Milne v. Capital Regional District, 2015 BCSC 1163

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Milne v. Capital Regional District, 2015 BCSC 1163 Date: 20150706 Docket: 14-4240 Registry: Victoria Between: Brian Milne Plaintiff And: Capital Regional District and Doug McDonald Defendants Before: Master Bouck Reasons for Judgment Counsel for the Plaintiff: J. Plonka Counsel for the Defendant Capital Regional District: R. Bortolin Counsel for the Defendant/Applicant D. McDonald: C. McDougall Place and Date of Hearing: Victoria, B.C. June 9, 2015 Place and Date of Judgment: Victoria, B.C.

July 6, 2015 The Application [ 1 ] The defendant McDonald requests an order that various sections of the amended notice of civil claim (the “NOCC”) be struck pursuant to Rule 9-5(1)(

a) of Supreme Court Civil Rules (the “ SCCR ”) . As well, Mr. McDonald seeks particulars on pleas which remain and that such particulars be incorporated into a further amended notice of civil claim. The plaintiff says that the application is misconceived as appropriate particulars have been provided and the other issues raised by the applicant must be decided at trial. The defendant Capital Regional District (“CRD”) takes no position on the application. [ 2 ] For reasons which follow, I have concluded that portions of the NOCC will be struck but no additional particulars need be delivered.

Facts [ 3 ] This is a defamation action. The plaintiff resides on Saltspring Island on a property adjacent to the local Rod and Gun Club (the “Club”). This circumstance has been an unhappy one, resulting in four separate proceedings brought by Mr. Milne in relation to the Club’s operations. In a petition proceeding, Mr. Milne sought a declaration that the Club’s operations violated a noise restriction by-law. The CRD sought to amend its noise control by-law and invited public consultation for that purpose.

The consultation process allowed individuals to submit comments for publication on the CRD website. [ 4 ] Mr. McDonald submitted the following comment (reproduced as verbatim in the NOCC): To the CRD directors, Gentlemen, In regards to the Salt Spring Island Rod and Gun Club, the Club. It looks to me that we have now come to the very core of the issue, Milne vs the Club. This issue started whern Mr. Milne first bought his property next to the club, his mind set then was as it is now, a total shut down of the club by what ever means available to him. In my opinion he is using the CRD and the courts.

To this end he has befriended and bankrolled the only neighbours who were complaining about the noise levels. These few neighbours have a long list of complaints to there credit. Not only do they complain about the shooting sports but also the noise from sea planes, parties on small craft in the harbor, Moby’s street dance, extraction fans for the restaurants in Ganges, the traffic on Ganges hill, cutting the grass at the club and if you care to check I am sure the CRD has a full list. Wherever Mr Milne buys property there always seems to be litigation involved until he once again gets his way.

This is like a game to him, buy, litigate and do as he pleases. Has the CRD ever been informed as to Mr Milne’s final vision for this property or any of his other holdings on SSI, it would be a safe bet that it is not to be kept as a working farm. I realize that it is not the CRD’s mandate to “serve and protect” that falls to the Islands Trust. However this would be an ideal time for you to check with them and consider the end results of what your impending decision would do to our wonderful island and home.

This all being said, as part of five generations on Salt Spring Island [1923], I would like to suggest that the Club be allowed to exist with out the conditions that will surely cause the Club to whither and die. As the CRD and the Club will never satisfy Mr Milne with anything than a full shut down of the Club, I think it is time for the CRD to stand up to Mr Milne and all his

money. Take the lead from an island institution and proud community member and just say NO to Mr Milne and his payed supporters.Thank you for your time and consideration on this very important community matter. If at any time you would like a hands on walkabout of the club to see first hand what has been done previously, recently and in the future to reduce noise levels for our neighbours,please give me a call. (the “Comments”) [5] These Comments, available for public viewing on the CRD website, are said by the plaintiff to be defamatory. It should benoted that Mr.

Milne’s name was redacted from the published Comments. However, the plaintiff alleges that an un-redacted version wasdistributed to members of the CRD committee reviewing the noise by-law and to “a variety of people yet unknown.” [6] The plaintiff commenced this action on November 14, 2014. At the time, Mr. Milne was unable to identify the author of theComments and named “John Doe” as a defendant. The CRD filed a response on December 10, 2014. The amended notice of civil claimwas filed in February 2015 in which Mr. McDonald is substituted for John Doe. Mr.

McDonald filed his response the month following. [7] The notice of application seeks an order that either paragraph 17 a. - i. or, if not a., the remainder of those subparagraphs bestruck. The impugned pleading is: 17.

In their natural and ordinary meaning, or in the alternative by way of innuendo, the words of the Defamatory Statements were meant,and understood to mean, that the plaintiff, inter alia: a. commenced the Gun Club Action and makes complaints to the CRD regarding the Gun Club for ulterior motives; b. manipulates, bribes, or intimidates local government to achieve collateral goals; c. files numerous legal claims, particularly spurious legal claims, to put pressure on others and to achieve collateral goals; d. bribes witnesses in legal proceedings in exchange for favourable testimony; e. is a criminal; f. is a malingerer and complainer; g. is a habitual or vexatious litigant; h. filed the Gun Club Action to: i. put pressure on the Gun Club; ii. cause the Gun Club to close; and iii. cause the Gun Club to sell its property so the plaintiff could purchase the Gun Club lands at a discount, and develop them for profit;and i. uses his personal resources to intimidate others for his own purposes. [8] On April 28, 2015, the defendant McDonald issued a written demand for further particulars from the plaintiff pursuant to Rules3-7(21)(a), (22) and (23) of the SCCR.

A deadline for a response to the demand was set for May 8, 2015 at 4 p.m. After initiallyrejecting the request on legal principles, the plaintiff did provide some particulars by way of a May 8, 2015 letter from counsel. Thoseparticulars relate primarily to the order sought in item 3 of the defendant McDonald’s application. The plaintiff continues to resist thebroader request for particulars. The Law A. Striking pleadings [9] This aspect of the application mirrors the relief sought in Lund v. Black Press Group Ltd., 2007 BCSC 559.

As the court statesin Lund: [2] Although the Defendants seek relief on the basis of Rule 19(24)(a)-(d), I find that Rule 19(24)(

a) is most applicable. It reads asfollows:

(24) At any stage of a proceeding the court may order to be struck out or amended the whole or any part of an endorsement, pleading,petition or other document on the ground that (

a) it discloses no reasonable claim or defence as the case may be,… and the court may grant judgment or order the proceeding to be stayed or dismissed... [3] In Citizens for Foreign Aid Reform Inc. v. Canadian Jewish Congress (1999), (BC SC), 36 C.P.C. (4th) 266,[1999] B.C.J. No. 2160 (B.C.S.C.) at para. 34, Romilly J. provides a concise

summary of what is required to succeed on an applicationunder Rule 19(24): To succeed on an application under Rule 19(24)(

a) it must be established that it is "plain and obvious" that the pleading discloses noreasonable cause of action: Hunt v. Carey, (SCC), [1990] 2 S.C.R. 959 (S.C.C.). If there is any doubt it should be

resolved in the favour of permitting the pleadings to stand: McGauley v. British Columbia (1989), (BC CA), 39B.C.L.R. (2d) 223 (B.C.C.A.). The court should proceed on the assumption that all facts pled are true: Helman v. Brown (1966), (BC CA), 57 W.W.R. 608 (B.C.C.A.). The only question then is whether the facts disclose a cause of action: Minnes v.Minnes (1962), (BC CA), 39 W.W.R. 112 (B.C.C.A.); McNaughten v. Baker (1988), (BC CA), 25B.C.L.R. (2d) 17 (C.A.). In other words, as long as the pleadings disclose a triable issue, either as it exists, or as it may be amended, thenthe issue should go to trial.

The mere fact that the case is weak or not likely to succeed is no ground for striking it out under theprovisions of Rule 19(24): Minnes, supra. [4] In determining whether it is plain and obvious that defamation pleadings disclose a reasonable cause of action, the court will assesswhether the words complained of are reasonably capable of bearing the meanings alleged.

In making such an assessment, the court willdetermine whether reasonable persons of ordinary intelligence would read the words complained of as lowering the plaintiff in theestimation of right thinking members of society and cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike ordisesteem (see Sturdy v.

Canada (Minister of National Defence), 2005 BCSC 519). [5] In the case at bar, the Defendants seek only to strike select alleged meanings, not the entire defamation claims against them.Although I was unable to find a B.C. case where a court essentially pruned the pleadings in a defamation action, in my opinion there issufficient authority for doing so. First, Rule 19(24) states that a court may strike out or amend the whole or any part of a pleading. I amsatisfied that the Rule provides authority to cull pleadings without striking the entire claim.

Indeed, under Rule 19(24), the court struckout only select phrases and paragraphs of a statement of defence (see Hemming v. Newton, 2006 BCSC 1748). [6] Second, the object of the Rules of Court, as expressed in Rule 1(5) is to “secure the just, speedy and inexpensive determination ofevery proceeding on its merits”.

If the words complained of in a defamation action are not reasonably capable of bearing some of themeanings that are alleged, it would be efficient and just for the court to strike those alleged meanings. [7] During submissions, counsel for the plaintiff explained that he did not come prepared to argue whether or not the Defendants’statements are capable of bearing the meanings alleged. The plaintiff submits that I must proceed on the premise that every fact allegedin the Statement of Claim is true. In particular, the plaintiff submits that the inferential meanings alleged must be presumed to be true.

Itis the plaintiff’s position that whether words are capable of bearing the meanings alleged is more properly argued under Rule 34. Theplaintiff submits that the most the court can do, on this application, is to order that certain statements and their alleged meanings be setdown for further argument on whether the words are capable of bearing the meanings alleged. [8] I do not agree with the plaintiff’s submissions. Whether words are capable of a defamatory meaning is a question of law (Lions GateMarketing Company Ltd. v. Used Car Dealers Association of Ontario, 2005 BCCA 274 at para. 11).

Whether words actually meanwhat is alleged is a question of fact. The only way that I can determine whether to strike any part of the pleadings in a defamation case,pursuant to Rule 19(24), is to assess whether or not the words are capable of supporting the meanings alleged. If I find, from theperspective of a reasonable person of ordinary intelligence, that the words are not capable of supporting the meanings alleged, I canstrike them pursuant to Rule 19(24) and do not have to set the matter over for consideration under Rule 34.

In deciding whether aplaintiff has disclosed a reasonable cause of action, I must examine the legal basis for his claim. In defamation, this involves assessingwhether the allegedly defamatory words are capable of supporting the meanings which are claimed. [10] Further, the court must “have regard to the meaning which a reasonable person of ordinary intelligence would understand [theComments] given such a man’s general knowledge and experience in worldly affairs”: Mitchell v.

Nanaimo District Teachers’ Assn., (B.C.C.A.) at paras. 33 and 45. [11] Nevertheless, the pleading will only be struck in the “clearest of cases”: Guergis v. Novak, 2013 ONCA 449 at para. 40. [12] No evidence is admissible on this type of application: SCCR 9-5(2). A response to a demand for particulars is incorporated into the NOCC such that the content of the May 8th letter from plaintiff’s counsel is merely an extension of the pleadings. B.

Particulars [13] As articulated in the defendant McDonald’s notice of application, in some cases, when a publication is reproduced in its entiretyin the pleadings, and numerous allegations of defamation are derived from that publication, the plaintiff must provide particularsregarding which portion of the publication is defamatory and in what way: Thomas v. McMullan, 2000 BCSC 863. However, whethersuch particulars are necessary is to be decided on a case by case basis. The objective of providing particulars is to ensure that theopposing party knows the case to be met. [14] Rule 3-7(21)(

a) governs this aspect of the application. This sub-rule requires delivery of particulars only in situations where theimpugned words or statements could not be read as defamatory on a literal meaning or by inference on their natural and ordinarymeaning. Words or statements can also be defamatory by virtue of extrinsic facts or circumstances known only to the specific reader ofthe publication: Reimer v. Dr. A.R. Boyco Optometric Corporation, 2012 BCSC 860 at paras. 17-22. In this last situation, particulars ofsuch facts or circumstances should be provided.

Discussion [15] It makes sense to first determine what portions of the NOCC will stand before addressing whether particulars should beprovided on that pleading. A. Striking Pleadings [16] I find it to be plain and obvious that the Comments are not capable of supporting the following meanings as pled in the NOCC: • 17 b. The plaintiff bribes or intimidates local government to achieve collateral goals (but the allegation of manipulation can stand);

• 17 e. The plaintiff is a criminal; • 17 f. The plaintiff is a malingerer (but allegation of complainer can stand). [ 17 ] The ordinary person might conclude that “using the CRD” is equivalent to manipulation but the suggestion of bribery or intimidation of local government is too far a stretch on the

interpretation of, or inference to be taken from, the language used in the Comments even including the particulars provided with respect to “collateral goals.” Similarly, an ordinary person would not infer from the Comments, even reading between the lines, that Mr. Milne is a criminal. A malingerer is someone who feigns illness to avoid work. There is nothing in the Comments which suggests even remotely that Mr. Milne feigns illness let alone is seeking to avoid work. [ 18 ] On first reading, I might also have concluded that paragraph 17 h. iii is incapable of being defamatory.

However, the particulars delivered by the plaintiff provide the additional facts which may support the plea. [ 19 ] I am not so persuaded with respect to the balance of the impugned pleas and any doubt must be resolved in favour of the pleading standing for trial. [ 20 ] Thus, only those portions of the amended NOCC identified in paragraph 16 above are struck. B. Particulars [ 21 ] The next question is whether the plaintiff is obliged to provide additional particulars on the pleading. Mr. McDonald’s request for particulars is broken down between a specific and a more general category.

In the specific category, the applicant concedes that particulars have been received on paragraphs 17 a., 17 b. and 17 c. of the NOCC. Those particulars relate to the allegations of “ulterior motives” and “collateral goals” as pled. The particulars also supplement the plea at 17 d., g. and h., although perhaps indirectly. In the general category, the applicant still seeks particulars “regarding which portions of the alleged defamatory comments pertain to each alleged defamatory meaning.” [ 22 ] In my view, Rule 3-7(21)(

a) does not require the plaintiff to effectively dissect the Comments and attribute certain words or statements to each of the pleas found at paragraph 17 of the NOCC. Without deciding the ultimate issue between the parties, the words contained in the Comments could be defamatory on either a literal meaning of the words or by the impression left by the statement as a whole. No additional extrinsic facts are needed to illuminate or explain the defamatory nature of the Comments. Accordingly, the relief sought in item 2 of the notice of application is dismissed. [ 23 ] In

summary, paragraphs 17 b., e. and f. of the NOCC are struck in part or on a whole as described. But for costs, the balance of the relief sought is dismissed. Given the mixed result, costs of the application will be in the cause as between the plaintiff and the defendant McDonald. “C.P. Bouck” Master C.P. Bouck