ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Dylan Hall
Judy Byrne, Counsel for the Plaintiff
Plaintiff
- and -
Nietsch Drywall (K-W) Inc.,
Walter Nietsch, Manfred Nietsch,
And Michael McKnight
Defendants
Wayne Bumstead, Counsel for the
Defendants
HEARD: December 17, 2014
THE HONOURABLE MR. JUSTICE P.J. FLYNN
REASONS FOR JUDGMENT
[1] There are two motions before the court:
(i) the Defendants seek an order striking out the entire Statement of Claim because it discloses no reasonable causes of action for assault, defamation, injurious falsehood or intentional interference with economic relations and claim that the action is frivolous or vexatious or otherwise an abuse of process of the court;
(ii) the Plaintiff seeks an order that the trial of this action and action No. C-599-14 be consolidated and/or tried together and that the Defendants deliver a Statement of Defence within 14 days and so forth.
[2] The Defendants say that the Plaintiff’s Statement of Claim fails to meet the minimum standard of compliance with the rule for pleading, which requires a concise and comprehensible statement of material facts and that the claim fails to disclose reasonable causes of action for the amounts claimed from the Defendants, as well as making argumentative, inflammatory and embarrassing allegations unsupported by the facts.
[3] The Defendants further say that it is plain and obvious that the Statement of Claim should be struck out in its entirety, though they do concede that the Court could merely strike out some parts of the Statement of Claim.
[4] This action was commenced by the Plaintiff to recover unpaid wages and to address the circumstances surrounding his dismissal. A Notice of Action was issued on June 11, 2014 and the Statement of Claim served on the Defendants on July 17, 2014. That Statement of Claim is dated July 10, 2014, which is after the Defendant Nietsch Drywall (K-W) Inc. (Nietsch) commenced a separate action against the Plaintiff for damages and equitable remedies for the Plaintiff’s breaches of his contract in fiduciary duties. The Statement of Claim here was served on the Defendants on July 17, 2014.
[5] So it was between the issuance of the Notice of Action and the service of the Statement of Claim that the Plaintiff was served with a Statement of Claim dated July 10, 2014, commenced by one of the Defendants in this action, Nietsch Drywall (Nietsch).
[6] As a complete aside, I must say that whilst I was given nothing but courtesy and professionalism by both counsel in this case, it is plain and obvious to me that there is much bad blood between their clients. Indeed I would go so far as to say that not only do the pleadings thus far show that but indeed this motion and the fight that it spawned is also an indication of that. I would be so bold to suggest that this action will not run a smooth course.
[7] Here, the Plaintiff claims damages for wages and vacation pay from Nietsch, as well as damages for defamation, injurious falsehood and intentional interference with economic relations from the individual Defendants. He also claims damages for assault from the Defendant, Manfred Nietsch, and punitive aggravated or exemplary damages from all the Defendants.
[8] The Defendants point out that damages for wrongful dismissal or arising from the termination of the Plaintiff’s employment are not claimed by him. The only claim arising from the Plaintiff’s employment by the Defendant Nietsch is for remuneration alleged to have been earned prior to his termination.
[9] And so the Defendants raise great umbrage with any use of wording or allegations complaining that the Plaintiff’s employment was “without cause” or wrongful. Counsel points out at least a half dozen examples through the Statement of Claim where such words are employed. He says that those allegations are irrelevant to the Plaintiff’s claim and gratuitous and ought to lead to the striking of the entire Statement of Claim.
[10] The Plaintiff is seeking damages against Manfred Nietsch for assault where he alleges that Manfred aggressively followed him out of the building and yelled “… I’ll fuckin kill you” several times, and as a result of that, the Plaintiff is said to be fearful for his safety. Here, the Defendants’ main claim is that while there is an explanation of the reason for no criminal charges having been laid against Manfred Nietsch, that explanation is irrelevant and gratuitous. He also claims that the use of wording such as “without cause” or “wrongful termination” amounts to pleadings of law, not of material facts.
[11] I don’t have the same concern.
[12] Nor do I have the same concern with respect to statements said to have been made in the Plaintiff’s Record of Employment after termination.
[13] The Defendants’ concern is that those statements are irrelevant and gratuitous when the Plaintiff says that the Record of Employment was incorrect and false.
[14] I accept that the modern view of assault is that a threat of violence, coupled with a condition that the speaker has no right to impose, the compliance with which is essential to purchase one’s safety, is an assault and contrary to seeing this as gratuitous, I accept that this is part of the matrix of material facts needed for the Plaintiff to make out its case.
[15] The bar is not that high. I have a similar view concerning the verbiage used in the Statement of Claim surrounding this whole notion of wrongful dismissal or termination without cause.
[16] I accept from counsel, though I understand that my mandate is limited to accepting the facts as they are pleaded assuming them to be correct, that I must give the Plaintiff a chance to succeed and Miss Byrne argues that what these facts demonstrate is malice with respect to the other claims. I think she ought to be able to march forward on that basis. As I said earlier, there seems to be a lot of bad blood between these people and by that I would say malice, maybe on both parties’ parts. Both of them should have their forum to vent their spleens.
[17] Paragraph 25 of the Statement of Claim explains that the Plaintiff contacted police with respect to the so-called death threat and a report was made and further says that no criminal charges were laid because of a paucity of witnesses. While I might agree with the Defendants that this kind of statement pushes the limit of the pleading of evidence rather than just material facts, I am not concerned that it is fatal at all to the Statement of Claim and I would leave sleeping dogs lie.
[18] My answer is the same vis-à-vis the Defendants’ complaints in respect of paragraph 26 of the Statement of Claim that the Plaintiff made irrelevant and gratuitous allegations in respect of the Record of Employment. I have no concern with that delineation of facts by the Plaintiff. Again, I accept Plaintiff’s counsel’s view that this may be very well material to the overall dispute as to the manner in which the Plaintiff was treated by the Defendants.
[19] I take it that the main concerns of the Defendants here are in respect of paragraph 29-39 of the Statement of Claim dealing with allegations underlying the Plaintiff’s claims for defamation, injurious falsehood and intentional interference with economic relations.
[20] The Defendants raise concerns about the identification of “a number of people in the drywall industry” and the lack of particularity around the allegation that the Plaintiff stole both Nietsch Drywall property and Nietsch Drywall money. The Defendants go on to complain that there is no specific allegation in the Statement of Claim that any of the alleged statements attributed to the Defendants was false, nor are the dates that the alleged statements were said to be published set out.
[21] The Defendants complain that none of the personal Defendants is identified as having made any of the statements alleged in subparagraph 30 (a); nor is the person to whom the statement is said to have been made identified. The Defendants’ complaints hone in on the various subparagraphs in paragraph 30 of the Statement of Claim, for example, saying that the statement in subparagraph 30 (b) is not capable of defamatory meaning or that none of the personal Defendants is identified as having made the statements alleged in subparagraph 30 (f) and 30(g) nor is the person to whom the statement is made in 30 (f) identified.
[22] In the Statement of Claim, the Plaintiff states that all of the Defendants commenced on a course of conduct with the intent of defaming the Plaintiff and the Plaintiff argues that particulars of those defamatory statements are laid out in paragraph 30. The crux of the understanding of the slanderous statements comes through the reading of the whole of paragraph 30 wherein the Plaintiff complains that the Defendants have labelled him a thief.
[23] It is true that not all of the “who” and “what” is crystallized in the Plaintiff’s Statement of Claim around paragraph 30, but some of the answers there lie within the knowledge only of the Defendants. So my answer on this score is this: If there are particulars that the Defendant requires before pleading, a Demand for Particulars ought to be made. If there is no answer to that demand then paragraph 30 ought to be struck, with leave to the Plaintiff to redraft it.
[24] While the Defendants may be accurate in saying there are no specific facts alleged in the Statement of Claim from which a finding of malice could be made by the court, I would say this: perhaps not by themselves, but as I understand the Plaintiff’s position, it is that the whole matrix of the conduct of the Defendants would inevitably lead to a finding of malice.
[25] I would agree with the Defendants that there is no allegation in the Statement of Claim that the Defendants caused a breach of contract and there are no specific facts alleged from which a finding of breach of contract could be made by the Court, but as I closely review paragraph 1 of the Statement of Claim, I see no claim for damages on account of breach of contract. So, I have trouble dealing with the Defendants’ concern in that regard. There may be surplusage there, but if litigants were to come to this court to strike every case of surplusage in pleadings, our motions lists would expand beyond redemption.
[26] There is no dispute between the parties as to the correct interpretation of the rules in this case and I would accept, without reservation, the Defendants’ statement of those rules in terms of the Court’s jurisdiction to grant relief sought and the test in paragraphs 26-31 of the Defendant’s Factum.
[27] Likewise, in terms of the law of scandalous, frivolous and vexatious pleadings or even the definition of defamation, I accept that there is not much difference in the positions of the parties in that they have correctly brought the law to my attention.
[28] As I wrote earlier, in those circumstances where the Defendants believe that a defence cannot be pleaded without particulars having been provided, such as being told the names of the person or persons to whom or by whom a slander was uttered, particulars can be demanded and it is quite likely that when those particulars are demanded, it may be that the Plaintiff will respond as his counsel has done in the Factum by saying that the particulars of those defamatory statements are laid out in paragraph 30 of the Statement of Claim, wherein persons or identifiable categories of persons are set out in terms of who advised whom of what.
[29] I think at the core of the Plaintiff’s claim is its assertion that false allegations were made by the Defendants with malice as a reprisal to the demand of Hall for his rightful wages and with the intent that Hall would be unable to work in the drywall industry.
[30] That seems a clear definition of the jousting match. But, there may be some particulars that the Defendants do miss and demand for particulars is the proper course here.
[31] On the other hand, I am not satisfied that material facts are concisely set out in paragraph 31, which purports to be a statement of material facts in support of claims of injurious falsehood and unlawful interference with economic relations. Paragraph 31 should be struck, with leave to amend if desired.
[32] Actual damages is an element of the tort of injurious falsehood and I am not certain that “putting Hall’s employment in jeopardy” meets the test.
[33] I also agree with the Defendants that a pleading of unlawful interference with economic or contractual relations which does not identify an enforceable contract, what knowledge any particular Defendant had of the Plaintiff’s contract, or any intentional act on the part of any particular Defendant to cause a breach of that contract, is fundamentally defective. And, I therefore would say that the claim in paragraph 1 (b)(i) should be struck insofar as intentional interference with economic relations is concerned. But, again those words may be struck with leave by the Plaintiff to amend.
[34] I am mindful of the Plaintiff’s position that in order to recover for injurious falsehood, malice must be shown. And I understand the Plaintiff’s theory that the Defendant was motivated by malice in the publication of the falsehood, as well as the fact that general loss may be shown where the nature of the transaction and publication is such that it is impossible to specify the names of the persons who may have been affected by the publication. I am doubly mindful that it is well settled law that the threshold for sustaining a pleading on a Rule 21 motion is not high. If a claim has a chance of success, it must be permitted to proceed. And accordingly, save for my particular rulings on particular paragraphs above, this matter should march on.
[35] I would strike paragraph 31 of the Statement of Claim as not a meaningful pleading, in any event.
[36] It is clear that both of these parties are determined to have their day(s) in Court.
[37] Where I have required amendments, or where the proper course is a Demand for Particulars, the particulars must be demanded within 10 days and answered within 10 days of the delivered demand. Where amendments are required, they must also be made within 10 days.
[38] The Defendants must then deliver their Statement of Defence within 10 days after the delivery of particulars or the amended pleading.
[39] As to the Plaintiff’s motion, it makes much sense that this action and the action in Court File No. C-559-14 be tried together, but no Defence has been filed yet and that might be a premature order. If, after the Defence is filed, the parties consent to that way of proceeding, then their consent should be signified to me and I will make that order.
[40] It will then be for Plaintiff’s counsel in this action to marshal the parties in both actions through all the stages of litigation until trial, including discoveries.
[41] Thereafter, I may be consulted or motions may be directed to me about the progress of both cases through the thickets of litigation.
Costs
[42] I am of the view that success is divided here and that costs ought not to be of concern. However, if the parties disagree with this position, they may make written submissions on costs, not exceeding three doubled spaced typed pages addressed to me within 30 days
P.J. Flynn J.
Released: March 11, 2015
COURT FILE NO.: C-548-14
DATE: 2015-03-11
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Dylan Hall
Plaintiff
– and –
Nietsch Drywall (K-W) Inc ., Walter Nietsch,
Manfred Nietsch, and Michael McKnight
Defendants
REASONS FOR judgment
P.J. Flynn J.
Released: March 11, 2015
/lm