ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-13-0164-00
DATE: December 10, 2013
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
Mr. A. Hamilton and Mr. Colin Pendrith, for the Plaintiffs (Responding Parties)
Inc.
Plaintiffs (Responding Parties)
- and -
2471256 Canada Inc., D/B/A Greenpeace Canada, Richard Brooks and Shane Moffatt
Mr. J. Goldblatt, for the Defendant (Moving Parties)
Defendants (Moving Parties)
HEARD: November 07, 2013,
at Thunder Bay, Ontario
Regional Senior Justice H.M. Pierce
Reasons on Motion for Leave to Appeal
Introduction
[1] The defendants seek leave to appeal the decision of Mr. Justice B. Fitzpatrick who dismissed their motion to strike the plaintiffs’ pleadings.
[2] The plaintiff sued the defendants for damages for defamation and intentional interference with economic relations. At paragraphs 76 – 79 of the statement of claim, the plaintiffs pleaded that Greenpeace sent defamatory communications to the plaintiffs’ customers, investors and stakeholders and attempted to engage its customers to influence the plaintiffs’ procurement policies.
[3] At paragraphs 80 – 81 of the statement of claim, the plaintiffs allege that the defendants have continuously and intentionally interfered with Resolute’s economic relations by threatening and intimidating Resolute’s customers.
[4] The plaintiffs allege loss of income and reputation as a result.
[5] The defendants served a demand for particulars requesting the plaintiffs to specify the “other defamatory publications” allegedly disseminated by the defendants. The plaintiffs replied that these publications “include but are not limited to” the publications referenced in the defamation claim. The plaintiffs also responded that:
full particulars of the defendant’s interference will be provided following the conclusion of the examination for discovery.
[6] The defendants also sought particulars of Resolute’s customers to whom defamatory publications were allegedly secretly sent. The plaintiffs responded:
This evidence is fully known by the defendants. This demand for evidence is further prohibited by Rule 25.06(1).
[7] Next, the defendants sought particulars of the plaintiffs’ allegation about the “surreptitious nature of the defendants’ threats and intimidation.” The plaintiffs replied that:
Greenpeace and its authorized agents are approaching Resolute’s customers without notice to Resolute and directing those customers to the various materials particularized in the Statement of Claim, which contain false and damaging allegations about Resolute.
[8] The defendants moved for an order to strike the plaintiffs’ claim for intentional interference with economic relations as pleaded. After service of the defendants’ notice of motion seeking an order striking the statement of claim as pleaded, the plaintiffs provided the following particulars:
The defendants’ threats and intimidation are not limited to the dissemination of defamatory materials. The defendants’ threats and intimidation constitute a distinct wrong that is actionable by Resolute’s customers. In multiple instances the defendants have approached and threatened Resolute’s customers, with reference to previous marketing campaigns conducted by the defendant Greenpeace and other ENGO’s, in order to cause these customers to remove Resolute as a supplier in their supply chain. The precise nature and content of those threats and intimidation are known to the defendants, but not to Resolute. Full particulars will be provided following the completion of the examination for discovery of the defendants and in advance of trial. The defendants’ conduct is directed at Resolute’s customers, who become the vehicle through which harm is caused to Resolute.
[9] Mr. Justice Fitzpatrick dismissed the motion to strike the pleading. Greenpeace seeks leave to appeal to Divisional Court pursuant to both branches of Rule 62.02 (4). The plaintiffs submit that the motion was properly decided and does not meet the test for leave. Counsel agreed that the issue before the motions judge was whether it was plain and obvious that the plaintiffs’ claim for intentional interference with economic relations is certain to fail.
Grounds on Which Leave May be Granted
[10] Rule 62.02 (4) directs that leave to appeal shall not be granted unless,
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears, to the judge hearing the motion, good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that in his or her opinion, leave to appeal should be granted.
[11] A decision will be conflicting if the exercise of discretion is grounded on a different principle than is used in another case: Brownhall v. Canada (Ministry of National Defence), 2006 7505 (ON SC), at para. 27.
[12] In order to satisfy the test of “good reason to doubt the correctness” test, the court must be satisfied that the question is “open to serious debate”: McDonald v. Freedman, 2013 ONSC 812 at para. 17. An appeal is important when it transcends the interests of the litigants and deals with issues of general or public importance touching on the development of the law and the administration of justice: McDonald, para. 18.
Discussion
[13] I am of the view that there is a conflicting decision by another judge in Ontario relating to the subject of the appeal and that it is desirable that leave be granted. As a preliminary matter, the statement of claim does not plead material facts contrary to Rule 25.06. In this case, the plaintiffs propose to supply those facts after examination for discovery. In Bilotta et al. v. Barrie Police Services Board et al, 2010 ONSC 622, para. 26, the court held that it is improper to plead bald facts and take the position that the material facts will be supplied after examinations for discovery.
[14] Not only do the pleadings form the framework for the parties and the court at trial, they also set out the parameters of the case for production and discovery. Without a mutually understood framework, it would be impossible for the parties to determine what documents to produce and what questions are relevant at examinations for discovery. A vague pleading permits a party to embark on the “fishing expedition” that is discussed in Bilotta.
[15] The defendants also take issue with the correctness of the pleading of intentional interference with economic relations and so full argument should also be made at the appeal on this issue.
[16] Leave to appeal is therefore granted on all issues.
Regional Senior Justice H.M. Pierce
Released: December 10, 2013
/ket
COURT FILE NO.: CV-13-0164-00
DATE: December 10, 2013
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 Inc.
Plaintiffs (Responding Parties)
- and –
2471256 Canada Inc., D/B/A Greenpeace Canada, Richard Brooks and Shane Moffatt
Defendants (Moving Parties)
REASONS ON MOTION FOR LEAVE TO APPEAL
Pierce, RSJ
Released: December 10, 2013
/ket