Date: 20010904
Docket: T-45-01
Neutral citation: 2001 FCT 989
Toronto, Ontario, Tuesday, the 4th day of September, 2001
PRESENT: Peter A. K. Giles, Esquire
Associate Senior Prothonotary
BETWEEN:
ARTEM DJUKIC carrying on business as
SOKO IMMIGRATION CONSULTING SERVICE
Plaintiff
-and-
THE ATTORNEY GENERAL OF CANADA
Defendant
REASONS FOR ORDER AND ORDER
GILES A.S.P.:
[1] By the motion before me, the Plaintiff seeks leave to file an amended statement of claim. The Plaintiff's principle claim appears to be based on conspiracy. To successfully plead an action in conspiracy, a Plaintiff must allege one or more of:
a) the existence of an agreement to injure the Plaintiff (in his business), or
b) an agreement to perform illegal acts for the purpose of injuring the Plaintiff, or
c) an agreement to perform illegal acts with the knowledge that the Plaintiff (or persons of a class which includes the Plaintiff) could suffer damage and that the Plaintiff has suffered damages.
[2] In addition, the Plaintiff must allege facts which could show the existence of such an agreement. It is not sufficient to allege facts which could show an agreement or could show mass compliance with the order of a superior without alleging an agreement. Agreement must be alleged. The parties, two or more of whom are alleged to have agreed, must be identified as agreeing.
[3] It appears that since the majority of the acts complained of there has been a settlement agreement between the parties. The Crown argues that the settlement negates any conspiratorial intent. There is nothing in the pleading to indicate such a result. The pleading appears to consider the conspiracy continued from before the agreement to the date at least when the action was commenced.
[4] In paragraph 18, the Plaintiff alleges that as part of the conspiracy, the Canadian Ambassador in Bosnia made false statements. Prior to this paragraph, the conspirators appear to have been in the Vienna and Berlin embassies. The Ambassador was not one of the persons alleged to conspire in the earlier paragraphs.
[5] Paragraph 18 also pleads defamation as well as conspiracy. In a plea of defamation, the meaning ascribed to the alleged defamatory words should be specified if it is other than the plain ordinary meaning to be ascribed to the words. Here for instance, "a few intermediaries who ‘help their countrymen who are dreaming of paradise in another country'" are the words alleged. A special meaning or imputation presumably is required. It should be plead.
[6] It is alleged that the words were used to a Bosnian journalist who published them in a Bosnian newspaper. The Crown cites Gatley on Libel and Slander as requiring an allegation that the publication was actionable in Bosnia as well as in Canada. Even if it is intended to rely on the presumption that the law is the same as that in Canada, I agree that such an allegation must be made. The Plaintiff argued that the person making the statements was the Ambassador and may have made the statements in the embassy, in which case he argued, Canadian law would apply. I will not speculate as to where the words were used and will merely note that if it is intended to rely on that speculation, it should have been pleaded explicitly. I agree with the Crown counsel that the case for defamation is not properly pleaded.
[7] As I indicated when striking the original statement of claim, while it is not necessary to plead each and every instance of interference with economic activity or abuse of authority, it is necessary to give at least one precise example. It is not enough to say that one or more of the following named individuals did one or more of the following listed things with respect to the applications of one or more of the following people.
[8] In my view, leave should not be given to file an amended pleading which could be ordered struck out or ordered extensively particularized. As indicated above, the proposed amendment could be struck out or ordered particularized with respect to every suggested cause of action. The motion will therefore be dismissed. I should also remind counsel of my concern, expressed at the hearing, with the admission in paragraph 10 that the date and details of the agreement are unknown. Particularly in light of the statement that it was intended to obtain the necessary facts on discovery. Caterpillar Tractor Co. v. Babcock Allatt Ltd. [1983] 1 F.C. 487 discusses such a contention with unfavourable conclusions.
[9] While I am satisfied that no cause of action has been properly pleaded in the suggested amended claim, I am not convinced that no cause of action exists. Unlimited attempts to plead cannot be allowed. But, I am prepared to allow another attempt.
ORDER
1. Motion dismissed with leave to reapply within 30 days.
2. Costs of today fixed at $500.00, payable by the Plaintiff to the Defendant in any event of the cause.
"Peter A. K. Giles"
A.S.P.
Toronto, Ontario
September 4, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-45-01
STYLE OF CAUSE: ARTEM DJUKIC carrying on business as
SOKO IMMIGRATION CONSULTING SERVICE
Plaintiff
-and-
THE ATTORNEY GENERAL OF CANADA
Defendant
DATE OF HEARING: MONDAY, AUGUST 27, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: GILES A.S.P.
DATED: TUESDAY, SEPTEMBER 4, 2001
APPEARANCES BY: Mark A. Klaiman
For the Plaintiff
Claire leRiche
For the Defendant
SOLICITORS OF RECORD: Klaiman, Edmonds
Barristers & Solicitors
60 Yonge Street, Suite 1000
Toronto, Ontario
M5E 1H5
For the Plaintiff
Morris Rosenberg
Deputy Attorney General of Canada
For the Defendant
FEDERAL COURT OF CANADA
Date: 20010904
Docket: T-45-01
Between:
ARTEM DJUKIC carrying on business as
SOKO IMMIGRATION CONSULTING SERVICE
Plaintiff
-and-
THE ATTORNEY GENERAL OF CANADA
Defendant
REASONS FOR ORDER
AND ORDER
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