Court File and Parties

Court File No.: CV-19-612815 Date: 2020-01-21 Superior Court of Justice - Ontario

Re: JADE ELIZABETH THELWELL aka JADE NARAINE, Plaintiff And: ANDREI KOROTTCHENKO, MICHAEL ELASCHUK AND LUKE HALSTEAD, Defendants

Before: Sossin J.

Counsel: Jade Thelwell, for herself Lorne Honickman and Alex Alton, Counsel, for the Defendant Michael Elaschuk

Heard: December 16, 2019

Reasons for Judgment

Overview

[1] This case involves the question of when a claim may be struck either because it has been brought for improper motives or discloses no reasonable cause of action.

[2] The defendant, Michael Elaschuk (“Elaschuk”), brings this motion to strike out the claim by the plaintiff, Jade Thelwell (“Thelwell”), who also is sometimes referred to as Jade Naraine, as disclosing no reasonable cause of action and as an abuse of process under Rule 21.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules of Civil Procedure”).

[3] Elaschuk and Thelwell were previously in a romantic relationship. Following the end of that relationship in January 2017, acrimony ensued, particularly through social media. As a result of certain online posts, civil litigation and criminal proceedings were launched. The procedural background of the litigation is somewhat complicated, but necessary to set out in order to understand the basis for this motion.

[4] On November 17, 2017, Elaschuk filed a statement of claim against Thelwell alleging Thelwell published defamatory comments about him on a series of online platforms (the “Elaschuk action”). Thelwell defended this claim.

[5] Thelwell also was the subject of certain criminal proceedings during this time relating to the posting of material online.

[6] On March 27, 2018, Thelwell commenced an action against Andrei Korottchenko (the “Korottchenko action”), another individual with whom she had a relationship that led to acrimony.

[7] On May 23, 2018, Justice Nishikawa ordered an interlocutory injunction against Thelwell, preventing her from posting defamatory content about Elaschuk online.

[8] In October, 2018, Thelwell attempted to bring a counterclaim in the Elaschuk action. Elaschuk did not consent to Thelwell amending her defence to add the counterclaim. The dispute about a counterclaim caused discoveries to be adjourned, though Thelwell soon after abandoned the attempt to add a counterclaim.

[9] On October 24, 2018, Thelwell advised Elaschuk of her intention to add Elaschuk and another individual named Luke as defendants to the Korottchenko action.

[10] On October 31, 2018, Thelwell advised that she would seek a stay of the action brought by Elaschuk pending the outcome of the criminal proceedings.

[11] On November 16, 2018, Thelwell’s motion for leave to appeal the injunction ordered by Justice Nishikawa was denied by the Divisional Court.

[12] On November 24, 2018, Thelwell advised she was adjourning her motion to add Elaschuk to the Korottchenko action.

[13] On January 17, 2019, Thelwell and Elaschuk attended before Master McAfee, who adjourned Thelwell’s motion to add Elaschuk, as it had not been scheduled with sufficient time to hear the relevant issues. The motion was to be heard on February 1, 2019.

[14] Rather than proceed with this motion on February 1, 2019, Thelwell issued the statement of claim in the present action on January 17, 2019 against Elaschuk, Korottchenko and another individual, Luke Halstead.

[15] On February 1, 2019, Master McAfee awarded costs to Elaschuk for the abandoned motion.

[16] On March 25, 2019, Elaschuk brought a contempt motion against Thelwell. Justice Nishikawa heard this motion on March 29, 2019, and ordered oral evidence to be called.

[17] On April 2, 2019, Thelwell served an amended statement of claim in this action.

[18] Subsequently, after responding to a request for particulars from Elaschuk, on August 23, 2019, Thelwell served a fresh as amended statement of claim dated July 22, 2019 (the “fresh as amended claim”).

[19] On November 4, 2019, Elaschuk served his notice of motion to dismiss or strike the fresh as amended claim.

[20] On December 2, 2019, Thelwell’s responding motion record and materials were served on Elaschuk. Those materials included an amended fresh as amended statement of claim, attached as an exhibit to Thelwell’s affidavit, sworn November 24, 2019.

Analysis

[21] The issues to be addressed on this motion are clear.

[22] There is a preliminary issue relating to whether Thelwell’s most recent amendments to her statement of claim are proper, given that they were made after this motion to strike was filed. The first issue is: which version of the statement of claim will be the subject of this motion?

[23] The second issue is whether Thelwell’s claim should be struck or dismissed against Elaschuk for disclosing no reasonable cause of action under Rule 21.01(1)(b) or as an abuse of process under Rule 21.01(3)(d) or 25.11?

[24] I address each issue in turn.

1. Which Version of Thelwell’s Claim is the Subject of this Motion?

[25] The law is settled that after a motion to strike a pleading has been brought, no further amendment can be brought until that motion is decided.

[26] In Hillier v. Hutchens, 2012 ONSC 5988, at para. 14-15, Haines J. held that the rights of the moving party in a motion to strike a claim are determined on the date of the service of the motion, and a plaintiff therefore is not entitled to amend a claim further until that motion has been resolved; see also Riopelle v. Trucash Rewards Inc., 2014 ONSC 3414.

[27] Thewell did not provide a contrary argument to this line of case law, but emphasized she is representing herself, and if she infringed a rule by further amending her claim after Elaschuk brought this motion, this breach was inadvertent.

[28] In light of the clear rationale for ensuring that a motion to strike a pleading should be based on the version then in place, the analysis to follow will be based on the fresh as amended statement of claim dated July 22, 2019.

[29] Elaschuk also submits that Thelwell’s amended fresh as amended claim, which sought to address some of the issues with the fresh as amended claim highlighted in Elaschuk’s notice of motion, amounts to an admission by Thelwell that her pleadings were deficient. Given that Thelwell’s amended fresh as amended claim will not be the basis for the analysis on this motion, I would not give effect to this submission.

2. Should Thelwell’s Claim Against Elaschuk be Dismissed or the Pleadings Struck?

[30] In order to determine whether Thelwell’s fresh as amended claim should be dismissed or struck, it is first necessary to set out the applicable provisions under the Rules of Civil Procedure.

[31] Rules 21.01 and 25 of the Rules of Civil Procedure provide:

RULE 21 Determination of an Issue Before Trial

Where Available

To Any Party on a Question of Law

21.01 (1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly. R.R.O. 1990, Reg. 194, r. 21.01 (1).

(2) No evidence is admissible on a motion,

(a) under clause (1) (a), except with leave of a judge or on consent of the parties;

(b) under clause (1) (b). R.R.O. 1990, Reg. 194, r. 21.01 (2).

To Defendant

(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,

Jurisdiction

(a) the court has no jurisdiction over the subject matter of the action;

Capacity

(b) the plaintiff is without legal capacity to commence or continue the action or the defendant does not have the legal capacity to be sued;

Another Proceeding Pending

(c) another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter; or

Action Frivolous, Vexatious or Abuse of Process

(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,

and the judge may make an order or grant judgment accordingly. R.R.O. 1990, Reg. 194, r. 21.01 (3).

Rule 25.11 of the Rules of Civil Procedure provides,

25.11 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. R.R.O. 1990, Reg. 194, r. 25.11.

[32] The test on a motion to dismiss an action under Rule 21 or strike pleadings under Rule 25 is straightforward. It must be plain and obvious that the pleading or claim cannot succeed, or that it is plain and obvious that it constitutes an abuse of process; R. v. Imperial Tobacco, 2011 SCC 42, at para. 17.

[33] Below, I examine whether that standard is met in this case. First, I consider the question of whether the action as a whole or some or all of the pleadings constitute an abuse of process. Second, I address the question of whether the claim as a whole should be dismissed as scandalous, vexatious and frivolous. Third, I consider whether the action as whole or some or all of the pleadings should be dismissed or struck as giving rise to no reasonable cause of action.

1) Should Thelwell’s Claim be Dismissed as an Abuse of Process?

[34] In this case, Elaschuk argues that his inclusion in Thelwell’s action was for improper and ulterior motives.

[35] Elaschuk submits that the only reason for including Elaschuk in this action against the other male defendants was to circumvent the difficulties in the Elaschuk action and to gain certain evidentiary advantages in her criminal proceedings and in other, related civil proceedings.

[36] In Toronto (City) v. CUPE, Local 79, 2003 SCC 63 (“CUPE, Local 79”) at para. 79, the Supreme Court set out that “[i]n all of its applications, the primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of the courts.”

[37] CUPE, Local 79 concerned the issue of relitigation and the relationship between res judicata and abuse of process.

[38] In Maynes v. Allen-Vanguard Technologies Inc. (Med-Eng Systems Inc.), 2011 ONCA 125 (“Maynes”), Weiler J.A. applied CUPE, Local 79 and the abuse of process doctrine in the context of a case involving several concurrent and related claims. She held:

[36] The doctrine of abuse of process seeks to promote judicial economy and to prevent a multiplicity of proceedings: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 37. The motions judge correctly identified Claims One to Five against the Original Defendants in the New Action as being an abuse of process because they were virtually identical to the claims asserted against them in the Ongoing Actions. If Claims One to Five in the New Action were allowed to proceed, it would amount to a relitigation of the same issues as between the same parties. The rationale against this approach is found in para. 51 of Toronto (City) v. C.U.P.E., Local 79:

First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is difficult from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

[38] In addition to avoiding a multiplicity of actions, the doctrine of abuse of process seeks to uphold the integrity of the administration of justice: see Toronto (City) v. C.U.P.E. at paras. 35-37. In the present case, the plaintiffs’ assertions in Claim Six are intricately linked to Claims One through Five, which are already being pursued in the Ongoing Actions. The plaintiffs should have sought leave of the court to name the Added Defendants in the Ongoing Actions and to amend their pleadings to plead any relief they had not already claimed, either pursuant to rule 26.02(c) or rule 26.01. As mentioned, rule 26.01 obliges the court 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.”

[39] Instead, the plaintiffs commenced the New Action for the purpose of naming the Added Defendants as parties to the related litigation and sought declaratory relief against them in Claim Six. By doing so, the plaintiffs effectively circumvented the express procedural requirement in rule 26.02(c) that leave of the court be obtained to add a non-consenting party to the proceeding after pleadings have closed. This was an abuse of process. By starting the New Action instead of moving to amend their pleadings in their existing actions to claim “enhanced relief” against the Added Defendants, the plaintiffs circumvented the court’s jurisdiction to: (1) assess whether the defendants would be prejudiced by an amendment and to determine whether that prejudice can be compensated for by costs; (2) to impose costs in favour of the defendants for granting the amendment; and (3) to impose other terms that are just.

[40] The filing of the statement of claim in the New Action also placed an inappropriate burden on the defendants who had to bring a motion to strike the New Action, when the onus should have properly been on the plaintiffs to convince the court that leave should be granted to amend their pleadings in the Ongoing Actions. (Emphasis added.)

[39] Like Maynes, this case involved a plaintiff commencing a new action after initially attempting to add a defendant who was not consenting, and in so doing, avoided the procedural hurdles of Rule 26 relating to leave of the Court to add a non-consenting party to the litigation after the close of pleadings.

[40] Unlike Maynes, however, Elaschuk is not subject to duplicate litigation as a result of this action. Elaschuk was not added to the Korottchenko action, nor did Thelwell bring a counterclaim to the Elaschuk action. Therefore, this action represents the only current claim made by Thelwell against Elaschuk.

[41] Elaschuk argues that Thelwell has had ample opportunity to litigate the issues in this action numerous times and has failed to do so:

In issuing a separate action regarding the same dispute, [Thelwell] is circumventing procedural requirements and undermining the jurisdiction of the Court. As was the case in Maynes, rather than bearing the onus of continuing to seek leave to add non-consenting parties, [Thelwell] through this action has shifted the onus to Mr. Elaschuk to bring a motion to strike the proceeding.” (Elaschuk factum, at para. 78)

[42] In Foy v. Foy (No. 2) (1979), 26 O.R. (2d) 220, [1979] O.J. No. 4386 (C.A.), at p. 237 O.R., Blair J.A., in dissent, discussed the aspect of the doctrine of abuse of process relating to the purposes for proceedings:

The concept of abuse of process protects the public interest in the integrity and fairness of the judicial system. It does so by preventing the employment of judicial proceedings for purposes which the law regards as improper. These improper purposes include harassment and oppression of other parties by multifarious proceedings which are brought for purposes other than the assertion or defence of a litigant's legitimate rights. Such abuse of process interferes with the business of the Courts and tarnishes their image in the administration of justice.

[43] It is thus important to address whether Thelwell’s proceedings and attempted proceedings were motivated by improper purposes.

[44] In a motion seeking to strike a claim based on abuse of process, it is appropriate to consider evidence; Baradaran v. Alexanian, 2016 ONCA 533.

[45] In this case, Thelwell’s allegedly abusive conduct consists of the following: first, she stated her intent to bring a counterclaim against Elaschuk, then abandoned this route; and second, Thelwell sought to add Elaschuk as a defendant to the Korottchenko action, then abandoned this route as well, and instead launched this action in January 2019.

[46] Elaschuk argues that Thelwell’s conduct in this litigation was for improper purposes relating to gaining advantages in other criminal and civil proceedings to which she was subject during this same period of time.

[47] Specifically, Elaschuk alleges that Thelwell filed the within action on January 17, 2019 instead of pursuing adding Elaschuk to the Korotthcenko action in order to use it as a form of discovery for her criminal trial.

[48] Elaschuk alleges that earlier, in October, 2018, Thelwell postponed discoveries in the Elaschuk action in order to avoid giving up information in advance of her criminal trial.

[49] Elaschuk submits that Thelwell also used this litigation to gain an advantage in other civil proceedings. Specifically, Elaschuk alleges that Thelwell raised the potential counterclaim in order to put her allegations against Elaschuk on the record before the hearing of the contempt motion against her.

[50] Thelwell argues in her factum (at para. 30) that she took the steps she did in this litigation for no improper purpose, and that she has brought this action for a good reasons, including financial relief, the removal of all of the defamatory content, the cessation of harm against her by the defendants, and vindication of her reputation which could restore her credibility in the country music industry.

[51] The record of correspondence between the parties reveals both that Thelwell was taking certain steps to gain advantages in other proceedings, and also that she was determined to hold Elaschuk accountable for what she believed to be his wrongdoing. For example, in her email of January 17, 2019 explaining her decision to launch the fresh action, she wrote:

There are many reasons, I needed this claim filed sooner. Not only for the criminal cases, but also for other issues.

It is not an abuse of process.

After speaking to counsel, they stated that if one side is giving a difficult time to make an amendment, that one can discontinue their claim, and the defendant will not be able to use the fact that the claim was discontinued as a defence, if the plaintiff plays [sic] for the claim they are discontinuing. I am prepared to pay Andrei’s costs, in order to launch a proper claim against all the parties involved, where I will eventually get all of that money back after my trial… (Emphasis added.)

[52] It is relevant, in my view, that Thelwell is representing herself in these proceedings, though she indicates at various stages that she has discussed this litigation with counsel representing her in other proceedings. In her submissions, Thelwell stated that to the extent she breached the Rules of Civil Procedure, this was the product of misunderstanding.

[53] Lauwers J.A., in Abarca v. Vargas, 2015 ONCA 4, at paras. 29-30, emphasized that even where an abuse of process is established, a motions judge must also consider whether the remedy of dismissal is proportionate and necessary given the seriousness of the abuse of process, or whether other remedies such as cost consequences may address the conduct or pleadings in question.

[54] The threshold to deprive a plaintiff of the opportunity to litigate a claim at all is higher than settings where the issue before the Court is the relitigation or concurrent litigation of a claim; Taylor Made Advertising Ltd. v. Atlific Inc., 2012 ONCA 459, at paras. 35-36.

[55] The record indicates that Thelwell took steps in this litigation both for inappropriate purposes relating to the criminal proceedings in which she is involved, and based on legitimate considerations flowing from her genuine belief that she has been harmed by Elaschuk’s conduct, in concert with the other defendants.

[56] In these circumstances of mixed motivations, and where this action represents the only claim by Thelwell against Elaschuk and so permitting this action would not constitute a duplication or multiplicity of litigation, I find Elaschuk has not established that permitting this action to go forward would constitute an abuse of process sufficient to dismiss the claim.

[57] In these circumstances, while Elaschuk’s frustration is not unfounded, I would not be prepared to preclude the action against Elaschuk altogether on abuse of process grounds under Rules 21.01(3)(d) or 25.11.

2) Should Thelwell’s Claim be Dismissed as Scandalous, Frivolous or Vexatious?

[58] I also find that Thelwell’s claim is not prevented under Rules 21.01(3)(d) or 25.11 on grounds that it is scandalous, frivolous or vexatious.

[59] Elaschuk argues that Thelwell’s pleadings are a series of “bald accusations” without supporting material facts and that she is “using the judicial system to continue to disparage and defame Mr. Elaschuk under the guise of legal proceedings.” (Elaschuk factum, at para. 86.)

[60] A helpful summary of the “scandalous, frivolous or vexatious” standard is set out in Bobel v. Humelka and Patten, 2019 ONSC 1876, at para. 18:

[18] The courts have tackled the definition of “scandalous”, “vexatious”, “frivolous” and what constitutes an “abuse of process” on many occasions. The principles can be summarized as follows:

• A fact that is relevant to a cause of action pleaded can be neither scandalous, frivolous nor vexatious: Brodie v. Thomson Kernaghan & Co. (2002), 27 B.L.R. (3d) 246 (S.C.), at para. 28.

• If a fact has no effect on the outcome of the proceedings, whether true or not, and is inserted solely for atmosphere, it is scandalous, frivolous and vexatious: Taylor v. Canada Cartage Systems Diversified GP Inc., 2018 ONSC 617, at paras. 26, 28, citing Canadian National Railway v. Brant (2009), 69 O.R. (3d) 734 (S.C.), at para. 28; and Brodie, at para. 26.

• If historical facts are pleaded and they have no relevance to the proceedings, they will be struck: Canadian National Railway, at para. 28.

• A scandalous pleading is one that is irrelevant, argumentative and inserted for colour; it is a pleading that contains bare allegations with no facts to support them or contains unfounded and inflammatory attacks on the integrity of a party: George v Harris, 2000 CarswellOnt 1714 (S.C.), at para. 20.

• A frivolous pleading is one that lacks a legal basis or legal merit, which is not serious and not reasonably purposeful: John v. Samuel, 2018 ONSC 5651, at para. 24. It includes an action that is so clearly and palpably bad as to require no argument to convince the courts and would be pronounced as an indication of bad faith on the basis of mere inspection: Eastside Apartments Limited v. Aird Berlis, 2015 ONSC 1379, at para. 44, citing 876502 Ontario Inc. v. I.F. Propco Holdings (Ontario) 10 Ltd. (1997), 37 O.R. (3d) 70 (C.J. (Gen. Div.)), at para. 18; and Vatamanu v. Baird, 2009 CarswellOnt 8045 (S.C.), at para. 36, citing Elguindy v. Koren, 2008 CarswellOnt 1081 (S.C.), at paras. 45-48.

• A vexatious pleading is one that is instituted without reasonable grounds: Vatamanu, at para. 36, citing Elguindy, at para. 46. A vexatious suit has been further defined as one instituted maliciously and without good cause: Samuel, at para. 24.

[61] For the reasons stated above, I have found that Thelwell has brought this action for a mix of motivations. This is not a case where it has been demonstrated that a plaintiff has launched litigation in bad faith.

[62] Additionally, while the fresh as amended claim includes bald allegations, as discussed below, it also includes the pleading of material facts about the conduct of Elaschuk which Thelwell alleges resulted in specific harm. For example, at paragraph 16, Thelwell alleges Elaschuk set up an account on a website under another name for purposes of damaging Thelwell’s reputation.

[63] Therefore, I do not find the claim as a whole to meet the standard of being scandalous, frivolous or vexatious within the meaning of Rules 21.01(3)(d) or 25.11.

[64] While I find Thelwell’s claim is not precluded under Rules 21 or 25, the allegations still must be properly pleaded and disclose reasonable causes of action. It is to these questions I now turn.

3) Should Thelwell’s Pleadings Be Struck Or Her Claim Dismissed As Disclosing No Reasonable Cause Of Action?

[65] Elaschuk argues that there is no foundation in the pleadings for the liability alleged against him. Below, I consider this argument in the context of the grounds for liability in Thelwell’s fresh as amended claim.

Intentional Infliction of Emotional Distress

[66] First, with respect to the allegation of intentional infliction of emotional distress, a plaintiff must establish that there was (1) flagrant or outrageous conduct; (2) that the conduct was calculated to produce harm; and (3) that harm in the form of a visible or provable illness ensued; Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (“Boucher”) at para. 41.

[67] Elaschuk argues that the pleadings include no particulars alleging Elaschuk intended to harm Thelwell by his conduct, which is a necessary part of the test to establish this tort.

[68] Elaschuk relies on Boucher, at para. 44, where Laskin J.A. stated:

The plaintiff cannot establish intentional infliction of mental suffering by showing only that the defendant ought to have known that harm would occur. The defendant must have intended to produce the kind of harm that occurred or have known that it was almost certain to occur.

[69] The pleadings directed at Elashuck’s conduct allege that he made an account on a website with a deliberate intent to stalk Jade and “harm her life” by “spreading false rumours” and disclosing that she uses this website (fresh as amended claim, at para. 16). Thelwell also alleges that, along with the other defendants, Elaschuk left “harassing cyber-bullying messages online” directed at Thelwell. (fresh as amended claim, at para. 17)

[70] While Elaschuk is mentioned in these and several other paragraphs alleging harassing conduct, the link in the pleadings to Elaschuk’s intent to cause harm is too vague to support a claim for intentional infliction of mental distress.

[71] Thelwell argues simply that her emotional and psychological injuries were directly foreseeable as a consequence of Elaschuk’s intentional acts. This link between the alleged conduct and intent to harm is not sufficient to meet the threshold for intentional infliction of emotional distress.

[72] Therefore, I find the fresh as amended claim does not include sufficiently specific allegations of an intent to cause specific harm, which then ensued, to meet the threshold for liability based on intentional infliction of mental distress, and consequently, it is plain and obvious that this aspect of the claim cannot succeed.

Unlawful Act Conspiracy

[73] Second, with respect to Thelwell’s allegations of conspiracy, Elaschuk again argues that the pleadings lack the necessary foundation to sustain this aspect of the claim.

[74] Goudge J.A. set out the test for unlawful act conspiracy in Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460, at paras. 24-26:

[24] The seminal case in Canada on the tort of civil conspiracy is Canada Cement Lafarge Ltd. v. British Columbia Lightweight Aggregate Ltd., 1983 SCC 23, [1983] 1 S.C.R. 452, [1983] S.C.J. No. 33. Speaking for the court, Estey J. described, at pp. 471-72 S.C.R., two categories of conspiracy recognized by Canadian law:

Although the law concerning the scope of the tort of conspiracy is far from clear, I am of the opinion that whereas the law of tort does not permit an action against an individual defendant who has caused injury to the plaintiff, the law of torts does recognize a claim against them in combination as the tort of conspiracy if: (1) whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants' conduct is to cause injury to the plaintiff; or, (2) where the conduct of the defendants is unlawful, the conduct is directed towards the plaintiff (alone or together with others), and the defendants should know in the circumstances that injury to the plaintiff is likely to and does result.

In situation (2) it is not necessary that the predominant purpose of the defendants' conduct be to cause injury to the plaintiff but, in the prevailing circumstances, it must be a constructive intent derived from the fact that the defendants should have known that injury to the plaintiff would ensue. In both situations, however, there must be actual damage suffered by the plaintiff.

[25] This case deals with the second category, namely, unlawful conduct conspiracy. The first does not apply because there was no finding that the predominant purpose of the appellants' conduct was to cause injury to the respondents. The respondents did not advance that proposition at trial.

[26] For the appellants to be liable for the tort of unlawful conduct conspiracy, the following elements must therefore be present: (a) they act in combination, that is, in concert, by agreement or with a common design; (b) their conduct is unlawful; (c) their conduct is directed towards the respondents; (d) the appellants should know that, in the circumstances, injury to the respondents is likely to result; and (e) their conduct causes injury to the respondents.

[75] Elaschuk argues that Thelwell’s fresh as amended claim does not allege what agreement was made between the defendants, does not set out the purpose of the alleged conspiracy or Elaschuk’s role in the alleged scheme.

[76] Finally, Elaschuk submits that the claim does not link the alleged conspiracy to any specific damage.

[77] Thelwell appears to concede that her pleadings do not meet the threshold for conspiracy. She states (at para. 44 of her factum), “In this case, the defendants were successful in executing their malicious prosecution, intentional infliction of emotional distress and defamation and thus, Jade agrees that the tort for conspiracy as a stand-alone claim could be struck; however, not all of the unlawful acts conspired, led to a tortious conduct.”

[78] While the meaning of this passage is not entirely clear, I take it to allege that the defendants actually carried out the acts that they conspired to carry out, and therefore the doctrine of merger applies so that conspiracy is merged with the tort that is committed; Wolf v. Attorney General (Ontario), 2012 ONSC 72.

[79] I find that the claim for unlawful act conspiracy in the fresh as amended claim, to the extent it constitutes a stand-alone ground of alleged liability, does not meet the threshold for specificity as to Elaschuk’s role in forming or acting on the conspiracy. Therefore, it is plain and obvious that this aspect of the fresh as amended claim cannot succeed.

Defamation

[80] Third, with respect to Thelwell’s allegations of defamation, Elaschuk argues that the pleadings lack sufficient particulars to enable Elaschuk to respond to the allegations; Lysko v. Braley, (2006) 79 OR (3d) 721 (C.A.) at para. 91.

[81] As Justice Pitt set out in Swan v. Craig, [2000] O.J.No.1377 (Ont. S.C.J.), at para. 11, a plaintiff’s pleadings in defamation must set out the relevant particulars:

Pleadings in a defamation action are more important than in any other form of action. The defendant is entitled to particulars of where and when the slander was alleged to have been uttered. The defendants are further entitled to know who allegedly uttered the slander, what was said and to whom. Furthermore, the court will not allow the plaintiff to proceed to use discovery as a fishing expedition to seek out a cause of action. Therefore, it is inappropriate for a plaintiff, rather than provide the requisite particulars in his pleading, to plead that the particulars are within the defendants’ knowledge.

[82] According to Elaschuk, Thelwell alleges only that a set of disparaging comments were posted. She does not link those posts specifically to Elaschuk, nor set out the specific date and platform on which the posts were allegedly made.

[83] Thelwell submits that it is not obvious that the conduct as outlined in the claim cannot succeed. She argues that the defamatory posts were written by the defendants, including Elaschuck.

[84] The fresh as amended claim includes a long list of what are alleged to be “false defamatory remarks” in paragraph 19. There is no specific allegation, however, indicating Elaschuk posted or published any specific statement. Rather, she alleges (at paragraph 21) that “Andrei, with the help of Luke and Michael have caused hundreds of statements that are false and defamatory of Jade, to be published on various websites. Other similar references allege that the three defendants continue to post on an ongoing basis both separately and together at different times.

[85] I find that the fresh as amended claim does not meet the required degree of specificity linking Elaschuk to particular posts or publications which led to specific harm. For this reason, it is plain and obvious that this aspect of the fresh as amended claim cannot succeed.

Conclusion on Rule 21 and 25 Motions

[86] For the reasons above, I find that the pleadings against Elaschuk for intentional infliction of mental distress, conspiracy and defamation, should all be struck.

[87] I do not see a basis, however, to do so without leave to amend. The Ontario Court of Appeal has reiterated that, absent exceptional circumstances, leave to amend pleadings should generally be granted: Asghar v. Toronto Police Services Board, 2019 ONCA 479 at para. 9.

Conclusion

[88] For the reasons set out above, Elaschuk’s motion to strike the portions of Thelwell’s fresh as amended claim which relate to his potential liability for intentional infliction of mental distress, conspiracy and defamation will be struck.

[89] Therefore, the following paragraphs are struck pursuant to Rule 21.01(1)(b), to the extent of any reference to Elaschuk: 8, 15, 16, 17, 19, 20, 21, 25, 26, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 54, 55, 56, 57, 60, 61, 62, 68 and 79.

[90] Where these paragraphs refer to the conduct of the other defendants, the reference to Elaschuk will be struck, but the paragraphs otherwise are not struck.

[91] Elaschuk is also entitled to the costs of this motion. Thelwell shall pay costs to Elaschuk in the amount of $12,500.00, all inclusive, within 30 days of this judgment.

Sossin J. Released: January 21, 2020