The Action related to a defamation claim arising from comments in an online press release and posts on X (formerly Twitter). There was a dispute as to the proper Defendant to be named, as the named Defendant was an unincorporated association, not capable of being sued. An Application was brought by the Plaintiff seeking direction from the Court as to who to name. However, the day before that Application was heard, the parties reached an agreement wherein the Applicant would abandon the Application and the Respondent would provide a name of an individual who could be named on behalf of the Respondent. Only Costs were addressed at the hearing of the Application, and Costs were awarded to the Respondent.

The Respondent then failed to meet its obligations under the settlement agreement, and the Applicant brought a fresh Application to appeal the Costs awarded to the Respondent and revive the prior Application for direction as to the proper parties. In response, the Respondent applied to strike the Statement of Claim, pursuant to Rule 3.68, or summarily dismiss the claim, pursuant to Rule 7.3.

The named Defendant was a beneficiary of a trust. The Respondent cited Rule 2.1 to argue that the claim should have been brought in the name of the trustee. However, the trustee was also an unincorporated entity and did not have legal capacity to be sued. Rule 2.1 was therefore found to be inapplicable.

The Respondent also argued that Rule 2.6 provided the Applicant the option to name a litigation representative without the agreement of the Respondent. Justice Dario found this argument disingenuous, as the Applicant’s submissions made clear that they were effectively seeking a ruling with the same result as an Application under Rule 2.6.

Reference was made to Rules 2.12, 2.6, 2.16, and 2.21 regarding the proper representative to be appointed. Dario J. determined that a representative Defendant pursuant to Rule 2.6 was inappropriate, as the representative would not represent multiple parties’ interests. It was not clear to Justice Dario what type of litigation representative should be appointed. However, the Applicant’s Application invoked Rule 1.4(2), which provided the Court significant discretion to make decisions which support the overall purpose of the Rules. On that basis, the Court directed the Respondent to provide the Plaintiff with the name of an appropriate individual to act as a litigation representative. If that direction was not followed, the Court reserved the right to appoint a litigation representative under Rules 2.16 and/or 2.21.

Justice Dario then moved on to consider the Application of the Respondent to strike or summarily dismiss. The Respondent argued that there was an improper allegation of vicarious liability without legal basis. Dario J. reviewed the facts and law and dismissed this Application.

The final issue was the Appeal of the Costs Award. At the initial hearing on Costs, the Plaintiff took no position. The Applications Judge based his Costs Award on jurisprudence. The Plaintiff argued that the Judge failed to account for the factors enumerated in Rule 10.33, awarding 45% indemnity. Dario J. agreed with this argument, and found the Costs Award unreasonable.