ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-0164
DATE: 2013-09-25
B E T W E E N:
Resolute Forest Products Inc., Resolute FP US Inc., Fibrek General Partnership, Fibrek U.S. Inc., Fibrek International Inc., and Resolute FP Canada Inc.
Arthur Hamilton, for the Plaintiffs
Plaintiffs
- and -
2471256 Canada Inc. DBA Greenpeace Canada, Richard Brooks and Shane Moffatt
Jordan Goldblatt, for the Defendants
Defendants
HEARD: August 15, 2013
at Thunder Bay, Ontario
Mr. Justice F. B. Fitzpatrick
Decision On Motion
To Strike Intentional Interference Claim
Introduction
[1] The plaintiffs, Resolute Forest Products Inc., Resolute FP US Inc., Fibrek General Partnership, Fibrek U.S. Inc., Fibrek International Inc., and Resolute FP Canada Inc. have sued the defendants, 2471256 Canada Inc. DBA Greenpeace Canada (“Greenpeace”), Richard Brooks and Shane Moffatt for defamation and intentional interference with economic relations. The plaintiffs issued a thirty-seven page statement of claim in late May, 2013. The defendants have yet to defend the action. Instead, they served an extensive demand for particulars and a request to inspect documents. In response, the plaintiffs served a nine-page response to demand for particulars and a response to request to inspect documents.
[2] The defendants now move to strike the plaintiffs’ claim for intentional interference with economic relations relying on the provisions of rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. Reg. 194. The defendants do not seek to strike the plaintiffs’ claim alleging defamation.
[3] Upon being served with the defendants’ motion to strike, the plaintiffs have served a further amended response to demand for particulars.
Factual and Procedural Background
[4] The plaintiffs are related parties, all engaged in the forest products industry.
[5] The plaintiffs plead that the defendant, Greenpeace, is a federally incorporated company with its head office in the City of Toronto. The plaintiffs allege that Greenpeace is engaged in the business of “lobbying for political purposes, which includes asserting political pressure concerning environmental politics and environmental preservation.”
[6] The plaintiffs plead that the defendants, Brooks and Moffatt, are individuals who are employed by or associated with Greenpeace as either “Forest Campaign Coordinator” or “Forest Campaigner”.
[7] The plaintiffs’ claim alleges that the defendants defamed them beginning on or about December 6, 2012.
[8] In addition to the claim for defamation, the plaintiffs assert a claim for intentional interference with the plaintiffs’ economic relations. In the claim, the plaintiffs plead that the defendants disseminated copies of defamatory publications to Resolute’s shareholders and, at Resolute’s Annual General Meeting, attempted to “influence the policies” of Resolute’s customers by exerting pressure on them, and that they did so secretly. Resolute further pleads that it will particularize the allegations it has made in advance of trial.
[9] In this motion, the defendants seek to strike paragraphs 1 (a), the words “and intentional interference with economic relations”, and paragraphs 76, 77, 78, 79, 80, 81 and 84(d). The text of those paragraphs is attached as Appendix 1 to these reasons.
Position of the Parties: the Moving Parties (Defendants)
[10] During submissions, counsel for the defendants indicated that while it sought to have the various paragraphs noted above struck out, it was conceded that paragraphs 76 through 80 could arguably contain elements related to the defamation claim, and if so, they should be struck with leave to amend.
[11] The defendants argue that with regard to all the paragraphs at issue, the constituent elements of a claim for intentional interference with economic interference have not been sufficiently pled. Further, the defendants submit that the defamatory statements cannot satisfy the elements of a plea of an unlawful act, a necessary part of a claim for intentional interference with economic relations. It is also argued that as the third party customers have no other actionable claim against the defendants, it will be impossible for the plaintiffs to prove at trial a claim for intentional interference with economic relations. The defendants submit that the pleading lacks particularity and, that rule 25.06(8) requires a plea alleging intent to contain full particulars which is fatal to the pleading as presently drafted. Lastly, the defendants submit the plaintiffs have not pled they suffered economic loss, therefore their claim cannot survive.
The Position of the Responding Parties (Plaintiffs)
[12] The plaintiffs argue that the constituent elements of the tort have been pleaded. Further, the plaintiffs submit the pleading itself and the response to demand for particulars satisfies the provisions of rule 25.06(8). The plaintiffs argue that the motion as presently constituted is an attempt by the defendants to obtain further particulars without having to provide the necessary affidavit evidence in support of a proper motion for particulars. The plaintiffs take the position that paragraphs 76 to 81 and 84(d) relate both to the defamation claim and the intentional interference claim, and as the defamation pleading is not sought to be struck, the motion should not succeed.
The Law
[13] The parties agree that on this motion the issue to be decided is whether it is plain and obvious that the plaintiffs’ claim for intentional interference with economic relations is certain to fail.
[14] Rule 21.01(1)(b) provides that a judge may “strike out a pleading on the ground that it discloses no reasonable cause of action or defence”. No evidence is admissible on a motion of this type. The facts as alleged by the pleadings must be taken as true.
[15] The test for striking out a statement of claim at the pleading stage is well established. In Hunt v. Carey Canada Inc. 1990 90 (SCC), [1990] 2 S.C.R. 959 at para. 33, the Supreme Court described the test in these terms: “assuming that the facts as stated in the statement of claim can be proved, is it ‘plain and obvious’ that the plaintiff’s statement of claim discloses no reasonable cause of action?...Only if the action is certain to fail because it contains a radical defect should a plaintiff’s statement of claim be struck out…”
[16] A motion brought under rule 21.01 need not strike out the entirety of the claim alleged. A Court may strike out a portion of the claim where, as here, a distinct cause of action has been pled.
[17] A failure to plead the constituent elements of a cause of action is fatal to the claim advanced. The claim may be struck on a rule 21 motion.
[18] The constituent elements of a claim for intentional interference with economic relations are:
i. intent to injure and cause loss to the plaintiff;
ii. interference with the plaintiff’s business or livelihood by illegal or unlawful means;
iii. the unlawful means are directed at a third party who has an actionable claim or an actionable claim but for the absence of having suffered a loss; and
iv. the plaintiff suffering economic loss as a result of the unlawful means.
Decision
[19] In determining this matter a basic principle of civil procedure comes to mind. It was articulated in 1985 in Asfordby Storage and Haulage v. Bauer, 1 W.D.C.P. 505 (Ont. H.C.J.). At p. 506 of Asfordby Salhany L.J.S.C. stated that the purpose of pleadings is to define the issues as precisely as possible for the benefit of both the parties and the court. Very recently in 1146845 Ontario Inc. v. Pillar to Post Inc., 2013 ONSC 4374, Perell J. was faced with a Rule 21 motion similar to the one before me, in which he reminded the litigants that fundamentally, pleadings are about informing the opposite party of a case it has to meet. He also commented that a general pleadings motion may not be the appropriate procedural vehicle for a defendant to attack the substantive merits of a claim.
[20] In my view, this is precisely what the defendants are attempting to do in bringing this motion. The test on a motion is well established. It was referred to in argument as the “plain and obvious test”. The tort of intentional interference with economic relations is not novel or new. The constituent elements of the tort have been articulated and accepted by the Ontario Court of Appeal. In my view, paragraphs 80 and 81 of the statement of claim by themselves are a proper pleading to support a claim of intentional interference with economic relations at this stage of the proceedings. They set out the constituent elements of the tort. The defendants know the nature of the claim that is being made against them. I do not accept that it is plain and obvious that this aspect of the claim cannot succeed.
[21] Clearly paragraphs 76 through 79 relate to the defamation claim and a claim for punitive and exemplary damages. As well, these paragraphs refer to conduct that could arguably be relied upon to support a claim for the tort of intentional interference with economic relations. For example, in paragraph 77, it is pleaded that the defendants have written defamatory letters directly to Resolute customers and demanded meetings with them in an attempt to influence their procurement policies. This is connected to an allegation that the defendants are attempting to damage Resolute. In my view, this pleading identifies actions which constitute essential elements of the tort namely intent to injure, interference with economic interests by unlawful means and a corresponding loss. It is alleged that the defendants have intimidated (an unlawful means) a third party (Resolute customers) in an attempt to harm Resolute.
[22] The defendants argue that the plaintiffs have not pled that the defendants have acted unlawfully as the dissemination of defamatory statements cannot satisfy the unlawful means requirement for the tort of intentional interference with economic relations (Alleslev-Krofchak v. Valcom Ltd., 2010 ONCA 557, 2010 O.N.C.A. 557). The defendants have referred me to the decision of Roberts J. in Avalon Rare Metals Inc. v. Hykawy 2011 ONSC 5569. In that case, Roberts J. struck a claim for intentional interference with economic relations relying on the judgment of the Court of Appeal in Alleslev. With respect, this case can be distinguished from the facts in the Avalon matter. In Avalon, the statement of claim involved the publication of a report and an email alleged to be defamatory of the plaintiff. There were no other actions by the defendant upon which the plaintiff sought to found its action.
[23] In this matter, in addition to the allegations about the dissemination of the defamatory material, Resolute pleads that the defendants have harassed, intimidated and exerted pressure on Resolute’s customers in an attempt to injure Resolute. In my view, these are facts that are of a different quality than those in Avalon. The facts in this case are more broadly pleaded than was the case in Avalon. This militates in favour of a finding that the plaintiff has adequately pled the elements necessary to found a claim for intentional interference with economic relations. In my view, the disputed paragraphs read generously and as a whole contain more than simply an allegation that defamatory statements are solely being relied upon as the unlawful element aspect of the tort pled. The plaintiffs’ claim is more broadly based than characterized by the defendants.
[24] The defendants also submit that the plaintiffs have not pled any other conduct that would be actionable by the third party customers of Resolute. The defendants assert that allegations of intimidation, threats or harassment could not possibly give rise to an actionable claim by the customers against the defendants. I respectfully disagree.
[25] I find that the pleading does contain the constituent elements of the tort in a manner sufficiently particular to satisfy the provisions of rule 25.06(8). Both counsel agree that pleadings must be given a generous reading for the purposes of a rule 21 motion. In my view, the claim as presently drafted together with the amended reply to demand for particulars adequately informs the defendant of the case it has to meet. The pleading discloses material facts. The pleading is not so bald as to prevent the defendant from knowing the case it has to meet. It has requested and has been provided with particulars of the plaintiffs claim.
[26] At the pleadings stage, the plaintiffs are not required to prove their claim. The claim, or portions of it, will be struck only if it is plain and obvious that the claim will not succeed. In my view it is not plain and obvious that this claim will not succeed. I agree with the argument of the plaintiffs’ counsel that what is really happening in this motion, is an attempt by the defendants to have a portion of the case tried without the necessity of providing their pleading or evidence in support of their position.
[27] The motion is dismissed in its entirety. The defendant shall file its statement of defence within 30 days of the date of this order.
[28] At the commencement of the motion, the parties agreed that in the event of success of either party, costs on a partial indemnity basis fixed in the amount of $7,500.00 would be appropriate. In view of my decision, costs of this motion shall be payable forthwith by the defendants to the plaintiffs. In my view, $7,500.00 is an appropriate amount of costs for a motion of this type and complexity. If there were offers to settle exchanged prior to the motion that in counsel’s view should increase the amount of costs payable I invite counsel to make very brief written submissions of no more than one page (exclusive of copies of any offers made) on the issue. Submissions are to be received no later than October 4, 2013. In the event no submissions are received, costs will be deemed to have been fixed in the amount of $7,500.00 inclusive of disbursements and HST payable forthwith by the defendants to the plaintiffs.
________”original signed by”
The Hon. Mr. Justice F.B. Fitzpatrick
Released: September 25, 2013
COURT FILE NO.: CV-13-0164
DATE: 2013-09-25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Resolute Forest Products Inc., Resolute FP US Inc., Fibrek General Partnership, Fibrek U.S. Inc., Fibrek International Inc., and Resolute FP Canada Inc.
Plaintiffs
- and –
2471256 Canada Inc. DBA Greenpeace Canada, Richard Brooks and Shane Moffatt
Defendants
DECISION ON MOTION TO STRIKE INTENTIONAL INTEREFERNCE CLAIM
Fitzpatrick J.
Released: September 25, 2013
/mls