Hache v. The Daily News

Hache v. The Daily News Court Supreme Court Date 2004-03-11 Citation 2004 NSSC 57 Docket SBW 204351, SBW 204352, SBW 206678 Judge/Registrar/Adjudicator Cacchione, Felix (Honourable Justice) Document Type Decision Relations Library Sheet - Hache v. The Daily News - 2004 NSSC 57 - 2004-03-11 - Library Sheet Decision Content IN THE SUPREME COURT OF NOVA SCOTIA Citation: Hache v. The Daily News, 2004 NSSC 57 Date: 20040311 Docket: SBW 206678 Registry: Bridgewater Between: Alfred Joseph Hache Plaintiff - and - Groupe Halifax Daily News Inc./Halifax Daily News Group, carrying on business as The Daily News and The Truro Daily News, Cathy Nicoll, and Canwest Interactive Inc. Defendant Date: 20040311 Docket: S.BW. 204351 Registry: Bridgewater Between: Alfred Joseph Hache Plaintiff - and - Brunswick News Inc., carrying on business as The Moncton Times & Transcript Defendant Date: 20040311 Docket: S.BW. 204352 Registry: Bridgewater Between: Alfred Joseph Hache Plaintiff - and - Acadia Broadcasting Company Limited, carrying on business as CKBW - FM Bridgewater Defendant Judge: The Honourable Justice Felix A. Cacchione Heard: February 10, 2004, in Halifax, Nova Scotia Written Decision: March 11, 2004 Counsel: Kevin Latimer, for the Plaintiff Alan V. Parish, Q.C., for the Defendants By the Court: [1] The plaintiff/respondent in this application commenced three separate actions for defamation against the defendants Brunswick News Inc. (The Moncton Times), Acadia Broadcasting Company Limited ( CKBW-FM Bridgewater) and Halifax Daily News Group (The Daily News, The Truro Daily News, Cathy Nicholl and Canwest Interactive Inc.). [2] The defendants/applicant bring this application seeking a consolidation of these three separate actions into one and an order for further and better particulars pursuant to Civil Procedure Rule 14.24. [3] At the commencement of the hearing counsel for the applicant advised the Court that the parties had agreed to a consolidation of the three actions. Accordingly it is ordered pursuant to Civil Procedure Rule 39.02 that the three separate actions be consolidated. The remaining issue is whether the respondent should be ordered to provide further and better particulars. [4] A review of the file discloses that a notice of intended action pursuant to s.18 of the Defamation Act R.S.N.S. 1989, c.122 was served on each of the defendants in May 2003. Attached to the various notices were the publications which are the subject matter of the defamation actions. The actions were commenced in July and September 2003. By August 2003 counsel for the defendants advised the plaintiff’s counsel that he was representing all of the served defendants. He requested an extension of time for filing their defences. Later on in August a further request for an extension of time for filing defences was made. In September 2003 counsel for the applicant indicated that he would like to consolidate the actions. By the end of September 2003 he indicated to the plaintiff’s counsel that defences had been drafted and were ready for filing subject to a final review by his clients. [5] On October 3rd, 2003 a demand for particulars was issued for each of the separate actions. Answers to the demand for particulars were provided on October 27th, 2003. The applicant not being satisfied with the answers received brought this application for further particulars. [6] These actions for defamation against the various media outlets arise as a result of several articles, headlines, broadcasts and internet website publications which followed a ruling by this Court on a certiorari application. [7] The plaintiff was dismissed from his employment as a school teacher in 1996 because of six sexual assault allegations made against him. He was at that time only advised of five of those allegations, however his employer considered the six allegations in arriving at its decision to terminate him. This Court held on the certiorari application that the termination was a nullity because the mandatory requirements of the Education Act regarding termination had not been followed. [8] The plaintiff was convicted in 1997 of indecent assault and sexual assault charges relating to six former students. His convictions, however, were overturned in 1999 by the Court of Appeal and a new trial was ordered. The Public Prosecution Service chose not to proceed with a new trial. [9] The statements of claim cite several references in the various publications to the plaintiff as a “sex offender” and refer to the Court’s ruling on the certiorari application as an “order” that he be given his job back despite being a sex offender; apparently referring to the 1997 convictions but not to its quashing on appeal. [10] A reading of Coughlan, J.’s decision on the certiorari application reveals that the Court did not order that the plaintiff be given his job back, but ruled only that his dismissal was a nullity. [11] Prior to the commencement of the hearing for further and better particulars there were twenty-three questions for which the applicant was seeking better particulars. At the hearing, however, the applicant withdrew his request for further particulars on fifteen of those twenty-three questions. [12] The applicant in his oral submissions acknowledged that he understood the meaning of what the plaintiff was pleading, that is innuendo. He complained however, about poor drafting of the statements of claim. He conceded, as well, that he understood that the innuendo referred to the time of publication. [13] The respondent submitted that the pleadings referred to the articles as a whole and then specified which portions are innuendo. He argues that the applicant understands the case against him both through the statements of claim and the particulars already supplied. He states that the applicant can get the answers he seeks through examination for discovery under Civil Procedure Rule 18, interrogatories under Civil Procedure Rule 19 and admissions under Civil Procedure 21. [14] The respondent opposed the requirement for further and better particulars arguing that it was simply an attempt at more procedural fencing. The respondent submitted that the applicant knows the case he has to meet and should file a defence so that the matter can move forward. [15] In Rowe v. New Cap Inc. et al. (1994), 134 N.S.R. (2d) 52 Goodfellow, J. dealt with a similar application for particulars pursuant to Civil Procedure Rule 14.24 in a defamation action. He reviewed the purpose of pleadings in all civil actions and commented at page 56 as follows: The pleadings inform the other side of the nature of the case to be met as distinguished from the evidence which is the manner in which a party hopes to prove his/her case... it defines the issues to be tried and by doing so, it places some limit on the costs of litigation that would otherwise arise. [16] Goodfellow, J. also at page 56 stated the test to be applied in an application such as this is: ...whether or not the summary form of the material facts relied upon has been provided (has been outlined in the pleading), so that the opposing party will be left in no doubt as to the case that must be met. [17] I adopt the words of Scott, L.J. in Pinson v. Lloyds and National Provincial Foreign Bank Limited, [1941] 2 K.B. 72 (C.A.), at page 75 as being the applicable law in relation to the function of particulars. Their function is to put the opposite party on his guard and prevent him being taken by surprise at the trial of an action, the “material facts” of which should have been already averred. [18] In concluding whether or not a summary form of material facts relied upon has been provided so that the opposing party will be left in no doubt as to the case that must be met, Goodfellow, J. at page 58 of the Rowe decision held that: ...it is quite appropriate to look to the article itself for some guidance as to the meaning of the pleading for which a demand has been made for further and better particulars. [19] Glube C.J.T.D. (as she was then) summarized the function of particulars as follows in Hanna (M.A.) Co. v. Nova Scotia (Premier) (1990), 97 N.S.R. (2d) 281 at p. 284: (1) to inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved; (2) to prevent the other side from being taken by surprise at the trial; (3) to enable the other side to know what evidence they ought to be prepared with and to prepare for trial; (4) to limit the generality of the pleadings or the claim of the evidence; (5) to limit and define the issues to be tried, and as to which discovery is required; (6) to tie the hands of the party so that he cannot without leave go into any matters not included. But if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleadings. (citations omitted) [20] Raymond E. Brown in his text The Law of Defamation in Canada (Carswell (2d), looseleaf) vol. 3 at page 20-7 discusses particulars to be provided by a plaintiff in a defamation action and states: The defendant is entitled to know the case that is being made against him or her. This is the very starting point in requiring particulars in order to protect the defendant against surprise. What is to be avoided is some form of “tactical exercise resembling a sport” in which the adversary is kept in the dark. Therefore, particulars relating to the nature of the defamatory remark, defamatory meaning and understanding, identification, and publication may be ordered... [21] The author citing Churchill Forest Industries (Manitoba) Ltd. v. Finkel et al. (1971), 1 W.W.R. 745 (Man. C.A.) also comments that if the claim is that an entire article is defamatory, the plaintiff is not required to provide particulars as to: ...the parts of the article considered defamatory and the parts considered false, if breaking it down into such segments will not advance the cause of justice. [22] A plaintiff may allege that words are defamatory in their ordinary meaning, or that they carry an innuendo. Brown, in his text at vol. 1 page 5-73 states. A defamatory imputation may be drawn both by way of reliance on the natural and ordinary meaning of the words and by way of innuendo. Where the words complained of are in their natural and ordinary meaning capable of being held to be defamatory, no innuendo is necessary; and what the ordinary man will infer from those words is to be regarded as part of their natural and ordinary meaning and does not require the addition...of an innuendo. Where the words are not defamatory in their plain and ordinary meaning, but only by virtue of facts or circumstances attending the publication, the plaintiff must set out in his or her statement of claim the specific defamatory meaning which they conveyed to the persons to whom they were published. This meaning is known as the “innuendo”. Its office is explanatory. [23] Also relevant to the matter at hand is Brown’s statement (supra) Vol. 1 page 5-167 that: Sometimes the defamatory imputation may be caused by half truths or the incomplete reporting of an event. [24] In Keating v. Southam Inc. et al., (1999), 179 N.S.R. (2d) 208 Kennedy C.J. discussed innuendo and referred to it as being divided into two categories. False innuendo and true innuendo. He stated at page 212: ...False innuendo is a secondary meaning in which the words themselves are capable of bearing, and true innuendo is a secondary meaning which words can bear solely from the facts or circumstances not apparent on the face of the publication. If the plaintiff is alleging true innuendo, requiring knowledge of extrinsic facts on the part of the reader, to arrive at the alleged meaning beyond the words themselves, such extrinsic facts must be pleaded, or the claim cannot be understood. To the extent that the plaintiff claims defamation by innuendo, I agree the words creating the secondary meaning must be identified in the pleading. And further, if the innuendo is defamatory to the plaintiff, because of extrinsic fact or circumstances not mentioned in the article, then these must likewise be settled in the statement of claim to allow the defendants to know the case they must meet. [25] It is with the foregoing authorities and principles in mind that I now turn to the application at hand. [26] The statement of claim against Acadia Broadcasting Company Limited refers to radio news reports which stated that a Supreme Court Judge ordered that the plaintiff, described in the broadcast as a teacher convicted in 1997 of sexual assault charges in respect of former students, be given his job back. It claims that the news reports and particularly the statements relating to criminal convictions against the plaintiff are defamatory. It also claims in the alternative that the words meant and were understood to mean that the plaintiff (1) was a convicted sex offender; (2) was returned to work notwithstanding that he was a convicted sex offender; (3) took advantage of the trust placed in him as a teacher and abused it; (4) poses a danger to the public in students in particular; (5) could not be trusted in the company of children. It is apparent from the statement of claim that a true innuendo is being pleaded in the alternative. It is clear as well that the extrinsic facts or circumstances not mentioned in the broadcast are set out in paragraph 7 of the statement of claim which refers to the convictions having been overturned by the Court of Appeal. Paragraph 8 of the statement of claim alerts the defendant that the plaintiff claims the words broadcast both in their ordinary meaning and by innuendo are defamatory. [27] The statement of claim against Brunswick News refers to a published article entitled “Teacher Reinstated Despite Sex Assault Convictions”. It sets out portions of that article and claims that the statements relating to criminal convictions against the plaintiff are defamatory in their natural and ordinary meaning. At paragraph 5 the plaintiff sets out the specific defamatory meaning which the words convey to the persons to whom they were published. The statement of claim also sets out in paragraph 5 the extrinsic fact of the convictions being overturned on appeal and claims in paragraph 7 that the words both in their natural and ordinary meaning and by innuendo have damaged the plaintiff. [28] The same comments can be made regarding the statement of claim against Halifax Daily News Group. The pleadings sets out the words complained of as being defamatory, both in their natural and ordinary meaning and by innuendo, the extrinsic fact or circumstances attending the publication and the specific defamatory imputation alleged. [29] It is evident that all the statements of claim identify the defamatory remarks, the defamatory meaning and understanding, the publication, the innuendo and the extrinsic circumstances or fact. The pleadings as drafted may not be to the liking of the applicant’s counsel, but that is not the test. [30] The pleadings as drafted do define the issues to be tried and do tell the defendants what they will have to meet when the case comes on for trial. The defendant cannot allege at trial that they have been taken by surprise because the pleadings set out that the claims for defamation are based both on the natural and ordinary meaning of the words used and by way of innuendo. [31] The application for further and better particulars pursuant to Civil Procedure Rule 14.24 is accordingly dismissed with costs to the respondent. If the parties cannot agree on costs I will hear them in Chambers at a time mutually agreed upon. [32] The defendants/applicant are to file their defence within ten days of the date of this judgment. ______________________ Cacchione, J.