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Torts - Defamation - Pleading Particulars. Teneycke v. McVety
In Teneycke v. McVety (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal, this from a dismissed defendents' anti-SLAPP CJA s.137.1(3,4) motion.
The court considers the propriety of the motion judge considering statements "that were not pleaded in the statement of claim" in their SLAPP merits analysis, here argued on grounds of non-particular defamation pleadings:Issue 1: Did the motion judge improperly consider statements beyond those expressly pleaded?
[41] The appellants argue that the motion judge improperly relied on statements made by Mr. McVety that were not pleaded in the statement of claim in his merits analysis. I agree that the motion judge looked beyond the statements pleaded, but viewed in context, this was not an error.
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[48] The appellants argue that it was improper for the motion judge to rely on these additional statements because they were not explicitly pleaded in the statement of claim. The appellants base their argument on the general legal principle that claims in defamation must be pleaded with particularity and on this court’s decision in Thatcher-Craig v. Clearview (Township), 2023 ONCA 96, 480 D.L.R. (4th) 639. There is no doubt that, as a general proposition, a claim in defamation requires particulars, including particulars of the alleged defamatory statements and their defamatory meaning: PMC York Properties Inc. v. Siudak, 2022 ONCA 635, 473 D.L.R. (4th) 136, at para. 38, leave to appeal refused, [2022] S.C.C.A. No. 407; Thatcher-Craig, at para. 52. This ensures that “the defendant is not left in the dark as to the case to be met”: PMC York, at para. 40. However, the motion judge did not infringe this general principle by referring in his decision to statements beyond those pleaded. ...
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[51] The circumstances in this case are significantly different from those in Thatcher-Craig. In that case, the plaintiffs had not pleaded any of the specific words alleged to be defamatory. Instead, in their statement of claim, the plaintiffs complained about public comments republished by the defendants, without identifying the content of almost all the comments; the claim simply described the comments as “negative … defamatory, inaccurate and damaging”. Feldman J.A. found that it was an error for the motion judge, in the context of an anti-SLAPP motion, to rely on the actual words used in the statements, which were in evidence on the motion, to assess whether the claim and proposed defences had substantial merit. The rationale for this conclusion was that s. 137.1(6) of the Courts of Justice Act precludes respondents on an anti-SLAPP motion from amending their statements of claim to avoid an order dismissing the claim: at paras. 52-53. Here, unlike in Thatcher-Craig, the claim was not pleaded with a lack of specificity such that the motion judge would have had to read in particulars; rather, the motion judge simply referred to additional occasions when Mr. McVety essentially repeated the statements already pleaded with specificity in the statement of claim.
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