



COURT OF APPEAL FOR
BRITISH COLUMBIA




Citation:



International
                Brotherhood of Electrical Workers, Local 213 v. 
          Pacific Newspaper Group Inc.
(The Vancouver Sun),









2005 BCCA
            44




Date: 20050126




Docket: CA031972

Between:

International
      Brotherhood of Electrical Workers, Local 213

Respondent

(
Plaintiff
)

And

Pacific
      Newspaper Group Inc. (The Vancouver Sun),
Harvey
Enchin
, canada.com New Media Inc.

Respondent

(
Defendant
)

And

Philip
      Hochstein and Independent Contractors and
Businesses Association of British Columbia

Appellants

(
Defendants
)











Before:



The Honourable
            Madam Justice Rowles





The Honourable
            Madam Justice Newbury





The Honourable
            Mr. Justice Hall









R.W. Grant



Counsel for the Appellants





G.J. Baugh



Counsel for the Respondent
International Brotherhood of Electrical Workers, Local 213





Place and
            Date of Hearing:



Vancouver, British Columbia





12 January 2005





Place and
            Date of Judgment:



Vancouver, British Columbia





26 January 2005









Written
              Reasons by
:





The Honourable
            Mr. Justice Hall





Concurred
              in by:





The Honourable
            Madam Justice Rowles

The Honourable
            Madam Justice Newbury





Reasons for Judgment of the Honourable Mr. Justice Hall:

[1]

The
      plaintiff union sues the defendants for defamatory comments alleged to
      have been made during October 2002.

The
      alleged defamatory comments concerned a job targeting program initiated
      by the plaintiff about the year 1992.

The
      essence of the program was that through an assessment levied on members
      of the union, a fund was accumulated and utilized to economically assist
      electrical contractors certified by the union, bidding on construction
      jobs.

Amongst other things, the individual defendant,
      Hochstein, in an interview with a reporter, termed the job targeting program
      a "perversion of the tendering process" and "questionable
      use of membership dues".

He also said, "If the government does
      not outlaw this insidious practice, we have every reason to believe it
      will become even more common.

It
      is possible the amount of union dues used for this purpose could potentially
      grow to over $50 million, which represents a substantial tax loss to both
      the federal and provincial treasury".

[2]

A
      brief chronology of background is that on 28 November 2002 an amended writ
      of summons was issued by the plaintiff.

A
      statement of defence was filed on behalf of the defendants Hochstein and
      Independent Contractors and Business Association of British Columbia (the "ICBA
      defendants") on 13 December 2002.

They pleaded the comments were justified as
      true and as fair comment on a matter of public interest.

In January 2003, the ICBA defendants delivered
      a demand for discovery of documents to the plaintiff and on 7 March 2003
      the plaintiff's list of documents was delivered.

On 10 March 2003 and 30 September 2003, counsel
      for the Vancouver Sun and the ICBA defendants respectively sought production
      from the plaintiffs of all documents relating to the implementation and
      operation of the aforesaid program.

The
      plaintiff declined to produce further documents.

On 25 November 2003, the ICBA defendants delivered
      a notice of motion for an order pursuant to Rule 26 that the
plaintiff produce
all documents relating to the matters in
      issue including documents relating to the operation of the program.

Thereafter, on 13 January 2004, the plaintiff
      delivered a demand for particulars requesting further particulars of the
      defences of justification and fair comment.

On
      29 January 2004, the ICBA defendants delivered a reply to the demand for
      particulars, which described the general structure and operation of the
      plaintiff's program.

[3]

On
      2 February 2004, cross motions for particulars and production of documents
      came on before a Supreme Court judge.

After
      hearing argument on the motions, Boyd J. released reasons for judgment
      ordering that the ICBA defendants should provide further particulars.

She refused the relief sought by the ICBA defendants
      concerning production of additional documents.

Boyd J. expressed the view that the pleadings
      and the particulars provided to that date by ICBA were not sufficiently
      specific to allow for any order for further production.

Therefore, she dismissed the ICBA defendants'
      application for production of documents with liberty to renew the application
      at a later date.

Thereafter, ICBA
      provided further particulars and on 30 April 2004 again brought on the
      motion of 25 November 2003 for production of documents before Melvin J.

On 5 May 2004, Melvin J. gave reasons for judgment
      denying most of the relief sought on the part of the ICBA defendants.

Pursuant
      to leave granted by Saunders J.A. in chambers, the ICBA defendants appeal
      to this Court from the judgment of Melvin J.

[4]

Rule
      26(1) reads as follows:


A party to an action
      may deliver to any other party a demand in Form 92 for discovery of the
      documents which are or have been in the partys possession or control relating
      to any matter in question in the action, and the other party shall comply
      with the demand within 21 days by delivering a list, in Form 93, of the
      documents that are or have been in the partys possession or control relating
      to every matter in question in the action.

[5]

Counsel
      for the appellant argues that previous judgments in this Court and in other
      Canadian courts  including
Fletcher-Gordon v.
Southam
Inc.
(1997),
      28 B.C.L.R. (3d) 187 (S.C.)  have misconstrued Rule 26(1).

It
      is argued that the construction adopted of disclosure requirements in previous
      cases of defamation are out of accord with the general principles of law
      laid down in the often-applied case
Compagnie

Financiere
et Commercial
du

Pacifique
v. Peruvian Guano Co.
(1882), 11 Q.B.D.
      55 (C.A.).

That case held that documents
      ought to be disclosed if it is not unreasonable to suppose that they may
      contain information directly or indirectly enabling the party seeking discovery
      either to advance its own case or to damage the case of its adversary.

As Prowse J.A. observed in
Bank of British
      Columbia v. Canadian Broadcasting Corp.
(1995), 10 B.C.L.R. (3d)
      201, 62 B.C.A.C. 161 at
para
. 64:

Discovery, including discovery of documents, is not
      simply for the purpose of assisting a party in maintaining its own case,
      but is also for the purpose of ascertaining the strengths and weaknesses
      of the case of the opposite party.

[6]

As
      an historical matter, it may be that the English rules relating to discovery
      did not afford as broad a right as has been the practice in Canada.

In
Beaton
v.
      Globe Printing Co.
(1894), 16 O.P.R. 281 (C.A.),
Osler
J.A.
      said this at 284:

The substantial differences then between the English practice and ours
      on this subject are that in the former the examination is by interrogatories,
      to administer which, except in certain classes of cases, leave by Judge's
      order must be obtained.

In the excepted
      cases they may be delivered without leave, but by the plaintiff only after
      the delivery of the claim and by the defendant at or after the time for
      delivering the defence.

The English
      Rule, Order
xxxvi.,
Rule 1 (1883), seems wide enough to admit of interrogatories
      being delivered by order of a Judge at any stage of the action, though
      in actions of a common law character this jurisdiction is most sparingly
      exercised.

With us the examination
      is oral and may be had by either party without leave, but at the times
      prescribed by Rule 489.

[7]

However,
      it seems to me an unassailable proposition that historically a defendant
      was always called upon to state with some particularity any misconduct
      alleged against a plaintiff in a defamation action.

In
      an early case,
Hickinbotham
v.
      Leach
(1842), 152 E.R. 510 (Exch.) [
Hickinbotham
],
      the
headnote
reads:

To a declaration for words, imputing to the plaintiff, a pawnbroker,
      that he had committed the unfair and dishonourable practice of
duffing
, that is, of replenishing or doing up goods, being
      in his hands in a damaged or worn-out condition, and pledging them with
      other pawnbrokers, the defendant pleaded, that the plaintiff did replenish
      and do up divers goods, being in his hands in a damaged or worn-out condition,
      and pledge them with divers other pawnbrokers.

Held
bad
on
      special demurrer, as not being sufficiently specific.

[8]

In
      the old practice, demurrer was in effect in an allegation that the plea
      on the opposite side was insufficient in law.

Baron
      Alderson said in
Hickinbotham
at
      511:

The object of the plea is to give the plaintiff information what it is
      of which the defendant means to accuse him.

Mr.
      White says that must be within the plaintiff's knowledge; but that is not
      the case: what the plaintiff has actually done in the course of his business
      is within his knowledge, but not what the defendant mistakenly or wickedly
      means to charge him with having done; that is peculiarly within the defendant's
      knowledge, and it is because it is so that he is to plead it.

[9]

That
      principle must be borne in mind when considering some of the cases cited
      to us such as
Arnold & Butler v.
Bottomley
,
      [1908] 2 K.B. 151 (C.A.) [
Bottomley
],
      and
Zierenberg
and Wife v.
Labouchere
, [1893] 2 Q.B. 183 [
Zierenberg
],
      which was referred to in
Bottomley
.

In
Zierenberg
,
      an article published by the defendant newspaper proprietor alleged that
      the plaintiffs were charity swindlers and impostors and that a home that
      they ran for inebriates was a swindle.

It
      was found that the defendant had not given sufficient particulars because
      he had only set out in very broad terms  as broad as the original libel
       what the plaintiffs had done in order to justify his libel.

The divisional court held that if he did not
      give further particulars with dates of individual thefts and the names
      of people who had been swindled, his justification plea would fail.

The Court of Appeal confirmed the judgment
      of the divisional court requiring these further particulars in order for
      the defendant to successfully found a defence of justification.

That case was referred to with approval in
      the British Columbia case
Bullen
v.
Templeman
(1896),
      5 B.C.R. 43 (C.A.), a judgment of the Full Court.

[10]

A
      helpful statement of principle in a case which dealt with issues concerning
      oral discovery as opposed to discovery of document but to which I think
      similar considerations are applicable can be found in the judgment of
Laycraft
J.A. in
Drake v. Overland et al.
(1979),
      107 D.L.R. (3d) 323, [1980] 2 W.W.R. 193 (Alta. C.A.), where he said at
      327-329:


In my view the rule
      of practice that a defendant can interrogate only as to specific facts
      alleged by him in justification does exist in England:
Gatley
on
      Libel and Slander
, 7th ed. (1974),
para
.
1162;
Zierenberg
v.
Labouchere
, [1893] 2 Q.B. 183;
Yorkshire Provident
      Life
Ass'ce
Co. v. Gilbert and
Rivington
[(1895),
      64 L.J.Q.B. 578];
Arnold & Butler v.
Bottomley
,
      [1908] 2 K.B. 151.

The latter
      case states the rule succinctly as follows at 156:

A
      defendant in a libel action who pleads justification must state in his
      defence or particulars the fact on which he relies to prove such justification,
      and he can obtain discovery only in respect of such facts so stated


There has been some
      divergence of judicial opinion as to the nature of the "rolled-up" plea.

In
      some cases it has been treated as two separate defences: justification
      and fair comment.

In
Sutherland v.
Stopes
,
      [1925] A.C. 47, however, the distinction between this plea and justification
      is pointed out by Viscount
Finlay
, at pp. 62-63,
      as follows:

For
      a good many years past a practice has prevailed of raising this defence
      by what has been called the "rolled up plea," but it will be
      found that this term is a misnomer based on a misconception of the nature
      of the plea.

Such a plea states that the allegations of
      fact in the libel are true, that they are of public interest, and that
      the comments upon them contained in the libel were fair.

The allegation of truth is confined to the
      facts averred, and the averment as to the comments is not that they are
      true but only that they were made in good faith, and that they are fair
      and do not exceed the proper standard of comment upon such matters.

There
      has been a good deal of misconception as to the nature of this plea.

It has been sometimes treated as containing
      two separate defences rolled into one, but it in fact raises only one defence,
      that being the defence of fair comment on matters of public interest.

The averment that the facts were truly stated
      is merely to lay the necessary basis for the defence on the ground of fair
      comment.

This averment is quite
      different from a plea of justification of a libel on the ground of truth,
      under which the defendant has to prove not only that the facts are truly
      stated but also that any comments upon them are correct.


In my view this distinction
      between the "rolled up" plea and justification makes no difference
      to the need for particulars.

In
      both cases the defendant alleges the truth of the statements of fact he
      has made, though the peculiar form of the "rolled-up" plea in
      this case also appears to allege the truth of facts alleged in the newspaper
      at other times and "implicitly or explicitly" referred to in
      the article.

In neither case, however,
      can a plaintiff be expected to come to trial prepared to justify without
      warning whatever part of his past life the defendant proposes to raise.
      In both cases fairness as well as fundamental principles of pleading required
      that the issues in dispute between the parties be defined with precision.

The general allegations against the plaintiff
      must be so particularized as to enable him to know the charges which the
      defendant proposes to make against him.


This rule of practice
      was said by Stuart, J., in
Reid v. Albertan Publishing Co. Ltd.
[(1913),
      10 D.L.R. 495 (Alta. S.C.)], to be applicable to examinations for discovery
      in Alberta. Quoting from the 5th edition of
Odgers
on
      Libel and Slander
, [p. 496], he said:

"A
      justification must be specially pleaded and with sufficient particularity
      to enable the plaintiff to know precisely what is the charge he will have
      to meet.

Where the words complained
      of are precise and convey a specific charge
in full detail
it is
      sufficient to plead that they are true in substance and in fact and no
      particulars are necessary.

But where
      a vague general charge is made as for instance that the plaintiff is a
      swindler it is not sufficient to plead that he is a swindler; the defendant
      must set forth the specific facts which he means to prove in order to
shew
that
      the plaintiff is a swindler."

Unless
      specific facts are alleged a plea that the statements made are true is,
      as Kay, L.J., said in
Zierenberg
v.
Labouchere
, [1893] 2 Q.B. 183, quoting
J'Anson
v. Stuart
(1787), 1 T.R. 748, simply
      repeating the libel.


More than fifty years
      later, Riley, J., stated the same rule of practice in
Parkland Chapel
      Limited v. Edmonton Broadcasting Co. Ltd.
[(1964), 48 W.W.R. 303 (Alta.
      S.C.T.D.)].

In my view nothing in the nature of the rule
      of practice as stated justifies the conclusion that it is suitable for
      a jurisdiction in which
pretrial
procedures are
      based on interrogatories but is not suitable for a jurisdiction such as
      Alberta, in which oral examinations for discovery are used.

In
      an examination for discovery as well as in an interrogatory, the procedure
      should not permit questions not justified by the pleadings.

The so-called rule of practice is nothing more
      than a specific example of the wider general rule that the basic function
      of pleadings is to delineate with precision the matters as to which parties
      to litigation differ and those as to which they agree so that the issues
      between them may be brought forward for settlement or judicial decision.

[11]

Counsel
      for the appellant suggests that provisions such as Rule 26(1) should be
      found to have superseded historic rules relating to pleadings and discovery
      in defamation actions.

While it
      may be true that the modern approach is to afford a wide range of discovery,
      I doubt that it can be successfully maintained that what I might term the
      ordinary rules relating to discovery of documents are applicable in cases
      of defamation.

In the fairly recent case
Kent et al.
      v. Kehoe
(2000), 181 N.S.R. (2d) 137, 2000 NSCA 3 [
Kent
],
      a majority of the Nova Scotia Court of Appeal dealt with this issue.

In that case, the defendant engineer who had
      formerly been employed by the
Kentville
Electric
      Commission wrote a letter to the town of
Kentville
concerning
      financial aspects of the sale of the Commission, which imputed matters
      that the plaintiff chartered accountants found defamatory.

They sued the defendant for libel.

The defence was a plea of justification and
      fair comment.

The defendant sought
      production of certain documents and when that was refused applied to the
      court for an order for production of documents.

The
      chambers judge appealed from in
Kent
had defined the issue
      thus:

I have been asked to determine whether, in this defamation proceeding,
      the scope of production is governed by the breadth of disclosure required
      by the Civil Procedure Rules or by the more narrow parameters set out in
      the body of law on defamation cases.

[12]

The
      chambers judge did afford a fairly wide range of discovery to the defendant
      holding that the allegedly libellous correspondence itself sufficiently
      set out the particulars of the libel.

In
      that case, no particulars had been applied for or supplied.

The Court of Appeal, by a majority, disagreed
      with this disposition of the chambers judge.

Bateman
      J.A. for the majority rejected the argument of the defendant that in defamation
      proceedings the particular rules relating to defamation matters were archaic
      and that the broader discovery rules mandated by rules like our 26(1) should
      apply.

Bateman J.A. said this at
paras
.
      15-16:


Facts
      need not be specified in the defence where the defamatory statements themselves
      are so specific as to make clear the facts underlying the statement.

As was stated in
Odgers
,
      above, and approved by
Laycraft
, J.A., in
Drake
      v. Overland
,
supra
:

"...
      Where the words complained of are precise and convey a specific charge
      in full detail it is sufficient to plead that they are true in substance
      and in fact and no particulars are necessary. ..."


Where
      a defendant does not specify, in the pleading, the facts which support
      the defamatory statement, the plaintiff may request particulars.

In
Wooten v.
Sievier
[1911-13]
      All E.R. Rep. 1001 (C.A.) Kennedy L.J. wrote at p. 1002:

"...
      The degree of fullness and precision which ought to be required in an action
      for libel from a
defendant
who has pleaded a justification
      and has been ordered to give particulars under that plea, is not infrequently
      a matter which admits of reasonable debate.

Certain general propositions are not, I think,
      not [
sic
] open to controversy.

In every case in which the defence raises
      an imputation of misconduct against him a plaintiff ought to be enabled
      to go to trial with knowledge not merely of the general case he has to
      meet but also of the acts which it is alleged he has committed and on which
      the defendant intends to rely as justifying the imputation
...."

[Emphasis of Bateman J.A.]

[13]

As I see it, the rule in defamation actions exists because of the policy
      Bateman J.A. identifies at
para
. 22 as "
the longstanding policy which discourages
      persons from making defamatory statements about others when not possessed
      of facts which would support such statements".

[14]

Having
      regard to a long line of authorities stretching back beyond the middle
      of the nineteenth century, it seems to me that the special rule in defamation
      actions is well established and continues to be the applicable principle
      today.

The rationale now, as in earlier times, seems
      to me to be that the law seeks generally to discourage defamatory statements.

In
      early times, it might have been to prevent persons resorting to violence
      as a result of harsh words but in today's world of an omnipresent media,
      the rule seems equally justifiable because of the potential for harm to
      the reputation of those defamed by reason of a broad dissemination of defamatory
      matter.

I cannot accede to the submission made on behalf
      of the appellant that somehow the
enactment of provisions
      like Rule 26(1) have
swept away this long-standing rule in the case
      of actions of defamation.

[15]

Alternatively,
      counsel for the appellant sought to persuade us that sufficient particulars
      had been furnished to the plaintiff to allow the defendants to obtain the
      orders sought from the learned chambers judge.

That
      requires some consideration of the alleged libel and the particulars provided
      in response to the order of Boyd J.

Paragraph
      9 of the statement of claim sets forth the libel complained of as follows:

Union kickback scheme challenged

CONSTRUCTION │
Provincial association labels union job targeting
      a perversion and seeks to have it declared illegal, reports The Sun's
Harvey
Enchin

A kickback scheme that uses union dues to help union
contractors
underbid
      non-union competitors on building projects should be declared illegal,
      a provincial construction association says.

Union members finance the kickbacks through a surcharge on their membership
      dues.

The union  which calls the
      ruse a job-targeting program or market-recovery program  collects the
      money in a slush fund that is paid out to union-only employers bidding
      against open-shop contractors.

'This is perversion of the tendering process,' said Philip Hochstein,
      executive vice-president of the Independent Contractors and Businesses
      Association of British Columbia.

'And
      in our opinion, it's questionable use of membership dues.'

'Job targeting compromises any notion of a fair and transparent bid process
      whether it be for taxpayers or private investors,' he said.

'If the government does not outlaw this insidious practice, we have every
      reason to believe it will become even more common.

It is possible the amount of union dues used
      for this purpose could potentially grow to over $50 million, which represents
      a substantial tax loss to both the federal and provincial treasury.'

A study of job targeting by the Work Research Foundation estimated that
      more than $100 million is administered every year through slush funds set
      out for this purpose.

However, in many cases, job targeting lowers wages a union contractor
      has to pay below those established by the Fair Wage Policy introduced by
      the NDP government in 1992.

'So much for levelling the playing field,' Hochstein said.

'It's an unseemly system of kickbacks and I
      don't think anybody likes it.'

But job targeting may contravene criminal and civil provisions of the
      federal
Competition Act
and raise issues with the Canadian Customs
      and Revenue Agency about the appropriateness of tax deductibility of dues
      used for this purpose, the Foundation study said.

Hochstein agreed that wages represent only part of the problem and other
      issues  resistance to multi-
skilling
, restrictive
      work rules, jurisdictional disputes  are not offset by taking union members
      money and kicking it back to the contractor.

If job targeting was declared illegal, Hochstein said, building trade
      unions and contractors would get down to core problems in their collective
      agreements.

[16]

As
      narrated by Saunders J.A. in granting leave, the subject matter of the
      comments in the newspaper and as otherwise disseminated concerned a union
      program that sought to enhance the interests of its members:

[3]

The article addressed
      a program that the I.B.E.W. has run for several years whereby a levy equal
      to 5% of gross wages earned from a particular union contract, called the
      Inside Wireman's Agreement, is set aside in a fund.

As
      a fee calculated by the I.B.E.W., it is tax deductible as union dues.

The fund is dispersed at the
I.B.E.W.'s
discretion to augment wages for union contractors
      on projects in which non-union companies are among the competition.

If
      the project is selected for the program, the union commits to provide funding
      from these monies to the I.B.E.W. Local 213 contractors bidding on the
      contract, that is, the money is used as a subsidy in a fixed amount for
      each hour worked by electrical journeyman employed on the project if the
      union contractor succeeds in obtaining the contract.

[17]

In
      their defence, the defendants Hochstein and ICBA pleaded as follows:

9.

In answer
      to the whole of the Statement of Claim, Hochstein and ICBA say that all
      of the statements in, or attributed to them in, the News Report which are
      facts, are true in substance and in fact.

10.

In answer
      to paragraphs 14, and 15, and the whole of the Statement of Claim, Hochstein
      and ICBA say that the following statements are true in substance and in
      fact:

(a)

There is a practice of job targeting in
      the construction industry in British Columbia;

(b)

In those job targeting schemes, unions
      use amounts collected from their members as union dues to subsidize the
      wages paid to their members by their members' employers for specific construction
      projects those employers undertake;

(c)

Job targeting schemes reduce or defer
      potential tax revenue because union members are deducting from their taxable
      income the amounts paid to their union as union dues.

11.

In further
      answer to the whole of the Statement of Claim, Hochstein and ICBA say that
      that all of the statements in, or attributed to them in, the News Report
      which are not facts are a matter of opinion and fair comment made in good
      faith and without malice on a matter of public interest, namely the tendering
      process on government and other construction projects.

[18]

In
      response to a demand for particulars by the plaintiff and further to the
      order made by Boyd J., the defendants Hochstein and ICBA on 29 January
      2004 and 17 March 2004 provided particulars to the plaintiff.

In the particulars, the defendants stated that
      in the 1970s the majority of work in non-residential construction, and
      in particular most of the electrical non-residential construction work,
      was performed by electrical contractors certified to local unions of the
      IBEW including the plaintiff IBEW, Local 213.

However,
      in the 1980s there had been a significant decrease in this type of work
      being done by unionized contractors.

In
      about 1990, Local 213 of the IBEW established a joint committee of contractors
      and union members to examine the problem and to propose strategies or programs
      to increase market share.

One program
      examined was a "market recovery program" established in 1986
      by an IBEW local in Oregon that had been quite successful.

According to the particulars, in 1992 the plaintiff
      made a proposal to its members to adopt a similar program which could be
      achieved by way of a "job targeting program" ("JTP").

The JTP involved establishing a fund called
      the electrical industry advancement fund ("EIAF"), to be financed
      through a union levy of 5% of all wages earned by members of the local,
      which levy should be tax deductible.

[19]

The
      further particulars went on to state that the program would be operated
      by the plaintiff identifying local union contractors likely to bid on prospective
      jobs and if non-union companies were among the competition, the local's
      contractors would provide the union with the names of the known competitors,
      an estimate of the hours for electricians on the project, the name of the
      organization awarding the contract, and the nature and duration of the
      project.

The plaintiff would decide whether the program
      qualified for the assistance of JTP monies and, if so, the plaintiff would
      commit to providing certain funding as a wage subsidy to Local 213 contractors
      bidding on the project.

If the Local
      213 contractor was successful in getting the contract, that contractor
      would provide weekly time sheets for journeymen working on the project
      and the plaintiff would pay the contractor monies to subsidize their wages
      in an amount previously approved.

[20]

It
      was stated that arrangements were made with the contractors of Local 213
      that union dues would be increased by 5% of gross monthly wages for all
      IBEW, Local 213 members working under the terms of the Inside Wiremen's
      Agreement.

A letter of understanding to this effect was
      signed between IBEW, Local 213 and the Construction Labour Relations Association
      of British Columbia on 2 August 1992.

In the particulars, reference is made to publications
      distributed by the plaintiff to its members in 1993, 1994, and 1998 disclosing
      that in the first five years of the JTP an amount of approximately $2 million
      a year had been collected under the market recovery program.

The
      particulars state that the program was operated essentially as described
      in the 1992 proposal and the letter of understanding.

It
      is stated that the effect of the wage subsidy was to reduce the effective
      hourly wage cuts on projects for electrical contractors certified to the
      plaintiff.

According to the particulars, the wage cost
      subsidization would provide those contractors certified to the local with
      a competitive advantage by reducing their overall costs thus making it
      easier for those contractors to become low bidders on jobs and thereby
      influencing the outcome of the tendering process.

A
      schedule attached to the particulars listed over 160 projects in which
      EIAF monies had been paid to contractors.

The
      particulars stated that the amount of any JTP funding on a particular project
      is disclosed to the electrical contractors certified to the plaintiff,
      but such information is not disclosed to the owner of the project or to
      other electrical contractors bidding on a job.

[21]

In
      their notice of motion filed 25 November 2003, the appellants sought
inter
alia
:

* * *

(b)

All
      documentation concerning the conception and establishment of the Plaintiff's
      job-targeting program and the means by which the Plaintiff's members were
      apprised of and approved the job-targeting program;

(c)

Annual
      financial statements for the Plaintiff from 1992 to date, including the
      amounts held in the job-targeting program fund and the annual expenditures
      from the job-targeting program fund, or from the job-targeting program
      component of any overall market recovery program fund of the Plaintiff;

(d)

All
      correspondence of all staff and executive and regular members of the Plaintiff
      concerning:



an
employer's application
      for assistance from the job-targeting program; and



the
percentage of
      union dues from the Plaintiff's members that is directed toward the job-targeting
      program (or the job-targeting component of overall market recovery program);
      and



any
special surcharges
      or levies that are assessed against the Plaintiff's members to fund the
      job-targeting program (or the job-targeting program component of an overall
      market recovery program), either generally or with respect to the project
      bid of any particular employer;

* * *

(h)

All
      correspondence, guidelines, directives and other material exchanged by
      the Plaintiff with the British Columbia/Yukon Building & Construction
      Trades Council concerning job-targeting programs, either generally or with
      respect to particular employers;

(
i
)

All correspondence, guidelines, directives and other material
      exchanged by the Plaintiff with the Construction Labour Relations Association
      of British Columbia concerning job-targeting programs, either generally
      or with respect to particular employers;

* * *

(l)

All
      regular or extraordinary newsletters or bulletins from the Plaintiff's
      executive, board or senior staff members to union members, which contain
      any references to job-targeting programs, including but not limited to
      the September 1993 and March 1997 newsletters.

[22]

Melvin
      J. ordered produced the material sought under heading (b) as it related
      to the 1992 agreement between IBEW, Local 213 and the Construction Labour
      Relations Association of British Columbia to set up the fund and matter
      sought under heading (l) but refused to order production of the other materials.

With respect to items (h) and (
i
), the learned chambers judge observed that the materials
      sought
thereunder
were "nothing more than
      general fishing expeditions and no order will be made with reference to
      them".

I respectfully agree
      with those comments of the learned chambers judge and I would make no alteration
      in his order concerning those items.

[23]

In
      my view, the documents sought under that portion of heading (c) concerning
      amounts held in the fund and annual expenditures relative to the program
      are relevant and should be ordered produced.

I
      consider the documents sought under heading (d) are relevant and should
      be produced.

I consider the defendants
      have provided particulars that are sufficiently specific to trigger an
      obligation on the part of the plaintiff to produce these documents.

[24]

I
      consider that the ICBA defendants have in the totality of the particulars
      they provided clearly identified what it is that they complain about.

The particulars have what I would call a high
      degree of specificity and the material ordered produced concerns matters
      relevant to the litigation.

The
      particulars allege that for several years after 1992 the JTP was in effect
      to assist union contractors win contracts under the tendering process by
      economically assisting those contractors to bid sufficiently favourably
      to obtain work.

The particulars
      provided disclose the existence of the program and the fund, the way in
      which it operated, and particulars as to monetary sums raised over the
      years.

It does not appear to me that the plaintiff
      can be under any doubt or misapprehension as to what it is these defendants
      are asserting against it.

This case
      is accordingly at a far remove from cases such as
Bottomley
,
supra
,
      where only a general allegation of fraudulent conduct was made.

In
Bottomley
, the defendants provided
      no dates or instances of particular fraudulent acts by the plaintiffs or
      names of any person they alleged the plaintiffs had defrauded.

This case also differs from the Nova Scotia
      case
Kent
,
supra
,

where no particulars
      were furnished aside from the pleading itself.

[25]

While
      these cases of defamation fall into a special category relative to discovery,
      some balancing exercise has to be undertaken by a court to protect the
      respective rights of plaintiffs and defendants.

If
      sufficient particulars are furnished by a defendant to clearly identify,
      in appropriate detail, details concerning the allegations, then it seems
      appropriate to order discovery of relevant documents.

Common sense and fairness have to be the touchstones
      in deciding what ought and what ought not to be ordered
produced
.

[26]

In
      my judgment, the particulars provided by the defendants about the nature,
      character, and operation of the program complained of entitle them to an
      order for production of documents sought as set out in item (c) relating
      to amounts in the fund and annual expenditures of the program and those
      sought under item (d) of the notice of motion filed 25 November 2003.

Accordingly,
      with regard to such documents, I would allow the appeal from the refusal
      of the chambers judge to order production of documents relating to such
      matters.

Otherwise I would dismiss
      the appeal.

[27]

As
      regards the issue of costs, I note that the appellant has not succeeded
      in its broad submission that the rule laid down in earlier cases ought
      to be abrogated.

However, it has
      had a measure of success with respect to certain of the items sought.

The respondent has not been able in total to
      sustain the result reached before the learned chambers judge but has succeeded
      in upholding part of that result.

Since
      success on this appeal has been somewhat divided, it seems to me appropriate
      to order that no costs be awarded to either the appellants or the respondent.

The Honourable
Mr. Justice Hall

I
      Agree:

The
      Honourable
Madam Justice
      Rowles

I
      Agree:

The Honourable
Madam Justice Newbury


