Court File and Parties
COURT FILE NO.: CV-23-0692403-0000 DATE: 20240702 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: 1516089 ONTARIO INC. O/A YEUNG & ASSOCIATES LAW PROFESSIONAL CORPORATION, Plaintiff AND: XIAO YAO ZI and JOHN DOE, Defendants
BEFORE: Akazaki J.
COUNSEL: Niklas Holmberg and Melanie Zetusian, for the Plaintiff Gil Zvulony, for the Defendant Xiao Yao Zi
HEARD: June 21, 2024
Endorsement
[1] Xiao Yao Zi moves to strike the statement of claim pursuant to rule 21, stating it fails to disclose a cause of action in libel. The article, written in Chinese characters, described how the Law Society of Ontario had revoked a law firm’s authorization to practice. The parties agreed this content was defamatory. Zi’s main point is that, in the certified translation to English, it did not identify Yeung & Associates but another law firm called Cheng Legal Service Centre. Neither side knew whether such other law firm exists.
[2] Zi also objected to pleadings describing conspiracy, even though the plaintiff amended the statement of claim no longer to claim a conspiracy. The plaintiff argued that despite the withdrawal of the conspiracy claim, it needed to make these allegations to support the pleading of malice. I agree with Zi that the plaintiff cannot color the pleadings with conspiracy allegations and should be ordered to recast the allegations as malice, as understood in defamation law. I need not deal with this objection until the end.
[3] The identity question leverages the formal translation requirement for foreign-language texts in pleadings. The ‘literal’ meaning translates to a name other than the plaintiff’s. It is not a wholly artificial objection, because the trial court will need to hear expert evidence whether the characters referred to Yeung & Associates. Zi can deny identification in his statement of defence. However, this objection does not belong in a rule 21 motion.
[4] I will dismiss the motion to strike out the libel claim because it is not plain and obvious that the publication as alleged in the statement of claim did not refer to the plaintiff. In doing so, I will state the test on a rule 21 motion and rule on the identification issue.
RULE 21
[5] When asked to strike a pleading under Ontario rule 21, the court must determine whether it is “plain and obvious” that the claim or defence cannot succeed: Hunt v. Carey Canada Inc., [1990] 2 SCR 959, at 980. Countless court decisions have applied this standard. It sets a very low bar, and the moving party essentially needs to show the pleading has no chance of success.
IDENTIFICATION ARGUMENT
[6] The short answer to the motion is that the court lacks the ability to determine whether the defamatory article failed to identify the plaintiff. The moving party argues the literal translation, even as pleaded by the plaintiff, fails to identify the plaintiff. However, this argument does not really address the identification question. The facts of the case exist in Chinese characters, not in an English translation.
[7] The plaintiff is a professional corporation of a law firm operating as “Yeung & Associates Law Professional Corporation.” The article authored by Zi reported that a law firm serving the Chinese Canadian community lost its Law Society licence to practice. The particulars and the reasons for the loss of licence did not make much sense. The Law Society licences lawyers and provides authorizations to lawyers practising as professional corporations. An especially informed reader could disbelieve the article and turn the page. However, there was no dispute that the content of the publication was defamatory as would be understood as such by the average person. The critical pleading appeared at paragraph 12 of the statement of claim, which quoted the translation of the article:
The Cheng Legal Service Centre ([Chinese characters]) was ordered by the Lawyer's Union [Law Society] in Toronto, Canada, to have its license stripped.
[8] The following footnote qualified the above pleading: “Translator's Note: ‘This is a literal translation. The translator was advised that the company operate (sic) business as ‘Yeung & Associates.’”
[9] Paragraphs 13 and 14 then stated:
The Defamatory Words are defamatory, libellous and/or slanderous of Yeung & Associates by: (a) falsely claiming that the LSO has revoked its license; (b) harming its reputation, occupation and/or business, and in particular in the Chinese community; (c) alleging that Yeung & Associates encouraged and continues to encourage extortion; and (d) interfering with Yeung & Associates' business relationships, including with clients and potential clients.
The Defamatory Words are, on their face, about Yeung & Associates. The Article also contains (i) two photos of the building from where Yeung & Associates operates, obtained from Google Maps, (ii) a screenshot of Yeung & Associates' website, and (iii) multiple screenshots of WeChat (social media) posts of an employee of Yeung & Associates.
[10] The premise of the motion is akin to a straw man argument in which the proponent holds up an ambiguity, chooses a meaning other than the one used by the opponent, and argues the flaw in the opponent’s position. In fairness to the moving party, the flaw in the translation is not of his making. Perhaps it is not even a flaw. Polysemy, the coexistence of several possible meanings for a word or phrase, confounds many but is a source of linguistic richness. The fact that one reading of the characters used in the article does not refer to “Yeung & Associates” does not mean it cannot bear another reading that does. I question why the plaintiff would sue, if the article referred to some other firm. However, my question need not be answered today.
[11] Section 125 of the Courts of Justice Act, R.S.O. 1990, c. C.43, requires a certified English translation, verified by affidavit, of any document not written in one of Ontario's official languages. The plaintiff’s lawyer obtained such a translation and used it to draw the pleadings in the statement of claim. The translator interpreted the Chinese characters referring to the disgraced law firm as “Cheng Legal Service Centre” and not as “Yeung & Associates.” The moving party argues that if, on the face of the pleading, the article did not identify the plaintiff as having been sanctioned by the Law Society, it has failed to plead a case in libel.
[12] Section 125 is a provision of general application to all court documents. Ontario has two official languages, but the default is English. This provision merely regularizes the form of documents used in the courts. It has nothing to do with the question of whether the article defamed the plaintiff by referring to the plaintiff in Chinese characters as a law practice corporation that has lost its licence or authorization to offer legal services to the public. The law of libel requires the court to inquire objectively into the connection between the defamatory publication and the plaintiff, whether by words or pictures, or a combination thereof. There is no requirement that the plaintiff even be named – if the reasonable person would likely identify the plaintiff as the subject of the libel: S.G. v. J.C., at paras. 19-30.
[13] The case is not about whether a translation of the defamatory article, literal or otherwise, would have referred to the plaintiff. The defendant wrote it in Chinese characters, and the readership would have read it in that form. It will be a question of fact for the trial whether the characters referred to the plaintiff. The article also contained a photograph of the plaintiff's premises and social media content by lawyers practising at the plaintiff's firm. Even though English is the default official language of the courts of Ontario, a party can be defamed in one of the many languages used in the province.
Conclusion
[14] I therefore dismiss the motion to strike the libel claim. The conspiracy allegations should, however, be removed from the statement of claim to make it clear that the plaintiff is alleging malice as part of the libel claim and not asserting a separate cause of action in the tort of conspiracy. The plaintiff should also take the opportunity to amend the statement of claim to explain how the Chinese publication identified the plaintiff even though the ‘literal’ translation did not do so.
[15] The parties have each spent about $30,000 on the motion. The plaintiff is the successful party, but the motion demonstrated that the statement of claim has sowed some of the confusion in the case. I will therefore allow the plaintiff costs on a partial indemnity scale in the total amount of $10,000, inclusive of disbursements and HST.
[16] Accordingly, the order will issue as follows:
- The motion to strike the statement of claim is dismissed.
- The plaintiff shall amend the statement of claim to change all conspiracy allegations to pleadings of malice in the libel claim.
- The defendant Xiao Yao Zi shall pay the plaintiff its costs of the motion, fixed in the amount of $10,000, inclusive of disbursements and HST.
Akazaki J. Date: July 2, 2024