Polly Peck and Pizza Pizza

• Author: Roger McConchie; David Potts
• Profession: Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario
• Pages: 603-643

C H A P T E R

T

W

If N

I

Y -

I-

O

U

R :

Polly Peck

and

Pi^a

Pi^a:

Alleging

the

Defendant's

Defamatory Meaning

and

Pleading That Meaning

is

True

A. THE

TRADITIONAL CANADIAN POSITION

The

traditional rule

in

Canada

(as

well

as

England)

was

that

in a

defamation

action where

the

plaintiff

had

pleaded

a

"popular"

or

"false"

innuendo

meaning,

a

defendant could plead justification

or

fair

comment only

in

respect

of

that meaning.

A

popular

or

false

innuendo

is a

meaning that

the

ordinary person, with-

out

special knowledge, will

infer

from

the

expression

itself.

This meaning

is

a

matter

of

impression

and is

also called

a

"natural

and

ordinary meaning."

(See

Chapter

15,

"Defamatory

Meaning,"

at

192.)

Under

the

traditional rule

the

defendant

was not

entitled

to

allege

in her

statement

of

defence that

the

expression

at

issue conveyed

a

different

pop-

ular

or

false

innuendo meaning than that complained

of by the

plaintiff,

and

then plead truth

or

fair

comment with respect

to her

defamatory meaning.

This long-standing rule

was

reiterated

in a

series

of

Ontario cases

during

the

period

from

1980

to

1990

when

it

came under attack

from

defendants

seeking

to

rely

on

certain changes taking place

in

English

law. (See

section

B(l) below.)

In

Coutts

v.

Fotheringham

(1980),

19

C.P.C.

270

(Ont.

S.C.),

for

example,

the

plaintiff

civil servant,

who was the

principal secretary

to

Pierre Elliott

Trudeau,

then

the

Leader

of the

Opposition

in

Parliament, complained that

the

following words defamed

him:

...

Coutts

is now

regarded generally

by the

press

as an

artful

sneak.

...

He has

become

famous

for his

spurious election

bet,

papering

the

Lib-

eral

campaign

jet

each election with hundreds

of

dollars

and

scattering

bot-

tles

of

Scotch

in

bets

on his

man.

603

604

CANADIANLIBEL

AND

SLANDER ACTIONS

The

press

has

little doubt that

the

bets, always outrageously optimistic,

on

his

party's chances

so as to

hype

the

speculation,

are

written

off

in the

legiti-

mate

expense accounts

on

behalf

of the

party.

Even

Coutts' losses

at the

Monday night poker games with

the

campaign

press

are

under suspicion, such

is his

reputation

now.

It's

an old

advertising-row joke,

but the

most common line

on

Trudeau's

chief

aide

is

that

you can

tell when

he's

lying

— his

lips

are

moving.

The

statement

of

claim

filed

on

behalf

of Mr.

Coutts alleged that

the

above

words:

are

defamatory

in

their natural

and

ordinary meaning. Further, they were

understood

to

mean that:

a)

The

plaintiff

is a

dishonest

and

despicable person;

b) The

plaintiff

is a

generally untrustworthy person;

c)

The

plaintiff

has

been guilty

of

fraudulent

or

improper acts;

d) The

plaintiff

has

misappropriated

funds

to

cover

his

gambling losses;

e)

The

plaintiff

is a

habitual liar

and

never speaks

the

truth.

Master

Sandier considered these

"false"

innuendos

pleaded

in the

state-

ment

of

claim

and

stated

(at

page

271):

Clearly,

it

cannot

be

reasonably said that

the

words have only

one

meaning.

There

is a

lack

of

clarity

and

uncertainty

as to the

natural

and

ordinary mean-

ing and

thus

the

plaintiff,

quite rightly,

further

pleads

the

meanings

for

which

the

plaintiff

will contend

at the

trial. This

is

generally known

as a

"false"

innu-

endo

as

distinct

from

a

"legal"

or

"true" innuendo.

Also,

the

plaintiff

has

pleaded very general meanings

for the

words, espe-

cially

innuendos

(a),

(b) and

(e).

Master

Sandier then

referred

to the

following

paragraph

in the

statement

of

defence

(at

page 272):

In

respect

to

paragraph

11

of the

Statement

of

Claim

the

defendants plead

that

the

words bear

a

different

meaning than pleaded

by the

plaintiff

and

that

the

defendants

justify

the

meaning that

the

words deserve

in

respect

to all but

the

aforementioned apology

in

paragraph

12

herein.

Master

Sandier ordered that this paragraph

in the

statement

of

defence

be

struck out.

He

accepted

the

plaintiffs

submissions,

inter alia,

that

the

defen-

dant "cannot allege that

the

words have some natural

and

ordinary mean-

ing

other than

as

contended

for in

sub-paras,

(a)

through

(e) of

para.

11

of

the

statement

of

claim"

and

that,

in any

event,

the

defendant would

not be

permitted

to

justify

his

alleged meanings

at

trial.

In

this connection,

Master

Chapter

Twenty-Four:

Polly Peck

and

Pizza Pizza

605

Sandier

rejected

certain

defence

arguments

which

were

based

on the

1978

edition

of

Colin

Duncan

&

Brian Neil, Defamation

(London:

Butterworths,

1978)

at

57-58,

para.

11.11:

Where

the

plaintiff

contends that

the

words complained

of

bear some extend-

ed

meaning

or

meanings other than their literal meaning,

the

meaning

or

meanings

put

forward

should

be set out in the

statement

of

claim.

It is to be

remembered, however, that

the

question

for the

jury

in

each case where jus-

tification

is set up by way of

defence

is

whether

the

words

are

true

in the

meaning which

the

jury

find

the

words

to

bear.

The

defendant

may

therefore

wish

to

contend that

the

words bear some

different

meaning

from

that

put

forward

by the

plaintiff

and

that

in the

meaning contended

for by the

defen-

dant

the

words

are

true.

It is

submitted that

the

defendant

is

able

to

take

this

course

and

that

the

older authorities

to the

contrary would

not now be

fol-

lowed.

A

defendant

is not

allowed, however,

to set out in his

defence

what

he

says

the

words mean, though

it is

submitted that this rule needs re-examina-

tion;

in

many cases

one of the

crucial issues

at the

trial

is the

meaning

of the

words

and it

would clearly

be

convenient

if the

precise issue between

the

par-

ties

was

placed

on the

record

in the

pleadings

before

the

hearing.

Instead

of

accepting

Duncan

and

Neill's

submission

concerning

the

need

for

change,

Master

Sandier

in

Coutts

chose

to

apply

the

traditional

rule

expressed

in Sir

Robert

McEwen

&

Philip

Lewis

Galley

on

Libel

and

Slander,

7th ed.

(London:

Sweet

&

Maxwell,

1974)

at

para.

1038,

where

the

last

sen-

tence

reads

as

follows:

The

defendant may, however, never place

on the

words

a

meaning

of his own

which

differs

from

the

natural

and

ordinary meaning

of the

words,

and

from

the

meaning

(if

any) assigned

to

them

by the

innuendo,

and

plead that, taken

in

such meaning, they

are

true,

for

that would

be

justifying

a

meaning

of

which

the

plaintiff

does

not

complain.

Master

Sandier

stated

that

he

preferred

to

follow "the Gatley

text

as

this

book

has

been

cited

in

many

Ontario

cases

as an

authoritative

and

leading

text

in

this

field"

and

ruled

(at

page

275):

I

wish

to

make

it

clear that

I am

holding that

the

defendants cannot, even

with

the

utmost particularity, plead that

the

words

in

para.

7 and 9 of the

statement

of

claim mean something

different

from

what

the

plaintiff

has

con-

tended they mean

in

sub-paras,

(a)

through

(e) of

para.

11,

and

then

justify

them

in

such meaning.