Counsel:
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G.J. Baugh, for the plaintiff. H.D. Edinger, for the defendants, Philip Hochstein and Independent Contractors and Businesses Association of British Columbia. |
BOYD J.:—
Introduction:
¶ 1 The defendants, Philip Hochstein and the Independent Contractors and Businesses Association of British Columbia (hereinafter referred to as "The ICBA Defendants") seek production of certain documents relating to the plaintiff's "job targeting program", the existence and details of which are in issue in this libel action. The plaintiff opposes the application and by way of cross-application, seeks further and better particulars of the Statement of Claim or, in the alternative, an order striking out the defences of justification and fair comment of the ICBA Defendants.
Background Facts:
¶ 2 Very briefly, the plaintiff alleges that the ICBA Defendants defamed it in three separate publications in October, 2002 (one article in the Vancouver Sun; one news release issued by the ICBA Defendants and placed on the ICBA web site; and one article in the Journal of Commerce). The alleged defamatory words are set out in paragraphs 9, 20 and 24 of the Statement of Claim. In the case of each of the publications, the alleged "sting" is the same-that the job-targeting scheme was improper, illegal, immoral, fraudulent, and involved conspiracy with contractors.
¶ 3 The ICBA Defendants have pleaded justification and fair comment and that the plaintiff has suffered no damage as a result.
¶ 4 On this application the ICBA Defendants have sought production of all documents relevant to the statements of facts sought to be justified, including:
| (a) | the plaintiff's Constitution and By-laws, as well as any standing rules of the plaintiff relevant to job-targeting, market recovery or market-enhancement programs; |
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| (b) | all documents concerning the conception and establishment of the plaintiff's job-targeting program; |
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| (c) | financial statements of the plaintiff from 1992 (the date the "fair wage" policy was established) until present; |
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| (d) | all correspondence of all staff and executive and regular members of the plaintiff relating to the job-targeting program; |
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| (e) | all general correspondence of the plaintiff with the regional, provincial, federal and international bodies of the IBEW, the British Columbia/Yukon Building & Construction Trades Council and the Construction Labour Relations Association of British Columbia relating to the job-targeting programs; |
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| (f) | all correspondence received or sent by the plaintiff concerning complaints from non-member individuals or non-affiliated employers relating to the job-targeting programs and all regular or extraordinary newsletters or bulletins from the plaintiff's executive, board or senior staff members to union members concerning the job-targeting programs. |
Issues:
| 1. | For their plea of justification, are the ICBA Defendants restricted to relying on information they possessed at the time of the alleged libel? |
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| 2. | Have the ICBA Defendants provided sufficient particulars to entitle them to discovery of the plaintiff's documents? |
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| 3. | If not, should the defences of justification and fair comment be struck? |
| 1. | In supporting their plea of justification, are the ICBA Defendants restricted to relying on information they possessed at the time of the alleged libel? |
¶ 5 Relying on the leading case of Fletcher-Gordon v. Southam Inc. (1997), 28 B.C.L.R. (3d) 187, 143 D.L.R. (4th) 160 (S.C.), aff'd (1997), 29 B.C.L.R. (3d) 197 (C.A.), the plaintiff has submitted that the ICBA Defendants must defend its statements as ones made based on the knowledge which they possessed at the time the allegedly libellous statements were published and that they cannot defend their statements based on information acquired after the event during their discovery of the plaintiff. The plaintiff goes further and also submits that the defendants may only justify their statements on the basis of the evidence they possessed at the time the allegedly libellous statements were made.
¶ 6 On a review of the authorities, I agree that the defendants' discovery of the plaintiff's documents must be restricted to those documents which pertain to those facts pled, either in the Defendants' Statement of Defence or Statement of Particulars, in justification of the statements. In Fletcher-Gordon (supra) at [paragraph] 10, this Court held that "the facts to justify a libel must have been in the hands of the defendant at the time of the libel". The ruling was upheld on appeal.
¶ 7 In my view however, the plaintiff's further position that the ICBA Defendants are restricted to relying on evidence that the defendants possessed at the time of the alleged libel is not supported by the authorities. While this proposition is stated in Parkland Chapel Ltd. v. Edmonton Broadcasting Co. Ltd. et al. (1964) 45 D.L.R. (2d) 752 (Alta S.C.), this aspect of the decision was not adopted by the Court in Fletcher-Gordon (supra). The other authorities relied on by the plaintiff, (Savein v. Green, [1989] B.C.J. No. 1862 (S.C.); Earle v. Coltsfoot Publishing Co. (1998), 171 N.S.R. (2d) 110 (S.C.); Foster v. Foster, [1944] O.W.N. 611 (H.C.J.); Kent v. Kehoe (2000), 181 N.S.R. (2d) 137 (C.A.); Goldschmidt v. Constable & Co., [1937] 4 All E.R. 293 (C.A.)), state that particulars of facts supporting the defence of justification must be supplied before discovery can take place, or that discovery is restricted to matters specifically pleaded. However none of those authorities support the proposition that in proving that their statements are justified, libel defendants are limited to relying only on the evidence they possessed at the time the statements were made.
| 2. | Have the ICBA Defendants provided sufficient particulars to entitle them to the extensive discovery of the plaintiff's documents sought? |
¶ 8 In supporting their plea of justification, although the ICBA Defendants are not restricted to relying on evidence they possessed at the time of the alleged libel, this alone does not entitle them to the discovery of documents they currently seek to compel from the plaintiff. In order to be entitled to such discovery, the facts relied on in support of the defence of justification must be precisely stated in the Statement of Defence or in the particulars provided (Arnold & Butler v. Bottomley et al., [1908] 2 K.B. 151 at 155-56), and discovery is restricted to those facts (Nelson v. Bradstreet, [1917] 2 W.W.R. 1191 (B.C.S.C.); Fletcher-Gordon (supra) at [paragraph] 5; Savein v. Green (supra) at [paragraph] 4; Kent v. Kehoe (supra) at [paragraph] 17; Parkland Chapel (supra) at 758-60).
¶ 9 Libel defendants are not permitted to enter a generalized plea of justification and then embark on a fishing expedition through the discovery process in the hopes of uncovering evidence which may buttress general allegations of facts justifying their defamatory statements. (Fletcher-Gordon, [paragraph] 10; Kent v. Kehoe, [paragraph] 19; Parkland Chapel at 759). This law derives from the longstanding policy which discourages persons from making defamatory statements about others when not possessed of facts which would support such statements: Kent v. Kehoe, [paragraph] 22.
¶ 10 The degree of specificity of particulars required in order to permit discovery of documents was set out in Zierenberg v. Labouchere, [1893] 2 Q.B. 183 at 187 (C.A.), where the court held that instances, times or occasions of the alleged (mis)conduct must be provided. Echoing this statement, the court in Fletcher-Gordon held at [paragraph] 5 that "the defendants are not entitled to proceed to discover documents so to bolster a defence of justification unless particulars of facts, incidents or transactions have been given in support of such a plea."
¶ 11 In my view, in the case at bar, the particulars provided by ICBA Defendants to date are not sufficiently specific to allow discovery of the plaintiff. The allegations set out in the defendants' particulars essentially amount to generic claims that:
| (i) | the plaintiff engages in a general type of activity (job targeting programs); |
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| (ii) | that the plaintiff generally goes about conducting this type of activity in such a way; and |
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| (iii) | that activity of this general nature conducted by others, presumably similarly situated to the plaintiff, involves a certain global amount of funds and has certain deleterious effects (lowering the net wages a union contractor has to pay below fair wage levels set by the government). |
There is no mention of any specific instances or examples of this plaintiff engaging in the activity or of how the plaintiff goes about doing so. Nor is there, for example, any mention of the amount of funds involved that could be attributed to this plaintiff.
¶ 12 The Statement of Defence and Particulars are little more than a generalized "allegation of a system of wrong-doing [which] is a wholly insufficient basis for a claim to inspect the plaintiff's [documents]", per Kennedy L.J. in Arnold & Butler v. Bottomley (supra) at 159. Particulars of such a vague, non-specific nature cannot be said to have "sufficient precision to enable the plaintiff to know and prepare [itself] to deal with them" (Wootton v. Sievier, [1913] 3 K.B. 499 at 504 (C.A.)) or to pin down what the defendant specifically intends to prove at trial (supra at 505).
¶ 13 In my view, it is no answer for the ICBA Defendants to say that the particulars are within the knowledge of the plaintiff and then to allow the ICBA Defendants to engage in the very broad, exhaustive discovery of documents they seek. If that was allowed, then the plaintiff might well be subsequently required, without warning at trial, to justify whatever part of its organization or activities the defendants might choose to raise and focus on. Such an approach is characterized as unfair and is not permitted: Drake v. Overland and Southam Press Ltd., [1980] 2 W.W.R. 193 at 198-99 (Alta. C.A.). Also see Laird v. Scott (1908), 9 W.L.R. 349 at 352 (Sask S.C.); Arnold & Butler v. Bottomley, supra; J'Anson v. Stuart (1787), 1 T.R. 748 at 752; 99 E.R. 1357 at 1359.
¶ 14 In the case at bar, the level of generality in the ICBA Defendants' particulars essentially reflects that in the Statement of Defence. The allegations are similar. Indeed, I am satisfied that in its particulars the ICBA Defendants are merely repeating the alleged libel, per Kay L.J. in Zierenberg (supra) at 189. In similar circumstances, where the libel defendant has made generic, imprecise allegations, it has not been entitled to discovery of documents. See Fletcher-Gordon (supra); Arnold & Butler v. Bottomley et al. (supra); Zierenberg (supra)).
¶ 15 Here the ICBA Defendants have submitted that if they were compelled to provide more specific particulars they would effectively be required to plead evidence. Relying on Mimistic Air Ltd. v. Canadian Broadcasting Corp., [1995] 8 W.W.R. 31 at 37 (Man. Q.B.), they submit that they are not required to provide precise details of the job targeting program or minutely detailed descriptions of transactions allegedly performed pursuant to the program.
¶ 16 I reject this submission. In providing further and better particulars, all that is required of the ICBA defendants is to allege or plead instances, times, or occasions of facts supporting their defence of justification. They are not required, at this point, to disclose what documents, testimony or exhibits they intend to rely on to prove the truth of the alleged libel.
¶ 17 Further, it must be noted that Mimistic is not the law in British Columbia. In Fletcher-Gordon (supra) at [paragraphs] 9-10, the Court chose specifically not to follow Mimistic:
| [9] | These old cases on the law of defamation are still good law in British Columbia. They have not been overtaken by the general rule of disclosure based on relevancy which is itself based upon the 1882 case of Compagnie Financiere du Pacifique v. Peruvian Guano Co. (1882) 11 Q.B.D. 55. It was argued unsuccessfully in Parkland Chapel Ltd. v. Edmonton Broadcasting Co. Ltd. (1964) 48 W.W.R. 303 that the general rules prevail. This conclusion was required to be read in light of the newly expanded rights to discover contained in the rules of civil procedure of Manitoba in Mimistic Air Ltd. v. Canadian Broadcasting Corp., [1995] 8 W.W.R. 31. There, discovery was allowed once the defendants had particularized "the issue" without having plead specific facts. The court, however, said that it did not matter whether the defence was justification or fair comment and did not consider the specific nature of the plea of justification that is required to support such discovery in libel. Whether expanded disclosure would be unfair within the context of a justification plea as historically developed and as generally required by the Manitoba rules was also not considered. While there was recognition of the rule in defamation that a general plea will not found discovery of facts to justify statements, the case may be confined to its conclusion that the facts there were sufficiently particularized to allow discovery without pleading in minute detail. |
| [10] | The suggestion that upon a generalized plea of justification there exists the right to search through the plaintiffs books to gain information as to all of his affairs so to possibly buttress general allegations is as repugnant today as it was to the law Lords in 1859, regardless of expanded rules of discovery generally (see Metropolitan Saloon Omnibus Company v. Hawkins (1859), 4 H. & N. 146; Reid v. Albertan Publishing Co. Ltd. (1913) 3 W.W.R. 91; Savein v. Green, supra.). The facts to justify a libel must have been in the hands of the defendant at the time of the libel (Parkland Chapel Limited v. Edmonton Broadcasting Co. Ltd., supra. at 312; Savein v. Green, supra.). I disagree with the conclusion expressed in Mimistic Air Ltd. v. Canadian Broadcasting Corp., supra if its effect is to allow a defendant to search for facts not within its knowledge at the time of the libel to support a defence of justification. |
¶ 18 Indeed, the principle in Mimistic that the ICBA Defendants now seek to rely upon does not appear to have been followed anywhere outside Manitoba.
¶ 19 Even where defendants have not been required to provide minute details (e.g. specific dates of events, per Mimistic, ibid.) or to list each and every instance of facts justifying the alleged libel (Siddon v. Mair (No. 2), [1997] B.C.J. No. 280 at [paragraphs] 16-18 (S.C.), libel defendants have nevertheless not been absolved from at least mentioning some individual instances, occasions, transactions or the individuals involved.
¶ 20 Thus, in this case, while the ICBA Defendants need not provide the names of each and every member of the plaintiff union contributing dues to the job targeting program or the exact amount of each member's contributions, the particulars might include, for example, the names of executives or officers playing particular key roles in the program and/or specific instances or amounts of monies contributed by the plaintiff to an individual contractor or contractors pursuant to the program. Still it must be noted that since the statements complained of in the alleged libel are of a generic nature, essentially claiming that the plaintiff was engaged in a system of wrongdoing, it would not be sufficient for ICBA to plead only a single or couple of instances of the conduct in question for each allegation made against the plaintiff: Wakley v. Cooke (1849), 4 Exch. 511, 154 E.R. 1316; Fitch v. Lemmon (1868), 27 U.C.Q.B. 273 (C.A.); Burnet v. Gow (1896), 24 S.C. 156 (Ct. of Sess.); Pickels v. Lane (1914), 47 N.S.R. 465 (C.A.).
¶ 21 I have concluded that in the case at bar, the ICBA Defendants have failed to provide sufficiently specific particulars to entitle them to the discovery of the documents they currently seek to compel from the plaintiff. Accordingly, at this point, the ICBA Defendants' application for production of documents is dismissed, with liberty to renew the application at a later date.
| 3. | Should the defences of justification and fair comment be struck from the Statement of Defence? |
¶ 22 I have concluded that since this is the first application to the Court for further and better particulars pertaining to the ICBA Defendants' pleas of justification and fair comment, any order for a striking out of the defences of justification and fair comment would be premature. Rather I will order, pursuant to the plaintiff's alternative application under Rule 19(16), that within 14 days of this Order, in the case of each of the libellous allegations made against the plaintiff, the ICBA Defendants shall provide particulars of specific instances, times, occasions, transactions or individuals involved.
¶ 23 If the further particulars are provided within the time frame set by the Court but are unsatisfactory, the plaintiff may then renew its application to strike out the defences of justification and fair comment if they are in fact insufficient.
BOYD J.
QL UPDATE: 20040212
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