In PMC York Properties Inc. v. Siudak 2022 ONCA 635, the Court of Appeal for Ontario considered the level of particulars required in pleadings in defamation cases. Does the modern, flexible approach apply to defamation cases, or do those cases require pleadings that contain “extra particulars”?
The Court of Appeal held that the flexible and modern approach to pleadings does apply to defamation cases. Pleadings just need to contain sufficient particulars for the defendants to know the case they have to meet.
Background
This case involved a defamation claim by PMC Properties against Mr. Siudak, which was met with a defamation counterclaim by Mr. Siudak against PMC Properties.
PMC properties filed a motion to strike the counterclaim on the basis that Mr. Siudak failed to plead a “reasonable cause of action,” as the pleadings contained no material facts.
The motion judge held that the pleadings were not deficient in particulars. The motion judge recognized this was a pleadings motion brought at the very beginning of the proceedings and expected that further particulars of Mr. Siudak’s allegations could be obtained through the discovery process.
On appeal by PMC Properties, the Divisional Court took a different approach. The Divisional Court concluded that a prima facie case of defamation must be made against at least one of the defendants before the “modern, flexible approach” can be applied to the pleadings against the other defendants. This means that at least against one of the defendants, the defamation pleadings would need to include information that a) the defendant made a particular statement to another about the claimant, b) that the statement was made at a certain time and place and in certain circumstances, and c) that the statement is capable of being defamatory. As Mr. Siudak had not made such a prima facie case of defamation against any of the defendants in his pleadings, the Divisional Court set aside the motion judge’s order. It held that Mr. Siudak’s defamation counterclaim must be struck.
On appeal by Mr. Siudak to the Court of Appeal, the court held that the Divisional Court misapplied the modern, flexible approach to pleadings for defamation and failed to read Mr. Siudak’s pleadings generously. Accordingly, the Court of Appeal set aside the decision by the Divisional Court and reinstated the decision of the motion judge.
Level of particulars required in defamation pleadings
The Court of Appeal accepted that “pleadings for defamation claims attract a high degree of scrutiny for particularity, including…particulars of the alleged defamatory statements and its defamatory meaning, the time and place of publication and the recipient(s) of the statement”[1]. The rationale behind this high standard arises from the serious nature of defamation allegations.
However, this does not mean that the claimant must plead with strict precision a claim of defamation against at least one defendant before the modern, flexible approach can be applied to the pleading against other defendants, as the Divisional Court held.
Rather, the Court of Appeal held the modern, flexible approach applies to the pleadings as a whole, even in cases as serious as defamation claims.
What does this mean?
It means that a claimant must plead the constituent elements of the tort of defamation so that the defendants know the case they have to meet.
However, the modern, flexible approach does not necessarily require exact particulars of the alleged defamation – i.e., it does not necessarily require the exact words published, the exact dates and times of publication, or the exact names of the recipients of the defamatory words.
Pleading the gist of the defamatory words, specifying the timespan of publication, and identifying without naming the specific recipients of the defamatory words may be sufficient at the pleadings stage – so long as claimants proceed in good faith, plead all particulars within their knowledge and a coherent body of facts.
When is striking a pleading appropriate?
The Court of Appeal also reviewed the principles governing the correct approach for a court to take in general on a motion to strike pleadings.
Striking a pleading should not be taken lightly. The Court of Appeal emphasized that the bar for striking a pleading is very high. While pleadings are very important, “long gone are the days where proceedings could be terminated at the early pleadings stage on mere technicalities that can be cured by amendment […]”[2]. The court held:
- Pleadings should be read generously;
- The facts pleaded must be treated as true unless they are manifestly incapable of being proven;
- The court should always consider whether the deficiency can be addressed through an amendment to the pleadings; and
- Leave to amend should be denied only in the clearest of cases.
In the case of a pleaded claim, the issue when it comes to a motion to strike is whether the action has no reasonable prospect of success or whether it is plain and obvious that the action cannot succeed.
A word on concurrent tort liability
Also in issue on appeal was that Mr. Siudak had brought a civil conspiracy claim against PMC Properties. The Divisional Court dismissed the claim on the basis that it was wholly founded upon defamation. Since it struck the defamation claim, the conspiracy claim, too, must be struck. The Court of Appeal overturned this decision, finding that the Divisional Court took an overly narrow approach to Mr. Siudak’s pleading of civil conspiracy.
Importantly, the Court of Appeal held that there is no general principle that a claimant may not allege alternative causes of action so long as they are properly pleaded, even if they arise out of the same facts and give rise to the same measure of damages.
More specifically, the court held that “[…] the mere fact that a claim for civil conspiracy is pleaded with another nominate tort should not, at least at the pleadings stage, mean that it is necessarily duplicative and should be struck. […] The fact that the claims for defamation and civil conspiracy are somewhat factually intertwined is not dispositive because it is not possible at an early stage of the proceedings to foretell their outcome.”[3]
On this basis, the Court of Appeal reinstated Mr. Siudak’s civil conspiracy claim.
Takeaways
- The modern, flexible approach applies to defamation pleadings.
- A claimant must plead in good faith and with sufficient particularity the constituent elements of the tort of defamation so that the defendants know the case they have to meet.
- So long as the claimants proceed in good faith, pleading the gist of the defamatory words, specifying the timespan of publication, and identifying without naming the specific recipients of the defamatory words may be sufficient at the pleadings stage.
- There is no general principle that a claimant may not allege alternative causes of action so long as they are properly pleaded, even if they arise from the same facts and give rise to the same measure of damages.
[1] PMC York Properties Inc. v. Siudak 2022 ONCA 635, para 38
[2] PMC York Properties Inc. v. Siudak 2022 ONCA 635, para 34
[3] PMC York Properties Inc. v. Siudak 2022 ONCA 635, para 78-79
