ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 82-2012
DATE: 2012/12/05
B E T W E E N:
BRENT HILLIER and MAVERICK PAINTBALL INC. PLAINTIFFS
Brent Hillier, on his own behalf
No one appearing for Maverick Paintball Inc.
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CRAIG (SANDY) HUTCHENS aka SANDY HUTCHENS aka SANDY CRAIG HUTCHENS aka CRAIG HUTCHENS aka
Philip J. Smith, for the Defendants Jacob Gryn and CO4 Computing Inc.
MOISHE HUTCHENS aka CRAIG ALEXANDER aka MOISHE ALEXANDER aka MOSHE ALEXANDER aka MOISHE BEN AVAHAM aka MOISHE BEN AVOHOM aka BEN AVROHOM aka BEN AVRAHAM aka FRED HAYES aka ALEXANDER McDONALD aka ALEX McDONALD, DAVE MCDONALD aka MATHEW KOVEE, TANYA HUTCHENS aka TATIANA BRIK., TD CANADA TRUST, TD BANK FINANCIAL GROUP., DAVID MACENZIE, BARRY POULSON, ARSENEAU POULSON, MICHAEL SPIRO, LORNE HONICKMAN, McCAUGE BORLACK LLP , ALVIN MEISELS, REZNICK PARSONS MEISELS TABERNER, BLANEY MCMURTRY LLP, JAN LUISTERMANS aka HERMAN LUISTERMANS, REALTY 1 REAL ESTATE SERVICES LTD., FIFTH AVENUE PRIVATE INVESTIGATORS AND PARALEGAL, GARY WHITE, TOM WARREN, NET PATROL, RABBI MENDEL KAPLAN AND SHABAD@FLAMINGO,JACOB GRYN, CO4 COMPUTING INC. DEFENDANTS
HEARD: October 31, 2012
Haines J.
REASONS FOR JUDGMENT
[ 1 ] This is the fourth in a series of motions that I have heard to strike the statement of claim in this action for failing to disclose a reasonable cause of action pursuant to Rule 21.01(1)(b) and for failing to comply with the rules of pleading provided for in Rule 25.06. The defendants on this motion, Jacob Gryn and CO4 Computing Inc., submit that there are no facts pleaded to support the serious allegations of defamation, criminality, conspiracy and malice. They are asking that the claims against them be struck without leave to amend being granted to the plaintiffs.
[ 2 ] The statement of claim was issued May 23, 2012. Soon thereafter these defendants served the plaintiffs with notice of this motion. In an apparent response to this, and motions of the same nature served by other defendants, the plaintiffs amended their claim on August 21, 2012. These defendants maintain, and I agree, that those amendments failed to provide any further particulars of the bare allegations of misconduct made against them in the original statement of claim.
[ 3 ] The general nature of this action is set out in paragraphs 7 and 8, of my reasons on the earlier motions released October 30, 2012:
The allegations against the defendants are very serious. The plaintiffs claim they are victims of an “advance fee loan scam” operated by Hutchens with the assistance of the other named defendants. They allege that Hutchens took and retained an advance fee for a proposed $4,000,000 loan to them without any intention of ever proceeding with the loan commitment and contend that there are hundreds of victims of this “scam”.
The plaintiff Hillier seeks damages for emotional suffering, loss of reputation and loss of income resulting from the failure of Maverick Paintball Inc. which he attributes to the conduct of the defendants. Maverick Paintball Inc. claims damages for the financial loss that resulted from the failure of the business. Both plaintiffs claim punitive damages for the “criminal, high-handed and capricious conduct of the defendants.”
[ 4 ] In order to strike out a pleading on the grounds it discloses no reasonable cause of action, the court must be satisfied that it is plain and obvious the action is certain to fail. The pleading is to be read generously to accommodate for drafting deficiencies. The court must accept the facts alleged in the statement of claim as proven unless they are patently ridiculous or incapable of proof. If the claim, as pleaded, has some chance of success, the action must be permitted to proceed.
[ 5 ] Rule 25.06(1) requires that every pleading contain a concise statement of the material facts on which the party relies for the claim.
[ 6 ] Although Jacob Gryn (Gryn) and CO4 Computing Inc. (CO4) are mentioned in only eight of the 150 paragraphs in the statement of claim it appears, on a generous reading of that document, that the principle claim against them is grounded in defamation. Gryn is identified at paragraph 31 as “an individual who resides in Toronto, Ontario” and at paragraph 32, CO4 is described as “a computer business operating in Toronto, Ontario.” In the request for relief, damages for “defamatory” [sic] in the amount of $1,000,000 are claimed against Gryn and CO4 specifically. The allegations purporting to support the claims are found in the following paragraphs:
Mr. Honickman acted negligently and with malice and conspired with Hutchens and Gryn and the front companies in advising YouTube that a court order prohibited the broadcast of Mr. Hiller’s videos on YouTube as there was no such court order in place and he should have known that. In fact, on November 22, 2011 Mr. Honickman had advised the Mr. Honickman had been advised by the court during a hearing related to the order he quoted to YouTube that the order did not apply to Mr. Hillier’s videos on YouTube.
Based on the facts as pleaded herein, the plaintiffs claim that Hutchens and Tanya and Gryn committed the torts of fraud and deceit acted fraudulently, deceitfully, and with malice. As a result of their conduct, the plaintiffs have suffered damage.
Hutchens, Tanya, Gryn and Co4 Computing and Luistermans have defamed Hillier whether directly or indirectly with the express purpose of embarrassing and injuring the plaintiffs. This campaign was and continues to be conducted over the Internet and involves the postings of almost 100 false defamatory statements on the internet. Each message or posting has usually elicited further transmissions of support and encouragement, thus amplifying the spread of the defamation throughout the Internet.
Jacob Gryn and/or CO4 Computing knew or ought to have known the emails/letters written and signed by him and his involvement were not only written about a factious person, but he had knowledge of the real name of Hutchens.
[ 7 ] The necessary elements in pleading defamation are:
a) that words were published or spoken;
b) the words were published or spoken by a named defendant;
c) the words refer to the plaintiff to the knowledge of a third party;
d) the exact words spoken or published; and
e) the words are defamatory on their face or have defamatory effect in a particular context.
See Esguerra v. Liland Insurance Inc., [2009] O.J. No. 5274, 2009 68820 (S.C.) at para. 11 and see generally Randy Pepper et al., Canadian Defamation Law and Practice, looseleaf (Toronto: Carswell 2012), at para. 620.
[ 8 ] These defendants contend that the allegations in the statement of claim fail to address any of these elements. I agree. Paragraphs 131 and 132 of the statement of claim do refer to an internet website, a number of postings on YouTube and specific words published, but do not attribute them to these defendants.
[ 9 ] I am satisfied that the bare allegations against these defendants in the amended statement of claim fall well short of the pleading requirements for an action for defamation. The issue then is whether the plaintiff should be granted leave to amend to remedy this defect. In the usual course such leave will be granted in the absence of prejudice to the other side. However, that indulgence may be withheld in certain circumstances: see Miguna v. Ontario (Attorney General), (2005), 2005 46385 (ON CA) , 262 D.L.R. (4 th ) 222, [2005] O.J. No. 5346 (C.A.) at para. 24 ; and Piedra v. Copper Mesa Mining Corp., 2011 ONCA 191 , 332 D.L.R. (4 th ) 118 at paras. 93 – 98 .
[ 10 ] These defendants do not claim prejudice but contend that the circumstances make this one of those clear cases where leave to amend should be denied. They point out that the plaintiffs took the opportunity to amend after they received notice of this motion but in making those amendments still failed to satisfy the requirements of Rule 25.06 and properly plead the necessary facts to support their claims. I agree that this is an important consideration but do not see that it is conclusive in the circumstances of this case. In Piedra , the court refused leave to amend where the plaintiffs had already availed themselves of several opportunities to amend their pleadings. In that case, however, the court also concluded that the pleading of additional facts would not affect the key question of whether the duty of care asserted should be recognized. A further amendment would not, therefore, have remedied the deficiency in those pleadings. In my opinion that is not demonstrated in this case.
[ 11 ] The plaintiffs allege that Craig and Tanya Hutchens waged a campaign over the internet to discredit Hillier in order to neutralize his reports of their fraudulent conduct. The current pleading, while deficient in identifying the particulars of the alleged defamation, does, on a generous reading, allege that these defendants were complicit in orchestrating this campaign. I do not find, as the court did in Piedra , that the pleading of additional facts would not cure the defect identified in the pleading. In my view, this is not a clear case where leave to amend should be denied. In the result the plaintiffs are granted leave to amend the statement of claim within 30 days to comply with the rules of pleading as provided for in Rule 25.06.
[ 12 ] These defendants also raise the issue of the requirement under Rule 15.01(2) that the plaintiff Maverick Paintball Inc. be represented by a lawyer. Although that requirement can be waived with leave of the court no such leave has been sought or granted. This issue was raised and addressed in the earlier motions where an order was made requiring Maverick Paintball Inc. to move for such leave. I see no need to make any further order on this motion.
[ 13 ] The parties may make brief written submissions with respect to costs of this motion within 30 days.
Justice R. J. Haines
Released: December 5, 2012
COURT FILE NO.; 82-2012
DATE: December 5, 2012
ONTARIO
SUPERIOR COURT OF JUSTICE
BRENT HILLIER and MAVERICK PAINTBALL INC.
Applicants
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CRAIG (SANDY) HUTCHENS aka SANDY HUTCHENS aka SANDY CRAIG HUTCHENS aka CRAIG HUTCHENS aka MOISHE HUTCHENS aka CRAIG ALEXANDER aka MOISHE ALEXANDER aka MOSHE ALEXANDER aka MOISHE BEN AVAHAM aka MOISHE BEN AVOHOM aka BEN AVROHOM aka BEN AVRAHAM aka FRED HAYES aka ALEXANDER McDONALD aka ALEX McDONALD, DAVE MCDONALD aka MATHEW KOVEE, TANYA HUTCHENS aka TATIANA BRIK., TD CANADA TRUST, TD BANK FINANCIAL GROUP., DAVID MACENZIE, BARRY POULSON, ARSENEAU POULSON, MICHAEL SPIRO, LORNE HONICKMAN, McCAUGE, BORLACK LLP , ALVIN MEISELS, REZNICK, PARSONS MEISELS TABERNER, BLANEY MCMURTRY LLP, JAN LUISTERMANS aka HERMAN LUISTERMANS, REALTY 1 REAL ESTATE SERVICES LTD., FIFTH AVENUE PRIVATE INVESTIGATORS AND PARALEGAL, GARY WHITE, TOM WARREN, NET PATROL, RABBI MENDEL KAPLAN AND SHABAD@FLAMINGO, JACOB GRYN, CO4 COMPUTING INC .
Defendants
REASONS FOR JUDGMENT
HAINES J.
Released: December 5, 2012