Colin way FIRST PLAINTIFF AND: JAQUELINE WAY SECOND PLAINTIFF v. WAY’S HAULAGE &, 2023 NLSC 135

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Way v. Johnson , 2023 NLSC 135 Date : October 17, 202 3 Docket : 201901G5958 between: Colin way FIRST PLAINTIFF AND: JAQUELINE WAY SECOND PLAINTIFF AND WAY’S HAULAGE & EXCAVATION LTD. THIRD PLAINTIFF and: STEVEN JOHNSON DEFENDANT Before: Chief Justice Raymond P. Whalen Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: March 17, 2023

Summary: The Application of the Defendant for leave to amend the Statement of Defence as proposed is granted with costs to be in the cause.

Appearances: Jeremy D. Loeb Counsel for the Plaintiffs Giles W. Ayers and Christopher D. Goodridge Counsel for the Defendant Authorities Cited: CASES CONSIDERED: Petten v. E.Y.E. Marine Consultants (1994), (NL SC), 120 Nfld. & P.E.I.R. 313, 373A.P.R. 313 (Nfld. S.C. (TD)); Butler v. Kloster Cruise Ltd. (1992), (NL SC), 98 Nfld. & P.E.I.R. 138, 311 A.P.R. 138(Nfld. S.C. (TD)); S.D. v. Eastern Regional Integrated Health Authority, 2021 NLSC 100; Harvey v. Memorial University ofNewfoundland, 2013 NLTD(G) 51; Kent v. Kehoe, 2000 NSCA 3; Thorne v.

College of the North Atlantic, 2019 NLSC 157; Duffett v.Canada (Attorney General), 2004 NLSCTD 58; Anderson v. Canada (Attorney General), 2015 NLTD(G) 167 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT whalen cJ.: INTRODUCTION [1] This is an Interlocutory Application (the “Application”) by the Defendant for leave to amend the Statement of Defencepursuant to Rule 15.02(1)(

c) of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D. (the “Rules”). [2] The Plaintiffs filed a Statement of Claim on September 23, 2019, alleging that the Defendant published defamatory statementsagainst them. The Defendant filed a Statement of Defence on December 6, 2019. [3] A Certificate of Readiness was circulated and signed by all parties and a trial date set.

Following this, there was a change ofcounsel for the Defendant who proposed the intended amendments to the Statement of Defence. [4] The Defendant’s position is that the proposed amendments are appropriate and necessary to provide particulars to support thedefences of truth and justification and fair comment. [5] The Plaintiffs oppose the amendments on various grounds: they will create delay, they are unnecessary, they are pleadedwithout necessary particulars, the Defendant is pleading evidence rather than material facts, or that the amendments are embarrassing.The Plaintiffs also state that, as a result of the proposed amendments, they would need to conduct additional discoveries and the presentApplication has necessitated rescheduling the trial, all of which serves as an injustice and prejudice to the Plaintiff.

ISSUE Should the Defendant be permitted to amend the Statement of Defence, in whole or in part? LAW [6] Rule 15.02 provides, in relevant part: 15.02.

(1) If an amendment does not include the addition, deletion, substitution or correction of the name of a party to a proceeding, aparty may amend a pleading filed by that party other than an order: … (

c) at any time with leave of the Court on such terms as it thinks just.

(2) The Court may allow an amendment notwithstanding the effect of the amendment will be to add or substitute a new cause of action,if the new cause of action arises out of the same or substantially the same facts as the original cause of action. [7] The parties both cite and rely on the principles as described in Petten v. E.Y.E. Marine Consultants (1994), (NL SC), 120 Nfld. & P.E.I.R. 313, 373 A.P.R. 313 (Nfld. S.C. (TD)), as outlining the considerations that affect whether a court shouldgrant leave to amend pleadings. The Defendant also cites Butler v.

Kloster Cruise Ltd. (1992), (NL SC), 98 Nfld. &P.E.I.R. 138, 311 A.P.R. 138 (Nfld. S.C. (TD)), per Russell J. which states at paragraph 12 [reformatted for style]: [12] To be allowed, an amendment (1) must not cause injustice to the other side, (2) must raise a triable issue, (3) must not be embarrassing, and (4) must be pleaded with particularity. … cause injustice [8] In determining whether permitting the amendment would result in an injustice to the opposing party, the Court is concernedonly with an injustice that cannot be adequately compensated in costs (Petten, paragraph 90).

Where the injustice or inconvenience to theopposing party can be adequately compensated with an award for costs, then it ought not to be the basis for refusing the amendment. [9] Green J. referred to the Butler test and went on in Petten, paragraphs 92-96 to write: [92] Even if the amendment can be made without injustice to the other side, it still ought not to be granted as Russell, J. in Butler v.Kloster Cruise Limited et al, supra, emphasizes, unless it appears that the proposed amendment will comply with the other rules ofpleading.

Thus, the Court, before allowing an amendment, ought to be satisfied that the presence of the amendment could not lead to asuccessful application by other parties:

(1) Under Rule 14.24, that the amendment does not disclose a cause of action, i.e., that it properly raises a triable issue.

(2) Under Rule 14.03, that the pleading contains embarrassing material or is otherwise improperly expressed.

(3) Under Rule 14.11 that the pleading does not supply proper particulars. [93] In other words, in asking for leave to amend, the party seeking amendment must be able to demonstrate that, evenassuming there is otherwise no injustice that could not be remedied in costs, the proposed amendments are defensible, as properpleadings.

If not, to allow them would in itself amount to an injustice to the other parties. [emphasis added] [94] It is necessary that the Court address these issues at the time of the application to amend, especially if the application is broughtnear to or at the trial, since to allow it without such a consideration could lead to further delays and prejudice later on.

All of the normalpre-trial procedures relating to pleadings ought to be telescoped into the one application. [95] The basic notion behind Rules 14.03, 14.11 and 14.24 is that pleadings should be so framed that they contain all material facts ina sufficiently clear, organized and concise form such that all the constituent elements of each cause of action being alleged are set out.The defendant is entitled to know the causes of action to which he or she must respond and the nature of the factual basis upon whicheach of the causes of action is alleged to be founded.

This is merely an exemplification of one of the general themes of the Rules: conductof proceedings must be characterized by disclosure so that other parties will not be taken by surprise. The defendant must not be left tospeculate or guess the particulars of the case alleged against him or her or of the remedy sought: Genge v.

F.B.D.B. (1990), (NL SC), 85 Nfld. & P.E.I.R. 275 (NF S.C., T.D.). [96] A corollary of these notions of clarity, conciseness and particularity is that, particularly in cases of multiple parties and multiplecauses of action, the material facts must be pleaded in such a way that the defendant will be able to discern what facts are alleged tosupport which causes of action in favour of which parties. Again, the defendant must not be left to speculate as to whether particularfactual allegations are relevant to one claim and not to another. … triable issue

[10] The Court applies the same test as in an application to strike a pleading brought under Rule 14.24(1)(

a) to determine whetherthe pleading discloses a reasonable cause of action, and “the threshold test is a low one” (Petten, paragraph 99). The amendment shouldnot be rejected unless it is plain and obvious that the proposed pleading discloses no reasonable claim and that is certain to fail (S.D. v.Eastern Regional Integrated Health Authority, 2021 NLSC 100, paragraph 20 and Petten, paragraph 99).

For the purposes ofdetermining whether pleadings disclose a reasonable cause of action, the Court is to assume that the claims made within them are true. embarrassing [11] The Court does not determine whether a pleading is embarrassing in accordance with whether the opposing party isembarrassed in the ordinary sense of the word, i.e., that the proposed amendment is shameful or humiliating to a party. In a legal contextwhen referring to pleadings as embarrassing we refer to a wide range of material defects.

I have previously surveyed the circumstances inwhich case law has described pleadings as embarrassing in reasons that were cited by Chaytor J. in S.D., where she wrote at paragraph40: [40] … Pleadings have been found to be embarrassing if they "fail to state a real issue between the parties in an intelligible way"[Dempsey v. Envision Credit Union, 2006 BCSC 750, at para. 86; see also Lundrigan v. Short, 2000 CarswellNfld 242, N.J. No. 239(S.C. (T.D.)), per Russell, J., at para. 4].

Other cases have found that a proposed amendment would be embarrassing where it, "bringsforward a claim that the plaintiff is not entitled to make use of", "leaves out particular facts which would give the defendant theknowledge of what the basis of the plaintiff's case is and on which the plaintiff will have to rely at trial in order to make out a case", or"does not comply with the minimum requirements of the rules of pleading" in some way [Petten , at para. 97]. In Lacroix v.

Macdonaldand Hoffe Appraisals Ltd., 2015 NLTD(G) 85, at paragraph 25, the Court stated that pleadings will be embarrassing where the opposingparty will be left to speculate as to the legal and factual basis for the claim. [12] Essentially, where an amended pleading is materially defective such that it is noncompliant with the minimum requirements ofpleadings as outlined in the Rules, then the amendment is embarrassing.

In such circumstances, the Court will deny leave to amend. pleading with particularity [13] To determine whether the proposed amendments contain the necessary particulars of the claim, the Court considers whetherthe opposing party is able to respond properly to the amended pleading, or whether they have been drafted so as to necessitate a demandfor further particulars. [14] The requirement that pleadings contain sufficient particularity is more strict an inquiry than whether the pleading simplydiscloses a reasonable cause of action.

Green J. explored the tension in Petten paragraph 100: [100] It is otherwise, however, with respect to particulars. The party seeking an amendment especially at or near the trial, ought to bescrupulous in presenting the amendment, in such a way that all reasonable particulars, as may be required by the rules of pleading orwhich may be required by a defendant acting reasonably, are provided.

It is not appropriate to allow an amendment which, though notcapable of being refused because it has no chance of succeeding is nevertheless otherwise deficient in supplying appropriate particularsin a way that the other side would be prejudiced in being able to respond properly and would likely lead that other party to applysubsequently for those particulars, thus further delaying the trial. [15] Faour J. in Harvey v. Memorial University of Newfoundland, 2013 NLTD(G) 51, described the importance of pleading withsufficient particularity as being especially significant for plaintiffs.

He noted that, where a pleading is deficit in particulars, it may notprovide the defendant with a clear allegation to which a response may be formulated (Harvey, paragraph 11). [16] Justice Faour’s comments are of particular importance to the present matter, notwithstanding that it is the Defendant who isseeking to amend. This is because of the unique role the Statement of Defence serves in a defamation action where the plaintiff’s anddefendant’s obligations in pleading are, to a degree, reversed from their requirements in other civil suits.

In most civil actions, theplaintiff carries the obligation to provide particulars within the Statement of Claim in a clear, organized and concise form, whichdiscloses all the constituent elements of each cause of action being alleged. This properly positions the defendant to respond withoutneed to seek better or further particulars of the claim. Defamation, however, is more of a hybrid action where once the defamation hasbeen made out the plaintiff is not required to prove further that the defamatory comments are untrue. Rather the onus lies on thedefendant to prove the statements are true.

A plaintiff must only establish that a statement construable as defamatory has been published.The onus then moves to the defendant to justify the statement.

The defendant must therefore provide particulars within the Statement ofDefence that the defamatory comments made are true, such that a plaintiff would not need to seek better or further particulars. [17] The process of this shifting onus in defamation cases was effectively explained by the Nova Scotia Court of Appeal in Kent v.Kehoe, 2000 NSCA 3 at paragraphs 19-20: [19] A defendant who pleads justification, is taken to be possessed of facts which support the truth of what was said (ParklandChapel Ltd. v.

Edmonton Broadcasting Co., supra). ... [20] The strict requirements of pleading are related to the unique nature of defamation actions. The position of the parties differs fromthat in most other forms of litigation. The plaintiff need only establish that the allegedly defamatory statements were published. Thematerial is then presumed to be false. Thereafter, the onus is not upon the plaintiff to prove that the statements are untrue, but upon thedefendant who pleads justification to prove that they are true (Littleton v. Hamilton (1974), (ON CA), 4 O.R. (2d)283 (Ont.

C.A.)). analysis [18] This brings us to the proposed amendment advanced by the Defendant. The Plaintiffs object to the amendments on various

grounds, the most persuasive of which are the inconvenience and increased cost to the Plaintiffs associated with the delay at this stage in the proceeding. Many of the proposed amendments however narrow and clarify the issues in dispute and provide the Plaintiffs with a degree of particularity that is indeed required of the Defendant where truth and justification for the alleged defamatory statements made is pleaded. [ 19 ] It should be noted that some of the amendments proposed are changes in style of legal writing and not material nor objectionable.

Such is the case, for example, with the intended amendment to paragraph 1, 2 and 3. Amendments Relating to the Intimidation Allegation [ 20 ] The proposed amendments to paragraphs 4 and 5 of the Statement of Defence replace a blanket acknowledgement of publication, denial of defamatory content, and a bald reliance on the defences of truth and fair comment.

The amendments are best characterized as providing additional information and consist of direct quotations between the Defendant and one of the Plaintiffs, Colin Way. [ 21 ] The Defendant argues that the whole of the proposed amendments provide the necessary and legally required particulars to narrow the issues in dispute between the parties. The Plaintiffs argue that the changes plead evidence and lack particularity. [ 22 ] In pleading the defences of fair comment and justification, a defendant commits to prove as true a set of facts which support the allegedly defamatory statements ( Kent , paragraph 13 ).

It is therefore incumbent on the Defendant to plead the necessary facts to support the defence. This rule of pleading exists for the benefit of plaintiffs who would then know the claim a defendant will make at trial. [ 23 ] In Thorne v. College of the North Atlantic , 2019 NLSC 157 , relying in part on the research of Orsborn J., in Duffett v. Canada (Attorney General) , 2004 NLSCTD 58 , O’Brien J. wrote at paragraph 44 that the difference between “material facts”, “particulars” and “evidence” is not subject to a bright line test. Particulars lie somewhere between material facts and evidence.

In the context of a defence to defamation this observation takes on greater significance. [ 24 ] The Defendant relies on purported conversations between himself and the Plaintiff, Colin Way, the content of which is material to the dispute. Therefore, it is incumbent on the Defendant to, at the bare minimum, refer to and explain the content of the conversation.

The Court is aware of the distinction between particulars and evidence within the law of pleadings but what may constitute evidence in another action may amount to particulars in a defamation claim, where I suggest there is a lower threshold of distinction between the two. [ 25 ] With respect specifically to the Plaintiffs’ claims that the paragraphs have not been pleaded with sufficient particularity, in my view, the absent pieces of information referred to in paragraphs 11 and 12 of the Plaintiffs’ Memorandum of Fact and Law do not amount to material facts necessary to particularize the issues in dispute and need not be pleaded by the Defendant.

Amendments Relating to the Threatening Allegation [ 26 ] The Plaintiffs object to the additional language of paragraphs 6 to 9 on the grounds that the defences of truth and fair comment had been pleaded previously in the Statement of Defence and therefore these paragraphs are unnecessary.

Also the Plaintiffs state that these intended paragraphs plead evidence and should not be allowed on that basis. [ 27 ] I note that the Defendant has since withdrawn the proposed amendment to the first sentence of paragraph 6. [ 28 ] With respect to the repeated defences, the new proposed amended paragraphs relate to different aspects of the issues in dispute, insofar as there is a distinction between intimidation and threats.

It is therefore reasonable to plead the defence with clarity in relation to each aspect. [ 29 ] As for the claim that the Defendant has plead evidence, I find this not to be the case for the same reasons given in paragraphs 22-24 above. Amendments Concerning the Missing Fire Extinguisher [ 30 ] The Plaintiffs object to the amended paragraphs 10 and 11 on the ground that the claim is knowingly false. This is not a ground on which to reject an amendment to a pleading. Amended pleadings are subject to the same rules as any other pleading under Rule 14.

As stated in Petten , the Court is to apply the plain and obvious test under Rule 14.24(1)(

a) when assessing a pleading for material defects. This test requires the Court to assume pleadings are true, without making any determinations as to whether this is the case. Determinations of truth are best saved for trial. Amendments Regarding the Right of Way [ 31 ] The Plaintiffs object to paragraph 12 and 13, claiming repetition and stating that, should the amendment be allowed, they may have to rediscover the Defendant. This would necessitate further time and expense.

Repetition is not a ground to deny an amendment, but the Plaintiffs are correct in that, should the amendments require further discoveries, this matter will be subject to greater delay. Delay may amount to injustice, but Butler is clear at paragraph 16 that, in order to deny a request for leave to amend pleadings, an injury should be of a nature that it cannot be compensated by costs or otherwise. Anderson v. Canada (Attorney General) , 2015 NLTD(G) 167, at paragraph 120, held that: [120] The primary determinant will always be an assessment of potential injustice to the other side ( Petten at para. 90 ).

It is the opposing party, however, who is required to offer proof of actual prejudice, unless the totality of the facts warrants an inference of prejudice being drawn ( Diamond Estate v. Robbins , 2006 NLCA 1 (N.L. C.A.), para. 80 ). [ 32 ] Outside of the delay itself, the Plaintiffs have demonstrated no prejudice that could not be compensated by costs. The amended

paragraphs 12 and 13 provide necessary material facts to support the defence of fair comment and justification, and define the triable issues in dispute with greater precision. [ 33 ] Respecting the Plaintiffs’ specific objections to paragraph 13, that it pleads evidence and that it is not sufficiently particular, I refer to my reasons in paragraphs 22-24 above. Additionally, the information outlined by the Plaintiffs as needed particulars is not necessary to define the issues in dispute.

Amendments Regarding Ex-Convicts and Organized Crime [ 34 ] The Plaintiffs generally object to the proposed amendments to paragraph 14 -27 as unnecessary again because the Defendant pleaded the defence of truth and fair comment earlier in the Statement of Defence, and are otherwise insufficiently particular or not material to the issue in dispute. [ 35 ] These proposed amendments provide further material facts supporting the Defendant’s defences on matters that the Plaintiffs have put in issue.

I do not accept the Plaintiffs’ position that these amendments are insufficient nor immaterial. [ 36 ] Respecting the Plaintiffs’ objections to paragraphs 22, 25, and 26, the Court acknowledges the inconvenience associated with having to conduct further discovery. This does not amount to an injustice that cannot be addressed with awards of costs, and the amendments should not be denied on these grounds. [ 37 ] With respect to the specific amendments proposed in paragraph 26, the Plaintiffs’ object to the addition of reputation facts.

The Court acknowledges that this paragraph represents new information not previously described in the original Statement of Defence. It does not, however, amount to a new cause of action, and an individual’s reputation is potentially relevant to a defamation hearing. Further, the additional information sought by the Plaintiffs in this instance are not particulars necessary to define issues in dispute, and more in the nature of evidence that can be sought through interrogatories or discovery.

I find these proposed amendments sufficiently particular for the purposes of the pleading. conclusion [ 38 ] The original Statement of Defence pleaded truth and justification and fair comment with no degree of particularity as is required in the circumstance of a defamation action. [ 39 ] The proposed amendments do not cause an injustice to the Plaintiffs that cannot be compensated with costs, they give rise to triable issues many of which are first raised by the Plaintiffs, they are not legally embarrassing, and they are sufficiently particular.

The proposed amendments to the Statement of Defence are allowed (noting that the first sentence in paragraph 6 of the original Statement of Defence remains unchanged, the Defendant having withdrawn the proposed amendment to strike this sentence from the Defence). Costs [ 40 ] Both parties have requested their costs on this Application. The order for costs in an application to amend pleadings is made in accordance with Rule 15.10: 15.10.

The costs, if any, occasioned by an amendment shall be borne by the party making the same, unless the Court otherwise orders . [ 41 ] On the basis of this rule, the Plaintiffs argue that they should receive costs on this Application.

They argue that the delay flowing from the amendments creates an injustice against them that should be compensated in part through an award of cost on this Application. [ 42 ] The Defendant, in contrast, argues that the amendments were unobjectionable, and are both consistent with, and required by law. [ 43 ] Maybe to be expected, this appears a case where the litigants will not cooperate with each other at any level because of the very personal nature of an allegation of defamation. The Plaintiffs presented no strong legal argument to deny the amendments.

The amendments will clarify and provide particulars of the defence. In these circumstances I find it appropriate to order costs in the cause. disposition [ 44 ] The Application of the Defendant for leave to amend the Statement of Defence as proposed is granted with costs to be in the cause. [ 45 ] As a final note, the Plaintiffs’ brief made allegations that the Defendant’s counsel inappropriately summarized without prejudice conversations in materials filed with the Court. Paragraph 4 of the Defendant’s brief states that a request was made for consent to amend, and that consent was denied.

I do not view this to be summarizing without prejudice conversations, in any event it is irrelevant to the issues in dispute in this Application. _____________________________ RAYMOND P. WHALEN Chief Justice