Master Robertson

1.2: Purpose and intention of these rules
3.68: Court options to deal with significant deficiencies
5.17: People who may be questioned
5.6: Form and contents of affidavit of records
6.6: Response and reply to application
13.7: Pleadings: other requirements

Case Summary

The Plaintiff sued the Defendant for defamation. This Decision was in respect of the Plaintiff’s Application to amend its Amended Statement of Claim. The Defendant argued that the Application constituted an abuse of process because the Plaintiff was relying on evidence it had available to it when it first applied to amend its Statement of Claim, and because the Application was simply a re-argument of its previous Application to amend its Statement of Claim which was only partially successful. Master Robertson disagreed and allowed the Application. In coming to this conclusion, Master Robertson considered in turn various concerns raised about the parties’ procedural conduct.

Master Robertson considered the Defendant’s complaint that the Plaintiff had filed two last-minute Affidavits. Master Robertson noted that last-minute changes to evidence should generally not be the norm, but that they may be required at times. Pursuant to Rule 6.6(3), in determining whether an Affidavit filed without reasonable notice may be relied upon, the Court should consider whether the Affidavit provides new information not previously known to the Plaintiff. Here, the information in the last-minute Affidavit contained information that was previously known to the parties, and as such, Master Robertson held that it was appropriate to consider both Affidavits.

Master Robertson also considered the Plaintiff’s complaints that it had been unable to examine the Defendant due to the Defendant’s numerous objections. The Master noted that the test to determine whether a question is proper is whether it is “relevant and material”. Rule 5.17 allows parties to ask questions about relevant and material information, and Rule 5.6 requires that Affidavits of Records disclose all relevant and material information. Even if a question is not directly tied to a particular statement in a pleading, that does not necessarily make it improper - rather, there must be a “proper basis for the question given the dispute”.

Next, Master Robertson considered the Plaintiff’s proposed amendments which detailed communications that were allegedly made after the claim was served. Master Robertson emphasized that it is not unusual to amend a pleading to ensure it “properly asserts the related facts that it learns along the way.” After obtaining more information at Questioning, the Plaintiff sought to plead specific facts, and in so doing, was ensuring compliance with Rule 13.7(f) which requires that a pleading asserting defamation include particulars.

Master Robertson also commented that the Defendant had argued, in reliance on Rule 13.7(f), that any questions about un-particularized acts of defamation were not relevant and material to the Action. Master Robertson found this argument absurd: the Plaintiff sought to particularize its Amended Statement of Claim through its proposed addition of examples of defamatory communications, and to find that these additions were not appropriately within the scope of the Action would be to force independent litigation in respect of each specific incident of defamation, which inefficiency would be clearly offside Rule 1.2.

Lastly, Master Robertson considered the fact that the Plaintiff had additionally claimed against the Defendant in Ontario. The Ontario claim included several other Defendants, but also included allegations of defamation. The Defendant argued that the amendments were duplicitous to the allegations in the Ontario Action, and were therefore hopeless and an abuse of process, contrary to Rule 3.68(2)(d). Master Robertson noted that this argument addressed the entire claim, and not just the amendments, and that if the Defendant wished to argue that the dispute should be argued only within the Ontario proceedings.

Master Robertson allowed the Plaintiff’s Application and directed that the proposed Amended Amended Statement of Claim be filed within one week of his Order being entered.

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