Court File and Parties
DIVISIONAL COURT FILE NO.: 114/21
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: PETER WELCH AKA PIERRE WELCH, Plaintiff/Respondent
AND:
CHARLIE QUAST, Defendant/Appellant
BEFORE: Tranquilli J.
COUNSEL: David B. Williams, for the Appellant
David M. Sanders, for the Respondent
HEARD at London: June 7, 2021
Endorsement
1The parties live in the same condominium apartment building in London. To say they do not enjoy a pleasant relationship is an understatement. The plaintiff brought an action in Small Claims Court seeking damages from the defendant for malicious prosecution and defamation.
2This appeal from that court action arises from a violent incident between the parties while they were in the condominium elevator on February 23, 2016. The defendant alleged he was assaulted by the plaintiff. The conflict was captured on security video. The defendant reported the incident to the police and the plaintiff was charged with assault. The parties encountered each other yet again in the elevator on February 27, 2016. This time the defendant alleged the plaintiff threatened him. The defendant was again charged with criminal offences. His bail conditions required that he not live in his condominium apartment.
3The defendant also reported these two incidents to the condominium management and board by emails sent on February 24 and 27, 2016. The condominium had several issues with the plaintiff and eventually brought an application against him in 2017 for a compliance order. The defendant provided the condominium corporation with a sworn affidavit that included his emails from February 2016, in support of the application.
4The plaintiff was found not guilty of the criminal offences after trial. The plaintiff then brought this action against the defendant, seeking $29,688.99 in damages. The Small Claims trial proceeded in March 2019. By reasons dated August 26, 2019, Deputy Judge Lepine dismissed the claim for malicious prosecution but awarded the plaintiff damages of $10,000 for defamation based upon the defendant’s email to the condominium management of February 24, 2016.
5The defendant submits the Deputy Judge’s decision demonstrates several errors of law such that the only remedy is to allow the appeal and dismiss the plaintiff’s claim. The defendant contends that errors include the court’s finding that the claim met the requirements for pleading defamation, that the plaintiff proved defamation and that the justice failed to consider the available defences to defamation and the limitation defence pursuant to the Limitations Act, 2002.
6The plaintiff asserts the Deputy Judge made no errors of law in his decision, that there was ample evidence to support his findings and that the defendant is merely seeking to improperly relitigate the claim on its merits.
7I find there are errors of law in the decision. The only remedy is to allow the appeal and dismiss the plaintiff’s claim. The Deputy Judge expressly found there was no evidence of when the plaintiff learned of the emails the defendant sent on February 24 and 27, 2016. He is therefore presumed to have known of his claim on the date on which the defendant sent the emails. The plaintiff amended his claim to plead defamation in March 2019. The claim for defamation is out of time and is barred by the Limitations Act, 2002. The appeal can therefore be allowed on that basis alone and the action dismissed.
8There are additional errors that also lead to the result that the appeal must be allowed. The allegedly defamatory words were necessary to both plead and prove the cause of action. However, those impugned words were entirely lacking in the pleading, in the evidence and the analysis. Finally, the Deputy Judge failed to consider the defamation defences raised in the evidence, such as qualified privilege. While a new trial may be the appropriate remedy to address some of these latter errors and insufficiency of reasons, the substantive effect of the impact of the Limitations Act, 2002 is dispositive. In any event, I am also of the view the remedy to the combined effect of all these errors is also a dismissal of the claim.
Issues
9This appeal raised the following issues for determination:
Did the Limitations Act, 2002 bar the plaintiff’s claim in defamation?
Did the plaintiff’s claim meet the requirements for pleading defamation?
Did the plaintiff prove his claim in defamation?
Did the evidence raise defamation defences?
10The appeal raised a litany of concerns about the correctness of the decision; however, these four issues were the focus of the hearing.
11The court reviews questions of law on the standard of correctness and questions of fact or questions of mixed fact and law on the standard of palpable and overriding error: Housen v Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
Analysis
1. Did the Limitations Act, 2002 bar the plaintiff’s claim in defamation?
12The Deputy Judge found there was “no evidence at trial of when the plaintiff acquired knowledge of the emails…” and “We do not know when the email allegation came to Mr. Welsh’s personal attention.” [sic]. The Deputy Judge held that he would not consider submissions regarding the action being statute barred pursuant to the Limitations Act, 2002. His reasons for refusing to do so are unexplained on the face of the record.
13The plaintiff amended his pleading to include a claim for defamation in March 2019, just days before the trial. This amendment happened just over three years after the February 2016 email which was found to have defamed the plaintiff.
14The legislation provides that a claim is discovered on the earlier of the day on which the person with the claim first knew or ought to have known the injury, loss or damage occurred and knew that the injury, loss or damage was contributed to by an act or omission of the person against whom the claim is made: Limitations Act, 2002, s. 5(1).
15However, the plaintiff is presumed to have known of his claim on the day the act or omission took place, unless the contrary is proved: Limitations Act, 2002, s. 5(2).
16I therefore accept the defendant’s submission that the Deputy Judge’s finding that there is no evidence as to when the plaintiff learned of the February 24, 2016 email means the plaintiff is presumed to have known of his claim on February 24, 2016. He amended his claim in March 2019, more than three years after the email was sent. His claim in defamation is therefore barred and the substantive result is that his action on this claim is dismissed.
2. Did the plaintiff’s claim meet the requirements for pleading defamation?
17The Deputy Judge acknowledged that pleadings are important in a claim for defamation and there are technical rules that must be met. He concluded that the claim was sufficiently pleaded.
18The defendant submits the plaintiff’s claim in defamation falls far short of the pleading requirements for defamation and therefore should not have been considered as a ground of relief. The plaintiff responds that the pleading as a whole supports a claim in defamation, particularly in the context of the less stringent pleading requirements in Small Claims Court.
19Defamation actions must plead the following elements: (i) particulars of the alleged defamatory words; (ii) publication of the defamatory words by the defendant; (iii) to whom the words were published; and (iv) that the words were defamatory of the plaintiff in their plain and ordinary meaning or by innuendo: The Capital Catalyst Group Inc. v Veritas Investment Research Corporation, 2017 ONCA 85 at paras. 23-24.
20The plaintiff amended his claim several times. It is frankly impossible to discern a cause of action in defamation in any of those versions of the claim. On a most liberal reading, I allow he claims the emails were false and that he was therefore defamed. However, no version of his pleading identifies the words in the impugned email that are allegedly defamatory.
21Review of Small Claims pleadings promotes a liberal approach, where litigants are not required to meet the higher standards of the Superior Court: 936464 Ontario Ltd. (cob Plumbhouse Plumbing & Heating) v Mungo Bear Ltd., 2003 72356 (ON SCDC) However, I accept this liberal approach does not abrogate the plaintiff’s obligation to meet the requirements for pleading defamation even on a liberal reading of the statement of claim. The plaintiff’s claim went through a number of amendments. The final amendment before trial includes a claim for “defamation of character” but fails to identify the impugned words in the email that allegedly defamed him. In my view, this is fatal to the fundamental requirements for a defamation pleading, even on a less strict application in small claims court. It was therefore an error of law to conclude that defamation was sufficiently pleaded.
3. Did the plaintiff prove his claim in defamation?
22The Deputy Judge found “It is the email of February 24, 2016 that creates the defamation.”
23The defendant submits the Deputy Judge erred in concluding the plaintiff proved his claim in defamation. The plaintiff submits the court’s conclusion was supported by the evidence and the Deputy Judge’s observations and findings as to the contradictions in the evidence with the defendant’s version of the alleged assault in the February 24, 2016 email.
24In order to prove defamation, a plaintiff must establish three elements on a balance of probabilities: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff: Grant v. Torstar Corp, 2009 SCC 61 at para 28.
25I accept the defendant’s submission that the plaintiff failed to prove he was defamed. As with the pleading, the reasons lack identification of the “impugned words” within the email and consideration of whether those words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person. The findings that the email of February 24, 2016 “created the defamation” and “The email account about the previous day is different and exaggerated from the story given to the police and it is not the story given at trial.” are patently insufficient to support a finding of defamation. On either standard of review, this is an error.
4. Did the evidence raise defamation defences?
26The defendant alternatively argued that the evidence raised defences of truth (justification), fair comment and qualified privilege. Yet the trial judge failed to consider any these defences. The plaintiff submits that the trial judge’s reasons are supported by the conclusion that the defendant’s allegations were false and motivated by malice, thereby negating a defence.
27The Deputy Judge thoroughly reviewed the law on the defences to defamation, including fair comment, absolute and qualified privilege. However, his reasons do not explain whether he considered these defences on the evidence and if so, why he rejected them.
28For example, the evidence raised the defence of qualified privilege for consideration: Hill v. Church of Scientology of Toronto, 1995 59 (SCC) at para. 143. As a member of the condominium corporation the defendant arguably had an interest or duty in reporting the incidents to the condominium authority. The condominium authority had a corresponding duty to receive the information so that it could take appropriate action to address the conduct that allegedly occurred within the common elements.
29The privilege is not absolute and can be defeated if the dominant motive for publishing the statement is actual or express malice: Hill, supra at 145. Here, the deputy judge concluded that the February 24 email was for “public consumption” and that the defendant “persisted with his improper motive” by attaching the email to the affidavit he swore in support of the condominium corporation’s application against the plaintiff.
30However, the deputy judge earlier held that the defendant’s statement to the police the day before the email was not motivated by malice. I accept the respondent’s submission that the finding of no evidence of malice in the police statement is not determinative of whether there was malice in sending the email. Nevertheless, both of the defendant’s acts arise from the same incident and required an explanation as to why the email was improper and the police statement was not. Such an explanation is not apparent in the reasoning.
31It is evident from the record that the deputy judge was required to manage a lengthy and chaotic trial, with pleadings amended on the eve of trial that failed to facilitate an orderly presentation of an action in defamation. My findings on this appeal are in no way a criticism of his efforts to untangle the evidentiary record. It was a daunting task.
Disposition
32I allow the appeal and dismiss the plaintiff’s claim for defamation on the basis that it was out of time pursuant to the Limitations Act, 2002, the pleading did not disclose an action in defamation, the plaintiff failed to prove defamation and that the reasons failed to consider and provide sufficient reasons for not considering defences to defamation.
Costs
33As the appellant was successful on this appeal, he is presumptively entitled to his costs. Both parties filed bills of costs and cost outlines at the hearing. However, the respondent did not make a specific submission as to costs. The appellant seeks costs of $3,500 inclusive of HST plus additional disbursements of $3,500.00 to indemnify him for the cost of ordering the trial transcripts.
34I therefore invite the parties to resolve the matter of costs. If they are unable to resolve costs, the appellant shall serve and file his submissions by August 3, 2021 and the respondent shall serve and file his submissions by August 10, 2021. The submissions shall be no more than one page in length as I already have the bills of costs and outlines. Costs are deemed settled if no communications are received by August 12, 2021.
Tranquilli J.
Date: July 20, 2021