Yan v. The Canadian Legal Information Institute, 2022 ONSC 6271
CITATION: Yan v. The Canadian Legal Information Institute, 2022 ONSC 6271
DIVISIONAL COURT OF APPEAL HAMILTON FILE NO.: DC-22-00000116-0000-JR
HAMILTON SMALL CLAIM COURT FILE NO.: SC-20-00033802-0000
DATE: 20221116
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Sutherland and O’Brien JJ
BETWEEN:
NATHALIE XIAN YI YAN
Ms Yan, self-represented
Appellant
– and –
THE CANADIAN LEGAL INFORMATION INSTITUTE
G. Fateux, for the Respondent
Respondent
HEARD at Hamilton by videoconference:
November 3, 2022
REASONS FOR DECISION
O’BRIEN j.
[1] This is an appeal from the decision of Deputy Judge Criger of the Small Claims Court dated October 28, 2021, dismissing the Appellant, Ms. Yan’s claims against the Respondent, the Canadian Legal Information Institute. Deputy Judge Criger dismissed Ms. Yan’s action following a settlement conference on the basis that, in her view, Ms. Yan’s claim was bound to fail.
[2] The proceedings arise from the publication by The Canadian Legal Information Institute of various regulatory decisions involving Ms. Yan. Ms. Yan is a member of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario (the “College”). In October 2018, the College’s Discipline Committee found that Ms. Yan had committed professional misconduct. The Canadian Legal Information Institute published the decision of the College’s Discipline Committee, as well as the subsequent penalty and costs decisions and orders on its website. Ms. Yan subsequently asked The Canadian Legal Information Institute to remove the decisions from its website.
[3] When The Canadian Legal Information Institute refused to remove the decisions, Ms. Yan commenced the underlying action in Small Claims Court. She alleged “defamation, damages arising from dereliction of duty, professional negligence, biased, [and] prejudiced action” with respect to the publication of the College decisions.
[4] The Deputy Judge dismissed Ms. Yan’s actions following a settlement conference pursuant to r. 13.05(2)(a)(iii) of the Small Claims Court Rules, O. Reg. 258/98. She found that the action was bound to fail first because The Canadian Legal Information Institute published public information and second because absolute privilege attaches to The Canadian Legal Information Institute's publication of the decisions.
[5] Ms. Yan submits that The Canadian Legal Information Institute is liable to her in defamation and “professional negligence” in publishing the decisions. She also submits that The Canadian Legal Information Institute is liable for publishing the decisions pertaining to her under more than one searchable link. She further takes issue with the Deputy Judge’s dismissal of her action following the settlement conference when she says the parties agreed at the conference to proceed to trial.
[6] As we noted at the outset of the hearing, this appeal from the Small Claims Court would ordinarily be heard by a single judge of the Divisional Court. We do not know how it came to be scheduled before a panel of this court – whether by administrative error or by direction from a case management judge (no such direction was brought to our attention). It would have been in our discretion to adjourn the matter to be heard by a single judge, or for one of us to hear it as scheduled, sitting as a single judge. However, the panel was fully prepared for the appeal, it is within the jurisdiction of a panel to hear the appeal, and we exercised our discretion to proceed to hear the appeal as a panel of three judges of the Divisional Court, as scheduled.
[7] We dismissed the appeal after hearing submissions from Ms Yan and without calling on the respondent and advised the parties that we would provide these reasons for the dismissal in due course.
[8] The Deputy Judge did not err in striking the claim pursuant to r. 13.05(2)(a)(iii) of the Small Claims Court Rules. That rule authorizes a deputy judge who conducts a settlement conference to make an order, with written reasons, staying or dismissing an action. Pursuant to s. 25 of the Courts of Justice Act, R.S.O. 1990, c. C. 43, the Small Claims Court is to “hear and determine in a summary way all questions of law and fact.” The court “may make such orders as is considered just and agreeable to good conscience.”
[9] Applying r. 13.05(2)(a)(iii), the Deputy Judge did not err when she found the action was “bound to fail.” The College’s Discipline Committee conducts quasi-judicial proceedings. Its decisions are protected by absolute privilege: Milne v. Ontario (Securities Commission), 2006 7287, [2006] O.J. No.953, at para. 33. This is a complete answer to Ms. Yan’s defamation claim. The College published more than one decision regarding Ms. Yan because of the penalty and costs decisions. However, even if the same decision was accessible by more than one link, all publications of the College decisions were protected by absolute privilege. There is no basis to interfere with the Deputy Judge’s conclusion that Ms. Yan’s defamation claim had no merit.
[10] The other causes of action pleaded by Ms. Yan are not distinguishable from her defamation claims. The facts Ms. Yan has pleaded relate only to The Canadian Legal Information Institute's publication of the College’s decisions and her requests to The Canadian Legal Information Institute to remove or minimize the links to the College decisions. Courts have been reluctant to allow plaintiffs to bring negligence claims for what is, in substance, a defamation claim. However, it is possible to bring a negligence claim alongside a defamation claim where the necessary elements of the cause of action have been established: Shtaif v. Toronto Life Publishing Co. Ltd, 2013 ONCA 405, O.J. No. 2778, at para. 76; Young v. Bella, 2006 SCC 3, 1 S.C.R. 108, at para. 56. In this case, Ms. Yan has not pleaded any facts that are distinct from the defamation claim or that would establish a duty of care. There was no basis for the Deputy Judge to find The Canadian Legal Information Institute owed a duty of care to Ms. Yan for publishing public decisions of a quasi-judicial proceeding.
[11] Finally, there is no merit to Ms. Yan’s submission that the parties agreed to proceed to trial. In its settlement conference brief, The Canadian Legal Information Institute expressly urged the Deputy Judge to dismiss the action summarily pursuant to r. 13.05(2)(a)(iii). It was open to the Deputy Judge to so.
[12] The appeal is dismissed. The Canadian Legal Information Institute seeks costs of the appeal in the amount of $10,000. While The Canadian Legal Information Institute is entitled to it costs, in my view, this quantum is too high. The issues on this appeal were straightforward. Ms. Yan shall pay costs of the appeal to The Canadian Legal Information Institute in the amount of $7,500.00.
I agree _______________________________
D.L. Corbett J.
I agree _______________________________
Sutherland J.
Released: November 16, 2022
CITATION: Yan v. The Canadian Legal Information Institute, 2022 ONSC 6271
DIVISIONAL COURT OF APPEAL HAMILTON FILE NO.: DC-22-00000116-0000-JR
HAMILTON SMALL CLAIM COURT FILE NO.: SC-20-00033802-0000
DATE: 20221116
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Sutherland and O’Brien J.J.
BETWEEN:
NATHALIE XIAN YI YAN
Plaintiff (Appellant)
– and –
THE CANADIAN LEGAL INFORMATION INSTITUTE
Defendant (Respondent)
REASONS FOR DECISION
O’BRIEN, J
Released: November 16, 2022