3.68: Court options to deal with significant deficiencies

Case Summary

The Defendant, Canadian Broadcasting Corporation (“CBC”), broadcast a television program regarding a drug treatment centre operated by the Plaintiff. The individual named Defendants were a writer, director and an executive producer of the program. The Plaintiff commenced an Action in defamation against the CBC and the three individual Defendants. The individual Defendants applied to be removed from the Claim on the basis that they did not receive notice under the Defamation Act, RSA 2000, c D-7.

Martin J. held that the principles governing Applications to Strike a Statement of Claim pursuant to Rule 3.68 are settled. The test, which is unchanged from the former Rules, is that before a Claim may be struck for failing to disclose a reasonable cause of action, it must be plain and obvious that the Claim cannot succeed. Although the Pleadings should be liberally interpreted and all allegations of fact made by the Plaintiff must be assumed to be true, the Court has a duty to apply Rule 3.68 as intended. If the alleged facts do not disclose a Cause of Action, the Claim should be struck. A Claim should also be struck under Rule 3.68 if it is frivolous. A Claim is frivolous if it is brought in bad faith or if it is obvious that it cannot succeed. The onus of proving that the Plaintiff’s Action is bound to fail is extremely high.

Martin J. held that the Defendants failed to demonstrate that it was plain and obvious that the Plaintiff could not succeed on its argument regarding substantial compliance with the Defamation Act. Although the Plaintiff had not served the three individual Defendants personally, it had served their employer, CBC. There was no evidence to suggest that the three individual Defendants were not aware of the notice served on CBC. The law is unsettled as to whether strict compliance with the Defamation Act was required, or whether substantial compliance was sufficient. As such, it was not plain and obvious that the Plaintiff’s substantial compliance argument would fail, and the Application to strike the Statement of Claim against the individual Defendants was denied.

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