ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-29861-SR
DATE: 2012-06-19
B E T W E E N:
Ann Howard
Marc A. Munro, Counsel for the Plaintiff
Plaintiff
- and -
Michael Pin and Paul Kennedy
J. Ross MacFarlane, Counsel for the Defendant Michael Pin
Defendants
HEARD: June 18 th , 2012
REASONS FOR RULING
Parayeski J.
[1] The defendant Michael Pin moves for an order which: a) consolidates three actions (court file numbers 11-29860-SR, 11-29861-SR, and 11-29862-SR) into a single proceeding; b) strikes out paragraphs 11, 12 and 13 of each statement of claim in those same actions; and c) requires particulars of allegations contained in paragraph 25 of each statement of claim in those same actions.
[2] The plaintiffs’ in these three actions cross-motion for an order which: a) directs that the three relevant actions be heard at the same time or one following the others as directed by the trial judge; and b) directing joint examinations for discovery in those three actions.
[3] The defendant Paul Kennedy takes no position on these motions.
[4] The situation is unique to the following extent: there are three individual plaintiffs. Each of them has commenced a “simplified Rules” action against the same two individual defendants. The allegations in the statements of claim are identical, save for particulars of the plaintiffs themselves. All three actions are based on the same alleged defamation by the defendants.
[5] With refreshing candor, the plaintiffs admit that they commenced separate actions so as to afford them more time for examinations for discovery under the provision of the simplified Rules than they would have had if they had commenced a single action between them: see paragraph 7 of the factum submitted on their behalf.
[6] The plaintiffs say that what they have done is simply used the Rules to their advantage. The moving defendant calls it an abuse of process. I shall return to this point momentarily.
[7] The moving defendant relies upon Rule 6.01 of the Rules of Civil Procedure which gives me discretion to order consolidation or hearing at the same time or one immediately after the other(s) of multiple actions where it appears to me that: 1) the actions have a question of law or fact in common, or 2) the relief claimed in the actions arises out of the same transaction or occurrence or series of transactions or occurrences, or where “for any other reason” an order ought to be made. Of course, this Rule meshes with Section 138 of the Courts of Justice Act , which mandates the avoidance of multiplicity of legal proceedings “as far as possible”. [^1]
[8] The plaintiffs do not seriously dispute the patent commonalities between the actions, but prefer that they be allowed to continue as separate rather than consolidated actions, so as to preserve the length of discovery rights mentioned above.
[9] I reject the plaintiffs’ assertion that I cannot order the consolidation being sought because of Rule 5.04, which mandates that no person may be added (emphasis added) as a plaintiff or applicant on joinder unless that person consents. My rejection is based upon the admittedly academic and somewhat unclear distinction between joinder and consolidation, and because on consolidation none of the three plaintiffs would be “added” as they are already plaintiffs by their own acts.
[10] While I do not consider what the plaintiffs have done here to be an actual abuse of process, it does run counter to the tenets of the simplified procedure rules, which are expediency and proportionality. It is inappropriate to pay lip service to those laudable goals and then look for a clever way to circumvent them. The moving defendant is entitled to an order for consolidation of the three actions.
[11] The moving defendant seeks to strike paragraphs 11, 12 and 13 of the statements of claim on the basis that they are “irrelevant, scandalous, frivolous and vexatious”. Specifically, he alleges that what is contained in those paragraphs is irrelevant to the issues in the statements of claim and are attacks upon his personal character.
[12] I agree with the plaintiffs on this issue. The impugned paragraphs provide some context and speak to the moving party defendant’s alleged mindset, which can be a key part of any defamation action. His motion to strike those paragraphs is dismissed.
[13] Turning to the demand for particulars, the moving defendant says that he cannot plead without a meaningful response to his formal demand for particulars. The demand asks for “full particulars of the allegations in paragraph 25 of the statement of claim that “‘the aforementioned words were published maliciously and in bad faith’” as required by Rule 25.06(8).
[14] The plaintiffs say that no additional particulars are necessary and point out that the defendant, Paul Kennedy, who is separately represented, has pleaded with no difficulty in this regard.
[15] The plaintiffs further say that paragraphs 11, 12 and 13 of the statement of claim provide the necessary particulars of the alleged malice and bad faith. Moreover, they argue that the moving defendant must, by definition, have knowledge of his own purported malice or bad faith or the lack thereof. They point out that he has not yet pleaded the defence of qualified privilege.
[16] I disagree with the plaintiff’s position. Whether the co-defendant has chosen to plead without further particulars is irrelevant. The argument that the moving party defendant has not pleaded the defence of qualified privilege is utter circular. He hasn’t pled at all, he says, because of the lack of particulars.
[17] Rule 25.06(8) mandates full particulars where malice is alleged, and I am not satisfied that they can be derived from paragraphs 11, 12 and 13. The plaintiffs shall respond appropriately to the formal demand for particulars.
[18] The results of these motions were mixed, and, accordingly, it is appropriate that there be no order as to costs with respect to the same.
The Honourable Mr. Justice D. Parayeski
Released: June 19, 2012
COURT FILE NO.: CV- 11-29861-SR
DATE: 2012-06-19
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Ann Howard Plaintiff - and – Michael Pin and Paul Kennedy Defendants REASONS FOR RULING Parayeski J. MDP//dm
Released: June 19, 2012
[^1]: Courts of Justice Act , R.S.O. 1990, c. C.43, s. 138.