Executive Summary: Key Legal and Evidentiary Issues

• The court struck substantial portions of the plaintiffs' Amended Statement of Claim as scandalous, vexatious, or an abuse of process.
   
• Rule 7-9 of The King's Bench Rules set the legal framework for the defendants' applications to strike.
   
• Absolute privilege barred the defamation claim against the Whites' former legal counsel and his firm.
   
• Deficient pleading of material facts undermined several causes of action, including conspiracy, negligence, and misfeasance of public office.
   
• Mediation was found unnecessary because the pleadings had not yet closed when the applications were heard.
   
• Enhanced costs of $10,000 were ordered against the plaintiffs due to litigation misconduct.
   

Facts of the case

6517633 Canada Ltd. and Stan Sheppard sued a group of individuals, a law firm, and the Rural Municipality of Norton No. 69 over a cluster of disputes concerning two adjoining quarter-sections of farmland near the Village of Pangman, Saskatchewan. The plaintiffs' allegations, spread across an Original Claim and an Amended Claim, touched on: cattle belonging to Elwood and Joy White allegedly grazing freely on the plaintiffs' land in May and June 2023; a dispute over who owns a boundary fence; Elwood White's alleged 2024 trespass to add a solar panel and electric fencer to the fence; the R.M.'s handling of an undeveloped road allowance, including gates and cameras installed on it; a July 11, 2023 letter from the Whites' lawyer, Adam Ailsby of KMP Law, which the plaintiffs claimed was defamatory; and allegations that the R.M. council and its administrator, Patti Gurskey, were "co-conspirators" who unlawfully assisted a third party in registering an interest against the plaintiffs' land title. Two sets of defendants — the R.M., its councillors, and Ms. Gurskey (the R.M. Defendants) and Mr. Ailsby, KMP Law, and the Whites (the Ailsby/White Defendants) — each applied under Rule 7-9 of The King's Bench Rules to strike portions of the Amended Claim, arguing it disclosed no reasonable claim against certain defendants, duplicated other litigation, and was scandalous, vexatious, and an abuse of process.

Policy, legislative, and contractual provisions at issue

The applications turned on Rule 7-9 of The King's Bench Rules, which permits the court to strike a pleading, in whole or part, where it discloses no reasonable claim or defence, is scandalous, frivolous, or vexatious, is immaterial or unnecessarily lengthy, may prejudice a fair hearing, or is otherwise an abuse of process. The plaintiffs separately argued that section 7-1(2) of The King's Bench Act required the parties to complete mediation before the strike applications could be heard; the court noted that under section 2-1(2) of The King's Bench Regulations, pleadings only close once a statement of defence is filed, and Rule 3-13 permits a Rule 7-9 application before that point. Substantively, the court applied the common-law tests for unlawful-act conspiracy, misfeasance of public office, negligence (drawing on the Anns/Cooper v Hobart framework), and defamation (per Grant v Torstar Corp.), and considered the doctrine of absolute privilege as it applies to communications made in preparation for litigation.

Reasoning and analysis

The court worked through each category of allegation in the Amended Claim. Allegations that the R.M. and Ms. Gurskey unlawfully assisted a third-party land title registration were struck as scandalous and an abuse of process, partly because the same conduct was already the subject of separate litigation and partly because the pleading compared Ms. Gurskey to "Dr. Jack Kevorkian" and threatened future lawsuits against "any person or entity" — language the court found improper and intimidating rather than a genuine statement of claim. On fence ownership, the underlying claim that the Whites wrongly asserted ownership was allowed to proceed against them, but the accompanying conspiracy and negligence allegations were struck for lacking any pleaded agreement, unlawful act, or duty of care. The trespass claim over the solar panel and electric fencer was not challenged and remains intact. The road-allowance claims — concerning gates, cameras, and the R.M.'s alleged unlawful denial of access — were struck outright, with the court finding the pleading offered only bare, conclusory assertions of unlawfulness with no factual foundation, and declining leave to amend given the plaintiffs had legal counsel and prior opportunities to plead properly. The defamation claim over the July 11, 2023 letter was struck on two independent grounds: the plaintiffs never specified which words were defamatory despite two requests for particulars, and, in any event, the letter was written by counsel in direct response to the plaintiffs' own warning of impending litigation, placing it squarely within the absolute privilege that protects communications made in preparation for legal proceedings. The cattle-grazing claim was permitted to continue against the Whites and Mr. Sample but was struck against the R.M., since no wrongdoing was pleaded against it. Claims seeking removal of the R.M. councillors and of Elwood White as poundkeeper were struck for want of any supporting material facts.

Ruling and overall outcome

The applications to strike, brought by the R.M. Defendants and the Ailsby/White Defendants, were substantially successful, and the effect of the ruling is that the R.M., its individual councillors, Patti Gurskey, Adam Ailsby, and KMP Law are removed as parties to the action, leaving the claims over fence ownership, the 2024 trespass, and cattle grazing to proceed against the Whites and Mr. Sample. Finding that portions of the Amended Claim were brought to harass and intimidate the defendants — including through improper personal attacks and an apparent attempt to compromise solicitor-client privilege by naming opposing counsel as a defendant — the court awarded enhanced costs under Rule 11-1(3)(e), ordering the plaintiffs to pay $5,000 to the R.M. Defendants and $5,000 to the Ailsby/White Defendants, for a total of $10,000, payable within 30 days.