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
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.
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