) — which include proceedings involving the liberty of a person, the custody of a minor, and orders granting or declining to grant a stay or interlocutory injunction — were applicable.

The court observed that section 25.2 reflects a legislative policy choice to limit interlocutory appeals in order to husband limited judicial resources and ensure proportionality in civil justice, given that such appeals often increase the delay, expense, and complexity of litigation. Because section 25.2(1) provides little guidance as to when leave should be granted, the common law has developed two key criteria: (1) whether the proposed appeal has sufficient merit in light of the applicable standard of review, and (2) whether it is of sufficient importance to warrant the attention of the province's highest court. A proposed appeal also has a residual pathway to leave where an obvious error in the lower court has occasioned a miscarriage of justice.

Also central to the analysis was rule 25.11(1) of the King's Bench Rules, which governs motions to strike. A motion to strike pursuant to rule 25.11(1)(d) — failure to disclose a reasonable cause of action — is to be determined solely on the face of the pleading; no other evidence is admissible. By contrast, motions under rules 25.11(1)(b) or (c) — that the claim is scandalous, frivolous, vexatious, or an abuse of process — permit the introduction of affidavit evidence. The court emphasized, however, that even in those latter cases, the admissible record is more limited than in summary judgment proceedings, and a motion to strike cannot be converted into a disguised trial.

Reasoning and analysis

Justice Mainella, sitting in chambers, applied the two-part leave criteria to the facts. On the question of sufficient merit, the court focused on the nature of the defendants' motion to strike under rule 25.11(1)(d). Because that ground is to be decided solely on the face of the pleading — without any resort to affidavit evidence — none of the material in Sawa's affidavit, and therefore none of the refused undertakings directed at that affidavit, was admissible for purposes of the rule 25.11(1)(d) determination. The court found that a dispute about potentially missing but inadmissible evidence is not a matter of concern for an appellate panel, and that the proposed appeal lacked arguable merit.

On the question of sufficient importance, the court found that the proposed appeal raised no novel or unsettled point of law or practice concerning refused undertakings or the permissible scope of cross-examination of a deponent. Counsel for both parties agreed that the law in this area is already well settled. The court further found that the issues in the case would not affect the determination of similar disputes and were of significance only to the parties themselves. Given that Nygard had already obtained one appeal, which proceeded as a fresh hearing before the King's Bench judge, the court observed that granting a further leave to appeal would be contrary to the architecture of civil appellate proceedings and would inappropriately disregard the principles of finality and proportionality in litigation. The court also considered, and rejected, whether an obvious error giving rise to a miscarriage of justice warranted leave, finding that the King's Bench judge gave thorough and thoughtful reasons and that no obvious error was present.

Ruling and overall outcome

The motion for leave to appeal was denied with costs. The respondents — Canadian Broadcasting Corporation, Timothy Sawa, and April Telek — were the successful parties. No specific quantum of costs was stated in the decision.