Pleadings for defamation and civil conspiracy are typically held to a high standard of particularity. But does the requirement to provide sufficient particulars mean that defamation and civil conspiracy pleadings escape the modern, flexible approach to pleadings? In PMC York Properties Inc. v. Siudak, 2022 ONCA 635, the Court of Appeal for Ontario confirmed that it does not. To survive a motion to strike, pleadings in defamation and civil conspiracy need not contain "exact particulars". Instead, they must simply allow the defendants to "know the case they have to meet"1.
What you need to know
- The Court of Appeal confirmed the application of the modern, flexible approach to pleadings for defamation and civil conspiracy: leave to amend pleadings should only be denied "in the clearest of cases".
- The modern, flexible approach does not require claimants to provide "exact particulars" of a defamation allegation, such as the exact words published, the exact dates and times of publication, or the exact names of the recipients or audience of the defamatory words, so long as the allegation is pleaded in good faith and with sufficient particulars for defendants to know the case they have to meet.
- Pleading the "gist" of the defamatory words, specifying the timespan of the publication and identifying without naming the audience may be sufficient.
PMC York arose out of a dispute between PMC York Properties Inc. ("PMC York"), the property manager for Bentley Place condominium, and certain members of the Bentley Place's board of directors.
The appellant, Bill Siudak, purchased a unit at Bentley Place in 2018. He became concerned about the management of the condominium, prompting him to run for election to the condominium's board in May 2019. Once elected to the board, Mr. Siudak published a newsletter alleging financial mismanagement by PMC York and its directing principals, Paul and Margot Casuccio, which he distributed to unit owners including through a website he created. In response, Mr. Casuccio successfully advocated for Mr. Siudak's removal from the board.
A few months later, PMC York and the Casuccios sued Mr. Siudak, alleging that he had defamed them in oral conversations, in his newsletter and on his website. Mr. Siudak countersued, alleging defamation as well as civil conspiracy2. The plaintiffs moved to strike Mr. Siudak's counterclaim, alleging that his pleading contained no material facts and therefore failed to plead a reasonable cause of action3.
The motion judge denied the plaintiffs' motion to strike4, but the plaintiffs successfully appealed to the Divisional Court, which subsequently struck out and dismissed Mr. Siudak's counterclaim without leave to amend5. Mr. Siudak appealed, arguing that the Divisional Court erred by failing to correctly apply the modern, flexible approach to pleadings, under which his defamation and civil conspiracy pleadings should not be struck.
The Court of Appeal's decision
The key legal question for the Court of Appeal was how to apply the modern, flexible approach to pleadings in defamation and civil conspiracy claims.
Under the modern, flexible approach, courts are to treat the facts pleaded as true unless they are "manifestly incapable of being proven", read the pleadings "generously" and consider whether any drafting deficiencies can be cured by amendment to the pleadings. Leave to amend should only be denied "in the clearest of cases"6. As the Supreme Court of Canada recently confirmed in Atlantic Lottery v. Babstock, the test on a motion to strike is "whether the pleadings, as they stand or may reasonably be amended, disclose a question that is not doomed to fail"7.
The Court of Appeal began by acknowledging the high standard for particularity that defamation pleadings attract—given the "serious nature" of a defamation allegation, it is important that the pleadings enable the defendant to know the case it ought to meet8. However, where a plaintiff alleges defamation against multiple defendants, the requirement to sufficiently particularize the claim as against one defendant cannot prevent the application of the modern, flexible approach to the pleading against the other defendants. Instead, the modern, flexible approach "applies to the pleadings as a whole", even where there is only a claim for defamation against one defendant. So long as the claimant pleads in good faith and with sufficient particularly the constituent elements of defamation such that "the defendant is not left in the dark as to the case to be met", the pleading should survive a motion to strike9.
The modern, flexible approach does not always require plaintiffs to provide "exact particulars" of an alleged defamation, such as the exact words published, the exact dates and times of publication, or the exact names of the recipients of the defamatory words. Rather, pleading the "gist" of the defamatory words, specifying the timespan of the publication and identifying, without naming, the specific recipients of the defamatory words may be sufficient. So long as the plaintiff proceeds in good faith and pleads a coherent body of facts along with all particulars within their knowledge such that the defendants know the case they have to meet, the pleading should survive a motion to strike10.
Applying the modern, flexible approach, the Court of Appeal allowed Mr. Siudak's appeal, restoring the motion judge's decision to decline to strike Mr. Siudak's counterclaim.
PMC York serves as an important reminder of the high standard for striking pleadings under Rules 21 and 25. The Court of Appeal's decision also has the potential to raise questions about when the limitation period for a defamation claim begins, as plaintiffs may not need to know the "exact details" of their allegations in order to sue.
1. PMC York Properties Inc. v. Siudak, 2022 ONCA 635, para. 44 (PMC York).
2. PMC York, 2022 ONCA 635, para. 14.
3. PMC York, 2022 ONCA 635, para. 19.
4. PMC York, 2022 ONCA 635, para. 3.
5. PMC York, 2022 ONCA 635, para. 3.
6.PMC York, 2022 ONCA 635, para. 31, citing Hunt v. Carey Canada Inc., , 2 S.C.R. 959 at p. 980; R v. Imperial Tobacco Canada Ltd., 2011 SCC 42,  3 S.C.R. 45, paras. 17, 22; Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19, 447 D.L.R. (4th) 543, at paras. 87-88; Tran v. University of Western Ontario, 2015 ONCA 295, paras. 16, 26-27; Abbasbayli v. Fiera Foods Company, 2021 ONCA 95, para 20.
9. PMC York, 2022 ONCA 635, para. 40.
10. PMC York, 2022 ONCA 635, para. 44.
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