Niemela v. Malamas
3.
Page 33
Google’s Application to Strike Portions of the Notice of Civil
Claim
consider its alternative application under Rule 9-5 to strike portions of the plaintiff’s
notice of civil claim.
4.
Plaintiff’s Application to Amend his Notice of Civil Claim
[112] I have already addressed the plaintiff’s application to amend his notice of civil
claim to remove the pleading for slander. The balance of the proposed amendments
alleges further acts of defamation by Google as a publisher of snippets and search
results.
[113] An application to amend a pleading should not be permitted where the
proposed amendment fails to state a reasonable cause of action and would fall to be
struck on application by the opposing party: Virk v. Brar, 2011 BCSC 301 at para. 6.
[114] Since I have concluded that Google is not in law a publisher by virtue of the
passive instrument test, the allegations contained in those proposed amendments
cannot succeed and the application should therefore be dismissed.
COSTS
[115] In the unique circumstances of this case, and bearing in mind the novel form
of publication raised on these applications, I conclude the parties should bear their
own costs.
The Honourable Madam Justice L.A. Fenlon
2015 BCSC 1024 (CanLII)
[111] As Google has succeeded in its application for summary judgment, I need not
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