CITATION: Wallbridge v. Brunning, 2021 ONSC 3051
DIVISIONAL COURT FILE NO.: 536/20
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: James Wallbridge, Almeda Wallbridge and Wallbridge, Wallbridge, Plaintiffs/Respondents
AND:
Fay Brunning and Williams-Litigation Lawyers, Defendants/Appellant
BEFORE: Swinton, D.L. Corbett and Lederer JJ.
COUNSEL: Geoffrey D.E. Adair, Q.C., for the Plaintiffs/Respondents
Lawrence Greenspon and Tina Hill, for the Defendant/Appellant Brunning
HEARD by videoconference: April 14, 2021
ENDORSEMENT
1This is an appeal, with leave (2021 ONSC 987), from an order of Gordon J. dated October 23, 2020 (2020 ONSC 6396). By email notice on April 15, 2021, the court advised the parties that the appeal is allowed and that the appellant, Brunning, is granted leave to amend her statement of defence as requested in the motion below. This notice was to facilitate a conference before the case management judge on April 16, 2021. The court advised that these brief reasons would soon follow.
2The motions judge correctly stated the principles that apply to amendment of pleadings. A party is permitted to amend her pleadings at any time so long as the pleading is proper and prejudice will not arise that cannot be redressed by costs and/or an adjournment, and the proposed amendment to the pleading is not an abuse of process. This is trite law (see 1588444 Ontario Ltd. v. State Farm Fire and Casualty Co., 2017 ONCA 42 at para. 25).
3The motions judge found that the proposed amendments are relevant, that they are pleaded properly and with particularity, and that they will not cause prejudice to the plaintiffs. However, the motions judge went on to find that the motion to amend the pleadings was, itself, an abuse of process, given the history of the case, and for that reason he found that the proposed amendments should not be permitted.
4I do not agree that the motion to amend was, itself, an abuse of process. I also disagree that “abuse of process” in the R.26 jurisprudence refers to the motion itself, rather than to the content of the proposed pleadings. Rule 26 is broadly permissive to facilitate the underlying goal of the Rules (to determine the proceeding on its merits) and to promote the finality principle in litigation (the final judgment disposes of all issues that are raised in or should have been raised in the litigation) so that the underlying dispute is put to rest in the judgment.
5I would not interfere lightly with the decision of the motions judge, particularly in light of the procedural gamesmanship by the defence in these proceedings. However, the response to this conduct cannot include refusal of a proper amendment that is material to Brunning’s defence of serious defamation allegations and which causes no prejudice to the plaintiff, and the motions judge’s conclusion to the contrary was in error.
6To explain this conclusion, I summarize the history of the proceeding briefly.
7The defendant Brunning is litigation counsel to several persons claiming remedies as a result of their alleged treatment under Canada’s residential schools program. The plaintiffs have acted for many persons who have advanced claims relating to these residential schools. In public statements, Brunning has stated that the plaintiffs mishandled claims on behalf of residential schools claimants, leading to those claimants receiving less than they should have received in compensation. Brunning has stated that this mishandling was both negligent and advertent. This is the core content of the defamatory statements at issue in the proceeding. Obviously, these are serious allegations impugning the professional integrity and competence of the plaintiffs in respect to a topic of broad public interest: resolution of residential schools claims.
8Brunning has pleaded justification in defence of the plaintiffs’ claims (among other things).
9Brunning sought production of over 250 of the plaintiffs’ client files as part of her proposed discovery plan for the case. This production request was contested and argued on a substantial motion before the motions judge, who found that the request was not justified. As found by the motions judge, in a defamation action, justification must be pleaded with particularity and may not be used as a vehicle to conduct a fishing expedition for evidence to support a generally pleaded defence of justification. As put by plaintiffs’ counsel during argument before us, the defendant must have information justifying the defamatory words at the time those words are published, and may not make defamatory statements without basis and then seek to prove the truth of the statements “from the plaintiffs’ filing cabinets”.
10The motions judge considered the broad disclosure request by Brunning to have been unreasonable, given the pleadings requirements in a defamation action. I agree with this conclusion: on the basis of a generalized pleading, Brunning seemingly sought to conduct a forensic inquiry of the plaintiffs’ entire practice related to residential schools claimants.
11Following the motions judge’s decision on the scope of disclosure, Brunning moved to amend her statement of defence to plead with particularity allegations concerning seven former clients of the plaintiffs. These amendments, if permitted, would provide a foundation for disclosure of files related to these seven clients, production of which were refused in the prior disclosure motion.
12The motions judge considered the proposed amendments to be an abuse of process because the proposed amendments should have been raised at the time of the contested production request and not in the aftermath of the court’s decision on that request.
13I agree that it would have been better for Brunning to have proposed the pleading amendment and a production order tailored to her proposed amended pleading, at least as an alternative to her request for broad disclosure, at the time of the contested disclosure request. I understand why she did not proceed in this way: it could have been seen as a tacit admission that she does not have particulars respecting the other 250+ clients of the plaintiffs. That could have made her request for broad disclosure seem like an even more obvious “fishing expedition”. All of this is to say that the initial production request was obviously inappropriate. The defendant was ordered to pay substantial costs for the contested broad disclosure request (as she should have been). But Brunning should not have had added to this a sanction that precludes her from particularizing those additional bases of her justification plea that are known to her.
14If Brunning had sought the proposed amendments prior to the contested disclosure motion, the request would not have been an abuse of process. Seeking them after the contested disclosure motion does not render them an abuse of process. They are integral to her defence, properly pleaded and they cause no prejudice. Nor is this a case of relitigation bringing the administration of justice into disrepute: the disclosure motion concerned a request for more than 250 files on the basis of unparticularized allegations; the proposed amendments are restricted to seven former clients of the plaintiffs for whom Brunning alleges particulars. Through the amendments a foundation is established for a more limited disclosure order than had been sought originally. If discovery had proceeded on the basis of the motions judge’s disclosure order, and then seven former clients of the plaintiffs came forward to Brunning with full particulars, an amendment sought on this basis, after discovery, would not be precluded by the motions judge’s disclosure order, and in particular that motion would not be precluded because the issue had already been litigated.
15For these reasons I would allow the appeal and direct that Brunning have leave to amend her pleadings as requested. Any scheduling issues arising from these amendments shall be within the discretion of the case management judge.
Costs
16I would not disturb the costs disposition of the motions judge even though I would reverse his decision. The adverse costs award below is an appropriate sanction for litigation conduct by the defendant that caused increased costs and delay in the proceeding. Ordinarily, a successful amendment motion results in no order as to costs (on the basis that the moving party has succeeded on the motion but the motion was necessitated by the moving party’s own failure to include the amendments in the original claim). Where, as here, the moving party’s conduct has put both sides to delay and expense, it is in the discretion of the motions judge to award costs against the moving party, even though leave to amend is granted.
17It is clear from the reasons of the motions judge that he strongly disapproved of the tactics of the defence in respect to these issues. He went so far as to characterize the tactics as an abuse of process. Although this conclusion is incorrect in law, I would defer to the motions judge’s overall assessment that the conduct was worthy of sanction and I conclude that leaving the costs order in place is an appropriate sanction in the circumstances.
18I would not extend the sanction imposed by the motions judge to include a departure from the usual practice of awarding costs in this court. The appeal was meritorious. It was required because of an aggressive position taken by the plaintiffs on the motion below and on this appeal. In my view Brunning should have her costs in this court on a partial indemnity basis for the motion for leave to appeal and for the appeal itself.
Order
19Therefore, the appeal is granted and Brunning is granted leave to amend her statement of defence as sought in the motion below, with costs to Brunning of the appeal and the motion for leave to appeal fixed at $14,500 in the aggregate (being the agreed amounts of $10,000 for the appeal and $4,500 for the motion for leave to appeal), inclusive, payable by the plaintiffs. The costs awarded to Brunning in this court shall be set off against the costs awarded to the plaintiffs below, and the balance owed by Brunning to the plaintiffs shall be paid within thirty days.
D.L. Corbett J.
I agree: _______________________________
Swinton J.
I agree: _______________________________
Lederer J.
Date: April 30, 2021