Court File and Parties
Court File No.: CV-17-574700 and CV-17-569860 Date: 20190306 Ontario Superior Court of Justice
Between:
Court File No. CV-17-574700 HENRY LOTIN, Plaintiff – and – TOMAS GREGOR, Defendant
Court File No. CV-17-569860 HENRY LOTIN, Plaintiff – and – ANDREA GREGOR, Defendant
Counsel: Matthew Diskin/Meredith Bacal, for the Plaintiff/Moving Party Julia Lefebvre/Emma Romano, for the Defendant/Respondent
Heard: January 23 and 24, 2019
KIMMEL J.
Reasons for Judgment
[1] The plaintiff, Henry Lotin (“Henry”) moves for summary judgment in both of these related defamation actions [1], one that he has brought against his brother-in-law Tomas Gregor (“Tomas”) and the other that he has brought against his sister-in-law Andrea Gregor (“Andrea”). Henry is not seeking to prove (and has not proven) any special damages arising from the alleged defamatory statements. He seeks non-compensatory general damages that he says he intends to donate to charity, and he seeks an injunction. The defendants, in response to the plaintiff’s motions, also each seek an order granting summary judgment in their favour for the dismissal of the actions against them. [2]
The Summary Judgment Test and Threshold Considerations
[2] The framework for determining summary judgment motions from the Supreme Court of Canada in the case of Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 57 requires that the judge be confident that the court has the evidence to make the factual findings required to adjudicate the dispute (by applying the law to the facts) and reach a fair and just determination on the merits. The question to ask is whether there is a genuine issue “requiring a trial” and whether it is in the interests of justice for the motion judge to use the fact-finding powers. This can be considered in light of the goals of timelines, affordability and proportionality.
[3] The procedure to be followed on a motion for summary judgment prescribed by the Supreme Court in Hryniak is in two stages:
a. the judge should first determine if there is a genuine issue requiring a trial based only on the evidence before him or her without using the fact-finding powers in Rule 20.04(2.1); and
b. if there appears to be a genuine issue requiring a trial, Rules 20.04(2.1) and (2.2) permit the motion judge, at his or her discretion, to: (1) weigh the evidence, (2) evaluate the credibility of a deponent, or (3) draw any reasonable inference from the evidence to determine if the need for a trial can be avoided, provided that the use of those powers is not against the “interest of justice” (or conversely, that it is not in the “interest of justice” for these powers to be exercised only at trial): Hryniak, at para. 66.
[4] The Court of Appeal for Ontario has reinforced the overriding principle stated by the Supreme Court in Hryniak (at para. 33) that summary judgment is only appropriate where it leads to “a fair process and just adjudication”: see Mason v. Perras Mongenais, 2018 ONCA 978, at para. 44.
[5] The written record before me includes 13 affidavits and 10 cross-examination transcripts. I have assumed, as I am entitled to do, that the parties have each put their best foot forward with respect to the existence or non-existence of material issues to be tried, and that the record contains all of the evidence that the parties would present if the matter proceeded to trial: Sweda Farms Ltd. v. Egg Farmers of Ontario, 2014 ONSC 1200, at paras. 26-27, affirmed, 2014 ONCA 878, leave to appeal to S.C.C. refused, 2015 CarswellOnt 10365; Da Silva v. Gomes, 2018 ONCA 610, at para. 18.
[6] Counsel for both parties indicated their desire at the outset of the hearing to proceed based on this record and for the court to make any necessary factual determinations (including, if necessary, by the use of the powers under Rule 20.04(2.1) to weigh the evidence, evaluate the credibility of the deponents and draw reasonable inferences from the evidence) in order to decide the issues raised. They left it to the court to make the ultimate determination of whether the credibility issues, in particular, require a trial.
[7] This case involves a series of related but discrete impugned statements alleged to be defamatory, two made by Tomas and four made by Andrea. All of them at some level require factual determinations about what precisely was said, and then further determinations about whether what was said was defamatory in the sense of whether the statements would tend to lower Henry’s reputation in the eyes of a reasonable person.
[8] I was advised that when counsel appeared in Civil Practice Court on August 3, 2018 to schedule these motions it was anticipated that viva voce evidence might be called to assist the court in making these determinations. Counsel indicated at the outset of the hearing that any witnesses who I wished to hear from in court would be made available. After listening to their submissions on the first day of the hearing, I requested (pursuant to Rule 20.04(2.2)) that two of the non-party witnesses, Peter Pearson (“Peter”) and Gabor Herczeg (“Gabor”), who were recipients of certain of the alleged defamatory statements that Tomas and Andrea deny making, and who had filed affidavits and been cross-examined, appear to give oral testimony in court the following day. They did so.
[9] Even though the written record prima facie raises some issues requiring a trial that are dependent upon factual determinations about contentious matters, including about what Tomas and Andrea actually said and whether what they did say was defamatory, I am satisfied, after having availed myself of the fact-finding powers in Rules 20.04(2.1) and (2.2), that a trial is not required in order to resolve these issues. I have confidence that I have been able to find the necessary facts and apply the relevant law in order to reach a fair and just determination on the merits through the exercise of these powers, by hearing some oral evidence, weighing the evidence, evaluating the credibility of various witnesses and drawing reasonable inferences from the evidence without a full-blown trial.
[10] In the circumstances of this case, I do not consider it to be in the interest of justice or necessary for such powers to be exercised only at a trial (and I do believe it is in the interest of justice to proceed by summary judgment), particularly given that I was able to hear the oral testimony of two important non-party witnesses (detailed later in these Reasons). There is no reason to think that better evidence from any of the witnesses would be available if these actions go to trial.
[11] The Supreme Court of Canada’s description of the “interest of justice” inquiry in the Hryniak case at paras. 58 – 60 directs the court to consider the consequences of the motion in the context of the litigation as a whole in deciding whether the court’s Rule 20.04(2.1) and (2.2) fact-finding powers should be exercised only at trial. In this case, the consequences of the motion will be to dispose of both of the actions in their entirety. The use of these powers will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality, which are also important considerations in this case given that the parties have requested I proceed in this manner and given the nature of the dispute in these actions: see Hryniak, at para. 66. The application of the fact-finding powers to the record in this case has enabled me to make the required factual findings in a fair, timely, affordable and proportionate manner to arrive at a just adjudication of the dispute.
[12] I am satisfied (as Rule 20.04(2)(b) requires me to be) that it is appropriate to grant summary judgment in these actions.
Summary of Outcome
[13] For the reasons that follow, I am granting summary judgment in favour of the defendant Tomas and dismissing the action against him (CV-17-574700) and I am granting summary judgment in favour of the plaintiff in the action against Andrea (CV-17-569860) in respect of two of the four impugned statements made by her that I have found to be defamatory.
The Parties and their Extended Family
[14] Henry is an economist and a recently retired Canadian diplomat. He worked in various capacities for the federal government commencing in 1981. He served as a Foreign Service Officer from 1987 to 2012 and worked at (what is now) Global Affairs Canada for 25 years. Henry is retired but serves on the Executive of the Canadian International Council’s Toronto Branch and National Program Committee and hopes to be able to secure future contracts with governmental agencies. Henry is married to Judy Adler (“Judy”), the defendant Andrea’s sister.
[15] Tomas and Andrea are married. Tomas is a senior vice-president at Hatch Ltd., an engineering and consultancy company.
[16] These actions arise in the context of a larger and long-standing acrimonious relationship between two sisters, the defendant Andrea and Judy, who have been estranged since 2008. They are also involved in other estate-related litigation.
[17] Judy and Andrea are the daughters of Agnes Adler (“Agnes”) who is considered to be one of the remaining living matriarchs of a close-knit community of Hungarian Jews who emigrated to Toronto in the aftermath of the Hungarian revolution in 1956-57. Agnes suffers from dementia and, according to Andrea, was deemed incompetent within a year of her move in late December 2016 to a retirement home in Thornhill (the “Retirement Home”). While it appears that Agnes has, for the most part, been kept out of these proceedings, Andrea does acknowledge having received $25,000 from Agnes sometime prior to May of 2018 to help defray Andrea’s legal costs of defending herself.
[18] Other members of the Adler family and extended family and community have not been insulated from these proceedings as Agnes has been. In addition to the two affidavits sworn by Henry, three affidavits sworn by Judy and affidavits sworn by each of Tomas and Andrea, affidavits have also been filed by Sarah and Alexander Gregor (Tomas and Andrea’s two children) and Agnes’ sister-in-law Sandy Lessner (“Sandy”) was examined under Rule 39.03. Close family friends of the Adlers (sometimes described as their extended family) have also been drawn into these proceedings, including Peter and Gabor.
[19] Peter works for Canada Post and he is a long-time family friend of the Adlers. Peter says his mother is Agnes’ best friend. Peter is currently only in contact with Andrea, although he has known both Andrea and Judy since childhood. Gabor is also a long-time family friend of the Adlers. Gabor’s mother and Agnes made the decision to move to Canada together after the Hungarian revolution in 1956-57.
[20] Gabor used to work (indirectly) for the federal government and that work required a high level security clearance, which he enjoyed for many years. He became friends with Henry after Henry married Judy in 2013. Gabor and Henry are also both investors in a company called Terastream Broadband Inc., although Gabor considers his connection to Henry to be one of friendship, not business. Gabor grew up with Judy and Andrea in Toronto and considered himself to be close friends with Henry, Judy, Tomas and Andrea. Gabor is currently only in contact with Henry and Judy. Although he had a relationship with Tomas and Andrea at the time of the events at issue, they have not spoken to him for some time and he associates their parting of ways with this litigation.
Events Leading up to the Impugned Statements and this Litigation
[21] Unbeknownst to her, Agnes is at the centre of the events in these proceedings, which were precipitated by a visit by Henry and Judy to Agnes’ condominium on December 2, 2016. This visit occurred during a period when Agnes was downsizing from her condominium in anticipation of her move to the Retirement Home, which later occurred on or about December 22, 2016.
[22] During this December 2016 visit, certain items of personal (not material) value were, according to Henry and Judy, given to them by Agnes. They say that Agnes invited (even urged) them to select for themselves some of her personal effects because she did not have room for all of her belongings at the Retirement Home. It is not disputed that Agnes was of sound body and mind at this time. According to Tomas and Andrea, these items were taken by Henry and Judy and they refused to return them when they were asked to do so.
[23] Various discussions ensued about the return of certain of the items, which also led to discussions about exchanging items that had been previously gifted by Agnes and/or her late husband to the Gregor side of the family that held sentimental value for the Lotins.
[24] It was in the context of these ensuing discussions about the items taken by Henry and Judy that the statements were made by Tomas and Andrea that are the subject of these actions. The statements are detailed in the next section below.
[25] Judy appears to consider the statements made about her by Tomas and Andrea to be one among many blows that have been delivered and received in the course of her long-standing dispute with Andrea. At the time, Henry was relatively “new” to the Adler family dispute, having married Judy only three years before the events in question. Henry saw things differently and testified that he felt compelled to take legal action because of the nature of his work and a desire to continue to qualify for the top secret security clearance that he had enjoyed while he worked with (what is now) Global Affairs Canada. Rightly or wrongly, it is his belief that in any process for the renewal of, or to obtain new, security clearance, allegations of criminal activity (theft) would have to be disclosed by him and he would have to demonstrate efforts he has taken to defend himself against what he considers to be a false accusation. That is why he says he commenced these proceedings, and in order to protect his good reputation for credibility and trustworthiness.
The Impugned Statements
Statement #1 by Tomas to Gabor - Henry took items of value from Agnes
[26] Henry alleges that on or about December 3, 2016, Tomas telephoned Gabor and told him that Henry and Judy took items of value from Agnes without her authorization and for their own personal benefit and to Agnes’ detriment. It is alleged that, although Tomas did not use the words “theft” or “steal”, the statements were intended and understood to have this meaning. It is alleged that these same statements were repeated in a further telephone call with Gabor the next day.
[27] Tomas denies making these statements or that anything he said carried with it an accusation of a criminal offence having been committed. Tomas admits that he told Gabor that Henry and/or Judy took items from Agnes and that Agnes was upset, but disputes that he said or suggested that the items were taken without Agnes’ permission or that Henry “stole” them.
Statement #2 by Tomas to Sandy - Henry took silver trays from Agnes
[28] Henry alleges that in mid-January 2017 at Agnes’ birthday party, Tomas told Sandy that Henry and Judy took silver trays from Agnes without her authorization for their own personal benefit and to Agnes’ detriment.
[29] Tomas denies making this statement. He recalls a different conversation with Sandy at Agnes’ condominium in December of 2016 in which they were simply trying to identify, by process of elimination, who had Agnes’ silver trays that used to be stored in a particular cabinet, and observing in that context that, if Sandy and Andrea did not have them, likely Judy had them.
Statement #1 by Andrea to Sandy - Henry took photographs and a Persian carpet from Agnes
[30] Henry alleges that on or about December 4, 2016, Andrea told Sandy that Henry and Judy took photographs and a Persian carpet from Agnes without Agnes’ permission, approval or authority.
[31] Andrea denies making this statement. Andrea acknowledges that she spoke to Sandy over the phone on December 4 or 5, 2016 and mentioned how upset Agnes was about the photographs that had been removed from the wall but maintains that she never suggested that Henry had taken items from Agnes without authorization or had stolen from Agnes.
Statement #2 by Andrea at the birthday party - Henry stole things from Agnes and is a thief
[32] Henry alleges that on January 14, 2017 towards the end of a birthday party for Agnes hosted by Andrea and Tomas at the Retirement Home that was attended by approximately 25 people, Andrea loudly accused Henry of stealing from Agnes and called him a thief in front of other guests.
[33] Andrea denies making this statement.
Statement #3 by Andrea to Gabor - Henry stole various items from Agnes
[34] Henry alleges that in mid-January 2017 [3] Andrea spoke to Gabor on the phone and told him that Henry and Judy visited Agnes’ condominium and “stole” various items without Agnes’ permission and without Andrea’s or Tomas’ knowledge, thereby accusing them of committing a criminal act.
[35] Andrea denies speaking to Gabor at all about Henry taking items from Agnes’ condominium and denies that she said that Henry was a thief or that he engaged in criminal conduct by taking items from Agnes’ home. Andrea deposed that she does not recall having any telephone conversation with Gabor about the removal of items from Agnes’ condominium by Henry and Judy.
Statement #4 by Andrea in text to Peter - Henry ransacked Agnes’ condominium and took things from Agnes [4]
[36] On December 6, 2016, Andrea texted Peter and told him that Henry and Judy “ransacked” Agnes’ condominium and took things from Agnes. The text message sent at 2:15 a.m. read, in part: “I’m sure you won’t be surprised to hear that my sister and Henry are being absolutely horrible to my mother and ransacked her place and took things that my mom is super sad about. She called asking for it back but they won’t return the items and won’t even make copies of the photographs for her. Nice eh?”
[37] Andrea acknowledges sending this text but denies that the statements contained in it are defamatory in their natural and ordinary meaning or in the innuendoes contained therein. Further, she denies that these statements allege that a criminal offence was committed or that she made them with the intention, or that they were calculated, to damage Henry’s professional reputation or that they have lessened, or will lessen, his ability to obtain employment.
General Statements
[38] The written materials filed make reference to general statements made by Tomas and/or Andrea to other family members and friends about items taken by Henry and Judy from Agnes’ condominium, however, these were not particularized or focussed on in oral argument. I am not able, based on the record, to make any findings about those statements in terms of whether they are defamatory and have proceeded on the assumption that they were referenced in the written record for additional context.
Legal Principles
Principles of Defamation
[39] The law of defamation protects a person’s reputation. In Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 107 the Supreme Court of Canada stated that “to most people, their good reputation is to be cherished above all. A good reputation is closely related to the innate worthiness and dignity of the individual.” Defamation was created to safeguard society from relying on duels and other bloodshed to protect the reputation of individuals accused of falsities: Hill, at para. 120.
[40] As set out by the Supreme Court of Canada in Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28, the plaintiff in an action for defamation is required to prove three things to obtain judgment and an award of damages:
a. 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;
b. that the words in fact referred to the plaintiff; and
c. that the words were published, meaning that they were communicated to at least one person other than the plaintiff.
[41] If these elements are established on a balance of probabilities, falsity and damage are presumed. The plaintiff does not need to show that the defendant intended to do harm, or even that the defendant was careless: Torstar, at para. 28.
[42] In this case, leaving aside the dispute (addressed later in these Reasons) about whether certain of the statements were made at all, if and to the extent that any of these statements were made, the second and third requirements of the plaintiff’s onus have been met. In each instance of the version of the statements that he seeks to prove, Henry is one of the persons being referred to and the impugned statements were made to, or in the presence of, at least one other person.
[43] In determining the first requirement, it is well accepted that a defamatory statement is one that has a tendency to lower the reputation of the person to whom it refers in the estimation of right-thinking members of society generally, and in particular, to cause him or her to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem: Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3, at para. 62; Color Your World v. Canadian Broadcasting Corp. (1988), 38 O.R. (3d) 97 (C.A.), at para. 14, leave to appeal to S.C.C., refused, [1998] 2 S.C.R. ix, as cited in Manson v. John Doe No. 1, 2013 ONSC 628, 114 O.R. (3d) 592, at para. 21.
[44] The statements are judged by the standard of an ordinary right-thinking member of society. Hence, the test is an objective one: Color Your World, at para. 14.
[45] There is a two-step process in deciding whether a statement is defamatory. First, as a threshold question of law, the words complained of must be reasonable capable of a defamatory meaning. Secondly, where no jury is involved, the judge must decide whether the words complained of are in fact defamatory: see Austin v. Lynch, 2016 BCSC 1344, 31 C.C.L.T. (4th) 279, at para. 55.
[46] At the second stage, the court must decide whether a reasonable person would have understood the words in their defamatory sense. The broad effect of the statements must be considered and disputed sections must be given fair treatment in their context: see Bernstein v. Poon, 2015 ONSC 155, 17 C.C.L.T. (4th) 279, at paras. 42-44.
[47] To determine the meaning of the words complained of, “all of the circumstances of the case may be considered, including: (a) any reasonable implications the words may bear; (b) the context in which the words were used; (c) the audience to whom the words were published; and (d) the manner in which the words were presented”: see Bernstein, at para. 45.
Libel
[48] Libel consists of written publications. Libel is actionable per se at common law, and damages are presumed: see Campbell v. Cartmell (1999), 104 O.T.C. 349 (S.C.), at para. 31.
Slander
[49] While slander at common law is generally not actionable without proof of special damages, if the slander is actionable per se, the plaintiff is not required to prove special damages: see Carrington v. Corrigan, 2010 CarswellOnt 4916 (S.C.), at paras. 4 and 7; Hicks v. Stephens (1997), 40 O.T.C. 190 (C.J. (Gen. Div.)), at para. 40.
[50] The requirement for proof of special damages in most cases of slander derives from the notion that oral statements, being transient in nature with an inherently limited scope for dissemination, do not justify a cause of action except in exceptional circumstances. The four exceptions recognized in the case law (the fourth being an anachronism) are: (a) imputing the commission of a criminal offence; (b) disparaging the reputation of the plaintiff in the way of his or her work, business, office, calling, trade or profession; (c) imputing a loathsome or contagious disease; and (d) imputing promiscuity to a chaste woman: see A.C. v. Joyce, 2016 ONSC 2164, 130 O.R. (3d) 114, at para. 123, reversed on other grounds, 2017 ONCA 49.
[51] The Libel and Slander Act, R.S.O. 1990, c. L.12, s. 16 expands upon the second of these exceptions in providing that it is not necessary to allege or prove special damages in an action for slander for words calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by the plaintiff at the time of the publication.
Application of the Law to the Impugned Statements
[52] For each impugned statement, first a determination must be made about what was actually said.
[53] Next, it must be determined whether the words used were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person. This requires:
a. First, as a threshold question of law, a determination of whether the words complained of are reasonably capable of a defamatory meaning. To determine the meaning of the words complained of, all of the circumstances of the case may be considered, including (a) any reasonable implications the words may bear; (b) the context in which the words were used; (c) the audience to whom the words were published; and (d) the manner in which the words were presented.
b. Second, a determination has to be made about whether the words complained of are in fact defamatory, in the sense of whether a reasonable person would have understood the words in their defamatory sense, to have a tendency to lower the reputation of Henry in the estimation of right-thinking members of society generally, and in particular, to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem. The broad effect of the statements must be considered and disputed sections must be given fair treatment in their context.
[54] Lastly, in order to establish slander per se in the absence of Henry having proven any actual or special damages, the words need to be shown to meet one of the two potentially applicable exceptions, that they: (a) impute the commission of a criminal offence; or (b) were calculated to disparage the plaintiff in any office, profession, calling, trade, or business held or carried on by the plaintiff at the time of the publication
[55] In terms of the first exception involving the imputation of a criminal offence, Henry argues that the statements include allegations he stole items from Agnes’ condominium and that he is a thief, as well as statements that he took these items without her permission, imputing that they were stolen: Hicks v. Stephens, at para. 36. Henry contends that any of these actions (stealing, theft or taking without permission) impute the commission of the criminal offence of theft under s. 322 of the Criminal Code, R.S.C. 1985, c. C-46.
[56] Tomas and Andrea deny that they used words like “stole” or “thief” and they rely on a 1912 decision of the Court of Appeals of Missouri for the proposition that “a charge of having taken another’s property [does not] obviously or necessarily charge theft or other violation of the criminal law”: see Boyce v. Wheeler (1912), 161 Mo.App. 504, at pp. 1 and 2. They urge the court to take into consideration the surrounding circumstances and other words spoken in the determination of whether the words complained of could reasonably be understood as imputing the commission of a criminal offence: see Hall v. Razutis, 2018 BCSC 841, at paras. 40, 167-170.
[57] It was conceded by the defendants during oral argument that if they did say that Henry stole or called Henry a thief that would be defamatory. It was not argued in the defence that there was truth to any suggestion that Henry stole or that he was a thief.
[58] There is a recording of a discussion that took place on January 20, 2017 (between Andrea, Judy and Agnes, with Peter present as an observer) during which Agnes confirmed that: (i) Judy did not steal from Agnes; (ii) Agnes had told Judy to take any items she wanted; and (iii) Agnes had given these items to Judy to take home with her on December 2, 2016.
[59] Tomas has acknowledged that he does not think Henry is a thief. Andrea has conceded that she has no firsthand knowledge of Henry stealing anything. Andrea deposed that she never accused Henry of stealing from Agnes, never called him a criminal or a thief or suggested he was involved in a crime. They have never apologized for, or attempted to retract or correct, any of the statements that they did make about Henry and Judy but maintain that they did not make statements that impute the commission of a criminal offence by Henry.
[60] In terms of the per se slander second exception (and s. 16 of the Libel and Slander Act), Henry maintains that the statements made to Gabor were calculated to disparage him in his profession. Tomas and Andrea argue that the words complained of were all communicated to family members and family friends and not to people who they understood to be in Henry’s professional network such as past or prospective employers or business associates. They maintain that they were not aware of Henry’s investment dealings in a company that Gabor was also invested in and, in any event, rely on Gabor’s evidence that he considered the calls he received from Tomas and Andrea to be personal and not about business.
Statement #1 by Tomas to Gabor - Henry took items of value from Agnes
[61] There is conflicting evidence between Tomas and Gabor about what Tomas said during the two telephone calls that took place between them in December of 2016. Henry’s case depends on Gabor’s account of what was said to him by Tomas (since Tomas has not admitted to saying anything defamatory about Henry during these calls). However, the specific statements that Henry alleges were made by Tomas to Gabor as set out in sub-paragraphs (i) to (j) of the notice of motion (for example, that Tomas told Gabor that Henry and Judy were thieves) have not been proven and I am not satisfied, on a balance of probabilities, that Gabor’s account of what Tomas actually did say to him amounts to defamation. In making this finding, I have considered all of Gabor’s evidence, including his affidavit, cross-examination transcript and his oral testimony at the hearing on January 24, 2019. Thus, it is not necessary to resolve the controversy between the accounts of Tomas and Gabor or to make any specific findings of credibility as between them.
[62] Gabor’s account of their discussions is that:
a. Tomas called one evening in mid-December 2016 while Gabor was out for dinner with his family so Gabor was not able to have a lengthy discussion with Tomas;
b. during this initial brief call, Tomas asked Gabor to assist in getting some items back from Henry and Judy that Tomas felt they should not have taken from Agnes’ condominium;
c. it was suggested or implied that they had taken these items without Agnes’ permission, but the context was unclear;
d. they agreed to speak the next day, and there was a further conversation between Gabor and Tomas; and
e. during this second discussion, Tomas again stated that items were taken by Henry and Judy from Agnes’ condominium and suggested or implied that it was without permission.
[63] Gabor was clear in his testimony both in chief and in cross-examination that Tomas was very circumspect and chose his words carefully. Gabor was firm that Tomas did not use the words “theft” or “steal” or directly accuse Henry and Judy of stealing from Agnes.
[64] Gabor’s understanding was that Tomas was asking him to intercede to help mediate the return of some photos because Agnes was upset. Gabor declined to get involved at that time in what he understood was a long standing dispute between Andrea and Judy. He wanted to be careful not to be picking sides. Although Tomas testified that Gabor told him he did not want to get involved because of his investments and business dealings with Henry, Gabor did not recall or refer to that as his rationale. Gabor explained his rationale to be that he did not want to be a wedge between Andrea and Judy or become involved in a dispute concerning Agnes. It is common ground that Gabor declined to get involved when Tomas asked him to mediate the return of the photos. This is the important point of context for this discussion.
[65] Gabor only testified to a suggestion or implication by Tomas of unauthorized taking of items, not to any express statement of unauthorized taking. Gabor and Tomas both agree that there was emphasis on Agnes being upset and a request for Gabor’s assistance in mediating the return of some photos. On the record before me, there are no specific words that have been identified that Tomas said to Gabor that are reasonably capable of a defamatory meaning. Gabor’s subjective interpretation that there was an implication of unauthorized taking of items from Agnes’ condominium does not on its own satisfy me that words reasonably capable of defamatory meaning were said by Tomas, particularly given the context of the longstanding dispute and the “conciliatory” role that Tomas was seeking to involve Gabor to play.
[66] Further, Gabor did not testify that he understood the words in the defamatory sense of lowering the reputation of Henry. It was argued that, because Tomas recalled that Gabor remarked at the time that if what Tomas was saying was true it was “awful and disgusting”, whatever Tomas said must have imputed a criminal offence and lowered Henry’s reputation in Gabor’s mind. However, that type of reaction is equally consistent with Gabor having been told that Agnes was upset not because the items had been taken without her permission, but because she had changed her mind and wanted the items back and that Henry and Judy were not acceding to that request. In any event, on an objective standard, I am not satisfied on a balance of probabilities that a reasonable person would have understood Gabor’s account of what Tomas said to lower Henry’s reputation.
[67] I am also not satisfied on a balance of probabilities that the words that Tomas said to Gabor (based on Gabor’s account of them) imputed the commission of “taking” in any criminal sense, particularly given Gabor’s testimony about how circumspect Tomas was being in the words he chose. Nor can the words used by Tomas in his discussion with Gabor, when fairly considered in their context, be found to be calculated to disparage Henry in his profession or business. Consistent with that, Gabor testified that he did not consider this conversation to be about business, he considered it to be personal.
Statement #2 by Tomas to Sandy – Henry took silver trays from Agnes
[68] There is conflicting evidence between Tomas and Sandy about where and when the discussion between them about the missing silver trays took place and about what precisely was said by Tomas. They both recall having a discussion about Agnes’ silver. Sandy recalls this discussion taking place at Agnes’ birthday party at the Retirement Home (which was on January 17, 2017). Tomas recalls the conversation taking place at Agnes’ condominium in December of 2016. Judy recalls Sandy calling to ask about the missing silver trays shortly after the birthday party, which would be more consistent with Sandy’s recollection of the timing.
[69] Henry’s case depends on Sandy’s account of what Tomas said to her (since Tomas denies that he told Sandy that Henry and Judy took Agnes’ silverware). Regardless of when the discussion took place, Henry must establish that what was said was defamatory and I am not satisfied, on a balance of probabilities, that Sandy’s account of what Tomas said to her amounts to defamation. I have based this finding on Sandy’s testimony from the transcript of her Rule 39.03 examination. Thus, it is not necessary to resolve the controversy on the evidence between the accounts of Tomas and Sandy or to make any specific findings of credibility as between them.
[70] Sandy did not testify that Tomas accused Henry and Judy of theft or that he said that they stole from Agnes. She also did not testify that Tomas told her that they took the silver from Agnes without Agnes’ permission or that she understood that to be what Tomas was suggesting. Rather, Sandy testified that when Tomas said “they” took some of Agnes’ silver she understood Tomas to be referring to Henry and Judy, but when she responded that “maybe Aggy gave it to them” Tomas agreed that maybe she did.
[71] Based on what Sandy recounts from her conversation with Tomas, there were no words spoken that are reasonably capable of defamatory meaning, even by implication and particularly given the context (and mutual speculation that it might have been a gift by Agnes). Nor would a reasonable person have understood the words spoken in a defamatory sense and Sandy testified that she herself did not understand the words in that way. Finally, nothing in the words described by Sandy impute the commission of a criminal offence and it is not suggested that they were calculated to disparage Henry in his profession or business.
Statement #1 by Andrea to Sandy – Henry took photographs and a Persian carpet from Agnes
[72] Andrea denies telling Sandy that Henry and Judy took photographs or the Persian carpet or any other items from Agnes without Agnes’ permission. In the face of Andrea’s denial, Henry’s case depends on Sandy’s account of what was said to her by Andrea and he must establish on a balance of probabilities that what Andrea said to Sandy amounts to defamation. I am not satisfied that it does. I base this finding on Sandy’s testimony from the transcript of her Rule 39.03 examination.
[73] Sandy does not say in her testimony that Andrea accused Henry and Judy of theft or say that they stole from Agnes. She does not say that Andrea told her that they took items belonging to Agnes without Agnes’ permission. Sandy only vaguely remembers Andrea telling her something about missing photographs.
[74] Based on what Sandy recounts from her conversation with Andrea, there were no words spoken that are reasonably capable of defamatory meaning, even by implication, nor would a reasonable person have understood the words spoken in a defamatory sense and there is no evidence that Sandy herself understood the words spoken in that way. Finally, nothing in the words described by Sandy impute the commission of a criminal offence and it is not suggested that they were calculated to disparage Henry in his profession or business.
Statement #2 by Andrea at the birthday party - Henry stole things from Agnes and is a thief
[75] There is contradictory evidence about what transpired in the conversation between Henry and Andrea at Agnes’ birthday party. Henry and Judy say that Andrea loudly accused Henry of being a thief. Andrea and her two children who say they were in ear shot of the entire conversation say that no such accusation was made. There is no evidence from anyone who was at the birthday party who said that they heard Andrea accuse Henry of being a thief. Two affidavits were tendered by other attendees at the birthday party who say that they did not hear any such accusation being made.
[76] I assume (as I am entitled to do) that there will be no better evidence at trial, the controversy on the evidence about what was actually said by Andrea, and the absence of any evidence from others in attendance at the party corroborate Henry and Judy’s account. [5] This is enough to cast sufficient doubt about the words spoken by Andrea during this conversation that Henry cannot meet the burden of proof on a balance of probabilities to establish that Andrea accused him of being a thief in the presence of others on this occasion. Having concluded that the alleged defamatory statement cannot be established on this occasion, it is not necessary for me to determine precisely what was said or whose account of the balance of the conversation that took place between Andrea and Henry is accurate, or to make any specific findings of credibility as between them.
Statement #3 by Andrea to Gabor - Henry stole various items from Agnes
[77] Gabor swore an affidavit, was cross-examined and testified at the hearing on January 24, 2019 about a telephone call he received from Andrea and what she said. He firmly maintains that Andrea said that Henry had stolen items from Agnes and suggested that Henry was a thief. Andrea has no recollection of speaking to Gabor on or about January 16, 2017, and she denies that she said to Gabor that Henry was a thief or that she suggested that Henry was engaged in criminal behaviour for taking items from Agnes’ home. She does not directly deny that she told Gabor that Henry stole items from Agnes (although she generally denies having spoken to Gabor about the allegations she is accused of making in these proceedings).
[78] It was submitted that Gabor’s testimony about this discussion should not be accepted because he has given different accounts about the date of this call, the length of the call and some of the details discussed. In order to determine whether there was a telephone conversation between Gabor and Andrea, and, if so, whether Andrea said to Gabor that Henry had stolen from Agnes, I have considered Andrea’s denials and I have weighed and evaluated Gabor’s evidence to determine whether his evidence is credible.
[79] Having undertaken that exercise, I find Gabor’s evidence at the hearing about the timing, duration and general content of this telephone discussion to be the most reliable, given his explanation of how he reconstructed the timeline for when the call took place (and it is also consistent with his first account in his affidavit, which was only called into question because of cell phone records produced by Andrea that he was confronted with during his out-of-court cross-examination, causing him to question his recollection which he has since been able to reaffirm). Since being confronted with Andrea’s cell phone records when he was cross-examined on his affidavit, Gabor explained in his testimony at the hearing that he has reviewed the dates and times and the context of Andrea’s dealings with his wife about furniture (which is what he understood to be the reason she was calling) and that is how he has been able to reaffirm that the call took place in mid-January of 2017 and not in December of 2016 as had been suggested to him based on Andrea’s cell phone records. He also testified that he did not know if Andrea had called from her cell phone or her landline at the time. If it had been from her landline, that would explain why there is no cell phone record of the call in mid-January of 2017.
[80] At the hearing, Gabor testified that:
a. Andrea called his house sometime in mid-January looking for his wife, who he has since confirmed was in Florida at the time;
b. when Gabor advised that his wife was away, Andrea launched into a discussion about items removed by Henry and Judy from Agnes’ condominium, asking him directly whether he thought it was right that they stole from Agnes;
c. he remembers this specifically because he was shocked at the suggestion of theft and he recalls specifically cautioning Andrea about making such a serious accusation;
d. he also specifically remembers that, to his surprise, Andrea repeated the same allegation that Henry and Judy had stolen items from Agnes’ condominium, so he cautioned her a second time about making such serious accusations;
e. he told Andrea that he did not want to get involved and whether he thought it was right or wrong was irrelevant.
[81] Andrea also argues that Gabor’s evidence about this call is not reliable and should not be accepted because he does not recall the items at issue that were discussed. Specifically, Gabor testified that one of the items Andrea told him had been taken was a tallit that had been given to Andrea’s daughter many years earlier (but that Judy wanted to trade for the photos that were taken). It was argued that because that could not plausibly have been one of the items that Andrea would have accused Henry and Judy of taking (or stealing) from Agnes in December of 2016, Gabor’s testimony should be disregarded.
[82] While Gabor may not accurately recall what Andrea said had been stolen, he did testify that the actual items Andrea was referring to were not particularly germane to him, whereas he was very shocked by the fact that Andrea had accused Henry of stealing and that is why he went to the extent of cautioning her twice. Gabor testified that he has a clear recollection of this conversation and there is no question in his mind that it took place. The fact that he had to caution Andrea twice about making this type of accusation sticks out in his mind. He took great exception to the suggestion that he was lying about it.
[83] It was also suggested that Gabor’s testimony should be disregarded because of his friendship with Henry and Judy. However, he was also friends with Andrea and Tomas at the time the statement was made (and until this lawsuit). Furthermore, his testimony was not entirely one-sided in support of Henry’s position. To the contrary, in both his testimony in chief and in his cross-examination at the hearing he gave evidence that was inconsistent with Henry’s assertion that the statements that were made by Tomas and Andrea were disparaging to Henry’s reputation in his business or profession. Furthermore, Gabor’s testimony undermined Henry’s concern about disclosures that might have to be made in the context of any future security clearances he may try to obtain. Thus, it is clear that Gabor was not simply tailoring his evidence to assist Henry.
[84] Overall, and having regard to the totality of his evidence and the above considerations, I find Gabor’s testimony about this telephone conversation with Andrea to be reliable and credible. I have also taken his candour on other matters into account in my decision to accept Gabor’s account of what Andrea said to him during the telephone conversation in mid-January of 2017. I am satisfied on a balance of probabilities, and having utilized my fact-finding powers under Rule 20.04(2.2), that a trial is not required in order for me to find as a fact that Andrea did say to Gabor that Henry and Judy had stolen items from Agnes (even though Gabor does not accurately recall what Andrea said had been stolen).
[85] As noted previously, it was conceded in oral argument that if Andrea said that Henry stole or said that he was a thief, that statement would be defamatory. I also find Andrea’s statements to Gabor to be so. Her statements to Gabor are reasonably capable of defamatory meaning, even in the context of this longstanding family dispute, and especially because they were repeated after Gabor reacted by cautioning her against making such a serious allegation. I find as well that the words she used were in fact defamatory of Henry in that a reasonable person would understand them to have a tendency to lower Henry’s reputation in the estimation of right-thinking members of society and to be regarded negatively. Gabor’s cautions to Andrea are consistent with this as he clearly understood these accusations to be serious and of concern. The fact that Gabor did not conclude from Andrea’s statements to him that Henry was, in fact, a thief does not detract from my finding that the words Andrea used were capable of defamatory meaning or would be understood to lower Henry’s reputation when considered objectively.
[86] Finally, for Andrea to allege that Henry had stolen from Agnes imputed the commission of a criminal offence. It was submitted that, in the context of the longstanding family dispute, this allegation would not be reasonably understood to mean that Henry actually “stole” from Agnes, but would be seen as an exaggeration. In my view, the fact that Andrea repeated it after being cautioned by Gabor undermines this argument because it suggests that she wanted to reinforce rather than detract from the seriousness of the allegation. That is also consistent with how Gabor says he interpreted it.
Statement #4 by Andrea in text to Peter - Henry ransacked Agnes’ condominium and took things from Agnes
[87] There is no controversy on the evidence about what the text message from Andrea to Peter said and that it referred to Henry (Andrea testified on cross-examination that she wished she had qualified the word “ransacked” in the text message with “she” [referring to Judy], but she did not). The issues that I have to decide are whether this text message should be considered at all and, if so, whether the text message (including its use of the word “ransacked”) was defamatory.
[88] While the text message is not referred to in the amended statement of claim, in response to the demand for particulars the plaintiff referred to the fact that Andrea had said this to Peter (which they could only have known as a result of the text having been produced during the discovery process). The combination of paragraphs 10 and 20 of the amended statement of claim and p. 115 of the response to demand for particulars which form part of the pleading, clearly put Andrea on notice that this was among the alleged defamatory statements, once it came to light in the course of the discoveries. Furthermore, paragraph (j) on p. 4 of the amended notice of motion makes specific reference to this text message, it is addressed in various of the affidavits filed on the motion and Peter attested to it in his affidavit (filed in the responding motion record) and was questioned about it during his pre-hearing cross-examination. There can be no doubt that Andrea was on notice that this was one of the defamatory statements that would be considered on this motion. In the circumstances, it is fair, just and proportionate for me to consider and dispose of the allegations surrounding this text message.
[89] The parties rely on competing definitions of “ransacked”. Henry points to the Merriam Webster dictionary definition: “To search through and steal from in a forceful and damaging way: Plunder” or “To search through with the intent of committing robbery”. Another definition is: “To look through thoroughly in often a rough way” or “To look through (as a place) carefully or thoroughly in an effort to find or discover something”. Andrea contends that the usual and ordinary (and her intended) meaning is derived from the latter definitions, which do not mention stealing or robbery. Andrea deposed that “ransacked” was intended by her to be a reference to the state in which Judy and Henry had left Agnes’ condominium, which she described as a mess. Peter also testified that he understood it to mean to look, observe and go through items. He insisted that he did not understand it to mean that they took or stole items, even though Andrea’s text message said that Judy and Henry ransacked her place and “took things”.
[90] The fact that there are different dictionary meanings and different subjective interpretations of the word “ransacked” does not detract from (if anything, it reinforces) the conclusion that the word “ransacked” is reasonably capable of being understood to mean that Henry had rummaged or searched through Agnes’ condominium thoroughly or roughly, or that he had stolen items from her condominium. By the use of this word in the context of a text message that also refers to Henry and Judy taking things and in which it is stated that they were being absolutely horrible to Agnes, I find that it was reasonably capable of a defamatory meaning.
[91] I also find that the words complained of in this text message are in fact defamatory in the sense that they are reasonably capable of lowering Henry’s reputation in the estimation of right-thinking members of society and to cause him to be regarded negatively. A reasonable person would have understood this to have negative implications and would lead to a negative view of Henry. The fact that Andrea was venting to a family friend in the middle of the night does not make it less so. In the case of libel (which the text message is because of its written form), it is not necessary that this be found to be an imputation of theft (a criminal offence). I do not need to decide whether, in this context, Andrea’s use of the word “took” in her text message meant or imputed “stole” in the context of this alleged libel.
[92] Peter’s reaction, while not determinative, is telling, in his response that “they will be judged by G-d one day”. His explanation in his testimony at the hearing was that this referred to unspecified past behaviours of Henry and Judy, it was just hyperbole and an emotive form of empathy towards Andrea, and that he did not understand Andrea’s text message to mean that Henry and Judy had stolen from Agnes. This explanation does not, however, detract from the link that he himself was making (either explicitly or by reasonable inference) between their history of bad behaviour and the “ransacking”, which he appears to have been judging (and suggests would be judged by G-d) in the same negative light.
Damages
[93] For each statement that is established on a balance of probabilities to meet the Torstar requirements of defamation, falsity and damages are presumed. Harm to reputation is presumed from the mere publication of the defamatory words: MacRae v. Santa, at para. 34, quoting from Raymond E. Brown, The Law of Defamation in Canada, loose-leaf (Toronto: Thomson Reuters Canada, 2006). Damages can be awarded at large, in the discretion of the judge: see Hill v. Church of Scientology, at paras. 167-168.
[94] Henry refers to various cases and principles arising from them to assist in the court’s determination of the quantum of general damages to award for defamation, emphasizing that the purpose of such an award of damages is to compensate the plaintiff for insult to reputation: see, for example, Hill v. Church of Scientology, at paras. 164-166. The defendants agree that if libel or slander is established, general damages are awarded to compensate the plaintiff for any harm to his reputational or emotional well-being, often referred to as compensation for the “sting” of the defamation: see Bernstein, at para. 157.
[95] The factors to consider in determining the quantum of damages for defamation include the following: the plaintiff’s position and standing, the nature and seriousness of the defamatory statements, the mode and extent of publication, the absence or refusal of any retraction or apology, the whole conduct and motive of the defendant from publication through judgment, and any evidence of aggravating or mitigating circumstances: Barrick Gold Corp. v. Lopehandia (2004), 71 O.R. (3d) 416 (C.A.), at para. 29, citing Hill.
[96] Henry places particular reliance on a case involving defamatory statements that undermined the reputation and integrity of the plaintiff in which $50,000 in general damages were awarded: see Awan v. Levant, 2016 ONCA 970, 133 O.R. (3d) 401, at paras. 98-99, 107-108, leave to appeal to S.C.C. refused, 2017 CarswellOnt 8968. He also relies on a case involving accusations of “unscrupulous business practices” where there was no retraction or apology and the court awarded $10,000 per defendant (that was subject to a reduction because of post-defamation misconduct of the plaintiff that he contends would not apply here: see Batyka v. Barber, 2015 BCSC 63, at paras. 77, 79, 81-85.
[97] Tomas and Andrea contend that much more extreme cases of accusations of unethical and unprofessional conduct to a “small” crowd of 80 people, where no apology was given, drew a much smaller award of $7,500 in general damages. Their main contention on damages, however, is that the plaintiff is being overly sensitive and that these actions should never have been brought and that the court should only award contemptuous damages in the amount of $1 in a case such as this: see Acumen Law Corporation v. Nguyen, 2018 BCSC 961, at paras. 27-28.
[98] The amount of general damages to be awarded is entirely discretionary and each case turns on its own particular facts. I have considered the factors cited by the parties and the circumstances of this case, including the limited scope of the dissemination of the statements, the audiences to whom the statements were made (family friends familiar with the long-standing dispute between Andrea and Judy), that there is no evidence of any negative effects or actual damages to Henry’s reputation having been sustained and that the speculative concerns about potential impacts on Henry’s security clearance were not borne out by Gabor’s testimony. I am also mindful that, although Andrea has not apologized to Henry directly, she has conceded on the record in this case that Henry is not a thief and that she did not intend to accuse him of criminal activity, and mindful of her testimony that she had been unaware of what Henry did professionally before he retired, which suggests that her motive for making the accusations was confined to the ongoing family dispute and not intended to have a broader reach or impact on him. In the exercise of my discretion, I have decided to award Henry $2,000.00 in damages against Andrea for the two defamatory statements she made about him. While I do not think that the damages award should be contemptuous, I am not satisfied that there is a need to compensate Henry for any insult to his reputation beyond this amount.
[99] The defendants maintain that the circumstances of this case do not meet the high threshold for aggravated damages: see Bernstein, at para. 175. I agree and I decline to award any aggravated damages against Andrea.
[100] Henry has indicated that he intends to donate any damages that he receives to charity. That is his prerogative. I make no order with respect to the use to which Henry may choose to put his award of damages.
Plaintiff’s Request for an Injunction
[101] The plaintiff seeks a permanent injunction to prevent the defendants from continuing to defame him (if they are found to have done so). The plaintiff concedes that this type of order would typically only follow a finding that it is likely that the defendants will continue to defame him: see Astley v. Verdun, 2011 ONSC 3651, 106 O.R. (3d) 792, at paras. 20-21. The parties agree that the test for granting a permanent injunction upon a finding of defamation is set out in this case, which is whether either:
a. there is a likelihood that the defendant will continue to publish defamatory statements despite the finding that [s]he is liable to the plaintiff for defamation; or
b. there is a real possibility that the plaintiff will not receive any compensation given that enforcement against the defendant of any damage award may not be possible.
[102] The second branch of this test was not argued or relied on in this case. On the first branch, the plaintiff is concerned that the defendants do not appreciate the consequences of having accused him of engaging in criminal conduct, and that they will continue to do so within the family and extended family. The defendants argue that there is no evidence of an ongoing campaign of defamation, outside of the specific incidents that are the subject of these proceedings (which occurred more than two years ago), nor any evidence that the defendants do not appreciate the authority of the court of the seriousness of these matters.
[103] Given my findings regarding Tomas, this analysis does not apply to him. In terms of Andrea, having considered all of the evidence, I have found that she did not calculate to disparage Henry in any office, profession, calling, trade or business held or carried on by the plaintiff at the time (I accept that, until these proceedings, she was unaware of Henry’s profession entirely, and unaware of his investment dealings with Gabor – the accusations she made against Henry were personal). While I have found that she did impute criminal conduct to Henry by her statements to Gabor that was not Andrea’s intention or understanding of the remarks she made. That said, she crossed the line in the context of what otherwise is, and should remain, a private dispute between her and her estranged sister Judy.
[104] I expect that, now that Andrea has been told by a court that this was the imputation of her comments, she will appreciate the consequences of them even if she did not beforehand, and hopefully she has learned a lesson about the risks of attempting to draw others, like Gabor and Peter, into a private dispute.
[105] An injunction against speech is a serious restriction on freedom of expression that I do not think is justified in this case. No direct evidence was led regarding any recent defamatory conduct and I am not satisfied that there is a likelihood that Andrea will continue to make defamatory statements after receiving the court’s findings in this case. The record before me does not satisfy the requirements for making an order for a permanent injunction. I expect and hope that the order I have made will cause Andrea (and other family members) to be circumspect in what they say about other family members going forward.
[106] It does not follow, as the plaintiff suggests, that because Andrea denies making the statements it should not be a big deal to enjoin her from making them. Injunctions are the exception not the norm and they should not be granted in the absence of any evidence of ongoing statements and/or something more than speculation that future statements will likely be made.
Summary of Decision
[107] My rulings on the specific orders sought by the plaintiff are as follows:
a. I am not prepared to make a finding at large that Henry did not steal from Agnes. I note that the defendants did not attempt in their defence to establish the “truth” of the defamatory statement that Henry “stole” certain items from Agnes, but rather denied saying that Henry “stole” from Agnes at all. In any event, the court is in no position to make a general finding that Henry did not ever steal from Agnes.
b. Having regard to my findings above:
i. concerning the alleged defamatory statements that were not made by Tomas, the action against him in Court File No. CV-17-574700 is dismissed; and
ii. concerning the defamatory statements made by Andrea accusing Henry of stealing from Agnes in a telephone conversation with Gabor and in the ransacking text message that she sent to Peter, I have awarded damages for defamation against her in Court File No. CV-17-569860 in the amount of $2,000.00.
c. I decline to make an order for an permanent injunction in the circumstances of this case; and
d. Pre- and post-judgment interest is payable on the award of damages against Andrea, pursuant to the Courts of Justice Act, R.S.O. 1990, c. C. 43.
Costs
[108] The parties have not had an opportunity to make submissions as to costs. I offer the following preliminary observations: the defendants in each action are represented by the same counsel and the plaintiff is represented by the same counsel in each action. The actions have been consolidated. There has been divided success, with summary judgment having been granted to dismiss one of the actions and having been granted in favour of the plaintiff in the other action. It would appear to me, based on these outcomes, that this would be an appropriate case for there to be no order as to costs in either action, and that the parties each bear their own costs.
[109] I encourage the parties to try to reach an agreement on costs, if not along the lines I have indicated, then on any other terms that they can agree to. If an agreement cannot be reached, I will allow the parties to make brief written costs submissions.
[110] If the parties have not reached an agreement on costs and advised the court of such by March 15, 2019 then they shall exchange their respective costs outline with a brief submission as to costs (of no longer than 3 pages double spaced) on or before March 22, 2019 and they each may respond to the other’s costs outline and submission in a reply (of no longer than 1.5 pages double spaced) to be exchanged on or before March 29, 2019. All costs outlines and submissions should be served on the opposing parties and delivered to my attention at Judges’ Administration, Superior Court of Justice at 361 University Avenue (Room 170), Toronto, Ontario M5G 1T3. If no costs submissions have been delivered to the court by March 29, 2019, and in the absence of the parties having requested and been granted an extension for making their costs submissions, the costs will be deemed to have been settled.
KIMMEL J.
Released: March 6, 2019
Footnotes:
[1] These two actions were consolidated and ordered to be tried together or one after the other, subject to the discretion of the court, by a consent order dated August 3, 2018.
[2] The defendants rely on King Lofts Toronto 1 Ltd. v. Emmons, 2014 ONCA 215, 40 R.P.R. (5th) 26, at paras. 7, 14-15. On a summary judgment motion, a responding party need not bring a cross-motion in order to have summary judgment granted in its favour.
[3] There is some controversy in the evidence about whether this call was in December, 2016 or January 2017. I accept the viva voce testimony and refreshed recollection of Gabor that it occurred in mid-January 2017.
[4] It was submitted by Andrea that because this text message was not referenced in the amended statement of claim and there is no express allegation of libel in the pleadings, it should not be considered on the motion. There is no dispute that this text message was disclosed in the course of the discoveries in March of 2018. Henry maintains that it is generally covered by the amended statement of claim and specifically covered by the responses to demand for particulars that now form part of the pleadings, as well as by the notice of motion in Action No. CV-17-569860. This is addressed later in these Reasons.
[5] Reference was made by the defendants to statements in emails from other attendees at the party that were attached as exhibits to Andrea’s affidavit. The plaintiff objected to these emails as inadmissible hearsay and I have not relied on them. However, they would not have changed my findings if I had considered them, because what they say does not add to or detract from the absence of evidence of anyone else overhearing the alleged defamatory statement (beyond the deponents whose affidavits I have considered).