Wednesday, February 1, 2017

Pleading in Defamation

Catalyst Capital Group Inc. v. Veritas Investment Research Corporation, 2017 ONCA 85:


[22]        An additional dimension to these principles arises in defamation cases because pleadings in such actions have traditionally been held to a higher standard than is the case with other types of actions, in terms of the precision with which the material facts must be pleaded. West Face relies on this higher standard – as did the motion judge – for the proposition that para. 25 of the Statement of Claim fails to disclose a cause of action. Modern authorities have adopted a somewhat more flexible approach to the assessment of defamation pleadings than older authorities that took a very strict approach, however. 

[23]        Like any pleading, a statement of claim in a defamation action must set out "a concise statement of the material facts on which the [plaintiff] relies": rule 25.06(1). And, of course, the material facts must be sufficient, if proved, to establish a cause of action. In libel actions (defamatory statements in writing, as in this case), the material facts to be pleaded are: (i) particulars of the allegedly defamatory words; (ii) publication of the words by the defendant; (iii) to whom the words were published; and (iv) that the words were defamatory of the plaintiff in their plain and ordinary meaning or by innuendo. See, generally, Alastair Mullis & Richard Parkes, eds., Gatley on Libel and Slander, 12th ed. (London, U.K.: Sweet & Maxwell, 2013), at paras. 26-1 to 26-26; Lysko v. Braley (2006), 79 O.R. (3d) 721 (C.A.), at para. 91; Metz v. Tremblay-Hall (2006), 53 C.C.E.L. (3d) 107 (Ont. S.C.), at para. 13.

[24]        At one time, the weight of authority required the pleading of these essential elements with strict precision, including the exact wording complained of and the names of all persons to whom the words had been published. It was, and remains the case that pleadings in defamation actions attract a more critical evaluation than pleadings involving other causes of action; they require a more detailed outline of the material facts alleged in support of the claim. Courts are attentive to guard against "fishing expeditions" in such cases. This is because – given the serious nature of such allegations and the significance of context in assessing them – it is particularly important that the defendant know the case it has to meet.

[25]        While the need for as much precision as possible and for enhanced judicial scrutiny continues, however, more recent authorities have applied greater flexibility in permitting defamation pleadings to stand in certain circumstances where the plaintiff is unable to provide full particulars of all allegations. These circumstances include situations where the plaintiff has revealed all the particulars within its knowledge, where the particulars are within the defendant's knowledge, and – importantly – where the plaintiff has otherwise established a prima facie case of defamation (including publication) in the pleading. See, for example, Paquette v. Cruji (1979), 26 O.R. (2d) 294 (H.C.), at p. 296-97; Magnotta Winery Ltd. v. Ziraldo(1995), 25 O.R. (3d) 575 (C.J.), at pp. 583-84; Lysko, approving Paquette and Magnotta Winery, at paras. 93-95; and Guergis v. Novak, 2013 ONCA 449, 116 O.R. (3d) 280, at para. 52.

[26]        In Paquette (a case involving publication to named persons "and others") Grange J. described the more modern approach in the following terms, at pp. 296-97:

It is true and has been said over and over again – see, for example, Odgers Digest of the Law of Libel and Slander, 6th ed. (1929), at p. 504, that pleadings in a defamation action are more important than in any other class of action.  It is also generally true as put by Gatley on Libel and Slander, 7th ed. (1974), p. 422, para. 1015, that "… the defendant is entitled to particulars of the date or dates on which, and of the place or places where, the slander was uttered.  The defendant is also entitled to be told the names of the person or persons to whom the slander was uttered …", and that the Court will not permit the plaintiff to proceed to use discovery as a "fishing expedition" to seek out a cause of action: see Gaskin v. Retail Credit Co., [1961] O.W.N. 171; Collins v. Jones, [1955] 2 All E.R. 145. There are, however, limitations to the strictness of pleading.  Our Courts have always refused to strike out a claim where the plaintiff has revealed all the particulars in his possession and has set forth a prima facie case in his pleading: see Winnett v. Appelbe et ux. (1894), 16 P.R. (Ont.) 57, and Lynford v. United States Cigar Stores Ltd. (1917), 12 O.W.N. 68.  In the latter case Falconbridge, C.J.K.B., refused to strike out a statement of claim wherein the plaintiff had been unable to set forth the exact words of an allegedly defamatory letter which had resulted in loss of employment quoting with approval [at p. 69] the words of Odgers, 5th ed. (1912), at p. 624:

"If the plaintiff does not know the exact words uttered, and cannot obtain leave to interrogate before statement of claim, he must draft his pleading as best he can and subsequently apply for leave to administer interrogatories, and, after obtaining answers, amend his statement of claim, if necessary." [Emphasis added.]

[27]        Applying those principles to the matter before him, Grange J. went on to state, at p. 297:

The plaintiff maintains he was slandered by the defendant by communication to persons unknown (but associated with particular institutions) at times unknown (though within a specified time span). He sets forth the words used. He has stated everything he knows.  If he proves the facts pleaded he will have established a prima facie case. The law will always protect a defendant from a frivolous action but it should not deprive a plaintiff of his cause of action, ostensibly valid, where the particulars are not within his knowledge and are well within those of the defendant. If the plaintiff should fail to prove any of the 16 slanders specifically alleged there is always a remedy in costs. [Emphasis added.]

[28]        This more flexible approach to defamation pleadings is reflected in the subsequent decision of Lane J. in Magnotta Winery (a case involving the plaintiff's inability to plead the exact wording of the allegedly defamatory statement[1]). After analysing many of the authorities relating to the strict requirements of pleading in defamation actions, Lane J. opted for a more flexible approach. He did so recognizing the benefits to "fashioning a contemporary resolution of the tension between the need to prevent fishing expeditions, on the one hand, and the injustice of permitting defendants to escape liability for serious defamations on the other" (p. 582).  At pp. 583-84, he concluded:

On these authorities, it is open to the court in a limited set of circumstances to permit a plaintiff to proceed with a defamation action in spite of an inability to state with certainty at the pleading stage the precise words published by the defendant. The plaintiff must show:

– that he has pleaded all of the particulars available to him with the exercise of reasonable diligence;

– that he is proceeding in good faith with a prima facie case and is not on a "fishing expedition"; normally this will require at least the pleading of a coherent body of fact surrounding the incident such as time, place, speaker and audience;

– that the coherent body of fact of which he does have knowledge shows not only that there was an utterance or a writing emanating from the defendant, but also that the emanation contained defamatory material of a defined character of and concerning the plaintiff;

– that the exact words are not in his knowledge, but are known to the defendant and will become available to be pleaded by discovery of the defendant, production of a document or by other defined means, pending which the plaintiff has pleaded words consistent with the information then at his disposal.

[29]        The more flexible approach was recognized by this Court in Lysko and, again, in Guergis. In Guergis the Court said that a plaintiff may plead that a defamatory statement was made to certain unnamed persons "where a plaintiff has made out a prima facie case that the statement was made to a named person and has produced uncontradicted evidence of publication to other persons" (para. 52). See also, Gatley on Libel and Slander, at para. 26.7; Jaffe v. Americans for International Justice Foundation, [1987] O.J. N. 2370 (Ont. Master), at para. 10.





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