Asper et al. v. Lantos et al. [Indexed as: Asper v. Lantos]

51 O.R. (3d) 215

[2000] O.J. No. 3712

Court File No. 359/2000

Ontario Superior Court of Justice

Divisional Court

MacFarland, Blair and Winkler JJ.

August 18, 2000

Torts -- Libel and slander -- Pleadings -- Court not having power to strike pleading or particulars in libel action where they are relevant, necessary and of reasonable probative value to defendant on ground that plea is oppressive.

The plaintiff sued the defendants for damages for libel. In para. 17 of their Statement of Defence, the defendants pleaded meanings of the impugned language alternative to those alleged by the plaintiffs and sought to justify those alternative meanings as truth. On a motion by the plaintiffs, the motions judge struck out para. 17 on the basis that the alternative meanings therein pleaded were not defamatory. The motions judge also concluded that permitting the defendants to plead their asserted meanings would be oppressive to the plaintiffs, as it would prejudice them in terms of the discovery to which they would be subject and would unduly lengthen the trial. The defendants amended the statement of defence, replacing the original para. 17 with a new para. 17 and para. 17(a), which did not plead any alternative meaning but which sought to justify the meanings which the plaintiffs attributed to the language, and para. 17(b), which pleaded alternative meanings. The plaintiffs again moved to strike paragraphs 17, 17(a) and 17(b), as well as the particulars thereof. The motions judge ruled that the meanings given to the words in issue (whether those meanings were ascribed by the plaintiffs or the defendants) were defamatory. However, he determined that it is open to a court to consider "oppression" whether a defendant seeks to justify words in a meaning ascribed by the plaintiff or in alternative meanings ascribed by the defendant. He struck out the particulars pleaded by the defendants on the ground that they were oppressive to the plaintiffs. The defendants appealed.

Held, the appeal should be allowed.

It is not open to a court to strike a pleading or particulars in a libel action where they are relevant, necessary and of reasonable probative value to the defendant on the ground that such a plea is oppressive.

APPEAL from an order striking out particulars.

Pizza Pizza Ltd. v. Toronto Star Newspapers Ltd. (1998), 1998 18866 (ON CA), 42 O.R. (3d) 36, 167 D.L.R. (4th) 748, 28 C.P.C. (4th) 90 (Div. Ct.), affirmed (2000), 2000 4301 (ON CA), 49 O.R. (3d) 254n, 187 D.L.R. (4th) 761n, consd Other cases referred to Polly Peck (Holdings) plc v. Trelford, [1986] 2 All E.R. 84, [1986] 2 Q.B. 1000, [1986] 2 W.L.R. 845, 130 Sol. Jo. 300 (C.A.) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 25.06, 25.10, 25.11

William McDowell, for plaintiffs. Brian MacLeod Rogers, for defendants.

The judgment of the court was delivered by

[1] MACFARLAND J. (orally): -- This is an appeal from the Order of Lamek J. when he struck out particulars pleaded by the defendant. This appeal is brought pursuant to leave granted by Hartt J., June 19, 2000.

[2] The plaintiffs bring action against the defendants for libel in response to a speech delivered by Mr. Lantos on November 12, 1998, at Ryerson Polytechnic University in Toronto. The plaintiffs allege that on that occasion Mr. Lantos "falsely and maliciously spoke words defamatory of the plaintiffs".

[3] In para. 17 of their Statement of Defence, the defendants pleaded meanings of the impugned language alternative to those alleged by the plaintiffs and sought to justify those alternative meanings as truth.

[4] Prior to the decision of this court in Pizza Pizza Ltd. v. Toronto Star Newspapers Ltd. (1998), 1998 18866 (ON CA), 42 O.R. (3d) 36, 167 D.L.R. (4th) 748 (affirmed by the Court of Appeal February 4, 2000) [reported 2000 4301 (ON CA), 49 O.R. (3d) 254n], a defendant was not permitted to plead alternative meanings which it attributed to the offending language, but rather was obliged only to seek to justify, if it could, the meaning ascribed by the plaintiff. This past practice, that is to say prior to Pizza Pizza, was described as the traditional practice.

[5] The plaintiffs moved before Nordheimer J. to strike para. 17 of the Statement of Defence and the particulars thereof found in Schedule A to that document. In reasons delivered November 5, 1999 [reported 1999 15102 (ON SC), 46 O.R. (3d) 238], Nordheimer J. struck out para. 17 of the Statement of Defence on the basis that the alternative meanings therein pleaded were not defamatory and found that with para. 17 gone, the particulars of that paragraph naturally fell too.

[6] Nordheimer J. went on, however, and provided reasons for the "other issue" raised on the motion before him as he stated it [at p. 247 O.R.]"whether permitting the defendants to plead their asserted meanings would be oppressive to the plaintiffs". He went on to weigh a number of factors and was particularly concerned about "what would potentially be involved in the production of documents and the examinations for discovery in this action if these particulars remain" [at p. 248 O.R.]. He then outlined a number of possible areas of discovery arising from the particulars pleaded. He concluded as follows [at p. 250 O.R.]:

I can only conclude that this proposed pleading would, as a result, prejudice the plaintiffs in terms of the discovery to which they could be subject, and would unduly lengthen the trial, to an extent that is intolerable and unacceptable in the particular circumstances of this case. I read the decision in Pizza Pizza as empowering a judge to disallow a pleading of justification in such circumstances. I would, therefore, on this basis also, strike out para. 17 and the particulars in Schedule A, with leave to amend if the defendants are so advised.

[7] The Order of Nordheimer J. was not appealed. Instead, the defendants amended the Statement of Defence, deleting para. 17 in the form it had been when the motion was brought before Nordheimer J. and replacing it with a new para. 17 and paras. 17(a) and 17(b). Paragraphs 17 and 17(a) do not plead any alternative meaning; they seek to justify the meaning which the plaintiffs attribute to the language. Paragraph 17(b) pleads alternative meanings.

[8] Schedule A was amended only slightly so that the particulars of paras. 17, 17(a) and 17(b) in the Amended Statement of Defence were largely identical to the particulars delivered in relation to the original para. 17. Again, the plaintiffs moved to strike paras. 17, 17(a) and 17(b), as well as the particulars thereof, and this motion came on before Lamek J.

[9] In his reasons, Lamek J. stated [at para. 5]:

I accept that the meanings given to the words in issue (whether those meanings are ascribed by the plaintiffs or by the defendants) are defamatory. To that extent, the defendants have "complied" with the decision of Nordheimer J. The issue remaining, therefore, is the propriety of the particulars contained in Schedule A.

[10] He set out the arguments of counsel in para. 6 of his reasons as follows:

Mr. Rogers argues that the notion of oppression can only arise or be relevant in the case of a plea of justification (and particulars in support of it) of an alternative meaning ascribed by the defendant. Where the defendant seeks to justify the words in the very meaning asserted by the plaintiff, not only is the defendant obliged to give particulars but in doing so he is not restricted or restrained by any notion of oppression flowing from the particulars.

[11] Lamek J. did not accept the submission and relied on the language of Lord Justice O'Connor in Polly Peck (Holdings) plc v. Trelford, [1986] 2 All E.R. 84 at p. 102, [1986] 2 Q.B. 1000 (C.A.):

In all cases it is the duty of the court to see that the defendant, in particularising a plea of justification or fair comment, does not act oppressively. . . .

He determined in essence that it is open to a court to consider "oppression" whether a defendant seeks to justify words in a meaning ascribed by the plaintiff or in alternative meanings ascribed by the defendant. He then went on [at para. 9]:

. . . I agree with and adopt Nordheimer J.'s analysis of the original Schedule A and I hold that the same analysis is applicable -- with the same result -- to the current Schedule A.

He then struck out amended Schedule A with leave to amend and it is from this decision that appeal is taken to this court.

[12] Pizza Pizza involved a case where the Toronto Star sought to plead alternative meanings to that pleaded by the plaintiff. This court there adopted the modern English approach in libel cases as enunciated in the Polly Peck decision. What was new was the right of a defendant to now plead alternative defamatory meanings by way of justification. That right was qualified, as the court pointed out at p. 43 O.R. and I quote:

It is important to note that in Polly Peck, in order to protect the plaintiff from unfairness or oppression, the English Court of Appeal qualified the right of the defendant to plead justification to a different meaning. First, where a publication contains separate and distinct libels, the plaintiff is entitled to select one and sue on it, and the defendant is not permitted to assert the truth of the other defamatory statements. The defendant's right to plead justification only arises where it can reasonably be claimed that the article from which the offending words are taken has a "common sting" and does not make separate and distinct allegation. Polly Peck, supra, at p. 102; see also Khashoggi v. IPC Magazines, [1986] 3 All E.R. 577 (C.A.) at p. 581. Second, as explained in Polly Peck, supra, at p. 102"[i]n all cases, it is the duty of the court to see that the defendant, in particularising a plea of justification or fair comment, does not act oppressively."

[13] The second basis, referred to in Pizza Pizza, it will be seen, quotes verbatim the language of Lord Justice O'Connor in Polly Peck.

[14] It is plain from the decision that the court considered the modern English approach to be a fair one. At p. 44 [O.R.], the court said:

. . . I do not accept the submission that it is appropriate to give the plaintiff the exclusive right to define the issue for trial. It would, in my view, be fundamentally unfair to the defendants in this case to preclude them from justifying their version of the libel. Simply put, if the plaintiff is entitled to present its side of the case by selecting certain words as being offensive and claiming that the defendant has called it "a cheat", the defendant should be allowed to respond fully to the allegations made against it.

[15] It went on at p. 45 O.R. to say in relation to the modern English rule:

That it strikes a more appropriate balance between protection of reputation and freedom of expression and freedom of the press provides added justification for its adoption here.

[16] The court was aware that adoption of the English rule would broaden issues for both discovery and trial. The concluding words of the judgment are important [at p. 46 O.R.]:

Finally, I would emphasize that the Polly Peck approach is a balanced one that does take into account the interests of the plaintiff. The court retains a discretion to protect the plaintiff from unfairness or oppression. The right of the defendant to plead and prove the truth of a different meaning is not unfettered.

[17] In our view, the Pizza Pizza case did not add anything new in terms of the ability of a court to limit a pleading or particulars thereof on the basis of it being oppressive to a plaintiff. The package of rules relating to the sufficiency of a pleading in this context are rules 25.06, 25.10 and 25.11. These rules apply to a plea of justification, whether on the basis of a meaning ascribed by a plaintiff or an alternative meaning ascribed by a defendant. In all cases, the court has said it retains jurisdiction "to protect the plaintiff from unfairness or oppression". We do not interpret this language as meaning anything more than a reiteration of a jurisdiction, which the court has always had, to strike pleadings where they are unfair or prejudicial. We do not accept Mr. Rogers' submission that where a defendant pleads no alternative meaning but seeks to justify the meaning alleged by the plaintiff, his right to do so and to provide particulars thereof is unfettered, provided they are relevant.

[18] In our view, the court has had and continues to have jurisdiction to strike a pleading even where it is relevant, where its probative value is outweighed by its prejudicial effect. We do not consider Pizza Pizza provides a new and different basis for striking out pleadings, which the plaintiff finds "oppressive". The word "oppression" is not found in the Rules of Civil Procedure relating to the sufficiency of a pleading, nor is it the intention of Pizza Pizza to import any new and different consideration for the court on a motion of this nature.

[19] In our view, the principles that are brought to bear on a motion of this nature are those found in rules 25.06, 25.10 and 25.11. The overall underlying theme of Pizza Pizza is one of fairness, fairness to both sides. If a plaintiff is of the view that particulars pleaded are unfair and offend the pleadings rules, a motion will be brought to strike. On the return of that motion, it is the duty of the court to consider not only whether the plea offends rule 25.11 and is, thereby, unfair to a plaintiff, but also whether it is relevant and necessary to the defendant's effort to justify the meaning it has alleged. It is an exercise in balancing the rights of the parties on the particular facts before the court.

[20] Pizza Pizza was concerned with whether a defendant could plead alternative defamatory meanings by way of justification, not the sufficiency of such a plea. In our view, Pizza Pizza does not stand for the proposition that it is open to a court to strike a pleading or particulars in a libel action where they are relevant, necessary and of reasonable probative value to the defendant on the ground that such a plea is "oppressive". On the other hand, where a plea is strictly speaking relevant, but of marginal probative value, and would be onerous for a plaintiff, it may well be found to offend the rules.

[21] It does not appear from the reasons of the motions judge that he considered the amended Schedule A in relation to the amended paras. 17, 17(a) and 17(b), pleadings that were not before Nordheimer J. when he did the "analysis" adopted in the present case.

[22] In our view, failure to conduct the necessary balancing exercise on a motion of this nature is an error in principle and, accordingly, the Order of Lamek J. is set aside and the appeal is allowed.

[23] For reasons given, the appeal is allowed and the Order of Lamek J. made February 28, 2000, is set aside. Costs before Lamek J. and in this court to the appellants on a party and party basis in any event of the cause.

Appeal allowed.