A.D. v. T.G., 2014 ONSC 4678

CITATION: A.D. v. T.G., 2014 ONSC 4678

DIVISIONAL COURT FILE NO.: DC-14-018

COURT FILE NO.: 06-CV-319553-PD2

DATE: 20140828

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Dr. A.D., Appellant

AND:

T.G., The Regional Municipality of York, Police Services Board, Peter Head, Scott Browne, York Region Children’s Aid Society, Deena Hugh-Yeun, Bonita Majonis, Denise Lehman Brown and certain unnamed persons, Respondents

BEFORE: Mr. Justice Lederer

COUNSEL: Murray Klippenstein & W. Cory Wanless, for the Appellant David R. Richmon, for the Respondent, T.G. No one appearing for the remaining Respondents

HEARD: June 10, 2014

ENDORSEMENT

[1] This is the appeal of a decision made by Master Brott. She refused to allow certain amendments the plaintiff wished to make to the Statement of Claim.

BACKGROUND

[2] The plaintiff and the defendant, T.G., were married. In or around May, 2004, the marriage broke down. They separated. The relationship became bitter and contentious. This action was commenced on October 30, 2006. The Statement of Claim was amended on February 9, 2007. It is premised on T.G. making, the police repeating, and the York Region Children’s Aid Society, Deena Hugh-Yeun, Bonita Majonis and Lehman Brown (“CAS Defendants”) repeating and acting on, highly inflammatory and harmful accusations against the plaintiff.[^1] The Statement of Claim, in its present form, states that T.G. deliberately and maliciously made false and outrageous allegations that the plaintiff:

(a) has a “connection with Taliban,” or words to that effect;

(b) has a connection to Al Qaida, or words to that effect; and,

(c) is a violent and extremist Arab or Muslim fundamentalist cult leader, or words to that effect.[^2]

[3] The Statement of Claim says that the statements are false and defamatory; that T.G. knew that they were false and that they would be relied on by the York Regional Police[^3] and that they were re-published, either by T.G. or the York Regional Police, to and relied on by, the Children’s Aid Society.[^4]

[4] On December 10 and 11, 2012, the CAS Defendants brought a motion for summary judgment. It was heard by Mr. Justice Morgan. The action in slander was dismissed.[^5] The balance of the action against the CAS Defendants was left to proceed to trial.[^6] In considering the motion, Mr. Justice Morgan observed how serious the allegations were:

Frankly, in the several years after the 9/11 attacks, this type of international terrorism accusation, together with the information about the supposed interest in the Plaintiff by Canadian and U.S. national security authorities, would have been as ‘scary’ and as ‘big’ as it gets. It would be remarkable if these allegations did not loom large in the CAS Defendants’ assessment of the Plaintiff.[^7]

[5] He concluded that the defendant was responsible for raising “egregious allegations of terrorism and international cult leadership” that were “highly inflammatory and harmful” and noted that these allegations turned out to be untrue.[^8]

[6] Earlier, presumably as a result of the interaction between the defendant and the police, charges of uttering threats in respect of the defendant, the daughter of the plaintiff and the defendant, as well as a male companion of the defendant, were laid against the plaintiff as was a charge of possession of a weapon dangerous to the public peace.[^9] The charges were heard in a trial that took place on December 5, 2006 before the Ontario Court of Justice. The charges were dismissed. The knife, which was the subject-matter of the weapons charge, was found in the glove compartment of the car of the plaintiff. There was no evidence that it was designed, used for or intended to be used as a weapon. It was just a knife in a car. The judge had difficulty accepting the evidence of either the accused (the plaintiff) or his wife (the defendant). He found that the case had not been proved beyond a reasonable doubt.

[7] The criminal case was referred to by Mr. Justice Morgan in the decision concerning the motion for summary judgment:

Further confirmation of the source of the inflammatory accusations came two years later, in the judgment following the Plaintiff’s criminal trial. In his oral reasons for judgment acquitting the Plaintiff, Blouin J. of the Ontario Court of Justice explained that ‘there exists in this case many examples of motivation to fabricate that Ms. T.G. was not prepared to admit existed.’ R. v. A.D., supra, at 5. He then observed that Ms. T.G. had testified that either she did not say anything, or did not remember saying anything, to the Police about the Plaintiff’s supposed Taliban and terrorism connection. The trial judge made a point of commenting on this apparent memory lapse:

Quite apart from the unlikelihood that you would not remember something so vivid, [the Defendant herein] P.C. Heard testified that the fact Ms. T.G. did tell him this, that Dr. A.D. was connected to the Taliban and that this comment was not something he remembered but was clearly in his notes that he wrote down that particular day, October 2^nd or 3^rd.[^10]

THE MOTION AND THE PROPOSED AMENDMENTS

[8] The plaintiff brought the motion heard by Master Brott. Leave was sought to amend the Statement of Claim to add further particulars regarding the defamatory statements allegedly made by the defendant to the police.[^11] The introductory words to each of the paragraphs relying on these particulars were to have the following quotation added: Dr. A.D. “ … was an extremist Islamic cult leader, and that Dr. A.D. was associated with Al Qaida and the Taliban. Particulars of the defamation include allegations that:…”[^12] The particulars the plaintiff wishes the Statement of Claim to reflect include the fact that, in a conversation with the police that took place on October 2, 2004, the defendant not only said that the plaintiff had “ ‘a connection with that Taliban’ or words to that effect”[^13] but, in particular, stated that he has “ ‘received military-style trading in a Taliban camp’ or words to that effect” and is “ ‘Taliban trained as a marksman and knife fighter’ or words to that effect.”[^14] Further, the plaintiff wishes his Statement of Claim to reflect that, in her conversation with the police on October 2, 2004, the defendant not only said that the plaintiff was a “violent and extremist Arab or Muslim fundamentalist cult leader or words to that effect”[^15], but also stated that his alleged cult leadership included requiring his “ ‘followers to take an oath to him that would include even killing their own children if he asked’ or words to that effect”[^16] and that the plaintiff “ ‘is connected with a Saudi National who participated in flight training with the World Trade Center terrorists’, or words to that effect”.[^17]

THE DECISION OF THE MASTER

[9] Master Brott refused to allow the amendments. She relied on the understanding that, in an action for defamation, it is the actual words used that are at its foundation. They must be known:

In an action for defamation, ‘it is essential to know the very words on which the plaintiff found his claim’. This is particularly true in an action for slander. The defamatory words are the very facts upon which the action is founded.

[10] This statement goes on to explain the purpose behind the understanding:

The statement ‘must contain sufficient information to put the defendant on its guard as to the case he will have to meet at trial’. A court will not permit a plaintiff to leave an adversary ‘shrouded in mystery’ as to what his or her action is all about.[^18]

[11] From this, Master Brott noted: “It is the defamatory words alleged upon which the cause of action is based.” She found that the amendments being proposed were not particulars, adding details of the same conversation, but separate statements giving rise to separate causes of action.[^19]

STANDARD OF REVIEW

[12] The appropriate standard of review on an appeal from a Master on a question of law is one of correctness.[^20] The finding that the proposed amendments were, in effect, the pleading of a new and separate statute-barred cause of action is a finding of law.

ANALYSIS

[13] The resolution of the issue in this case begins with a consideration of what constitutes a cause of action. This was discussed in 1309489 Ontario Inc. v. BMO Bank of Montreal,[^21] by Mr. Justice Lauwers, at the time a judge of this court and now of the Court of Appeal. He began by observing that “a proper definition of the term ‘cause of action’ is somewhat elusive”.[^22] He referred to a definition found in Halsbury’s Laws of England:

Cause of action ‘has been defined as meaning simply the facts the existence of which entitles one person to obtain from the court a remedy against another person. The phrase has been held from the earliest time to include every fact which is necessary to be proved to entitle the claimant to succeed, and every fact which the defendant would have a right to dispute.’

Cause of action ‘has also been taken to mean that particular act on the part of the defendant which gives the claimant his cause of complaint, or the subject matter or grievance founding the claim, not merely the technical cause of action.

The same facts or the same transaction or event may give rise to more than one effective cause of action.’ (Internal footnotes omitted.)[^23]

[14] These paragraphs point to two different ways of understanding the term. One is broader, based on the facts which are, or factual matrix which is, the foundation for seeking a remedy from the court. The other is narrower (referred to in the quotation from Halsbury’s as the “technical cause of action”) which identifies the legal basis for the claim. Is it a claim in contract, negligence, defamation or some other alleged legal wrong?[^24]

[15] Having identified these two perspectives, Mr. Justice Lauwers opted for the broader, factually-based, approach:

In my view, the trend of the cases favours the broader, factually oriented approach to the meaning of ‘cause of action’ in interpreting and applying rule 26.01: Fitzpatrick Estate v. Medtronic Inc., [1996] O.J. No. 2439, 137 D.L.R. (4th) 262 (C.J.), at para. 22; Gladstone v. Canadian National Transportation Ltd., [2009] O.J. No. 3118, 252 O.A.C. 117 (Div. Ct.), at paras. 37-40, 44; Rausch v. Pickering (City), 2010 ONSC 2393[2010] O.J. No. 1889, 2010 ONSC 2393, at paras. 38-42.[^25]

[16] On this basis, the entitlement of the defendant “…is to have notice of the factual matrix out of which the claim for relief arises”.[^26]

[17] In this case, Master Brott has applied a narrow conception of what constitutes a cause of action in defamation. As I perceive it, she has adhered to the idea that, in an action for defamation, the words must be known, but failed to account for the proposition that the purpose for this was to be sure that the defendant could identify the case he, she or it would have to meet.[^27]

[18] Can a statement of claim be amended after the limitation period has expired, so as to add specific wording said to be demonstrative of defamation or slander, or is the addition of such words inherently a new cause of action which is out of time?

[19] In Jourdain v. Ontario (Queen),[^28] a first nation’s leader was charged with sexual assault. The charge was withdrawn when the complainant failed to attend at the trial. The accused sued, among others, the police for, among other things, defamation. After the limitation period had expired, a motion was brought which, in part, sought to amend the Statement of Claim in respect of that claim. The amendments quoted a press release that had been alluded to in the previous version of the Statement of Claim. With the proposed amendment, the actual words used in the press release, and said to be defamatory, would be included. Moreover, words were to be added to the Statement of Claim describing the harm that had been caused and laying the ground for a request for aggravated damages arising from the publication of the press release. While other amendments were refused, these were allowed. They did not represent a new cause of action:

…The proposed amended paragraph 60 of the claim reproduces the press release published by the O.P.P. on February 27, 2004. The proposed amended paragraphs 61 and 62.1 provide particulars of the allegation of defamation already pled and additional facts upon which this previously pled cause of action is based. I do not find that these proposed amendments assert new claims or a new cause of action. I do not see any prejudice being suffered by the defendants in allowing the proposed amendments in paragraphs 60, 61 and 62.1 that cannot be remedied by costs. Leave is granted for these amendments to be made to the plaintiffs’ claim.[^29]

[20] In Boucher-Chigago v. Snider[^30], the plaintiff alleged that the remaining defendant (initially there were more) falsely and maliciously slandered him by intentionally making false statements that he had stolen property. There had been several motions concerning the sufficiency of the pleadings and amended versions of the Statement of Claim produced. More changes were sought. A motion was brought. It was heard in company with a motion by the defendant for summary judgment. There was a dispute as to which version of the Statement of Claim was being amended. The last version had been filed without consent of the defendant and without leave of the court. It was argued that it had no standing, should be ignored, and the version that preceded it relied on. The judge did not accept this submission. The defendant had pleaded in response to the version he now wished to ignore. The judge held this “…operated as a tacit consent to the amendments”[^31] that had been pleaded in the version where no formal consent had been given or leave obtained. The Statement of Claim that was accepted introduced the claim for libel. Slander had been alleged in earlier versions, but the allegations they had contained were to be withdrawn and, subject to the motion, a new allegation of slander made.

[21] The judge found that the new allegation of slander could be seen as a continuation of the previous allegations even though they had been abandoned.[^32] It should be said that the defendant made no submissions with respect to the slander, seemingly accepting that the new pleading was an acceptable amendment, even though it appears to have introduced a new factual base for the allegation.[^33]

[22] The allegation for libel was said by the judge to be a continuation of the allegation of the libel raised in the version of the Statement of Claim he had found should be relied on. The defendant argued that, by the time it was pleaded in that version of the Statement of Claim, it was already out of time and requested that it be struck on the basis that the limitation period should be applied. This was the basis for the summary judgment motion brought on behalf of the defendant. The problem was that, in providing its Statement of Defence in response, the defendant had not pleaded a Limitation Act defence. “If a Limitation Act defence is to be relied on it must be pleaded as a special defence.”[^34] On this basis the summary judgment motion did not succeed. The defendant could not have the claim struck when he had failed to plead the limitation defence. The determination that the amended claim for libel was a continuation of a claim in the Statement of Claim accepted by the court stood.[^35] The amendments were allowed.

[23] The amendment in respect of the slander indicates that, where the factual underpinnings of the allegation of slander are new, it may still be that an amendment allowing the change will be granted as a continuation of the existing cause of action rather than the commencement of a new cause of action. The same is true of the libel action. It was not dealt with as a new cause of action. The amendment was granted because it was seen as a continuation of the libel allegation already found in the pleadings.

[24] Both Jourdain v. Ontario (Queen) and Boucher-Chigago v. Snider indicate that the broader approach to an understanding of what is meant by “a cause of action”, at least as it applies to the amendment of pleadings, can be, I find should be, applied to actions in defamation. This includes specific wording so long as the defendant could identify the circumstances of the defamation and was not taken by surprise and could identify the case to be met.

[25] In 1309489 v. BMO Bank of Montreal, Mr. Justice Lauwers touched on this point by “borrow[ing] an expression from the misnomer cases” and quoting Master Short in Brand Name Marketing Inc. v. Rogers Communications Inc.:[^36]

. . . that if a defendant knows that the ‘finger of litigation’ is pointing in its direction, and an action is commenced on a timely basis based on specific actions, this court ought to take appropriate steps to ensure that the true lis between the parties is addressed, rather than permitting one party to perhaps escape its possible liability by relying upon a technical Limitations Act defence. [^37]

[26] To my mind, the decision of Master Brott was too narrow in its approach to the understanding of what should be considered “cause of action”. In this case, the amendments sought all refer to additional statements allegedly made to the police which, like those already included, were made as part of a conversation that took place on Saturday, October 2, 2004. The date and the conversation were identified in the earlier Statement of Claim. The defendant should have been, doubtless was, aware that the discussion that took place would be important and the subject of inquiry as part of this action. These amendments are a continuation or extension of what has already been pleaded.

[27] The appeal is granted. The Statement of Claim is to be amended as proposed in paragraphs 31, 58, 60 and 62 of the Second Amended Statement of Claim.

COSTS

[28] No submissions were made as to costs. If the parties are unable to agree, I will consider written submissions on the following terms:

1. On behalf of the appellant, no later than 15 days after the release of these reasons. Such submissions are to be no longer than 4 pages, double-spaced, excluding any Costs Outline, Bill of Costs or caselaw that may be relied on.

2. On behalf of the respondent, T.G., no later than 10 days thereafter. Such submissions are to be no longer than 4 pages, double-spaced, excluding any Costs Outline, Bill of Costs or caselaw that may be relied on.

3. If necessary, in reply on behalf of the appellant, no later than 5 days thereafter. Such submissions are to be no longer than 2 pages, double-spaced.

Lederer J.

Date: 20140828

[^1]: Reasons of Master Brott, December 16, 2013, at p. 1 quoting A.D. v. T.G. 2013 ONSC 958, a decision Morgan J. made in respect of a summary judgment motion made on behalf of the CAS Defendants.

[^2]: Statement of Claim, as amended February 9, 2007, at paras. 31, 58, 60 and 62.

[^3]: Ibid, at para. 34.

[^4]: Ibid, at paras. 42 and 52.

[^5]: A.D. v. T.G., supra, (fn. 1), at para. 112.

[^6]: Ibid, at para. 3, where the following is said: The Amended Statement of Claim alleges two sets of claims against the CAS Defendants: slander and intentionally wrongful conduct and/or negligence in carrying out its duties. The latter claims assert that the CAS Defendants intentionally or negligently relied on and failed to correct in their records false allegations of terrorist connections made against the Plaintiff by the Police and by the Plaintiff’s ex-spouse, the Defendant T.G. The former claim asserts that the CAS Defendants repeated and perpetuated the defamatory allegations.

[^7]: Ibid, at para. 49.

[^8]: Ibid, at paras. 31-36 and 59.

[^9]: See: the Criminal Code, s. 264.1(1)(a) and s. 88.

[^10]: A.D. v. T.G., supra, (fn. 1), at para. 56, quoting from Her Majesty the Queen v. A.D., decision of Blouin J., dated December 5, 2006, (Information # 04-05988), at p. 5.

[^11]: The plaintiff also requested and received leave, on an unopposed basis, to amend the paragraphs 41, 42, 43, 58.1, 62 and 62.1 of the Amended Statement of Claim (see: Order of Master Brott, December 2, 2013, para. 2).

[^12]: The proposed Second Amended Statement of Claim, at paras. 31, 58, 60, and 62.

[^13]: Amended Statement of Claim (February 9, 2007), at paras. 31, 58, 60 and 62.

[^14]: The proposed Second Amended Statement of Claim, at paras. 31, 58, 60, and 62.

[^15]: Amended Statement of Claim (February 9, 2007), at paras. 31, 58, 60 and 62.

[^16]: The proposed Second Amended Statement of Claim, at paras. 31, 58, 60, an 62.

[^17]: The proposed Second Amended Statement of Claim, at paras. 31, 58, 60 and 62.

[^18]: Reasons of Master Brott, December 16, 2013, at p. 2, quoting De Haas v. Mooney, [2003] O.J. No. 549 which, in turn, quotes Raymond E. Brown, The Law of Defamation”, 2^nd edition, 1994, at paras. 19-15 and 19-16.

[^19]: Reasons of Master Brott, December 16, 2013, at p. 3.

[^20]: Housen v. Nikolaisen, 2002 SCC 33, 2002 S.C.C. 33 2002; 211 DLR (4th) 577; [2002] 7 WWR 1; 219 Sask R 1, at paras. 8-9: On a pure question of law, the basic rule with respect to the review of a trial judge’s findings is that an appellate court is free to replace the opinion of the trial judge with its own. Thus the standard of review on a question of law is that of correctness: Kerans, supra, at p. 90. There are at least two underlying reasons for employing a correctness standard to matters of law. First, the principle of universality requires appellate courts to ensure that the same legal rules are applied in similar situations…. And see: Bazkur v. Coore et al. 2012 ONSC 3468, at paras. 5-6.

[^21]: 2011 ONSC 5505; 107 O.R. (3d) 384.

[^22]: Ibid, at para. 18, referring to a comment he had made earlier in Ivany v. Financiers Telco Inc. (2011) 2011 ONSC 2785, O.J. No. 4162, 2011; ONSC 2785, at para. 26.

[^23]: 5^th Ed. (London: Lexis-Nexis UK, 2008) Volume 11, at para. 21.

[^24]: This distinction is identified by Mr. Justice Lauwers in both 1309489 Ontario Inc. v. BMO Bank of Montreal, supra, (fn. 21), at para. 19; and, Ivany v. Financiers Telco Inc., supra, (fn. 22), at para. 29.

[^25]: 1309489 Ontario Inc. v. BMO Bank of Montreal, supra, (fn. 21), at para. 21; and, Ivany v. Financiers Telco Inc., supra, (fn. 22), at para. 31.

[^26]: Ibid, (1309489) at para. 26.

[^27]: See para. [10], above.

[^28]: 2010 ONSC 6315.

[^29]: Ibid, at para. 30.

[^30]: 2011 ONSC 3535.

[^31]: Ibid, at para. 17.

[^32]: Ibid, at para. 19.

[^33]: The amendment was referred to by the judge as a “new allegation of slander”. It alleged: On or about April 18, 2009, Mr. Snider stated to Kim Chigago that the Plaintiff had stolen money from the band and that everyone was aware of this. (Ibid, at para. 11).

[^34]: Ibid, at para. 21, referring to Perell and Morden, The Law of Civil Procedure in Ontario (Markham: LexisNexis Canada Inc. 2010, 1^st ed.), at p. 309 which, in turn, referred to Beardsley v. Ontario Provincial Police, [2001] O.J. No. 4574 (C.A.), see in particular paras. 21 and 22.

[^35]: The letter which is said to contain the libel had been referred to in the version of the Statement of Claim accepted by the Court. The proposed amendment said: On or about April 20, 2006 the (sic) Mr. Snider, knowing the allegations to not be true, penned a letter to Constable Kevin Veilleux of the Ontario Provincial Police inferring that the Plaintiff committed a theft under $5,000.00 for allegedly stealing batteries and clothing, and theft over $5,000.00 for theft of a GPS.

[^36]: [2010] O.J. No. 5430, 2010 ONSC 2892.

[^37]: Ibid, at para. 84.