Court of Appeal for Ontario

CITATION: Presutti v. Varone, 2009 ONCA 436

DATE: 20090527

DOCKET: C49637

Goudge, Sharpe and Armstrong JJ.A.

BETWEEN:

Bruno Presutti

Plaintiff/Appellant

and

Ottavio Varone, Maria N. Varone and the Estate of Filippa Coia

Defendants/Respondents

Counsel:

D. Fiske and S. Purewal, for the plaintiff/appellant

A. Mankotia, for the defendants/respondents

Heard: April 22, 2009

On appeal from the order of Justice John R.R. Jennings of the Superior Court of Justice dated October 20, 2008.

Reasons for Decision

By The Court:

[1] The appellant appeals an order striking the statement of claim pursuant to Rule 21 as disclosing no cause of action. The statement of claim alleged both slander and libel arising from statements made in relation to a disputed real estate transaction for which the appellant is alleged to have acted as the respondents’ agent.

[2] With respect to slander the statement of claim pleads that the respondents verbally accosted the plaintiff at his office and accused him of being a “crook”. The statement of claim alleges that the words complained of “were uttered in the presence of the plaintiff”. The motion judge struck out that allegation on the ground that the pleading failed to allege that the words complained of were spoken to any one other than the plaintiff.

[3] The alleged libel arises from a letter written by the appellants’ solicitors and addressed to the appellant and to “Re/Max Hallmark Realty Ltd.” The letter alleges certain suspicious circumstances arising from the sale of the home of the deceased for which the appellant acted as agent. The appellant is said in the letter to have been employed at the time by “Re/Max Estates Ltd.” The letter in effect puts the addressees on notice that a claim and a complaint to the Toronto Real Estate Board will most likely result from the disputed transaction.

1. Slander

[4] We agree with the motion judge that as the statement of claim fails to allege that the words complained of were spoken to anyone other than the plaintiff, the statement of claim fails to plead facts necessary to sustain a claim for slander. Before us, the appellant did not quarrel with that proposition but argued that the motion judge should have given him an opportunity to amend the statement of claim. However, when asked to explain the amendment that would be made should leave be granted, counsel was only able to state that the claim would be amended to say that the statement was made to the plaintiff and “other persons”. Counsel added that the appellants could then ask for particulars of that allegation and that if adequate particulars were not given, the claim could be dismissed at that stage. This explanation falls well short of persuading us that the appellant should be given the opportunity to amend the claim.

2. Libel

[5] The motion judge struck the libel claim on two grounds. First, the claim simply quotes the letter in its totality and fails to specify the very words complained of so as to enable the respondents to know how to plead to the claim. Second, the motion judge concluded that as the letter was sent in the course of counsel’s investigation with a view to bringing a lawsuit, it attracted absolute privilege.

[6] We agree that the statement of claim is deficient for failing to specify the very words complained of.

[7] Before this court, counsel for the appellant conceded that had the letter been addressed to the proper parties, it would have attracted absolute privilege. The appellant points to the fact that the letter was addressed to “Re/Max Hallmark Realty Ltd.” but complained of the conduct of “Re/Max Estates Ltd.” The appellant submits that as the statement of claim pleads that Re-Max Hallmark Realty Ltd. is an “unknown third party”, on the facts pleaded, the letter was addressed to a third-party stranger to the dispute and that therefore any privilege attaching to the letter would be lost. While the appellant also pleads that “the content of the letter was communicated…to his employer”, when the pleading is read as a whole, it is apparent from the letter itself that it was only sent to the appellant at his employer’s address and not sent separately to his employer.

[8] As the motion judge pointed out in his reasons, the threatened action was in fact commenced shortly after the letter was sent naming the appellant and Re/Max Hallmark Realty Ltd. as defendants. That statement of claim was contained in the record before the motion judge and no issue is taken with its relevance to the issue before us.

[9] In the light of the positions taken by the parties before the motion judge and before this court, it would be inappropriate for us to make any pronouncement on the application of absolute privilege and we refrain from doing so. Our decision is limited to a response to the point argued before us.

[10] The appellant based the appeal against striking the claim for libel on one point, namely, the submission that the letter was send to a third-party stranger to the dispute. We reject that submission. Shortly after the letter was sent, the very claim it threatened was initiated against the very parties to whom the letter was addressed. On that basis, we see no reason to interfere with the decision of the motion judge that the statement of claim of claim should be struck out pursuant to Rule 21.

[11] In view of this conclusion it is unnecessary for us to consider whether leave to amend should be given to permit the appellant to specify the very words complained of.

Conclusion

[12] Accordingly the appeal was dismissed with costs to the respondents fixed at $7500.

“S.T. Goudge J.A.”

“Robert J. Sharpe J.A.”

“R.P. Armstrong J.A”

RELEASED: May 27, 2009