Martin v. MacIntosh, 2022 NSSC 360

Supreme Court of Nova Scotia Citation: Martin v. MacIntosh , 2022 NSSC 360 Date: 20221130 Docket: PtH. No. 495062 Registry: Port Hawkesbury Between: Robert Michael Martin, Dale Robert Sutherland, Weldon MacIntosh-Reynolds, Alvin MacInnis, Barry Alexander Sutherland, and Jeffrey Allan Hadley Plaintiffs v. Ernest Fenwick MacIntosh Defendant Library Heading Judge: The Honourable Justice Patrick J. Murray Heard: May 25, 2022 in Port Hawkesbury, Nova Scotia Decision: November 30, 2022 Subject: Plaintiffs filed a civil claim alleging sexual battery by Defendant.

Motion by Defendant to amend pleadings to include a counterclaim for defamation, pursuant to Rule 83.11 Facts: [ 1 ] Plaintiffs’ opposing motion on basis there is: 1) no justiciable issue; 2) the proposed amendment of the Defendant expired under the Limitation of Actions Act ; and 3) the amendment is being brought in bad faith. [ 2 ] Issue: [ 3 ] Should motion to amend be granted? Result: [ 4 ] Motion dismissed. Doctrine of absolute privilege applicable, as well as expiry of limitation period.

Section 22 (

a) of Limitation of Actions Act considered, and related arguments, ie. amendment unparticularized. [ 5 ]

Caselaw: [6] R v. MacIntosh, 2011 NSCA 111, affirmed at 2013 SCC 23; Southwest ConstructionManagement Ltd v. EllisDon Corp, 2020 NSSC 99; Fowler v. Croteau, 2012 NBQB 239; BeasyNicoll Engineering Limited v. GEM Health Care Group Limited, 2022 NSCA 44; Halifax (RegionalMunicipality Pension Committee) v. State Street Global Advisors Ltd, 2012 NSSC 64, [2012] NSJ No75; R v. MacIntosh, 2010 NSSC 300; Point Tupper Terminals Company v. Global PetroleumCorporation, 1998 NSCA 174; Drysdale v. Bev & Lynn Trucking Ltd, 2016 NSSC 109; AnnapolisGroup Inc v. Halifax (Regional Municipality), 2021 NSSC 344. Gillard v.

Nova Scotia (RegistrarGeneral), 2021 NSSC 204; EllisDon Corporation v. Southwest Construction, SWP Maple OperatingPartnership and Southwest Properties Limited, 2021 NSCA 20; Hyrnick v. Mauldin, 2014 SCC 7;Garth v. Halifax (Regional Municipality), 2006 NSCA 89; Martini v. Wrathall (1999), 1999 NSCA105 , 180 NSR (2d) 38, [1999] NSJ No 306; Horn Abbot Ltd v. Reeves, 2000 NSCA 88,[2000] NSJ No 225; Rajkhowa v. Watson (1998), (NS SC), 167 NSR (2d) 108,[1998] NSJ No 85; Keung v. Sheehan, 2001 NSSC 59; Tewari v. Sekhorn, 2022 ONSC 417; Salaselv. Cuthbertson, 2015 ONCA 115; South Centre Merchants Assn v.

Halifax (City) (1994), (NS SC), 135 NSR (2d) 373, [1994] NSJ No 439 (SC); Global Petroleum Corp v. PointTupper Terminals Co (1998), 170 NSR (2d) 367, [1998] NSJ No 408 (CA); Braithwaite v. NovaScotia Public Service Long Term Disability Plan Trust Fund (1999), 1999 NSCA 77 , 176NSR (2d) 173, [1999] NSJ No 160 (CA); Barton v. Nova Scotia (Attorney General), 2015 NSCA 34,[2015] NSJ No 148; Rizvi v. Syed, 2016 ABQB 400; Liboiron v. Majola, 2007 ABCA 18; M(MJ) v.M(DJ), 2000 SKCA 53; Big Pond Communications 2000 Inc v. Kennedy, (2004), (ON SC), 236 DLR (4th) 727, [2004] OJ No 820 (Ont Sup Ct J); Automattic, Inc v.

TroutPoint Lodge, Ltd, 2017 NSCA 52; Barry v. Halifax (Regional Municipality), 2018 NSCA 79, [2018]NSJ No 398; United Pentecostal Church of Nova Scotia v. Nova Scotia Power Inc, 2020 NSSC 286;Dyack v. Lincoln, 2017 NSSC 187; Krishna v. Gauthier, 2018 NSSC 305; Garian Construction Ltdv. Dixon Marine Group 2000 Inc, 2019 NSSC 357; Beasy Nicoll Engineering Ltd v. GEM HealthCare Group Ltd, 2022 NSCA 44; Fowler v. Croteau, 2012 NBQB 239; Southwest ConstructionManagement Ltd v. EllisDon Corp, 2020 NSSC 99, affirmed at 2021 NSCA 20; E WeymanConstruction

(1989) Ltd v. Tutty, 2019 NSSC 210, [2019] NSJ No 280. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THEDECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: Martin v. MacIntosh, 2022 NSSC 360 Date: 20221130 Docket: PtH. No. 495062 Registry: Port Hawkesbury Between: Robert Michael Martin, Dale Robert Sutherland, Weldon MacIntosh-Reynolds, Alvin MacInnis, Barry Alexander Sutherland, and JeffreyAllan Hadley Plaintiffs v. Ernest Fenwick MacIntosh Defendant Judge: The Honourable Justice Patrick J. MurrayMotion Heard: May 25, 2022

Submissions: June 6, 2022 W ritten Decision: November 30, 2022 Counsel: Daniel Naymark and Dillon Collett for the Plaintiffs Michelle Kelly, KC and Lisa Delaney for the Defendant By the Court: Introduction [ 7 ] The Defendant seeks an Order to amend his Defence to include counterclaim. The Plaintiffs filed a Statement of Claim on December 23, 2019. In their pleadings they allege the Defendant committed sexual battery at various times and places and in circumstances involving Mr.

MacIntosh and each of the six Plaintiffs. [ 8 ] The Defendant was charged criminally and underwent two trials in 2010 where certain convictions were entered against him. He was acquitted on other charges. The decisions were appealed to the Nova Scotia Court of Appeal where the convictions were overturned. The Crown appealed to the Supreme Court of Canada the appeal was dismissed. [ 9 ] In 2015, the former Limitation of Actions Act , RSNS 1989, c. 258 , was replaced by a new Limitations of Actions Act , SNS 2014, c. 35 , to remove the limitation period for sexual battery.

The events are alleged to have occurred 40 - 50 years previous. The parties have advanced arguments on this motion based on the findings of the previous criminal proceedings. Background [ 10 ] The Defendant was convicted in two trials in July and December 2010 of 14 counts relating to allegations of sexual abuse of nine Complainants in the 1970s and 1980s. The convictions were quashed by the Court of Appeal: R v.

MacIntosh , 2011 NSCA 111 , affirmed at 2013 SCC 23 . [ 11 ] The Plaintiffs commenced a civil action alleging sexual battery, false imprisonment, and intentional infliction of mental injury, based on the same allegations in December 2019. Mr. MacIntosh filed a Defence in February 2020. [ 12 ] In January 2022 Mr. MacIntosh brought a motion to amend his defence to add a counterclaim for defamation. The Plaintiffs oppose the motion. These reasons will address the arguments advanced on the motion. [ 13 ] This motion is limited to whether the Defendant’s request to amend his pleadings should be granted.

Both parties have presented numerous arguments to the Court as to whether the motion to permit a counterclaim should be granted. Some bear more directly than others on the legal test for this Court to permit such an amendment. [ 14 ] The Nova Scotia Civil Procedure Rules provide for a Defendant to make a counterclaim in response to “any claim” the Defendant has against the Plaintiff. The Defendant has 10 days to do so. [ 15 ] A counterclaim is different from initiating a Statement of Claim. It is a responsive pleading that can be made only against the Plaintiff. [ 16 ] In this case, Mr.

MacIntosh argues in his brief that “by the time the Plaintiffs had filed their statement of claim, their public statements about Mr. MacIntosh were well beyond the applicable limitation period.” [ 17 ] The Plaintiffs submit that Mr. MacIntosh’s claims are well past the limitation period. Further, and in any event, the Plaintiffs’ claims were not subject to expiry given new Limitation of Actions Act that came into force in 2015, and specifically

section 11 (a). [ 18 ] Under the traditional legal test for amendment to pleadings, there are two components that the Court has to consider: 1) would granting of the amendment result in prejudice to the opposing party that could not be compensated in costs; and 2) was the party seeking the amendment acting in bad faith. [ 19 ] The Plaintiffs have asserted that Mr. MacIntosh is acting in bad faith, alleging that he has been selective in his use of legal counsel, while otherwise maintaining he is a self represented litigant.

The Plaintiffs say the Defendant’s claims are baseless and strongly disagree that their claims are “abusive”, as he alleges. [ 20 ] The Defendant filed his Defence on February 26, 2020, within two months of the action being started. In his affidavit filed February 16, 2022, the Defendant states he is a self represented litigant and was “unaware” of his right to file a counterclaim. [ 21 ] In his motion Mr. MacIntosh seeks the Court’s permission to amend his Defence by filing a counterclaim for defamation citing: 1) statements and documents made during the investigation of R v.

MacIntosh ; and 2) statements made in the Statement of Claim itself. [ 22 ] The Defendant submits that there are two categories of commentary (two “buckets”) of information that support his counterclaim. Essentially, one category relates to defamatory and unproven statements by the Plaintiffs during the investigation and trial

in MacIntosh . The second category, for which leave to amend is sought, relates to comments and allegations made by Plaintiffs “outside” of the legal process including some made to politicians and the media. The Defendant’s Position [ 23 ] Mr. MacIntosh submits the decision of Beveridge, J.A., is instructive in assessing whether there is a justiciable issue for the purpose of this motion. [ 24 ] The Defence of absolute privilege is something that is pleaded in response to the counterclaim once it is filed. In short, he says, it is premature for the Plaintiffs’ to be arguing that absolute privilege applies. This is not a motion to strike a pleading or a motion for

summary judgment. It will be for the trial judge to determine the validity of the Plaintiffs argument. [ 25 ] With respect to the limitations issue, the Defendant submits first, that the allegations in the counterclaim responding to the statement of claim are not time barred by the Limitation of Actions Act . [ 26 ] Secondly, with respect to the Defendant’s proposed counterclaim, the Act does contemplate circumstances when claims may be initiated after the expiry of the applicable limitation period. [ 27 ] The Defendant urges the Court to adopt the

interpretation of “capacity” in

Section 22 of the Act as expressed in cases such as Southwest Construction Management Ltd v. EllisDon Corp , 2020 NSSC 99 , decided by Rosinski, J. of this Court, and in Fowler v. Croteau , 2012 NBQB 239 . [ 28 ] Mr. MacIntosh’s counsel, while acknowledging the recent decision in Beasy Nicoll Engineering Limited v. GEM Health Care Group Limited , 2022 NSCA 44 , says in these circumstances the same parties are involved. Their status as individual parties does not change with the proposed amendment.

The term “capacity” in s. 22 means legal capacity, they submit. [ 29 ] In Beasy , the Court of Appeal made clear that the role of a party in the litigation is critical in determining whether an expired claim should be permitted to be filed under s. 22. In short, the Court must consider the capacity in which a party sues or is sued. In the circumstances, under s. 22(

b) and (c), the capacity may change but in such instances there must have been adequate notice (as prescribed by the Act ) given to the opposing party, before the expiry of the relevant limitation period. [ 30 ] In response, the Defendant denies that the proposed amendment is tactical and brought in bad faith. He says he is attempting to preserve what is left of his reputation.

Further, he submits the wording of the claims in the Statement of Claim are designed to cause him embarrassment. [ 31 ] With respect to civil claims filed by the Plaintiffs, the Defendant submits he was exonerated of all charges in the criminal proceedings, which concluded with the Supreme Court of Canada denying leave to appeal the decision of the Nova Scotia Court of Appeal. [ 32 ] The Defendant submits as opposed to him delaying, the Plaintiffs brought this civil suit four (4) years after they were permitted to do so in 2015.

The Plaintiffs’ Position [ 33 ] The Plaintiffs submit three arguments in support of their position that the motion should be dismissed. [ 34 ] Firstly, the Statement of Claim allegations are protected by the doctrine of absolute privilege. Even if these allegations were abusive, which is strenuously denied, the law insulates and protects such allegations. Parties involved in litigation, must be free, along with witnesses to provide evidence. Public interest demands that this evidence be given, under oath, and without fear of reprisal, same for a party or witness who perjures themselves.

The law in this area is well settled, say the Plaintiffs. Consequently, there is no justiciable issue. [ 35 ] Secondly, the Plaintiffs submit the impugned statements are statute barred and not “saved” under s. 22 of the Limitation of Actions Act . That provision allows amendments or claims to be advanced following the expiry of the relevant limitation period in certain circumstances. [ 36 ] The Plaintiffs’ say none of those circumstances exist in this motion. Therefore, the claims the Defendant wishes to advance against the Plaintiffs for defamation are out of time. [ 37 ] Thirdly, the Plaintiffs argue Mr.

MacIntosh’s claim is both strategic and tactical. The Plaintiffs’ assert the Defendant has “stalled” the litigation and the filing of the proposed counterclaim is a further example of this tactic along with others, such as delayed disclosure. The Test on a Motion to Amend [ 38 ] It is useful to consider the traditional legal test based on the jurisprudence in this Province with respect to this pleadings motion. [ 39 ] The Defendant moves to amend his defence to add a counterclaim for defamation.

Amendments to documents filed with the Court, including statements of defence, are governed by Civil Procedure Rule 83.02. The conditions for an amendment are in Rule 83.02(2):

(2) The amendment must be made no later than ten days after the day when all parties claimed against have filed a notice of defence or a demand of notice, unless the other parties agree or a judge permits otherwise.

[40] If the Defendant is out of time and the Plaintiffs do not agree to the amendment it may only be allowed by judicialpermission. The governing principles have been described in a line of cases. In Halifax (Regional Municipality Pension Committee) v.State Street Global Advisors Ltd, 2012 NSSC 64, [2012] NSJ No 75, Duncan, J (as he then was) said: 13 The approach to the exercise of the discretion provided by Rule 83.02(2) was described in Garth v.

Halifax (Regional Municipality)2006 NSCA 89, per Cromwell J.A.: [30] The discretion to amend must, of course, be exercised judicially in order to do justice between the parties. Generally, amendmentsshould be granted if they do not occasion prejudice which cannot be compensated in costs ... 14 Further direction is found in Global Petroleum Corp. v.

Point Tupper Terminals Co. (1998), 1998 NSCA 174 , 170 N.S.R.(2d) 367 (C.A.) where Bateman J.A. wrote, at para. 15: The law regarding amendment of pleadings is not complicated: leave to amend will be granted unless the opponent to the applicationdemonstrates that the applicant is acting in bad faith or that, should the amendment be allowed, the other party will suffer prejudicewhich cannot be compensated in costs. 15 The burden to demonstrate either serious prejudice that cannot be compensated with costs, or bad faith, rests upon the plaintiff,subject to rebuttal.

The evidentiary burden is high. e.g., M5Marketing Communications Inv. v. Ross 2011 NSSC 32, at para. 31. [41] The Plaintiffs argue that an amendment will not be permitted when it is “plain and obvious” that it discloses no reasonablecause of action, as with an application for

summary judgment on pleadings pursuant to Rule 13.03. They say the issues raised are notjusticiable. Proposed Counterclaim [42] In the proposed amendment Mr. MacIntosh claims that the Plaintiffs/Defendants by counterclaim “made several falsestatements, both during the investigation and eventual trial of MacIntosh”. These claims are contained in paragraphs 32 – 56 andinclude a breakdown of how each of the Plaintiffs allegedly defamed him by making these false allegations. [43] For example, with respect to Mr.

Sutherland, the Defendant’s claim states that he “told investigators and others” that theDefendant sexually assaulted him more than 100 times when he was a child. (Paragraph 35). [44] Similarly, with respect to Mr. Martin, the Defendant claims he “told investigators and all of the above people andorganizations”, that he was a child when he worked for Mr. MacIntosh and shortly after that Mr. MacIntosh “took him on a boat trip toGuysborough, and sexually assaulted him during that trip”. (Paragraph 41(1)). [45] It should be noted that in each case Mr. MacIntosh pleads a factual basis for stating these are false.

For example, in relation toBarry Sutherland (at paragraphs 42 – 43), the Defendant states he was “produced in Court and all charges related to his complaints weredismissed by the trial judge”. (Referencing R v.

MacIntosh, 2010 NSSC 300, at paragraph 85). [46] I am not going to detail the claims made against each Plaintiff by the Defendant. [47] In addition to police investigators, and eventual trial, the Defendant alleges that false statements were made (and repeated) tomembers of the Provincial Legislature and to members of the Canadian Parliament, and multiple media outlets. (See paragraphs 37, 38,41(i), 43 (1)(i)). [48] The allegations in the counterclaim involving Jeff Hadley, Alvin MacInnis and Weldon MacIntosh Reynolds refer to falsestatements made during the investigation and trial. (Paragraphs 47, 50, 52 and 32). [49] During the hearing of the motion, Defendant’s counsel, Ms.

Kelly, submitted that Plaintiffs’ counsel, Mr.

Naymark, had“rightfully pointed out” that paragraph 32 of the Defendant’s pleading included “not just during the investigation, but also during trial”. [50] Accordingly, the Defendant’s counsel suggested the Court remove the reference to “and eventual trial” in the proposedamendment, stating her submissions did “not relate to evidence given on the stand”. [51] Thus, as the Court proceeds to address whether the Plaintiffs have discharged their burden of proving the amendment shouldnot be granted, the two categories include statements made during the police investigation and in the statement of claim. [52] The Defendant in the proposed counterclaim stated: 28.

In a lengthy and thorough decision, the highest Court in Nova Scotia unanimously quashed the convictions entered at trial. 29. The Court of Appeal also noted that Mr. MacIntosh had suffered from “extensive and ongoing wildly inaccurate reporting about theallegations”. [53] The Plaintiffs submit they are rightfully entitled to make the claims they have in the Statement of Claim filed in 2019, as wellas during the investigation and trial. They allege in paragraph 2 that Mr. MacIntosh was “criminally convicted of abusing several youngboys”. [54] In this motion the Plaintiffs submit that their claims against Mr.

MacIntosh are protected by the doctrine of absolute privilegeand are immune from the claims the Defendant wishes to make against them. [55] Permeating through the Plaintiffs response to this motion is the defence of absolute privilege. The Plaintiffs say there is nojusticiable issue to be decided.

[56] Further, the Plaintiffs submit that any remaining claims not dismissed by their claim of privilege have expired and are “statutebarred” by the Limitation of Actions Act. Justiciable Issue [57] The Plaintiff submits an amendment should not be permitted that will result in no reasonable cause of action or justiciableissue. [58] The term “justiciable issue” has been considered in Nova Scotia jurisprudence to mean a “real and substantial controversywhich is appropriate for determination”. [59] Mr.

MacIntosh submits his counterclaim is justiciable in that it raises a real and substantial controversy for this Court toadjudicate upon. In his affidavit he states the allegations made by the Plaintiffs in their statement of claim are intended to embarrass andharm his reputation. (Paragraph 10). In short, that his counterclaim in defamation is justiciable. [60] Relying upon Point Tupper Terminals Company v.

Global Petroleum Corporation, 1998 NSCA 174, the Defendant submitsthat now is not the time to decide whether there is a justiciable issue, [61] In Global the Court of Appeal was considering a request by Global to amend its defence to counterclaim.

The Court upheldthe trial decision in which Justice Hamilton (as she then was) ruled she was “not prepared to consider the merits beyond that which is leftto the trial judge who will have the evidence and the law before him or her”. [62] Having earlier discussed the traditional test for amendment, I turn now to discuss several recent cases in Nova Scotia whichset out the requirement for a justiciable issue to be considered as part of the test for a motion to amend. [63] In Drysdale v. Bev & Lynn Trucking Ltd, 2016 NSSC 109, the plaintiff obtained

summary judgment on the evidence on theissue of liability in a motor vehicle accident case. She also sought to amend the Notice of Action to add a claim for aggravated damagesarising from the defendant’s refusal to admit liability.

Chipman J. held that the proposed amendment did not raise a justiciable issue, inthat it was plain and obvious that it was bound to fail: [38] A proposed amendment to a statement of claim must raise a justiciable or triable issue, in the sense that the amendment shouldnot be allowed if it is “plain and obvious” that it discloses no reasonable claim or cause of action: see Roynat Inc. v. A&A Auctioneersand Appraisers Ltd., 2003 NSSC 114, at paras. 7-9. [64] Justice Chipman again identified a “justiciable issue” as a prerequisite for a judicially permitted amendment in AnnapolisGroup Inc v.

Halifax (Regional Municipality), 2021 NSSC 344. Similarly, in Gillard v. Nova Scotia (Registrar General), 2021 NSSC204, Coady J dismissed a motion to amend pleadings on the ground that the requested amendments “will certainly fail and are notsustainable…” More recently, and more definitively, Wood CJNS said, in EllisDon Corporation v. Southwest Construction, SWPMaple Operating Partnership and Southwest Properties Limited, 2021 NSCA 20: [26] A judge should not permit an amendment to add a claim which discloses no cause of action or where the action is obviouslyunsustainable.

This is the same standard applied on a motion for

summary judgment on pleadings under Rule 13.03. [65] In these decisions it was held there must be authority to permit the kind of amendment that is being sought. There must be abasis in law for what the Applicant is seeking. Otherwise, to allow the proposed amendment would offend the concept ofproportionality as expressed in Hyrnick v. Mauldin, 2014 SCC 7, and would amount to a waste of trial time. (Paragraph 45 of Drysdale) [66] In this case, the Plaintiffs advocate that Mr. MacIntosh’s claim in defamation amounts to exactly this.

It is clear, they say,that the allegations in the Statement of Claim are protected under the “cloak of absolute privilege”. Once again, the Plaintiffs submit thatwhat is not protected by absolute privilege is “out of time” and statute barred. [67] The Plaintiffs submit that this Court should draw an inference that all of the proposed amendments have been brought in bathfaith.

This is a stand-alone argument, and they believe unnecessary because of the strength of their argument on absolute privilege andthe limitations defence. [68] Before turning to address absolute privilege, I pause to mention that while the Court should readily dispose of a cause ofaction that is obviously unsustainable and doomed to fail, caution must still be exercised when a Court is deciding to oust a claim on apreliminary matter such as a motion to amend. [69] In Garth v.

Halifax (Regional Municipality), 2006 NSCA 89, Justice Cromwell alluded to the approach taken when underthe pre-2009 Rule (15) on the Court’s discretion to amend: [30] The discretion to amend must, of course, be exercised judicially in order to do justice between the parties. Generally,amendments should be granted if they do not occasion prejudice which cannot be compensated in costs: Baumhour v. Williams (1977), (NS CA), 22 N.S.R. (2d) 564 (S.C.A.D.); Stacey v. Consolidated Foods, [1986] N.S.J. No. 356 (S.C.A.D.); White v.Pellerine, [1988] N.S.J. No. 191 (S.C.A.D.); P.A. Wournell Contracting Ltd. v.

Allen (1980), (NS CA), 37 N.S.R.(2d) 125 (S.C.A.D.). However, the expiry of the limitation period is a strong signal of the risk of injustice to the defendant if theamendment is granted.

The court must consider all relevant matters which may include, but are not limited to, the length of the delay inasserting the claim and the reasons for it, how closely the new claim is connected to the claim originally pleaded and the nature andextent of any prejudice resulting from the claim being asserted now as opposed to before the limitation period expired. [70] In that paragraph Justice Cromwell went on to discuss the use of that discretion when the Court is faced with an amendmentwhich is beyond the limitation period.

[71] The law is, that an amendment proposing a claim that fails to disclose a reasonable cause of action, or which is obviouslyunsustainable, should not be permitted. Absolute Privilege [72] The proposed amendment alleges, inter alia, that certain statements in the Plaintiffs’ statement of claim are defamatory. Thecontents of a pleading are protected by absolute privilege. There is precedent for striking out a pleading on the ground of absoluteprivilege related to claims arising out of statements made and actions taken in the context of legal proceedings. The Court of Appealconsidered the issue in Martini v.

Wrathall (1999), 1999 NSCA 105 , 180 NSR (2d) 38, [1999] NSJ No 306, on an appeal froman order striking out an action for failure to disclose a cause of action: 6 … In the context of this proceeding, we agree with the conclusion that the appellant's pleadings did not disclose a cause of action, andin that respect accept the following statement of the law in British Columbia (Milk Marketing Board) v.

Bari Cheese Ltd., [1992] B.C.J.No. 2342: The defendants submit that no cause of action exists on the facts pleaded because the witness immunity rule prevails against all tortactions. ... the privilege of a witness, the immunity from responsibility in an action when evidence has been given by him in a court of justice, istoo well established now to be shaken. ... The remedy ... is to indict him for perjury ... (See Hargreaves v. Bretherton, [1959] 1 Q.B. 45 at p. 54). That principle has been consistently applied in this jurisdiction. Carnahan v.

Coates (1990), (BC SC), 47 B.C.L.R.(2d) 127 (B.C.S.C.) applied ... the long-standing rule that witnesses are not liable to be sued for words written or spoken in judicialproceedings ... 7 Hargreaves v. Bretherton, supra, was recently applied by the Ontario Court of Appeal in Samuel Manu-Tech Inc. v. Redipac RecyclingCorp., (ON CA), [1999] O.J. No. 3242 (September 9, 1999). In the Samuel Manu-Tech case, the court adoptedDooley v. C.N.

Weber Ltd. et al. (1994), (ON SC), 19 O.R. (3d) 779, where Reilly J. said at page 784: However, I conclude, after considering submissions of counsel and the relevant jurisprudence, that an absolute privilege attaches to thepleadings and they may not form the basis for a cause of action, even for abuse of process. The development of this privilege has beenconsistent and without exception, applying in England, Canada and other common law jurisdictions to judges, witnesses, counsel andlitigants.

The privilege extends to statements made in court, the evidence of witnesses, to submissions, to addresses, to statements in courtby counsel, to pleadings (as in this case) and perhaps even to statements made to investigators in the preparation of a prosecution.[Emphasis added.] [73] Similarly, in Horn Abbot Ltd v. Reeves, 2000 NSCA 88, [2000] NSJ No 225, the Court of Appeal held that an allegation thatthe defendant had agreed to give false testimony in another action provided no foundation for an action, and should have been struck onthe basis of absolute privilege. [74] In Rajkhowa v.

Watson (1998), (NS SC), 167 NSR (2d) 108, [1998] NSJ No 85, the defendants in adefamation action applied to amend their defence to add a claim of absolute privilege, and to consequently strike the statement of claim. The plaintiff psychiatrist’s defamation allegations were based on statements made to police (who did not lay charges) by a consultant(Watson) carrying out a billing audit of his practice. Hood, J allowed the amendment.

She dismissed the application to strike, however,because the police were not undertaking a judicial or quasi-judicial function in investigating based on the information provided by thedefendant, and therefore the privilege did not apply. She added that the privilege would apply to the police laying an information, butnot to a police investigation. [75] In Keung v. Sheehan, 2001 NSSC 59, a terminated employee filed a complaint with the Department of Labour allegingdiscrimination by the employer. The employer commenced an action for defamation, relying on the statements made in the complaint.

Robertson, J struck out the statement of claim under Rule 14.25(1) of the Civil Procedure Rules 1972.

She stated that “the claim ofdefamation will be unsustainable where it is plain and obvious that no reasonable cause of action is disclosed in the statement of claimmade on the occasion of absolute privilege if the comments are made on the occasion of absolute privilege.” The statements wereprotected by absolute privilege: “the defamatory statements that are complained of are contained in a document that is properly used inthe course of a proceeding before a court of justice or a tribunal recognized by law.” [76] Similarly, in Tewari v.

Sekhorn, 2022 ONSC 417, a statement of claim was struck out at the pleadings stage on the ground ofabsolute privilege. The plaintiff alleged various wrongdoing by the defendant lawyers, who had acted for his former employer in anaction for wrongful dismissal in which he had been the plaintiff. The court cited Salasel v.

Cuthbertson, 2015 ONCA 115, for theproposition that “the conduct of the Defendants during the course of the litigation and any steps that were preparatory, preliminary,intimately connected necessary or incidental to the institution of that legal proceeding is absolutely privileged in law.” [77] The Defendant says the amendment raises a justiciable issue within the

definitions accepted in South Centre Merchants Assnv. Halifax (City) (1994), (NS SC), 135 NSR (2d) 373, [1994] NSJ No 439 (SC): a “real and substantial controversywhich is appropriate for judicial determination” and “subject to jurisdiction or trial in a court of law . . .” He says the merits of thecounterclaim should be left for trial, as suggested (in the context of an amendment to a defence to a counterclaim) in Global PetroleumCorp v. Point Tupper Terminals Co (1998), 1998 NSCA 174 , 170 NSR (2d) 367, [1998] NSJ No 408 (CA), where thechambers judges said: “I am not prepared to consider the merits beyond that as that is properly left to the trial judge who will have the

evidence and the law before him or her.” [78] Defence counsel says this situation is analogous to a refusal to strike a pleading on the ground of factual or legal issues. InBraithwaite v. Nova Scotia Public Service Long Term Disability Plan Trust Fund (1999), 1999 NSCA 77 , 176 NSR (2d)173, [1999] NSJ No 160 (CA), Cromwell, JA (as he then was) said, for the majority, that the party seeking to strike out a pleading mustshow that the “claim is absolutely unsustainable in the sense that it is clear and obvious that his statement of claim does not raise atriable issue.

If there are factual issues to be resolved or difficult legal issues to be addressed, the action should not be dismissed at thispreliminary stage.” [79] None of the cases cited by the Defendant -- South Centre Merchants Assn, Global Petroleum, or Braithwaite – concerned anassertion of absolute privilege as a bar to allowing the amendment. These cases stand for the principle that factual or legal issuesneeding resolution should not be a cause of dismissal at the preliminary stage.

The law is clear that absolute privilege attaches tostatements made in a pleading, to the extent, as noted in Tewari, that absolute privilege “even applies to false or malicious statementsmade in pleadings and factums.

Absolute privilege equally applies even if counsel in his or her words has been guilty of malice ormisconduct or had an indirect motive…” As such, to the extent that the amendment would add allegations arising from statements in thepleading, there is no cause of action or justiciable issue raised by the amendment. [80] The Defendant says the claim of absolute privilege should be dismissed because the Plaintiffs have made allegations in thestatement of claim that were “dismissed” in the criminal proceeding.

As such, he submits, the Plaintiffs should not be permitted to“simply repeat” these allegations, which the defence claims would be “abusive.” The Defendant does not say the allegations are resjudicata or an abuse of process, notwithstanding the vague use of the word “abusive.” [81] While the point is irrelevant, the Plaintiffs argue that it is “factually incorrect” to say that the allegations in the pleadings were“found to be untrue.” They submit that the Defendant was convicted at trial of charges in respect of four of the six Plaintiffs before theconvictions were quashed for “prosecutorial delay.” This is only partly correct.

The Court of Appeal entered a stay on the ground ofdelay, but added that the convictions would have been unsustainable in any event because “the trial judge erred in law in failing toaddress the issues of collusion and properly deal with significant problems of credibility, and his reasons revealed seriousmisapprehensions of evidence that were material to the convictions.” But the Court of Appeal did not substitute its own fact findings forthose of the trial judge.

To the contrary, Beveridge, J.A. stated that had it been necessary to quash the convictions he would haveordered a new trial. [82] Nevertheless, the argument that the Plaintiffs are barred from advancing the same allegations in a civil proceeding has nolegal foundation. The Court of Appeal commented on the effect of an acquittal on a subsequent civil claim in Barton v. Nova Scotia(Attorney General), 2015 NSCA 34, [2015] NSJ No 148: [35] There is no axiomatic concordance between criminal and civil proceedings. For example, in criminal proceedings, a finding ofnot guilty is tantamount to a finding of innocence.

This was succinctly set out in by Lamer C.J., in R. v. Grant, (SCC),[1991] 3 S.C.R. 139: [28] …It is a well-established principle in our criminal law that an acquittal is equivalent to a finding of innocence, and that "any issue,the resolution of which had to be in favour of the accused as a prerequisite to the acquittal, is irrevocably deemed to have been foundconclusively in favour of the accused": Grdic v. The Queen, (SCC), [1985] 1 S.C.R. 810, at p. 825; see also R. v.Carlson, (ON SC), [1970] 3 O.R. 213 (H.C.). [36] Therefore, an acquittal determines legal innocence.

However, an acquittal at trial, or on appeal, is not a determination that anynumber of the individuals or entities that make up the criminal administration of justice engaged in behaviour that was malicious or thatthey breached the appropriate standard of care, entitling the accused or the appellant to an award of damages. [37] An acquittal of an accused is no impediment to a victim suing that same accused in a civil action (see Polgrain Estate v.Toronto East General Hospital, 2008 ONCA 427). Indeed, it is unlikely that the fact of the acquittal is even admissible in a civil action(Rizzo v.

Hanover Insurance Co. (1993), (ON CA), 14 O.R. (3d) 98 (Ont. C.A.)). The burden of proof, rules ofevidence, and the parties are all different in civil proceedings. [83] In oral argument, Defendant’s counsel advanced the argument that the law recognizes an exception to absolute privilege formaterial that is not “properly pleaded” and which is not “necessary” to make out the claims.

Counsel points to no clear authority for this,though she noted that in Rajkhowa the court said absolute privilege required a “direct connection between the making of the statementand the proceedings.” There was no suggestion, however, that the Court was required to parse the pleadings for individual sentences orallegations respecting the Defendant that are not sufficiently “necessary.” The Defence is alleging that aspects of the pleadings arefrivolous or vexatious, but there is no motion before the Court to that effect. [84] More substantively, Defence counsel suggests that a narrower scope of absolute privilege can be drawn from an AlbertaMaster’s decision, namely Rizvi v.

Syed, 2016 ABQB 400. In that case the plaintiffs alleged that they were defamed by comments in anaffidavit filed in an earlier proceeding between the parties by one of the defendants. The defence argued that the statements wereshielded by absolute privilege. The first proceeding involved a dispute over the governance of a local Islamic benevolent society andcharitable organization.

The defendants in the defamation action (the Syed group) had challenged the actions of the plaintiffs (the Rizvigroup), specifically alleging that they had invited radical and extremist speakers, including alleged proponents of Jihad and Sharia law,contrary to the values of the organization. The Rizvi group claimed that absolute privilege was limited, relying on the following passagefrom Liboiron v. Majola, 2007 ABCA 18: [10] Even if a statement is defamatory, it may be protected by absolute privilege.

For absolute privilege to apply, the statementmust “take place during, incidental to, and in the processing and furtherance of, judicial or quasi-judicial proceedings”: Raymond E.Brown, The Law of Defamation in Canada, 2nd ed., looseleaf (Scarborough: Carswell, 1999) vol. 2 at para. 12.4(1). See also PatrickMilmo & W.V.H. Rogers, eds., Gatley on Libel and Slander, 9th ed. (London: Sweet & Maxwell, 1998) at para. 13.1. The purpose of theabsolute privilege defence is to ensure that those involved in the administration of justice, including litigants, witnesses, advocates and

judges, can speak freely without fear of an action in defamation; it is not intended to protect those who have made malicious statements...[Emphasis in Rizvi.] [85] The court in Rizvi hastened to add, however, that “[t]he underlined portion of the above quote is not as broad as it might seemat first glance.” Master Prowse continued: [23] Generally speaking, absolute privilege does protect those who make malicious statements in court proceedings. See paragraph12.4(1) of Raymond E.

Brown, The Law of Defamation in Canada, 2nd ed., looseleaf (Scarborough: Carswell, 1994) vol. 2, cited in theLiboiron decision, which states that absolute immunity applies to statements made in judicial proceedings and: … it makes no difference that the words may be totally and knowingly false and spoken mala fide and with actual malice [24] What the underlined portion of the above quote is meant to remove from the protection of absolute privilege are statementswhich are malicious in that, while they may have been made in the context of litigation, were not made during, incidental to, and in theprocessing and furtherance of, judicial or quasi-judicial proceedings. [Emphasis in Rizvi.] [86] The Master illustrated this principle by reference to cases where the impugned statements were ones “having no reference tothe cause” or where the statements were “not made with reference to the person being complained of, but gratuitous irrelevant statementsagainst a third party.” Another example was Liboiron, where the defendant, in paying a traffic ticket, inserted a letter accusing thepolice officer who issued the ticket of racial bias.

The officer claimed that the letter was protected by absolute privilege, being sent inthe context of his guilty plea. This argument was not successful, as the court in Rizvi noted: [30] The Court of Appeal observed that to qualify for absolute privilege the letter must fall within a recognized step of the judicialproceeding. It held that “in other words, it must take place during, incidental to, and in the processing and furtherance of the proceeding”and that: To enter Majola's guilty plea under s. 36, the court clerk needed only the offence notice and payment.

Majola's letter was not required,did not directly or indirectly fit within the process prescribed by s. 36, and did not further the proceedings. Nor can the letter becharacterized as an essential step, as it was not necessarily incidental to the process prescribed by s. 36. Consequently, the letter is notprotected by absolute privilege. [87] Yet another instance of absolute privilege not applying was M(MJ) v.

M(DJ), 2000 SKCA 53, where the wife, complaining toa law society about the conduct of her husband’s lawyer, included an irrelevant accusation of sexual abuse by her husband. [88] As such, the court in Rizvi held that statements would be protected by absolute privilege where they were “made incircumstances connected with the advancement of the litigation.” The court dismissed the claim that “the Syed Group did not intend touse the Syed Affidavit to advance the first action” but “its purpose was simply to be used as a vehicle to shelter defamatory commentsabout them.” After rejecting the argument that this position was supported by the fact that the proceeding had not gone ahead, theMaster said: [37] Another potential argument which could be advanced that the statements were not in furtherance of judicial proceedings isthat the challenged paragraphs in the Syed Affidavit dealt not so much with the dry technical aspects of the litigation (what theconstitution said about elections, whether the Syed Group trustees had resigned or not resigned) but rather were focussed on what theSyed Group considered to be the underlying merit and public policy behind their efforts to prevent the election of unsuitable candidatesto the leadership of the Association (and I make it clear here that I am making no comment on the suitability of any of the prospectivecandidates). [38] It is very common in pleadings and evidence for parties to put forward what they perceive to be the public policy reasonsbehind the justness of their claims, and provided those assertions do not wander into completely extraneous matters, they are covered byabsolute privilege. [39] The general topic of the paragraphs complained of in the Syed Affidavit is the subject of the first action, namely the proposedupcoming elections scheduled by the Rizvi Group and the suitability of candidates for the leadership of the Association.

On the face ofit, the statements contained in the Syed Affidavit were intended for the purpose of advancing the first action, and therefore not‘malicious’ within the meaning of the exception to privilege set out in the Liboiron decision. [Emphasis added.] [89] As noted above, the Defendant argues that the applicable standard is one of “necessity”, which is not the language used in thecases, including Rizvi. The statements to which the defence objects are references to the Defendant as an “abuser” of the Plaintiffs,which counsel characterized as “irrelevant narrative” that do not address the specific claims.

This is in no way analogous to the types ofstatements that were held not to be privileged in the cases cited in Rizvi.

If anything, these statements would be analogous to the “publicpolicy” remarks that the master referenced in that case, which were covered by absolute privilege provided they “do not wander intocompletely extraneous matters…” To conclude that such comments are “completely extraneous” to a statement of claim alleging long-term sexual battery, would not be in keeping with the law. [90] In short, rather than the “necessity” standard suggested by the Defendant, the boundaries of absolute privilege more closelyresemble the principle stated in Big Pond Communications 2000 Inc v.

Kennedy, (2004), (ON SC), 236 DLR (4th)727, [2004] OJ No 820 (Ont Sup Ct J): “This privilege against suit for allegations in pleadings is not qualified in any way. It is notnecessary that there be any foundation in fact for such statements before they enjoy protection.” [91] As such, it is clearly open to the Plaintiffs to advance the pleaded claims, notwithstanding the quashing of the convictions. Asthe Plaintiffs submit, the assertion that their claims are “abusive” is a red herring. The absolute privilege would attach even if thepleading was false or malicious.

In my view, the Defendant should not be permitted to amend his pleadings to add claims that wouldcontravene the absolute privilege for statements in judicial proceedings, specifically with respect to the pleadings.

[ 92 ] With respect to the so-called commentary during the original investigation and “fallout” from the trials. I find there is merit in the Defendant’s argument that these should not be pre-empted by the defence of absolute privilege at this stage.

I concur with the Defendant that there are disputes pertaining to these earlier comments, that need to be weighed in the context of a full trial, allowing consideration of all of the evidence. [ 93 ] After careful consideration, I have concluded there is a justiciable issue raised by the proposed amendments as they relate to statements during the investigation, and allegedly repeated to legislators, politicians and media outlets, thereafter.(ie.2011).

I concur with the Defendant that the defence of absolute privilege offered by the Plaintiffs is premature, with respect to those specific statements, as such a finding will require factual findings which are currently not established in terms of when they were made and specifically to whom.

It would therefore be appropriate for the defence of absolute privilege to be considered on its merits by the trial judge with respect to those aspects of the counterclaim. ( Global Petroleum ) [ 94 ] As such, I am satisfied that the amendment should not be permitted to the extent that it relates to statements in pleadings, but that absolute privilege does not clearly apply to the other statements at this point. Bad Faith [ 95 ] The Plaintiffs maintain that the amendments are being advanced in bad faith, for tactical purposes.

They point to several alleged indicators of “ulterior motivation”: - The “facial lack of merit” of the claims, and the lack of sufficient particulars. These objections go to the merits and the sufficiency or particulars of the pleading, but not obviously to bad faith; - The implication that the allegations were dismissed by the Courts, when in fact the Defendant was convicted at trial and his convictions were quashed for delay.

As noted earlier, this is only partially accurate; the Court of Appeal held that the convictions would have been set aside even absent the delay; - The Defendant has allegedly “obstructed the progress of the action” by failing to file an affidavit disclosing documents and by withholding his contact information while retaining counsel only for specific matters. These may be legitimate procedural objections.

They do not clearly go to bad faith, in my view; - the Defendant’s failure to produce evidence of correspondence with his counsel to support his assertion that he did not know he could file a counterclaim until recently.

Even if the Defendant for some reason delayed filing the counterclaim for tactical reasons, this would not, in my view, give any clear support to a claim that the amendments are in bad faith. [ 96 ] It should be noted that the Defendant has not pursued the normal remedies for objectionable pleadings, such as a motion to strike them as frivolous and vexatious; indeed, Defence counsel stated in oral argument that this objection was put to Plaintiffs’ counsel, but the passages were not removed. The Defendant has not brought such a motion.

There is also the question of when statements made during the original criminal proceedings became defamatory. The Plaintiffs have now brought a civil action more than a decade later. [ 97 ] The Defendant denies that the amendments are sought in bad faith. He emphasizes various comments by the Court of Appeal in the criminal appeal respecting misapprehension of the evidence at trial and says his own allegations are “inextricably bound together” with those of the Plaintiffs. He admits that the issues are not res judicata. [ 98 ] Mr.

MacIntosh does not claim that the Plaintiffs have brought the action in bad faith or that it is an abuse of process but does claim that the allegations are abusive and designed to cause him harm and personal embarrassment. [ 99 ] The Plaintiffs further suggest that the counterclaim is vexatious, that it constitutes an abuse of process, and that it has been brought for an improper purpose.

These submissions do not appear to be advancing objections distinct from the broad claim of bad faith. [ 100 ] Apart from the historical nature of the Plaintiffs’ allegations and the Defendant’s allegations of defamation, there is not, in my view, cogent and convincing evidence of bad faith by the Defendant in bringing this motion to amend. [ 101 ] The Defence was filed shortly after the Statement of Claim was issued in December, 2019.

It is noted that the action was commenced at that time by the Plaintiffs’, some four (4) years after they were permitted to do so by the Limitations of Actions Act , invoked in 2015. [ 102 ] The Defence, itself, stated that the claims of the Plaintiffs were “inflammatory”, as well as being frivolous and vexatious. Once again, shortly thereafter the Defendant followed up by forwarding a letter of June 15, 2021, identifying the specific type of counterclaim that was being contemplated by him. The weight of the evidence suggests that Mr.

MacIntosh was a self-represented litigant and there is little evidence to contradict his statement that he did not realize, a counterclaim could be filed. [ 103 ] The burden of establishing bad faith is on the Plaintiffs and it is a high evidentiary burden, as confirmed in M5Marketing Communications and State Street Global Advisors . In my view, the Plaintiffs have not established that the amendment should be denied on the ground of bad faith. [ 104 ] This leaves for consideration the issue of whether Mr. MacIntosh’s proposed counterclaim is out of time and is barred by the

Limitations of Actions Act and/or the Civil Procedure Rules .

Section 22 of the Act prescribes when an action can be commenced notwithstanding the passage of the relevant limitation period. What remains to be considered on this Motion? [ 105 ] Thus far in this decision it has been determined that in court statements during the trial of MacIntosh , that is evidence given on the stand, are not subject to the Defendant’s claim of defamation. Defendant’s counsel, to her credit, acknowledged that the words “eventual trial of MacIntosh ”, should be removed from paragraph 32 of the proposed counterclaim. (As stated earlier) [ 106 ] Mr.

MacIntosh maintains that allegedly false statement made “during the investigation” is still a live issue”.

The Defendant submits these comments may fall outside the judicial or quasi-judicial proceedings. [ 107 ] In addition, it has been determined that the “False Allegations in the Statement of Claim (paragraphs 57-63) have been defeated by the doctrine of absolute privilege and thus, do not present a justiciable issue. [ 108 ] Even then, the Plaintiffs claim, the “subset of the proposed claims not certain to fail for absolute privilege”, lack sufficient particularity to meet the rules for pleading for defamation claims and should fail on that basis alone.

The Plaintiffs also argue the Defendants claims are not sufficiently related to the original pleading which impacts on whether the amendments should be allowed under Rule 83.11 and

section 22 of the LAA . [ 109 ] As mentioned, this includes commentary during the police investigation, commentary to the provincial and federal legislatures, statements to certain politicians and to multiple media outlets. I shall at times refer to these as “the earlier comments.” [ 110 ] Therefore, what is left is to determine whether the earlier comments would be time barred due to the expiry of the relevant limitation period for defamation claims, and, if so, whether the amendment should still be permitted under s. 22 of the LAA .

And further, whether the Defendant’s defamation claims have been sufficiently particularized to constitute a proper pleading in defamation. (See paragraph 106 cross reference) Limitation Analysis [ 111 ] The Plaintiffs submit that the aspects of the proposed defamation claim that are not subject to absolute privilege are nevertheless disqualified on limitations grounds, due to inadequate connection to the existing proceeding, as well as an expired limitation period.

The amended pleading alleges, inter alia, that the Plaintiffs defamed the Defendant “during the investigation and eventual trial…” (As noted earlier, Defendant’s counsel confirmed in oral argument that the Defendant does not claim that the Plaintiffs’ trial testimony was among the defamatory remarks. The alleged defamation in the earlier time period is limited to statements made in the course of the police investigation and statements to third parties.) [ 112 ] The Defendant does not deny that the limitation period has expired as it pertains to the allegedly defamatory statements made before or during the trials.

The Defendant says, first, that it is “a matter of public record” that the Plaintiffs “played a critical role” in bringing about the 2015 amendments to limitations legislation; and second, that by the time the Plaintiffs commenced the civil action, “their public statements about Mr. MacIntosh were well beyond the applicable limitation period.” Counsel then makes an appeal in equity, stating that it would be unjust to allow the Plaintiffs’ claim without consideration of the Defendant’s counterclaim. [ 113 ] Automattic, Inc v. Trout Point Lodge, Ltd , 2017 NSCA 52 , and Barry v.

Halifax (Regional Municipality) , 2018 NSCA 79 , [2018] NSJ No 398 , indicate that “a limitation analysis cannot be deferred to the trial judge; it is undertaken at the time a motion is brought to join a party.” [ 114 ] Pursuant to section 8(1) of the Limitation of Actions Act , SNS 2014, c 35 (the LAA ), unless otherwise provided in the Act , a claim must be brought within two years of discovery ( s. 8(1) (a)) or within 15 years of the occurrence of the “act or omission on which the claim is based…” ( s. 8(1) (b)).

Section 22 permits a claim to be added by amendment in certain circumstances notwithstanding the expiry of a limitation period established by the Act : Claims added to proceedings 22 Notwithstanding the expiry of the relevant limitation period established by this Act , a claim may be added, through a new or amended pleading, to a proceeding previously commenced if the added claim is related to the conduct, transaction or events described in the original pleadings and if the added claim (

a) is made by a party to the proceeding against another party to the proceeding and does not change the capacity in which either party sues or is sued … [Emphasis added.] [ 115 ] If, in the present case, the claim was discovered before the effective date but no action was commenced under the former legislation, the Court must consider

section 23: Transitional 23

(1) In this Section, (a) “effective date” means the day on which this Act comes into force; (b) “former limitation period” means, in respect of a claim, the limitation period that applied to the claim before the effective date. (2) Subsection (3) applies to claims that are based on acts or omissions that took place before the effective date, other than claims referred to in

Section 11, and in respect of which no proceeding has been commenced before the effective date.

(3) Where a claim was discovered before the effective date, the claim may not be brought after the earlier of (

a) two years from the effective date; and (

b) the day on which the former limitation period expired or would have expired.

(4) A claimant may bring a claim referred to in

Section 11 at any time, regardless of whether the former limitation period expired beforethe effective date. [116] There is no suggestion that the defamation claims arising from the criminal proceeding were not discovered before the effectivedate. As such, section 23(3) requires that the claim be brought within two years of the effective date, or before “the day on which theformer limitation period expired or would have expired”, whichever is earlier. I shall return to this issue. [117] United Pentecostal Church of Nova Scotia v. Nova Scotia Power Inc, 2020 NSSC 286, confirms that

section 22 does not applyto claims discovered before the LAA entered into force on 1 September 2015. In that case, Bodurtha J held that the transitionalprovisions of

section 23 do not constitute a “limitation period established by this Act” as contemplated by

section 22: [27] The words “established by this Act” must be read “in their entire context and in their grammatical and ordinary senseharmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559,at para. 26, both quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. [28] This is a transition case that falls under

section 23 of the LAA because the relevant acts occurred before September 1, 2015. There is no limitation period established by the LAA for the purposes of

section 22. Reading those words with the “modern principle” tostatutory

interpretation, I find that

section 23 governs transition cases but does not establish limitation periods; therefore,

section 22 ofthe LAA does not apply to the Applicant’s amended pleadings. [29] I find further support for this

interpretation by reviewing the table of contents for the LAA.

Section 23 falls under thetransitional provisions, consequential amendments and effective date portion and not under the parts dealing with general limitationperiods, exceptions to the general limitation periods, or claims brought after expiry of limitation period.

Although not determinative, itdoes provide some guidance as to what was in the mind of the drafters of the legislation. [118] This would mean the defamation claims based on statements made during the criminal proceedings could not be added pursuantto s. 22. [119] In the event that section 23(3) does constitute a “limitation period established by this Act”, the issue is whether the conditionsof section 22(1) are satisfied. Related to the same “conduct, transaction or events.” [120] The first question in applying

section 22 is whether the proposed counterclaim accords with the requirement under s 22 that anamendment be “related to the conduct, transaction or events described in the original pleadings”. [121] The Defendant submits that the defamation claims “are not only related, but they arise out of the same set of facts and issues” asthe Plaintiffs’ claims. The Plaintiffs dispute this. The statement of claim alleges sexual battery by the Defendant in the 1970s. Theproposed counterclaim alleges that the Plaintiffs made defamatory statements about the Defendant during a later criminal investigation.

While the alleged defamatory statements were about the conduct alleged in the statement of claim, “the statements themselves and theirimpact on Mr. MacIntosh’s reputation are not at issue…” The Plaintiffs submit that the statements are therefore not sufficientlyconnected to the claim to be permitted under s 22(

a) of the LAA. [122] The requirement for the amendment to relate to “the conduct, transaction or events” in the original pleading was considered inDyack v. Lincoln, 2017 NSSC 187. Chipman J rejected as without authority the argument that the phrase should be interpreted asparallel to Rule 83.11(3), which would mandate “that the material facts supporting the new cause of action must already have beenpleaded.” The original action was for medical malpractice, particularly an alleged failure to obtain informed consent for a surgery.

ThePlaintiff subsequently sought to amend the pleadings, outside the limitation period, to add the claim that the Defendant failed to meet thestandard of care for an orthopedic surgeon. [123] Chipman, J concluded in Dyack that the proposed amendment raised claims that “are related to the same conduct, transaction orevents – the surgeries – and do not change the capacity in which Dr. Dyack sues Dr. Lincoln or Dr. Lincoln is sued.” [124] In Krishna v. Gauthier, 2018 NSSC 305, by contrast, the plaintiff sought damages for injuries incurred in a motor vehicleaccident where a co-worker was the driver.

The plaintiff sought to add a claim respecting the handling of her post-accident disability byher employer. Wood, J (as he then was) said: [14] As this

section indicates, a new claim may be added by way of amendment if it meets one of the listed circumstances and is“related to the conduct, transaction or events described in the original pleadings”. Although she has not provided a draft amendedpleading, I am satisfied that Ms. Krishna’s proposed claims relate to the manner in which Adecco dealt with her alleged disabilities andtheir impact on her employment. One allegation is that there was an agreement with respect to how her duties might be modified, whichwas subsequently breached by Adecco.

Another is that Adecco provided inaccurate information to the Workers’ Compensation Board inrelation to her claim. I do not believe that these allegations are sufficiently related to the original pleading, which was limited to thepersonal injuries suffered in the motor vehicle accident, to meet the requirements of s. 22. [Emphasis added.] [125] In Garian Construction Ltd v. Dixon Marine Group 2000 Inc, 2019 NSSC 357, the defendant moved to strike certainamendments to the statement of claim pursuant to Rule 83.11. The amendments had been made as of right before the Defendant filed a

defence, pursuant to Rule 83.02. The Defendant argued that the new claims were statute-barred. Keith, J held, however, that “the Rulesdo not contemplate that amendments made “as of right” under Rule 83.02(2) become subject to attack under Rules 83.11(1) and (3).” Heconfirmed, however, that amendments requiring judicial permission remained subject to judicial scrutiny under Rule 83.11 where theyare alleged to be statute-barred. [126] Keith, J went on to hold, in the alternative, that the amendments would in any event have been permissible under

section 22 ofthe LAA. They were added to support the original claim in debt. He commented: [25] The amendments do not seek to change the capacity of any party or add a party or substitute a party. So, the focus of the debateunder

Section 22 revolves around whether the amendments in question involve conduct which “is related to the conduct, transaction orevents described in the original pleadings”. [26] In Dyack … Justice Chipman observed that the words “related to” in the context of

Section 22 “have a very broad meaning”(para 51). The authorities cited by Justice Chipman in Dyack similarly confirm that the threshold to come within this meaning is “notparticularly high”. [27] In Dyack, Justice Chipman also quotes from the Alberta Court of Appeal’s decision in DeSoto Resources…, which describesthat a key underlying objective grounding

Section 22 is that the addition of new claims will not result in any prejudice or surprisebecause they arise out of the same conduct, transactions or events (para 52, Dyack). [127] Similarly, in United Pentecostal Church, the plaintiff sought to add an allegation of “de facto expropriation” to a claim fortrespass and nuisance arising from the flooding of two properties by the respondent. Having held that

section 22 was not applicable inthe circumstances, Bodurtha, J nevertheless went on to address the issue in the alternative: 30 … If I am incorrect in my

interpretation that

section 22 is not triggered in these circumstances, I would still dismiss the Applicationbecause the Applicant's new claim of de facto expropriation is not sufficiently "related to the conduct, transaction or events described inthe original pleadings." 31 The new pleading is much broader. In determining whether to allow the new amendments, "the key is whether the proposedamendments simply elaborate on existing allegations or whether they broaden the scope of the Plaintiff's claims beyond the parametersof the original pleadings." (see 513320 Alberta Inc. v. St.

Jean, 2015 ABQB 826, at para. 38, cited in Dyack, supra, at para. 54).[Emphasis added.] [128] Justice Bodurtha referred to Krishna, and concluded: 34 As mentioned above, I find that the amended pleadings do not meet the requirements of CPR 83.11(3). The new amended pleadingsraise new material facts, new statutory schemes, new remedies, new parties, and new land.

The material facts supporting the new claimfor de facto expropriation are not found in the original pleading, nor can I find that the amendment merely better describes the originalcauses of action being trespass and nuisance. [Emphasis added.] Capacity of a party. [129]

Section 22(

a) of the LAA states that, where the claim is “related to the conduct, transaction or events described in the originalpleadings”, it may be added by amendment where it “is made by a party to the proceeding against another party to the proceeding anddoes not change the capacity in which either party sues or is sued…” The Defendant says the proposed amendment is permissible undersection 22(a), in that it does not change the capacity in which either is suing or being sued. The Plaintiffs dispute this. [130] The Court of Appeal considered

section 22 in Beasy Nicoll Engineering Ltd v. GEM Health Care Group Ltd, 2022 NSCA 44,and, specifically, the issue of whether adding a third party as a party defendant would change the capacity in which it was sued. Farrar,JA said, for the court: [59] This issue is closely related to consideration of whether a third party is a party to the original proceeding. As I have foundabove, Beasy Nicoll is not a party to that proceeding.

In my view, it follows if GEM were permitted to amend its Notice of Action to addBeasy Nicoll as a party defendant Beasy Nicoll would be sued in a different capacity, i.e., as a defendant, not a third party. [Emphasisadded.] [131] The court’s conclusion turned in part on

section 15 of the LAA, by which the limitation period for a claim for contribution orindemnity runs from service of the claim on the defendant. This provision was intended to remedy the potential “absurd result” that aclaim against a third party under the Tortfeasors Act “would be barred before it accrued, not by anything done by the [defendant] but bythe whim of the plaintiff in the conduct of his proceedings.” Farrar, JA continued: [65] As a result, the legislature enacted s. 15 for the purpose of allowing claims for contribution and indemnity to proceed. Section15 does not open the door for the plaintiff to sue third parties directly when the limitation period against them has expired.

Section 15 isconsistent with third party proceedings being separate proceedings and being limited to contribution and indemnity for damages thedefendant might otherwise have to pay to the plaintiff. [66] To allow the conversion of third parties to party defendants would effectively make the limitation period in s. 15 the limitationperiod for all defendants. If GEM were permitted to add Beasy Nicoll as a defendant under s. 22(a), it would be able to proceed directlyagainst Beasy Nicoll, something it could not have done in the main action.

This outcome is inconsistent with the three purposes oflimitation statutes as articulated by the Supreme Court of Canada in M.(K.) v. M.(H.), (SCC), [1992] 3 S.C.R. 6:providing potential defendants with certainty, ensuring claims have an adequate evidentiary foundation, and requiring plaintiffs toexercise due diligence in bringing a claim (pp. 28-31). [132] Farrar, JA commented on the effect on a proceeding of adding a third party as a defendant:

[70] Adding a third party as a party defendant fundamentally changes a party’s position in the litigation. A third party is only liable to the plaintiff if the party defendant that brought the third party claim is found liable to the plaintiff in the main action. Being added as a defendant changes the capacity in which the third party is sued and increases its exposure to liability . … [74] Beasy Nicoll is a party to the third party action, which is distinct both substantively and procedurally from the main action against Amherst.

Similar to [ MacDonald v Sun Life Assurance Co of Canada , [2005] OJ No. 4468 (Sup Ct) ], where the date on which Cameron’s role in the proceeding was changed from that of a third party to a defendant was relevant to the calculation of the plaintiff’s recoverable costs, adding Beasy Nicoll as a defendant would change its role in the proceeding and attendant liabilities.

It would therefore “change the capacity” in which Beasy Nicoll is sued. [Emphasis added.] [ 133 ] Having confirmed the distinction between a defendant and a third party, Farrar JA addressed the plaintiff’s submission that the word “capacity” in s 22 meant legal capacity, not a party’s “nominal status as a defendant or a third party defendant…” He noted at the outset that “the characterization of Beasy Nicoll’s third party status as being “nominal” is inaccurate.

As I have set out in some detail, the distinction between a defendant and a third party is far from nominal; it is procedurally and substantively different.” [ 134 ] The Plaintiffs cited Fowler v. Croteau , 2012 NBQB 239 , where the plaintiff sought an amendment to the pleadings to add a third party as a defendant. The court held that, since the word “capacity” in the legislation was “used in reference to a party to a legal proceeding there is no distinction between it and the term ‘legal capacity’...

In other words it refers, not to the role of a party in the proceeding but to the party's personal characteristics such as age, mental capacity etc…” While the provision barred “the introduction of new parties with different personal characteristics after the expiry of the limitation period”, it did not “prevent existing parties from being given additional roles in the litigation.” [ 135 ] Farrar, JA expressly rejected the reasoning in Fowler : 78 With respect, for the reasons which I have outlined above, I dis agree with the analysis in Fowler .

There is nothing in the new Limitation of Actions Act which suggests that capacity should be limited in this manner. In my view, Fowler , and cases which may be seen to have reached a similar conclusion, fail to take into consideration the distinction between the role of a defendant and a third party, the procedural and substantive differences between the two proceedings, the differences in potential liability between them, and the objects of limitation legislation. I choose not to follow them. [ 136 ] The Plaintiffs say this decision is binding in the circumstances.

The Defendant does not dispute that, on its face, Beasy suggests that the amendment should not be allowed because it defines “capacity” broadly. However, the Defendant asks the Court to apply earlier lower court and extra-provincial decisions interpreting “capacity” more narrowly, as “legal capacity, not a [party’s] nominal status as a defendant or a plaintiff”, as in Fowler . In Southwest Construction Management Ltd v. EllisDon Corp , 2020 NSSC 99 , affirmed at 2021 NSCA 20 , Rosinski, J said: [98] In the three subsections of

section 22 , there appear respectively the phrases, (a) “does not change the capacity in which either party sues or is sued”; (b) “changes the capacity in which a defendant is sued”; and (c) “changes the capacity in which a claimant sues”. [99] Based on the wording in those subsections, those references to the “capacity” in which a claimant sues or a defendant is sued, must mean something other than their status as a “claimant” or “defendant”. To my mind, the reference to “capacity” is a recognition of the legal reality that different legal entities may sue or be sued in more than one capacity.

For litigation purposes, a natural person may be involved in their individual capacity, and also in another capacity – for example, as a representative (guardian ad litem; executor; etc.) [100] Moreover, subsections (

b) and (

c) deal with “a defendant” and “a claimant”, whereas subsection (

a) refers only to an added claim by “a party to the proceeding against another party to the proceeding, and does not change the capacity in which either party sues or is sued”. Therefore, as I interpret s. 22 LAA , WP2 and SWP are not only each an existing party to the proceeding in the nominal sense, but also “a party” as contemplated by s. 22 (a). [ 137 ] The Court of Appeal affirmed Justice Rosinski’s decision, without referring to this point, and specifically did not consider

section 22 (a). [ 138 ] The Defendant submits that there is “disagreement in the courts … as to how the term capacity should be interpreted. Given this disagreement … the amendment should be allowed to proceed and it will be for the trial judge to determine whether the counterclaim is sustainable as against the Plaintiffs.” I find there is very little to this argument. There is no “disagreement”: the Court of Appeal flatly rejected the Fowler reasoning, and it would therefore be an error to apply it in any context when interpreting

section 22 . This is binding on this Court. But this does not end the inquiry. [ 139 ] The Plaintiffs argue that the Beasy reasoning applies equally to a defendant bringing a counterclaim as to a third party being added as a defendant, submitting in their brief: As with third party proceedings, a counterclaim is a separate proceeding which has a distinct identity, even though it proceeds alongside the main action. A main action and a counterclaim have different procedural steps. Rule 14.08 … sets out the distinct procedural requirements of a counterclaim.

Moreover, a counterclaim may proceed even after the main action has been discontinued under Rule 9.02(5). The case law also affirms that counterclaims constitute separate proceedings, although they are asserted within the same court file.

Thus, counterclaims must themselves be “commenced”; may proceed independently from the main action; may be brought against parties not party to the main action under Rule 4.10; and, being claims that could be independently asserted by way of a separate action, are subject to limitation periods. [ 140 ] On the character of a counterclaim as a separate proceeding, the Plaintiffs cite E Weyman Construction

(1989) Ltd v. Tutty , 2019 NSSC 210 , [2019] NSJ No 280 , where the Court held that a counterclaim “should be treated as a separate proceeding” when assessing costs as between a claim and a counterclaim.

Determination – Limitation Issue [ 141 ] Section 8(1)(

a) of the Act prescribes a limitation period of 2 years, stating a claim must be brought within two (2) years from the date the claim was discovered. The Act further sets out general rules as to when a claim is discovered. Section 8(1)(

b) prescribes a limitation period of 15 years from the day on which the act or omission on which the claim is based occurred. [ 142 ] The Act states that no claim shall be brought after the earlier of those periods. The Act further describes, in s. 8(3), rules interpreting the day such act or omission upon which a claim is based occurred for the purposes of s. 8(1)(b).

No one is suggesting here that the period of 15 years from the day in which the act (s. 8(1)(b)) upon which the claim is based occurred applies. [ 143 ] The false allegation claims of the Defendant, as asserted in paragraphs 32 -56, are said in the pleading to have occurred “during the investigation”. Mr. MacIntosh does not provide specific dates in his affidavit, except to state: 5. The allegations that form the basis of the Plaintiffs’ action were the subject matter of criminal proceedings. Specifically: R v. MacIntosh , 2010 NSSC 300 ; R v. MacIntosh , 2011 NSSC 340 ; R v. MacIntosh , 2011 NSCA 111 ; and R v.

MacIntosh , 2013 SCC 23 . [ 144 ] The criminal investigation would have occurred prior to the 2010 trials. In their brief the Plaintiffs submit that this period was “between 1995 and the early 2000’s”. The specific dates on which those statements are alleged to have occurred are “outside the trials”, to investigators, politicians and media, are not in evidence on this motion. In the counterclaim the Defendant alleges what “Mr. Sutherland told investigators and others...”.

But as the Defendant himself says, the public statements made about him by the Plaintiffs’ “were well beyond the applicable limitation period” when the Plaintiffs commenced this proceeding. In the counterclaim Mr. MacIntosh alleges: 37. Later , Mr. Sutherland repeated these allegations to members of several provincial legislatures and to members of the Canadian parliament, including Peter McKay who was a federal cabinet minister at the time. [ 145 ] In United Pentecostal , Justice Bodurtha held that s. 23 of the Act does not prescribe a limitation period for the purpose of

section 22 .

Thus, the Plaintiffs submit there is no “saving provision” the Defendant can rely upon if the limitation period for his claim has expired. [ 146 ] Even if s. 23 provides a limitation period for “transitional cases”, in this case, (2) two years from the effective date would be the applicable limitation period if the claim on which the acts or omissions is based (during the investigation) took place before the effective date of September 1, 2015, and no proceeding had been commenced before that date. [ 147 ] Even if the alleged statements were made or discovered after September 1, 2015, the Plaintiffs filed their statement of claim on December 23, 2019, well after the applicable limitation period for his claim expired, according to the submission of the Defendant.

This was well before the counterclaim for defamation was raised by the Defendant in his letter of July 15, 2021, attached as Exhibit A of the Defendant’s affidavit, and the filing of this motion on December 23, 2021. [ 148 ] Again, in this regard, the Defendant has not made any submission as to when the former limitation period expired or would have expired as per section 23(3)(

b) of the 2015 Act . I note the Plaintiffs have submitted that while the former Limitations of Actions Act , provided the Court with discretion to disallow a limitations defence under

section 3, this Court could not exercise this discretion when the action was commenced more than four years after the limitation period expired, as they state is the case here. [ 149 ] In the circumstances the Plaintiffs’ submission that the latest possible date on which a claim discovered before September 1, 2015, could have been commenced was September 1, 2017, is reasonable, a

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