Wenzel v. Nenshi, 2015 ABQB 788

Court of Queen ’ s Bench of Alberta Citation: Wenzel v. Nenshi, 2015 ABQB 788 Date: 20151211 Docket: 1301 13429 Registry: Calgary Between: Calvin Charles Wenzel Plaintiff - and - Naheed Kurban Nenshi Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice M. David Gates _______________________________________________________ [ 1 ] This is an application to settle the costs of the Plaintiff’s application for leave to bring a

summary judgement application in relation to the within matter. On November 23, 2015, I dismissed the Plaintiff’s application, having previously determined on October 20, 2015 that leave of the court was required to bring this application in view of the fact that the matter had already been set down for trial. [See Wenzel v. Nenshi , 2015 ABQB 742 ] [ 2 ] The Plaintiff also seeks leave of the court to amend his statement of claim. At the conclusion of the case management

meeting on November 23, 2015, counsel agreed that they would provide written submissions on both matters. Counsel for Mr. Wenzel filed written submissions by way of letters dated November 27, 2015, and November 30, 2015, respectively. Counsel for Mr. Nenshi filed written submissions by way of letter dated November 30, 2015, and December 1, 2015, respectively. [ 3 ] For the reasons that follow, I direct that costs be paid to the Defendant in the amount of $10,000, in relation to the Plaintiff’s unsuccessful application for leave to bring a

summary judgment application in the within matter. The Plaintiff’s application to amend his Statement of Claim is allowed in part. Facts [ 4 ] The key facts relating to the history of this action are not in dispute. [ 5 ] The Plaintiff, Calvin Wenzel, filed a Statement of Claim on November 13, 2013, in which he sought damages for defamation and injurious falsehood in relation to public statements alleged to have been made by the Defendant, Naheed Nenshi, in 2013.

The Defendant filed a Statement of Defence on January 14, 2014, in which he denied the allegations of defamation and raised the defences of justification, fair comment, and qualified privilege.

In his Reply to Defence filed on January 24, 2014, the Plaintiff says that the Defendant acted with malice, and had “injurious intent or an ulterior and improper purpose” and sought to discredit and vilify the Plaintiff to the Defendant’s political advantage. [ 6 ] On March 2, 2015, Yamauchi J ordered that the action be set down for trial by jury, subject to the Plaintiff being at liberty to seek, pursuant to s 17 of the Jury Act , RSA 2000, c J-3, to have the matter set down for trial by judge alone.

Yamauchi J seized himself relative to any further applications involving the possible vacating of the jury. [ 7 ] During a case management meeting held on June 22, 2015, at the request of the parties, I set the matter down for trial commencing February 16, 2016 for a period of 14 days.

At the time of the hearing, counsel for both parties assured the Court that the only matters that remained outstanding were the completion of a number of outstanding undertakings by the Plaintiff and an amendment of the Plaintiff’s pleadings to remove the claim for injurious falsehood. [ 8 ] The Court directed that both of these matters were to be completed by the end of July 2015. Since then, counsel has confirmed that both of these steps were completed by the date specified.

Other than these matters, the trial date was subject only to the Plaintiff’s ability to seek to have the matter proceed to trial by judge alone; any such application being required to be brought before Yamauchi J. Application to Amend that Statement of Claim [ 9 ] The Plaintiff seeks to amend his Statement of Claim in this action. The Defendant consents to all of the proposed amendments, save for those set out in paragraphs 15, 35, 40, 41, 45 - 49. Specifically, the Defendant consents to the following:

a) the insertion of the words “On November 27” in paragraph 13;

b) the addition of a new paragraph 14;

c) the addition of a new paragraph 16;

d) the addition of new paragraphs 25, 25, 27, 28, 29, 30, 31, 32, 33, and 34;

e) the addition of an additional alleged defamatory statement in paragraph 37 and paragraph 38;

f) the addition of new paragraphs 39, 42, 43, 44;

g) the additional of additional words in paragraphs 45 – 49;

h) the addition of additional words in paragraph 49, 51, 52, and the addition of the word “general” in paragraph (

a) of the list of damages claimed in the action. [ 10 ] The position of the Plaintiff is that all of the disputed amendments contain material facts that he relies on in this action. In his written materials, he offers no evidence and, indeed, makes no submissions or argument in support of any of the disputed paragraphs. [ 11 ] The position of the Defendant is that the disputed amendments contain impermissible argument. He says that the disputed paragraphs are not materials facts, but rather a mixture of evidence and impermissible argument.

He suggests that many of the disputed paragraphs more properly belong in an opening or closing statement to the trier of fact. [ 12 ] The general rule regarding the content of pleadings is set out in Rule 13.6 of the Alberta Rules of Court . The Rule requires that pleadings be “succinct”, and “must state...the facts on which a party relies, but not the evidence by which the facts are to be proved”. [Rule 13.6(2)(a)] The cases which deal with the Rule make it clear that pleadings should include material facts, but not argument as to how those facts should be interpreted or applied.

I accept the Defendant’s suggestion that the distinction between facts, evidence and argument is often not capable of rigid compartmentalization and, as such, are matters of degree. I agree with the observations of Ray J. in Oz Merchandising Inc. v. West Ottawa Soccer Club Inc , 2014 ONSC 446 , that the fact that the trial is to proceed before a jury heightens the need for proper pleadings. [ 13 ] The amendment of pleadings is dealt with in Rule 3.65 of the Alberta Rules of Court . As such, the court has a discretion to allow a proposed amendment after the close of pleadings.

The Defendant concedes that the standard to be applied in situations of this nature is low. While the standard may be low, I am of the view that some evidence is generally required to support the amendment. [ 14 ] Paragraph 15 of the proposed Amended Statement of Claim follows a new paragraph (#14) reproducing a statement made by

the Plaintiff at a meeting held on November 27, 2012. In the disputed paragraph which follows, #15, the Plaintiff purports to interpret, explain and/or suggest inferences which might be drawn from this statement. In my view, it does not contain any new facts other than those already set out in the preceding paragraph.

As such, I accept the Defendant’s contention that this paragraph contains impermissible argument and, is not a proper amendment. [ 15 ] Paragraph 35 relates to statements stated to have been made by the Defendant on April 23, 2013, as reported in the Calgary Sun, and on the following day, April 24, 2013, on the CBC radio show “The Eyeopener”. The content of both statements is fully set out in paragraphs 25 and 27, respectively, in the Amended Statement of Claim.

As outlined above, the Defendant consents to the amendment of the Statement of Claim to include both “new” paragraphs 25 and 27. [ 16 ] At the heart of paragraph 35 is the Plaintiff’s claim that the Defendant had “no reasonable basis or justification” for characterizing the Defendant’s November 27, 2013 statement in one way on April 23, 2013, and a different way on the following day, April 24, 2013.

Specifically, the Plaintiff says that the Defendant spoke of “potential violations and alleged violations of the law” on April 23, 2013, and then on April 24, 2013, that the Plaintiff “admits to illegal activity in the 2010 election” [ 17 ] I accept the Defendant’s contention that paragraphs 29-34 of the Statement of Claim already suggests that the Defendant ought to have known, or could have learned, the accuracy of the Plaintiff’s statements. What follows in paragraph 35, in my view, is not the pleading of a material fact, but argument.

The Plaintiff may well be successful in persuading the trier of fact in this action that there is no reasonable basis or justification for the Defendant’s changed characterization of the Plaintiff’s statement. However, I find that this is not a proper amendment to his Statement of Claim. [ 18 ] Paragraph 40, somewhat like paragraph 35, relates to statements said to have been made by the Defendant on October 9, 2013, during a CBC radio interview with David Gray, again during “The Eyeopener” program. The content of this statement is fully set out in paragraph 36 of the proposed Amended Statement of Claim.

As such, the Plaintiff says that the Defendant was now alleging that the Plaintiff told other people how to break the law and that the Plaintiff could be described as a “Godfather”. [ 19 ] At the heart of paragraph 40 is the Plaintiff’s claim that the Defendant had “no reasonable basis or justification” for characterizing the Defendant’s November 27, 2013, statement in one way on April 23, 2013 – a “potential and alleged violation of the law” - and a different way on October 9, 2013, when he stated that the Plaintiff admitted in his November 27, 2013 statement that he “broke the law in 2010.” [ 20 ] Again, the Plaintiff may well be successful in persuading the trier of fact in this action that there is no reasonable basis or justification for his October 9, 2013, changed characterization of the Plaintiff’s statement.

However, I find that this is an argument that the Plaintiff seeks to advance rather than a statement of a material fact on which he relies. It follows, in my view, that this is not a proper amendment to his Statement of Claim. [ 21 ] In my view, part of proposed paragraph 41 does contain a potential material fact, i.e. that the Defendant did not make the necessary determination as to whether the truck used by Shane Homes employees was a company or an employee donation. However, I agree with the Defendant’s contention that this same fact is fully documented in Paragraphs 29-34.

As such, it is duplicative of earlier pleadings. Notwithstanding the fact that it may be repetitive, I would allow the Statement of Claim to be amended to include this portion of proposed paragraph 41. [ 22 ] However, what precedes and follows this portion of the proposed amendment in paragraph 41 suffers from some of the same difficulty as Paragraphs 35 and 40 in that it is properly characterized as argument.

It follows that I find that, other than the portion of proposed Paragraph 41 discussed in the preceeding paragraph of these Reasons, the balance of the proposed paragraph is not a proper amendment. [ 23 ] The final disputed proposed paragraphs in the Statement of Claim are found at paragraphs 45-49. All of these proposed amendments relate to public statements said to have been made by the Defendant in the course of his re-election campaign which were reported in the media.

The Plaintiff refers to these statements collectively as “the Press Statements”. [ 24 ] In considering these proposed amendments, I take into consideration that the Plaintiff initially plead that the Press Statements amounted to both injurious and malicious falsehood, as well as general defamation. However, the Plaintiff has now abandoned his initial claim for injurious or malicious falsehood. It would appear that he has also abandoned his general claim for defamation in relation to these same Press Statements.

The Plaintiff now seeks to rely on the Press Statements as contextual support of his claim for defamation in relation to other statements made by the Defendant. In my view, what is proposed is not the pleading of a materials fact. Rather, the proposed amendments are properly characterized as evidence that the Plaintiff believes will support the material facts upon which he relies.

Further, I am satisfied that these proposed amendments also have the character of argument in that the Plaintiff seeks to have the trier of fact draw inferences from this evidence to support his argument regarding the defamatory nature of the Defendant’s earlier statements. In my view, these are not proper amendments. Costs [ 25 ] As outlined above, I advised the parties on November 23, 2015, that the Plaintiff’s application for leave to bring a

summary judgment application was dismissed. Written reasons were subsequently filed and provided to the parties. At the conclusion of proceedings on November 23, 2015, the parties spoke to the issue of costs payable to the Defendant as the successful party on the application. [ 26 ] The Defendant seeks costs in the amount of $10,000 plus disbursements calculated on the basis of double Column 5 for two special applications with briefs, and an additional ½ days hearing.

While the Plaintiff questioned whether multiple Column 5 was appropriate under the circumstances, when specifically questioned by the Court, he agreed that the amount of $5,000 was appropriate. The parties were then directed to file written submissions on the issue of whether the costs award should be calculated on a multiple of Column 5.

[ 27 ] The Plaintiff filed written submission by way of letter dated November 27, 2015. Notwithstanding his explicit agreement to the amount of $5,000, he took the position that the appropriate calculation of costs was $3,000 based on a ½ day application with briefs ($2,000) and an additional ½ day ($1,000). In the alternative, he advanced the position that the appropriate amount is $4,000 based on a ½ day application with briefs ($2,000) and two ½ day applications (2 x $1,000). [ 28 ] The Defendant also filed written submissions on the costs issue by way of letter dated November 30, 2015.

He challenges the Plaintiff’s calculations as to the amount of time spent on this matter. [ 29 ] Given the Plaintiff’s agreement to the $5,000 amount requested by the Defendant, I am of the view that it is not open to him to now resile from this agreement. Even if I were prepared to revisit this issue, I do not accept the Plaintiff’s calculations as to the amount of time spent in relation to his unfiled and filed applications relative to this matter. I set costs at $5,000. [ 30 ] I do not accept the Plaintiff’s contention that there was divided success on these applications.

In particular, I do not accept that the Defendant’s argument that the Jury Act precluded the bringing of a

summary judgment application was a separate, stand-alone application initiated by the Defendant. Rather, the Defendant advanced this argument in his response to the Plaintiff’s leave application and in support of his overall argument that leave should not be granted in this instance. While I rejected this branch of the Defendant’s argument, I nevertheless found in the Defendant’s favour overall in denying the Plaintiff’s leave application. [ 31 ] For the following reasons, I am satisfied that the Plaintiff has placed too restrictive an

interpretation on situations where multiples of costs are typically awarded. I am satisfied for the following reasons that double Column 5 costs are appropriate under the circumstances:

a) The Plaintiff’s Statement of Claim seeks general and punitive damages in the amount of $6 million, a very significant amount when viewed in the context of other damage awards in defamation cases in Canada;

b) The Plaintiff’s original, unfiled application dated September 24, 2015, sought to re-open the questioning of the Defendant and also sought an order directing Doug Vaessen and an unidentified third party to attend for questioning prior to the hearing of the

summary judgment application. Both of these applications were abandoned by the Plaintiff, but only at the time of filing his

summary judgment application on November 5, 2015. The Defendant obviously incurred thrown away costs relative to these abandoned applications;

c) In both of his applications (one filed; one unfiled), the Plaintiff sought costs on a full indemnity basis. The Plaintiff was entirely unsuccessful in relation to these applications.

d) The Plaintiff’s decision to bring these applications notwithstanding the representations of his former counsel that this matter was ready to proceed to trial required the Defendant to respond to a series of applications on short notice less than 3 months prior to the scheduled trial date. The Plaintiff provided no explanation whatsoever for this change in position other than that he had retained new counsel.

Conclusion [ 32 ] The Plaintiff’s application to amend the Statement of Claim is dismissed, save for the proposed additions to Paragraph 41, described in paragraph 21, above. [ 33 ] The Defendant is entitled to costs in the amount of $10,000 payable forthwith. Costs [ 34 ] The Defendant is entitled to his costs on the Plaintiff’s application to amend his Statement of Claim in any event of the cause. The parties may speak to the issue of costs within 30 days of the release of these Reasons if they are unable to agree on this matter. Dated at the City of Calgary, Alberta this 11 th day of December, 2015. M.

David Gates J.C.Q.B.A.

Appearances: Ariel Z. Breitman/Jonathan J. Bourchier for the Plaintiff Munaf Mohamed/Ciara J. Mackey for the Defendant