Dubuc et al. v. 1663066 Ontario Inc. c.o.b. as Laurier Optical et al.

[Indexed as: Dubuc v. 1663066 Ontario Inc.]

99 O.R. (3d) 476

Court of Appeal for Ontario,

Winkler C.J.O., Laskin and Sharpe JJ.A.

December 22, 2009

Civil procedure -- Discontinuance -- Plaintiffs moving to dismiss their own action -- Motion judge correctly ruling that plaintiff may not dismiss own action and that plaintiffs were really seeking to discontinue their action while avoiding costs consequences of rule 23.05 -- Motion judge properly awarding costs of motion to defendants -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 23.05.

The plaintiffs sued the defendants for defamation based on two letters. When they discovered that the letters had not in fact been published, the plaintiffs brought a motion to dismiss their own action and sought costs of their motion against the defendants. The motion judge found that the plaintiffs were really seeking to discontinue their action and that the defendants were presumptively entitled to costs. She saw no basis to displace that presumption and awarded costs to the defendants. The plaintiffs appealed.

Held, the appeal should be dismissed.

A plaintiff cannot move to dismiss his own action. In moving to dismiss their own action, the plaintiffs were seeking to do an end-run around the costs consequences of rule 23.05 of the Rules of Civil Procedure. The motion judge correctly refused to permit them to do so. The motion judge also correctly found that the claim had no merit.

APPEAL from the order of Ratushny J., [2009] O.J. No. 1137 (S.C.J.) for costs.

Cases referred to 1286110 Ontario Ltd. v. College Manning Professional Centre Inc. (2005), 2005 79672 (ON SCDC), 78 O.R. (3d) 463, [2005] O.J. No. 4572, 208 O.A.C. 103, 143 A.C.W.S. (3d) 248 (Div. Ct.) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 21, 21.01(1), (b), (3), 23.01 [as am.], (1) [as am.], 23.05 [Subst. 394/09, s. 8], (a) [Subst. 394/09, s. 8]

Alan M. Riddell and Khalid Elgazzar, for appellants. [page477] J. Stephen Cavanagh, for respondents 1663066 Ontario Inc. c.o.b. as Laurier Optical and Antranik Kechichian a.k.a. Tony Kechichian. Colin S. Baxter, for respondents Laurent Debrun and Kaufman Laramée LLP.

The judgment of the court was delivered by

LASKIN J.A.: --

A. Overview

[1] This appeal of a costs order raises a point of procedure.

[2] The plaintiffs, a group of optometrists, practise optometry in the town of Cornwall. They sued Laurier Optical, a company that sells eyewear in Cornwall, as well as Laurier Optical's principal and its solicitors, for defamation. They claimed that two letters sent to them, each with a carbon copy notation to the College of Optometrists of Ontario and the College of Opticians of Ontario, were libellous. The first letter, dated January 16, 2008, was sent by Laurier Optical's solicitor; the second letter, dated March 3, 2008, was sent by Laurier Optical. The plaintiffs alleged that both letters said that they had engaged in unprofessional and unethical conduct.

[3] The defendants brought a motion to strike the claim either under rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the "Rules") on the ground that it disclosed no reasonable cause of action, or under rule 21.01(3) on the ground that it was an abuse of process. They contended that that the letters were not defamatory, and even if they were, they were privileged.

[4] The plaintiffs then ascertained that the two letters, though containing a carbon copy notation to the College of Optometrists and the College of Opticians, were not sent to the Colleges at the time. Thus, there had been no "publication", an essential element of a cause of action in defamation. The January 16, 2008 letter was sent, however, to the plaintiffs' own College, the College of Optometrists, about three weeks later -- on February 4, 2008 -- as part of a formal complaint by Laurier Optical to the College. Having discovered that the letters were not sent to the Colleges when they thought they were, the plaintiffs brought a motion to dismiss their own action on the ground that it was moot. And they sought costs of their motion against the defendants.

[5] All motions were heard by Ratushny J. She sensibly observed that, as both sides wanted to end the litigation, the only substantive issue before her was costs. She decided that the [page478] defendants were entitled to their costs. She gave two reasons: first, she concluded that the plaintiffs were really seeking to discontinue their action. Accordingly, the defendants were presumptively entitled to their costs, and she saw no basis to displace that presumption. Second, she concluded that the plaintiffs' claim had no merit.

[6] The plaintiffs sought leave to appeal her costs order, and if leave was granted, to appeal the order.

B. Discussion

[7] On appeal, the plaintiffs made two submissions. First, they submitted that the motion judge erred in treating their motion as a motion to discontinue their action, and therefore erred in concluding that the defendants were presumptively entitled to their costs. Second, they argued that the January 16, 2008 letter was defamatory, and that when they started their action they were reasonably entitled to assume the letter had been "published" to their own College. The plaintiffs argued that they should be entitled to the costs of the motions, or alternatively that there should be no costs. We did not call on the defendants. We deliver these reasons principally to address the plaintiffs' first submission, which raised the point of procedure referred to at the outset of these reasons.

[8] In making this submission, the plaintiffs relied on the judgment of Lane J. in 1286110 Ontario Ltd. v. College Manning Professional Centre Inc. (2005), 2005 79672 (ON SCDC), 78 O.R. (3d) 463, [2005] O.J. No. 4572 (Div. Ct.). In that case, as well, the plaintiff brought a motion to dismiss its own action and sought an order for costs against the defendants. The defendants brought a cross-motion for an order for discontinuance of the plaintiff's action and costs. The master dismissed the plaintiff's motion and allowed the defendants' cross-motion.

[9] However, Lane J. set aside the master's decision and ordered that the action be dismissed without costs. In his view, the master erred because in granting the cross-motion the master had effectively required the plaintiff to discontinue. Discontinuance is a voluntary act; a plaintiff cannot be compelled to discontinue its own action. Implicitly -- and this is the key point I wish to address -- Lane J. suggested that a plaintiff could move to dismiss its own action. For the reasons that follow, I do not agree with that suggestion.

[10] Rule 23.01(1) of the Rules of Civil Procedure provides for discontinuance by a plaintiff:

23.01(1) A plaintiff may discontinue all or part of an action against any defendant, [page479] (a) before the close of pleadings, by serving on all parties who have been served with the statement of claim a notice of discontinuance . . . and filing the notice with proof of service; (b) after the close of pleadings, with leave of the court; or (c) at any time, by filing the consent of all parties.

[11] The motion judge agreed with Lane J., correctly in my view, that under rule 23.01 "another party cannot compel a plaintiff to discontinue. Discontinuance is a plaintiff's option." However, the motion judge characterized the plaintiffs' motion as a motion to discontinue, not a motion to dismiss, thus disagreeing with Lane J.'s approach in the College Manning case. I think that she was right to do so.

[12] The Rules expressly provide that a plaintiff can bring an end to its own litigation by moving to discontinue under rule 23.01. If a plaintiff chooses to do so, it faces the presumptive costs consequences of rule 23.05(a):

23.05 Where a plaintiff discontinues an action against a defendant, (a) the defendant is entitled to the costs of the action; . . . . .

unless the court orders otherwise.

[13] The Rules do not provide that a plaintiff can bring a motion to dismiss its own action. Under the Rules -- for example, Rule 21 -- a motion to dismiss is brought by an opposite party in the litigation. Although the Rules may not constitute a complete code of procedure, it seems to me where they have expressly set out a method of proceeding it is not open to a party to ignore that method and choose another one not authorized by the Rules. Here, in moving to dismiss their own action, the plaintiffs are seeking to do an end run around the costs consequences of rule 23.05. The motion judge correctly refused to permit them to do so.

[14] Although the plaintiffs could not be compelled to discontinue their own action, they acknowledged that because of the "non-publication" of the letters, they had no grounds to continue their action. Therefore, as the motion judge rightly concluded, in essence they were seeking a discontinuance. And I see no error in her finding that the plaintiffs failed to show any basis for rebutting the presumption in rule 23.05, entitling the defendants to their costs.

[15] On the plaintiffs' second submission concerning the merits of their action, the March 3, 2008 letter is a non- issue. The motion judge held that it was not defamatory. In oral [page480] argument, the plaintiffs did not suggest otherwise. Thus, the plaintiffs' argument centred on the January 16, 2008 letter from Laurier Optical's solicitors. They claimed that the letter was defamatory, that it was reasonable to assume it had been sent to their College and, therefore, that they were justified in starting the action.

[16] I do not think it is necessary to decide whether, before starting their action, the plaintiffs should have ascertained that the January 16, 2008 letter was not yet "published". Even if they cannot be held accountable for failing to do so, the plaintiffs conceded that when the January 16, 2008 letter was sent to the College of Optometrists on February 4, 2008 as part of Laurier Optical's formal complaint, it was protected by absolute privilege. Therefore, even if the January 16, 2008 letter had been sent to the College at the time, the plaintiffs would have had no claim to compensation because less than three weeks later the College received the letter under an umbrella of privilege. Accordingly, I agree with the motion judge that the plaintiffs' claim had no merit.

[17] The appeal is dismissed, with costs fixed in the following amounts: to Laurier Optical and its principal, $5,482.80, all inclusive; and to Laurent Debrun and Kaufman Laramée LLP, $10,016.81, all inclusive.

Appeal dismissed.