Date: 20080520
Docket: T-1332-07
Citation: 2008 FC 620
BETWEEN:
TIMOTHY E. LEAHY, ESQ.
and
FOREFRONT
MIGRATION LTD.
Plaintiffs
and
HER
MAJESTY THE QUEEN
Defendant
REASONS FOR
ORDER
MACTAVISH J.
[1]
The
defendant appeals from a decision of a prothonotary refusing to strike the
plaintiffs’ statement of claim as disclosing no reasonable cause of action.
[2]
For the reasons that follow, the appeal will be dismissed.
Background
[3]
The statement of claim relates to three incidents involving comments
allegedly made by government agents as to whether the plaintiff Timothy Leahy
qualified as an “authorized representative”, as defined in the Immigration and Refugee
Protection Regulations, and consequently whether he was able to
represent clients with applications or proceedings pending under
the Immigration and
Refugee Protection Act.
[4]
The defendant brought a motion before a prothonotary seeking to have the
statement of claim struck out as an abuse of process, and as disclosing no
reasonable cause of action.
[5]
The defendant’s abuse of process argument was based upon the decision of
the Federal Court of Appeal in Grenier v. Canada [2005] FCJ No. 1778.
In this regard, the prothonotary found that it was not plain and obvious
that the plaintiffs could not proceed by way of an action for damages for the
tortious acts that they allege were committed by the government agents in
question.
[6]
No appeal has been taken by the defendant with respect to this aspect of
the prothonotary’s decision.
[7]
The prothonotary also found that the statement of claim did disclose a
reasonable cause of action. In this regard the prothonotary stated that:
The
Plaintiffs have pleaded in tort, alleging that the Defendant’s communications
were defamatory and that they intentionally interfered with his contractual
relations with the immigration clients being represented by Mr. Leahy and/or
Forefront Migration Ltd. The elements of the causes of action are pleaded. If
the defendant claims there are insufficient material facts for it to understand
the nature of the claim being asserted or lacks particulars in order for the
defendant to plead a defence, the appropriate remedy is a motion for
particulars.
Standard of Review
[8]
Where a discretionary order of a prothonotary is vital to the final
issue in a case, the decision should be reviewed on a de novo basis: see
Merck & Co. Inc. v. Apotex Inc., [2003] F.C.J. No. 1925, 2003 FCA
488 at ¶ 18-19. However, where the decision under review is not vital to the
final issue in the case, it ought not to be disturbed on appeal unless the
order is clearly wrong, in the sense that the exercise of discretion by the
prothonotary was based upon a wrong principle or upon a misapprehension of the
facts: Merck, at ¶ 19.
[9]
The plaintiffs made no submissions in relation to the standard of
review. The defendant says that while a decision to strike the statement of
claim would have been vital to the final issue in the case, having refused to
strike the statement of claim, the decision was not vital to the final issue,
and, as a result, this Court should not interfere with the prothonotary’s
decision unless it is clearly wrong.
[10]
In Canada v. Aqua-Gem Investments
Ltd., [1993] 2 F.C. 425, the Federal Court
of Appeal addressed the situation where a decision could be final or
interlocutory, depending upon the result. At paragraph 98 of its decision, the
Federal Court of Appeal held that a
decision that could be either interlocutory or final, depending on how it was
decided, must nevertheless be considered vital to the final resolution of the
case, regardless of the outcome.
[11]
As a consequence, I am of the
view that I should exercise my discretion de novo in this matter: see
also Vogo Inc. v. Acme Window Hardware Ltd. et al., [2004] F.C.J.
No. 1042, 2004 FC 851, and AstraZeneca Canada Inc. v. Apotex Inc.,
[2005] F.C.J. No. 74, 2005 FC 43.
General Principles on Motions to Strike a Statement of
Claim
[12]
Rule 174 of the Federal
Courts Rules establishes that a pleading must contain a concise statement
of the material facts on which a party relies.
[13]
When a particular cause of
action is pleaded, the claim must contain material facts satisfying all the
necessary elements of the cause of action. Otherwise, the inevitable conclusion will be that such a claim discloses no reasonable cause of
action: see Benaissa v. Canada (Attorney General), [2005] F.C.J.
No. 1487 and Howell v. Ontario (1998), 159 D.L.R. (4th) 566.
[14]
There must be facts to support
the claim - the bare assertion of a conclusion is not sufficient: see Malkine v. Canada (Minister of Citizenship and Immigration), [2007] F.C.J. No. 789 and
Canadian Olympic Assn. v. USA Hockey Inc., (1997),
74 C.P.R. (3d) 348 at 350-351 (F.C.T.D.), [1997]
F.C.J. No. 824.
[15]
That said, as the Federal Court of Appeal observed in Shubenacadie Indian Band v. Canada (Minister of Fisheries and Oceans), 2002 FCA 255, [2002] F.C.J. No. 882, although a
pleading may be very broad and encompassed in general terms, it should not be
struck out so long as a cause of action, however tenuous, can be gleaned from a
perusal of the statement of claim.
[16]
Although the courts have historically demanded strict compliance
with the technical rules of pleading in defamation matters, there has been a
move in recent years to take a more liberal approach to pleadings in such
cases. Nevertheless, pleadings in defamation cases remain more important than
in any other class of actions: see Lysko v. Braley, [2006] O.J. No.
1137, at paragraph 91. Plaintiffs will still be required to provide adequate
disclosure of the basis of the claim, and to properly define the issues: see
E.R. Brown, 2004, The Law of Defamation in Canada, (loose-leaf) Toronto:
Carswell at pp. 19-3 to 19-6.
[17]
The onus on the party moving to
strike a statement of claim is heavy, and it must be shown that it is beyond
doubt that the case cannot possibly succeed at trial. Only if there is no
chance of success, or to put it another way, if the action is certain to fail,
can the Statement of Claim be struck out: see Shubenacadie cited above,
and Hunt v. Carey Canada Inc. [1990] 2 S.C.R. 959.
Analysis
[18]
The plaintiffs’ statement of claim relates to three incidents,
where, the plaintiffs say, government agents made comments about Mr. Leahy to
individuals involved in the immigration process. The statement of claim
asserts that these comments were defamatory, and further, that they amounted to
intentional interference with the plaintiffs’ contractual relations with their
clients.
[19]
Dealing first with the defamation claims, there are three essential
elements of the tort of defamation: see E.R. Brown, previously cited at pp. 19-16
to 19-74.
[20]
That is, the plaintiffs must show that:
1. the
words complained of are defamatory;
2. the
words in question refer to one or both of the plaintiffs; and
3. the
words in question were published to a third party.
[21]
As a general rule, the precise words complained of should be set out in
a statement of claim. Ideally they should be set out verbatim, or, at a
minimum, with sufficient particularity as to allow the defendant to respond: Jensen
v. Alberta, [2002] A.J. No. 1078.
[22]
Absolute precision cannot, however, be demanded in relation to oral
communications, which may not have been recorded, and will depend upon
witnesses’ recollections of what was said.
[23]
In this case, the plaintiffs have paraphrased the words complained of in
all but one case, and have pleaded that they are defamatory. The statements
with which the plaintiffs take issue are clear from the statement of claim, as
are the circumstances in which those statements were made.
[24]
Moreover, it is clear from the statement of claim that the words in
question refer to Mr. Leahy, and that they were published to third parties.
[25]
In my view, the plaintiffs have pleaded the essential elements of the
tort of defamation. As the prothonotary noted in her decision, it is of course
open to the defendant to bring a motion for particulars, in the event that
additional information is deemed necessary by the defendant prior to delivery
of a statement of defence.
[26]
Insofar as the claims based on intentional interference with economic or
contractual relations are concerned, there are three essential elements of this
tort. That is, a plaintiff must show:
1. The
existence of a valid contract between the plaintiffs and a third party;
2. That
the defendant interfered or attempted to interfere in the plaintiff’s contract;
3. That the interference was deliberate, and done with knowledge
of or recklessness as to the existence of the contract; and
4. The
interference was direct.
It is not necessary that the
defendant’s action actually cause the third party to breach their contract with
the plaintiffs: see G.H.L. Fridman, The Law of Torts in Canada¸ (2d
ed.), Toronto: Carswell, 2002 at 791 to 814.
[27]
In this case, the statement of claim identifies the contracting parties
as being the plaintiffs and the named clients: see statement of claim “Incident
1”, paragraph 1, “Incident 2”, paragraph 3, and “Incident 3”, paragraph 2.
[28]
Moreover, the statement of claim states that the interference by
government agents was done directly, through defamatory statements made about
Mr. Leahy to the plaintiffs’ clients by government agents. The claim further
asserts that the statements were made with knowledge of the contractual
relationship between the plaintiffs and their clients, and that they were
intended to interfere with those contractual relations: see statement of claim
“Incident 1”, paragraph 1, “Incident 2”, paragraph 1, and Incident 3”,
paragraph 3.
[29]
Thus the plaintiffs have pleaded the essential elements of the tort of
intentional interference with economic or contractual relations. Once again,
if the defendant is of the view that it requires additional facts for it to
plead a defence, it may bring a motion for particulars.
Conclusion
[30]
For these reasons, the appeal is dismissed.
Costs
[31]
The plaintiffs shall have five business days in which to provide written
submissions, not to exceed three pages, plus whatever relevant supporting
documentation on which the plaintiffs wish to rely with respect to the issue of
costs.
[32]
The defendant shall then have five business days in which to provide its
own written submissions on the issue of costs, which shall also not exceed
three pages in length, plus supporting documentation. Any issue that the
defendant may have as to the appropriateness of the supporting documentation on
which the plaintiffs seek to rely in relation to the issue of costs may be
addressed at that time.
[33]
The plaintiffs shall then have three business days in which to file
reply submissions, which are not to exceed two pages in length.
“Anne Mactavish”
Ottawa, Ontario
May
20, 2008
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