PINKNEY v HINES

The Appellants appealed an Application Judge’s decision dismissing their Application to strike portions of the Statement of Claim pursuant to Rule 3.68 and their Application for summary dismissal. The Respondent’s Statement of Claim alleged that the Appellants defamed him and induced his employer, Manulife Securities Inc. (“Manulife”), to breach his employment contract by providing a filed Statement of Claim from a separate litigation to Manulife, which terminated his employment shortly thereafter. The Appellants sought to strike the defamation claim on the basis of absolute privilege and to summarily dismiss the inducing breach of contract claim.

The Appellants argued that the impugned statements were protected by absolute privilege because they were contained in a court pleading and that there was no evidence they intended to cause the Respondent’s dismissal. The Respondent maintained that absolute privilege did not extend to the distribution of the pleading to a third party outside the litigation and that the summary dismissal Application relied on inadmissible hearsay evidence.

In assessing the Application Judge’s decision, Justice Lema held that the Rule 3.68 Application failed because it was not plain and obvious that the defence of absolute privilege applied. While pleadings filed in court are generally protected, the focus was on the separate act of sending the pleading to a non-party. The Court found that this communication was not obviously a litigation step or otherwise shown to be incidental to, or in furtherance of, the underlying proceeding. As a result, it was not plain and obvious that the defamation claim disclosed no reasonable cause of action to grant striking under Rule 3.68.

Lema J. also upheld the dismissal of the Summary Judgment Application. Rule 13.18(3) requires affidavits supporting dispositive applications to be based on personal knowledge. The Appellants relied on an affidavit from a legal assistant regarding the state of communications between the law firm and Manulife, but this was based on hearsay and the affiant lacked personal knowledge, contrary to Rule 13.18(3). Justice Lema declined to relax the Rule where the party with direct knowledge (the lawyer) was available to provide direct evidence but chose not to and concluded that the lack of sufficient evidence created a genuine issue for trial concerning the nature and effect of any communications with the employer.

The Appeal was dismissed in its entirety, the Applications Judge’s decision was upheld, and the Respondent was awarded Schedule C costs.