COURT FILE NO.: CV-08-00359385-0000

MOTION HEARD: 2012-02-10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: N.H.B., Plaintiff

And

L.B., Defendant

BEFORE: Master Joan Haberman

COUNSEL: Ramsey, T. for the moving party

Shiller, B. For the responding party

REASONS FOR DECISION

Master Haberman :

[ 1 ] This is the story of the two former wives of G.B.. Each has tried to involve their children in the war they continue to wage against one another, with extremely unfortunate results.

[ 2 ] The plaintiff (“N.H.B.”) now seeks leave to deliver a fresh as amended statement of claim, the effect of which would be to convert her relatively straightforward defamation action into a far more complex piece of litigation. The action has already been set down for trial, and a trial date was set and adjourned, so leave to bring the motion is required and granted.

THE ORIGINAL CLAIM

[ 3 ] N.H.B. is the former wife of G.B. (“B.”). The two were married from 1976 - 2003, and had children together. A.B. (“A.”) is their son.

[ 4 ] After the marriage ended, G.B. married the defendant, L.B. (“L”) but they separated in 2007. When she met G.B., L.B. already had a daughter from a previous relationship, L.M.C. (”L.”).

[ 5 ] In the spring of 2008, L.M.C. alleged that A.B. had sexually assaulted her years earlier. At the time the action was commenced (July 22, 2008), these charges were still before the court.

[ 6 ] This action originally stems from comments made by L.B. to two members of the executive of Jewish Women International Canada (JWIC). The first incident involves a telephone conversation with Penny Krowitz, executive director of the organization, which took place on July 2, 2008.

[ 7 ] N.H.B. alleges that L.B. called Ms. Krowitz to inform her of the sexual assault charges pending against A.B.. It is alleged that L.B. did this, knowing that N.H.B. was a board member of the organization and was being treated for ovarian cancer at that time.

[ 8 ] It is further alleged that, on the same day, L.B. wrote to Jill Lieberman, the president of JWIC, stating as follows:

A.B. (son of G.B. and N.B.) has been criminally charged with the Sexual Assault of my daughter L.M.C.. The crime occurred on May 31st of 2003. I walked in to (sic) L.M.C.’s room and witnessed the despicable crime inflicted upon my 15-year old daughter...

I have been separated from G.B for over a year, and my daughter now has the strength to proceed and has in fact laid criminal charges for which A.B. has been arrested, fingerprinted.....

...N.B. is clearly aware of what happened and chose to do nothing to help L.M.C. {my daughter} (sic) who is in no way different from the women your organization helps. I am sure you are able to see the hypocrisy in that...

[ 9 ] These allegations form the core of the action as it currently stands.

[ 10 ] The statement of claim was issued a few weeks after these events and a statement of defence was delivered in September 2008. In her defence, L.B. claims that A.B. repeatedly sexually assaulted L.M.C. starting just after her 14 th birthday, and that she caught him “raping” her daughter on June 13, 2003 (rather than May 31 st , 2003 as Ms. Lieberman was told). She therefore relies on the defence of fair comment and denies that her actions were motivated by malice.

THE EVENTS THAT FOLLOWED

This action

[ 11 ] This action proceeded with remarkable speed. In December, 2008, less than five months after the claim was issued, the trial record was passed. The matter was pre-tried in January 2010 and the trial was scheduled to begin on May 2011. At that time, as adjournment was sought as N.H.B. wished to amend her pleading. That was nine months ago.

[ 12 ] This motion to amend was initially returnable in June 2011 but adjourned on consent to July. In July, it was adjourned by the court because of scheduling issues. A new date of December 5, 2011 was selected but the matter was again adjourned.

[ 13 ] In the interim, N.H.B. launched and then withdrew Mareva injunction proceedings against L.B.. Though costs were awarded to L.B. at that time, Conway J. noted that she was discounting the quantum awarded as much of the costs could have been avoided by more cooperation on the part of defence counsel. And so the war continued.

[ 14 ] Current counsel went on the record for N.H.B. in September 2011. The motion to amend, however, was not heard until February 10, 2012.

The criminal proceedings against A.B.

[ 15 ] A.B.’s criminal charges were dealt with before McWatt, J. on March 24, 2011, at which time all charges were dismissed.

[ 16 ] As her Honour put it:

...and I believe at the root of all of this was a broken relationship and money and hard feelings and here we are in a court of law litigating over something, I believe, actually didn’t happen.

[ 17 ] The judge commented on the evidence, stating that she found it illogical. From L.M.C.’s testimony she found that the girl appeared to feel safe in the home and that she had not complained at all about these alleged events. She was also struck by L.M.C.’s demeanour, which she found mirrored her mother’s. Both displayed a “stilted, guarded and dismissive attitude” about what had allegedly occurred, such that the court concluded their evidence was contrived.

[ 18 ] McWatt J. also commented on inconsistencies between L.B.’s evidence at the time disclosure was made and at trial, such that “ her credibility is particularly problematic.” On the other hand, she found A.B. to have been “candid, honest, uncontrived in his evidence”. She therefore believed and acquitted him.

[ 19 ] The Reasons were wrapped up as follows:

...in the context of the family law and civil suits, there was a motive for the complainant to lie. I also find that I can infer that she was trapped in her mother’s camp and that the camp was against Mr. N.B. and A.B..

[ 20 ] The judge also found the case against A.B. to have been “beyond weak”.

[ 21 ] On the basis of the outcome and these Reasons, A.B. may well have a basis to commence an action for malicious prosecution against L.B. and L.M.C., but he does appear to be interested in pursuing the issue. Instead, his mother now seeks redress on the basis of an alleged assignment by A.B. to her of his rights of action arising from the initiation of these criminal proceedings.

THE ASSIGNMENT

[ 22 ] This action was started in 2008, within weeks of the alleged defamatory comments and it was restricted to those comments. The criminal trial resulting in an acquittal took place in March 2011. The decision to amend the claim appears to have been made in May 2011 as the court was advised of N.H.B.’s desire to adjourn her trial in order to amend her pleading on May 16, 2011.

[ 23 ] As noted above, the motion was first scheduled for June, then July 2011. However, it was only on October 21, 2011 that A.B. apparently assigned his interest in any claims he may have against L.B. arising from his criminal prosecution to N.H.B..

[ 24 ] Although this alleged assignment did not occur until after this motion had already come before the court twice, the only evidence filed about this unusual arrangement comes through the mouth of Alice Tse, a legal assistant in the offices of plaintiffs’ counsel. She says nothing about the timing of the arrangement; how or why it came about; and what consideration was given for it.

[ 25 ] Tse is also in no position to give evidence as to whether consideration was given for the assignment as she is not a party to it – only A.B. or N.H.B. could have attested to that to avoid the rule against hearsay. At the very least, one would have expected Tse to say that she was so advised as to the consideration given by N.H.B. and that he believes the information to be true. Instead, Tse fails to say how she knows about the assignment or whether she believes that what she was presumably told or read about it was true. She simply states that this assignment occurred.

[ 26 ] A copy of the purported assignment is attached to Tse’s affidavit as an exhibit. Among the recitations are the following:

AND WHEREAS N.H.B. paid for all of the costs associated with A.B.’s defence in respect of those charges together with additional costs incurred on behalf of A.B. related to and the result of the criminal prosecution (together called the “Costs of the Defence”)

...In consideration of the Costs of the Defence A. B. (the “Assignor”) does hereby make an absolute assignment.....

[ 27 ] The document appears to have been signed by both A.B. and N.H.B.. However, there is no evidence from either of them indicating that that is, in fact, the case. There is also no evidence that N.H.B. actually paid anything to or on behalf of A.B.; that if she did so, particularly in the context of the “additional costs”, whether she would have been paying for those in any event; and whether there was any agreement or even understanding between mother and son that N.H.B. would be looking to A.B. for reimbursement of these costs.

[ 28 ] The recitals within this document are not evidence that the statements made within it are, in fact, true. They must be proven by independent evidence from at least one of the two parties to the assignment, or, at the very least, on the basis of information and belief. Strangely, neither N.H.B. nor A.B. has sworn an affidavit in support of the motion and Tse does not site the source of her information.

[ 29 ] In the absence of a proper evidentiary foundation for this document, I am unable to attribute any weight to it. This has a considerable impact on the outcome of this motion.

THE PROPOSED NEW PLEADING

[ 30 ] N.H.B. now seeks to deliver a Fresh as Amended Statement of Claim, taking her simple defamation action consisting of 5 pages to a 13-page action with multiple causes of action.

[ 31 ] She now claims for the following in addition to defamation:

o Intentional infliction of mental and emotional distress;

o Conspiracy to injure;

o Malicious prosecution; and

o Damages under s. 61 of the Family Law Act

[ 32 ] It is noteworthy that A.B. has not sought to join his mother in the claim nor does N.H.B. seek to add L.M.C. as a defendant, though she seeks redress for malicious prosecution.

[ 33 ] Though the motion was returnable in June, July and December 2011, this proposed draft pleading was only drafted in January 2012.

ANALYSIS and CONCLUSION

General comments

[ 34 ] The motion is brought under Rule 26.01, a mandatory provision ( the court shall grant leave to amend) , such that the court is duty bound to grant the relief sought unless to do so would cause prejudice that cannot be compensated for by costs or an adjournment.

[ 35 ] Case law has also made it clear that leave to amend should not be granted where what is pleaded is untenable at law, such that even if all of the facts as alleged can be proved, when taken together, they do not make out the legal conclusion a party hopes the court to draw.

[ 36 ] Accordingly, where particular torts are alleged, the court must consider the allegations in the proposed claim in the context of the constituent elements of that tort. If the proposed claim falls short of alleging the presence of all of the required elements, leave to amend cannot be granted.

[ 37 ] Rule 25.06(8) also requires that certain causes of action must be pleaded in a more detailed manner:

Where fraud, misrepresentation, breach of trust, malice or intent is alleged, the pleading shall contain full particulars , but knowledge may be alleged as a fact without pleading the circumstances from which it is inferred.

[ 38 ] Thus, bald assertions of malice or intent will fall below the standard that a party seeking to so plead must meet (see AGFA Inc. v. Partners Prepress , [2006] OJ No. 3373 ).

[ 39 ] The most appropriate way to address the proposed draft pleading is to review each new cause of action and to assess whether it can stand in the context of the facts that have been pleaded and the applicable legal tests.

(Decision continues exactly as in the source through paragraph [94])

Master Joan M. Haberman

Released: March 5, 2012