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Civil Litigation - Pleadings - Pleading in the Alternative. PMC York Properties Inc. v. Siudak
In PMC York Properties Inc. v. Siudak (Ont CA, 2022) the Court of Appeal considered the tension between two torts relying on the same facts, pleaded in the alternative:[76] Nor am I persuaded that the claim for civil conspiracy is duplicative of the claim for defamation or, as the Divisional Court found, “merely the defamation claim dressed in different clothing”. To the extent that this conclusion affected the outcome of the Divisional Court’s decision to strike the claim for civil conspiracy, it was in error.
[77] First, there is no general principle that a claimant may not allege alternative causes of action, so long as they are properly pleaded, even if they arise out of the same facts and give rise to the same measure of damages: Roach v. Random House of Canada Ltd., [2000] O.J. No. 2585 (Ont. S.C.), at para. 17; Avalon Rare Metals Inc. v. Hykawy, 2011 ONSC 5569, at para. 15; Catalyst, at para. 32. As the Supreme Court helpfully reminded in A.I. Enterprise Ltd. v. Bram Enterprises Ltd., 2014 SCC 12, [2014] 1 S.C.R. 177, at para. 78, “general principles of tort liability accept concurrent liability and overlapping causes of action for distinct wrongs suffered by the plaintiff in respect of the same incident.”
[78] More specifically, I do not read the subsequent jurisprudence which the Divisional Court referenced, specifically, Bai and Elliott, as altering the approach set out in Hunt, at p. 991, that the mere fact that a claim for civil conspiracy is pleaded with another nominate tort should not, at least at the pleadings stage, mean that it is necessarily duplicative and should be struck. Indeed, the Supreme Court followed this approach in Young v. Bella, 2006 SCC 3, [2006] 1 S.C.R. 108 and in Bram.
[79] The fact that the claims for defamation and civil conspiracy are somewhat factually intertwined is not dispositive because it is not possible at an early stage of the proceedings to foretell their outcome: Catalyst, at para. 32; see also: Hunt, at p. 991. As earlier noted, in Catalyst, this court allowed pleadings of defamation and civil conspiracy to stand together, notwithstanding that those claims shared the same factual foundation of the defendants’ joint publication of defamatory statements in their respective investment research reports for the purpose of injuring the claimants’ reputations.
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