COURT FILE NO.: CV-17-577128 (Toronto)
MOTION HEARD: 2019 07 23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Muthu Ponnampalam
v.
Piramenthiratheesan Thiravianathan
BEFORE: MASTER R.A. MUIR
COUNSEL: Muthu Ponnampalam, plaintiff appearing in person Saikh Faruque for the defendant
REASONS FOR DECISION
[1] This is a motion brought by the plaintiff seeking various relief. At the time the motion was argued, the plaintiff had limited the relief he was seeking to an order striking various paragraphs of the defendant’s fresh as amended statement of defence.
[2] The plaintiff’s motion is brought pursuant to Rule 25.11 of the Rules of Civil Procedure, RRO 1990, Reg. 194 (the “Rules”). The plaintiff argues that the impugned paragraphs do not comply with the rules of pleading as set out in Rule 25 and are otherwise irrelevant, repetitive and improper. The defendant opposes the relief sought by the plaintiff.
[3] This is a defamation action. The plaintiff is seeking significant damages arising from what he alleges are defamatory statements posted online by the defendant. The defendant denies the plaintiff’s allegations.
[4] As a preliminary argument, the defendant submitted that the plaintiff’s motion was res judicata. I do not agree. The version of the defendant’s pleading that was before Master Wiebe was in response to the plaintiff’s statement of claim. The pleading before me on this motion was served in response to the plaintiff’s amended statement of claim and in my view is substantially different than the version of the statement of defence before Master Wiebe.
[5] Rule 25.11 provides as follows:
The court may strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document,
(a) may prejudice or delay the fair trial of the action;
(b) is scandalous, frivolous or vexatious; or
(c) is an abuse of the process of the court.
[6] The Rules applicable to pleadings are set out in Rule 25.06. Specific rules applicable to defences are found in Rule 25.07.
[7] A general principle is found in Rule 25.06(1) which provides that every pleading shall contain a concise statement of the material facts upon which a party intends to rely in support of his claim or defence. Rule 25.06 also addresses issues such as inconsistent pleading, pleading a different version of material facts and the necessity for full particulars where a party alleges fraud, misrepresentation, breach of trust, malice or intent.
[8] Additional principles applicable to this motion can be summarized as follows:
● unnecessary paragraphs may be struck out to refine and focus a pleading;
● pleadings that do not comply with the rules of pleading may be struck out;
● pleadings of evidence may be struck out; and,
● pleadings that are irrelevant, argumentative, or inserted only for colour may be struck out as scandalous.[^1]
[9] It is important to emphasize on this motion that a pleading must be read generously and should not be subjected to a standard of perfection. See Canadian Council of the Blind v. Davis, [2007] OJ No. 4609 (SCJ – Master) at paragraph 8. A defendant must be afforded every opportunity to defend himself and a pleadings motion is not the place to determine the validity of a proposed defence. See National Energy Corp. (c.o.b. National Home Services) v. Eco Energy Home Services Inc., 2014 ONSC 3778 (Master) at paragraph 19.
[10] These are the principles I have considered and applied in determining the issues on this motion. I have reviewed each of the paragraphs to which the plaintiff objects and the fresh as amended statement of defence as a whole. I have also considered the submissions of the parties. In my view, the impugned paragraphs are proper and should not be struck from the fresh as amended statement of defence.
[11] I see nothing improper about the way the defendant has pleaded references to the amended statement of claim. The plaintiff correctly points out that there are errors in the way the defendant has referred to the statement of claim. In some places he refers to the plaintiff’s “amended statement of claim”. In other places he refers to the “statement of claim”. Despite these inconsistencies, it is obvious from the fresh as amended statement of defence as a whole that the defendant is responding to the amended statement of claim.
[12] I also reject the plaintiff’s argument that the defendant is raising new issues in reply. He is simply pleading to the amended statement of claim. This does not result in unfairness to the plaintiff as the plaintiff will be permitted to deliver a reply if he chooses.
[13] I see nothing improper with the way the defendant has pleaded inconsistent allegations. While certain inconsistent allegations are not expressed as being pleaded in the alternative, it is clear from the pleading, read as a whole, that some allegations are obviously being pleaded in the alternative.
[14] I do not agree with the submissions of the plaintiff with respect to Rule 25.02. In my view, the defendant has organized his allegations in a reasonably practical fashion. In my view, the court should only interfere with a party’s organization of its pleading in the clearest of cases where the allegations are incapable of being understood. That is not the situation with the defendant’s pleading.
[15] The defendant has properly pleaded the law he is relying on in response to the plaintiff’s allegations in the amended statement of claim. The material facts supporting his legal positions are detailed throughout the fresh as amended statement of defence. Full particulars of the defendant’s position on the law can be obtained at oral discovery.
[16] The defendant’s pleading is sufficient in terms of pleading different versions of facts. To the extent that the defendant seeks to prove a different version of the facts in relation to the allegedly defamatory statements, and those facts are not sufficiently pleaded, he will be restrained from doing so at trial. I infer from the defendant’s pleading that he does not intend to plead different versions of facts other than as set out in the fresh as amended statement of defence.
[17] The defendant has properly pleaded the defences of truth and justification along with the denial of the plaintiff’s claim for damages. The particulars in support of those allegations are more properly matters of evidence that will emerge from the discovery of both parties.
[18] I agree with the plaintiff that the defendant’s pleading is unnecessarily repetitive in relation to the allegations dealing with truth, fair comment and the translation of the allegedly defamatory statements. However, I do not view this flaw as rising to the level that would justify an order striking out the offending paragraphs. There must be some flexibility to permit a party to fully defend itself, especially when facing such a significant claim for damages.
[19] The defendant’s pleading is not perfect. It could have been better drafted. However, perfection is not the standard. The power to strike out portions of a pleading must be exercised with caution. A pleadings motion is not the place for the court to prune and limit a party’s allegations, except in the clearest of cases. The court should not engage in a paragraph by paragraph examination of a pleading or insist on precise compliance with the rules of pleading.
[20] For the reasons set out above, it is my view that the impugned portions of the defendant’s pleading generally comply with the rules of pleading. Further clarification will be provided through the discovery process.
[21] The plaintiff’s motion is therefore dismissed. The plaintiff shall have leave to deliver a reply to the fresh as amended statement of defence. If the plaintiff wishes to serve a reply, it shall be delivered by October 4, 2019.
[22] The parties shall confer and attempt to agree on the issues of the costs of this motion and a timetable for the completion of the remaining steps in this action. If the parties are unable to agree, they shall provide the court with brief submissions in writing by October 4, 2019.
Master R.A. Muir
DATE: 2019 08 26
[^1]: See Robinson v. Medtronic, Inc., 2010 ONSC 1739 at paragraph 17.