Court File and Parties

COURT FILE NO.: CV-15-540385 DATE: 20160527 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dr. JANICE GOODMAN and DR. JANICE GOODMAN DENTISTRY PROFESSIONAL CORPORATION, Plaintiffs AND: DR. NATALIE ARCHER and ANTHONY DE FAZEKAS, Defendants

BEFORE: Madam Justice Darla A. Wilson

COUNSEL: Cameron Wetmore, for the Plaintiffs Andrew McCoomb, for the Defendants

HEARD: May 10, 2016

Endorsement

1The Plaintiffs bring this motion pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, O. Reg 193/15, seeking an order striking paras. 6, 7, and 8 of the Statement of Defence and Counterclaim which plead the defences of justification, qualified privilege and fair comment. In the alternative, the Plaintiffs seek an order requiring the Defendants to provide particulars of these paragraphs.

Background

2The Plaintiff, Dr. Janice Goodman, [“Goodman”] is a dentist who carries on her practice in the same building and across the hall from the Defendant Dr. Natalie Archer [“Archer”], who is also a dentist. The Defendant Anthony De Fazekas [“De Fazekas”] is the husband of Archer.

3Goodman issued this claim on November 12, 2015, alleging the Defendants were involved in “concocting and publishing” an anonymous rating and review of Goodman on August 26, 2015 on the webpage of a company called RateMDs Inc. This review was not complimentary of the Plaintiffs’ dental office and did not recommend that readers of the review attend there for dental treatment.

4On the same date, there was a review of Dr. Tina Kokosis [“Kokosis”], who is another dentist working at the Plaintiffs’ dental office. That review stated that Kokosis had put in an implant on an angle and suggested that the readers of the review not go to her for implants.

5The Plaintiffs allege the ratings and reviews were false and malicious at the time they were posted and were defamatory of the Plaintiffs. It is asserted that the ratings and reviews were done to intentionally harm and damage the professional reputations of the Plaintiffs. It is further alleged that the damaging review emanated from the IP address that belongs to De Fazekas. The ratings and reviews were subsequently removed from the internet in late October or early November 2015.

6The Statement of Defence and Counterclaim was delivered in early January 2016. The Defendants deny any involvement in the making of the rating and review. In the alternative, in paras. 6, 7 and 8 it is pleaded: (a) that the comments in the ratings and reviews were true and therefore reliance is placed on the defence of justification; (b) that the comments are subject to qualified privilege; and (c) that the comments concern matters of public interest and were made without malice and thus, they are subject to the defence of fair comment.

7Following delivery of the Statement of Defence and Counterclaim, the solicitor for the Plaintiffs wrote to counsel for the Defendants with a Demand for Particulars seeking further information concerning paras. 6, 7, and 8. The Defendants responded, noting they denied making the rating and review and no further particulars were provided.

Positions of the Parties

Plaintiffs

8The Plaintiffs argue that the paragraphs in dispute contain bald allegations of justification, fair comment and qualified privilege without any essential facts. Alternatively, the Plaintiffs submit that they require the particulars of the pleading in order to do a Reply. Goodman in her affidavit states that she needs to know whether the person who is alleged to have made the observations in the review is a patient of hers and on what date these alleged observations were made. She states that the failure of the Defendants to provide this information “is very prejudicial to me as it prevents me from confirming who was in my office on the alleged date and obtaining and preserving the recollections of those persons of that day.”

Defendants

9The solicitor for the Defendants notes that Rule 21 does not permit the introduction of evidence and submits that the affidavit of Goodman ought to be ignored. Furthermore, it is submitted that the pleading clearly sets out the position of the Defendants and it is not necessary or proper to plead evidence so the case ought to move ahead to examinations for discovery. It is submitted that the motion of the Plaintiffs ought to be dismissed with costs.

Analysis

10Rule 21 of the Rules of Civil Procedure provides that a party can move before a judge for the determination of a question of law or to strike out a pleading on the ground that it discloses no reasonable cause of action or defence. No evidence is admissible on a Rule 21 motion without leave of the trial judge, absent consent of the parties. While the Plaintiffs rely on Rule 21, in my view this is not the proper rule under which the relief is sought. The motion does not concern the determination of a question of law before trial. The Plaintiffs do not argue that the Statement of Defence as pleaded discloses no reasonable defence. In addition, the Plaintiffs have included in their materials and rely upon the affidavit of Goodman.

11If I were to deal with this motion as a Rule 21 motion, I would not consider the affidavit filed by Goodman. I would dismiss the motion as the Plaintiffs have not demonstrated that a question of law has been raised that ought to be disposed of at an early stage. They have also not shown that the Statement of Defence fails to disclose a reasonable defence.

12In their materials, alternatively, the Plaintiffs rely on Rule 25.10 which provides that where a party demands particulars of an allegation in a pleading and the responding party fails to supply the particulars, the court may order particulars be delivered. The question for my determination, then, is whether the existing pleading is deficient and there ought to be an order requiring the Defendants to provide particulars of paras. 6, 7 and 8 of the Statement of Defence and Counterclaim.

13Pleadings are required to contain a concise statement of the material facts on which a party relies but not the evidence by which those facts are to be proved. The pleadings must contain sufficient information to enable the opposing party to know the case it has to meet and to respond with its own pleading.

14In the case before me, the Plaintiff Goodman alleges she has been defamed by the online review of her dental office on the RateMDs website. She does not know who drafted the review; her affidavit deposes that she has evidence that the IP address for the computer that submitted the review to RateMDs belongs to the Defendant De Fazekas. She demands, therefore, that the Defendants provide particulars of the person who created the reviews.

15The Defendants deny any involvement in the ratings and reviews. In the alternative, if it is found that they were somehow part of these impugned reviews, they plead three alternative defences available to them in a defamation action: that the reviews were true and therefore subject to the defence of justification, that the reviews were subject to qualified privilege, or that the comments reflected the honest opinion of the authors and they were not made with malice.

16I accept the comments in Toronto Star Ltd. v. Globe Printing Co., [1941] 4 D.L.R. 113 (Ont. H.C.J.), where the court noted, at p. 118, “More than in any other class of action, pleadings are of the utmost importance in actions for defamation, and their regularity should be insisted upon. The plaintiff should be in the position of knowing precisely what case the defendant is going to make at the trial, and to be enabled to prepare accordingly.”

17While the solicitor for the Plaintiffs relied on Parkland Chapel Ltd. v. Edmonton Broadcasting Co. Ltd. et al (1964), 45 D.L.R. (2d) 752 (Alb. S.C.), in my view that case does not assist him with his argument on the motion. It deals with questions refused at an examination for discovery, which is a different issue than whether particulars are necessary in order to enable the Plaintiffs to plead.

18I find the case of Independent First Nations Alliance v. Canada (Attorney General), [2002] O.J. No. 2586 (S.C.), to be factually closer to the case before me. In that case, the Plaintiffs brought a motion to strike portions of the defence in a defamation action or for an order for particulars. Cavarzan J. made reference to the “minimum level of material fact disclosure” that is necessary in a statement of defence. In dismissing the motion (except for ordering two words of the defence be struck with leave to amend) the court stated, at paras. 18-19:

In the case at bar, Dr. Dooley knows the case he has to meet. The statements alleged by the plaintiffs to be defamatory are specific, as are the pleadings denying that the statements are defamatory and claiming justification. I agree with the position taken by the defendants that the plaintiffs are seeking to obtain by this motion not material facts, but rather the evidence by which those facts are to be proved.

Even if these plaintiffs were entitled to particulars in the circumstances here, I would decline to order such particulars. Particulars for the purpose of pleading will be ordered only if they are not within the knowledge of the party demanding them and they are necessary to enable that party to plead.

19I agree with the views of Carvazan J. and, in my opinion, the Plaintiffs know from reading the Statement of Defence and Counterclaim the position of the Defendants and the nature of the case that they will be met with at trial. This is not a situation where vague, general comments were made and alleged to be defamatory. Rather, the reviews as posted on the website indicated the unsatisfactory conditions which are alleged to have been present at the dental office of Goodman: that the dentist and her staff all wore gloves which “touched everything”, that mistakes were made, that the staff was not helpful, and that Goodman was more interested in learning about insurance coverage than in providing treatment. The allegations about Kokosis are clear on their face: that she was negligent in her insertion of an implant.

20I do not accept that the Plaintiffs require further particulars in order to plead to the Statement of Defence and Counterclaim. The Plaintiffs are seeking evidence on this motion, not particulars, and those questions are properly made at examinations for discovery, but they are not necessary at the pleading stage.

21On the alternative pleading, namely that the circumstances give rise to qualified privilege defence, the reviews were published on a website that was intended for the public to receive information on the experiences of other patients with a particular medical professional and to also provide their own comments resulting from treatment that they received. In my view, it ought to be clear to the Plaintiffs that in the event that it is found the Defendants were involved in the ratings that were posted on the RateMds website, they will argue that the reviews are subject to the defence of qualified privilege. What is not clear is why the Plaintiffs submit they need further particulars in order to understand this alternative defence. I reject this submission.

22Finally, the Defendants plead a fair comment defence. Given the nature of the RateMDs website, its intent is to provide members of the public with the opinions of other patients so they can make a decision about whether or not to engage a certain medical practitioner. This would have an element of public interest, it seems to me, and thus would entitle the Defendants to rely on this alternative defence if it is found the Defendants posted the reviews.

23In my view, which I expressed to counsel at the hearing, this motion is misconceived. The Defendants deny any involvement in the reviews that were posted on the RateMDs website in August 2015. The Plaintiffs do not accept this as an accurate statement. They demand further particulars about the postings, alleging they cannot deliver a Reply without this information. That position is not supported on the facts of this case.

24Alternative defences are contained in pleadings on a regular basis because at an early stage, a party may not know what the evidence will be at trial and does not want to be precluded from advancing claims or defences which are supported by the evidence. Why the Plaintiffs would insist that the Defendants provide particulars of the name of the person who made the alleged observations at the Goodman dental office, given that the position of the Defendants is that they knew nothing about the review, defies comprehension. It appears from the affidavit of Goodman that she is of the view that the Defendants have further information that has not been disclosed. As I have noted earlier in these reasons, questions in this area may well form the basis for requests for undertakings to obtain information and documents at the examinations for discovery. They are not necessary for the Plaintiffs to know the case they have to meet or to deliver any Reply that they believe is necessary. I note in passing that the right to deliver a Reply is not absolute; rather it is a qualified right and the Rules take a restrictive view of the need for a Reply: see Rule 25.08.

25Similarly, I reject the statement in the affidavit of Goodman that she is prejudiced by the refusal of the Defendants to provide these particulars because she needs them to “preserve the recollections” of the people in her office on the day in question. The allegations in the reviews are clear; Goodman can, if she wishes, make inquiries of her staff at the relevant time to ascertain whether they have any memory of the matters described in the reviews. The Plaintiffs do not need any information from the Defendants to accomplish this.

Conclusion

26The solicitor for the Plaintiffs filed the affidavit of Cristina Garisto sworn May 9, 2016 at the hearing of the motion. This affidavit contained an email exchange between counsel in which the solicitor for the Defendants wrote:

The particulars sought by your client are not necessary for them to plead. The paragraphs in question are standard defences to defamation claims, pleaded in the alternative. It is not clear why your clients would go to (and put ours through) the trouble and expense of attempting to strike conventional defences to a defamation claim. The information sought by your clients is properly sought at discovery, not by wasting the court’s time.

27I agree with these comments. Accordingly, the motion is dismissed.

28There is a motions culture in Toronto which must change. Counsel bring far too many unnecessary, expensive motions which clog the already taxed judicial system. In this case, the motion was a waste of time and money as well as judicial time, in my opinion. Counsel ought to have moved forward to delivery of affidavits of documents and examinations for discovery, at which stage the Plaintiffs would be entitled to test the positions as set out in the pleadings and make requests for evidence such as statements, records, copies of relevant documents, etc.

29The Defendants are entitled to their costs. I have reviewed the costs outlines of both counsel, which I received at the hearing of the motion. In my view, costs fixed at $5,000.00 are fair and reasonable and I fix them in that sum, payable forthwith by the Plaintiffs to the Defendants.

D.A. Wilson J.