C. Muir

The defendant sought leave to appeal to the Divisional Court from an order dismissing his motion for summary judgment in a defamation action.

The underlying dispute arose from an email sent by the defendant, a neurologist, to the Minister of Health and the College of Physicians and Surgeons of Ontario requesting investigation into the plaintiff’s involvement in diagnosing and treating a controversial medical condition.

The motion judge had refused summary judgment largely on the basis that the plaintiff had delivered a jury notice and should have the opportunity to have issues such as malice determined by a jury.

The court held that the existence of a jury notice does not alter the test for summary judgment and that the motion judge erred by declining to determine the asserted defences of absolute privilege, qualified privilege, justification, and fair comment where the material facts were not in dispute.

Finding conflicting authority and good reason to doubt the correctness of the order, and that the issue was of broader importance regarding the availability of summary judgment in defamation actions, the court granted leave to appeal.

A sales representative sued for commission arising from an exceptionally large pandemic-related order placed within his exclusive territory.

The employer argued that an internal notice limiting commissions and a later bonus agreement reduced the representative’s entitlement.

The court held that the original commission agreement did not permit unilateral alteration by notice, but the representative subsequently signed a bonus agreement accepting a reduced payment.

Although the agreement was harsh and the bargaining power unequal, the evidence did not establish coercion, duress, or unconscionability sufficient to invalidate the contract.

The representative’s claim for full commission failed and the bonus agreement governed.