Case information

Civil procedure — Pleadings — Motion to strike — Torts — Libel and slander — Court of Appeal upholding motion judge’s refusal to strike counterclaim in defamation based on finding that elements for prima facie case of defamation had been pleaded — Whether the traditional, rigorous approach to defamation pleadings should give way to a modern, flexible approach — If so, what the requirements of that modern, flexible approach should be — Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 21 and 25.11.

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The application arises out of a dispute between the applicants, a condominium corporation’s property management company and its directing principals, and the respondent, a former condominium owner and member of the condominium’s board of directors. The applicants sued the respondent for damages for defamation. The respondent counterclaimed in defamation and civil conspiracy against the property management company’s directing principal, Mr. Casuccio, and certain owners and members of the condominium corporation’s board of directors. The applicants moved to strike out the respondent’s counterclaim. The motion judge refused to do so. The Divisional Court overturned that order and struck out the respondent’s counterclaim, without leave to amend. It concluded that the motion judge erred because the respondent had not pleaded his claim for defamation with the requisite particularity. The Court of Appeal allowed the respondent’s appeal. It concluded that the Divisional Court had misapplied the modern, flexible approach to pleadings for defamation and had failed to read the respondent’s pleadings generously. As a result, the Divisional Court did not respect the appropriate deference owed to the motion judge’s refusal to strike out the pleadings.