Case Report – Bare claim that individual published an anonymous letter can proceed

The British Columbia Court of Appeal recently published a November 19th defamation judgment in which it declined to strike a defamation claim because it did not allege facts to connect an anonymous letter to the defendant alleged to have published it.

The defendant (by counterclaim) argued that defamation pleadings are subject to a high standard of particularity and that the pleading of the plaintiff (by counterclaim) demonstrated mere speculation that she wrote the anonymous letter. She also argued that the plaintiff should not benefit from the presumption of truth normally accorded to pleadings attacked on the basis of their sufficiency given his speculation. The Court disagreed, stating:

With respect, this argument takes cases such as Swan v. Craig much farther than they should be taken. The counterclaim clearly alleges that Ms. Tyabji “authored” and “prepared” the anonymous letter and forwarded it to O’Connor, Canwest, Marissen and Janke; that the letter contained untrue statements that were defamatory of Blair Wilson; and that he suffered damage as a result. All the necessary elements of the cause of action were alleged. The fact that all the allegations have been denied does not change this fact; it simply means that the issues have been joined. It is not even necessary, in my view, to refer to the affidavit evidence that has been filed by Blair Wilson, to support this conclusion. Nor does the fact that the letter is anonymous on its face mean that something more is required in his pleadings. It cannot be said that Blair Wilson has beat around the bush in his counterclaim or made general allegations against a number of people without stating who did what, as occurred in Craig v. Langley Citizen’s Coalition 2003 BCSC 124 (CanLII), 2003 BCSC 124. The reader knows what the allegations against Ms. Tyabji are. If it turns out that in fact, she did not “author” or “prepare” the letter, then Blair Wilson will be mulcted in costs, but we will not know this until a trial has been held. The allegations may be “conclusory” in the sense that the Court will be asked to ‘connect’ some ‘dots’ but Blair Wilson has pleaded the facts material to each element of the cause of action in respect of Tyabji and Tugboat as he is required to do. A triable cause has clearly been made out.

The Court also rejected arguments that the plaintiff did not properly plead malice and breach of section 114 of the British Columbia Business Practices and Consumer Protection Act.

Lougheed v. Wilson, 2009 BCCA 537 (CanLII).

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