Pleadings
| Author | Roger McConchie; David Potts |
| Profession | Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario |
| Pages | 531-602 |
C H A P T E R T W E
N
T
Y- T H R E E
I
Pleadings
A.
VITAL
IMPORTANCE
Pleadings
are of
vital
importance
in a
defamation
action
and
should
be
pre-
pared
with
great
care
and
scrutinized
closely.
A
century
of
jurisprudence
is
replete
with
observations
about
the
special
role
of
defamation
pleadings.
Examples
include:
Lieberman
J.A.
in
Lougheed
v.
Canadian
Broadcasting
Corporation
(1979),
98
D.L.R.
(3d)
264 at 273
(Alta.
S.C.
(A.D.)):
The
pleadings
in
defamation
are of
extreme importance.
Cunningham
J. in
Leenen
v.
Canadian
Broadcasting
Corp.,
[2000] O.T.C.
672
at
para.
2
(S.C.J.),
affirmed
(2001),
147
O.A.C.
317
(C.A.),
leave
to
appeal
refused,
[2001]
S.C.C.A.
No.
432:
The
prosecution
of a
television libel action
is, in my
view, especially dif-
ficult
given
the
voluminous material involved
in the
production
of a
sin-
gle
one
hour program
...
but the
pleadings
in
such
an
action, unlike
so
many other actions,
are
more than
a
simple road map; they
are the
essence
of the
claim
and
must
be
prepared with precision
and
diligence.
William Blake Odgers,
Odgers
on
Libel
and
Slander,
6th ed.
(London: Stevens,
1929):
The
pleadings
in an
action
of
libel
or
slander
are
more important, per-
haps,
than
in any
other class
of
actions usually brought
in the
King's
Bench
Division.
Riddell
J. in
Foster
v.
Maclean
(1916)
37
O.L.R.
68 at 76
(C.A.):
531
532
CANADIAN LIBEL
AND
SLANDER
ACTIONS
I
confess
to
great sympathy with
a
solicitor called upon
to
draw
a
state-
ment
of
defence
in a
libel action
— in the
general debacle
of
pleadings,
this remains
an
action
in
which
it is not
safe
to
treat pleadings
as a
mere
exercise
in
English composition
for the
junior articled clerk
and the
typist;
there
is
still some
art in
libel pleadings.
Scarth
J. in
Finnamore
v. Sun
Publishing
Company
(1993),
77
B.C.L.R.
(2d)
293
at
298
(S.C.):
The
action
is
clearly
not a
labour relations proceeding;
it is a
libel
action.
And
although
the
tendency
of the
Courts
in
England
has
been
to
apply
the
ordinary rules
of
pleading
to
libel actions:
see
Lucas-Box
v.
News
Group
Newspapers
at
181, where Ack-
ner
LJ.
(as he
then was) states:
Although
to
some
it may be
seen
as a
startling observation,
we
can see no
reason
why
libel litigation should
be
immune
from
ordinary pleading rules.
Courts
in
Canada
continue
to
take what
has
been
characterized
in the
cases
as the
"classic approach"
to
libel pleadings
and to
apply long rec-
ognized principles
of
defamation law:
Turner
v.
Toronto
Sun
Publishing
Corp.
(1990),
5
C.C.L.T.
(2d)
184
(Ont
H.C.J.);
Loos
v. The
Leader-Post
Limited
(1982),
26
C.P.C.
30
(Sask.
C.A.).
Master
McCallum
in
Meyer
v.
Chouhan,
[2001]
B.C.J.
No.
2218
(S.C.),
at
para.
7:
Defamation
proceedings
are
technical
in
nature
and
"pleading-dependent."
Hodgins J.A.
in
Govenlock
v.
London
Free
Press
(1915),
35
O.L.R.
79 at 83
(C.A.):
The
pleadings
in a
libel action must
define
the
issue which
is
being tried.
Justification
means
one
thing,
and one
thing only:
i.e.,
that
the
libel
is
true
as
printed.
If the
parties
can
shift
their ground during
the
trial,
and
evidence
can be
given,
not
under
the
limitations imposed
by
such
a
plea,
upon
the
theory that
the
pleadings
do not
bind
the
parties, utter
confu-
sion
may be
caused
and a
general verdict
one way or the
other
may
mean
a
mistrial. Examples
of
this
may be
found
in
many cases.
See
Brown
v.
Moyer
(1893),
20
O.K.
509;
Manitoba
Free
Press
Co. v.
Martin
(1892),
21
S.C.R.
518;
Jacks
v.
Mail
Printing
Co.
(1915),
7
O.WN.
677.
The
defendant upon such
a
plea
is
limited
to
proving
the
truth
of
his
assertion,
and
ought
not to be
allowed,
to the
prejudice
of the
Chapter
Twenty-Three:
Pleadings
533
plaintiff,
to
adduce evidence which
may
raise
a
totally
different
issue.
The
right
to
amend
is one
thing,
but the
binding
effect
of an
admission
or
a
plea
in a
libel action should
not be
frittered
away.
Dubin
J.A.
in
Littleton
v.
Hamilton (1974),
4
O.R. (2d)
283
(C.A.),
leave
to
appeal
to
S.C.C. denied
(1974),
4
O.R. (2d)
283n
(S.C.C.):
I
pause
to
observe that
the
defence
of
fair
comment
was not
pleaded,
and it has
been said many times
in
actions
of
libel
the
parties
are
bound
by
their pleadings
and
careful
regard must
be
given
to the
pleadings
before
matters
are
left
for the
consideration
of the
jury.
Deficiencies
in
defamation
pleadings
may
provoke
severe
judicial
criti-
cism.
For
example:
Southin J.A.
in
Baumann
v.
Turner
(1993),
82
B.C.L.R.
(2d)
362 at 364
(C.A.):
Not
the
least
of the
problems
in
this appeal
is
that
the
pleadings
are
incomplete,
the
appellant
not
having delivered
a
reply, although
he
relies
on
express malice
to
defeat
a
defence
of
publication
on
occasions
of
privilege.
...
Lest
I be
thought unduly harsh
to the
appellant,
I say
that
the
state-
ment
of
defence also leaves
a
good deal
to be
desired.
...
The
learned
trial
judge could
not
have been
faulted
had he
refused
to
hear
a
case
so
ill
pleaded.
Southin J.A.
in
Brown
v.
Cole
(1998),
61
B.C.L.R.
(3d)
1 at 9
(C.A.):
Counsel
for the
respondent,
in
drafting
the
statement
of
claim
in
this
action, might better have followed
the
time-honoured pleas
to be
found
in
Galley
on
Libel
and
Slander,
rather than inventing
his own
...
[h]ad
this
case been tried with
a
jury,
and had the
trial judge permit-
ted,
over
the
objection
of the
defendants,
the
case
to go to the
jury
on
this statement
of
claim,
the
court might well have
found,
unless
the
jury
had
been required
to
deliver
a
lengthy special verdict,
the
trial
unsatisfactory.
In a
recent
case,
a
court
held
that
a
statement
of
claim
was so
deficient
it
could
not
even
support
an
assessment
of
defamation
damages
after
the
plain-
tiff
obtained
judgment
in
default
of
defence.
Of his own
motion,
McEwan
J.
set
aside
the
default
judgment,
referring
to the
pleadings
as
"gibberish."
Poznekoff
v.
Binning
(1998),
19
C.EC.
(4th) 347,
per
McEwen
J. at 351
(B.C.S.C.),
155.
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