Court File and Parties

COURT FILE NO.: CV-17-580357 DATE: 20190614 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

David Clark Plaintiff – and – David Snow, Eesti Kodu Inc., and Enn Allan Kuuskne Defendants

Counsel: David Clark in Person David Murray for David Snow and Eesti Kodu Inc. Lindsay Beck for Enn Allan Kuuskne

HEARD: January 31, 2019

REASONS FOR DECISION

NISHIKAWA J.

Overview

[1] The Plaintiff, David Clark, is a resident of a cooperative housing complex operated by the Defendant, Eesti Kodu Inc., (“EKI”). Mr. Clark commenced this proceeding against EKI, its President, David Snow, and its lawyer, Enn Allan Kuuskne, for defamation and conspiracy based on statements made at an EKI annual general meeting in May 2015, and in two letters distributed by the Board of Directors of EKI (the “Board”) in June 2017. Mr. Clark seeks damages of $850,000.00.

[2] Mr. Kuuskne brings this motion for summary judgment dismissing the claims against him.

[3] Mr. Clark, who is self-represented, brings a cross-motion for summary judgment on all of his claims.

[4] Mr. Snow and EKI oppose Mr. Clark’s motion for summary judgment, but have not brought a cross-motion for summary judgment dismissing Mr. Clark’s claims. They take the position that such an order could nonetheless be made on the evidence on this motion.

[5] For the reasons that follow, I grant Mr. Kuuskne’s motion for summary judgment dismissing the claims against him. I dismiss the Plaintiff’s cross-motion for summary judgment and dismiss the Plaintiff’s claims for defamation and conspiracy.

Factual Background

The Parties

[6] The Plaintiff, Mr. Clark, is a resident of a cooperative housing complex at 50 Old Kingston Road in Toronto, Ontario (the “Premises”). He is also a shareholder of EKI. He has been living at the Premises for over six years. During this time he has been very engaged in the affairs of EKI and has also tried to assist other residents by driving them places and checking on them during storms and blackouts.

[7] The Defendant, EKI, was incorporated in 1975 under the Business Corporations Act for the purpose of purchasing, constructing, and managing the Premises, which is comprised of 145 residential units. The shareholders of EKI are its residents, who are primarily members of the Estonian-Canadian community over the age of 55 years old.

[8] EKI is managed by a lay board of directors. The Defendant, Mr. Snow, was elected president of the board on May 28, 2015.

[9] The Defendant, Mr. Kuuskne, is a solicitor, and has been counsel to EKI since approximately 2008.

The 2015 Annual General Meeting

[10] Mr. Clark’s claim for defamation against Mr. Kuuskne is based on the statements that Mr. Kuuskne is alleged to have made at the EKI annual general meeting on May 28, 2015 (the “2015 AGM”). Mr. Kuuskne attended the meeting at the Board’s invitation.

[11] At the 2015 AGM, the Chair made a proposal to hire an outside management company, Tonu Kung & Associates. Mr. Clark commented that since the proposed management company was privately held and its address was the home address of its principal, it was untrustworthy or possibly fraudulent.

[12] In his Statement of Claim, Mr. Clark alleges that Mr. Kuuskne then stood up and stated “The Plaintiff should be sued for libel.” In his affidavit, Mr. Kuuskne states that he rose and cautioned that participants should “take care not to make baseless allegations, which could be construed as libellous” and that he further stated that “unfounded allegations about the honesty of a particular company were not helpful.” Mr. Kuuskne then acknowledged the proposal of another shareholder to receive bids from other property managers.

[13] Before the meeting, a letter had been distributed to EKI shareholders. It included allegations that Mr. Kung may have defrauded EKI, that he conducts business from “his kitchen table,” and that “hidden commissions/kick backs” may be associated with EKI’s decision to hire him. Mr. Clark alleges that Mr. Kuuskne referred to the letter at the 2015 AGM and alleged that it was authored by Mr. Clark. Mr. Clark denies having written the letter, stating that he did not know about Mr. Kung prior to the meeting.

Mr. Clark’s Letter

[14] On January 2, 2017, the Board received a six-page letter from Mr. Clark outlining a number of concerns he had regarding the management of EKI (“Mr. Clark’s Letter”). The letter, which was marked “Private and Confidential,” alleged, among other things, that:

• Monies had been seized from EKI’s reserve fund;
• Mr. Clark had been denied access to EKI’s financial statements and records, and that a “fake email” had been pasted on the door of his unit informing him that the financial records were available for examination even though they were not;
• EKI’s directors were improperly hiring relatives to do work on the property; and
• The EKI office clerk had been physically threatening and abusive to him because she had slammed the door in his face. Mr. Clark alleged that the individual had previously injured EKI’s superintendent and that the Board had knowledge of this “systemic physical abuse[.]”

Mr. Kuuskne’s Response

[15] The following day, Mr. Snow sent Mr. Kuuskne an email enclosing the letter and requesting that he respond on the Board’s behalf. Mr. Kuuskne responded to Mr. Clark’s letter by letter dated February 14, 2017 (“Mr. Kuuskne’s Response”). Mr. Kuuskne’s Response stated that:

• The reserve fund was drawn upon to pay for the replacement of roofs at EKI;
• The Board obtained three quotes for the roof replacement, and awarded the contract to the company that provided the most suitable quote;
• He was advised that Mr. Clark had “desired to take possession of the [financial] statements alone and take them to your room”, which was not acceptable because there was only one set of original books;
• The Board had no knowledge of any email being placed on Mr. Clark’s door; and
• The alleged door slamming “is unlikely to have happened”, since the door of the office has a mechanism on it which prevents it from being closed quickly.

[16] In the letter, Mr. Kuuskne further cautioned Mr. Clark as follows:

• “I have also been asked to remind you that unsubstantiated allegations of unlawful behaviour against individuals are actionable under the Libel and Slander Act of Ontario .”
• “I again caution you against using phrases such as ‘questionable unethical conduct’ and ‘systemic physical abuse’ which can easily be construed as libellous.”
• “The Board agrees that this correspondence is best kept confidential as there would be little to be gained by making these unsubstantiated and exaggerated accusations public.”

[17] Mr. Clark states that Mr. Kuuskne’s Response is entirely false. In the Statement of Claim, he alleges that rather than investigate the allegations in Mr. Clark’s Letter, Mr. Kuuskne “chose to slander the Plaintiff with lie[s] in his letter (based totally upon hearsay and signed by himself).”

The May 2017 Letter

[18] On May 25, 2017, the Board advised EKI shareholders that an annual general meeting would be held on June 7, 2017 (the “2017 AGM”).

[19] On or around May 29, 2017, the Board became aware that a letter very similar to Mr. Clark’s Letter had been distributed to shareholders of EKI (the “May 2017 Letter”).

[20] The May 2017 Letter begins:

To Share Holders of Eesti Kodu:

Please be advised that I, a share holder in the Corporation Eesti Kodu, have serious concerns involving the activities of the Eesti Kodu Board of Directors. I requested the Board respond to the following inquiries. The Board did not reply but a lawyer did respond violating my request and counsel that my concerns be [kept] confidential and private.

[21] The May 2017 Letter then details substantially the same complaints contained in Mr. Clark’s Letter. The author of the May 2017 Letter states “I was elected to the Audit Committee…” and describes the request to examine the financial statements. It also quotes Mr. Kuuskne’s Response. The letter concludes with “David Clark, Share holder” but is not signed. Despite the similarities, Mr. Clark denies that he wrote the May 2017 Letter.

The Board Letter

[22] In an effort to clarify matters for the shareholders in advance of the 2017 AGM, on June 1, 2017, Mr. Snow, on the Board’s behalf, sent a letter to the shareholders (the “Board Letter”) stating that:

• Mr. Clark’s Letter was “libelous, inflammatory, misleading and not factually accurate” and as a result, the board sent it to its lawyer for a legal response;
• Mr. Kuuskne responded on February 14, 2017, setting out the Board’s position on each issue that Mr. Clark raised;
• The Board has adequately responded to Mr. Clark’s allegation; and
• Mr. Clark’s Letter and Mr. Kuuskne’s Response would not be discussed at the upcoming AGM.

[23] The Board attached copies of both Mr. Clark’s Letter and Mr. Kuuskne’s Response to its letter.

[24] Mr. Clark claims that the Board Letter defamed him because, in refuting the points that he raised in his Mr. Clark’s Letter, the Board painted him as a liar.

Issues

[25] The only causes of action pleaded in the Statement of Claim are defamation, slander and conspiracy. It is clear from the motion materials that Mr. Clark has a number of outstanding grievances with EKI and its Board. The materials include allegations regarding EKI’s governance and finances, the awarding of a roofing contract, and the conduct of EKI office staff. Some of the matters raised in Mr. Clark’s motion material post-date the Statement of Claim. Many of Mr. Clark’s concerns cannot be addressed in this proceeding, as they are either not pleaded in the Statement of Claim, or are unrelated to the causes of action pleaded.

[26] In addition, other than Mr. Kuuskne’s statement at the 2015 AGM, the Statement of Claim does not specifically plead the precise defamatory statements alleged or the defamatory meaning to be ascribed to them. This would be a sufficient basis to strike a defamation claim: Frank v. Legate, 2015 ONCA 631, at para. 52. However, the Defendants have not sought to strike Mr. Clark’s claims on this basis, and have responded substantively and comprehensively to the Plaintiff’s motion for summary judgment.

[27] Accordingly, the issues to be determined in this motion for summary judgment are as follows:

(i) Is Mr. Clark’s defamation claim against Mr. Kuuskne statute-barred? (ii) Does Mr. Clark’s defamation claim against Mr. Kuuskne raise a genuine issue requiring a trial? (iii) Does Mr. Clark’s defamation claim against EKI and Mr. Snow raise a genuine issue requiring a trial? (iv) Are Mr. Kuuskne’s statements protected by a qualified privilege? (v) Are EKI and Mr. Snow’s statements protected by a qualified privilege? (vi) Is there a genuine issue requiring a trial regarding Mr. Clark’s claim for conspiracy?

Analysis

The Parties’ Positions

[28] Mr. Kuuskne’s position is that there is no viable claim against him in respect of the 2015 AGM, because any claim based on statements made at the meeting are statute-barred by the Limitations Act, 2002. Mr. Kuuskne submits that, in any event, his statements at the 2015 AGM were not defamatory or are protected by qualified privilege. On the statements made in Mr. Kuuskne’s Response, he submits that they were not defamatory and were not published by him, and would be protected by qualified privilege.

[29] Mr. Clark seeks summary judgment on the basis that there is no genuine issue that all of the impugned statements are false and defamatory.

[30] Mr. Snow and EKI oppose Mr. Clark’s motion on the basis that Mr. Kuuskne’s Response and the Board Letter, which the Board distributed, are not defamatory. In the event that they are defamatory, they rely on the defences of justification and qualified privilege.

Principles on a Summary Judgment Motion

[31] Rule 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, states that a court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[32] The Supreme Court of Canada has held that “summary judgment must be interpreted broadly, favouring proportionality and fair access to the affordable, timely and just adjudication of claims.”: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 5. An issue should be resolved on a motion for summary judgment if the motion: (i) affords a process that allows the judge to make the necessary findings of fact, (ii) apply the law to those facts, and (iii) is a proportionate, more expeditious, and less expensive process to achieve a just result than going to trial: Hryniak, at para. 49.

[33] On a motion for summary judgment, the judge must first determine whether there is a genuine issue requiring a trial based only on the evidence before him or her, without using the fact-finding powers. If there appears to be a genuine issue requiring a trial, the judge should then determine if the need for a trial can be avoided by using the powers under rr. 20.04(2.1) and (2.2) of the Rules of Civil Procedure: Hryniak, at para. 66.

[34] On a summary judgment motion, the court is entitled to assume that the record contains all 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, aff’d 2014 ONCA 878, leave to appeal to SCC refused, [2015] S.C.C.A. No. 97. Each party must “put their best foot forward” with respect to the existence or non-existence of material issues to be tried: Sweda, at para. 26.

[35] Since I have determined that all of the claims should be dismissed, this case does not raise the risks associated with motions for partial summary judgment, such as inconsistent findings or duplicative proceedings, that the Court of Appeal has cautioned against. See Butera v. Chown, Cairns LLP, 2017 ONCA 783, at paras. 28-29.

The Applicable Legal Principles

The Tort of Defamation

[36] Defamatory statements are statements that would bring the plaintiff into hatred, ridicule, or contempt, or that tend to lower the plaintiff in the estimation of right-minded or right-thinking members of society: Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3, at para. 62.

[37] In order to establish the tort of defamation, a plaintiff must demonstrate:

(i) that the impugned words were defamatory; (i) that the words in fact referred to the plaintiff; and (ii) 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

[38] If the above elements are established, falsity and damage are presumed. A plaintiff need not show a loss. The tort of defamation is one of strict liability and does not require the plaintiff to show that the defendant intended to do harm, or even that the defendant was careless: Grant, at para. 28; Rutman v. Rabinowitz, 2018 ONCA 80, at paras. 62-63.

The Defence of Qualified Privilege

[39] Even if the plaintiff demonstrates the elements of the tort of defamation, a defendant may not be held liable if they can establish a valid defence. In this case, the Defendants all rely upon the defence of qualified privilege.

[40] Qualified privilege applies if a statement or publication is made in the exercise of a duty, or for the purpose of pursuing or protecting an interest, provided that it is made to a person who has a corresponding interest. The defence attaches to the occasion when the statement was made, as opposed to the statement itself: RTC Engineering Consultants Ltd. v. Ontario (2002), 58 O.R. (3d) 726 (C.A.), at paras. 14-16.

[41] In RTC Engineering, at para. 17, the Court of Appeal recognized that a lawyer may have a qualified privilege in trying to protect the legitimate interests of a client.

[42] Once qualified privilege has been established, the statements complained of are protected, provided that the defendant honestly believes the defamatory statements are true: RTC Engineering, at para. 15.

[43] A claim of qualified privilege may be defeated if: (i) the dominant motive of publishing was malice; or (ii) the statement exceeds the limits of the duty giving rise to the privilege. Malice means any ulterior motive that conflicts with the interest or duty created by the occasion: RTC Engineering, at para. 18. The plaintiff bears the burden of demonstrating malice: RTC Engineering, at para. 23. Qualified privilege may also be defeated when the information communicated in the statement is not reasonably appropriate in the context of the circumstances existing on the occasion when the information was given: RTC Engineering, at para. 18; Botiuk, at para. 80.

Do the Defamation Claims Against Mr. Kuuskne Raise a Genuine Issue Requiring a Trial?

The Statements Made at the 2015 AGM

[44] Under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B, no proceeding shall be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered. A claim is presumed to be discovered on the day on which the act or omission on which the claim is based took place. A defamation claim arises on the date that the defamation was discovered: Shukster v. Young et al., 2012 ONSC 4807, at para. 19.

[45] Mr. Kuuskne’s statements were made at the 2015 AGM on May 28, 2015. The Statement of Claim was issued more than two years later, on August 8, 2017. There is no discoverability issue, and none was raised by the Plaintiff. Mr. Clark acknowledges that he was aware of Mr. Kuuskne’s comments on the day there were made. He was present at the AGM and heard the statements. Mr. Clark’s claim for defamation based on Mr. Kuuskne’s statements at the 2015 AGM is statute-barred and must be dismissed.

[46] Since I have found that the defamation claim as it relates to statements made at the 2015 AGM is statute-barred, it is not necessary to determine whether the statements were defamatory. I would nonetheless find that the Mr. Kuuskne’s statements at the 2015 AGM were not defamatory. Mr. Kuuskne did not make a false statement about the Plaintiff that would discredit him. While Mr. Clark alleges that Mr. Kuuskne said he should be sued for libel, Mr. Kuuskne’s affidavit evidence is that he cautioned generally that participants should be careful not to make baseless allegations, which could be construed as libellous. The statement does not refer to Mr. Clark specifically and does not state that Mr. Clark committed libel. Mr. Kuuskne was not cross-examined on his affidavit.

The Statements Made in Mr. Kuuskne’s Response

[47] As noted above, in order to establish a claim for defamation against Mr. Kuuskne, Mr. Clark would have to show that the statements were defamatory, referred to him, and were communicated to at least one person other than him. Reading the Statement of Claim generously, and based on Mr. Clark’s submissions at the hearing, his main complaint about Mr. Kuuskne’s Response is that by refuting his allegations and characterizing them as unsubstantiated, Mr. Kuuskne was in effect calling him a liar.

[48] The defamation claim against Mr. Kuuskne raises no genuine issue requiring a trial because the statements were not defamatory and were not communicated to anyone other than the Plaintiff. It was the Board, and not Mr. Kuuskne, who distributed Mr. Kuuskne’s Response. Until it was distributed by the Board in June 2017, Mr. Kuuskne’s Response was sent only to Mr. Clark.

[49] Moreover, Mr. Kuuskne’s Response systematically responds to Mr. Clark’s Letter, and refutes Mr. Clark’s statements with supporting facts. Mr. Kuuskne was entitled to disagree with Mr. Clark, to defend the Board’s actions, and to put forward the facts that supported them. The statements that Mr. Kuuskne made in doing so are not defamatory in nature. For example, regarding the alleged door slamming, Mr. Kuuskne’s Response stated that the door of the office has a mechanism that prevents it from slamming. In argument, Mr. Clark relied on this statement to argue that Mr. Kuuskne accused him of lying, which would be defamatory. By stating that the door cannot be slammed, however, Mr. Kuuskne simply stated a fact. The Defendants included in their evidence a photograph of the door with a mechanism that shows that this statement is more likely to be correct. Even if it were incorrect, stating that the door has a mechanism that prevents it from slamming would not be defamatory. It is not the kind of statement that would dishonour someone or bring them into ridicule or contempt. Disputing someone’s account of an event does not constitute defamation. Individuals must be able to disagree or dispute an account of an event without the fear of facing a defamation claim.

[50] While some of Mr. Clark’s allegations relate to statements of fact that could be proven or disproven, others relate to a perception or opinion. For example, Mr. Clark believes that the roofing contractor hired by the Board did substandard work and overcharged the Board for the work done. This does not mean that when Mr. Kuuskne disputed Mr. Clark’s view and recounted the process of selecting a contractor that he defamed Mr. Clark. The Plaintiff and Defendants may not agree about the quality of the work or whether the roof contractor provided the most suitable bid because they are matters of opinion. Disagreeing with or refuting Mr. Clark’s statements do not imply that he is a liar, and do not constitute defamation.

[51] Mr. Kuuskne’s Response also cautioned Mr. Clark against making unsubstantiated allegations. Those statements are not defamatory because they related to Mr. Clark’s allegations, and not to Mr. Clark personally. Mr. Kuuskne’s Response contains no false statement about Mr. Clark that would discredit him or cause him to be regarded with hate, contempt, ridicule, fear, or dislike.

Do the Defamation Claims Against EKI and Mr. Snow Raise a Genuine Issue Requiring a Trial?

The Statements Made in Mr. Kuuskne’s Response

[52] Mr. Clark’s defamation claim against EKI and Mr. Snow is based upon both Mr. Kuuskne’s Response and the Board Letter. Since it was the Board that distributed Mr. Kuuskne’s Response, the element of publication is satisfied.

[53] However, as detailed above, the statements contained in Mr. Kuuskne’s Response were not defamatory. Therefore, there is no genuine issue requiring a trial in respect of Mr. Clark’s claim for defamation against EKI and Mr. Snow based on the statements in Mr. Kuuskne’s Response.

The Statements Made in the Board Letter

[54] As noted above, the Statement of Claim does not set out the defamatory words in the Board Letter or the defamatory meaning that should be ascribed to them. Reading the Statement of Claim generously, Mr. Clark alleges that, like Mr. Kuuskne’s Response, the Board Letter called him a liar and was published to all EKI shareholders.

[55] While Mr. Kuuskne’s Response cautioned Mr. Clark about making unsubstantiated allegations that could be construed as libelous, the Board Letter characterized Mr. Clark’s Letter as “libelous, inflammatory, misleading and not factually accurate…[.]” This additional characterization could be interpreted as impugning Mr. Clark’s honesty or ascribing a motive to Mr. Clark’s Letter that goes beyond making simply inaccurate or unsubstantiated allegations, that is, to mislead or to inflame. The threshold for finding words defamatory is relatively low: Swan v. Durham Condominium Corporation No. 45, 2012 ONSC 4639, at para. 39. While the statement could be interpreted as referring only to the content of Mr. Clark’s Letter and not to Mr. Clark personally, a reasonable person could understand from the statement that the Plaintiff was dishonest or of low moral character.

Are the Statements Made by Mr. Kuuskne Protected by a Qualified Privilege?

The 2015 AGM

[56] Since I have found that the statements made by Mr. Kuuskne at the 2015 AGM were not defamatory, it is not necessary to determine whether they were made on an occasion of qualified privilege. In any event, I would find that the statements are protected by qualified privilege. Mr. Kuuskne attended the 2015 AGM as EKI’s counsel, and responded to Mr. Clark’s allegations about Tonu Kung as EKI’s counsel. The statements were made to protect the legitimate interests of his client, in the course of performing his duties: RTC Engineering at paras. 27, 26.

[57] In this case, there is no evidence that Mr. Kuuskne acted other than out of his duty toward his client, EKI. Mr. Clark has not alleged malice on the part of Mr. Kuuskne and there is no evidence to support that Mr. Kuuskne acted out of malice toward him. In cross-examination, Mr. Clark described Mr. Kuuskne as an “honourable man” and a “lovely human being” who “always helped me in the past[.]” Moreover, the communication was germane and appropriate to the occasion, in that Mr. Kuuskne was addressing Mr. Clark’s allegation regarding the proposed property manager, and he did not employ excessive language in doing so.

Mr. Kuuskne’s Response

[58] Similarly, the statements made in Mr. Kuuskne’s Response were made on an occasion of qualified privilege. Again, Mr. Kuuskne was acting in his capacity as EKI’s lawyer, at the Board’s request. Mr. Kuuskne obtained the information from the Board and responded to each allegation made by Mr. Clark in his letter. There is no evidence that Mr. Kuuskne was motivated other than to act in his client’s interest to clear what were viewed as unfounded allegations. Mr. Clark has not identified any ulterior motive on Mr. Kuuskne’s part. Moreover, since the statements were limited to Mr. Clark’s allegations, they did not exceed the limits of the duty giving rise to the privilege.

[59] Based on the foregoing, the defamation claims against Mr. Kuuskne raise no genuine issue requiring a trial and should be dismissed.

Are the Statements Made by EKI and Mr. Snow Protected by a Qualified Privilege?

[60] Communications between shareholders and a board of directors to share information regarding its business affairs and to protect its business interests will generally be protected by a qualified privilege: Raymond Brown, Brown on Defamation, 2d Ed., Vol. 5 (Toronto: Thomson Reuters Canada, 1999), at 13-401-13-406. A legitimate report by the company to a shareholder on matters of interest to the shareholder as shareholder will be covered by qualified privilege: Bird v. Ontario, 2014 ONSC 2457, at para. 28. Moreover, a “communication between shareholders and a board of directors for the purposes of raising issues of incompetence or potential dishonesty on behalf of company management” has been recognized as subject to qualified privilege: McQuaig v. Harbour Financial Inc., 2009 ABQB 678, at para. 86.

[61] The statements in the Board Letter are protected by qualified privilege as statements made in the exercise of a duty, or for the purpose of pursuing or protecting some interest to a person who has some corresponding interest. As noted above, before the May 2017 AGM, a letter making allegations similar to those made by Mr. Clark was distributed to the shareholders. While Mr. Clark denies authoring the May 2017 Letter, it was written in his name and contained information of which only he and the Board had knowledge at the time, such as the contents of Mr. Kuuskne’s Response. The Board believed that Mr. Clark wrote and distributed the May 2017 Letter. The Board Letter was a communication to inform EKI shareholders that it had responded to the serious allegations of financial impropriety that were being made. I find that qualified privilege applies.

[62] Mr. Clark has adduced no evidence of malice that would defeat EKI and Mr. Snow’s claim of qualified privilege. Mr. Snow’s evidence is that the Board distributed the Board Letter, attaching Mr. Clark’s Letter and Mr. Kuuskne’s Response, to EKI shareholders because it felt it necessary to clear up the allegations of mismanagement and impropriety made in the May 2017 Letter before the AGM. Mr. Snow’s evidence is unchallenged, as he was not cross-examined on his affidavit.

[63] In addition, the Board Letter does not exceed the limits of the duty or interest giving rise to the qualified privilege. The characterization of Mr. Clark’s Letter was “libellous, misleading, inflammatory and not factually accurate” was reasonably appropriate in the context of the circumstances existing on the occasion when the information was given. For example, Mr. Clark admitted on cross-examination that he may have been mistaken when he said that the reserve fund was “gone.” To allege that the Board had engaged in unlawful conduct was misleading, inflammatory and not factually accurate. Describing Mr. Clark’s Letter as libellous might not, strictly speaking, be accurate, since Mr. Clark’s Letter could also be protected by qualified privilege. Nonetheless, the Board was not required to report facts only without additional comment: Merit Consultants International Ltd. v. Chandler, 2014 BCCA 121, at paras. 29-32. The Board Letter did not exceed the scope of what was appropriate in the circumstances.

[64] Mr. Clark submits that the Board distributed his letter and Mr. Kuuskne’s Response despite their agreement to keep the correspondence confidential. It does not appear that the Board considered this before distributing the letters without Mr. Clark’s consent. However, the Board reasonably believed that Mr. Clark had authored the May 2017 Letter, in which case the confidentiality was already either breached or waived. Even if there was a breach of confidentiality, this does not demonstrate malice or that the limits of the duty giving rise to qualified privilege were exceeded.

[65] Given that the Board Letter is protected by qualified privilege, and Mr. Clark has failed to adduce any evidence that would defeat the privilege, I find that Mr. Clark’s defamation claim against EKI and Mr. Snow raises no genuine issue requiring a trial and should be dismissed.

Is There a Genuine Issue Requiring a Trial Regarding the Plaintiff’s Claim for Conspiracy?

[66] In order to demonstrate the tort of conspiracy, a plaintiff must show that: (i) the predominant purpose of the defendants’ conduct was to cause injury to the plaintiff; or (ii) where the defendants’ conduct is unlawful and directed toward the plaintiff, the defendants ought to know that injury to the plaintiff is likely and in fact does result: Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452, at paras. 33-34. The Plaintiff must prove actual damage for the tort to be made out: Ibid.

[67] In order to prove a claim based on unlawful act conspiracy, the plaintiff must demonstrate the following:

(i) The defendants acted in combination, by agreement or by common design; (ii) Their conduct is unlawful; (iii) Their conduct is directed toward the plaintiff; (iv) The defendants ought to know that, in the circumstances, injury to the plaintiff is likely to result; and (v) Their conduct cause injury to the plaintiff.

Agribrands Purina Canada Inc. v. Kasamekas, 2011 ONCA 460, at paras. 24-26.

[68] It is unclear which type of conspiracy Mr. Clark pleads. In the Statement of Claim, Mr. Clark alleges that the defendants “tricked him into silence” with a false promise of confidentiality, and then distributed his letter and Mr. Kuuskne’s Response. Mr. Clark has not specifically pleaded who the parties to the conspiracy were, that their predominant purpose was to cause him harm, or that harm has actually resulted from their coordinated action. Nor has he pleaded that their conduct was unlawful and directed at him.

[69] Reading the Statement of Claim generously, it is not possible to discern the conspiracy that Mr. Clark alleges. When asked at the hearing, Mr. Clark argued that there was a conspiracy to defraud the shareholders of EKI, again raising the issue of the roofing contract. Mr. Clark alleged a conspiracy with the EKI office clerk, Tiina Tamm, which was not pleaded in the Statement of Claim. Mr. Clark also made certain allegations that post-date the Statement of Claim, such as the election of directors in May 2018, and EKI staff advising him that his cheques did not clear when they had.

[70] The evidence does not support a conspiracy to defame or to cause injury to Mr. Clark. The evidence shows that Mr. Kuuskne acted in his capacity as EKI’s counsel, and was not involved in the distribution of any defamatory communications. There is no evidence that the Defendants acted in combination, or of any unlawful conduct directed toward the Plaintiff. There is no evidence of resulting injury, and Mr. Clark has produced no evidence to show that any of the treatment of which he complains was caused by the alleged conspiracy.

[71] Accordingly, Mr. Clark’s conspiracy claim raises no genuine issue requiring a trial and is dismissed.

Conclusion

[72] Based on the issues and the record before me, on Mr. Kuuskne’s motion, I have determined that the motion affords a process that allows the court to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious, and less expensive process to achieve a just result than going to trial. Mr. Kuuskne’s motion for summary judgment is granted.

[73] Mr. Clark’s motion for summary judgment on all the claims is dismissed. As I have found no genuine issue requiring a trial on the defamation claims or the conspiracy claims against EKI and Mr. Snow, Mr. Clark’s claims are dismissed.

Costs

[74] As the Defendants were entirely successful in having the claims dismissed, they are entitled to their costs. Counsel for Mr. Kuuskne submitted a costs outline for a total of $17,781.28. Counsel for EKI and Mr. Snow submitted a costs outline for a total of $17,169.79. All amounts are on a partial indemnity basis, and include disbursements and HST. By way of comparison, Mr. Clark indicated that he would be requesting $22,000.00 in costs if he was successful.

[75] Pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43, s. 131(1), the court has broad discretion when determining the issue of costs. The overall objective of fixing costs is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the circumstances, rather than an amount fixed by actual costs incurred by the successful litigant: Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 291 (Ont. C.A.), at para. 26. Rule 57.01(1) of the Rules of Civil Procedure sets out the factors to be considered by the court when determining the costs issue.

[76] In Crowe v. The Manulife Financial Corporation, 2010 ONSC 3302, at para. 13, D.M. Brown J. (as he then was) noted that fixing costs against a self-represented litigant “is always a challenging task.” His Honour further stated, at para. 15:

Given the lack of homogeneity amongst self-represented litigants, it is necessary for the courts, in each case involving a self-represented party, to pay close attention to the factors enumerated in Rule 57.01(1) of the Rules of Civil Procedure, particularly those dealing with the reasonable expectations of the unsuccessful party, the conduct of the party, and whether any steps were improper, vexatious or unnecessary: Rule 57.01(1)(0.b), (e) and (f). Fixing costs in such circumstances will be an individualized process, focusing on the characteristics and conduct of the particular self-represented litigant, not measured against some abstract notion of the “typical self-represented litigant”.

[77] I have considered the applicable factors, as well as the proportionality principle in r. 1.04(1.1) of the Rules of Civil Procedure, while keeping in mind that the court should seek to balance the indemnity principle with the fundamental objective of access to justice. Mr. Clark raised a broad range of allegations, many of which were beyond the scope of his claims. While it was likely apparent from the outset that the claims would not involve a significant sum, the motions nonetheless involved a significant amount of work for all parties. The Defendants did not take any unnecessary steps and, as indicated by Mr. Clark’s comments, conducted the litigation in a courteous and respectful manner. Mr. Clark’s claims were not appropriate for summary judgment, but the motions achieved an early resolution of the proceeding. Mr. Clark is over 82 years old and does not have significant financial resources. While his claims were dismissed, I do not find that the action was improper or vexatious. Rather, as a self-represented litigant, Mr. Clark did not understand that his grievances with the Defendants would not form the basis for causes of action in defamation or conspiracy, which are complex areas of the law.

[78] Based on the foregoing considerations, I fix costs of the motion on a partial indemnity basis at $9,000.00 to Mr. Kuuskne and $8,000.00 to EKI and Mr. Snow, including disbursements and HST.

Nishikawa J.

Released: June 14, 2019