Sarrasin v Sokal, 2022 MBCA 67

Citation: Sarrasin v Sokal, 2022 MBCA 67 Date: 20220824 Docket: AI21-30-09676 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Christopher J. Mainella Madam Justice Janice L. leMaistre Madam Justice Karen I. Simonsen BETWEEN: ) T. P. Hardwood-Jones andANDRE LUC SARRASIN ) A. C. Fehr ) for the Appellant (Plaintiff) Appellant ) ) S.

Nelko- and - ) for the Respondent ) BASIA SOKAL ) Appeal heard: ) March 16, 2022 (Defendant) Respondent ) ) Judgment delivered: ) August 24, 2022 On appeal from 2021 MBQB 171 SIMONSEN JA [1] The motion judge struck out the plaintiff’s statement of claim alleging defamation, malicious prosecution andworkplace harassment. The plaintiff appeals the order only as it relates to defamation. Under r 25.11(1)(

d) of the MB, Court of Queen’sBench Rules, MR 553/88 (the Rules), the motion judge struck out the defamation claim for disclosing no reasonable cause of actionwithout leave to amend. [2] The plaintiff appeals on the grounds that the motion judge erred by failing to apply the correct legal test for strikingout a pleading as disclosing no reasonable cause of action; finding that the statement of claim did not disclose a reasonable cause ofaction; determining that the principle of quasi-judicial privilege, which provides that no action for defamation will lie for words spokenduring or incidental to a judicial or quasi-judicial proceeding, was applicable (see Sussman v Eales, 1987 CarswellOnt 546 (CA); andByrne v Maas, (ON SC), 2007 CarswellOnt 7412 (Sup.

Ct.

J.)); and failing to apply the correct legal test in denyingthe plaintiff leave to amend the statement of claim. [3] The plaintiff’s fundamental position is that his pleading (which is comprised of the statement of claim and theparticulars he provided subsequently) sets out the material facts necessary to support a reasonable cause of action, and that any furtherdetails, which he is limited in his ability to provide, will be explored on discovery and are properly considered evidence upon which thematerial facts are to be proved. [4] Because, for the reasons below, this appeal can be dismissed on the basis that the motion judge made no reviewableerror in concluding that the statement of claim did not disclose a reasonable cause of action, and in her determination that the plaintiffshould not be granted leave to amend, I need not deal with the issue of quasi-judicial privilege.

The Pleading [5] The statement of claim sets out the following.

[ 6 ] From about 2012 to 2019, the plaintiff and the defendant were both employed by Canada Post as letter carriers. During that time, they worked together and were active members of the Canadian Union of Postal Workers (the union). In about October 2017, the defendant made an allegation (the allegation) to the prairie regional executive committee of the union that the plaintiff had “committed inappropriate conduct against her” in or about May 2015.

On or about May 1, 2018, the defendant made a formal complaint to the union, alleging that the plaintiff had sexually harassed and/or assaulted her on three separate occasions in May 2015 (the complaint). On the basis of the complaint, the national executive board of the union initiated disciplinary proceedings and filed three charges against the plaintiff under the union’s national constitution.

A decision was rendered on September 23, 2019 by the prairie regional disciplinary committee of the union (the committee), dismissing the charges. [ 7 ] The union appealed the committee’s decision and, on or about May 15, 2020, the committee’s decision was upheld by the union appeal board. [ 8 ] The statement of claim references three specific internet social media posts on Facebook made by the defendant (the posts), the first two of which were posted on the internet on the day of or shortly after the committee’s decision and the third of which was posted on the internet approximately one month after the committee’s decision was upheld on appeal.

The plaintiff takes the position that the posts were defamatory as they falsely say that he committed the criminal offence of sexually assaulting the defendant. [ 9 ] Paragraphs 12, 13 and 15 of the statement of claim, which set out the three posts verbatim, read: 12. On or around September 23, 2019, [the defendant] posted the following on her publicly accessible Facebook page: Just this week, I was once again reminded of how little faith workers must have in their representation when my own union dismissed sexual harassment and assault charges against another member following an 18-month investigation.

Against a member who was and continues to be very active in my union. I was the only one who came forward formally, but I can certainly imagine that following testimony of several other women at the hearings, I will be the last. This person will continue to serve while I am forever unable to step foot at a union function knowing he will likely be there. 13. On or around September 26, 2019, [the defendant] posted the following on the [union’s] (Unofficial) Facebook page: I was sexually assaulted by a coworker. By someone very active in our union. I am not the only one. I know of others. So does our union. . .

My complaint was filed in April of 2018. Today, almost a year and a half of my life was wasted when the prairie region decision came down that my charge is dismissed. The sexual predator is free to attack again. He’s free to go on about his union business. . . 15.

On or around June 12, 2020, [the defendant] took to Facebook again and posted the following on her publicly accessible Facebook page: My own union didn’t believe me when I reported harassment and sexual assault so stop saying cops will protect us and that they’re needed! #FundSocialServices #DefundPolice. [ 10 ] The statement of claim also contains the following more general allegations: 17.

Over a period of years, [the defendant] has falsely and maliciously published a string of libellous, slanderous, and otherwise untrue and harmful statements regarding [the plaintiff], with the last being published on or around June 12, 2020. 21. [The defendant’s] actions have incited, and fostered, a defamatory campaign against [the plaintiff], harming [the plaintiff’s] reputation and causing irreparable damage. 22. [The defendant’s] Facebook Posts have gained national coverage, the extent of their impact unknown and immeasurable.

[11] After the statement of claim was filed, the defendant served upon the plaintiff a request for particulars (the request), inresponse to which the plaintiff provided particulars (the particulars).

The particulars state: • The allegations in paragraph 17 of the statement of claim are not restricted to the posts reproduced in paragraphs 12, 13 and 15 ofthe statement of claim, but also “include and are not limited to the [a]llegation and the [c]omplaint, as defined in the Claim.” Similarly,the allegations in paragraph 21 of the statement of claim include, but are not limited to, the allegation and the complaint; • With respect to the allegations in paragraph 22 of the statement of claim: − The Facebook posts mentioned include the posts in paragraphs 12, 13 and 15; − the Facebook posts were posted on the union’s national Facebook group, which consists of approximately 8,100 memberslocated across Canada; − the Facebook posts were also reposted by individual members, the scope of such republication being “unknown at thistime”; and − the allegation and the complaint received national coverage in the Winnipeg Free Press when, on or around March 20, 2019(and remaining accessible to date), it reported on same in its online newspaper. • With respect to the balance of the request, the plaintiff refuses to provide further particulars on the basis that the statement of claim“fully and sufficiently raises the necessary points of law and includes a concise statement of the material facts upon which the [p]laintiffrelies for [his] Claim.” The particulars further state that the request seeks provision of evidence “which is inappropriate at this stage andshall be clarified by discovery within the Action.” [12] Following receipt of the particulars, the defendant moved to strike out the statement of claim without leave to amend.

She contends that the sole purpose of the statement of claim is retaliatory and that it effectively amounts to harassment. The Motion Judge’s Decision [13] Based on the motion judge’s review of the law and her consideration of the statement of claim and the particulars, sheconcluded that the plaintiff’s claim was “fundamentally flawed” (at para 11) and, therefore, disclosed no reasonable cause of action. Sheaddressed the general allegations in paragraphs 17 and 21 of the statement of claim, and noted that none of the allegedly defamatorystatements, except the posts, were particularized in any way.

She also found that the particulars provided regarding paragraphs 17 and 21were insufficient. [14] The motion judge focussed on the posts as “[t]he only specific words pleaded as defamatory” (at para 11(a)) anddetermined that they too did not disclose a reasonable cause of action because the plaintiff “ha[d] not indicated in any fashion how . . .the posts complained of referenced him” (at para 11(c)). She recognized that it was not necessary for the plaintiff to be specificallynamed, but said that “it must be apparent that the defamatory words are aimed at that person” (at para 11(a)).

She found that “[t]here isno indication how anyone would realize that the Facebook comments were meant to reference [the plaintiff]” (at para 11). [15] The motion judge denied the plaintiff leave to amend the statement of claim as he had “already had an opportunity toprovide specific particulars which ha[d] not been done” (at para 11). The Standard of Review [16] A decision under r 25.11(1)(

d) of the Rules to strike out a pleading for disclosing no reasonable cause of action (with orwithout leave to amend) is discretionary. Therefore, absent an error in law or a palpable and overriding error of fact, such decisions areentitled to deference and this Court will not intervene unless the decision is so clearly wrong as to amount to an injustice (see PerthServices Ltd v Quinton et al, 2009 MBCA 81 at para 28; and Chrysler Canada Inc v Eastwood Chrysler Dodge Ltd et al, 2010 MBCA 75at para 24).

Analysis and Decision Defamation [17] Although this appeal concerns the adequacy of the plaintiff’s case on the face of his pleading and not whether he willsucceed at trial, a determination of a preliminary motion to strike cannot be undertaken without regard to the ultimate question to bedecided at trial. [18] In a defamation claim, a plaintiff must prove that: (

a) the impugned words were defamatory; (

b) the words in issuereferred to the plaintiff, and (

c) the words were communicated to at least one person other than the plaintiff (see Laufer v Bucklaschuk(1999), (MB CA), 181 DLR (4th) 83 (Man CA); Grant v Torstar Corp, 2009 SCC 61 at para 28; Hope v Gourlay,2015 SKCA 27 at para 18; and Weaver v Corcoran, 2017 BCCA 160 at para 70). [19] The motion judge based much of her decision on the requirement that the words in issue refer to the plaintiff. Sheunderstood the legal framework within which this requirement is to be assessed when she stated (at para 11(c)):

. . . In Raho et al. v. Craig Broadcast Systems Inc. et al., (MB QB), [1999] M.J. No. 331, Master Sharp commentedas follows: [13] The legal basis for an action in defamation is summarized in Brown, The Law of Defamation in Canada, vol 1, 2nd Ed. 1994 asfollows: In an action for defamation, it is not [sic] the plaintiff’s reputation that must be adversely affected. Therefore, in order to recover, theplaintiff must plead and prove that he or she is the one to whom the defamatory statement refers, that is, it must be shown to have beenpublished ‘of and concerning’ the plaintiff.

The defamatory publication must refer to some ascertained or ascertainable person, and thatperson must be the plaintiff. It must be understood by reasonable persons to refer to the plaintiff. The test in every case is whether theordinary sensible person to whom the words were published would understand them as referring to the plaintiff. [14] The author goes on to state, at 6.4: It is not necessary that the plaintiff be identified by his or her proper name, or even mentioned at all, if it is otherwise shown that thewords would be reasonably understood to refer to the plaintiff ...

The question in such a case is whether or not the words used are such asto lead an ordinary sensible person, or reasonable persons, who pay reasonable attention to the contents of the communication tounderstand that it was the plaintiff to whom the defendant referred. [emphasis added] [20] In the leading decision of Knupffer v London Express Newspaper Ltd, [1944] All ER at 495 (HL), a two-part test on theissue of identification was articulated by Viscount Simon, L.C., for the court, as follows (at p 497): There are two questions involved in the attempt to identify the appellant as the person defamed.

The first question is a question of law—can the article, having regard to its language, be regarded as capable of referring to the appellant? The second question is a question offact . . . does the

article in fact lead reasonable people, who know the appellant, to the conclusion that it does refer to him? . . . [21] This test has been widely adopted in Canada, including by this Court, as set out by the majority in Laufer, where itstated that only where a trial judge finds that the published statements are capable of bearing the meaning alleged by the plaintiff and arecapable of relating to the plaintiff may the judge then proceed to the second step of the process and instruct the jury as finders of fact(see para 25).

See also the reasons of Kellock J in Arnott v College of Physicians and Surgeons of Saskatchewan, (SCC), [1954] SCR 538 at 554; the dissenting opinion of Laskin J in Sykes v Fraser, (SCC), [1974] SCR 526 at 559;Grant v Cormier-Grant, 2001 CarswellOnt 3417 (CA); Butler v Southam Inc, 2001 NSCA 121 at para 21; Casses v CanadianBroadcasting Corporation, 2015 BCSC 2150 at para 333; Hutcheson v British Columbia, 2021 BCSC 2493 at paras 71; and Raymond EBrown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, 2nd ed (Toronto: Thomson Reuters,1999) (loose-leaf updated 2022, release 2), ch 6, pt VI, at

section 6:33) (online: WL Can (date accessed 18 August 2022)). [22] In Weaver, Dickson JA framed the factual part of the “of and concerning the plaintiff” test in this light (at para 84): . . . Where the plaintiff is not specifically named, the question is: would the statements lead reasonable people who know the plaintiff toconclude that they refer to the plaintiff? An immediate suspicion on a recipient’s

part is insufficient. The test is whether the recipientwould, in light of the surrounding circumstances, reasonably believe that the person referred to in the defamatory statements is theplaintiff: Butler v. Southam Inc., 2001 NSCA 121 at paras. 29-30, 39, per Cromwell J.A., as he then was; [Crookes v Newton, 2011 SCC47] at para. 39. [23] In the context of a statement made on the internet, Brown states, “Postings on the internet should be subject to the sameestablished legal and social norms governing the publication of defamatory falsehoods involving other mediums of discourse” (at section5.44). No reasonable Cause of Action [24] Under r 25.11(1)(

d) of the Rules, a court may strike out a pleading, with or without leave to amend, on the ground thatit does not disclose a reasonable cause of action.

[ 25 ] The well-established test to be applied in determining whether a statement of claim should be struck out for disclosing no reasonable cause of action is whether, assuming the facts pled are true, it is “plain and obvious” that the action cannot succeed (see Mirage Consulting Ltd et al v Astra Credit Union Ltd , 2008 MBCA 105 at para 4 ; Chrysler Canada at para 24; and Grant v Winnipeg Regional Health Authority et al , 2015 MBCA 44 at para 36 ( Grant ). [ 26 ] Generally, the bar for striking out a pleading is very high and the remedy is to be used only sparingly; a pleading is to be read generously to accommodate drafting inadequacies (see Grant at para 37 ).

However, as I will explain, “[a]n additional dimension to these principles arises in defamation cases because pleadings in such actions have traditionally been held to a higher standard than is the case with other types of actions, in terms of the precision with which the material facts must be pleaded” ( Catalyst Capital Group Inc v Veritas Investment Research Corp , 2017 ONCA 85 at para 22 ).

Pleadings in Defamation Actions [ 27 ] As with any pleading, a statement of claim in a defamation action must set out a concise statement of the material facts on which a plaintiff relies for a claim, but not the evidence by which those facts are to be proved (see r 25.06(1); Robertson v Manitoba Keewatinowi Okimakanak Inc et al , 2011 MBCA 4 at paras 20-25 ; and Peguis First Nation et al v Canada (Attorney General) et al , 2014 MBQB 98 at paras 4-6 ). [ 28 ] Material facts have been defined to mean “facts which must be proved in order to establish a cause of action” ( Clifford v Her Majesty the Queen et al , 2014 MBQB 192 at para 10 ).

See also Robertson at para 22 ; and Parker v Pfizer Canada Inc , 2011 ONSC 5169 at paras 27-28 . [ 29 ] In general, statements drawing inferences and conclusions are not properly included in pleadings. Drawing conclusions engages argument and involves the application of the law to the facts—which is a matter for a judge to assess.

Rather, it is material facts that are to be pleaded (see Hynes v Pro Dive Marine Services Ltd , 2016 NLCA 17 at paras 21-23 ). [ 30 ] Allegations of material facts cannot be incapable of proof or based on speculation or assumptions (see Kindylides v Does , 2020 BCCA 330 at para 33 ). [ 31 ] In Jacobson v Skurka , 2015 ONSC 1699 , Perell J described the distinction between material facts and evidence (at para 44): . . . The difference between pleading material facts and pleading evidence is a difference in degree and not of kind: Toronto (City) v. MFP Financial Services Ltd. , [2005] O.J.

No. 3214 . . . (Master), at para. 15. What the prohibition against pleading evidence is designed to do is to restrain the pleading of facts that are subordinate and that merely tend toward proving the truth of the material facts. . .. [ 32 ] Pleadings are particularly important in defamation actions. The importance of pleadings stems from the serious nature of defamation allegations and the significance of context in assessing them in an appropriate, informed manner.

As well, it is justified by the critical importance of a defendant knowing the case to be met and the need to avoid unwanted “fishing expeditions”. [ 33 ] Traditionally, the requirements for a statement of claim in a defamation case have been exacting and have required the allegedly defamatory statements to be pleaded verbatim, as well as the names of all persons to whom the words had been published (see Catalyst at para 24). [ 34 ] More recently, many courts have permitted greater flexibility when assessing defamation pleadings, especially when a plaintiff may be unable to provide full particulars (see James D Hunter Enterprises Ltd et al v Hebert et al , 2005 MBQB 232 at para 5 ; Hope ; Catalyst ; and Weaver ).

Nonetheless, a prima facie case of defamation must be pled (see Catalyst at paras 25-26; and Weaver at para 65 ) and a pleading must set out with some particularity the material facts necessary to support a cause of action. A plaintiff must set out a “coherent body of fact” of which they have knowledge that gives rise to the basis for a claim ( Catalyst at para 50).

It remains that pleadings in defamation actions attract “a more critical evaluation than pleadings involving other causes of action” ( ibid at para 24) and that “the need for as much precision as possible and for enhanced judicial scrutiny continues” ( ibid at para 25; see also Weaver at para 65 ). The material facts should enable a defendant to understand the nature of the claim, and be able to prepare their defence. [ 35 ] In my view, there is much to commend this somewhat more relaxed approach and I agree that there are limitations to the strictness required in defamation pleadings.

Nonetheless, a prima facie case must be set out. Pleadings cannot be in the form of vague or general conclusions of law or fact. The material facts alleged should be sufficiently precise, clear, certain and specific that a defendant can be apprised of the nature of the claim.

Pleading “Of and Concerning the Plaintiff” [ 36 ] In order to set out a prima facie case in defamation, a statement of claim must include an allegation, supported by material facts, that the words complained of were “of and concerning the plaintiff”. [ 37 ] Brown addresses this requirement in some detail (at section19:17): Sufficient facts must be pleaded to identify the person defamed. . . . The plaintiff must plead and prove that the words were published “of and concerning the plaintiff”, or what was commonly once known as the “colloquium”. “ A statement of Claim must contain an

averment that the words were published of and concerning the plaintiff.” . . . The pleading is defective without such an allegation, and the defect is not cured by the verdict . If the plaintiff fails to insert such a plea, or if it appears from the face of the pleading that the defamatory comments were not published of and concerning the plaintiff, the pleading will fail to state a cause of action. The plaintiff must plead and prove not only that the words referred to him but that they referred to him in a defamatory sense.

Where the plaintiff is not named in the publication, it must be alleged that he or she was the one to whom the words referred. “It is not sufficient to simply allege that the words were published of and concerning the plaintiff”, but he or she must include all those facts and matters necessary to support the colloquium, and which show that the persons to whom the words were spoken understood them to refer to the plaintiff. The requirement was not satisfied by pleading a mere conclusion .

The plaintiff must allege sufficient facts from which it can reasonably be inferred that the plaintiff was the person to whom the defendant referred.

Therefore, he or she must plead that the publication was made to a person or class of persons who had knowledge of the facts asserted in the claim which enabled them to identify the plaintiff as the person to whom the defamatory remarks referred . . . . [emphasis added] [ 38 ] On a motion to strike out a statement of claim on the basis that the allegedly defamatory statements were not “of and concerning the plaintiff”, the question is whether, on the facts alleged in the pleading, the statements are clearly incapable of supporting a reasonable conclusion, by persons acquainted with the plaintiff, that the statements referred to the plaintiff (see Butler at para 33 ).

This is an objective standard.

In other words, a statement of claim in defamation should only be struck out for disclosing no reasonable cause of action on the issue of identification where it is plain and obvious that the statements are incapable, in the light of the pleaded facts, of being found by a reasonable reader to be defamatory of the plaintiff. [ 39 ] Whether allegedly defamatory words in a pleading are reasonably capable of being “of and concerning the plaintiff” is a question of law, and, thus, reviewable on a standard of correctness (see Butler at paras 21, 24-25, 48 ; see also Guergis v Novak , 2013 ONCA 449 at para 40 ; and Frank v Legate , 2015 ONCA 631 at para 35 ).

Application to This Case [ 40 ] On the first ground of appeal, the plaintiff contends that the motion judge failed to apply the correct legal test for striking out a statement of claim as disclosing no reasonable cause of action because she did not instruct herself that the allegations in the pleading must be assumed to be true and that it must be “plain and obvious” that the pleading discloses no reasonable cause of action. This ground of appeal can be readily dismissed as I am satisfied, taking a functional approach to the record and the motion judge’s reasons, that she did apply the correct test.

She conducted her analysis by reference to the allegations in the statement of claim and the particulars, as worded. Although, in her written reasons for decision, she did not use the words “plain and obvious”, she did, as I have stated, describe the claim as “fundamentally flawed” (at para 11). As well, she quoted cases which referred to the “plain and obvious” test.

Moreover, this test is well-settled law that the motion judge, as an experienced jurist, was presumed to know (see Hug v Bliss , 1998 CarswellBC 2180 at paras 12 , 14). [ 41 ] On the second ground of appeal, the plaintiff asserts that the motion judge erred in concluding that the statement of claim did not disclose a reasonable cause of action.

The plaintiff argues that the motion judge’s comments that the claim was not fully “particularized” (at para 11) and could not be sustained “as worded” ( ibid ) suggest that she applied too high a standard; the plaintiff contends that “objection to imperfect wording of a Claim does not justify striking”. The plaintiff further says that, with respect to those paragraphs of the statement of claim where the allegedly defamatory statements were set out verbatim, the motion judge erred by concluding there was no indication in the pleading that the words were aimed at the plaintiff.

As already noted, the plaintiff’s position is that the necessary material facts have been pled and that the details will be fleshed out by the evidence. [ 42 ] According to the defendant, the necessary material facts have not been pled as several paragraphs in the statement of claim are no more than vague assertions, and there is nothing in the pleading connecting the more specific allegedly defamatory statements to the plaintiff.

Indeed, the defendant says that the posts, on their face, appear to be aimed as the union and her frustrations with the union’s hearing process and decisions. [ 43 ] Although some of the motion judge’s language may suggest that she applied the traditional, stricter test which required allegedly defamatory words to be pleaded verbatim, it is apparent that the conclusion she reached with respect to paragraphs 17 and 21 of the statement of claim accords with the current, somewhat more liberal approach (see Hunter ; Hope ; Catalyst ; and Weaver ).

Those paragraphs are missing critical content and are simply conclusory. They contain nothing about the substance of the words complained of, nor are there any alleged facts related to the time, place or manner of publication of any of the allegedly defamatory statements other than the posts, the allegation and the complaint. With respect to paragraph 17, t he motion judge observed that none of the allegedly defamatory statements were “particularized in any fashion” (at para 8) and, with respect to paragraph 21, she again noted that nothing was particularized.

She also concluded that the particulars did not assist in providing sufficient specifics, and that, although the particulars referred to the allegation and the complaint, the statement of claim and the particulars did not set out what was said in those documents.

In my view, the motion judge’s comments about paragraphs 17 and 21 make sense when considered in the context of the very imprecise allegations in those paragraphs and the importance of clarity in pleadings in a defamation action. [ 44 ] While the motion judge added that there was no indication as to “whom nor through what media” (at para 9) the statements mentioned in paragraphs 17 and 21 were published, the particulars did, in fact, state that the allegation and complaint “received national coverage” when the Winnipeg Free Press “reported on same”—but, again, there is nothing in the pleading about the specific substance of the allegedly defamatory statements that were reported.

[ 45 ] As for the posts identified in paragraphs 12, 13 and 15 of the statement of claim, the central question is whether the motion judge erred by concluding that the allegedly defamatory words were not reasonably capable of being “of and concerning the plaintiff”. [ 46 ] Although not a strict requirement, the plaintiff is not named or specifically identified in any of the posts.

Furthermore, the general assertions in paragraphs 17 and 21 of the statement of claim that allegedly defamatory statements were made “regarding” or “against” the plaintiff are not sufficient. [ 47 ] Material facts that would, by implication, make the impugned statements “of and concerning the plaintiff” must be pleaded (see Brown at

section 19:17; and PMC York Properties v Siudak , 2021 ONSC 1134 at para 6 ; see also Hope at paras 37-43 ). However, in this case, there is no indication in the posts as to the plaintiff’s location, his job title, or his position with the union. Despite the proximity in time of the posts to the union decisions regarding the complaint, there is no allegation in the pleading that the proceedings on the complaint were public. Nor is there any allegation that the decisions concerning the complaint were published in any way so as to allow a reasonable reader of the posts to connect them to the plaintiff.

There is also no suggestion in the pleading that any particular individuals who read the posts were aware of the matters at issue between the parties.

While counsel for the plaintiff says that there may have been workplace discussions that would have allowed some people to reasonably identify the plaintiff as the subject of the posts, there is also no reference to this in the pleading. [ 48 ] Regarding the statement in the particulars that the union’s national Facebook group consists of approximately 8,100 members and that the Facebook posts identified in paragraph 22 of the statement of claim were also reposted by members of that group, there is no factual basis alleged to indicate that any of the readers of those posts were armed with information from which they could reasonably conclude that the posts were “of and concerning the plaintiff”. [ 49 ] Although the plaintiff maintains that these are all matters of evidence, to be explored on discovery and at trial, it is clear that a statement of claim in defamation must contain material facts supporting the assertion that the defamatory words related to the plaintiff, in order to put forth a prima facie case.

Here, the plaintiff has not pleaded those facts that would, by implication, objectively indicate that the posts were about the plaintiff. The motion judge was correct in concluding that the impugned statements were not capable of being “of and concerning the plaintiff”.

She did not err in determining, on the facts alleged in the pleading, that the alleged defamatory statements in the posts were clearly incapable of supporting a reasonable conclusion, by a person acquainted with the plaintiff, that the statements referred to the plaintiff. [ 50 ] Therefore, in striking out the statement of claim for disclosing no reasonable cause of action, the motion judge made no reviewable error of law or fact, nor am I persuaded that her decision is clearly wrong.

Denial of Leave to Amend [ 51 ] The plaintiff also argues that, in denying leave to amend the statement of claim, the motion judge failed to apply what he says are the guiding principles of fairness and prejudice (see Peguis at para 49; and Rebillard v Manitoba (AG) et al , 2014 MBQB 181 at para 45 ). However, the motion judge’s discretionary decision reflects those principles. She relied on the fact that the plaintiff had already been given an opportunity to clarify the statement of claim and had not done so; in the particulars, he specifically refused to provide more details.

In these circumstances, the motion judge was entitled to conclude that allowing an amended claim would result in injustice to the defendant and would not be in keeping with the principle of proportionality (see rr 1.04(1) – 1.04(1.1)). Again, there is no basis for appellate intervention. [ 52 ] For the foregoing reasons, I would dismiss the appeal with costs. JA I agree: JA I agree: JA