Court File and Parties
COURT FILE NO.: 20018/16
DATE: 20190122
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAMES WALLBRIDGE, ALMEDA WALLBRIDGE and WALLBRIDGE, WALLBRIDGE Plaintiffs / Moving Parties
– and –
FAY BRUNNING and WILLIAMS – LITIGATION LAWYERS Defendants / Responding Parties
COUNSEL:
Geoffrey D. E. Adair, Q.C., for the Plaintiffs / Moving Parties.
Sandra L. Secord, for the Defendant / Responding Party, Fay Brunning.
HEARD: January 4, 2019
BEFORE: R. D. GORDON, R. S. J.
Overview
[1] This defamation action arises out of statements made by the Defendant Fay Brunning (“Brunning”). The thrust of the statements was that the Defendants were negligent in their prosecution of IAP claims for their clients, including Claimant H, and that they entered into unlawful agreements to hide documents from the IAP and national class action litigation.
[2] The Plaintiffs bring this motion for leave to further amend their Amended Statement of Claim and to strike several paragraphs in the Amended Statement of Defence of Brunning. In the alternative they seek particulars in accordance with a demand for particulars dated July 19, 2018.
Background
[3] James and Almeda Wallbridge are partners in the law firm of Wallbridge, Wallbridge, a specialized personal injury firm founded in 1993. In the late 1990’s they began acting for a number of survivors of Indian Residential Schools including St. Anne’s Indian Residential School (“St. Anne’s”). They began in excess of 60 actions in the Ontario Superior Court of Justice involving over 150 plaintiffs (hereinafter referred to as “the Cochrane Actions”). The Defendants in the Cochrane Actions were Her Majesty the Queen in Right of Canada (“Canada”) and various Catholic Church entities.
[4] On August 1, 2003, during the course of the Cochrane Actions, Canada, with the consent of the Plaintiffs herein, obtained an Order from Trainor J. allowing the parties to the Cochrane Actions to inspect and copy documents related to the Cochrane Action Plaintiffs that had been obtained or generated by the Ontario Provincial Police during a lengthy investigation it had undertaken regarding allegations of abuse at St. Anne’s.
[5] Many of the Cochrane Actions were eventually settled by the Plaintiffs.
[6] On or about May 8, 2006, the Indian Residential Schools Settlement Agreement (“IRSSA”) was entered into. It was subsequently approved by the Superior Court of Justice in Ontario on December 15, 2006. Its import, in part, was to place the unresolved Cochrane Actions into the Independent Assessment Process (“IAP”) established by the IRSSA.
[7] For those Cochrane Actions that had not been resolved, and for other claimants coming forward thereafter, the Plaintiffs herein carried on their work through the IAP. Claimant H was one such client. His claim was heard before an adjudicator on May 30, 2013, with final submissions to be made on or about July 25, 2014. His claim was dismissed on September 2, 2014 without any award of compensation. The Plaintiffs herein applied for a review of Claimant H’s case. That review application was dismissed on April 2, 2015.
[8] Brunning began acting for a number of former St. Anne students in 2012 or 2013. She came to learn of the OPP investigation of abuse at St. Anne’s that had resulted in criminal charges, trials and subsequent convictions. She brought a Request for Directions (“RFD#1”) on behalf of approximately 60 clients for, among other things, an order requiring Canada to obtain and produce all OPP documents in its possession regarding abuse at St. Anne’s and to revise its Narratives and Persons of Interest Reports for use in the IAP. The School Narrative that had been filed by Canada in every IAP claim relating to St. Anne’s had incorrectly stated that there were no documents about sexual abuse or student abuse there. Apparently, none of the criminal proceedings or convictions, OPP investigation documents or allegations in the Cochrane Actions had been revealed in any IAP’s relating to claimants who had attended St. Anne’s. In a decision released on January 14, 2014, Brunning was granted the requested relief.
[9] In October of 2013, Brunning alerted lawyers whom she believed represented St. Anne’s IAP Claimants, including the Plaintiffs herein, of the pending RFD#1.
[10] By February of 2014, the Plaintiffs herein were aware of the decision of January 14, 2014.
[11] On or about June 30, 2014, Brunning received, in purported compliance with the January 14, 2014 order, approximately 12,300 new documents, comprising some 40,000 pages.
[12] Brunning says that the Plaintiffs herein took no steps to request or review these documents, and failed to act on them in any way in prosecuting Claimant H’s IAP claim or the requested review of it.
[13] In the course of her representation of Claimant H and other former St. Anne students, Brunning wrote letters and emails referencing this failure on the part of the Plaintiffs, and said the Plaintiffs’ participated in an agreement with Canada and the Catholic Church to withhold the documents from IAP Claimants.
[14] This defamation action arises out of those statements, the thrust of which are that:
(i) The Plaintiffs and its lawyers were negligent in failing to reveal or bring forward relevant documents in the prosecution of IAP claims for their clients, including Claimant H; and
(ii) The Plaintiffs entered into unlawful agreement(s) to hide documents gathered during their prosecution of the Cochrane Actions both from the IAP and the national class action litigation.
[15] The Plaintiffs began their action by way of Statement of Claim dated May 20, 2016.
[16] After considerable procedural wrangling, Brunning served her Statement of Defence on November 24, 2017. Brunning does not deny having made the statements attributed to her. Rather, she pleads defences of justification, absolute privilege, qualified privilege, fair comment and responsible communication as well as causation. Although she subsequently amended her Statement of Defence, the paragraphs of the Amended Statement of Defence which are challenged appeared in the original Statement of Defence served on November 24, 2017.
[17] The Plaintiffs served a demand for particulars in late July of 2018 to which they have had no reply.
The Issues
[18] The Plaintiffs seek leave to amend the Amended Statement of Claim by deleting paragraphs 1(b) and 23. The effect is to withdraw their claim for economic loss. Brunning has no objection. It is ordered accordingly.
[19] Secondly, the Plaintiffs seek to strike paragraphs 90, 91, 56, 66, 67, the first sentence of paragraph 92, the penultimate sentence of paragraph 96, 102, 103, and 105 of the Amended Statement of Defence, all for failure to plead a sufficient factual basis for the defence of justification. In the alternative, they seek particulars arising from these paragraphs.
[20] Thirdly, the Plaintiffs seek to strike paragraphs 68, the first sentence of paragraph 70, 80, 83, 87 and 88 of the Amended Statement of Defence as irrelevant.
[21] Brunning is of the view that the Amended Statement of Defence, read in its entirety, pleads justification with sufficient particularity and in any event, all particulars are within the knowledge of the Plaintiffs. She is also of the view that each of the statements in the Amended Statement of Defence has probative value and is relevant to, among other things, the defence of justification.
[22] Brunning also seeks dismissal of the motion on the basis of delay. She argues that this motion is being brought well after close of pleadings and following fresh steps taken by the Plaintiffs contrary to Rule 2.02.
Analysis
The Issue of Delay
[23] Rule 2.02 of the Rules of Civil Procedure provides as follows:
2.02 A motion to attack a proceeding or a step, document or order in a proceeding for irregularity shall not be made, except with leave of the court,
(a) after the expiry of a reasonable amount of time after the moving party knows or ought reasonably to have known of the irregularity; or
(b) if the moving party has taken any further step in the proceeding after obtaining knowledge of the irregularity.
[24] The Plaintiffs’ motion is to strike certain paragraphs of the Amended Statement of Defence for failing to plead sufficient facts and pleading irrelevant facts. It is an attack on the Amended Statement of Defence alleging irregularities. Rule 2.02 is therefore applicable.
[25] The Plaintiffs ought reasonably to have known of the alleged irregularities at the time the Statement of Defence was served on November 24, 2017. They filed no reply and consequently pleadings were deemed closed on December 4, 2017. This motion was served on July 31, 2018, almost eight months later. There has been no explanation provided for the delay in bringing this motion. It cannot be said to have been brought within a reasonable amount of time after the alleged irregularity ought reasonably to have been known.
[26] Brunning also argues that the Plaintiffs undertook fresh steps in the proceeding that should also act as a bar to this motion. Given my finding that the motion was not brought within a reasonable amount of time, it is not necessary that I address that argument.
[27] The question, then, is whether leave ought to be granted to the Plaintiffs to bring this motion. As a general proposition, leave should be granted when it is in the interests of justice to do so. It will be in the interests of justice when the motion may assist in securing a just, expeditious, and efficient determination of the action on its merits.
[28] The Plaintiffs are of the view that if the pleadings issue is not sorted out at this time, it will need to be sorted out subsequently when the extent of documentary and oral discovery is considered. They say that deciding the pleadings issue now will largely resolve the discovery issues, thereby saving the court and the litigants significant time and effort.
[29] It is to be noted that the parties have exchanged discovery plans and it is clear they differ on the required extent of disclosure. In general terms, the Plaintiffs propose restricting disclosure to non-privileged documents regarding Claimant H. Brunning proposes much broader discovery including all documents relating to all of the Cochrane Actions and all documents relating to the retainer of the Plaintiffs by former IRS students for whom they advanced an IAP claim. Indeed, the Plaintiffs, prior to bringing this motion, had served a Notice of Motion to establish the discovery plan in accordance with an endorsement arising out of a case management conference.
[30] It is important to note that the test to strike pleadings and the test for entitlement to discovery are not the same.
[31] In determining whether to strike the pleadings of the Defendant Brunning, the question is whether the pleadings are sufficiently particular to allow the Plaintiffs to know the case they must meet.
[32] In determining the extent of discovery in a defamation action in which justification is pleaded, the question is whether the pleadings are sufficiently particular to allow the discovery which is sought, bearing in mind relevance (Rules 30.02 and 31.06), the principle that discovery must be fairly and reasonably related to the particulars of justification provided (see Kent v. Kehoe, 2000 NSCA 3, [2000] N.S.J. No. 3 (N.S.C.A.), the general principle that persons should be discouraged from making defamatory statements if they do not have the facts to support them (see Kent v. Kehoe, supra, CARE Canada v. Canadian Broadcasting Corp. [1998] O.J. No. 2249, Baghai v. Bader, [2008] O.J. No. 3185), and the proportionality factors set out in Rule 29.2.03.
[33] Essentially, the Plaintiffs seek to have the discovery issues resolved based on the test for sufficiency of pleadings, and they seek to do so notwithstanding their outstanding motion to set the discovery plan. In these circumstances and particularly when there is no reasonable explanation for the delay in bringing this motion, it is not in the interests of justice that leave be granted.
The Alternate Request for Particulars
[34] As an alternative to striking portions of the Amended Statement of Defence, the Plaintiffs seek particulars pursuant to Rule 25.10 arising out of a Demand for Particulars served on July 19, 2018.
[35] On a motion for particulars for pleadings, relief is generally granted only if: (a) the requested particulars are not within the knowledge of the party requesting them; and (b) they are necessary to enable the other party to plead his or her response. [See Physicians’ Services Inc. v. Cass, 1971 CanLII 359 (ON CA), [1971] O.J. No. 1561 (Ont. C.A.)].
[36] In this case, pleadings were long closed when the Demand for Particulars was served. There has been no request to reopen pleadings and no suggestion that the Plaintiffs have been or are unable to plead their case. As this part of the test has not been met, it is not an appropriate case for relief to be granted.
Conclusion
[37] The Plaintiffs’ motion is dismissed. In the event the parties are unable to agree on costs they may make written submissions to me, not to exceed three pages plus attachments each, within 45 days.
R. D. GORDON, R. S. J.
Released: January 22, 2019
COURT FILE NO.: 20018/16
DATE: 20190122
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JAMES WALLBRIDGE, ALMEDA WALLBRIDGE and WALLBRIDGE, WALLBRIDGE
Plaintiffs / Moving Parties
– and –
FAY BRUNNING and WILLIAMS – LITIGATION LAWYERS
Defendants / Responding Parties
decision on motion
R. D. Gordon, R.S.J.
Released: January 22, 2019