The Plaintiff sought damages for lost business revenue which the Plaintiff alleged was due to the Defendants’ use of the Plaintiff’s confidential and proprietary information. The parties applied for the Court’s directions with respect to what use could be made of certain “with prejudice” communications, and also what further particulars, if any, the Plaintiff was required to supply to the Defendant prior to Questioning.

With respect to the “with prejudice” communications, Justice Schutz determined that, notwithstanding that the correspondence in question was marked “with prejudice”, the letters were nonetheless protected by settlement privilege, and ordered that they be expunged from the Court’s record. Schutz J. then considered the Request for Particulars made by the Defendant pursuant to Rule 3.61. Her Ladyship stated that the Rules permit a litigant to request particulars through Rule 3.61. The Plaintiff had provided some responses however the Defendant alleged that the responses were incomplete and, in some cases, inappropriate, and that the Pleadings did not satisfy Rules 13.6 and 13.7. Schutz J. noted that responding to a request for particulars with statements to the effect that “the Defendant knows” is inappropriate. The Court also noted that statements such as “includes but not limited to” may also be inappropriate in response to a Request for Particulars.

Justice Schutz reviewed Rules 13.6 and 13.7 and held that, pursuant to Rule 13.7, the Pleadings were deficient as further particulars were required with respect to allegations relating to breach of trust and defamation. Breach of trust must be specifically pleaded (pursuant to Rule 13.6), and particulars are required when breach of trust is alleged, pursuant to Rule 13.7. With respect to the defamation allegations, Schutz J. adopted the Court’s statements in Arcelormittal Tubular Products Roman SA v Canadian Natural Resources Ltd, 2013 ABQB 578 (CanLII):

Defamation pleadings must contain the details of the publication including the words published by the defendant, the time, place and manner of publication, and to whom the publication was made…

Finally, Schutz J. determined that the Plaintiff had not sufficiently particularized other aspects of its Pleadings, such as trade secrets which were allegedly misused by the Defendant. In the result, Justice Schutz ordered further particulars be provided by the Plaintiff.