ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11-51249
DATE: 2014/04/01
BETWEEN:
IAN GLENN
Plaintiff/Moving Party
– and –
DONALD OSMUN
Defendant/Respondent
Martin J. Thompson and Kyle M. Lambert, for the Plaintiff/Moving Party
Michael Rappaport, for the Defendant/Respondent
HEARD: Friday March 21, 2014
REASONS FOR JUDGMENT
lalonde j.
Overview
[1] This motion is brought by the plaintiff, Ian Glenn (the “plaintiff”), for an order permitting the plaintiff to file an Amended Statement of Claim. The defendant by his cross-motion seeks an order to compel the plaintiff to answer outstanding undertakings and refusals given during his examination for discovery held on December 18, 2013.
[2] The facts and the law are reproduced from the plaintiff’s factum and I adopt same as they represent fairly what has transpired between the parties in this action. I agree that the law cited is the applicable law.
[3] On May 3, 2011, the plaintiff filed a Statement of Claim against Donald Osmun (the “defendant”), for defamation resulting from a communication made by the defendant. The communication stated that the plaintiff filed false affidavits in a quasi-judicial proceeding and incited the commission of perjury on behalf of the individuals who swore the same affidavits.
[4] The defendant is defending the Statement of Claim and is represented by Mr. Michael Rappaport (“Mr. Rappaport”). As required by the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the defendant served his Affidavit of Documents upon McMillan LLP who represent the plaintiff.
[5] As part of his production obligation, the defendant produced a very large Affidavit of Documents, relative to the scale of this action. The Affidavit of Documents is in two volumes. Volume II and Schedule “A” productions contain, at tab 121, the defamatory communication upon which the original Statement of Claim is based. However, tabs 126, 127, 128, 129 and 131 of the defendant’s Affidavit of Documents disclose additional e-mail communications in which defamatory statements about the plaintiff, nearly identical to those referred to in the original Statement of Claim, are made.
[6] The requested amendments are solely the result of additional information received from the defendant through the discovery process. This information was not available at the time on which the original Statement of Claim was filed. Had the plaintiff or his counsel known about the additional defamatory e-mails, their particulars would have been reflected in the original Statement of Claim.
[7] On December 18, 2013, upon meeting Mr. Rappaport in person prior to the examination for discovery of the plaintiff, counsel for the plaintiff once again requested Mr. Rappaport’s consent to file an Amended Statement of Claim. At this point, Mr. Rappaport suggested that he would not consent to the request but did not provide a firm answer. The Amended Statement of Claim was to have disclosed the additional e-mail communications in which more defamatory statements were made about the plaintiff.
[8] Finally, on January 6, 2014, counsel for the plaintiff sent another letter to Mr. Rappaport requesting his consent to amend the original Statement of Claim. The letter requested that Mr. Rappaport immediately advise as to whether or not he intended to consent to the amendments and stated that the plaintiff would bring a Motion for the purpose of filing an Amended Statement of Claim should he refuse to do so. No response has subsequently been received from Mr. Rappaport.
THE LAW
[9] Rule 26.01 of the Ontario Rules of Civil Procedure sets out the test for amending pleadings and states the general power of the court is that:
On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just unless prejudice would result that could not be compensated for by costs or an adjournment. (emphasis added)
[10] Rule 26.02(c) of the Ontario Rules of Civil Procedure states that:
A party may amend the party’s pleading, (c) with leave of the court.
[11] Mandatory language is used in Rule 26.01, providing that the court shall presumptively grant leave to amend pleadings if the prerequisite of non-compensable prejudice or an adjournment is met.
[12] In Marks v. Ottawa (City), 2011 ONCA 248, 280 O.A.C. 251 at para. 19, the general rule from the Court of Appeal of Ontario is also that amendments are to be presumptively approved. The Court of Appeal also stated at para. 19 that the following factors should be considered when determining whether to grant an amendment of the pleadings:
• An amendment should be allowed unless it would cause an injustice not compensable in costs;
• The proposed amendment must be shown to be an issue worthy of trial and prima facie meritorious;
• No amendment should be allowed which, if originally pleaded, would have been struck; and
• The proposed amendment must contain sufficient particulars.
[13] Golic v. ING Insurance of Canada (2008), 2008 69502 (ON SC), 94 O.R. (3d) 446, at para. 16 (S.C.), aff’d, 2009 ONCA 836, stands for the proposition that an amendment under Rule 26.01 should be allowed as long as a pleadings amendment can be made without causing injustice to the other party.
[14] In Kings Gate Developments Inc. v. Colangelo (1994), 1994 416 (ON CA), 17 O.R. (3d) 841 at para. 5 (C.A.), examples of prejudice that could not be compensable by costs were identified as arising from the death of a material witness or from the destruction of essential files.
[15] In Iroquois Falls Power Corp. v. Jacobs Canada Inc., 2009 ONCA 517, [2009] O.J. No. 2642, Laskin J. explained at para. 20 that:
…to defeat a motion to amend, the party resisting the amendment must show that the non-compensable prejudice it relies on “would result” from the amendment. It must show that the prejudice arises from the amendment. [Emphasis added.]
[16] In Transamerica Life Insurance Co of Canada v. Canada Life Assurance Co. (1995), 1995 7105 (ON SC), 25 O.R. (3d) 106, at paras. 12-13, the Ontario General Division has stated:
…rule 26.01 is of utmost importance in insuring that the courts are able to decide the merits of cases and justly determine the real matters that are in controversy. The direction is mandatory and the court cannot lightly make an order that tends to ignore the principles on which the rule is grounded.
[17] In Transamerica at paras. 12-13, the fact that information arose from evidence obtained in the course of examination for discovery, resulting in more evidence being available to the moving party, provides a justification for allowing the requested amendments rather than prohibiting them.
THE APPLICANT’S POSITION
[18] The requested amendments are solely the result of additional information received from the defendant through the discovery process. The defendant’s Affidavit of Documents disclosed additional e-mail communications in which defamatory statements about the plaintiff were made.
[19] This information, resulting from documentary discovery, provided additional particulars to the plaintiff and thus serves as justification for allowing the proposed amendment to the Statement of Claim.
[20] No prejudice will arise to the defendant as a result of the proposed amendments. Not only did the defendant supply the documentation upon which the requested amendments are entirely based, but his counsel was afforded ample opportunity to examine the plaintiff about anything contained therein.
[21] The proposed amendments add particulars in support of the same cause of action and include evidence of defamatory statements made by the defendant, which are issues worthy of trial and are prima facie meritorious. The requested amendments are based on information not available at the time when the original Statement of Claim was filed. Had the plaintiff or his counsel known about the additional defamatory e-mails, their particulars would have been reflected in the original Statement of Claim.
THE RESPONDENT’S POSITION
[22] The respondent argues that the five allegedly defamatory communications located at tabs 126, 127, 128, 129 and 131 of the defendant’s Affidavit of Documents are not related to this claim and could necessitate commencing new causes of action.
[23] The communications referred to in the previous paragraphs were inadvertently included in the Affidavit of Documents. They are covered by litigation privilege as they are used in other courts and litigation privilege is not waived.
[24] The respondent claims that the amendments are statute-barred as they come two and a half years after the issuance of the Statement of Claim. This is beyond the two-year limitation period established under s. 4 of the Limitations Act 2002, S.O. 2002, c. 24, Sched. B and the three month limitation period under s. 6 of the Libel and Slander Act, R.S.O. 1990 c. L.12.
[25] The timetable provides that this action be set down for trial on or before September 8, 2014. If the amendments are allowed, the trial of this matter will be further delayed.
[26] The defendant claims he will suffer irreparable damage as he will be statute-barred from claiming the recipients of the allegedly defamatory e-mails as co-defendants.
DECISION
[27] No new causes of action are being asserted by the applicant as the amendments merely provide particulars of allegations already pled. They do not address a new cause of action.
[28] At paragraph five of the Statement of Claim, the plaintiff had already made claims against “others not known” as potential recipients of e-mails that might be found. The amendments respond specifically to the words “others not known.”
[29] The plaintiff anticipated that more e-mails had been sent containing the alleged defamatory communications, with the result that the amendments to the Statement of Claim merely amplifies what has already been pleaded. It is true that defamation pleadings require a greater degree of specificity than in most other causes of action.
[30] I see no reason why this action would not be ready to be set down by September 8, 2014 by allowing the Statement of Claim to be amended. There is plenty of time to pursue discoveries on this matter on the amendments to the Statement of Claim.
[31] The irrefutable harm defendant counsel alleges is not evident as the mere receipt of a defamatory communication is not actionable. It is a given that the defendant who wrote the e-mails in question in 2011 knew to whom they were addressed and could have started his legal actions two years ago. Moreover, the defendant has up to two years to make a claim for indemnity from the date of judgment.
[32] The motion is granted with costs. The plaintiff can serve his amended Statement of Claim and file it. The defendant can proceed to discoveries on the amended claim. Submissions on costs not exceeding two pages have to be made within 15 days of this decision by the plaintiff and the defendant is given a further 15 days following the receipt of the demand for costs to reply if he wishes.
CROSS-MOTION
[33] The defendant brings a cross-motion to have the plaintiff answer all outstanding undertakings given at the examination for discovery held on December 18, 2013. The plaintiff has already agreed to re-attend examinations to answer questions raised by the Statement of Claim amendments.
[34] I agree with counsel for the plaintiff that if the defendant is not happy with the answers received during discoveries, he can use the answers to his benefit at trial. It is not proper to say that the witness at discovery committed perjury. If the defendant thinks that the answers should be different then let him prove that at trial and obtain a favourable result for himself.
[35] As for the timeliness of providing answers on undertakings, the chart and timetable for the proceedings govern. There certainly should not have been a long delay in this matter to date.
[36] Damages are specified by the time the trial comes about and not at the time of discoveries especially if the computation of damages is ongoing. This demand for particulars of damages made by the defendant is normally made at the pre-trial proceeding.
[37] The defendant’s cross-motion is dismissed with costs. The same timelines for costs submissions can be used by the parties on the motion.
Mr. Justice Paul F. Lalonde
Released: April 1, 2014
COURT FILE NO.: 11-51249
DATE: 2014/04/01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
IAN GLENN
Plaintiff/Moving Party
– and –
DONALD OSMUN
Defendant/Respondent
REASONS FOR JUDGMENT
Lalonde J.
Released: April 1, 2014