Introduction
 

The purpose of pleadings is to define the matters at issue between the parties. In Manitoba, Queen's Bench Rule 25.06(1) provides that "every pleading shall contain a concise statement of the material facts on which the party relies for a claim or defence". Similar rules exist in other provinces. Despite such rules, it is not unusual for disputes to arise as to whether a claim or defence contains a sufficient outline of the material facts required in a pleading.
 

Relatively recent amendments of the rules of civil procedure have provided a formal mechanism to compel a party to provide particulars of the allegations made in the pleadings of an opposite party.⁽¹⁾ The Federal Court of Appeal set forth the rationale behind an order for particulars in the case of Gulf Canada Ltd. v. The "Mary Mackin":⁽²⁾

(a) to inform parties of the nature of the case they have to meet as distinguished from the mode in which it is to be provided;
 

(b) to prevent parties from being taken by surprise;
 

(c) to enable parties to know what evidence they ought to be prepared with and to prepare for trial;
 

(d) to limit the generality of a claim;
 

(e) to limit and decide the issues to be tried, and as to which discovery is required; and
 

(f) to tie the hands of the parties so that they cannot, without leave, go into any matters not included in their pleadings.
 
 
 
 
 

The need for sufficient particulars in pleadings was recognized by courts in defamation actions well before formal rules compelling the provision of particulars were in place.⁽³⁾ A special emphasis has always been placed on the quality of pleadings in cases of libel and slander because of the unique nature of defamation actions. Words form the material facts in a defamation claim and liability will turn upon the meanings attributed to such words. Damages arise from injuries to the subjective and imprecise concept of "reputation". Given the fact that defamation actions necessarily deal with questions of interpretation, it is critical that the words in question, the circumstances in which such words were published and the meanings alleged to be drawn from such words must be clearly specified. It is for these reasons that the courts have place a higher value on the level of precision of pleadings in a defamation claim as compared to other causes of action.⁽⁴⁾
 

Speaking from the perspective of defence counsel, there is nothing more frustrating than reviewing a Statement of Claim which refers to a lengthy article or broadcast and makes the bald assertion that the plaintiff was defamed as result. While there may be a natural desire to simply deny the allegations, it is submitted that such an approach will only result in confusion, delay and expense as the litigation proceeds. A carefully drafted request for particulars will force a plaintiff to critically examine his/her claim and identify the specific complaint(s) about the publication in question. The ability to narrow the matters in dispute and compel a plaintiff to specify how the words in question are alleged to have caused harm will make the process of drafting a meaningful and responsive defence easier and result in considerable savings of time and expense at the pre-trial stages of the litigation and at trial itself.
 

While not the most glamorous weapon in the arsenal of counsel, the effective use of a request for particulars can result in significant practical and tactical advantages for a client. Particulars form part of the pleadings and will serve to confine an opposing party to the specific issues set forth in their particulars at examinations for discovery⁽⁵⁾ and at trial⁽⁶⁾. By being bound by the particulars given, an opposing party will be prevented from embarking on a fishing expedition to support allegations which could not be substantiated when the pleadings were prepared. When a defendant has properly particularized their defence the plaintiff will be compelled to allow the inspection of his/her records which will frequently cause a reconsideration of the decision to litigate. Where sufficient particulars have not been provided, the unparticularized allegations may be struck out (usually with leave to amend the claim to provide sufficient particulars)⁽⁷⁾ and the entire claim can be struck⁽⁸⁾ if the plaintiff cannot provide particulars required to establish a cause of action.
 

Entitlement to Particulars

The primary purpose of particulars is to provide an opposing party with sufficient information of the allegations being advanced so that they might know the case to be met at trial and be able to prepare a full and meaningful pleading in response.⁽⁹⁾ It is immaterial that the same information could be obtained at discovery⁽¹⁰⁾. While there is some disagreement on this point⁽¹¹⁾, it is submitted that it is immaterial if the defendant knows the particulars of the defamatory statements in issue since the real question is what specific allegations are being advanced by a plaintiff.⁽¹²⁾ However, some courts have displayed a willingness to allow some flexibility on this point where a prima facie claim has been made out and it is apparent that the defendant would have knowledge of the particulars requested.⁽¹³⁾
 
 
 

Particulars of the Defamatory Statements

Since the words alleged to be defamatory are part of the material facts in a pleading, it is important that the specific words at issue be identified with particularity by a plaintiff.⁽¹⁴⁾ It is not sufficient for a plaintiff to provide an approximation of the words used.⁽¹⁵⁾ A plaintiff must also provide information as to when, where and to whom the defamatory statements were published.⁽¹⁶⁾
 

Some courts have permitted a plaintiff to identify an entire article as being defamatory if the article in question is relatively short and concise.⁽¹⁷⁾ However, there is an obvious unfairness if what is at issue is a large publication which deals with a variety of persons and topics which have no application to the plaintiff.⁽¹⁸⁾ Given the stated purpose of particulars, the preferred view would seem to be that a plaintiff should be required to identify the particular portions of an article alleged to be defamatory while permitting the plaintiff to rely on the whole of the article as giving a background to the defamatory statements. The failure to identify the words in question places a defendant in the position of searching for the proverbial "needle in the haystack". This may result in a defendant being forced to justify meanings from portions of the publication which the plaintiff never considered to be defamatory.
 

The question of particulars is more complex when dealing with audio-visual presentations which are alleged to be defamatory. The images, sounds and background effects in a television program can convey a defamatory meaning even where the words spoken are innocuous. It is therefore necessary for particulars to identify the words, sounds and images alleged to be defamatory and to specifically identify the portions of the broadcast in question.⁽¹⁹⁾ Where multiple broadcasts are involved, a plaintiff is required to identify the parts of the various episodes at issue (words, images and sounds) that are said to be defamatory⁽²⁰⁾.
 

In Bank of B.C. v. CBC,⁽²¹⁾ a request for further particulars was denied where the television broadcast issue was short (two minutes) and dealt with a single topic. However, it should be noted that the particulars contained in the claim in that case were quite detailed and made specific reference to images and effects along with the words in issue during the broadcast that were said to gave rise to the defamatory meanings.
 

Particulars of Defamatory Meanings

There is no need for particulars where the ordinary meaning of the words in question is apparent. A request for particulars would be frivolous and vexatious if the statement in question was "Mr. Smith killed Mr. Jones with an axe". However, if the defamatory meanings of the words are not abundantly clear and the plaintiff has not identified the meanings that he/she ascribes to the statement(s), it is important that the plaintiff be required to specify the meanings alleged to be drawn from the words in question⁽²²⁾. The failure to do so raises the possibility that a plaintiff could allege a meaning at trial which had not previously been considered and give evidence as to any fact which tends to support such an allegation⁽²³⁾.
 

The need for particulars is obvious where a plaintiff is relying upon a legal innuendo, i.e. that extrinsic facts and circumstances not contained in the publication give rise to a defamatory meaning which would be known to those who had knowledge of such unstated facts. In such cases, the plaintiff must set out the specific meanings alleged and the extrinsic facts which give rise to the innuendo.⁽²⁴⁾ The particulars of such an innuendo should be provided in great detail since the plaintiff is alleging meanings from facts and circumstances not disclosed in the language of the publication at issue.
 

Particulars of Damages

The general rule has been that a plaintiff does not have to give particulars of his/her damages where the only claim advanced is for general damages. However, in Quann v. Creighton,⁽²⁵⁾ the court ordered particulars to be given of injuries to the character and reputation of the plaintiff. It is submitted that such an order is not required because the law presumes that defamation causes damage⁽²⁶⁾ and no proof of damage or injury need be provided by a plaintiff. In obiter comments, Cory J. indicated that he would order particulars of damages alleged to have been caused to a plaintiff's "vocation, profession or calling".⁽²⁷⁾ If there is a claim for loss of business the particulars of such loss should be provided as well as information about any specific customers whose business has been lost as the result of a publication.⁽²⁸⁾
 

Particulars from the Defendant

The requirement of precision in pleadings applies equally to a defendant. The courts will require particulars of a defence to be given so that the plaintiff might know the case being advanced by the defendant and prepare accordingly.⁽²⁹⁾
 

a) Particulars of Justification

It is usually not enough for a defendant to simply claim that the defamatory charges against a plaintiff are true. A Statement of Defence must identify instances of the misconduct alleged against the plaintiff in order to justify the general allegations being made.⁽³⁰⁾ The level of particularity required varies widely, depending upon the specific allegations in question. It is understandable that a defendant should be required to advise how a plaintiff's workmanship was said to be inferior.⁽³¹⁾ However, it seems that the bar was set quite high when it was suggested that a defendant who alleged that a plaintiff was a prostitute should specify the times, places and dates of her liaisons along with the names of customers.⁽³²⁾
 

It is reasonable to require a defendant to offer some indication as to the specific conduct which will be relied upon to support a justification defence. The degree of precision in particulars from a defendant advancing a justification defence would seem to be dictated by the nature of the statements in question⁽³³⁾. The more general the charge, the greater the need for specific details in the particulars to be provided from the defendant.
 

The importance of particularizing a justification defence can be seen when the issue of documentary disclosure is considered. Defamation proceedings provide an exception to the general rule in civil proceedings that a party is compelled to disclose any document that would be relevant to a matter at issue in the pleadings. A party will not be entitled to documentary disclosure on issues not particularized in their pleadings. This exception to the general rule is designed to prevent a party who defames another from obtaining access to all of the documents of the plaintiff with the hope of finding something to justify the defamatory statement by simply raising a general defence⁽³⁴⁾ of justification without offering any particular facts to support such a pleading.
 

Given this exception, a defendant who raises a defence of justification is only entitled to documentary disclosure to materials which touch upon those specific facts that have been particularized, notwithstanding the general rule that any relevant documents are to be produced.⁽³⁵⁾ This rule imposes a clear obligation on a defendant to identify with precision the specific incidents or transactions which support a justification defence in order to gain a right to inspect documents in the control of the plaintiff which would support the justification defence.⁽³⁶⁾
 
 
 

Special mention must be made of the Manitoba case of Ministic Air Ltd. v. CBC⁽³⁷⁾. The decision involved a motion to compel documents in the possession of a third party which might address the allegation that the plaintiff airline allowed unqualified personnel to occupy the co-pilot's seat. Counsel for the plaintiff took the position that the documents should not be produced because only a "rolled-up" plea was involved and sufficient particulars of this allegation had not been provided.
 

In his decision, Oliphant J. acknowledged the exception in defamation actions to the general rule regarding the production of documents where a general justification defence was raised. However, he took the position that the defence had been adequately particularized and that it was not necessary for a defendant to plead in specific detail (i.e. identifying particular dates) in order to obtain access to relevant documents. The decision made specific reference to the more liberal rules regarding documentary disclosure in civil proceedings and distinguished previous decisions⁽³⁸⁾ which supported the exception by noting that those cases did not involve claims brought under rules of civil procedure which expressly provided expanded rights of documentary disclosure.
 

It would appear that the issue of how the courts will resolve the question of whether general rules in favor of documentary disclosure should be preferred over the longstanding exception to disclosure in defamation actions has not yet been definitively resolved. Dillon J. in Fletcher-Gordon v. Southam Inc.⁽³⁹⁾ took notice of the decision in Ministic Air, but distinguished the case on the basis that the court found that sufficient particulars had been provided. Counsel should be aware of the conflicting positions that arise from the current rules in favor of liberal documentary disclosure and the exception that the law of defamation had carved out regarding the production of documents.
 

b) Particulars of Fair Comment

A defence of fair comment will impose an obligation on a defendant to identify what facts are relied upon in support of the plea and what statements are comment⁽⁴⁰⁾. A defendant will not be permitted to examine the plaintiff at discovery upon issues which have not been particularized regarding the defence of fair comment, notwithstanding the fact that no request for particulars was ever made by an opposing party⁽⁴¹⁾. This imposes an obligation on a defendant to provide as much detail as possible in the pleadings or risk being denied access to information which would support the allegations in question.
 
 
 

The issue of particulars in a "rolled up"plea requires special consideration. While such a plea does raise the issue of the truth of the facts involved, it has been held to constitute only a defence of fair comment and not of justification⁽⁴²⁾. Previous decisions had stated that it was not necessary to specify which words were statements of fact and which were opinion when a "rolled up" plea was involved.⁽⁴³⁾ This situation was subject to much criticism. In British Columbia, the rules of court⁽⁴⁴⁾ require a defendant to particularize which words are statements of fact and the facts and matters relied upon that the words are true. The courts in Ontario have required particulars in a "rolled up" plea where the statements in question are of a general nature and particulars would be required so that the case to be met by a plaintiff would be known⁽⁴⁵⁾. Particulars were not ordered in a Manitoba case where it was held that the statements in question were sufficiently clear so that particulars were not required⁽⁴⁶⁾
 

c) Particulars of Privileges

Particulars are required so that a plaintiff will know what the defendant will seek to
 

prove at trial⁽⁴⁷⁾. Given this, it stands to reason that a defendant must set forth the facts which establish the privilege upon which he intends to rely⁽⁴⁸⁾.
 

Practice Issues

A request for particulars should be made before the close of pleadings since the reason for particulars is to allow a party to make a full defence to the allegations against them.⁽⁴⁹⁾ The failure to issue a request for particulars until after the pleadings have closed will undermine the argument that the particulars are really required.⁽⁵⁰⁾
 

Where a response to a request for particulars is felt to be unsatisfactory, the appropriate course of action is to bring a motion seeking better particulars of the allegations in question and not to file a defence to an insufficiently particularized claim. It is advisable to include a request for an extension of time for the filing of a Statement of Defence in the same motion since a request for particulars does not operate as a stay of proceedings⁽⁵¹⁾.
 

1. Manitoba Queen's Bench Rule 25.10(1)

2. [1984] 1 F.C. 884

3. Lougheed v. CBC (1979), 98 D.L.R. (3d) 264 (Alta. C.A.) At 273

4. Porter and Potts, Canadian Libel Practice Butterworths: Toronto 1986 at 41

5. Parkland Chapel Ltd. v. Edmonton Broadcasting Co. (1964), 48 W.W.R. 303 (Alta. S.C.)

6. Ad-West Neon v. High-Line Construction Ltd., [1992] 3 W.W.R. 445 (Sask. Q.B.)

7. Berard v. Division Scolaire Franco-Manitobaine (unreported) (Man. C.A). March 31, 1998

8. Wall v. Lalonde (1974), 7 O.R. (2d) 129 (S.C.)

9. Lougheed v. CBC supra, note 3 at 273

10. Steiner v. Lindzon (1976), 14 O.R. (2d) 122 (H.C.J.)

11. Welch v. Jackson, [1948] O.W.N. 708 (H.C.J.)

12. Vetter v. Wilson (1946), 54 Man. R. 247 (C.A.) at 268

13. Paquette v. Cruji (1979), 26 O.R. (2d) 294 (H.C.J.)

14. Keating v. Southam Inc., [1999] N.S.J. No. 351 (S.C.)

15. Voutsinos v. New Brunswick Research and Productivity Council [1993] N.B.J. No. 325 (Q.B.)

16. Paquette v. Cruji supra, note 13 at 298

17. Churchill Forest Industries v. Finkel, [1971] 1 W.W.R. 745 (C.A.)

18. DDSA Pharmaceuticals Ltd. v. Times Newspapers Ltd., [1972] 3 All E.R. 417 (C.A.) at 419

19. Lougheed v. CBC supra, note 3 at 268

20. Moffat v. British Columbia Television Systems Ltd. [1985] 1 W.W.R. 271 (B.C.S.C.)

21. (1986), 5 B.C.L.R. (2d) 131 (S.C.); aff'd (1986), 6 B.C.L.R. (2d) 215 (C.A.)

22. Loos v. Leader-Post Ltd., [1982] 2 W.W.R. 459 (Sask. C.A.) at 466

23. Vetter v. Wilson supra, note 12

24. Aboutown Transportation Ltd. v. London Free Press (1993), 14 O.R. (3d) 19
 

Keating v. Southam Inc. supra, note 14

25. [1990] N.B.J. No. 340 (Q.B.)

26. Safeway Stores Ltd. v. Harris (1948), 56 Man. R. 146 (Q.B.)

27. Church of Scientology v. Globe & Mail Ltd. (1978), 19 O.R. (2d) 62 (H.C.) at 66

28. Ashdown v. Manitoba Free Press (1891) 20 S.C.R. 43

29. Loos v. Leader Post Ltd., supra, note

30. Ibid, at 469

31. Ad-West Neon v. High-Line Construction Ltd., supra, note 6

32. Henneforth v. Maloof (1917), 42 O.L.R. 36

33. Barnes v. Sykes, [1926] 3 W.W.R. 476 (Man. K.B.)

34. Kent v. Kehoe [1999] N.S.J. No. 313 per Oland J.

35. Fletcher-Gordon v. Southam Inc B.C.J. No. 107; aff'd (1997) 29 B.C.L.R. (3d) 197 (B.C.C.A.)

36. Kent v. Kehoe supra, note 34

37. [1995] 8 W.W.R. 31 (Man. Q.B.)

38. Parkland Chapel Ltd. v. Edmonton Broadcasting Co. (1964), 48 W.W.R. 303 (Alta. T.D.)

39. [1997] B.C.J. No. 107

40. Barnes v. Sykes supra, note 33

41. Drake v. Overland, [1980] 2 W.W.R. 193 (Alta. C.A.)

42. Pearlman v. CBC (1981), 13 Man. R. (2d) 1 (Q.B.)

43. Bossy v. National Press, [1930] 1 W.W.R. 51 (Man. K.B.)

44. Rule 19(12)(b)

45. Toronto Star Ltd. v. Globe Printing Co., [1941] O.W.N. 291

46. Laufer v. Bucklaschuk [1991] M.J. No. 514 per. Master Goldberg

47. Loos v. Leader-Post Ltd. supra, footnote 3 at 469

48. Toronto Star Ltd. v. Globe Printing Co., supra, note 45

49. Steiner v. Lindzon, supra, note 10

50. Paquette v. Cruji supra, note 12 at 297

51. Manitoba Queen's Bench Rule 25.10(3)