In Christie et al. v. Elia et al.,1 the underlying action was a claim of defamation and libel. The Plaintiffs were individuals who had been criminally investigated for allegations of fraud, for which they were ultimately acquitted. The Defendants were the Ontario Provincial Police Association (OPPA), and some of the directors and officers of the OPPA who had provided witness statements regarding the Plaintiffs to the RCMP.
Background
The Plaintiffs alleged that two national newspapers (the newspapers) published statements which defamed them, for which the sole source was an "Information to Obtain" (IT). The ITO was a document prepared and sworn by the RCMP, filed with the Ontario Superior Court (ONSC) to obtain a search warrant in the context of the criminal investigation against the Plaintiffs, prepared based on witness statements provided by the personal defendants. The Plaintiffs alleged that the Defendants provided the ITO to the newspapers, and knew or ought to have known that the statements would be published and would cause them damage. The Plaintiffs pled that the statements were false, and were made with malice and with intent to injure.
The Defendants made a demand for particulars, in response to which the Plaintiffs admitted that they did not know how or when the ITO was made available to the newspapers, and did not provide any particulars on how or when each Defendant played a role in creating or authorizing the statements. The Defendants brought a motion seeking an order dismissing the underlying action, under the Rules of Civil Procedure (Rules) R. 21.01(1), which allows a judge to (a) make a determination of a question of law before trial that would dispose of all or part of the action or (b) strike out a pleading for disclosing no reasonable cause of action; and R. 38.08(2),which allows a judge to dismiss an action where a party has failed to serve an affidavit of documents in compliance with the Rules. 2
Judgement
Regarding the R. 21.01 motion, the Court found that the filing of the ITO with the ONSC and its use on the application for a search warrant was a situation which attracted absolute privilege, and therefore the statements in the ITO were not actionable.
In regard to the R. 30.08(2) motion the Court found that the Plaintiffs' failure to make proper documentary disclosure was deliberate, clear, and unequivocal, and it would be just and proportionate to dismiss the action pursuant to the said rule.
Both R. 20.01(1)(b) and 30.08(2) motions were granted and the Plaintiffs' action was dismissed.
Rationale
The Court first dealt with the Plaintiffs' argument that the two motions should not be heard in conjunction, as one allowed evidence (R. 38.03) and one did not (R. 21.01). The Court disagreed, stating that on the R. 21.01 motion the Defendants were not relying on any evidence, and the Court could take into account only the pleadings and the response to the demand for particulars.
R. 21.01- Was there a cause of action in defamation?
The Defendants pled that it was plain and obvious that the action was legally untenable, as the ITO was an affidavit filed by the RCMP to the ONSC in the context of a criminal investigation, and that statements made in an ITO are protected by absolute privilege.
The Court considered the fact that privilege is a recognized defence to a defamation claim, and that whether privilege is absolute or qualified depends on the occasion. Statements protected by absolute privilege are not actionable. Absolute privilege applies to anything said or written in Parliament, in court, or in a complaint to a regulatory body, and extends broadly to "any communications which take place during, incidental to, and in the process and furtherance of judicial or quasi-judicial proceedings."3 Qualified privilege meanwhile can be defeated by malice. It applies where there is a duty to publish the matter complained of to persons with a corresponding duty or interest to receive it.
The Court rejected the Plaintiffs' attempt to rely on the 1995 Supreme Court case Hill v. Church of Scientology of Toronto to argue that statements are not protected by privilege where the defendants were acting outside of the ordinary course of the administration of justice.4 The Court distinguished Hill on the basis that it dealt with qualified privilege, not absolute, and that malice was found in that case. The Court emphasized the importance of remembering that, in considering whether absolute privilege applies, the relevant consideration "is the occasion on which the words were communicated, not the words."5
The Court noted the case law is clear that a statement made in evidence before a judicial body cannot found a cause of action. The Court held that the absolute privilege extended to witness statements made in aid of the preparation of an ITO. Therefore, the Plaintiffs' action could not succeed.
Regarding the Plaintiffs' argument that the R. 21.02 motion had not been brought promptly, as required by R. 21.02, the Court agreed but stated that not granting the motion because of delay would lead to the "absurd result" of allowing an action with no prospect of success to proceed to trial.
R. 30.08(2) - Had the Plaintiffs failed to properly serve their affidavit of documents?
The Court also considered the merits of the R. 30.08(2) motion. The Defendants argued that the Plaintiffs' documentary disclosure was deficient, and that the Plaintiffs had failed to make any reasonable efforts to comply with their obligations or to particularize their claim in approximately seven years. The Plaintiffs argued that their disclosure was not deficient, and that the delay had not prejudiced the Defendants.
The Court, applying the guiding principles as laid out by the Court of Appeal in Falcon Lumber Limited (2020), took into consideration the entire context of the proceedings.6 The Court found that the Plaintiffs had defaulted in delivering their affidavit of documents, and that the affidavit was "woefully inadequate". The fact that the Plaintiffs would not acknowledge any defect or default gave the Court no confidence they would cure the default. The Plaintiffs had made no attempt to supplement their reply to the demand for particulars, had not taken the opportunity to seek another extension, and had left the action to languish long enough that it had been saved only by the six-month extension period implemented in 2020 because of COVID-19. As such, the Court stated that the Plaintiffs had failed to serve a proper affidavit of documents, and that it would be just and proportionate to dismiss the Plaintiffs' action under R. 30.08(2)(b).
Practical takeaways
Christie et al. v. Elia et al. demonstrates how the Rules can be utilized to circumvent claims brought against directors and officers. The Rules - such as R. 21.01 and 30.08 in this case - can be leveraged in advance of trial to dismiss or strike out pleadings where the claims lack legal basis or where there has been some misconduct, such as a party failing in their production obligations. Litigants should be live to possible weak-points in claims against directors and officers where pre-trial motions to dismiss can effectively stop an action in its tracks.
For lawyers drafting these claims, it also important to keep in mind that claims alleging personal liability against D&Os, should be pleaded with specificity and to allege personal liability against D&Os is a high threshold. It important to anticipate that your pleadings can survive preliminary Rule 21 motions.
Footnotes
1. Christie et al. v. Elia et al., 2022 ONSC 1287.
2. Rules of Civil Procedure. O. Reg. 575/07, s. 6 (1).
3. Christie et al. v. Elia et al., 2022 ONSC 1287, at para 23.
4. Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 SCR 1130.
5. Christie et al. v. Elia et al., 2022 ONSC 1287, at para 30.
6. Falcon Lumber Limited v. 2480375 Ontario Inc. (GN Mouldings and Doors), 2020 ONCA 310
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