COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

Vancouver
                (City) v. Maurice,

2005 BCCA
            37

Date: 20050124

Docket: CA030345

Between:

City of
      Vancouver

Respondent

(
Plaintiff
)

And

Claude
      Maurice, Kerry Pakarinen
and Anton Pilippa

Appellants

(
Defendants
)

And

Craig Ballantyne,
      Jim Leyden, Jane Doe, John Doe and Other Persons Unknown, erecting, maintaining,
      or occupying tents, structures and other objects on City of Vancouver streets
      in the 100 block West Hastings Street, the 300 block Abbott Street, or
      the 100 block West Cordova Street, Vancouver, British Columbia

Defendants

Before:

The Honourable
            Madam Justice Rowles

The Honourable
            Madam Justice Prowse

The Honourable
            Mr. Justice Oppal

A.C. Ward and L.J. Tessaro

Counsel for the Appellants

T.M. Zworski

Counsel for the Respondent

Place and Dates of Hearing:

Vancouver, British Columbia

7 and 8 June 2004

Place and
            Date of Judgment:

Vancouver, British Columbia

24 January 2005

Written
              Reasons by
:

The Honourable
            Madam Justice Rowles

Concurred
              in by:

The Honourable
            Madam Justice Prowse

The Honourable
            Mr. Justice Oppal

Reasons for Judgment
        of the Honourable Madam Justice Rowles:

I.    Overview

[1]

The
      appellants seek to overturn an interlocutory injunction granted to the
      City of Vancouver (the "City") on 22 November 2002, during a
      period of political and social protest about the lack of social housing
      for the poor and homeless in Vancouver.  In part, the protest took place
      on the sidewalks surrounding the former Woodward's department store building
      (the "Woodward's Building").

[2]

The
      appellants do not attack the legal foundation for the granting of the order
      under appeal.  There is no issue that the placement and maintenance of
      tents, shelters, mattresses and other objects and structures on City sidewalks
      around the Woodward's Building constituted an obstruction to the free use
      of those sidewalks and was in contravention of the City's
Street and
      Traffic By-law
(the "By-law").  Instead, the appellants seek
      to have the injunction set aside on procedural grounds.

[3]

The
      appellants argue that since
Everywoman's Health Centre Society (1988)
      v. Bridges
(1990), 54 B.C.L.R.(2d) 273 (C.A.)
,
it has become
      almost settled practice in British Columbia for corporations or government
      entities to attempt to quash political or social protest activities by
      inviting the courts to grant injunctions and then to exercise the court's
      powers to punish for contempt.  It is the appellants' submission that when
      the extraordinary remedy of an injunction is sought, the court must ensure
      that fundamental procedural safeguards are met.  The appellants argue that,
      in this case, the City failed to add as parties in the style of cause those
      persons who had filed Appearances to the City's action and that certain
      unrepresented persons were denied an opportunity to make submissions when
      the motion for the interlocutory injunction was heard.

[4]

The
      City does not dispute the appellants' basic proposition that when injunctive
      relief is sought, the procedures set out in the
Rules of Court
and
      the principles of fundamental justice must be followed.  The City's position
      is that neither the style of cause in its action nor its motion for injunctive
      relief were procedurally flawed and that the chambers judge was not in
      error in not adding parties and in exercising his discretion not to hear
      further from those persons who had filed Appearances but had not filed
      a Response to the City's interlocutory injunction application.

[5]

For
      the reasons which follow, I am of the view that the appellants' complaints
      of procedural error and their potential consequences are not well-founded
      in this case and that the appeal must be dismissed.

II.   Background

[6]

In
      September 2002, various people began to occupy the Woodward's Building
      and to camp on the sidewalks adjacent to it.  Tents,
mattresses and other objects were placed around the building in contravention
      of the City's

By-law.

[7]

The
      occupation of the Woodward's Building and the erection of structures on
      the sidewalks around the building were part of a social or political protest
      about the lack of social housing available for poor and homeless people
      in the Vancouver area.

[8]

On
      16 September 2002, the owner of the Woodward's Building obtained an interlocutory
      injunction prohibiting entry into the building.  On 21 September 2002,
      54 people were arrested in the building and were brought before the court.  Reasons
      for judgment in the appeals from orders made in those proceedings are being
      released contemporaneously with these reasons.

[9]

The
      City has the power to seek an injunction to enforce its by-laws by reason
      of ss. 334 and 571 of the
Vancouver Charter
, S.B.C. 1953,
      c. 55.

[10]

Outside
      the Woodward's Building, there was a changing population in the tents and
      other structures that had been put up by the protesters on the City's sidewalks.
On 30 October 2002, the City commenced an
      action naming five individuals as defendants (the "Named Defendants")
      in the style of cause.  The Writ also named as defendants "Jane Doe,
      John Doe and Other Persons Unknown, erecting, maintaining, or occupying
      tents, structures and other objects on City of Vancouver Streets in the
      100 block West Hastings Street, the 300 block Abbott Street, or the 100
      block West Cordova Street, Vancouver, British Columbia."

[11]

The
      appellants are three of the Named Defendants.

[12]

Between
      31 October 2002 and 2 November 2002, the Writ was served on the Named Defendants.  As
      well, the City had 32 copies of the Writ handed out to persons present
      on the sidewalks outside the Woodward's Building and a further 81 copies
      of the Writ were left inside the tents, shelters, couches and on mattresses
      on the sidewalks outside the building.

[13]

By
      15 November 2002, 34 people, including the five Named Defendants, had filed
      Appearances to the City's action.  The fact that m
any
      of those filing Appearances did not include an address for delivery, as
      required by the
Rules of Court
, may reflect the fact that
      a number of the protestors were apparently homeless.  However, the City
      went to considerable lengths to ensure that notice was given to all those
      who might be affected by an application for an injunction.  On this appeal,
      no issue arises from the fact that the Appearances failed to comply with
      the
Rules of Court
.

[14]

Between
      5 and 10 November 2002, the City served the Named Defendants as well as
      the majority of other persons who had filed Appearances to the action with
      a Notice of Motion for an interlocutory injunction.  The Notice of Motion
      and supporting materials were served mainly on individuals on the sidewalks
      around the Woodward's Building.  The Notice of Motion showed the date for
      hearing as 19 November 2002.

[15]

Eight
      persons, four of whom were the Named Defendants, Claude Maurice, Kerry
      Pakarinen, Anton Pilippa and Craig Ballantyne, delivered Responses to the
      City's Notice of Motion.  Those who delivered Responses
were
      represented by counsel at the hearing of the City's injunction application.  None
      of the other persons served with the Motion and materials delivered a Response
      to the City's motion.

[16]

The
      hearing of the interlocutory injunction application took two days. The
      eight individuals who had filed Responses and an intervenor, the British
      Columbia Civil Liberties Association, appeared by counsel to oppose the
      City's application.  Near the end of the second day of the hearing of
      the City's application, eight persons, who had not filed Responses to the
      City's application but who said they had filed Appearances, asked to address
      the court.  The chambers judge agreed to permit them to make submissions
      but specifically cautioned them not to give oral evidence and to limit
      themselves to making submissions.  Despite the caution, the first four
      speakers attempted to offer unsworn evidence.  After the fourth person
      had spoken, there was cheering and clapping in the courtroom.  At that
      point, the chambers judge refused to hear from any more of the unrepresented
      persons.
The identities
      of the four individuals who were not permitted to address the court are
      unknown.

[17]

The
      chambers judge found that there was a clear contravention of the By-law
      and that there were no exceptional circumstances present and consequently
      granted the injunction the City sought.  No issue is taken with the findings
      made by the chambers judge.

[18]

In
      its material part, the order under appeal reads as follows:

THIS COURT ORDERS
      that:

1.    the Defendants
      and all other persons having knowledge of this order remove all structures
      or objects belonging to them, or used by them, which are located upon City
      of Vancouver streets or any part thereof, in the 100 block West Hastings
      Street, the 300 block Abbott Street, and the 100 block West Cordova Street,
      Vancouver, British Columbia by noon on Monday, November 25th, 2002;

2.    the Defendants
      and all other persons having knowledge of this Order be prohibited and
      restrained, from noon on Monday, November 25th, 2002 until the trial of
      this matter or further order of this Court, from constructing, placing,
      or maintaining structures or objects upon City of Vancouver streets or
      any part thereof, in the 100 block West Hastings Street, the 300 block
      Abbott Street and the 100 block West Cordova Street, without having first
      obtained written consent from the City of Vancouver Engineer;

3.    this injunction
      Order does not prohibit or limit the right of the Defendants, or any other
      persons, to lawfully assemble on any street or any part thereof;

4.    for the
      purposes of this Order:

(a)   "structures and objects" include tents,
      sofas, chairs, mattresses, tarpaulins, tables, buckets, shopping carts,
      traffic delineators, traffic cones, wood pallets and other items or objects,
      and any other items which encroach on or obstruct the free use of the street;
      and

(b)   "street" includes public road, lane,
      and sidewalk, and any other way normally open to the use of the public;

5.    the Plaintiff
      shall distribute and post copies of this Order to give sufficient notice
      to the Defendants as to the terms of this Order; and

6.    the approval by the Parties as to form of this
      Order be dispensed with except for approval by Counsel present at the pronouncement
      of this Order.

[19]

The
      order was served on the Named Defendants and copies were distributed to
      persons on the sidewalks around the Woodward's Building.

[20]

On
      29 November 2002, the City brought a further motion before the court and
      obtained an order permitting the City Engineer to remove the structures
      and objects on the City's streets.  The order reads as follows:

THIS COURT ORDERS that:

1.    the City
      Engineer and any person directed by him be authorized to remove any structures
      and objects which are located upon City of Vancouver streets, or any part
      thereof, in the 100 block West Hastings Street, the 300 block Abbott Street,
      and the 100 block West Cordova Street, Vancouver, British Columbia;

2.    the Defendants
      and all other persons having knowledge of this Order be prohibited and
      restrained from interfering with or obstructing the City Engineer, or any
      person directed by him, from removing any structures or objects pursuant
      to this Order;

3.    any police
      officer of the Vancouver Police Department be authorized to arrest and
      remove any person who the police officer has reasonable and probable grounds
      to believe is interfering with or obstructing, or is attempting to interfere
      with or obstruct, the City Engineer, or any person directed by him, from
      removing any structures or objects pursuant to this Order;

4.    any police
      officer of the Vancouver Police Department who arrests and removes any
      person pursuant to this Order be authorized to:

(a)   bring such person before this Court at Vancouver,
      British Columbia forthwith for the purpose of being proceeded against for
      contempt of Court, or for fixing a time for such proceedings, and the police
      officer may detain such person until it is possible to bring such person
      before the Court; or

(b)   release that person, once the police officer is
      satisfied that the person will no longer contravene the provisions of this
      Order.

* * *

6.    the approval by the Parties as to the form of
      this Order be dispensed with except for approval by Counsel present at
      the pronouncement of this Order.

[21]

Although
      the latter order was obtained by the City, no enforcement action was necessary
      and no contempt proceedings were ever brought in relation to the interlocutory
      injunction the City had been granted.  The structures were removed from
      the City's sidewalks in early December 2002.

III.  Grounds of Appeal

[22]

The
      grounds of appeal, as set out in the appellants' factum, are that the chambers
      judge:

(i)   ... erred in failing to grant unrepresented persons
      who had filed Appearances the opportunity to be heard before granting the
      Respondent an injunction.

(ii)  ...
      erred in failing to ensure that identified persons were before the Court.

IV.   The Appellants' Arguments

[23]

Although
      the grounds of appeal concern procedural matters, appellants' counsel urged
      us to consider the significance of the points raised in the context of
      the loss of liberty that may occur when an interlocutory injunction has
      been granted and enforcement proceedings are taken.  In the appellants'
      submission, there can be no doubt that applications for interlocutory injunctions
      in cases such as the one at bar are brought for the purpose of effecting
      the arrest of any and all persons who are considered to be interfering
      with the rights of the party bringing the application.  The appellants
      argue that where a civil proceeding could result in a remedy that deprives
      persons of their liberty through the enforcement and arrest provisions
      contained in a court order, the court should be scrupulous in ensuring
      that the principles of fundamental justice and fairness are followed.

[24]

The
      appellants argue that an interlocutory injunction is an extraordinary discretionary
      remedy and that the discretion to grant such relief must be exercised with
      caution.  To support those submissions, the appellants referred us to
Aetna
      Financial Services v. Feigelman
, [1985] 1 S.C.R. 2.

[25]

Relying
      on
British Columbia (Attorney General) v. Wale

(1986),
      9 B.C.L.R. (2d) 333 (C.A.), the appellants further argue that injunctive
      relief should only be granted when it is "just and equitable in all
      the circumstances of the case".

[26]

As
      to the importance of the procedural points raised, the appellants submit
      that it is trite to assert that the civil justice system is founded on
      the concept of notice and on principles of fundamental justice, including
      affording the parties to an action the opportunity to be heard.

[27]

As
      noted earlier, in this case the City commenced an action against five actual
      persons as well as "Jane Doe, John Doe and Other Persons Unknown".  The
      appellants argue that the terms John Doe and Jane Doe are "misnomers" in
      that they are ordinarily used to refer to identifiable but unascertained
      persons and that once the identities of the persons are ascertained, real
      names ought to be substituted.  To support that argument, the appellants
      referred to
Jackson v. Bubela and Doe
, [1972] 5 W.W.R. 80
      (B.C.C.A.),
Davies v. Elsby Bros. Ltd.
, [1960] 3 All E.R.
      672 (C.A.), and Fraser and Horn,
Conduct of Civil Litigation in British
      Columbia
, Issue 33, looseleaf (Vancouver: Butterworths, 1978) vol.
      1 at c. 5, para. 7.4.

[28]

The
      appellants submit that when injunctions are granted summarily to restrain "Jane
      Doe, John Doe and Other Persons Unknown", injustices can and do occur
      because the effect or consequences of granting injunctive relief cannot
      necessarily be foreseen when those against whom the order may be enforced
      have not had an opportunity to be heard.

[29]

In
      this case, some 34 persons had filed Appearances before the application
      for an injunction came on for hearing.  The appellants contend that the
      City ignored the fact that, as a result of the Appearances having been
      entered, there were ascertained defendants, but the City did not seek to
      add them as parties, even though serious consequences, including loss of
      liberty, could follow a failure to obey the injunction being sought.

[30]

The
      appellants further argue that the unrepresented persons ought to have been
      allowed to prepare and to address the court on the merits of the injunction
      application.  Although no reasons or examples were provided, the appellants
      assert that had all the unrepresented persons who had filed Appearances
      been allowed to speak, the result may have been different.

V.    Discussion

[31]

In
      this case, the City commenced an action in the Supreme Court of British
      Columbia relying on the provisions of the By-law authorizing the City to
      remove obstructions from the sidewalks.  The City then sought an interlocutory
      injunction to enforce the By-law and restrain continuation of its contravention.  As
      noted earlier, the appellants do not attack the legal foundation for the
      granting of the interlocutory injunction, which is the order under appeal.  The
      placement and maintenance of tents, shelters, mattresses and other objects
      and structures on City sidewalks around the Woodward's Building constituted
      an obstruction to the free use of those sidewalks and contravened the City's
      By-law.

[32]

Sections
      334 and 571 of the
Vancouver Charter
, S.B.C. 1953, c. 55,
      specifically give the City the power to seek an injunction to enforce its
      by-laws.  Section 334 provides:

334.  Without limiting the right to enforce any proprietary, contractual
      or other rights, where an offence is committed against any by-law passed
      in the exercise of the powers of the Council or the Board of Parks and
      Recreation, in addition to any other remedy provided or penalty imposed,
      the continuance of such offence may be restrained by action of the city
      or the Board of Parks and Recreation as the case may be, or by action at
      the instance of a registered owner of real property in the city.

[33]

It
      is true that it was open to the City to enforce its By-law by prosecution
      under the
Offence Act
, R.S.B.C. 1996, c. 338.  It is also
      true that the decision whether to prosecute or to seek injunctive relief
      was one for the City to make.  In this case, City officials were apparently
      of the view that the injunction process would be more effective in restraining
      continuing contravention of the By-law than would be a prosecution under
      the
Offence Act
.

[34]

Contrary
      to the submissions made by the appellants, where a public authority, such
      as the City, turns to the courts to enforce an enactment, it seeks a statutory
      rather than an equitable remedy, and once a clear breach of an enactment
      is shown, the courts will refuse an injunction to restrain the continued
      breach only in exceptional circumstances:
Maple Ridge (District)
      v. Thornhill Aggregates Ltd.
(1998), 47 M.P.L.R. (2d) 249 (B.C.C.A.),
      and

British Columbia (Minister of Forests) v. Okanagan Indian Band

(2000),
      187 D.L.R. (4th) 664 (B.C.C.A.).

[35]

The
      following passage from the decision in
City of Toronto v. Polai

(1969),
      8 D.L.R. (3d) 689 at 696-697 (Ont. C.A.), aff'd [1973] S.C.R. 38, 28 D.L.R.(3d)
      638, is useful in explaining the role of a city corporation in the enforcement
      of its by-laws:

As members of the
        city corporation the inhabitants are entitled to look to the duly elected
        representatives who comprise the municipal council for enforcement of
        the provisions of by-laws passed for their protection, and in enforcing
        those by-laws the corporation, whether by means of a prosecution or in
        a suit for injunctive relief, acts on behalf of all the inhabitants
.  The municipality, acting through its council
        and duly appointed officials, occupies in a more restricted sense the
        same position as does the Attorney-General who represents the Crown in
        its capacity as
parens patriae
charged with the responsibility
        of enforcing the rights of the public when they are violated.  The decision
        whether or not the Attorney-General should prosecute or sue is a matter
        for him, and the Courts have no power to question his right to do so
        or to refrain from doing so as distinct from his right to relief.

[Underlining added.]

[36]

In
      this case, the relief the City sought in its Writ was directed entirely
      to the contravention of the City's By-law.  The specific relief sought
      included:

a.    a
      declaration that the Defendants have constructed, placed or maintained
      Structures on City of Vancouver sidewalks in contravention of the
Street
      and Traffic By-law
of the City of Vancouver;

* * *

c.    a permanent injunction restraining the Defendants
      or anyone acting on their behalf and all other persons to whom notice of
      the order may be given, by themselves, their servants or agents, from constructing,
      placing or maintaining Structures on City of Vancouver streets or sidewalks;

d.    an interlocutory injunction restraining the Defendants
      or anyone acting on their behalf and all other persons to whom notice of
      the order may be given, by themselves, their servants or agents, from constructing,
      placing or maintaining Structures on City of Vancouver streets or sidewalks;

e.    an
      interlocutory mandatory injunction requiring the Defendants to remove all
      Structures belonging to or used by then from City of Vancouver streets.

[37]

Some
      of the appellants' arguments raise issues surrounding the use of "John
      Doe", "Jane Doe" and "Persons Unknown" in the
      style of cause in proceedings in which injunctive relief is sought.  With
      deference, the thrust of those arguments overlooks important points decided
      by the Supreme Court of Canada in
MacMillan Bloedel Ltd. v. Simpson
,
      [1996] 2 S.C.R. 1048.  In that case, issues were raised as to whether the
      courts can make orders against unidentified persons not named in the action
      or named only in proxy as "Jane Doe" and "John Doe"
.
Those
      issues were squarely before that court because of the dissent of Wood J.A.
      in this Court, who concluded that court orders are binding only on named
      parties to the action and that the epithets "John Doe, Jane Doe and
      Persons Unknown" did not make members of the public parties to the
      action.

In his opinion, the proper remedy when mass protest action
      threatens to overrun private rights is for the Attorney General to enforce
      the criminal law
.

[38]

In
MacMillan
          Bloedel Ltd. v. Simpson
, McLachlin J., as she then was, speaking
          for a unanimous court, made clear, at paragraph 23, that "non-parties
          who violate injunctions may be found in contempt of court" and
          that "non-parties may be seen as being, if not technically
bound
          by the order, bound to obey the order.
" [Underlined in original.]  The
          distinction between being bound by an injunction and being bound to
          obey an injunction and the use of language that alerts non-parties
          to the risk of violation was discussed by McLachlin J. at paragraphs
          30 and 31:

Canadian judges
      considering the problem of mass violations of private rights have made
      less of the distinction between being bound by an injunction (confined
      to parties) and being bound to obey an injunction (not confined to parties).  In
Bartle & Gibson
      Co. v. Retail, Wholesale and Department Store Union, Local 580
, [1971]
      2 W.W.R. 449 (B.C.C.A.), Tysoe J.A., considering a submission that non-parties
      should not be described in an order, stated (at p. 455):

I find it a little difficult to understand why, if it is true
      and it is, of course, quite true that persons who, with knowledge of an
      order, take any steps to assist in contravening it, may be proceeded against
      for contempt of court  why the order should not provide that it covers
      somebody who, having knowledge of the order, disobeys it.

A similar recognition
      that anyone who violates a court order, whether a party or not, may be
      charged with contempt of court seems to underlie the comment of Estey J.,
      speaking for this Court in
International Longshoremen's Association,
      Local 273 v. Maritime Employers' Association
, [1979] 1 S.C.R. 120,
      at p. 144:

However [language enjoining non-parties] has, for many years, been adopted
      in these injunctions ... no doubt for the good reason that
it makes
      the impact and sense of the order clear to all those likely to be affected
      thereby
and, in any event, such wording can hardly be said to harm
any
      of the persons in law affected by the order
. [Emphasis [of McLachlin
      J.].]

In other words, since
      persons other than named parties may be affected by the order, and be held
      in contempt for violating it, it makes good sense to use language which
      alerts those people to that risk. More recent English authority suggests
      that courts there, too, may be coming to see the practical value of such
      an approach. Thus, in
Attorney General v. Newspaper Publishing plc,
[1987]
      3 All E.R. 276 (C.A.), at pp. 314-15, Balcombe L.J. commented that in an
      appropriate case it may be "preferable" for the court to make
      its initial protective order in terms which make it clear to members of
      the public who may be affected by the order that they also are required
      to obey it.

It may be confidently asserted, therefore, that both English and
      Canadian authorities support the view that non-parties are bound by injunctions:
      if non-parties violate injunctions, they are subject to conviction and
      punishment for contempt of court. The courts have jurisdiction to grant
      interim injunctions which all people, on pain of contempt, must obey. The
      only issue -- and one which has preoccupied courts both in England and,
      to a lesser extent, here -- is whether the wording of the injunction should
      warn non-parties that they, too, may be affected by including language
      enjoining the public, or classes of the public, from committing the prohibited
      acts. On this point I share the view of Tysoe J.A. in
Bartle & Gibson,
      supra,
and Estey J. in
International Longshoremen's Association,
      supra
: if members of the public may be bound to respect court orders
      in private suits on pain of being held in contempt, it seems appropriate
      that the order apprise them of that fact.

[39]

On
      the issue of whether the use of "John Doe", "Jane Doe" and "Persons
      Unknown" invalidated the order and what the procedure is for objecting
      to such an appellation, McLachlin J. said, at paragraphs 38 to 40:

The second issue
      is whether the use of terminology such as "John Doe", "Jane
      Doe" and "Persons Unknown" in the style of cause invalidates
      the order. The appellants argue that these terms represent an attempt to
      sue the general public, and that such terms are not justified under the
      British Columbia Rules of Practice and the principles developed under the
      Rules.

The practice
      of using terms like "John Doe" is directed at permitting a plaintiff
      to sue a person whose name the plaintiff does not know:
Jackson v. Bubela
      and Doe
, [1972] 5 W.W.R. 80 (B.C.C.A.). Under the British Columbia
      Rules, the procedure for objecting to such an appellation is to apply to
      have the terms struck out. Alternatively, an application by the plaintiff
      to have the defendant's name substituted for "John Doe" for the
      purpose of obtaining relief against him may be dismissed if the use of
      the "John Doe" designation is found to have been inappropriate.
      We have been referred to no authority suggesting that an order made under
      a valid action is invalid because the style of cause of the action included
      a reference to "John Doe, Jane Doe and Persons Unknown".

In fact, the use of "John Doe, Jane Doe and Persons Unknown" in
      the present action appears to be surplusage. As discussed above, a person
      who is not a party to an action is bound to respect an order made in the
      action, on pain of being found in contempt of court. This was the procedure
      used to enforce the order here at issue. None of the protesters was charged
      or sued as a party to the action.
So
      the question whether relief may be obtained against them
in the action
on
      the basis of having sued them as "John Doe, Jane Doe and Persons Unknown" never
      arose. Accordingly, it is unnecessary for this Court to decide whether,
      as a matter of pleading, the use of these terms in the style of cause could
      validly engage members of the public served with the writ.

[40]

As
      against the background, I turn now to the specific points raised by the
      appellants in their grounds of appeal.

[41]

The
      appellants contend that the chambers judge "erred in failing to ensure
      that identified persons were before the Court."  T
he appellants argue that the City, after having included "Jane
      Doe, John Doe and Other Persons Unknown" as defendants in the Writ,
      was obliged to add as named defendants each of the individuals who entered
      Appearances to the action before being able to take any further proceedings
      against them.

[42]

In
      my opinion, the reference to "Jane Doe, John Doe and Other Persons
      Unknown" in the style of cause in this case did not impose on the
      City, or the court, any procedural obligation to add any persons as parties
      as a result of their having filed Appearances before the chambers judge
      could make a valid interlocutory order.

[43]

The
      City's action and the interlocutory application that is the subject matter
      of this appeal were governed by the
Rules of Court
in the
      same way the action and application would have been had the City only included
      the Named Defendants.

[44]

In
      addition to four of the Named Defendants, 30 persons filed Appearances
      in the City's action.  However, none of those persons applied to be added
      as parties to the action or to amend the style of cause.  In other words,
      the chambers judge was not asked to make any order with regard to the addition
      of parties to the action.

[45]

After
      an action is commenced, parties may be added or substituted and the style
      of cause amended only with the leave of the Court: see
Martin and
      Corbett v. British Columbia

(1986), 3 B.C.L.R. (2d) 60 (S.C.),
      and

Rule 15(5) of the
Rules of Court.

[46]

Rule
      15(5) of the
Rules of Court
governs removing, adding or substituting
      parties.  It specifically provides that "at any stage of a proceeding,
      the court
on application by any person
" may order that a person
      be removed, added or substituted as a party to the proceeding.  In this
      case, the persons who had filed Appearances could have applied to be added
      as parties but in the absence of such an application, it appears to me
      that the chambers judge could not be said to have erred when he heard the
      City's application on the basis of the existing style of cause and pleadings.

[47]

Apart
      from the fact that there was no application or order made with regard to
      adding or substituting parties, I note that there is no indication of any
      prejudice being occasioned to those who had entered Appearances but were
      not added as parties.  Under the
Rules of Court
, a person
      does not have to be a named party to obtain standing at an interlocutory
      application.  It is sufficient that the person may be affected by the order
      which is sought, in which case the person may deliver and file a Response
      under Rules 44 and 51A of the
Rules of Court
.  In this case,
      eight individuals appeared by counsel to oppose the City's application,
      although only four of them were Named Defendants.  Of the other four, only
      three had filed Appearances.  However, all eight had delivered and filed
      Responses as required by the
Rules of Court
and, therefore,
      had a right to appear at the hearing of the interlocutory application.

[48]

The
      appellants were served with the Writ and the application materials.  There
      is no suggestion that they did not have enough time to prepare their Responses,
      and they were represented at the hearing by counsel.  Other Named Defendants
      were also served with the Writ and the application materials.  As noted
      earlier, some of the Appearances did not include an address for delivery,
      but the City went to some length to ensure that notice of the City's application
      for an interlocutory injunction was given to all those who had erected
      structures and objects around the Woodward's Building.  The application
      materials were served on most of the persons who had filed Appearances.  The
      City's process server attended at the sidewalks around the Woodward's Building
      on a number of occasions to serve the application materials.  There is
      no evidence that any affected person was not aware of the City's application
      or the hearing date.

[49]

I
      agree with the City's submission that the chambers judge did not err when
      he allowed the application to proceed on the basis of the existing style
      of cause and pleadings.

[50]

The
      other ground advanced by the appellants is that the chambers judge "
erred in failing to grant unrepresented persons
      who had filed Appearances the opportunity to be heard before granting the
      Respondent an injunction".

[51]

Generally
      speaking, there is no unqualified right to participate in a hearing of
      an interlocutory application.  The
Rules of Court
, which
      are aimed at ensuring fairness to both sides, prescribe the procedures
      that must be followed by all persons before the court.

[52]

An
      interlocutory application is governed by Rules 44 and 51A of the
Rules
      of Court
. Under Rule 44(5), the applicant is required to serve
      all parties of record and all persons affected by the order sought with
      the Notice of Motion and supporting materials.  Any person who wishes to
      respond to the application must deliver to the applicant a Response and
      materials he or she intends to rely on within the prescribed time limits.  Rule
      51A, which sets out the procedure for interlocutory applications, specifically
      defines "respondent", at subsection (2), as the person who has
      delivered a Response.

[53]

Under
      Rules 44 and 51A, only those who have delivered a Response have the right
      to oppose the application.  Therefore, neither the four unrepresented persons
      who were allowed to speak, nor the four unknown persons who were not, were
      entitled under the
Rules of Court
to participate in the hearing
      as of right.  To hold otherwise would negate the clear requirements of
      Rule 44(6) and would tend to invite hearings by ambush.  Nonetheless, no
      one would suggest that the chambers judge was wrong in agreeing to hear
      from those who had filed Appearances and who said they wished to make submissions.

[54]

The
      chambers judge had inherent jurisdiction to control the process and to
      maintain order within the courtroom.  It was pursuant to that authority
      that the chambers judge exercised his discretion to allow persons who had
      not filed Responses to speak:
R. v. Hothi
, [1985] 3 W.W.R.
      256 (Man. Q.B.), aff'd [1986] 3 W.W.R. 671, leave to appeal to S.C.C.
      refused [1986] 5 W.W.R. lxviii.

[55]

It
      was also within the chambers judge's discretion, once it became clear that
      the speakers continued to offer unsworn evidence and without contributing
      anything relevant to the issues before the court, to refuse to hear from
      any additional persons.

[56]

Appellate
      courts are reluctant to interfere with the exercise of discretion in such
      circumstances and will do so only where it can be said that the decision
      was so clearly wrong as to amount to an injustice.  The appellants have
      not provided any foundation from which such a conclusion could be drawn.

[57]

As
      discussed above, once a breach of an enactment is established, a statutory
      injunction will only be refused in exceptional circumstances.  In this
      case, the appellants have not put forward any material or argument that
      would support the possibility that exceptional circumstances existed in
      this case that could have altered the outcome of the City's application.

VI.   Summary and conclusion

[58]

For
      the reasons given, I am of the view that in this case the reference to "Jane
      Doe, John Doe and Other Persons Unknown" in the style of cause did
      not impose upon the City or the court any procedural obligation to add
      those who had filed Appearances as parties to the proceedings.  I am also
      of the view that there is no basis upon which this Court could properly
      interfere with the discretion exercised by the chambers judge in refusing
      to hear from some of those who had filed Appearances but not Responses
      to the City's application.

[59]

I
      would dismiss the appeal.

The Honourable
Madam Justice Rowles

I Agree:

The Honourable
Madam Justice Prowse

I Agree:

The Honourable
Mr. Justice Oppal


COURT OF APPEAL
        FOR BRITISH COLUMBIA

Citation:

New
                Skeena Forest Products Inc. (Re),

2005 BCCA
            58

Date: 20050125

Docket: CA032484

In the
      Matter of the Companies creditors Arrangement Act,

R.S.C.
      1985, c. C-36

and

In the
      Matter of the Canada Business Corporation Act,

R.S.C.
      19845, c. C-44, as amended

and

In the
      Matter of the Company Act,

R.S.B.C.
      1996, c. 62, as amended

and

In the
      Matter of New Skeena Forest Products Inc.,,

Orenda
      Forest Products Ltd., Orenda Logging Ltd. and

9753 Acquisition
      Corp.

Respondents

(Petitioners)

And

Kitwanga
      Lumber Co. Ltd.

Respondent

(Respondent)

Before:

The Honourable
            Mr. Justice Low

(In Chambers)

Oral Reasons for Judgment

R. Janes

Counsel for the Appellant

City of Prince Rupert

R.A. Miller

Counsel for the Respondent

Court Appointed Receiver

Ernst & Young Inc.

Place and
            Date:

Vancouver, British Columbia

25 January 2005

(leave to appeal)

[1]

LOW
        J.A.
:  On January 5, 2005 my reasons were delivered
        on the appellants application for leave to appeal.  In those reasons
        I refused leave to appeal.  The order has not yet been entered, and I
        have been asked by counsel to reconsider the matter.

[2]

As
      I understand it, all parties now consent to leave to appeal being granted.  It
      seems that either counsel for the Receiver misunderstood his instructions
      from the Receiver, or I misunderstood the position advanced by counsel
      for the Receiver during the hearing on December 17, 2004, or there was
      a combination of both.

[3]

Whatever
      the cause, it is apparent that my reasons for refusing leave to appeal
      were not well founded.

[4]

Therefore
      I have reconsidered the matter.  In light of what counsel has said to me
      today, and the consent, particularly the consent of the Receiver, I now
      make an order granting leave to appeal.

[5]

There
      will be an order accordingly.

The Honourable Mr. Justice Low


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