



COURT OF APPEAL FOR ONTARIO

CITATION: Guergis v. Novak, 2013 ONCA 449

DATE: 20130628

DOCKET: C56052

Weiler, Sharpe and Rouleau JJ.A.

BETWEEN

Helena Guergis

Applicant (Appellant)

and

V. Raymond Novak
,
    Arthur Hamilton, Cassels Brock & Blackwell LLP,
The Right Honourable Stephen Harper, Guy Giorno, Shelly Glover
,
The Honourable Lisa Raitt, Axelle Pellerin, Conservative Party
    of Canada
and Derrick Snowdy

Defendants (
Respondents
)

Stephen Victor, Q.C. and David Cutler, for the appellant

Robert W. Staley, Derek J. Bell and Jonathan G. Bell,
    for the respondents, The Right Honourable Stephen Harper, V. Raymond Novak,
    Shelley Glover and The Honourable Lisa Raitt

Wendy J. Wagner, for the respondent Axelle Pellerin

Peter N. Mantas, for the respondent, Guy Giorno

Paul D'Angelo, for the respondent, Conservative Party of
    Canada

Heard: April 17, 2013

On appeal from the order of Justice Charles T. Hackland
    of the Superior Court of Justice, dated August 24, 2012, with reasons reported
    at 2012 ONSC 4579.

By the Court:

A.

overview

[1]

The appellant is a former Minister of State for the Status of Women,
    member of the Conservative Party of Canada (CPC) caucus, and Member of
    Parliament for the Electoral District of Simcoe-Grey.

[2]

She alleges that on April 9, 2010, following a conversation with the
    Prime Minister, she was pressured to resign from Cabinet and did so under
    duress. On the same day, the Prime Minister issued a public statement; Novak
    wrote a letter to the RCMP; and Giorno wrote a letter to the Conflict of
    Interest and Ethics Commissioner. Ultimately, Guergis was removed from caucus and
    denied a further candidacy in her riding.

[3]

On March 31, 2011, the appellant complained to the Canadian Human Rights
    Commission against the Prime Minister and the CPC. The Commission decided not
    to deal with the appellants complaint on the basis that her removal from
    Cabinet was protected by Crown prerogative and her removal from caucus by
    parliamentary privilege making her complaints non-justiciable.  In addition,
    the Commission held her complaint against the CPC did not satisfy the statutory
    requirements of the
Canadian Human Rights Act
, R.S.C. 1985, c. H-6.

[4]

Approximately one month later, the appellant brought this action seeking
    general damages of $800,000 and aggravated and punitive damages of $250,000
    each from the defendants, who include:

·

The Conservative Party of Canada;

·

The Right Honourable, Stephen Harper, the Prime Minister of
    Canada;

·

Guy Giorno, the Prime Ministers Chief of Staff, at the relevant
    time;

·

Raymond Novak, the Prime Ministers Principal Secretary, at the
    relevant time;

·

The Honourable Lisa Raitt, a federal Cabinet minister;

·

Axelle Pellerin, an official on Minister Raitts staff, at the
    relevant time;

·

Shelly Glover, a Conservative Member of Parliament;

·

Arthur Hamilton, a lawyer with the firm Cassels Brock &
    Blackwell LLP, who was the lawyer for the Prime Minister and the CPC, at the relevant
    time;

·

Cassels Brock, the law firm of the Prime Minister and the CPC, at
    the relevant time; and

·

Derrick Snowdy, an individual.

[5]

Snowdy did not participate in the motion nor is he a respondent in this
    appeal. Hamilton and Cassels Brock are not respondents in this appeal.

[6]

The tort claims the appellant advanced against the respondents to this
    appeal include defamation against all of the respondents other than the CPC, as
    well as the torts of conspiracy, negligence, intentional infliction of mental suffering,
    misfeasance in public office, and alleged breach of a duty of care.

[7]

The respondents brought a motion to strike pursuant to Rule 21.01(1)(b)
    on the basis that the claim disclosed no reasonable cause of action. They
    submitted that (i) the tort claims arising from the appellants no longer being
    in Cabinet and caucus were not justiciable because such claims related to the exercise
    of Crown prerogative and parliamentary privilege; (ii) the alleged defamatory
    statements were either not defamatory or protected by absolute privilege or
    both; and (iii) the CPC and Prime Minister had authority to refuse the
    plaintiffs nomination.  The respondents motion was also based on the
    plaintiffs action being an abuse of process pursuant to rules 21.01(3)(d) and
    25.11(c).  They submitted the plaintiff was estopped from pursuing her claim
    because of the holding in the earlier administrative proceeding before the
    CHRC.

[8]

The motion judge granted the respondents motion. While he held that the
    action was an abuse of process, he independently assessed the statement of
    claim and concluded that it was plain and obvious that the action could not
    succeed. He struck the claims without leave to amend, with the exception of the
    claims made against Hamilton and Cassels Brock for which he granted leave to
    amend on terms.

[9]

The appellant appeals the motion judges conclusion that she is estopped
    from bringing her action and that it is an abuse of process. In relation to
    whether her statement of claim discloses a cause of action, the appellant
    submits that Crown prerogative and the Parliamentary privilege do not prevent
    an action in tort for the
manner
in which they were exercised and that
    it is not plain and obvious that her tort actions could not succeed. She seeks
    to have the motion judges order striking the claims against the respondents
    set aside. Alternatively, the appellant seeks an order granting her leave to
    amend the statement of claim against them.

[10]

For
    the reasons that follow, we would dismiss this appeal with the exception of the
    pleading in relation to the respondent Glover.

[11]

In
    relation to the other respondents, quite apart from the question of whether the
    appellant is estopped from pursuing her action against them on the basis of her
    prior CHRC claim, we agree with the motion judge that it is plain and obvious
    that the tort claims, including  alleged defamatory statements, cannot succeed.

[12]

We
    first will address the motion judges holding that the appellants claim is an
    abuse of process and second, will turn to whether the claim discloses a
    reasonable cause of action.

B.

The motion judges holding that the action is an abuse of process

[13]

As
    we conclude that, with the exception of the claim against Glover, the motion
    judge correctly concluded that the statement of claim should be struck under
    Rule 21.01(1)(b), we find it unnecessary to decide this issue. However, for the
    sake of completeness, we offer the following comments.

[14]

The
    CHRCs decision was that Guergiss core complaints were not justiciable. The
    motion judge held that it was an abuse of process for her to seek to have such
    determinations re-litigated.

[15]

It
    is a fundamental principle that where any judicial tribunal having proper
    jurisdiction gives judgment, then that judgment will be
res judicata
not
    only as to the point actually decided but also with respect to any other issues
    necessary to the decision. In
Toronto (City) v. Canadian Union of Public
    Employees (C.U.P.E.), Local 79,
2003 SCC 63,

[2003] 3 S.C.R. 77,
    at para. 37, the Supreme Court held that Canadian courts ought to apply the
    doctrine of abuse of process to preclude litigation in circumstances where the
    strict requirements of issue estoppel are not met but where allowing the
    litigation to proceed would violate the principles of judicial economy,
    consistency, finality, and the integrity of the administration of justice.

[16]

Before
    us, the respondents submitted that the fact Guergis elected to add additional
    defendants and derivative tort claims did not make less abusive her effort to
    re-litigate issues determined in the CHRC proceeding.

[17]

Since
    the decision of the motion judge, the legal landscape has changed with the
    Supreme Court of Canadas decision in
Penner v. Niagara (Regional Police
    Services Board),
2013 SCC 19. In that case a majority of the Court held
    that Penner, who had complained about the conduct of certain police officers,
    could not reasonably have contemplated that their acquittal at a disciplinary
    hearing would be determinative of the outcome of his civil action against them.
    The court held that a partys decision to commence an administrative proceeding
    cannot be divorced from the partys reasonable expectations about what is at
    stake in those proceedings. The parties reasonable expectations are shaped by
    the scope and effect of the administrative proceedings. The text and purpose of
    the legislative scheme must be considered.

[18]

Where
    there is a significant difference between the purposes, processes, or stakes
    involved in the administrative proceeding and the action, a court must decide
    whether it is fair to use the results of the administrative proceeding to
    preclude a civil action. In
Penner
, the majority of the court
    determined that it would be unfair to apply the discretionary remedy of
    estoppel and held it should not be granted.

[19]

The
    motion judges decision of whether or not estoppel should apply would have to
    be reconsidered in the way the law has now evolved under
Penner
. In
    relation to the respondents other than Glover, It is not necessary for us to do
    so, because, as we have indicated, we would dismiss the appeal against them.

[20]

Glovers
    statement would not have been estopped under the law as it existed prior to
Penner
.
    The statement was not within the ambit of Guergiss complaint to the CHRC and the
    issue raised by the complaint was not necessary to the CHRCs decision. The
    complaint has a factual foundation that is independent of the facts forming the
    basis of the CHRC complaint. The motion judge erred in lumping Glover in with
    the other respondents on the issue of whether it would be an abuse of process
    for her claim to proceed.

C.

Whether the statement of claim discloses a cause of action

[21]

For
    the purposes of both the motion before the motion judge and this appeal, the
    facts pleaded in Ms. Guergiss statement of claim must be taken as true and
    assumed to be proven. We will briefly summarize one chain of allegations of
    fact in the pleading. The alternative pleadings will be discussed at a later
    point in these reasons.

(a)

The Statement of Claim

[22]

The
    facts pleaded in the statement of claim may be summarized as follows.

[23]

On
    or after September 2009, certain of the defendants began excluding the appellant
    from meetings and activities taking place within caucus and Cabinet and acting
    without regard to the appellant. This conduct was the result of negative media
    coverage respecting the Plaintiffs spouse and constituted a deliberate and
    calculated attempt to marginalize the Plaintiff (para.30). The respondents
    entered into a conspiracy to engage in unlawful acts to remove and/or justify
    the appellants removal from her positions.

[24]

In
    or about December 2009 or early 2010, Minister Raitt made a statement to
    Pellerin, a person on her staff that she had seen the appellant using cocaine
    in the bathroom of an Ottawa restaurant.  In or about December 2009 or early
    2010, Pellerin advised Giorno, the Prime Ministers chief of staff, what she
    had been told by Raitt regarding the appellants conduct.

[25]

On
    or about April 8, 2010, Snowdy, an individual, told Hamilton, a lawyer for the
    CPC at Cassels Brock, of serious criminal allegations about the appellants conduct.
    Hamilton told Novak, the Prime Ministers principal secretary, Giorno, the
    Prime Minister, and/or others of Snowdys allegations about the appellants conduct.

[26]

On
    April 9, 2010, the Prime Minister, Novak, and Giorno sent a letter to the RCMP
    Commissioner and a letter to the Conflict of Interest and Ethics Commissioner
    that reported on allegations received by the Prime Ministers Office without
    vouching for their truth. They discussed the contents of the RCMP letter with
    each other. The same day, the Prime Minister had a discussion with the appellant
    in which he told her that he had received allegations about her conduct and had
    communicated those allegations to the RCMP. He accepted the veracity of those
    allegations without conducting an investigation or waiting for the result of a
    third-party investigation. The Prime Minister told the appellant that she would
    not be permitted to remain in caucus pending an investigation of the
    allegations by the RCMP.  She resigned from Cabinet as a result of the Prime
    Ministers advice.

[27]

The
    Prime Minister also made a public statement on April 9, 2010 that his office
    had become aware of the allegations against the appellant and had referred the
    allegations to the RCMP and the Conflict of Interest and Ethics Commissioner.

[28]

On
    or about May 5, 2010, the appellant was removed as a candidate for the CPC.  It
    was effected at the direction of the Prime Minister and in furtherance of the
    conspiracy.  The appellant was not re-elected as the Member of Parliament for
    the Electoral District of Simcoe-Grey in the federal election of 2011.

[29]

During
    a May 16, 2010 CTV interview with Craig Oliver, Glover, a Conservative MP,
    stated,  I can assure you that there is far more to come out, and This isnt
    finished in reference to the appellant and the allegations of her having been
    engaged in criminal conduct.

[30]

Though
    the RCMPs investigation that resulted from Novaks letter was ultimately
    terminated in the appellants favour, she suffered damages. The statements in
    the letter resulted in injury to the appellants reputation, political career,
    health, and well-being.

[31]

Against
    all of the respondents to this appeal, except the CPC, the statement of claim
    alleges that their statements were false, defamatory, and in pursuance of the
    conspiracy pleaded. They engaged in intentional infliction of mental suffering
    and negligence. The appellant also claims that the Prime Minister, Novak, and
    Giorno are guilty of misfeasance in public office. As against, the CPC the
    appellant claims against it for conspiracy, breach of duty of good faith, and
    negligence.

[32]

Certain
    of the respondents are alleged to have aggravated the appellants damages by
    not advising her of the particular allegations against her, not providing her
    with a forum or process to respond to the allegations in breach of the
    principles of due process and natural justice, and making further public
    comment and statements in a tone of language intended to discredit and belittle
    her. Exemplary damages are also claimed to ensure the defendants are
    appropriately punished and to deter such conduct in the future.

(b)

The Motion Judges Decision

[33]

The
    motion judges main conclusions on this issue are summarized below.

i. The removal of the appellant as a Cabinet Minister was an exercise
    of the Crown prerogative. The Court lacked the jurisdiction to review the tort allegations
    related to the Prime Minister's actions. (para. 22)

ii. The   removal of   the   appellant from the CPC caucus was
    protected by parliamentary privilege and the Court lacked the jurisdiction to review
    the tort allegations related to such removal. (para. 21)

iii. The Prime Minister's refusal to endorse the appellant as a
    candidate for the CPC was contemplated by statute and could not be tortious in and
    of itself. (para. 28)

iv. The  complained of conversations between the  Prime  Minister
     and  his  senior advisors Giorno and Novak,  the  RCMP  Letter, and  Raitt's
    alleged  defamatory  statements "fall squarely within [the] absolute privilege
    accorded to officers of state and their senior  advisors"  and accordingly
     cannot  give rise to a defamation  claim. (para. 32)

v. The alleged defamatory statements by Pellerin to Giorno are
    also protected by absolute privilege. They relate to state matters and were
    within the scope of her duties as a federal public servant. (para. 33)

vi. The  additional  tort  claims  are  dressed  up  defamation
     claims,  inserted  in  the pleading  for  the  purpose  of avoiding  the  application
     of  the  absolute  privilege defence otherwise available to the defendants.
    (para. 34)

vii.     The RCMP Letter, the Conflicts Letter and the Prime Minister's
    public statement of April 9, 2012 "are neither defamatory on their face nor
    are they reasonably capable of bearing the implications of criminal activity suggested.
    (para. 36)

viii. Given that the RCMP  Letter and the Conflicts  Letter are
    protected  by absolute privilege  and  are  not  defamatory  on  their  face,  then
     it  naturally  follows  that sending the letters cannot constitute a misfeasance
    in public office. (para. 39)

ix. Glovers statements cannot reasonably bear the implications
    pleaded. (para. 37)

x. The Conservative Party of Canada is an unincorporated
    association and is not an entity capable of being sued in tort. (paras. 44-45)

xi. Significant portions of the pleading are incomprehensible as
    pleaded. (para. 48)

xii. The claims against the Prime Minister's counsel, Hamilton,
    and his law firm, Cassels Brock, were struck because they were contradictory
    and lacked particularity but with leave to amend on terms. (para. 51)

(c)

General Principles

[34]

The
    purpose of rule 21.01(1)(b) is to strike a pleading that does not have a chance
    of succeeding. The well-known test for determining whether a pleading should be
    struck is set out in
Hunt v. Carey Canada Inc.,
[1990] 2 S.C.R. 959: assuming
    that the facts alleged in the statement of claim can be proven, is it plain and
    obvious that no reasonable cause of action is disclosed? In
Hunt
, the
    court stated, at p. 980:

Neither the length and complexity of the issues, the novelty of
    the cause of action, nor the potential of the defendants to present a strong
    defence should prevent the plaintiff from proceeding with his or her case. 
    Only if the action is certain to fail.should the relevant portions of the
    plaintiffs statement of claim be struck out.

[35]

As
    the authors of
Ontario Superior Court Practice 2013
point out, rule
    21.01(b) may be used to strike a pleading because there is an unanswerable
    defence to the claim: Todd Archibald, Gordon Killeen and James C. Morton,
Ontario
    Superior Court Practice 2013
(Toronto.: LexisNexis Canada, 2013).  The
    authors note at p. 908:

The rule in
Hunt
does not preclude a court from
    striking out a claim on the basis that it discloses no cause of action because
    of the existence of an unanswerable defence.  The issue is whether, assuming
    the alleged facts to be true, the action is nevertheless certain to fail. [Citation
    to
Louie v. Lastman
(2002) 61 O.R. (3d) 459 (Ont. C.A.).]

[36]

In
    making the determination under rule 21.01(b),  the principle of equality before
    the law requires that the court not give extra scrutiny to the statement of
    claim because of who the parties are:
Black v. Canada (Prime Minister)
(2001),
    54 O.R. (3d) 215 (C.A.), at para. 21. The statement of claim must be read as
    generously as possible with a view to accommodating any inadequacies in the
    allegations.  With these general principles in mind, we will now deal with the
    claims advanced.

(d)

The Defamation Claims

[37]

In
Color Your World Corp. v. C.B.C.
(1998), 156 D.L.R. (4th) 27 (Ont.
    C.A.), at p. 36, Abella J.A. defined defamation as follows:

A defamatory statement is one which has a tendency to injure
    the reputation of the person to whom it refers; which tends, that is to say, to
    lower him [or her] in the estimation of right-thinking members of society
    generally and in particular to cause him [or her] to be regarded with feelings
    of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is
    judged by the standard of an ordinary, right-thinking member of society. Hence
    the test is an objective one...

[38]

When
    considering a reasonable or ordinary member of the public, the bar should be
    set in a middle ground: [i]t should not be so low as to stifle free expression
    unduly, nor so high as to imperil the ability to protect the integrity of a
    person's reputation (p. 36). The meaning of a particular communication should
    be considered from the perspective of a reasonable person who is reasonably
    thoughtful and informed. A degree of common sense must be attributed to
    viewers:
Color Your World
, at pp. 36-37.

[39]

A
    defamation claim requires the plaintiff to prove three elements: 1) the
    defendant made a defamatory statement, in the sense that the impugned words
    would tend to lower the plaintiffs reputation in the eyes of a reasonable
    person; 2) the words in fact referred to the plaintiff; and 3) the words were communicated
    to at least one person other than the plaintiff:
Grant v. Torstar Corp.
,
    2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28.

[40]

Whether
    or not a statement is capable of being defamatory is a question of law whereas
    the issue of whether the statement actually conveyed the defamatory meaning is
    a question of fact:
Young v. Toronto Star Newspapers Ltd.
(2005), 77
    O.R. (3d) 680 (C.A.), at para. 68. In ruling on meaning, the court is not
    determining the actual meaning of the words but delimiting the outside
    boundaries of the possible range of meanings and setting the ground rules for
    the trial.:
Gatley on Libel and Slander,
10th ed. (UK: Sweet &
    Maxwell, 2008), at para. 3.13.

[41]

When
    a defendant seeks to strike a pleading on the basis that the statement in issue
    is not capable of a defamatory meaning, the court will only strike the pleading
    in the clearest of cases; otherwise, the court will leave it to the trier of
    fact to decide the question at trial:
Halsburys Laws of Canada-Cumulative
    Supplement, April 20, 2012 - Defamation
- Elements of the Cause of Action
     Preliminary Rulings (Toronto: LexisNexis: 2012), at HDE-36.

[42]

In
    this case, in addition to the issue of whether the alleged statements are
    capable of being defamatory, a further issue in relation to some of the
    respondents is whether privilege attaches to the communications made. Each
    defamation claim must be analyzed separately.

(i)

Raitt and Pellerin

[43]

In
    the statement of claim, at paras. 91 and 98, the appellant alleges that in or
    about December 2009 or early 2010, Raitt, a Cabinet Minister, advised Pellerin that
    she saw the appellant using cocaine with two other people in the bathroom of an
    Ottawa restaurant and that Pellerin advised Giorno of what she had been told by
    Raitt.

[44]

These
    statements are

defamatory on their face. The motion judge held that
    the statements were protected by the absolute privilege recognized in
Dowson
    v. The Queen
(1981), 124 D.L.R. (3d) 260 (F.C.A.). As stated in
Dowson,
at p. 269, there are three conditions for this category of absolute
    privilege: (a) the statement must have been made by one officer of state to
    another officer of state; b) it must relate to state matters; c) it must be
    made by an officer of state in the course of his official duty. A person who
    makes a statement as the agent of another takes the benefit of the absolute
    privilege:
Dowson
, at pp. 271-2.

[45]

After
    citing
Dowson,
the motion judge held at para. 33:

The alleged statements were made by Ms. Pellerin, an employee
    of the Government of Canada, working at the direction of a Minister of the
    Crown, to the chief of staff to the prime minister. Therefore, the statements
    satisfy the
Dowson
requirement of a communication from one officer of
    state to another.  The alleged defamatory statements related to state matters
    and were made by Ms. Pellerin within the scope of her duties as a federal
    public servant. It was in the ordinary course of affairs for Ms. Pellerin, as
    an employee of the Government of Canada, working at the direction of a Minister
    of the federal Crown, to report to Mr. Giorno criminal conduct allegedly
    engaged in by another Minister of the Crown.

[46]

The
    appellant submits that the motion judge incorrectly made what amounted to a
    factual finding that Raitt made her statement to senior officials in the Prime
    Ministers Office when there was no basis in the statement of claim for doing
    so. Nor is there an allegation that Raitts statement to Pellerin was part of
    her official duties. On a rule 21.01(1)(b) motion to strike a claim, a motion
    judge is restricted to the facts as pleaded and is prohibited from finding
    facts not pleaded in the statement of claim. As a result, the appellant argues
    that, as pleaded, the requirement of a communication from one officer of state
    to another is not satisfied.

[47]

Instead
    of reading the paragraphs in the statement of claim in isolation, as the
    appellant would have us do, we must read the statement of claim as a whole. Paragraphs
    17, 19, and 20 are of particular note:

17. Giorno is an individual who, at all material times, was the
    Chief of Staff to the Prime Minister of Canada, working closely with and at the
    direction of Harper.



19. Raitt is an individual who, at all material times, was the
    Member of Parliament for the Electoral District of Halton and the Minister of
    Labour, working closely with Pellerin and working under the direction of
    Harper.

20. Pellerin is an individual who, at all material times, was
    an employee of the Government of Canada, working closely with and at the
    direction of Raitt.

[48]

When
    these paragraphs are read together with the pleading alleging what Raitt told
    Pellerin and what Pellerin told Giorno, the pleading clearly alleges that Pellerin,
    at the direction of Raitt, made the statement to Giorno, who as Chief of Staff
    to the Prime Minister of Canada was working under his direction. The motion
    judge did not go beyond his function and find facts outside the statement of
    claim. He did what he was entitled to do; he considered the claim as a whole
    and assessed the pleading on the basis of all the facts pleaded.

[49]

The
    appellant also submits that Raitts statement to Pellerin was merely a
    statement to an employee and not a high officer of state as required by
Dowson
.
    However,
Dowson
did not definitively decide whether the privilege was
    limited to high officers of state because the court had no need to do so.
    There, as here, the government employee was entitled to the benefit of the
    Ministers privilege because the communication in issue was made at the direction
    of a Minister, a high officer of state. Here, the statements made were made by,
    and then at the direction of, Raitt in her capacity as a Minister.

[50]

The
    communication allegedly made by Raitt and Pellerin claimed criminal conduct by
    a Minister of the Crown, namely the consumption of cocaine.   Possession of
    cocaine is a criminal offence and consumption of cocaine has an effect on a
    persons mental state. The communication was important to the effective
    functioning of government, a matter of state.

[51]

The
    motion judge properly found that the communication was made by one officer of
    state to another officer of state and that the conditions for absolute
    privilege, including that the communication relate to a matter of state, were
    met.

[52]

Further,
    the appellant alleges in paragraph 98 of her statement of claim that Pellerin
    spoke defamatory words about the Plaintiff not only to Giorno but and/or
    others. The right to plead that a defamatory statement was made to certain unnamed
    persons is restricted to the case where a plaintiff has made out a
prima

facie
case that the statement was made to a named person and has
    produced uncontradicted evidence of publication to other persons:
Jaffe v.
    Americans for International Justice Foundation,
[1987] O.J. No. 2370 (H. Ct.
    J.), at para.10. These two requirements have not been met. No prima facie case
    exists that the defamatory statements were made against named persons as that
    pleading has been struck. Nor are the facts to support publication to other
    persons pleaded. All that remains is a bald allegation of publication to
    others.  Accordingly, the pleading against others is also properly struck.

(ii)

The Prime Minister

[53]

The
    statement of claim alleges that Hamilton told the Prime Minister of the
    allegations on or about April 8 or 9, 2010. The Prime Minister then told the
    appellant of the allegations in his telephone call with her and obtained her
    resignation from Cabinet.

[54]

The
    statement made by the Prime Minister on April 9, 2010  to the public was as
    follows:

Last night, my office became aware of serious allegations regarding
    the conduct of the Honourable Helena Guergis. These allegations relate to the
    conduct of Ms. Guergis and do not involve any other minister, MP, senator or
    federal government employee, Ive referred the allegations to the Conflict of
    Interest and Ethics Commissioner and to the RCMP.  Under the circumstances, I
    will not comment on them further.

[55]

The
    appellant submits that the statement is capable of a defamatory meaning and
    would be understood to mean that she was involved in fraudulent activity and/or
    other criminal conduct.

[56]

As
    indicated, in determining whether a statement is defamatory, the words are to
    be construed in context, according to the meaning they would be given by
    reasonable persons of ordinary intelligence, knowledge, and experience. The
    question is whether the impugned words might tend to expose the plaintiff to
    hatred, contempt, or ridicule or whether they lower the plaintiff in the
    estimation of reasonable persons who have common sense and who are reasonably
    thoughtful and well-informed but who do not have an overly fragile sensibility.
    They should not be given some unusual meaning that persons might succeed in
    extracting from them:
Color your World
. See also
Mantini v. Smith
    Lyons, LLP (No. 2)
(2003), 64 O.R. (3d) 516 (C.A.), at paras. 10 and
    13-18, leave to appeal dismissed, [2003] S.C.C.A. No. 344;
Myers v. C.B.C.
(1999),
    47 C.C.L.T. (2d) 272, vard on other grounds (2001), 54 O.R. (3d) 626, leave to
    appeal dismissed [2001] S.C.C.A. No. 433.

[57]

A
    reasonably thoughtful and informed reader would understand the difference
    between allegations and proof of guilt. Such a person would bear in mind that
    an accused person is presumed innocent until proven guilty:
Miguna v. Toronto
    (City) Police Services Board,
[2004] O.J. No. 2455 (S.C.), at paras. 4-6,
    affd [2005] O.J. No. 107 (C.A.), at para. 4. In this case, the motion judge
    did not err in holding that, as a matter of law, the public statement was not
    capable of bearing the defamatory meaning alleged by the appellant. The same is
    true of the Prime Ministers conversation with the appellant.

[58]

The
    Prime Ministers public statement is one step further removed than the
    situation in
Miguna.
In that case, the plaintiff was charged; here,
    the appellant was never charged. The statement makes it clear that allegations
    of criminal conduct about the appellant had been made and that those
    allegations had been referred to the Conflict of Interest and Ethics
    Commissioner as well as to the RCMP. These were the appropriate authorities to
    deal with the allegations. Although the appellant submits that, in assessing
    whether the statements were capable of having a defamatory meaning, the motion
    judge should have taken into account as true her pleading that the statements
    resulted in injury to her reputation, political career, health and wellbeing,
    the test is not a subjective one. As indicated by Abella J.A. in
Color Your
    World,
it is an objective one  that of the reasonable person.

(iii)

Novak
    and Giorno

[59]

The
    appellant alleges that the statements between Novak and Giorno and the letters
    drafted by them at the direction of the Prime Minister on April 9, 2010 were
    defamatory. The claim alleges that Giorno defamed Guergis because he
    participated in the drafting and delivery of the letter by Novak to the RCMP
    Commissioner. The contents of the letter from Novak to the RCMP Commissioner is
    as follows:

Dear Commissioner:

The Prime Minister has asked me to provide the following information
    on his behalf.

Late last night our office  became aware of the specifics  of allegations
     made by Mr. Derrick Snowdy,  a  private  investigator,  concerning  the  conduct
     of  Mr.  Rahim  Jaffer  and  the  Hon. Helena Guergis.  The allegations are numerous
    and include fraud, extortion, obtaining benefits by false pretences and
    involvement in prostitution. The extent of the allegations makes it impossible for
    me to summarize them completely in this brief letter.

Our office has no first-hand knowledge of these allegations and
    our office has not communicated directly with Mr. Snowdy.  Communication was conducted
    through the Conservative Party's legal counsel, Mr. Arthur Hamilton of Cassels Brock,
    Toronto.

I have been informed that Mr. Snowdy states that he has collected
    evidence to corroborate his allegations and that he can be reached by telephone
    at ... I understand that Mr. Snowdy says the information was already shared with
    the RCMP and the OPP, but I want to ensure that you are aware of it.

Mr. Hamilton is also available to be contacted by members of the
    RCMP.  He can be reached at

If there is any more assistance that we can provide, please let
    me know.

The content of the letter from Giorno to the Conflict
    of lnterest and Ethics Commissioner is as follows:

Dear Commissioner:

I have been instructed by the Prime Minister to provide you
    with the following information on his behalf.

Late last night our office became aware of the specifics of
    allegations made by Mr. Derrick Snowdy, a private investigator, concerning the
    conduct of the Hon. Helena Guergis. In particular, Mr. Snowdy alleges that Ms
    Guergis attended meetings at which she promised to advance private business
    interests.  Mr. Snowdy makes additional allegations about the MP's conduct,
    allegations that may or may not be relevant to her responsibilities under the Conflict
    of Interest Act and/or the Conflict of Interest Code for Members of the House
    of Commons.

Our  office  has  no  first-hand  knowledge  of  these 
    allegations  and  our office  has  not communicated directly with Mr. Snowdy. Communication
    was conducted through the Conservative Party's legal counsel.  However, I am
    aware that Mr. Snowdy states that he has collected evidence to corroborate his
    allegations. I believe that Mr. Snowdy can be reached by telephone at ...

[60]

The
    motion judge held that the April 9, 2010 communications between the Prime
    Minister and his senior advisors, Novak and Giorno, fall within the doctrine of
    absolute privilege accorded to officers of state and their senior advisers when
    communicating on matters within their official duties. He applied the same
    rationale to the letter from Novak to the RCMP commissioner.  The RCMP Commissioner
    is appointed by the Governor in Council and is under the direction of the
Minister of Public Safety and Emergency Preparedness
:
Royal
    Canadian Mounted Police Act,
R.S.C. 1985, c. R-10, s. 5. (1). Thus, the
    RCMP Commissioner is an officer of state. We agree with the motion judge. Novak
    is an officer of state communicating with respect to a matter of state to the
    RCMP Commissioner, another officer of state.

[61]

A
    second reason the motion judge struck these paragraphs is that each of the
    April 9, 2010 letters  by Novak to the RCMP commissioner and by Giorno to the
    Ethics Commissioner
[1]
 was not defamatory on its face. The letters were not capable of bearing the
    implications asserted by the appellant in her statement of claim. Again, we
    agree with motion judge. The tenor of the two letters is the same as the public
    statement by the Prime Minister. The rationale respecting the public statement
    by the Prime Minister applies to these two letters.

(iv)

Glover

[62]

The
    issue in respect of Glover is whether it is plain and obvious that her comments
    during a CTV interview on May 16, 2010, that I can assure you that there is
    far more to come out and This isnt finished do not constitute defamation.

[63]

The
    appellant pleads that the words complained of were intended to mean and would
    be understood to mean that she was involved in criminal conduct and that
    further evidence would be made public in the future confirming this. Counsel
    for Glover submits that when the context of the statements is considered,
    Glover was supporting the plaintiff rather than disparaging her because,
    immediately after making this statement, she added, Its unfortunate this
    family has beenthey have suffered enough.

[64]

The
    motion judge reviewed the video and transcript of the interview and concluded
    that Glovers statements could not possibly bear the implication pleaded,
    namely, that evidence Guergis was involved in criminal conduct would be made
    available in the future.

[65]

The
    words in issue must be considered in the context of the entire CTV interview.

[66]

The
    interviewer, Craig Oliver, was speaking to three members of a Parliamentary committee
    studying whether there was undue influence by lobbyists into a multi-million
    dollar green infrastructure fund. Siobhan Coady, a Liberal Member of the
    committee, said that Snowdy brought forward allegations that Guergiss husband,
    Jaffir, offered and was able to provide back door access to the Conservative
    government. The Committee was trying to figure out what part of the
    allegations related to the green fund. Craig Oliver then pressed Glover as to
    whether the Prime Minister had gone too far on very thin information in
    removing Guergis from her positions without giving her a chance to defend
    herself.  Glover replied, Well there has been evidence that has been brought
    forward that Mr. Jaffer did in fact use the cabinet ministers office for
    personal business.  Our government turned over that information. 

[67]

Pat
    Martin, an NDP Member of the Parliamentary committee commented that the Prime
    Minister had ruined Guergiss life and he added, I ask people to, you know,
    stay tuned for a few more weeks because on June 9th we intend to wrap up this
    study.  We are going to invite Mr. Jaffer and Ms. Guergis to the committee and
    one last time they will be able to at least justify some of the inconsistencies
    in testimony and explain perhaps so we can close this file and move onto other
    things.

[68]

Coady
    then responded to Craig Olivers question about whether Guergis, her husband,
    and Snowdy could be believed. Coady commented that Canadians have a right to
    know what criminal behaviour may have occurred. She stated, We have witnesses
    coming forward saying that Mr. Giorno, the Chief of Staff has probably
    misrepresent[ed] some or the things that are happening here.

[69]

Craig
    Oliver then gave Glover the last word. She stated that what the committee was
    doing was not right and not fair. She argued that there is no justice to be
    found in the way that the committee functions:

in the way that you are limited to [interruption and comment
    by Coady]the amount of questioning. I can assure you I lived in a just and
    fair system when I was a police officer.  This is far from what I would expect
    a member of parliament to suggest.  I can assure you that there is far more to
    come out[interruption and comment by Coady] there is far more to come out
    because this isnt finished.  Its unfortunate this family has been.[interruption
    by Craig Oliver: It is and there is more to come for sure] they have suffered
    enough.

[70]

The
    sentence There is far more to come out is incomplete because Glover was
    interrupted.  The complete sentence is, There is far more to come out because
    this isnt finished.

[71]

Depending
    on the interpretation given to the word, this Glovers statements are capable
    of being interpreted in two different ways. One interpretation takes as its
    context that Glovers response to Oliver was critical of the way committees run
    their affairs. The word this refers to the committee and properly interpreted,
    her statement is, there is far more to come out because [the committees
    investigation into illegal lobbying] isnt finished.  Glovers next statement,
    Its unfortunate this family has been they have suffered enough would mean
    its unfortunate this family has been [put through the committees process]
    they have suffered enough.

[72]

The
    other interpretation takes as its context that Glover was defending the Prime
    Ministers actions in removing Guergis from her positions. In this context,
    this refers to the evidence that has come out against Guergis so far and
    there is far more to come means more evidence against her would come out in the
    following weeks.

[73]

The
    possible range of meanings in relation to the statement in issue includes one
    that is defamatory. Because the statement in question has two possible
    meanings, one defamatory and one not, this is not a clear case enabling the pleading
    to be struck, and the motion judge erred in doing so. The matter should be
    allowed to proceed to trial where the question of the actual meaning will be
    determined as a matter of fact.

(e)

Conspiracy and the other tort claims; alternative pleading

[74]

In
    addition to defamation, the appellant pleaded other tort claims against the
    respondents, namely, conspiracy, negligence, intentional infliction of mental
    suffering, misfeasance in public office, and breach of a duty of care.

[75]

In
    doing so, she pleaded on the one hand, at para. 67, that the Prime Minister had
    not received information as to allegations of the appellants criminal activity
    and then, at para. 69, in the alternative that he had. In essence, she
    alleged that the Prime Minister made up his statement that he had received
    information alleging criminal wrongdoing by her as part of a conspiracy to obtain
    her resignation.

[76]

The
    motion judge held that this alternative pleading was incomprehensible as
    pleaded. In addition, the motion judge held that the other tort claims were
    based entirely on the alleged defamatory communications and, as such, were
    dressed up defamation claims. He struck them.

[77]

The
    appellant submits that she is entitled to make inconsistent allegations in a
    pleading.  Indeed, rule 25.06(4) provides:

A party may make inconsistent allegations in a
    pleading where the pleading makes it clear that they are being pleaded in the
    alternative.

[78]

Relying
    on this rule and its application in such cases as
Royal Bank of Canada v.
    Société Générale (Canada),
[2007] O.J. No. 2262 (S.C.), the appellant
    submits that her pleading should be allowed to stand.

[79]

In
    our opinion, the motion judge did not err in dismissing the other tort claims
    for three reasons.

[80]

First,
    viewed as a whole, the alternative pleadings do not succeed in achieving a key
    purpose of the statement of claim: to enable the defendants to know what facts
    are alleged so as to be able to respond to them.  Having regard to the
    statement of claim as a whole, the alternatives presented in it are:

·

Mr. Snowdy either did or did not report allegations of misconduct
    to Mr. Hamilton;

·

Mr. Hamilton either did or did not report allegations of
    misconduct to Mr. Giorno, Mr. Novak, and the Prime Minister;

·

The Prime Minister either was not informed of any allegations
    made against the appellant or he was told of allegations but failed to
    investigate them;

·

The Prime Ministers Office either was not informed of the
    allegations of misconduct or it was informed and the allegations were not of
    such seriousness that they merited investigation by the RCMP; and

·

Minister Raitt either did or did not communicate allegations
    relating to cocaine use to Ms. Pellerin.

[81]

With
    the alternatives taken together, the statement of claim does not clearly set
    out the facts on which the case is asserted. There is no indication of how the
    various alternatives interact with one another. The pleadings serve to confuse
    rather than clarify what exactly is being pleaded.

[82]

The
    present pleadings are distinguishable from
Royal Bank
on the basis
    that, in that case, the motion judge specifically held the defendants knew the
    precise allegations against them, in part, due to the long history in the
    proceedings.

[83]

Where,
    as here, portions of a pleading contain bare allegations, including unfounded
    attacks on the integrity of a party and unsupported allegations of defamation,
    those portions of the pleading may be struck:
Ontario Superior Court
    Practice,
at p. 98; Linda Abrams and Kevin McGuinness,
Canadian Civil
    Procedure Law,
(Toronto: LexisNexis, 2010), at p. 753. See also
McCarthy
    Corp PLC v. KPMG LLP,
[2006] O.J. No. 1492 (S.C.) in which Spies J. struck
    the statement of claim in part on the basis that it was internally
    inconsistent.

[84]

Second,
    the other torts pleaded are derivative of the defamation allegation and are not
    based on independent facts. For example, as pleaded, the conspiracy claim
    against the Prime Minister and other respondents relies on their committing an
    unlawful act. The purported unlawful act relates to the alleged defamatory
    statements and letters.  As we have held that the statements and letters in
    issue were not capable of being defamatory or are protected by privilege, they
    are not unlawful and thus a required element for the tort of conspiracy is
    lacking.

[85]

Third,
    in seeking to pursue tort claims, such as negligence, based on the manner of
    her removal from Cabinet and caucus, while acknowledging that the Prime
    Ministers decision to remove her is not justiciable because it is protected by
    the exercise of Crown privilege and parliamentary prerogative, the appellant is
    attempting a distinction without a difference.

[86]

The
    Prime Ministers exercise of the Crown prerogative and Parliamentary privilege
    extends not only to the fact of removal from office but also to how it was
    exercised.  As Laskin J.A. held at para. 65 of
Black:

Once [the Prime Ministers] exercise of the honours prerogative
    is found to be beyond review by the courts,
how the Prime Minister exercised
    the prerogative is also beyond review
. Even if the advice was wrong or
    careless or negligent, even if his motives were questionable, they cannot be
    challenged by judicial review. [Emphasis added.]

[87]

The
    motion judge did not err in dismissing the other tort claims and in striking
    the so-called alternative pleadings.

(f)

Claims based on denial of the appellants candidacy

[88]

The
    appellant further alleges that the CPCs committee removed her as the candidate
    for the CPC in the electoral district of Simcoe-Grey and that such removal was
    effected at the direction of the Prime Minister in furtherance of the
    conspiracy.

[89]

The
    motion judge, relying on existing jurisprudence, including this courts
    decision in
Longley v. Canada (Attorney General)
, 2007 ONCA 852, 88
    O.R. (3d) 408, held that, as an unincorporated association, the CPC could not
    be sued in tort. Accordingly, he struck the claims against the CPC. We agree
    with him.

[90]

Even
    if the allegation regarding the Prime Ministers involvement is read as proven,
    s. 67(4)(c) of the
Canada Elections Act,
S.C. 2000 c.9, gives the
    leader of a political party the authority to refuse to endorse a candidate. As
    it is statutorily allowed, it therefore cannot be an unlawful act.

[91]

The
    claims of conspiracy were properly struck

(g)

Leave to Amend

[92]

The
    appellant submits that the motions judge erred in not allowing her leave to
    amend the statement of claim in respect of the respondents. She relies on
    jurisprudence indicating that it is uncommon for the court to strike portions
    of a statement of claim without granting leave to amend and that it is even
    rarer for the court to strike a statement of claim in its entirety without
    granting leave to amend.

[93]

An
    opportunity to amend a pleading should be granted unless the claim clearly has
    no chance of success. That is the situation here. The alleged defamatory
    statements were either not defamatory or are protected by absolute privilege.
    Subsidiary torts pleaded to evade defamation law defences are also to be struck
    without leave to amend: see
Byrne v. Maas,
[2007] O.J. NO. 4457 (S.C.),
    at paras. 8-10;
Baker v. Poser,
2004 CarswellOnt 4983 (S.C.), at paras.
    28-31. Complaints that are untenable as a matter of law are not amenable to
    amendment.

[94]

With
    the exception of the paragraphs in relation to Glove, the motion judge
    correctly struck the appellants claim without leave to amend.  We realize,
    however, that in relation to Glover, it may be necessary for the plaintiff to
    amend the pleading to provide proper context.

D.

Conclusion

[95]

With
    the exception of the statement by Glover during the CTV interview, we agree
    with the motion judge that the statements and letters upon which the
    allegations of defamation are based are either not capable of being defamatory
    or are protected by absolute privilege.  The other tort claims are simply
    dressed-up defamation claims. The factual basis and elements necessary to
    sustain these claims are not present in the pleading.

[96]

Furthermore,
    the tort claims arise from the appellants removal from Cabinet and from caucus.
    They are an attempt to get around the non-justiciability of the Prime Ministers
    exercise of prerogative power and Parliamentary privilege. The torts based on
    the denial of the appellants candidacy for election are also certain to fail
    on the basis that the leader of a political party has the statutory authority
    to refuse to endorse a candidate and the CPC, as an unincorporated body, cannot
    be sued.

[97]

Accordingly,
    with the exception of the paragraphs relating to Glover in the statement of claim,
    the appeal is dismissed.

E.

Costs

[98]

Although
    the respondents have been largely successful on this appeal, the appellant has
    achieved a measure of success.

[99]

The
    respondents seek costs totalling in excess of $100,000. Had the appellant been entirely
    successful, she would have sought costs in the order of $35,000. The amount
    claimed by Mr. Staley, counsel for Novak, the Prime Minister, Glover and the
    Hon. Lisa Raitt, currently public officials, is in excess of the amounts
    actually being charged because the amount being charged to the client is a
    discounted rate.  Although Giorno and Pellerin are completely allied in
    interest with the respondents represented by Mr. Staley, separate counsel were
    retained.  The court was advised this was because they are no longer public officials.
     Yet, all the actions in question occurred while they were public officials.

[100]

The CPC seeks
    costs on a substantial indemnity basis because it submits it should not have
    been included in the appeal. It argues that because it was an unincorporated
    entity, it was obvious that the appeal against the CPC had no chance of
    success. We do not agree that including the CPC in the appeal is the kind of
    conduct that should give rise to costs on a substantial indemnity basis.

[101]

Having
    considered the submissions of counsel, we are of the opinion that one counsel
    fee for the Prime Ministers Group, Giorno, and Pellerin is appropriate.
    Accordingly,  we would award costs inclusive of disbursements and all
    applicable taxes as follows:

The Prime Ministers Group, Giorno, and Pellerin: $25,000 to be
    divided among themselves as they think fit;

The CPC: $8,000

Released: June 28, 2013                              Karen
    M. Weiler J.A.

KMW                                                                Robert
    J. Sharpe J.A.

Paul
    Rouleau J.A.





[1]

Defamation with respect to Giornos letter to
    the Ethics Commissioner was not specifically pled in the appellants statement
    of claim. However, the appellants amended factum asserts that it was
    defamatory.  Assuming that the omission in the statement of claim was an
    oversight for which leave to amend could be granted, we have addressed the
    point. The Conflict of Interest and Ethics Commissioner is appointed pursuant
    to the
Parliament of Canada Act,
R.S.C. 1985 c. P-1, s. 81(1), by the
    Governor in Council after consultation with the leader of every recognized
    party in the House of Commons and approval of the appointment by resolution of
    that House. As such, the Conflict of Interest and Ethics Commissioner is also
    an office of state. The same reasoning would apply.


