COURT FILE NO.: 20018/16
DATE: 2020-10-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
James Wallbridge, Almeda Wallbridge and Wallbridge, Wallbridge
Plaintiffs
– and –
Fay Brunning and Williams-Litigation Lawyers
Defendants
Geoffrey D.E. Adair, Q.C., for the Plaintiffs
Sandra L. Secord, for the Defendant Fay Brunning
HEARD: October 1, 2020
DECISION ON MOTION
R.D. Gordon j.
Overview
[1] The defendant Fay Brunning (“Brunning”) seeks leave to further amend her statement of defence. She argues that the proposed amendments provide important particulars relating to her defence of justification and the plaintiffs’ claim for damages.
[2] Specifically, the proposed defence addresses concerns expressed in my decision of January 20, 2020 that her statement of defence lacked sufficient particulars to entitle her to the broad documentary discovery she had sought. The proposed amendments include, among other things, details relating to the plaintiffs’ representation and conduct with respect to claimants other than Claimant H-15019.
Factual Background
[3] The factual background is largely the same as outlined in my decisions in this matter cited as Wallbridge v. Brunning, [2019] O.J. No. 494 and Wallbridge v. Brunning, [2020] O.J. No. 197. However, the procedural history of this action is also relevant.
[4] This action was started by the plaintiffs in May of 2016. Today, almost four and a half years later, the litigation has not progressed significantly and has been beset by procedural motions of which this is the latest but almost certainly not the last.
[5] Of particular relevance to this motion are earlier motions by the plaintiffs to strike parts of the statement of defence and obtain particulars from Brunning, and to set the terms of a discovery plan particularly as pertains to documentary disclosure.
[6] The plaintiffs’ motion to strike parts of the statement of defence was brought in January of 2019, several months after the defence was filed. The motion was dismissed because the delay in bringing it had not been explained. The plaintiffs’ alternate request for particulars was also dismissed because pleadings had long been closed and there was no suggestion by the plaintiffs that they had been unable to plead their case without the requested particulars.
[7] The plaintiffs’ motion to set the terms of documentary disclosure was heard in January of 2020. At issue was Brunning’s insistence that the plaintiffs produce virtually every file and document they have ever had in their possession or control relating to their prosecution of the Cochrane actions on behalf of some 154 clients, and their prosecution of IAP claims on behalf of some 113 clients. I determined that her pleading did not provide sufficient specificity of the negligence allegations pertaining to claimants other than Claimant H such as would entitle to her to the broad disclosure request she had made. In particular, I articulated that she did not identify what claimants had made allegations against the plaintiffs, when the IAP claims of those claimants were made, whether they were subject to review and what the ultimate outcome of the claims process was for them. I determined that her pleading amounted to little more than a bald allegation of negligence.
[8] Brunning now seeks to amend her statement of defence to provide the particulars that were missing. The bulk of the proposed amendments are contained in paragraphs 88 through 215 of the proposed amended amended statement of defence and identify seven additional IAP claimants once represented by the plaintiffs along with various allegations of negligence pertaining to their representation of each of them.
[9] The plaintiffs ask the court to deny the defendant’s request for leave to amend. They argue that they have not been afforded due process on this motion, that the delay in bringing this motion has resulted in prejudice to them, that the proposed amendments are scandalous, that the proposed amendments are not sufficiently particular, that the proposed amendments amount to an improper fishing expedition, and that the proposed amendments are an abuse of process.
Applicable Law
[10] The starting point for a motion such as this is r. 26.01 which provides as follows:
On motion at any stage of an action the court shall grant leave 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.
[11] However, it is well settled that there is little point in allowing an amendment only to have it challenged subsequently under r. 25.11. Accordingly, the court must also consider whether the proposed amendments may prejudice or delay the fair trial of the action, are scandalous, frivolous or vexatious, or whether they constitute an abuse of the process of the court. [See Andersen Consulting v. Canada, 2001 CanLII 8587 (ONCA)].
[12] There should be no inordinate delay in bringing a motion to amend pleadings. While delay is not in and of itself a basis for refusing an amendment, there must come a point where the delay is so long and the justification so inadequate that some prejudice to the opposing party will be presumed absent a demonstration by the party seeking the amendment that there is in fact no prejudice despite the lengthy and unexplained delay. [See Family Delicatessen Ltd. v. London (City), 2006 CanLII 5135 (ON CA), [2006] O.J. No. 669].
[13] The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure in a way that is manifestly unfair to a party or would in some other way bring the administration of justice into disrepute. [See Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63].
[14] Within the scope of amendments which are scandalous, frivolous or vexatious are those which are irrelevant or whose relevance is so marginal that its probative value is outweighed by its prejudicial effect. However, the court should exercise this power with considerable caution as pleadings are not the appropriate stage in an action to determine the admissibility of evidence at trial. [See Quizno’s Canada Restaurant Corp. v. Kileel Developments Ltd., 2008 ONCA 644, 92 O.R. (3d) 347].
Analysis
1. Failure to afford the plaintiffs due process
[15] On August 21, 2020 the plaintiffs served, with respect to this motion and a further motion brought by them, a notice to cross-examine Carole Sturges on her Affidavit of July 13, 2020 and a notice to examine Ms. Brunning. The examinations were to take place on September 10 and 11 by Zoom.
[16] On August 27, 2020 the plaintiffs served the sworn affidavit of John Adair upon which they intended to rely at the hearing of this motion.
[17] Counsel for Brunning was not clear on what motion or motions the affidavit pertained to. Counsel for the plaintiffs clarified that it would be used both on the Brunning motion and a motion brought by the plaintiffs concerning Brunning’s schedule “A” documents. Counsel for Brunning insisted on being provided with the plaintiffs’ motion records. Counsel for the plaintiffs correctly pointed out there is no requirement to serve the motion record prior to the scheduled examinations. Nonetheless, on September 9 counsel for Brunning sent the following email to counsel for the plaintiffs: “Counsel: No examinations are proceeding this week. Please review my email to you of September 1 which is self-explanatory.”
[18] Having reviewed the various e-mail exchanges between counsel, I might observe that they are not the model of civility that are expected of counsel of this caliber. In any event, on the evidence before me there was no proper reason for the cancellation of the examinations scheduled by counsel for the plaintiffs. I note that counsel for Brunning subsequently offered dates later in September, but the dates were either not available to counsel for the plaintiffs or left him with insufficient time to incorporate the results of the examinations into his motion records and facta.
[19] Rule 35.15 provides for sanctions for failure to attend an examination which may include striking out the defence or striking out all or part of the person’s evidence including any affidavit made by the person defaulting. The sanctions are discretionary.
[20] As determined by the Divisional Court in Gomommy Software.com Inc. v. Blackmont Capital Inc. 2014 ONSC 2478, it is rare that a dismissal order results from proceedings under r. 35.15 and typically the court does not apply a zero-tolerance approach unless the party’s non-compliance is contumelious or the other party can demonstrate actual prejudice. I am not satisfied of either requisite. There is no suggestion that the non-compliance was contumelious and the plaintiffs’ willingness to proceed with the hearing of the motion without conducting the examinations speaks to the lack of prejudice. In any event, any alleged prejudice could have been addressed by an adjournment of the motion and an order as to costs.
[21] In short, although the failure of Ms. Brunning and Ms. Sturges to attend for their examination was improper and regrettable, it is not sufficient to strike the defence or to strike the affidavit of Ms. Sturges.
2. Prejudice based on delay
[22] The plaintiffs submit that the delay in bringing this motion has been inordinate and results in a presumption of prejudice that has not been rebutted. I disagree. Although a motion to amend pleadings brought some four and a half years after the issuance of the statement of claim is hardly ideal, it is not inordinate given the extensive procedural history of this matter for which all parties share responsibility.
3. The proposed amendments are irrelevant to the plea of justification and are therefore scandalous.
[23] The plaintiffs submit that justification in a defamation action must be pleaded with full particularity and that the particularity has to be relevant to the sting of the defamation, namely the allegation that the plaintiffs failed to adduce documentary evidence, whether by oversight or design.
[24] I agree that justification must be pleaded with full particularity. I also agree that the particularity provided must be relevant to the sting of the defamation. However, I am not certain the sting is as narrow as has been argued by the plaintiffs on this motion.
[25] Paragraph 17 of the amended statement of claim provides as follows:
- Brunning’s defamatory comments as set out above and other substantially similar comments in their natural and ordinary meaning were intended to and did impugn the plaintiffs’ professional conduct, competence and integrity. They state or leave the impression with the reader that the plaintiffs were negligent in representing one or more former St. Anne’s victims in the IAP process; deliberately withheld relevant documents that would have assisted their client(s) in the IAP process and did so for their own personal gain. These defamatory comments go so far as to state that the Plaintiffs entered into an unlawful agreement with the defendants in the St. Anne’s actions, to bury material evidence; agreed or conspired with abusers and authorities liable for the abusers to do so and engaged in criminal conduct to wit obstruction of justice…
[26] In my view, the sting of the statements is twofold: (1) the plaintiffs were negligent in their representation of St. Anne’s claimants for reasons which included their failure to advise their clients and make use of relevant documentary evidence; and (2) the plaintiffs were party to an agreement to conceal relevant documents from claimants, the class action litigation, and the IAP. In my view, the sting of allegations of negligence do not lie solely in the failure of the plaintiffs to advise their clients of the existence of the Cochrane documents and pursue their use in the IAP but extend well beyond that. Accordingly, the proposed amendments are clearly relevant to the sting of the alleged defamation.
4. Are the proposed pleadings sufficiently particular?
[27] The plaintiffs submit that the overriding shortcoming of the proposed amendments lies in the failure to specify the documents the plaintiffs had in their possession and which they failed to adduce in evidence in a particular claim.
[28] As pointed out by the plaintiffs, the documents referred to by Brunning number 12,300 and comprise some 40,000 pages and have been in her possession since June 30, 2014.
[29] They argue that it is incumbent upon her to plead which of those 12,300 documents she says were in the possession or knowledge of the plaintiffs and which they negligently or deliberately failed to use or require Canada to use in the IAP.
[30] It is long settled law that when a defendant in a defamation action pleads justification, sufficient particulars must be pleaded as will allow the plaintiff to go to trial knowing what it is he is alleged to have done and upon which the defendant intends to rely.
[31] The amendments proposed by Brunning meet that requirement. The allegations of negligence are clear. Although the specific evidence by which those allegations are intended to prove (i.e., the particular documents upon which Brunning intends to rely) are not specifically pleaded, in my view they need not be. They are sufficiently identified by the nature of the allegations of negligence made and the body of documents within which they are said to exist.
5. The proposed amendments amount to an improper fishing expedition.
[32] The plaintiffs submit that allowing Brunning to advance the proposed amendments would expand relevance for the purposes of production and discovery, thereby providing her with an opportunity to prove justification on the basis of the plaintiffs’ own documents or testimony, all of which the law governing defamation does not allow. In support of this position, they point to affidavits of some of the proposed claimants and paragraph 214 of the proposed pleading in which it is indicated that the Cochrane documents, the revised school narrative and POI reports are required to allow them to compare to the evidence filed at the time of the IAP hearings and assess the impact on the outcomes of their claims.
[33] In taking this position it is my view that the plaintiffs are conflating the issues of pleading and discovery. Although they are related, particularly in the context of defamation proceedings, the test for pleadings and discovery are different. As I indicated in an earlier decision, when considering the question of particulars in the context of a motion to strike pleadings, the question is whether sufficient particulars have been provided to allow the plaintiffs to know the question they must meet.
[34] 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 having regard to relevance, the principle that discovery must be fairly and reasonably related to the particulars of justification pleaded, the general principle that persons should be discouraged from making defamatory statements if they do not have the facts to support them, and the proportionality factors set out in r. 29.2.03.
[35] As indicated earlier, I am of the view that the proposed amendments provide sufficient particulars to allow the plaintiffs to know the question they must meet.
6. The proposed amendments are an abuse of process.
[36] Brunning’s original statement of defence, with the exception of allegations of negligence pertaining to Claimant H, was completely bereft of particulars pertaining to negligence of the plaintiffs in their representation of other claimants. That issue was raised by the plaintiffs in the initial motion to strike much of the statement of defence and although that motion was not adjudicated on its merits, it surely must have been apparent to Brunning that the particularity of her pleadings was an issue for the plaintiffs.
[37] When that first pleadings motion came before the court, Brunning was also aware of the pending motion by the plaintiffs to set the terms of a discovery plan and the issue of whether the statement of defence was sufficiently particular to entitle her to the disclosure she was requesting. On the evidence before me, the facts she now wishes to plead were within her knowledge when the discovery plan motion was argued. She elected to argue that discovery plan motion without first amending her defence. The clear inference is that she did so in the hope of succeeding on the motion and gaining access to all of the plaintiffs’ claimant files.
[38] The plaintiffs submit that to now allow her to plead facts which were within her knowledge when the discovery motion was argued amounts to an abuse of process.
[39] I agree. As I pointed out in my decision relating to the discovery plan, Brunning pleaded only the following basic material facts with respect to other former students of St. Anne’s represented by the plaintiffs:
- Since the retainer of Brunning by Claimant H-15019, other St. Anne’s students have made similar or additional complaints and/or allegations with respect to professional misconduct of the Wallbridge lawyers in their representation of those students, including deficient documentary disclosure made by Canada, and not rectified by Wallbridge for the IAP claims.
[40] On the basis of that pleading, she sought production of virtually every file and document the plaintiffs have ever had in their possession or control relating to their prosecution of the Cochrane actions on behalf of some 154 clients, and their prosecution of IAP claims on behalf of some 113 clients. I concluded that her pleading amounted to little more than a bald allegation of negligence and was insufficient to allow her discovery of the documents she was requesting. To be clear, the decision was not a close call.
[41] She now seeks to add particulars pertaining to a further seven claimants based on factual allegations that were known to her before the discovery motion was argued.
[42] What this tells me is that she never had particulars that would allow her access to all files and documents pertaining to all St. Anne’s students represented by the plaintiffs. Knowing she had particulars with respect to only these additional claimants, and without disclosing the limited extent of her known particulars to the court, she rolled the dice in hopes of receiving a trove of information to which she had no entitlement. To now allow the proposed amendments would: (1) Condone what was at best an questionable litigation tactic and at worst a misrepresentation to the court; and (2) Necessitate a further discovery motion resulting in added expense and delay to this increasingly stale action. In these circumstances, it is my view that allowing the amendments would bring the administration of justice into disrepute and be an abuse of process.
Conclusion
[43] The amendments requested in paragraphs 14 and 88-215 of the amended amended statement of defence contained in Brunning’s motion record will not be allowed. The remaining amendments are largely inconsequential, and leave is granted for them.
[44] If the parties are unable to agree on costs, they may make written submissions, not to exceed three pages plus attachments each, within 30 days.
The Honourable Mr. Justice Robbie D. Gordon
Released: October 23, 2020
COURT FILE NO.: 20018/16
DATE: 2020-10-23
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
James Wallbridge, Almeda Wallbridge and Wallbridge, Wallbridge
Plaintiffs
– and –
Fay Brunning and Williams-Litigation Lawyers
Defendants
DECISION ON MOTION
R.D.Gordon J.
Released: October 23, 2020