Grant v. Cormier-Grant

Grant v. Cormier-Grant et al. [Indexed as: Grant v. Cormier-Grant]

56 O.R. (3d) 215

[2001] O.J. No. 3851

Docket No. C35830

Court of Appeal for Ontario

Morden, Austin and Borins JJ.A.

October 3, 2001

[Quicklaw note: In the paper version, the two decisions of the Court of Appeal (Morden, Austin and Borins JJ.A.), dated October 3, 2001 and November 19, 2001 were published together at 56 O.R. (3d) 215. The two decisions have been separated in the online version to enable linking to citators. The November 19, 2001 endorsement begins at 2001 27938 (ON CA), 56 O.R. (3d) 225. The following headnote was published on the combined case.]

Torts -- Libel and slander -- Identification -- Identification of plaintiff by name not required if defamatory words used would lead ordinary sensible person who pays reasonable attention to contents of communication to understand it was plaintiff to whom defendant referred -- Test is objective.

Torts -- Libel and slander -- Pleadings -- Variance between pleading and evidence of words actually spoken immaterial if words spoken convey practically same meaning as words pleaded -- Motion judge erred in granting motion for summary judgment dismissing defamation action on basis of variance between evidence and statement of claim -- Motion judge should have granted plaintiff leave to amend statement of claim to conform with evidence of words spoken by defendant.

The plaintiff alleged that he was defamed when the defendant, his former sister-in-law, stated in a telephone conversation with her daughter's doctor that the daughter had been sexually abused by her uncle. The motion judge granted the defendant's motion for summary judgment dismissing the plaintiff's defamation action on the basis that, although the evidence disclosed that the defendant made a defamatory statement to the doctor, it was not the statement pleaded by the plaintiff. She also found that the defendant's statement to the doctor was protected by qualified privilege and the plaintiff had not pleaded malice. Finally, she found that the plaintiff had provided no evidence that the doctor understood the words to have referred to him. The plaintiff appealed.

Held, the appeal should be allowed.

In defamation actions, particularly actions of slander, although precise words must be pleaded in the statement of claim, the plaintiff does not have to prove that these precise words were in fact published. It is sufficient if the plaintiff proves words which are substantially to the same effect. Given that, at trial, considerable tolerance is afforded a plaintiff in a slander action where there is a variance between pleading and proof, the motion judge should not have dismissed the claim and should have given the plaintiff an opportunity to amend the statement of claim to conform with the evidence of the words spoken by the defendant.

The motion judge erred in finding that the plaintiff failed to plead malice and that, even if malice had been pleaded, he failed to adduce evidence of malice. Malice was in fact pleaded, and there was extrinsic evidence from which the trier of fact could infer that the defendant was actuated by malice. Malice can take the form of any improper motive for speaking the words complained of, and is not limited to knowledge that the statement was false or that it was published reckless as to its truth or falsity, as the motion judge appeared to believe.

The motion judge erred in concluding that there was no genuine issue for trial concerning the identification of the plaintiff as the person concerned. There was evidence that was capable of establishing that the doctor understood the words spoken to have referred to the plaintiff. However, in approaching the issue of identification from the perspective of whether the doctor knew the words spoken referred to the plaintiff, the motion judge did not apply the correct analysis. Where, as in this case, the plaintiff's name does not appear in the defamatory statement, it must be shown that the words used, or the circumstances attending the publication are such as would lead reasonable persons to understand that it was the plaintiff to whom the defendant referred. The test is an objective one, whether on the evidence an ordinary person would draw the inference that the words referred to the plaintiff. In the circumstances of this case, the test was not confined to whether only the doctor could identify the defamatory statement with the plaintiff. The record was sufficient to permit a jury, applying the proper test, to find that the words referred to the plaintiff. Thus, an issue of fact was raised of whether a person hearing the words which the defendant spoke to the doctor would reasonably understand that the words were spoken of and concerning the plaintiff.

APPEAL from a summary judgment dismissing a defamation action.

Morgan v. Odhams Press Ltd., [1971] 2 All E.R. 1156, [1971] 1 W.L.R. 1239, 115 Sol. Jo. 587 (H.L.), apld Other cases referred to Arnott v. College of Physicians & Surgeons (Saskatchewan), 1954 60 (SCC), [1954] S.C.R. 538, [1955] 1 D.L.R. 1; David Syme & Co. v. Canavan (1918), 25 C.L.R. 234 (Aust. H.C.); Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257, 20 R.P.R. (3d) 207 (Ont. C.A.); Fraser v. Sykes, 1973 153 (SCC), [1974] S.C.R. 526, 39 D.L.R. (3d) 321, [1973] 5 W.W.R. 484, affg 1971 ALTASCAD 16, [1971] 3 W.W.R. 161 (Alta. C.A.), affg (1970), 1970 1214 (AB SCTD), [1971] 1 W.W.R. 246 (Alta. T.D.); Knupffer v. London Express Newspaper Ltd., [1944] 1 All E.R. 495, [1944] A.C. 116, 113 L.J.K.B. 251, 170 L.T. 362, 60 T.L.R. 310, 88 Sol. Jo. 143 (H.L.); Mouammar v. Bruner (1978), 1978 1676 (ON SC), 19 O.R. (2d) 59, 84 D.L.R. (3d) 121, 6 C.P.C. 320n (H.C.J.) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 20 Authorities referred to Brown, R.E., The Law of Defamation in Canada, 2nd ed., looseleaf (Toronto: Carswell, 1999) Clerk, J.F., Clerk & Lindsell on Torts, 18th ed. (London: Sweet & Maxwell, 2000) Fleming, J.G., The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) Gatley, C., Gatley on Libel and Slander, 9th ed. (London: Sweet & Maxwell, 1998) Keeton, W.P., ed., Prosser and Keeton on the Law of Torts, 5th ed. (St. Paul, Minn.: West Pub. Co., 1984)

James C. Morton, for appellant. Ingrid Van Weert, for respondent.

The judgment of the court was delivered by

[1] BORINS J.A.: -- This is an appeal by Scott Grant from the summary judgment granted by Low J. dismissing his claim for damages for defamation against the respondent Jenny Cormier- Grant, who is the former wife of his brother.

[2] The appellant alleged that he was defamed when the respondent accused him of sexually assaulting her daughter, J., who is the appellant's niece. The respondent made the alleged defamatory statement in a telephone conversation with her daughter's physician, Dr. Steven Lau. The respondent raised two defences: (1) any words that were spoken to Dr. Lau were spoken on an occasion of qualified privilege; (2) because any words spoken to Dr. Lau did not identify the appellant as the person who had sexually assaulted her daughter, the words were not spoken of and concerning the appellant.

[3] The motion judge found that the evidence disclosed no genuine issue for trial. Accordingly, she dismissed the appellant's claim. Her principal reason for doing so was that, although the evidence disclosed that the respondent made a defamatory statement to Dr. Lau, it was not the statement pleaded by the appellant. She concluded that "technically speaking" the variance between the evidence and the statement of claim put an end to the appellant's claim "in the absence of an amendment to the pleading by the plaintiff alleging publication in accordance with the evidence and alleging by way of true innuendo facts establishing that the words were understood to have been published of and concerning the plaintiff". However, the motion judge did not consider whether leave should be granted to the appellant to amend his statement of claim to conform with the evidence.

[4] The motion judge then considered the two defences raised by the respondent, qualified privilege and lack of identification.

[5] She found as a matter of law that as the respondent and Dr. Lau, "parent and physician of the child J., respectively, have a reciprocating duty and interest to give and receive communications concerning J.'s health and welfare", the respondent's communication was protected by qualified privilege. She concluded that as the appellant had not pleaded that the respondent made the communication maliciously, which if proved would defeat the defence of qualified privilege, his action should be dismissed. She added that even if the appellant had pleaded malice, she would have come to the same result as the appellant had failed to adduce any evidence to support the proposition that the respondent knew the statement to be false or that she published it reckless as to its truth or falsity.

[6] As for the defence of lack of identification, the motion judge found that the appellant had provided no evidence that "Dr. Lau understood the words to have referred to the plaintiff nor that he had the information to so deduce". She held that the appellant's "bald allegation" that Dr. Lau understood the words to refer to him was insufficient to raise a genuine issue for trial on whether the words spoken by the respondent identified the appellant as the person defamed.

[7] The appellant raised three grounds of appeal. He contended that the motion judge erred:

(1) In failing to grant leave to amend the statement of claim to conform with the evidence of the statement made by the respondent to Dr. Lau.

(2) In finding that he failed to plead malice in respect to the defence of qualified privilege and that there was no evidence that in making the statement the respondent was actuated by malice.

(3) In concluding that there was no genuine issue for trial concerning the identification of the appellant as the person defamed.

For the reasons that follow, I would give effect to each of these grounds.

[8] Although the motion judge was satisfied that the evidence disclosed that the respondent had made a defamatory statement to Dr. Lau, the motion judge nevertheless dismissed the appellant's claim because that statement differed from the defamatory statement pleaded by him. In reaching this conclusion, the motion judge overlooked the special circumstances that apply in defamation actions where there is a variance between the words published and the words pleaded. Particularly in actions of slander, although precise words must be pleaded in the statement of claim, the plaintiff does not have to prove that these precise words were in fact published. As stated in Gatley on Libel and Slander, 9th ed. (London: Sweet & Maxwell, 1998) at p. 807:

It is sufficient if [the plaintiff] proves a material and defamatory part of them or words which are substantially to the same effect. In such a case, if the words proved convey to the mind of a reasonable [person] practically the same meaning as the words set out, the variance will be immaterial.

[9] We were not told the nature of the variance between the defamatory words pleaded and those disclosed by the evidence. I have been unable to discern the nature of the variance from examining the motion record. Given that at trial considerable tolerance is afforded to a plaintiff in a slander action where there is a variance between pleading and proof, in my view, the motion judge should not have dismissed the plaintiff's claim. The proper course for her to have followed was to give the appellant an opportunity to amend his statement of claim to conform with the evidence of the words spoken by the respondent.

[10] With respect to the second ground of appeal, the parties do not contest the motion judge's finding that the words complained of were spoken by the respondent to Dr. Lau on an occasion of qualified privilege. However, the appellant submitted that the motion judge erred in finding that he failed to plead malice and that even if malice had been pleaded, he had failed to adduce evidence of malice.

[11] I agree with the appellant's submission on the issue of malice and would give effect to this ground of appeal. Malice is pleaded in para. 6 of the statement of claim. Whether the respondent was actuated by malice when she spoke the words in issue requires that the trier of fact determine her state of mind at that time. I also agree with the appellant, on the basis of the evidence summarized in his factum, that there is evidence that raises a genuine issue for trial whether the respondent was actuated by malice when she spoke the words complained of to Dr. Lau. In most cases, there is rarely direct evidence of malice, and this case is no exception. In my view, there is extrinsic evidence from which the trier of fact could infer that the respondent was actuated by malice. I would add that malice can take the form of any improper motive for speaking the words complained of, and is not limited to knowledge that the statement was false or that it was published reckless as to its truth or falsity as the moti on judge appeared to believe.

[12] In my view, malice could be inferred from the following evidence: (1) the respondent made the communication to Dr. Lau after she had been advised that the respondent had not been at home during the weekend in question and that J. had told her father that the allegations were a "fib"; (2) the respondent did not notify the police about the allegations; (3) the respondent refused to take J. to a doctor or to a hospital, despite requests made by the child's father; (4) the respondent permitted J.'s father to continue having access to J. in the appellant's home subsequent to the alleged sexual assault. It is the appellant's position that this evidence is capable of supporting the inference that the respondent was motivated to defame him when she contacted Dr. Lau.

[13] Finally, I do not agree with the motion judge's conclusion that there is no genuine issue for trial concerning the identification of the appellant as the person defamed. As I will explain, the motion judge applied an incorrect analysis in deciding this issue.

[14] Before considering the law that pertains to identification, referred to by the authorities as the colloquium, it is helpful to examine the evidence of identification that was before the motion judge. In my view, there was evidence that was capable of establishing that Dr. Lau understood the words spoken to have referred to the appellant. However, as I will explain, in approaching the issue of identification from the perspective of whether Dr. Lau knew the words spoken referred to the appellant, the motion judge did not apply the correct analysis.

[15] In his responding affidavit the appellant stated:

Although Dr. Lau indicates that he was not provided with a name he was told by [the respondent] that the assault was committed by J.'s uncle, [the respondent's] ex-husband's brother, which I verily believe is, in the circumstances, sufficiently specific to identify me.

[16] The appellant attached to his affidavit a copy of a letter from Dr. Lau to his lawyer, as well as a copy of Dr. Lau's clinical notes. In the letter to the appellant's lawyer, Dr. Lau said:

On 23 Oct. 1998 [the respondent] came to see me and informed that J. said her uncle touched her (J.) in her private area with his hand and penis. [The respondent] did not mention any name.

In his clinical notes of October 23, 1998, Dr. Lau wrote:

According to Jenny, mother, last weekend [J.] was with Dad (17-18 Oct. 98) and J. said uncle (ex-husband's brother) touched her in her private area; touched her with his hand and penis.

[17] In October 1998, J.'s father was living with the appellant in the appellant's home. He had weekend access to his daughter, who spent the weekends with her father in the appellant's home. There is a third brother in the appellant's family.

[18] The law with respect to the test which the trier of fact must apply in deciding whether the defamatory words were published of and concerning the plaintiff is contained in two leading cases: Knupffer v. London Express Newspaper Ltd., [1944] A.C. 116, [1944] 1 All E.R. 495 (H.L.) and Morgan v. Odhams Press Ltd., [1971] 2 All E.R. 1156, 115 Sol. Jo. 587 (H.L.). Knupffer was applied by the Supreme Court of Canada in Arnott v. College of Physicians & Surgeons (Saskatchewan), 1954 60 (SCC), [1954] S.C.R. 538, [1955] 1 D.L.R. 1. The legal principles are conveniently summarized in Gatley on Libel and Slander, supra, at pp. 161-64 and pp. 808-11 and R.E. Brown, The Law of Defamation in Canada, 2nd ed., looseleaf (Toronto: Carswell, 1999) at Vol. 1, pp. 6-1 to 6-47.

[19] An essential element of the tort of defamation is proof that the defamatory statement was published of and concerning the plaintiff. Where, as in this case, the plaintiff's name does not appear in the defamatory statement, "it must be shown that the words used, or the circumstances attending the publication are such as, would lead reasonable persons to understand that it was the plaintiff to whom the defendant referred": See Brown at p. 6-2. I would adopt and apply the following statement of the law in Brown at pp. 6-2 to 6-3:

In an action for defamation, it is the plaintiff's reputation that must be adversely affected. Therefore, in order to recover, the plaintiff must plead and prove that he or she is the one to whom the defamatory statement refers, that is, it must be shown to have been published 'of and concerning' the plaintiff. The defamatory publication 'must refer to some ascertained or ascertainable person, and that person must be the plaintiff.' It must refer to or concern him personally. The test in every case is whether the ordinary sensible person to whom the words were published would understand them as referring to the plaintiff.

(Footnotes omitted)

[20] In respect to identifying the plaintiff as the person defamed, Brown states at pp. 6-5 to 6-6:

It is not necessary that the plaintiff be identified by his or her proper name, or even mentioned at all, if it is otherwise shown that the words would be reasonably understood to refer to the plaintiff. He or she may be referred to in the guise of some fictional or historical character or by a play on words. It may be clear from other evidence that he was the one alluded to, but he must satisfy the court in that regard. This may be done by introducing evidence, apart from the publication, connecting the plaintiff with the defamatory publication. The question in such a case is whether or not the words used are such as to lead an ordinary sensible person, or reasonable persons, who pay reasonable attention to the contents of the communication, to understand that it was the plaintiff to whom the defendant referred.

The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to? That does not assume that those persons who read the words know all the circumstances or all the relevant facts. But although the plaintiff is not named in words, he may, nevertheless, be described so as to be recognized; and whether that description takes the form of a word-picture of an individual or the form of a reference to a class of persons of which he is or is believed to be a member, or any other form, if in the circumstances the description is such that a person hearing or reading the alleged libel would reasonably believe that the plaintiff was referred to, that is a sufficient reference to him.

(Footnotes omitted)

The test quoted by Brown is contained in the reasons of Isaacs J. in David Syme & Co. v. Canavan (1918), 25 C.L.R. 234 at p. 238 (Aust. H.C.) and was applied in Fraser v. Sykes, 1970 1214 (AB SCTD), [1971] 1 W.W.R. 246 at p. 258 (Alta. T.D.), affd (1971), 1971 ALTASCAD 16, 19 D.L.R. (3d) 75, [1971] 3 W.W.R. 161 (Alta. C.A.), affd sub nom. Sykes v. Fraser, 1973 153 (SCC), [1974] S.C.R. 526, 39 D.L.R. (3d) 321. It was also applied in Mouammar v. Bruner (1978), 1978 1676 (ON SC), 19 O.R. (2d) 59, 84 D.L.R. (3d) 121 at pp. 123-24 (H.C.J.).

[21] A similar statement of the test to be applied in deciding whether the defamatory statement was published of and concerning the plaintiff is found in Gatley on Libel and Slander, op. cit., at p. 161: "The test is whether the plaintiff may reasonably be understood to be referred to by the words." The authority provided for the test is the same passage from the reasons of Isaacs J. in David Syme & Co. v. Canavan quoted by Brown at pp. 6-5 to 6-6. At pp. 163-64, the discussion of the test continues:

Where the plaintiff is referred to in an indirect way or by implication it will be a question of degree how far evidence will be required to connect the libel with him. At one extreme, if there is a libel on "the Prime Minister" that officer does not need to produce witnesses to testify that they know who he is. At the other extreme, the plaintiff may only be identifiable by reason of extrinsic facts which are not generally known, in which case there is no actionable publication unless it is shown that the words were communicated to persons with such knowledge. Even in the latter type of case, however, it is not enough that the recipients of the statement did understand it to refer to the plaintiff: the issue is whether reasonable people with their knowledge would so understand it.

(Footnotes omitted)

[22] In the United States, the authorities support a similar test regarding the identity of the plaintiff as the subject of a defamatory statement. The test is described in Prosser and Keeton on The Law of Torts, 5th ed. (St. Paul, Minn.: West Pub. Co., 1984) at p. 783:

A publication may clearly be defamatory as to somebody, and yet on its face make no reference to the individual plaintiff. In such a case the plaintiff must sustain the burden of pleading and proof, by way of "colloquium," that the defamatory meaning attached to him. If he fails to do so, he has not made out his case. He need not, of course, be named, and the reference may be an indirect one, with the identification depending upon circumstances known to the hearers, and it is not necessary that every listener understand it, so long as there are some who reasonably do; but the understanding that the plaintiff is meant must be a reasonable one, and if it arises from extrinsic facts, it must be shown that these were known to those who heard.

(Footnotes omitted)

[23] In considering whether the alleged defamatory statement in Arnott was of and concerning the plaintiff, Kellock J. stated at p. 554 S.C.R.:

As in Knupffer v. London Express, there are two questions involved in the attempt of the appellant to identify himself as a person defamed by the words here complained of. The first question is one of law, namely, in the words of Viscount Simon L.C., in the above case, at p. 121,

can the article, having regard to its language, be regarded as capable of referring to the appellant?

It is only when that question is answered in the affirmative that the second question, one of fact, arises, namely,

does the article, in fact, lead reasonable people, who know the appellant, to the conclusion that it does refer to him?

[Citation omitted]

At p. 555 S.C.R., Kellock J. stated the test to be applied as follows:

To employ the language of Viscount Simon in the Knupffer case:

Where the plaintiff is not named, the test which decides whether the words used refer to him is the question whether the words are such as would reasonably lead persons acquainted with the plaintiff to believe that he was the person referred to.

[24] It is clear from the decision of the House of Lords in Morgan that the test is an objective one, whether on the evidence an ordinary sensible person would draw the inference that the words referred to the plaintiff. As pointed out in Gatley on Libel and Slander, at p. 809, in cases like Morgan and this case where the plaintiff's name does not appear in the defamatory statement, "extrinsic evidence must be given 'to connect the libel with the plaintiff', evidence from which it would be reasonable to deduce that the defamatory words 'implicated' the plaintiff". The House of Lords in Morgan, reversing the Court of Appeal, found that it would not have been unreasonable for a hypothetical sensible reader who knew the special facts to infer that the article referred to the plaintiff. The House of Lords was satisfied that the articles complained of had to contain something which, to the mind of a reader with knowledge of the relevant circumstances, contained defamator y imputations and pointed to the plaintiff as the person defamed.

[25] I would observe that although the cases to which I have referred considered the issue of identification in the context of a libel case, and, indeed the legal treatises also discuss the issue in that context, I can see no reason in principle why the test to be applied in determining whether a defamatory statement refers to the plaintiff should not be the same in slander cases.

[26] It is also helpful to consider the roles of the judge and jury in respect to the issue of identification. Brown describes them as follows at pp. 6-45 to 6-46:

The initial question in each of these cases is whether or not the language used in the publication is capable of referring to the plaintiff. This is a question of law for the trial judge to decide. Once a judge has determined that the publication is reasonably capable of referring to the plaintiff, it is then for the jury to decide whether or not it did, in fact, refer to him or her, and whether the persons testifying that they understood the words to refer to the plaintiff were right in that belief.

(Footnotes omitted)

We were not told whether this action is to be tried by a jury. If there is no jury, then it will be the trial judge who must decide, as a question of fact, whether the defamatory statement referred to the appellant.

[27] The motion judge held that there was no genuine issue for trial in respect to identification because there was no evidence that "Dr. Lau understood the words to have referred to the plaintiff nor that he had the information to do so". In my view, the motion judge failed to apply the proper test in determining whether there was sufficient evidence to allow the action to proceed to trial on the issue [of] whether or not the defamatory statement referred to the appellant. As the authorities indicate, the test is an objective one and, in the circumstances of this case, is not confined to whether only Dr. Lau could identify the defamatory statement with the appellant. As stated in J.G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998), at pp. 593-94:

If the allegation is ex facie defamatory and refers by name to the person defamed or, without mentioning him by name, describes him in such a way that the man in the street would know to whom it referred, it is unnecessary to prove that the person to whom it was published had any knowledge of the plaintiff or that the allegation led him to think the less of him.

See, also, Clerk & Lindsell on Torts, 18th ed. (London: Sweet & Maxwell, 2000) at pp. 22-17 to 22-18.

[28] Although it is true that the name Scott Grant does not appear in the words spoken by the respondent to Dr. Lau, he was indicated "by designation or description", to use the expression adopted in the cases which I have reviewed. He was indicated by his relationship to the respondent as her ex- husband's brother and the uncle of J. Although it will be for the trial judge to decide, there can be little doubt that there is evidence that the words complained of referred to the appellant. This is the first of the two questions involved where the plaintiff is required to identify himself or herself as the person defamed.

[29] It would appear that in this case the more significant issue is the second question, which requires the appellant to satisfy the trier of fact whether the respondent's words are such as would reasonably lead sensible persons with knowledge of the relevant or special circumstances to believe that he was the person to whom the respondent referred. In this regard, the relevant or special circumstances are: (1) the appellant's brother had been divorced from the respondent, and was residing with the appellant in the appellant's home; (2) the appellant's brother had access to his daughter, J., on weekends; and (3) J. lived with her father in the appellant's home during the times when he had access to her.

[30] Given the respective roles of the judge and jury in determining whether a defamatory statement in fact refers to the plaintiff and applying the principles that pertain to Rule 20, Rules of Civil Procedure, R.R.O. 1990, Reg. 194, motions for summary judgment stated by this court in such cases as Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4th) 257, 20 R.P.R. (3d) 207 (Ont. C.A.), I am satisfied that the words spoken by the respondent can be regarded as capable of referring to the appellant and that the record is sufficient to permit a jury, applying the proper test, to find that the words referred to the appellant. Thus, an issue of fact is raised of whether a person hearing the words which the respondent spoke to Dr. Lau would reasonably understand that the words were spoken of and concerning the appellant. It follows that the motion judge erred in finding that the respondent had established that there was no genuine issue for trial on the issue of identification.

[31] I would, therefore, allow the appeal, set aside the judgment dismissing the appellant's claim, and dismiss the respondent's motion for summary judgment. In addition, the appellant is granted leave to amend his statement of claim, if so advised. The appellant is entitled to his costs of the motion and the appeal.

Appeal allowed.