Court File and Parties

Court File No.: CV-20-83950 Date: 2024-06-28 Ontario Superior Court of Justice

Between: Gabriel J. Martel, Plaintiff (Responding Party) And: City of Ottawa and Jeff DeLoyde, Defendants (Moving Parties)

Counsel: Gabriel J. Martel, Self-represented Albert Brunet, for the defendants

Heard: October 17, 2023 (By videoconference)

Reasons for Decision

Corthorn J.

Introduction

[1] In response to the plaintiff’s claims in defamation, the defendants rely on the defence of qualified privilege. The impugned expressions were made by the defendants in their communication with a contractor retained by the City to carry out work on a large construction project. The primary issue on the defendants’ motion for summary judgment is whether the context within which the impugned expressions were made falls within one or more occasions of privilege.

Background

[2] The City of Ottawa enters into a contract with ASCO Construction Ltd. (“ASCO”) for a multi-year construction project at the Britannia Water Treatment Plant (“the Plant”). The work to be carried out involves retrofitting plate settler units in two of the settling basins at the Plant (“the Project”). The work is to be done in 2019 and 2020.

[3] Plate settler units are used to settle out suspended solids in the treatment of drinking water. ASCO is required to remove and dispose of the existing plate settler systems and install a new, pre-selected plate settler package system provided by an American supplier.

[4] At the same time, the City enters into a contract with Jacobs Engineering (“Jacobs”), with the latter to act as the City’s designer, contract administrator, and construction engineer on the Project.

[5] The individual defendant (“DeLoyde”), a City of Ottawa employee, is the Project Manager on the Project.

[6] The individuals at ASCO with whom DeLoyde deals on the Project are Jason Assaly and Marc André Guindon. Those individuals are the Vice-president and Project Manager, respectively, at ASCO, responsible for the Project.

[7] At the start of the Project, the plaintiff (“Martel”) is an ASCO employee; he is ASCO’s Senior Construction Superintendent on the Project.

[8] Pursuant to the terms of the contract between the City and ASCO, the City’s evaluation of ASCO’s performance is carried out using the City’s Vendor Performance Management System (“VPM”). The terms of the contract require that ASCO “participate in VPM discussions/meetings with the [City] as required.”

[9] Because the work on the Project spans multiple years, the City is contractually obligated to prepare an interim evaluation of ASCO’s performance. DeLoyde prepares a draft interim VPM report in January 2020 (“the draft report)”. When preparing the draft report, DeLoyde seeks input from two individuals: Christian Gagné of Jacobs and Tara Blasioli of the City. At the time, Blasioli is DeLoyde’s supervisor. In addition, she holds the position of Program Manager, Design & Construction – Municipal.

[10] By email dated January 28, 2020, DeLoyde sends a copy of the draft report to both Assaly and Guindon. The email is not addressed or sent to anyone else. Martel is not a recipient of, nor was he provided with, a copy of either the email or the draft report.

[11] ASCO’s overall score on the draft report is below 50 percent. That score is indicative of the City’s evaluation of ASCO’s performance as unsatisfactory. The criticisms detailed in the draft report are wide-ranging; they reflect on Martel’s role as ASCO’s Senior Construction Superintendent on the Project.

[12] In his cover email, DeLoyde reminds ASCO that the only score relevant to future bids by ASCO for City work is the final VPM score. DeLoyde explicitly states, “the interim score is not used for bidding purposes”.

[13] ASCO is entitled to provide responding comments to the draft report, but makes a deliberate choice not to do so. The reasons for ASCO’s choice in that regard are not relevant to the outcome of the motion for summary judgment.

[14] Ultimately, DeLoyde makes revisions to the draft report, and shares the final version of the document (“the Report”) with ASCO. DeLoyde does so utilizing a private software program (“the VPM Software”). The VPM Software is part of the MERX system, a system upon which the City relies for two types of service.

[15] The first type of service relates to online bidding in the procurement context. This service is not relevant to the outcome of the motion for summary judgment.

[16] The second type of service is an online software-as-a-service system, used only by the City. The VPM Software allows the City to complete and share evaluations with individual vendors. Confidentiality is a critical component of the VPM Software. The only external party to the City that has access to information in the VPM Software is the individual vendor – in this case, ASCO.

[17] At the end of March 2020, the City seeks to address issues and concerns which, from its perspective, arose during the start-up of work in 2020. To that end, Blasioli sends an email to two members of ASCO’s leadership. In her email, Blasioli raises issues with Martel’s performance. After listing specific concerns, Blasioli expresses a more general concern about a lack of leadership, direction, and oversight at the Project site.

[18] In early April 2020, the City requests, as it had on more than one prior occasion, that ASCO remove Martel from his existing role on the Project. The City requests that another individual be assigned to Martel’s existing role. The City does not request that ASCO remove Martel from the Project entirely or that ASCO terminate Martel’s employment.

[19] The City’s request for a replacement to be assigned to Martel’s role is made (a) during a telephone meeting on April 2, 2020, in which Martel participates, and (b) in writing in a Notice of Non-Performance dated April 9, 2020 (“NNP”). The NNP is addressed to Assaly. In the NNP, DeLoyde sets out seven issues as evidence of unsatisfactory performance. DeLoyde asserts that the list of issues “speaks to the lack of leadership and communication from [Martel], and a lack of understanding of the City’s policies and procedures as they relate to [the Project] contract.”

[20] The City is subsequently informed by ASCO that it terminated Martel’s employment effective April 14, 2020.

The Pleadings

a) The Statement of Claim

[21] Martel commenced this action in July 2020. In the prayer for relief, at para. 1 of the statement of claim, Martel claims “$200,000.00 in damages from the Defendants for Libel and Slander.” In the concluding paragraph of his pleading (para. 53), Martel alleges that he is entitled to damages in that amount because of the damage “to his reputation, career and future income as a direct result of the libelous publication by the Defendants, plus costs and interest.”

[22] At paras. 10 and 11 of his pleading, Martel refers specifically to two documents. At para. 10, Martel alleges that DeLoyde was “the author of record for the Interim Vendor Performance Management (VPM) report dated January 27th, 2020” (i.e., the Report as defined in para. 14, above). At para. 11, Martel alleges that DeLoyde “was the author of record of a letter dated April 9th, 2020, demanding the immediate removal of [Martel] from the site where he was employed” (i.e., the NNP as defined in para. 19, above).

[23] At paras. 13-21 of his pleading, Martel addresses the Project. He therein alleges that the “[P]roject was plagued from the onset with City initiated delays and errors by its consultants.” In the concluding paragraph of this section of his pleading, Martel alleges that “[i]n spite of all of the interference by the Defendants and more than a month and a half of delays initiated solely by the Defendants, the Plaintiff was still able to successfully complete phase 1 within the schedule[d] time frame required by the Defendants.”

[24] The Report is addressed at paras. 22-28 of Martel’s pleading. Those paragraphs include the following allegations regarding the substantive content of the Report:

• the Report is a “vicious and vindictive … personal attack on [Martel’s] integrity, competence and dedication to his work” (para. 22);
• the Report is “crafted with lies and misrepresentations of the events” (para. 23); and
• the portion of the Report addressing site supervision is “riddled with false and slanderous comments” (para. 26).

[25] Martel concludes this section of his pleading by alleging that “it’s an undisputed fact that the construction 1st phase was completed on time and with a high degree of quality” (para. 27).

[26] Martel addresses the NNP in paras. 29-52 of his pleading. In this section of the statement of claim, Martel,

• refers to the Report as “character assassination” (para. 29);
• alleges that the City and DeLoyde “conspired to have [Martel] removed from [the] site and effectively destroyed his career that represented 50 years of dedication” (para. 29);
• alleges that the effect of the NNP was to blacklist Martel “from any company doing business with the Defendants, the City of Ottawa and [destroy Martel’s] career and reputation” (para. 30);
• alleges that the NNP was “specifically crafted to give the impression that the reasons for removal were of a very serious nature” (para. 31); and
• the City’s site representative “insisted on interfering with [Martel’s] control of site safety” without the requisite experience and without having the responsibility for that function (para. 49).

[27] Last, at paras. 51-52, Martel alleges that a complaint he made to the Ministry of Labour Health and Safety Inspector contributed to the defendants’ decision to issue the NNP. The City issued the NNP three days after Martel made the complaint.

b) The Statement of Defence

[28] In their September 2020 statement of defence, the defendants deny the vast majority of the substantive allegations in the statement of claim. In their pleading, the defendants raise the following defences to Martel’s defamation claim:

• The action against DeLoyde is a nullity because he was employed by the City as a senior engineer and was acting in the course of his employment: s. 448 of the Municipal Act, 2001, S.O. 2001, c. 25.
• The allegations of libel do not constitute a “broadcast” and were not published in a “newspaper” (as both terms are defined in the Libel and Slander Act, R.S.O. 1990, c. L.12).
• The action was commenced more than three months after the date on which the alleged libel is said to have been committed. The action is therefore out of time.
• The City is not in any way responsible for ASCO’s decision to terminate Martel’s employment.
• The City’s communication with ASCO was in accordance with the terms of the contract, and included accurate, appropriate, and supporting information.

[29] The final bullet point listed above reflects the defendants’ reliance on the defence of “qualified privilege”.

The Defendants’ Motions

a) Rule 21 Motion

[30] In October 2021, the defendants brought a motion pursuant to Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The defendants asked the court to dismiss Martel’s action on the ground that the statement of claim does not disclose a reasonable cause of action.

[31] With the motion having been brought pursuant to r. 21.01(1)(b), neither party was entitled to file evidence on the motion. In the absence of any evidence, Parfett J. concludes that, “at this particular time, it is not possible to determine whether the defamation action on its face is of questionable merit, and that the defence of qualified privilege will be found to be completely dispositive of the claim”: Martel v. City of Ottawa et al., 2021 ONSC 6790, at para. 23.

[32] Before dismissing the motion, Parfett J. expresses the following view. If ASCO were the only recipient of the Report and the NNP, then (a) the provision of those documents would fall within the scope of the City’s duty, pursuant to the contract between the City and ASCO, to advise ASCO of problems noted, and (b) ASCO had an interest in receiving the information: at paras. 20-21. In expressing that view, Parfett J. addresses the potential for the defence of qualified privilege to be completely dispositive of Martel’s claims in defamation.

b) The Summary Judgment Motion

[33] The defendants submit that the requisite evidence, which was lacking before Parfett J., is now before the court. The defendants ask the court to conclude that the defence of qualified privilege applies and is entirely dispositive of Martel’s claims.

[34] In response, Martel submits that the defendants’ criticism of his work is the end result of a vendetta against Martel by representatives of Jacobs. Martel submits that the Jacobs personnel on site were not competent and did not appreciate Martel pointing out their incompetence throughout the first phase of the Project. Martel asks the court to conclude that the Jacobs personnel felt threatened by Martel and took steps to have him removed from the Project. Martel submits that the Report was prepared by Jacobs’ employee, Christian Gagné, and not by DeLoyde.

[35] Regarding confidentiality of the VPM Software, Martel submits that (a) Jacobs had access to the software (i.e., as an external party), and (b) any member of the public could access the Report through an access to information request. Last, Martel submits that any City employee could access the Report on the VPM Software.

[36] In response to the defendants’ reliance on the defence of qualified privilege, Martel submits that the defendants acted out of malice and, as a result, they are not entitled to rely on the defence of qualified privilege. As evidence of the defendants’ malice, Martel asks the court to consider that, in the Report, the defendants do not identify what Martel was supposed to do in his role on the Project and failed to do. Martel relies on his assertion that, when he was part of the ASCO team on-site, the work was both done with quality and completed on time.

[37] Martel asks the court to dismiss the motion for summary judgment. Martel submits that (a) he should be allowed to bring a motion for the production of additional documents from the City, and (b) the action should proceed to a trial so that he may establish the existence of Jacobs’ vendetta against him.

The Issues

[38] The issues raised on the defendants’ motion for summary judgment are as follows:

1. Is the defence of qualified privilege fully dispositive of Martel’s claims against the defendants in defamation?
2. If the answer to Issue No. 1 is “yes”, is Martel able to overcome the defence of qualified privilege by establishing that the defendants were motivated by malice?

[39] Before turning to these two issues, I will review the law regarding summary judgment in defamation actions and address an evidentiary issue raised by Martel.

Summary Judgment

[40] “[S]ummary judgment is available in defamation actions but not in all cases”: Skafco Limited v. Abdalla, 2020 ONSC 136, 62 C.C.L.T. (4th) 14, at para. 45. As MacLeod J. explains at para. 45 of Skafco Limited, determining whether a trial is necessary in a defamation case requires the motions judge to consider each of the following three factors:

• the evidence available to the motions judge;
• the matters that are in issue; and
• the respective positions of the parties having regard to the particularities of the procedure and law applicable in defamation cases.

[41] In addition, the court must consider the principles established by the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87. These principles apply equally to defamation actions as they do to any other type of civil action: Vivo Canadian Inc. v. Geo TV, 2021 ONSC 3402, at para. 11.

[42] Summary judgment shall be granted if there is no genuine issue requiring a trial, when the court is able to reach “a fair and just determination” on the record before the court on the motion for summary judgment: Rules of Civil Procedure, r. 20.04(2)(a); Hryniak, at para. 49.

[43] I turn next to the evidentiary issue Martel raises in his factum.

The Evidentiary Issue

[44] In paras. 44, 48-51 of his factum, Martel (a) alleges that the Report was prepared by an employee of Jacobs (i.e., not by DeLoyde), (b) asserts that the City refuses to produce submissions made by Jacobs for preparation of the Report, and (c) submits that the City’s reluctance to produce the documents, as he requested, has “severely hindered the possibility of a fair outcome without a full and complete trial”. In his responding affidavit, Martel does not address the documentary discovery issue at all.

[45] Regardless of the lack of evidence to support Martel’s position regarding the documentary discovery issue, Martel is not entitled to rely on a production issue at this stage of his response to the motion for summary judgment.

[46] Litigants are required to put their best foot forward on a motion for summary judgment. That requirement applies to both moving parties and responding parties.

[47] The requirement to put one’s best foot forward includes taking steps to compel production prior to the return of a summary judgment motion: Castle Building Centres Group Ltd. v. The Rehill Company Limited, 2023 ONCA 237, at para. 34, leave to appeal refused, [2023] S.C.C.A. No. 224. It was incumbent upon Martel to address documentary discovery issues by bringing a motion for an order compelling the City to produce the subject documents. Martel was required to take the steps necessary to have such a motion determined prior to the return of the summary judgment motion.

[48] The evidentiary issue Martel raises is not an impediment to the court determining the motion for summary judgment.

Issue No. 1 – The Defence of Qualified Privilege

[49] I find that the defence of qualified privilege does not raise a genuine issue requiring a trial. I am satisfied that it is possible, on this motion, to (1) make the necessary findings of fact, and (2) apply the law to the facts. I am also satisfied that determining, on this motion, the merits of the defence of qualified privilege is a proportionate method by which to resolve the dispute between the parties. Last, I am satisfied that this motion is a more expeditious and cost-effective method by which to resolve the dispute between the parties than would be a trial.

[50] On the substantive issue, I find that the defendants satisfy the criteria for and are therefore entitled to rely on the defence of qualified privilege.

a) The Law

Defamation

[51] In Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, the Supreme Court of Canada reviews the law of defamation and the defence of qualified privilege. The court does so in the context of determining whether the defence of “responsible communication on matters of public interest” is a defence distinct from the defence of qualified privilege.

[52] At para. 28, McLachlin C.J. sets out the three things a plaintiff in a defamation action is required to prove to obtain judgment and damages: “(1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff.”

[53] If the plaintiff establishes the three elements of the tort of defamation, then “falsity and damage are presumed”: at para. 28. The tort of defamation is one of strict liability. Therefore, “[t]he plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless:” at para. 28.

[54] At para. 29, McLachlin C.J. explains that, if the plaintiff proves the three elements of the tort of defamation, “the onus then shifts to the defendant to advance a defence in order to escape liability.”

[55] Qualified privilege is one of several defences to a claim in defamation. The defendants in this action rely on the defence of qualified privilege and on other defences to a claim in defamation (i.e., justification or truth). For the purpose of the motion for summary judgment, the defendants ask the court to consider only the defence of qualified privilege – as potentially a complete defence to Martel’s claims in defamation.

Qualified Privilege

[56] In Moseley-Williams v. Hansler Industries Ltd., 2008 ONSC 57457, at para. 87, D.M. Brown J. (as he then was) summarizes the defence of qualified privilege as follows:

Qualified privilege attaches to the occasion upon which a communication is made. An occasion is privileged where the person who makes a communication has an interest or a duty, legal or social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it: Botiuk v. Toronto Free Press Publications Ltd., [1995] 3 S.C.R. 3, 1995 SCC 60, at para. 78.

[57] Absolute privilege, although not relevant to the motion before this court, is another complete defence to a claim in defamation. At para. 30 of Grant, McLachlin C.J. explains that “the defences of absolute and qualified privilege reflect the fact that ‘common convenience and welfare of society’ sometimes requires untrammelled communications: Toogood v. Spyring (1834), 1 C.M. & R. 181, 149 E.R. 1044, at p. 1050”.

[58] To determine whether the defence of qualified privilege is established, the court must precisely characterize “the occasion” on which the expression or communication is made: Bent v. Platnick, 2020 SCC 23, [2020] 2 S.C.R. 645, at para. 122. The occasion, once characterized, “becomes impressed with the limited, qualified privilege, which in turn becomes the benchmark against which to measure whether the occasion was exceeded or abused”: at para. 122.

[59] An occasion may be characterized as occurring in one or multiple ways. The defendants submit that the occasion on which the communications in the Report or the NNP were made may be characterized in several ways, each of which falls within a category of qualified privilege. The suggested characterizations of the occasion are discussed in the Analysis section, which follows below.

[60] If the defendants establish that they are entitled to rely on the defence of qualified privilege, then the burden shifts to Martel to address Issue No. 2: Is Martel able to overcome the defence of qualified privilege by establishing that the defendants were motivated by malice?

b) Analysis

The Sole Factual Issue

[61] Before characterizing the occasion on which the expressions in the Report or the NNP were made, I will resolve the sole factual issue that arises from the record. That issue is whether a VPM evaluation, such as the Report, published using the VPM Software, could be viewed only by the vendor being evaluated (in this case, ASCO), or if others (such as other municipalities or other companies) could also view the evaluation.

[62] Martel asserts that the Report did not remain confidential because ASCO was not the only person (municipal, corporate, or individual) who had access to the Report on the VPM Software. For example, Martel raises a concern that the 18,000 employees of the City have access to the Report.

[63] The defendants address this factual issue in at least one of the affidavits filed in support of the motion. Martel did not cross-examine the deponents of the affidavits upon which the defendants rely in support of the motion.

[64] Martel does not address this factual issue in his responding affidavit. Martel was, however, questioned on this issue when examined for discovery by the defendants’ counsel. Specifically, Martel was asked whether he has any evidence that the Report was shared widely. In response, Martel provided no such evidence.

[65] I find that Martel’s assertions on this factual issue stem from his lack of knowledge and understanding of the VPM program, specifically the VPM Software.

[66] I am satisfied that the evidentiary record allows me to make the necessary findings of fact regarding the extent to which the Report was available on the VPM Software. I find that the Report was available exclusively to ASCO on the VPM Software.

[67] Regarding the NNP, Martel does not dispute that ASCO was the sole recipient of that document. Martel asserts that Jacobs was involved in the preparation of the document. I consider that submission in a later section of these reasons.

[68] In summary, the Report was sent and available only to ASCO on the VPM Software and the NNP was sent only to ASCO. Both documents set out the City’s concerns regarding the contract performance by ASCO. In both documents, the City addresses the performance of ASCO employees – such as Martel – responsible for the work on the Project.

[69] I turn, then, to the first step in determining whether the defence of qualified privilege is potentially a complete defence to the claims in defamation – characterization of the occasion on which the expression or communication is made.

Characterization of the Occasion on Which the Communication was Made

[70] The defendants submit that there are five bases upon which the court may find that the impugned expressions were made on an occasion of privilege. I agree with the defendants that the first four of the five suggested bases apply to the expressions in one or both of the Report and the NNP.

[71] Regarding the fifth suggested basis (“societal benefit”), the case authorities provided and submissions made regarding those authorities are not sufficient to permit me to determine whether the impugned expressions fall within that fifth basis or category of occasion of privilege.

Contractual Context

[72] The common law recognizes that qualified privilege can arise in a contractual context, where one party may be under an obligation to furnish information to another: Raymond E. Brown, Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States, 2nd ed, vol 5 (Toronto: Thomson Reuters, 2021) (loose-leaf updated 2021, release 4) at §13:12 (“Brown”).

[73] For the following reasons, I find that the Report and the NNP fall within this category of occasion:

• Pursuant to the contract specifications, the City and ASCO agreed to participate in the VPM program.
• The agreement in that regard required that the City and ASCO engage in frequent communication and timely sharing of concerns.
• The preparation of the Report and the sharing of it on the VPM Software were part of the agreement regarding the frequency and method of communication between the City and ASCO.
• It was in ASCO’s interest to receive such communication from the City, so that ASCO could respond to concerns in a timely manner and have notice of potential claims against it. The same was true in reverse, but the City’s interest in that regard is not relevant to the defence of qualified privilege.

Business to Business Communication

[74] The existence of a commercial and business relationship, such as that between the City and ASCO, can give rise to a social duty to make a communication. For example, “a [municipality] receiving services from [a] company may have a duty to inform the [company] of any actions by its employees which affect that business relationship”: Brown, at §13:21. Business to business communications are recognized as a privileged occasion: Bird v. Ontario, 2014 ONSC 2457, at para. 28, aff’d 2016 ONSC 4122 (Div. Ct.).

[75] The fact that one of the entities in the matter before the court is a municipality (i.e., not a corporate or other form of business entity), does not detract from the existence of a social duty to make communications such as those expressed in the Report or in the NNP.

The Construction Context

[76] As stated in Brown, at §13:95, citing LEC Engineering Ltd. v. Sam & Angel Holdings Ltd. (1999), 44 C.L.R. (2d) 313 (B.C. S.C.), the importance of privileged communication in the context of construction projects is recognized at common law:

Communications between various persons having an interest in a construction project are generally privileged […] Where representatives of the contractor and owner of a building under construction meet in the presence of the consultant under the contract, the owner is privileged to express its views on why additional payments should not be made on the work that was performed.

[77] The City, ASCO, and Jacobs (as the City’s representative) engaged in frequent communication regarding the advancement of the Project and issues that arose. The City was entitled to express its views on whether the contractual performance was being achieved. That entitlement extended to expressing views regarding key ASCO employees, such as Martel.

Complaints to ASCO, as Martel’s Employer

[78] Complaints made to a plaintiff’s employer are a recognized occasion of privilege: Tibbles v. Gloster, 2019 ONSC 2167. To the extent that the expressions made in the Report or in the NNP are about Martel, the expressions were made only to ASCO and were restricted to Martel’s performance as Senior Construction Superintendent on the Project. The expressions about Martel’s performance fall within this category of occasion of privilege.

Societal Benefit

[79] The operation of the Plant in and of itself involves health and safety issues for the citizens of Ottawa. Some of the expressions in the Report or in the NNP addressed health and safety issues for ASCO employees and others working on the Project.

[80] The defendants submit that there is an obvious social benefit of encouraging and protecting communications of this kind, including by recognizing them as being made on an occasion of privilege. The defendants submit that expressions of this kind are analogous to a citizen reporting a crime, making a communication to the police, and complaints or statements to regulatory bodies or public authorities.

[81] I am unable to determine the merits of the defendants’ submissions regarding this fifth category of occasion of privilege.

[82] In support of their submissions on societal benefit, the defendants cite the decisions in Geil v. Beselaere, 2022 ONSC 4162, and Cusson v. Quan, 2007 ONCA 771, rev’d on other grounds, 2009 SCC 62, [2009] 3 S.C.R. 712. Those decisions provide examples of expressions of types other than the expressions made by the defendants in the matter before this court.

[83] For example, at para. 39 of Cusson, the Court of Appeal for Ontario states that complaints to the police, regulatory bodies, or public authorities,

are classic examples of qualified privilege. The rationale for qualified privilege is that on such occasions, “no matter how harsh, hasty, untrue, or libellous the publication . . . the amount of public inconvenience from the restriction of freedom of speech or writing would far outbalance that arising from the infliction of private injury” (Huntley v. Ward (1859), 6 C.B. (N.S.) 514, at p. 517).

[84] As another example, at para. 21 of Geil, in the context of an anti-SLAPP analysis, the court concludes that reporting a crime to the police is a matter of public interest (it may even be a citizen’s duty to make such a report).

[85] In neither of Geil and Cusson is an analogy drawn between the types of expressions considered in those decisions and the types of expressions the defendants made in the Report or the NNP.

[86] The defendants’ analysis of the evidence and of the case authorities do not persuade me that the impugned expressions are analogous to the types of expressions discussed in Geil and Cusson. I am unable to conclude that the impugned expressions fall within the category of “societal benefit”.

ASCO had an Interest or Duty to Receive the Communication

[87] ASCO’s interest in or duty to receive the communication is addressed to some extent in the five preceding subsections of this analysis. For example, ASCO had a contractual obligation to participate in the evaluation process, including to receive the Report and other evaluations during the life of the Project.

[88] ASCO also had an interest, at a practical level, to receive the communications. Through the frequent communication from and sharing of concerns by the City, both ASCO and the City were positioned to formulate plans of action in response to issues when they arose.

c) Summary – Issue No. 1

[89] The defendants have established that the impugned expressions were made on an occasion of privilege. The defence of qualified privilege is a complete defence to Martel’s claims, unless it is overcome by Martel.

Issue No. 2 – Malice

a) The Law

[90] “Malice” has a specific meaning in the context of defamation actions. In this context, it means “any ulterior motive that conflicts with the interest or duty created by the occasion”: Clark v. Snow, 2019 ONSC 3686, at para. 43. The plaintiff in a defamation action has the burden of proving malice: Clark, at para. 43.

[91] If the court finds that the defendant held a subjective honest belief in the expression at issue, then the possibility of finding malice is negated: Hansman v. Neufeld, 2023 SCC 14, 481 D.L.R. (4th) 218, at para. 115. When determining whether the defendant held such a belief, the court is entitled to rely on “the thrust of the defendant’s evidence, read as a whole”: Hansman, at para. 117.

b) Analysis

[92] There is no evidence that DeLoyde was, or that any of his colleagues at the City were, motivated by malice. DeLoyde’s affidavit evidence is uncontradicted in the responding materials and was not challenged through cross-examination. DeLoyde’s evidence supports a finding that, when making expressions in the Report or in the NNP, DeLoyde was acting in the City’s interests. Those interests included what the City believed were serious and concerning issues regarding ASCO’s contract performance. Some of the issues involved health and safety concerns at the Project site.

c) Summary – Issue No. 2

[93] The evidence does not support a finding that the defendants were motivated by malice when making the impugned expressions. The defence of qualified privilege is not overcome by the allegation that the defendants acted with malice. Unless there is another basis by which the defence of qualified privilege is overcome, then qualified privilege is a complete defence to Martel’s claims in defamation.

The Privilege was not Exceeded

[94] Although Martel does not explicitly address the potential for the impugned expressions to exceed the purpose of the occasion of privilege, he may have done so implicitly. I will briefly address whether the qualified privilege is defeated because the defendants exceeded the scope of the occasion of privilege.

[95] As noted in the Background section of these reasons, Martel asserts that the expressions in the Report or in the NNP are the result of a vendetta by Jacobs against Martel. The evidence does not support a finding that Jacobs pursued a vendetta of the kind Martel suggests.

[96] To the extent that Jacobs was involved in communication with or between the City and ASCO, it must be remembered that Jacobs, in its role as a consultant and the contract administrator, was the City’s agent for the Project. Jacobs would therefore necessarily have information relevant to the VPM evaluation process and have been asked by the City to provide that information. As such, any communication by the City with Jacobs for the purpose of the VPM evaluation process did not exceed the occasion of privilege. This conclusion applies regardless of which of the four categories of occasion of privilege, found under Issue No. 1 to apply in this matter, one considers.

[97] In summary, the occasion of privilege was not exceeded and the defence of qualified privilege remains a complete defence to Martel’s claims in defamation.

Proportionality, Expediency, and Cost-effectiveness

[98] The defendants addressed this factor both in their factum and during oral submissions. Martel does not address this factor in his factum. In his oral submissions, Martel made only one argument that could be said to be relevant to this factor: that it is in the public interest for this action to be determined at trial.

[99] As I understand Martel’s submission, it is that the court must consider the potential for the more than 18,000 employees of the City to have access to documents, through the VPM Software, that are intended to be confidential as between the City’s representative on a project and the vendor/contractor. As found in an earlier section of these reasons, the evidence does not support a finding that City employees had access to the Report on the VPM Software.

[100] I agree with the defendants that if the action were to proceed to trial, they would be required to address the defence of qualified privilege and one or more of the other defences they raise in their statement of defence. For example, at trial the defendants would rely on qualified privilege and justification (i.e., truth).

[101] In support of the defence of justification, the defendants would be required to call, as witnesses, several individuals familiar with the Project and with Martel’s involvement on the Project. In addition, the defendants would be required to attempt to introduce, as evidence, a considerable number of documents related to the Project. It is readily apparent that the court would be required to consider more extensive evidence than the court is required to consider on the motion for summary judgment regarding, what the defendants describe in their factum as, a “somewhat complicated construction project”.

[102] I also consider that the defendants may be required to call an expert witness to address the quality of the work done by Martel. The defendants may wish to present evidence regarding the standard of work they were entitled to expect from a Senior Construction Superintendent on a project of the kind for which they contracted with ASCO.

[103] Whether or not expert evidence were called by Martel or the defendants, based on my experience as a trial judge, I am confident that it would take multiple days, if not more than one week, to complete the trial of this action.

[104] I take into consideration (a) the expense to the parties to prepare for trial, (b) the expense to the parties to participate in the trial, and (c) the quantum of damages claimed. I am satisfied that the motion for summary judgment is a proportionate, more expeditious, and less expensive method by which to resolve the dispute between the parties than would be a trial.

Disposition

[105] The defendants have established that they meet the criteria for reliance on the defence of qualified privilege; the impugned expressions were made on a clear occasion of privilege. The impugned expressions were not made with malice and the occasion of privilege was not exceeded. The defence of qualified privilege is entirely dispositive of Martel’s claims against the defendants.

[106] The action is dismissed in its entirety.

Costs

[107] As the successful party on the motion for summary judgment, the defendants are entitled to their costs of the motion and of the action. It is therefore necessary to determine the scale upon which costs are awarded and the amount at which costs are fixed.

[108] In their factum, the defendants request their costs of the action and of the motion on the partial indemnity scale. That scale is the lowest of the scales upon which costs may be awarded. The request for costs on that scale is reasonable and is granted.

[109] In what amount are costs on the partial indemnity scale fixed?

[110] The defendants filed a bill of costs for the return of the motion. The document they were entitled to file was a costs outline: Rules of Civil Procedure, rr. 57.01(5)-(6). In the circumstances, and at this stage of the proceeding, little if anything would be accomplished by requiring the defendants to file a costs outline. I dispense with the requirement for the defendants to file a costs outline and grant the defendants leave to rely on the bill of costs filed.

[111] In the bill of costs, the defendants identify that they are seeking costs on the partial indemnity scale in the total amount of $17,218.04. That amount is broken down as follows:

Fees $ 13,371.52 Attendance fees Adjournment of motion $ 671.22 Hearing of motion $ 915.30 Disbursements $ 2,260.00

[112] All amounts listed above are inclusive of HST. On the first return date, the motion was adjourned so as to permit Martel to deliver appropriate responding materials. The presiding judge ordered that the costs of the adjournment be determined by the judge presiding on the motion.

[113] I reviewed the bill of costs. I am satisfied that the hourly rates charged by all timekeepers are reasonable. I am also satisfied that the time docketed for the various components of the work (a) is reasonable, and (b) demonstrates that the work was done efficiently. To the extent senior counsel were involved, their involvement was minimal and did not result in any duplication of effort.

[114] I considered the factors listed in rr. 57.(1)(0.a)-(i). Following below is a non-exhaustive list of factors considered:

• The costs claimed are proportional to the $200,000 in damages claimed by Martel.
• The issues in dispute were important – the issues relate generally to the City’s management of construction projects and to the City’s relationships with vendors.
• The defendants’ strategy, in bringing a motion for summary judgment, shortened the duration of the proceeding.

[115] I fix the defendants costs on the partial indemnity scale in the amount of $17,218.04.

[116] In conclusion, the motion for summary judgment is granted. The action is dismissed in its entirety. Martel shall pay to the defendants their costs of the motion and of the action, on the partial indemnity scale, fixed in the amount of $17,218.04.

Madam Justice Sylvia Corthorn

Released: June 28, 2024