The text of the original judgment was corrected on September 12, 2022, and the description of the correction is appended.

COURT OF APPEAL FOR ONTARIO

DATE: 20220907 DOCKET: C69667

Feldman, Roberts and Favreau JJ.A.

BETWEEN

PMC York Properties Inc., Paul Casuccio and Margot Casuccio Plaintiffs (Respondents)

and

Bill Siudak Defendant (Appellant)

Counsel: Jordan Diacur, for the appellant, Bill Siudak Marc A. Munro, for the respondents, PMC York Properties Inc., Paul Casuccio and Margot Casuccio

Heard: March 15, 2022 by videoconference

On appeal from the order of the Divisional Court (Sachs, Trimble and Gomery JJ.), dated February 12, 2021, with reasons reported at 2021 ONSC 1134.

L.B. Roberts J.A.:

Overview

[1] This appeal primarily concerns the correct approach to be taken in relation to defamation and civil conspiracy pleadings, where greater particularity is usually required, in the context of a motion to strike under rules 21 and 25.11 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[2] These proceedings arise out of a dispute among unit owners of a condominium complex, Bentley Place, managed by Wentworth Condominium Corporation No. 171 (“Wentworth”), and, more particularly, between the condominium corporation’s property management company, PMC York Properties Inc. (“PMC York”) and certain members of Wentworth’s board of directors. PMC York and its directing principals, Paul Casuccio and Margot Casuccio (collectively “the plaintiffs”), sued Bill Siudak, a former condominium owner and director, for damages for defamation. Mr. Siudak counterclaimed in defamation and civil conspiracy against Mr. Casuccio and certain owners and members of the condominium corporation’s board of directors.

[3] The plaintiffs moved to strike out Mr. Siudak’s counterclaim. The motion judge refused to do so. However, the Divisional Court, to which the plaintiffs successfully appealed, subsequently struck out and dismissed Mr. Siudak’s counterclaim, without leave to amend. The Divisional Court concluded that the motion judge erred in failing to strike out and dismiss the counterclaim because Mr. Siudak had not pleaded his claim for defamation with the requisite particularity. According to the Divisional Court, as the claim for civil conspiracy depended on the claim for defamation, it also fell.

[4] For the reasons that follow, I would allow the appeal. In my view, the Divisional Court misapplied the modern, flexible approach to pleadings for defamation and civil conspiracy and failed to read Mr. Siudak’s pleadings generously. As a result, the court did not respect the appropriate deference owed to the motion judge’s refusal to strike out the pleadings. Accordingly, it erred in dismissing Mr. Siudak’s claims for defamation and civil conspiracy, without leave to amend.

Background

(1) Factual background to the dispute

[5] I have taken the factual background largely from the factual allegations in Mr. Siudak’s pleadings which, for the purposes of the motion to strike and subsequent appeal before the Divisional Court, had to be accepted as true: Hunt v. Carey Canada Inc., [1990], 2 S.C.R. 959, at p. 980; The Catalyst Capital Group Inc. v. Veritas Investment Research Corporation, 2017 ONCA 85, 136 O.R. (3d) 23, at para. 21.

[6] In the summer of 2018, Mr. Siudak purchased a condominium unit at Bentley Place.

[7] Mr. Siudak was concerned about the management of Bentley Place by Wentworth’s board of directors (“the Board”), in particular, the negative influence on Board decisions that he perceived was wielded by PMC York and its principal, Mr. Casuccio. As a result, Mr. Siudak ran and was elected to the Board on May 29, 2019. Mr. Siudak refused to sign the optional director’s oath, which contained certain confidentiality obligations that he felt would have been contrary to the purpose of his election, namely, to provide the condominium owners of Bentley Place (“the owners”) with visibility into the operations of the Board.

[8] Once elected to the Board, Mr. Siudak set up a newsletter to provide information to the owners about the financial dealings of the condominium corporation and its relationship with PMC York and Mr. Casuccio. The newsletter was emailed or mailed to the owners and posted on a website created by Mr. Siudak to share information with the owners. The newsletter included, among other things, details and comments about various projects being carried out by PMC York at Bentley Place and about PMC York’s management agreement with Wentworth and its fees, including additional fees for large capital expenditures. Much of the information disseminated and posted related to issues, which, according to Mr. Siudak, showed financial mismanagement by PMC York and Mr. Casuccio.

[9] On June 25, 2019, Mr. Siudak received a letter from legal counsel to the Board. In the letter, counsel warned Mr. Siudak that he had “continually dismissed [his] duties to the Condominium”, “[d]isclose[ed] confidential and privileged information discussed at board meetings”, and “[i]nterfer[ed] with ongoing repair and maintenance projects.” [1]

[10] At the July 2, 2019 meeting of the owners, Mr. Casuccio stated that he would resign as the property manager and take the long term superintendent of Bentley Place with him if Mr. Siudak was not removed from the Board.

[11] Kathy Scholes, an owner, Board member, and friend of Mr. Casuccio, asked at the meeting how Mr. Siudak could be removed from the Board. Mr. Casuccio responded that if fifteen owners signed a request, a special meeting could be called to vote on whether Mr. Siudak would remain on the Board.

[12] Ms. Scholes then produced at the same meeting a pre-prepared document that stated that the owners who signed it were requesting a meeting to remove Mr. Siudak from the Board for two reasons: 1) loss of confidence; and 2) breaching the confidentiality of the Board. The document had twenty-two names pre-printed on it. At the meeting, twenty-one of those owners signed the document, along with two other owners whose names were written in at the meeting alongside their signatures. The meeting called to vote on Mr. Siudak’s removal from the Board was subsequently scheduled for August 6, 2019.

[13] The minutes of the July 2, 2019 meeting that were prepared by Margot Casuccio, Mr. Casuccio’s wife, did not reflect Mr. Casuccio’s or Mr. Scholes’ statements and actions at the meeting in relation to his removal from the Board. Ms. Casuccio refused Mr. Siudak’s repeated requests that the minutes be amended to include them.

[14] On July 28, 2019, Mr. Siudak received another letter from the Board’s legal counsel. He pleaded in para. 61 of his statement of defence and counterclaim that “[t]his letter contained further false and defamatory statements about [Mr. Siudak], and purported to tell [Mr. Siudak] that he could not contact other members of the Board and other Owners, and threatened him with legal action.” [2]

[15] At the August 6, 2019 meeting, Ms. Scholes requested that Mr. Siudak be removed from the Board. A vote was taken. By majority of votes, Mr. Siudak was removed from the Board.

[16] On August 13, 2019, Mr. Siudak sold his unit. On September 13, 2019, he moved out of Bentley Place.

(2) Pleadings and proceedings

[17] On September 13, 2019, the plaintiffs commenced an action against Mr. Siudak by way of notice of action. In their statement of claim, dated October 9, 2019, they alleged that Mr. Siudak had defamed them by publishing defamatory information to the owners and third parties in conversations, his newsletters, and on his website.

[18] On December 6, 2019, Mr. Siudak filed his statement of defence and counterclaim against Mr. Casuccio, Anna Di Maracantonio, Kathy Scholes, Elizabeth Parsons and Brenda Ginn (“the defendants by counterclaim”). Along with Ms. Scholes, Ms. Di Maracantonio, Ms. Parsons and Ms. Ginn are owners. Mr. Siudak pleads that he did not breach any duty of confidentiality. He alleges that the named defendants to the counterclaim participated and conspired with Mr. Casuccio in a “co-ordinated campaign” to have him removed from the Board by engaging in telephone calls and/or in person meetings with other owners during which they “made false, derogatory, and defamatory statements” about him. In his counterclaim, Mr. Siudak claims $500,000 in damages for defamation or in the alternative, for civil conspiracy.

(3) Motion to strike Mr. Siudak’s counterclaim

[19] By notice of motion dated January 8, 2020, the plaintiffs brought a motion pursuant to rules 21.01(1)(b), 21.01(3)(d), and 25.11 of the Rules of Civil Procedure to strike out the claims for defamation and for civil conspiracy in Mr. Siudak’s counterclaim. In their factum on the motion, the plaintiffs submitted that the modern, flexible approach to defamation pleadings did not save the pleadings because Mr. Siudak had failed to plead a prima facie case: there were no material facts as required under rule 25.06 but only bald assertions alleged in support of Mr. Siudak’s claim for defamation. They argued that the counterclaim failed to plead a reasonable cause of action and that the full adjudication of “its baseless allegations” would unreasonably complicate discovery and cause the unnecessary delay of the fair trial of the main action. They asserted that the allegations of civil conspiracy relied entirely on the very same allegations pleaded in support of the defamation claim and therefore suffered from the same deficiencies, and that, in any event, no actual, tangible harm was alleged, which was fatal to Mr. Siudak’s pleading. Finally, they submitted that no leave to amend should be granted because Mr. Siudak had no knowledge of the material facts necessary to support his claims.

(4) Motion judge’s dismissal of the plaintiffs’ motion to strike

[20] The motion judge dismissed the plaintiffs’ motion in brief oral reasons. He ordered that the moving parties pay Mr. Siudak his partial indemnity costs of the motion in the amount of $7,500. Given their brevity, I reproduce in full the motion judge’s transcribed reasons for dismissing the motion, as follows:

I am prepared to dismiss the motion before me. It does not make sense to me to say that there is a relaxed standard but you have to meet the rigid tests of the old law. Magnotta Winery Ltd. v. Ziraldo, [1995] O.R. No. (3d) 575 (Ont. Gen. Div.) and Catalyst I have read. I do not believe that the five sectors that are set out there, which are deemed to create a prima facie case of defamation, is merely an argument. The Court adopted it and I think it is in keeping with the modernization of the rules of pleadings.

With regard to the argument that it is an abuse of process to also bring the conspiracy to injure matter into play, I believe that is addressed squarely in Hunt. It is certainly too early to determine whether that is an abuse of process. I think that’s exactly what Hunt says and I’m adopting the analysis in that case.

I think because I have ruled that there is, indeed, a prima facie case made out, that most of the argument on whether or not this matter should be struck at this early stage is addressed.

The five elements in that case have been pled and I have read the pleadings very carefully. I did take a look at the five elements and the role may not be there to the satisfaction of the defendant [indiscernible] but they are there and that I think addresses the crux of what we’re talking about.

I appreciate this is brief, this is oral and this is specifically what is trying to be done with these Zoom meetings, hearings. The point is is [sic] to move matters forward rather than to delay this right through months [indiscernible] learned dissertation on all of the case law presented to me.

[21] The matter did not move forward as the motion judge had directed. The plaintiffs obtained leave to appeal the dismissal of their motion to the Divisional Court on December 2, 2020.

(5) Divisional Court allows the appeal and dismisses the counterclaim

[22] On February 12, 2021, the Divisional Court allowed the appeal, set aside the motion judge’s order and dismissed the counterclaim without leave to amend. The Divisional Court ordered that Mr. Siudak pay costs to the plaintiffs in the amount of $8,000 for the appeal and leave application.

[23] As set out below, the Divisional Court reasoned that, because the defamation claim was not pleaded with full particularity against at least one defendant, the “modern, relaxed approach” to defamation pleadings did not apply:

In this case, the Defendant/Plaintiff by counterclaim, Mr. Siudak, has not made out a prima facie case that any of the defendants to the counterclaim said anything in particular to anyone else about him at a specific time. He has not provided the circumstances of any communication, or identified any statement that is capable of being defamatory. Rather, the defamation claim is a set of bald allegations that one or more of the defendants said something to up to 60 unit owners, over three or four months, that caused him to be ejected from the Board of Directors of Bentley Place. Mr. Siudak does not know what the statement was, whether it was oral or written, when it was made, or to whom. He says that he is the victim of a smear campaign, but, based on his allegations, this is no more than speculation on his part.

Since Mr. Siudak has failed to make out a prima facie case of defamation against any individual, it is not open to the Court to assess the other allegations of defamation in the counterclaim using the modern, relaxed approach to pleadings in defamation cases. Accordingly, the counterclaim, insofar as it pleads defamation, must be struck.

[24] The Divisional Court saw “no point in granting leave to amend since it is clear Mr. Siudak cannot plead with greater specificity in respect of any individual defendant.”

[25] The Divisional Court also struck the claim for conspiracy, concluding that “[i]t is merely the defamation claim dressed in different clothing ” and that, as such, “if the defamation claim is struck, it cannot survive.”

[26] On July 6, 2021, Mr. Siudak obtained leave to appeal to this court.

Issues

[27] Mr. Siudak submits that the Divisional Court erred in setting aside the motion judge’s decision by making interrelated and reversible errors that I would summarize as follows:

i. The Divisional Court misstated the correct test on a motion to strike where defamation is pleaded and misapplied the correct test by failing to treat the allegations in Mr. Siudak’s pleadings as true, to read them generously, and to grant leave to amend to correct any pleading deficiencies. ii. The Divisional Court erred by failing to consider the “predominant purpose to injure” version of the tort of civil conspiracy Mr. Siudak had pleaded and by dismissing his claim in civil conspiracy as duplicative of the defamation claim at the early pleadings stage.

Analysis

(1) Standard of review

[28] The Divisional Court struck out without leave to amend the claims for defamation and civil conspiracy in Mr. Siudak’s counterclaim. While the court did not explicitly articulate the reversible error made by the motion judge that permitted appellate interference, its reasons suggest that the motion judge erred in law by misconstruing the modern, flexible approach to defamation pleadings, including whether Mr. Siudak had pleaded a prima facie case with sufficient particularity against at least one defendant. As a result, the court reviewed the motion judge’s decision on a correctness standard.

[29] As I am of the opinion that the Divisional Court erred in law in its application of the modern, flexible approach to defamation pleadings, the Divisional Court should have shown deference to the motion judge’s assessment of Mr. Siudak’s pleadings. As framed by the plaintiffs’ arguments, the motion judge’s assessment of the defamation claim was not a pure legal analysis. It required the application of the legal standard of the modern, flexible approach to defamation pleadings to an assumed set of facts, a question of mixed fact and law. At their core, the plaintiffs’ submissions did not require the motion judge to determine whether Mr. Siudak’s pleadings disclosed a known and tenable cause of action but, rather, whether the known cause of action was pleaded with sufficient particulars to satisfy the modern, flexible approach to defamation pleadings. The motion judge’s analysis therefore attracted a deferential standard. Moreover, the motion judge’s assessment of whether the defamation and civil conspiracy claims as pleaded might prejudice or delay the fair trial of the action and were scandalous, frivolous or an abuse of process, as argued by the plaintiffs, was an exercise of his discretion that is also subject to a deferential standard on appellate review: Frank v. Legate, 2015 ONCA 631, 339 O.A.C. 359, at para. 37; Resolute Forest Products Inc. v. 2471256 Canada Inc., 2016 ONSC 5398, 403 D.L.R. (4th) 121, at para. 13.

(2) Correct approach to motions to strike

[30] Before I turn to examine the Divisional Court’s decision and the particular pleadings of defamation and civil conspiracy, it is helpful to review the principles governing the correct approach for a court to take in general on a motion to strike pleadings, whether under rule 21 or rule 25. It is beyond well-established that the bar for striking a pleading is very high.

[31] In the case of a claim, the question is whether the action has no reasonable prospect of success or whether it is plain and obvious that the action cannot succeed. This high standard applies to determinations of fact, law, and mixed fact and law. The facts pleaded are treated as true unless they are manifestly incapable of being proven. And the pleadings should be read generously, accommodating any drafting deficiencies because cases should be determined on their merits based on the evidence presented before judges at trial. The court should always consider whether the deficiency can be addressed through an amendment to the pleadings and leave to amend should be denied only in the clearest of cases. See: Hunt, at p. 980; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 17, 22; Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, 447 D.L.R. (4th) 543, at paras. 87-88; per Karakatsanis J. (dissenting in part, but not on this point); Tran v. University of Western Ontario, 2015 ONCA 295, at paras. 16, 26-27; Abbasbayli v. Fiera Foods Company, 2021 ONCA 95, at para. 20.

[32] The correct approach was recently reiterated and summarized in Atlantic, at para. 90, per Karakatsanis J. (dissenting in part, but not on this point), as follows:

The threshold to strike is therefore high. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial. The correct posture for the Court to adopt is to consider whether the pleadings, as they stand or may reasonably be amended, disclose a question that is not doomed to fail. [Citations omitted.]

[33] The motivating rationale behind this high standard reflects the liberal construction of rules and pleadings that underlies the Rules of Civil Procedure and the requisite generous approach to pleadings in general, in order, as rule 1.04(1) provides, to “secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.”

[34] Pleadings are very important. They frame the proceedings and the case that must be met. However, long gone are the days where proceedings could be terminated at the early pleadings stage on mere technicalities that can be cured by amendment unless it would result in non compensable prejudice to the opposing party or the administration of justice. Motions to strike can certainly serve a useful purpose at early stages of a proceeding to weed out clearly untenable causes of action that have no chance of success: Imperial Tobacco, at para. 19. But in circumstances where parties are quibbling over whether a known cause of action has been pleaded with sufficient particularity, injudicious use of motions to strike inevitably lead to proceedings becoming mired down, as here, in technical pleadings disagreements that cause unnecessary delay and expense, rather than the adjudication of the dispute on the merits.

(3) The pleading of defamation

(a) The parties’ positions

[35] This ground of appeal turns on the Divisional Court’s interpretation of the modern, flexible approach to defamation pleadings, specifically, what is meant by a “prima facie case” of defamation. Both parties, as did the Divisional Court, rely on the articulation of the approach in this court’s decision in Catalyst. Mr. Siudak argues the Divisional Court misapplied the modern, flexible approach. The plaintiffs say the Divisional Court made no error.

[36] As I shall explain, respectfully, the Divisional Court misinterpreted the modern, flexible approach to defamation pleadings, particularly what is required to plead a “prima facie case”, and erred by effectively holding Mr. Siudak’s counterclaim to a more rigid standard. Moreover, in applying a more rigid standard, the Divisional Court failed to read the pleadings with a generous lens and to accommodate pleading deficiencies, which is the required approach on a motion to strike.

(b) Analysis of the Divisional Court’s approach

[37] The Divisional Court concluded that “before the court can apply the modern, flexible approach to pleadings in defamation the claimant, as the pre-requisite, must properly plead a prima facie claim in defamation against at least one defendant. That is to say, the plaintiff must plead that the defendant made a particular statement(s) to another, about the claimant, at a certain time and place and in certain circumstances, and that the statement(s) is capable of being defamatory.”

[38] There is no question that pleadings for defamation claims attract a high scrutiny for particularity, including, as the Divisional Court rightly noted, particulars of the alleged defamatory statement and its defamatory meaning, the time and place of publication, and the recipient(s) of the statement. The rationale behind this high standard arises from, as this court observed in Catalyst, at para. 24, “the serious nature of such allegations and the significance of context in assessing them”, with the result that “it is particularly important that the defendant know the case it has to meet.”

[39] However, the difficulty with the Divisional Court’s approach is that it requires that a claimant plead with strict precision a claim of defamation against at least one defendant before the modern, flexible approach can be applied to the pleading of defamation against other defendants. Respectfully, that approach is incorrect.

[40] The Divisional Court did not apply the modern, flexible approach correctly to the entirety of Mr. Siudak’s pleadings. The modern, flexible approach applies to the pleadings as a whole, even where there is only a claim for defamation against one defendant, to relax in appropriate circumstances the rigidity of the former approach and forgive certain pleading deficiencies that were previously fatal. The animating principle behind the modern, flexible approach to pleadings in defamation (like the approach to pleadings in general), is that a claimant must plead in good faith and with sufficient particularity the constituent elements of the tort of defamation so that the defendant is not left in the dark as to the case to be met.

[41] In Catalyst, this court explained, at para. 25, the modern, flexible approach and the circumstances in which it should be applied:

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. [Emphasis added.]

[42] What the court in Catalyst meant by a “prima facie case” is made clear by its adoption and application, at para. 28, of the following principles from Magnotta Winery.

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 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. [Emphasis added.]

[43] At para. 50, this court reiterated and summarized what is generally meant by a “prima facie case” by contrasting it with what it is not, namely, “a fishing expedition”. Putting it another way, the court instructed that claimants must proceed in good faith with “a prima facie case” that the court defined as “a “coherent body of fact” of which they do have knowledge” (emphasis added).

[44] Accordingly, when applicable, the modern flexible approach does not always and necessarily require exact particulars of the alleged defamation, namely, the exact words published, the exact dates and times of publication, or the exact names of the recipients of the defamatory words. Rather, pleading the gist of the defamatory words, specifying the timespan of publication, and identifying without naming the specific recipients of the defamatory words may be sufficient at the pleadings stage, so long as claimants proceed in good faith, plead all particulars within their knowledge and a coherent body of facts, such that the defendants know the case they have to meet.

[45] For example, in Magnotta Winery, the court forgave the plaintiff’s inability to plead not only the exact defamatory words but also the names of their recipients that were unnamed but identifiable as the organizers of an event at which the impugned statements were made because, as Lane J. found, at p. 584, “the plaintiff is pursuing a bona fide action; has pleaded what it can; has presented a prima facie case of the publication of defamatory words concerning it and its product; has presented a coherent set of facts in support; has explained its inability to plead the exact words used; and has demonstrated that the words can be obtained for ultimate inclusion in the pleading.”

[46] Similarly, in Catalyst, the plaintiffs alleged that the defendants had made defamatory comments about them in investment research reports that were sent to known and unknown market participants and distributed to the defendants’ unnamed subscribers and customers at unnamed times that were within the defendants’ knowledge. The court concluded that the pleadings, read as a whole, were not “impermissibly vague”. They did not leave the defendants in the dark and unable to respond to the allegations of publication because they knew to whom and within what timeframe they had published their own reports, even though some of the third parties to whom publication was said to have been made remained unnamed. The court found that the statement of claim set out the material facts in the claimants’ possession, properly pleading a claim in defamation and a related “coherent body of facts”.

[47] Another example is Paquette v. Cruji, (1979) 26 O.R. (2d) 294 (H.C.J.), to which the court in Catalyst referred at length. In Paquette, the plaintiff alleged that he was slandered by the defendant by communication with certain words to persons known and also unknown (but associated with particular institutions) at times unknown (though within a specified time span). The court allowed the plaintiff to pursue his claim despite this lack of precision because the particulars provided were sufficient for the defendants to “readily surmise the occasion of the alleged slanders”: Paquette at p. 298.

[48] Moreover, the Divisional Court’s approach that full particulars have to be pleaded against one defendant to apply the modern, flexible approach to another makes little sense when there is only a single defendant. This would be entirely inconsistent with the outcome of Paquette, for example, where the court applied the modern, flexible approach to a defamation claim involving a single defendant notwithstanding that not all particulars of the elements of the tort of defamation had been pleaded with strict precision.

[49] The Divisional Court’s approach was therefore flawed. As this court clarified in Catalyst, in applying the modern, flexible approach in an assessment of defamation pleadings, the real question is whether the pleadings disclose a “coherent body of fact” about the elements of a claim for defamation, such as the gist of the statement, time, place, speaker and audience. Or are the pleadings merely replete with bald allegations such that they amount to no more than “a fishing expedition” with the result that the defendant is left in the dark about the claim to be met.

[50] That is an inquiry that the court must undertake on a motion to strike based on the particular circumstances of each case and each pleading. As the court stated in Paquette at p. 297, cited with approval by this court in Catalyst at para. 35:

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.

[51] I turn now to consider the motion judge’s approach.

(c) Analysis of the motion judge’s approach

[52] The motion judge correctly interpreted and applied the modern, flexible approach to defamation pleadings set out in Catalyst and Magnotta Winery, to which he referred in his oral reasons. He reviewed Mr. Siudak’s statement of defence and counterclaim and determined that the pleading of defamation contained the requisite elements articulated in Magnotta Winery and adopted in Catalyst.

[53] A review of Mr. Siudak’s statement of defence and counterclaim demonstrates that the motion judge’s conclusion was reasonable. When the pleadings are read generously, as required, they are not, as the Divisional Court concluded, “a set of bald allegations”. Rather, as required, Mr. Siudak has pleaded the gist of the defamatory statements, their authors and recipients, and the circumstances under which they were made, including the temporal window in which they were communicated.

[54] This coherent body of facts sets out a prima facie case of defamation against the named defendants and should leave them in no confusion as to the case they have to meet at this early stage of the proceedings. As Mr. Siudak has pleaded, further particulars are likely within their own knowledge.

[55] I say this because the context in which the statement of defence and counterclaim must be read was set by the plaintiffs’ statement of claim. Mr. Siudak’s pleadings respond to the plaintiffs’ claim against him based on the negative comments he allegedly made concerning their management of and relationship with Wentworth and its Board. It is this dispute that ultimately led to Mr. Siudak’s ouster from the Board and his departure from Bentley Place. The plaintiffs’ claim and Mr. Siudak’s pleadings are two sides of the same coin. I also note that it has been the plaintiffs, and not the other named defendants by counterclaim, who have led the charge in contesting the validity and intelligibility of Mr. Siudak’s pleading: the plaintiffs brought the motion to strike, appealed the decision, and responded to this appeal. The other named defendants by counterclaim only attended before the motion judge and filed no materials. As a result, I am not persuaded that any of the defendants by counterclaim is left in the dark by Mr. Siudak’s pleadings.

[56] As Karakatsanis J. (dissenting in part, but not on this point) instructs in Atlantic, at para. 89: “Courts should consider whether the pleadings are sufficient to put the defendant on notice of the essence of the plaintiff’s claim”. Here, they were. Reading the pleadings generously (which must include both the statement of defence and counterclaim), and taking the pleaded allegations as true, I have no difficulty discerning what is meant by Mr. Siudak’s claim for defamation, for the reasons that follow.

(i) The alleged defamatory comments and their meaning:

[57] Mr. Siudak alleges that the respondents made defamatory comments about him to other owners with the view of ousting him from the Board. It is clear that Mr. Siudak is referring to the allegations of loss of confidence and breach of his duty of confidentiality that were described in the June 25 and July 28, 2019 letters sent by counsel for the Board, and raised at the July 2 and August 6, 2019 Board meetings by Mr. Casuccio and Ms. Scholes. To accuse a board member of breach of confidentiality goes to the heart of a board member’s duties and is capable of having a defamatory meaning.

[58] Those accusations were the focus of the discussion about how to remove Mr. Siudak as a Board director that Mr. Casuccio instigated by his threat to leave with the property manager and which Ms. Scholes continued by her questions concerning the removal process. Those accusations appeared as reasons for requesting Mr. Siudak’s ouster on the pre-printed document that Ms. Scholes produced, that she and Mr. Casuccio repeated orally at the July 2 meeting, and that were the subject of the vote put to the owners at the August 6 meeting where Mr. Siudak was ousted from the Board.

[59] I do not agree with the plaintiffs’ argument that by referring to the particulars as contained on the pre-printed document produced at the July 2 meeting, Mr. Siudak is attempting to raise new particulars of the alleged defamation or a new cause of action for libel. To the contrary, the reference to the particulars on the pre-printed document represents another example of the concretization of the defamatory statements and directly responds to the plaintiffs’ submission that the particulars of the alleged defamation are vague and unknown.

(ii) The times when the alleged defamation occurred:

[60] In his pleading, Mr. Siudak specifies the temporal window during which the publication of the alleged defamation occurred, as follows. Publication of the defamation started prior to the July 2 meeting. This is evidenced first by the timing and contents of Board counsel’s June 28 letter that contains the allegations of breach of confidentiality that Mr. Siudak pleads are defamatory. It is further supported by the fact that Ms. Scholes arrived at the meeting already armed with the pre-printed document containing owners’ names and the allegations of wrongdoing against Mr. Siudak that he pleaded are defamatory, as well as with questions about the procedure necessary to remove Mr. Siudak from the Board. Ms. Scholes’ advance preparation required her to speak to Mr. Casuccio and others about the defamatory allegations against Mr. Siudak. Publication of the alleged defamation continued following the July 2 meeting and up to the August 6 meeting when the defamatory allegations were repeated and highlighted in discussions, meetings, and written communications, and during the August 6 meeting when the vote was taken to remove Mr. Siudak from the Board.

(iii) The author(s) and recipients of the alleged defamation:

[61] Given the circumstances under which the removal process discussion arose during the July 2 meeting, the alleged defamatory comments about Mr. Siudak’s Board conduct are alleged to have been made by Mr. Casuccio and Ms. Scholes to each other, as well as to the 22 owners whose names appeared on the pre-printed form, prior to the July 2 meeting, and to the 60 owners, whose names are ascertainable from the minutes, who Mr. Siudak pleads were present at that meeting. The pleadings also allege that following the July 2 meeting, the defendants by counterclaim participated in the “smear campaign” orchestrated by Mr. Casuccio to encourage the owners, whose names are identifiable from Wentworth’s owners’ roll, to vote for Mr. Siudak’s ouster from the Board. It is understandable that Mr. Siudak cannot plead the exact words that were spoken or written because he was not privy to the clandestine conversations, meetings, and written communications that he alleges took place.

(iv) Good faith

[62] The Divisional Court’s focus was on the adequacy of Mr. Siudak’s pleadings. The court made no finding that Mr. Siudak was not proceeding in good faith. There is no question that the plaintiffs and the defendants by counterclaim took the position that Mr. Siudak had breached a duty of confidentiality owed as a Board member and that on the basis of at least this allegation, he was ousted from the Board and then left Bentley Place. It can hardly be said that in this context, by challenging as defamatory the accusation of breach of confidentiality, Mr. Siudak has embarked on “a fishing expedition” and is not proceeding in good faith. As the Supreme Court cautioned in Hunt, at p. 988, it is not for the court on a motion to strike to reach a decision as to Mr. Siudak’s chances of success so long as it is not plain and obvious that he has no chance of success.

[63] In my view, there were no reviewable errors in the motion judge’s determination. Moreover, if necessary, Mr. Siudak could amend following discoveries to provide further particulars: Paquette, at pp. 296-298; Catalyst at para. 26. There is no basis for appellate intervention.

(4) The pleading in civil conspiracy

(a) The parties’ positions

[64] Mr. Siudak submits that the Divisional Court erred in striking out his alternative claim for civil conspiracy because the court (1) misconstrued his conspiracy claim as one carried out by “unlawful means” rather than for the “predominant purpose” of causing him injury; (2) failed to recognize that his claim for civil conspiracy was not duplicative of but could be pleaded alongside his claim for defamation.

[65] The plaintiffs submit that the Divisional Court made no error and that the claim for civil conspiracy should be struck because it is duplicative of the defamation claim. They argue that since the conspiracy claim depends on the allegations of defamation, if the claim for defamation is ultimately dismissed at trial, the conspiracy claim must also fail. They say that in any event, Mr. Siudak’s pleadings are fatally flawed because he failed to plead that he suffered actual damage, a constituent element of the tort of civil conspiracy. According to the plaintiffs, the motion judge therefore erred in law by concluding that the claim for civil conspiracy should stand.

[66] In my view, the Divisional Court erred in its approach to Mr. Siudak’s pleading of civil conspiracy. It was neither duplicative of nor dependent on the success of his claim for defamation.

(b) Mr. Siudak’s pleading of civil conspiracy

[67] To provide a proper context for my analysis of the parties’ positions and the respective approaches of the Divisional Court and the motion judge, it is helpful to set out first a brief summary of Mr. Siudak’s pleading of his claim for civil conspiracy.

[68] The following excerpts summarize the relevant portions of Mr. Siudak’s pleading of the tort of civil conspiracy. Mr. Siudak alleges that Mr. Casuccio “planned and orchestrated the events that took place at the meeting held on or around July 2, 2019, as part of a conspiracy to remove [him] from the Board.” He pleads that as part of that conspiracy, Mr. Casuccio and the other named respondents participated in telephone calls and/or in person meetings with owners to convince them to vote to remove Mr. Siudak from the Board and elect a different director, and that during these calls and meetings they “made false, derogatory, and defamatory statements” about [him]”. He asserts that “[Mr. Casuccio] and [the other named defendants by counterclaim] conspired with one another, and mutually agreed, to engage in this smear campaign with the predominant purpose of causing injury to [Mr. Siudak] and [he] suffered damage as a result.”

(c) Analysis of the Divisional Court’s approach

[69] Both the Divisional Court and the motion judge referenced Hunt, at p. 985, where, referencing Canada Cement Lafarge v. B.C. Lightweight Aggregate, [1983] 1 S.C.R. 452, at pp. 471-472, Wilson J. for the court instructed that an actionable conspiracy will exist in the following situations:

Whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff; or

Where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result.

[70] In the latter situation, it is not necessary that the predominant purpose of the defendants’ conduct is to cause injury to the plaintiff. In both situations, however, there must be actual damage suffered by the plaintiff. See: Hunt at p. 85; Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460, 106 O.R. (3d) 427, at para. 24.

[71] The Divisional Court struck out without leave to amend Mr. Siudak’s claim for civil conspiracy. Unlike the pleading for defamation, the court did not find that the pleading for civil conspiracy lacked particularity. Rather, it determined that it was duplicative of the claim for defamation and held that since the defamation claim could not be sustained, neither could the conspiracy claim.

[72] As a result of its review of Hunt and survey of subsequent cases involving pleadings for both defamation and civil conspiracy, the Divisional Court concluded that: “The jurisprudence post Hunt that addresses civil conspiracy pleadings in defamation cases differs somewhat from Hunt and its progeny” in that courts have not permitted pleaded causes of action to stand that are no more than “dressed up claims in defamation”.

[73] The Divisional Court determined that as pleaded, Mr. Siudak’s claim for civil conspiracy was wholly founded upon defamation because he alleges that the defendants by counterclaim “conspired [to have [him]] removed from the Board by destroying his reputation with the owners”. It concluded:

This is not a case like Hunt where the tort of conspiracy is separate from the defamation. In this case, as in Bai v. Sing Tao Daily Ltd. (2003), 226 D.L.R. (4th) 477 (Ont. C.A.)] and Elliott v. Canadian Broadcasting Corp. (1993), 16 O.R. (3d) 677 (Ct.J.(Gen.Div.)], the unlawful means used in the conspiracy was Mr. Casuccio or others making defamatory statements. Since those pleadings are struck, there are no other unlawful means pleaded with respect to the conspiracy and, therefore, it too must be struck. [Emphasis added.]

[74] In my view, the Divisional Court took an overly narrow approach to Mr. Siudak’s pleading of civil conspiracy. The Divisional Court appears to have focussed on the first scenario discussed in Hunt, namely, that the defendants by counterclaim used the unlawful means of their alleged smear campaign to oust Mr. Siudak from the Board. However, as the determination of the issue was not relevant to its given rationale for striking the claim for civil conspiracy, the court did not consider whether Mr. Siudak’s pleadings gave rise to the other situation of predominant purpose articulated in Hunt and Lafarge.

[75] While Mr. Siudak’s pleadings give rise to the first situation, they do not necessarily exclude the second. For example, even if it is found that the impugned statements are not defamatory and that the alleged “smear campaign” was not unlawful, the tort of civil conspiracy could be founded on the pleaded allegation that the predominant purpose of the defendants by counterclaim in acting the way they did was to cause injury to Mr. Siudak. It is for that reason, according to Mr. Siudak, that the claim for civil conspiracy was pleaded in the alternative. When read generously, the pleadings do not limit the allegations to civil conspiracy by unlawful means but include that the alleged conspiracy was for the predominant purpose of injuring Mr. Siudak.

[76] Nor am I persuaded that the claim for civil conspiracy is duplicative of the claim for defamation or, as the Divisional Court found, “merely the defamation claim dressed in different clothing”. To the extent that this conclusion affected the outcome of the Divisional Court’s decision to strike the claim for civil conspiracy, it was in error.

[77] First, there is no general principle that a claimant may not allege alternative causes of action, so long as they are properly pleaded, even if they arise out of the same facts and give rise to the same measure of damages: Roach v. Random House of Canada Ltd., [2000] O.J. No. 2585 (Ont. S.C.), at para. 17; Avalon Rare Metals Inc. v. Hykawy, 2011 ONSC 5569, at para. 15; Catalyst, at para. 32. As the Supreme Court helpfully reminded in A.I. Enterprise Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, [2014] 1 S.C.R. 177, at para. 78, “general principles of tort liability accept concurrent liability and overlapping causes of action for distinct wrongs suffered by the plaintiff in respect of the same incident.”

[78] More specifically, I do not read the subsequent jurisprudence which the Divisional Court referenced, specifically, Bai and Elliott, as altering the approach set out in Hunt, at p. 991, that the mere fact that a claim for civil conspiracy is pleaded with another nominate tort should not, at least at the pleadings stage, mean that it is necessarily duplicative and should be struck. Indeed, the Supreme Court followed this approach in Young v. Bella, 2006 SCC 3 and in Bram.

[79] The fact that the claims for defamation and civil conspiracy are somewhat factually intertwined is not dispositive because it is not possible at an early stage of the proceedings to foretell their outcome: Catalyst, at para. 32; see also: Hunt, at p. 991. As earlier noted, in Catalyst, this court allowed pleadings of defamation and civil conspiracy to stand together, notwithstanding that those claims shared the same factual foundation of the defendants’ joint publication of defamatory statements in their respective investment research reports for the purpose of injuring the claimants’ reputations.

[80] The plaintiffs argue that in any event Mr. Siudak has failed to plead the constituent element of the tort of civil conspiracy that actual damage was suffered by him as a result of the alleged civil conspiracy beyond those exact same damages claimed for loss of reputation. As a result, his pleadings are fatally defective and his claim must fail.

[81] I do not agree with these submissions for three reasons.

[82] First, for the reasons I have already explained, I do not accept this argument that is more or less an extension of the previous argument that the conspiracy claim is duplicative of the defamation claim. Second, Mr. Siudak did plead that the conspiracy (as opposed to simply the defamatory statements) caused him injury and damage. And third, on a generous reading of the pleadings, Mr. Siudak’s alleged damages transcend mere loss to his reputation and include his removal from the Board, the sale of his condominium and his departure from Bentley Place. If necessary, further particulars of his damages can be provided at his examination for discovery.

(d) Analysis of the motion judge’s approach

[83] I do not see any basis to interfere with the motion judge’s decision not to strike the claim for civil conspiracy. The motion judge’s reasons clearly show that he reviewed the pleadings and considered the guiding principles in assessing the claim for civil conspiracy. In particular, he considered the test set out in Hunt, at p. 988: “Is it plain and obvious that allowing this action to proceed amounts to an abuse of process?” The motion judge rightly concluded that at the early pleadings stage of the litigation, he could not say that it amounted to an abuse of process. His decision reflects no error in principle and is owed deference on appeal.

(5) Should further particulars be provided by Mr. Siudak by amendment to his pleadings?

[84] As alternative relief on this appeal, Mr. Siudak seeks leave to amend his pleadings if this court determines that his pleadings are defective.

[85] For the reasons I have explained, I would set aside the Divisional Court’s decision and reinstate the motion judge’s dismissal of the motion to strike. The motion judge was not in error and his decision is therefore entitled to appellate deference. His approach was concise and practical: the pleadings were not deficient in particulars or an abuse of process. He anticipated that further particulars of Mr. Siudak’s allegations could be obtained through the discovery process. As a result, appellate interference is unwarranted. The motion judge’s approach “to move matters forward” was a very sensible one.

[86] In any event, there is no reason in the circumstances of this case to encourage further delay and expense by unnecessarily requiring Mr. Siudak to amend his pleadings. This was clearly not a fishing expedition, or a counterclaim brought in bad faith. The plaintiffs and defendants by counterclaim are well aware of the case they have to meet.

Conclusion

[87] This court has emphasized many times that the bar for striking a pleading is very high. As the motion judge appropriately recognized, this was a pleadings motion brought at the very beginning of the proceedings. He correctly referenced and applied the guiding principles and properly determined that it was not plain and obvious that Mr. Siudak’s counterclaim lacked the requisite particularity or was an abuse of process.

[88] As a result, there is no basis for appellate intervention.

Disposition

[89] For these reasons, I would allow the appeal and restore the motion judge’s July 14, 2020 order, including his award of costs to Mr. Siudak in the amount of $7,500, and further award Mr. Siudak the costs that were awarded by the Divisional Court to the plaintiffs, including those for the leave application, in the amount of $8,000.

[90] Mr. Siudak is also entitled to his partial indemnity costs of this appeal from the plaintiffs, including the leave application, in the amount of $15,000, inclusive of disbursements and applicable taxes.

Released: September 7, 2022 “K.F.” “L.B. Roberts J.A.” “I agree K. Feldman J.A.” “I agree L. Favreau J.A.”

Erratum

On September 12, 2022, corrections were made related to the citations for Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, 447 D.L.R. (4th) 543 in paras. 31, 32 and 56.

Footnotes

[1] This letter was not produced on appeal; the contents are taken from paragraph 52 of Mr Siudak’s statement of defence and counterclaim.

[2] Again, this letter is not part of the appeal record.