To successfully make a claim against another party for defamation, a plaintiff must prove certain elements. The alleged defaming communication must have been made verbally or in writing to at least one-third party, the communication must be in reference to the plaintiff, and the content of the communication must be something that would be considered defamatory by an ordinary, reasonable person.
Ontario courts now take what has been referred to as a “modern and flexible” approach to defamation pleadings, so as not to place an undue burden on a plaintiff who may not have access to every single detail at the time of the pleading.
The Ontario Court of Appeal recently heard a case where a defendant to a defamation proceeding filed a counterclaim for defamation against the plaintiffs. In his pleadings, the defendant could not produce specifics regarding the alleged communications and the plaintiffs brought a motion to dismiss his counterclaim. The Court of Appeal ultimately confirmed that the modern and flexible approach does not require particulars, so long as the case is brought in good faith and is more than a simple “fishing expedition”.
Condominium Owner and Board Member Circulates Newsletter Alleging Financial Mismanagement
In the case of PMC York Properties Inc. v. Siudak, the plaintiff is a property management company with two principal directors, a married couple, PC and MC (collectively referred to hereinafter as “PMC”). PMC is the property management company of a condominium called Bentley Place, otherwise known as Wentworth Condominium Corporation No. 171 (referred to hereinafter as “Wentworth”). In 2018, the defendant, Mr. Siudak purchased a condominium at Wentworth and quickly became dissatisfied with Wentworth’s management, specifically because he felt PMC exerted undue influence over Wentworth’s decision-making and financial practices. He ran for a position on Wentworth’s Board of Directors and won. However, he refused to sign the director’s oath, an optional document which imposes confidentiality obligations on each Board member, as he felt it would inhibit transparency of the Board’s operations for residents and owners of the condominium.
Soon after he was appointed to the Board in May 2019, Mr. Siudak began composing a newsletter with the intent to disclose information about Wentworth’s various financial decisions, which he believed amounted to financial mismanagement and Wentworth’s relationship with PMC. The following month, Mr. Siudak received a letter from counsel for the Board of Directors stating that he had acted contrary to his duties to the Condominium by disclosing confidential information.
Defendant Files Counterclaim Without the Particulars of the Alleged Defamation
In July 2019, PC stated that he would resign as a property manager if Mr. Siudak was not removed from the Board. Another Board member presented a letter requesting a special meeting to remove the defendant from the board, citing loss of confidence and breach of confidentiality. The requisite number of owners signed the letter, and the meeting was held in August. Mr. Siudak was removed from the Board, moved out of the building and sold his condominium.
The plaintiffs commenced an action against Mr. Siudak, alleging defamation through the newsletter he had circulated to other owners while he was on the Board. Mr. Siudak counterclaimed for defamation and conspiracy, claiming that the plaintiffs, various condominium owners and Board members had conspired to have him removed by making defamatory statements about him to other condominium owners in advance of the special meeting.
The Modern and Flexible Approach to Defamation Pleadings in Ontario
Plaintiffs in a defamation proceeding must be able to provide particulars in support of their claims, such as dates and forms of the alleged communication, the audience of the communication, and details contained within the communication. Ontario courts have opted to take a “modern and flexible approach” to defamation pleadings. This approach allows a plaintiff to proceed with a claim even if they are unable to produce the exact content of the allegedly defamatory statement(s) at the time the pleadings are drafted.
In the 2017 decision of The Catalyst Capital Group v. Veritas Investment Research Corporation, the Ontario Court of Appeal confirmed the elements needed to establish a valid defamation pleading under this more flexible approach, as originally set out in a 1995 decision called Magnotta Winery Ltd. v. Ziraldo. The plaintiff must be able to demonstrate that:
- They have pleaded “all of the particulars available to [them] with the exercise of reasonable diligence”;
- They are proceeding in “good faith and not on a ‘fishing expedition’”, which is often accomplished by including “a coherent body of fact” with respect to the alleged defamation such as “time, place, speaker, and audience”;
- The “coherent body of fact” shows that the defendant not only communicated information, but that the communication contained defamatory information “of a defined character” about or concerning the plaintiff; and
- The exact wording will be obtainable through the defendant’s discovery, or by the production of a document or other defined means.
Plaintiffs Successfully Petition Divisional Court to Strike Counterclaim for Lack of Particulars
The plaintiffs brought a motion to dismiss Mr. Siudak’s counterclaim, stating that he had failed to plead a prima facie case for defamation due to a lack of particulars. The motions judge dismissed the motion, stating that the requirements under the modern and flexible approach had been pleaded in the counterclaim, even though they were loosely constructed.
The plaintiffs appealed the decision to the Divisional Court, which considered the modern and flexible approach raised by the motions judge, but came to a different conclusion. The Court found that the defendant had failed to identify any specifics regarding the defamatory communications alleged in the counterclaim. The Court further stated that there was no point in allowing for an amendment of the pleadings, since “it is clear [the defendant] cannot plead with greater specified in respect of any individual defendant”.
The defendant appealed the decision to the Ontario Court of Appeal.
Court of Appeal Says Modern and Flexible Approach to Defamation Does Not Require Specifics in Order to Proceed
The Court of Appeal took issue with the Divisional Court’s assertion that in order to apply the modern and flexible approach to defamation proceedings, the plaintiff must be able to establish a prima facie case against at least one defendant by supplying particulars.
The Court clarified the assessment of defamation pleadings that must be undertaken as follows:
“…[T]he real question is whether the pleadings disclose a “coherent body of fact” about the elements of a claim for defamation, such as the gist of the statement, time, place, speaker and audience. Or are the pleadings merely replete with bald allegations such that they amount to no more than “a fishing expedition” with the result that the defendant is left in the dark about the claim to be met.”
Mr. Siudak’s counterclaim contained a timeframe in which the statements were allegedly made, as well as generalities regarding the content of the communications and the likely audience members. The remaining particulars could be ascertained during the discovery process, therefore the pleadings were sufficient. The defendants and the plaintiff to the counterclaim both had sufficient information to understand the case they would need to meet. The Court of Appeal reversed the Divisional Court’s decision.
For Exceptional Legal Representation in Defamation Matters Contact Milosevic & Associates in Toronto
If you believe that defamatory comments have been made about you in the media or online, or if you have been accused of making defamatory statements, contact the highly knowledgeable defamation, libel and slander lawyers at Milosevic & Associates as soon as possible. Our goal is to protect you, your reputation, and your livelihood. We have considerable experience providing effective representation for clients at all levels of court, including appeals to the Court of Appeal and the Supreme Court of Canada. Call us at 416-916-1387 or contact us online to schedule a consultation.