COURT OF APPEAL FOR ONTARIO

DATE: 20050112

DOCKET: C41763

RE:

THE REVEREND CANNON ANSLEY TUCKER, MICHAEL O’HURLEY‑PITTS and FAITH MATTERS INC. (Plaintiffs/ Appellants) and EBERT HOBBS (Defendant/Respondent)

BEFORE:

WEILER, MOLDAVER and SIMMONS JJ.A.

COUNSEL:

Christopher Ashby

for the appellant

Edward J. Babin

for the respondent

HEARD & RELEASED ORALLY:

January 10, 2005

On appeal from the orders of Justice Alexandra Hoy of the Superior Court of Justice dated April 7, 2004 and May 28, 2004.

E N D O R S E M E N T

[1] This is an appeal from the order of Hoy J., dated April 7, 2004, granting the respondent’s motion for summary judgment and dismissing several of the appellants’ claims. The appellants also appeal Hoy J.’s order on costs.

[2] The appellant, the Reverend Canon Ansley Tucker (“Tucker”), her husband Michael O’Hurley-Pitts (“O’Hurley-Pitts”), and Faith Matters Inc. (O’Hurley-Pitts’s corporation which engages in fundraising for churches) sued the respondent Ebert Hobbs (“Hobbs”) for defamation. The action was settled by minutes of settlement dated June 21, 2000, and a court order was subsequently taken out dismissing the action.

[3] As part of the settlement, Hobbs, Navion Development Systems Inc., which is also in the business of fundraising for churches and of which Hobbs is a shareholder, (“Navion”) and O’Hurley-Pitts and Faith Matters released each other from all claims that could have been raised in the action.

[4] The appellants subsequently commenced an action claiming damages for defamation, interference with economic relations, and intentional infliction of nervous shock. The claims covered incidents that allegedly occurred both before and after the June 2000 settlement.

[5] Hobbs brought a motion to dismiss the action, arguing that the defamatory statements were the same as the ones dealt with in the June 2000 settlement.

[6] The appellants countered that Tucker was not bound by the settlement agreement in the first place, and that O’Hurley-Pitts and Faith Matters were no longer bound because Hobbs had repudiated the agreement by breaching it in a number of ways.

[7] The motions judge held that, even if Hobbs had repudiated the settlement agreement, the appellants’ acceptance of that repudiation would not affect the mutual release delivered by O’Hurley-Pitts prior to repudiation. This is because, as the Supreme Court held in Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423, the effect of a repudiation is to discharge the parties from future obligations, but not from rights and obligations that have already matured.

[8] The motions judge therefore concluded that O’Hurley-Pitts and Faith Matters could not sue Hobbs for the alleged defamatory statements that were the subject of the dismissed action and that any action respecting these events should be for breach of the settlement agreement. We agree.

[9] Before us, the appellant submitted that the motions judge should not have dismissed this portion of the action and should, instead, have granted leave to counsel to amend their pleading to allege breach of the settlement agreement. The remedy of an amendment to the pleading was not sought in the Notice of Appeal to this Court. It is also a remedy that did not require an appeal. Counsel could have brought, and may still bring, a motion to amend the plaintiffs’ pleading. No amended draft pleading of the facts that would support a claim for damages for breach of contract is before us. In these circumstances, we decline to grant an amendment to the pleading, without prejudice to the appellants’ right to bring a motion in the Superior Court to amend their pleading along the lines they now propose.

[10] The motions judge also dismissed the appellants’ claims arising out of two allegedly defamatory statements made after the settlement agreement was signed on the ground that the appellants failed to set out evidence upon which the claims could succeed. We see no error in what she did.

[11] Finally, the motions judge held that there was no evidence of interference with economic relations by illegal means, nor was there evidence that Hobbs intended to cause nervous shock, or that any harm ensued. The appeal in relation to the dismissal of the claim for nervous shock was not pursued before us. The only evidence in support of the claim for interference with economic relations was a letter dated November, 2000. While that letter could support an inference of harm, the motions judge correctly concluded that there was no evidence of an illegal act or of an intention to interfere with economic relations and she correctly dismissed the claim.

[12] In relation to costs, the appellant submits that because the motions judge did not dismiss the appellants’ claim in its entirety, costs should not have been payable forthwith and that the costs awarded should have been stayed until such time as the action is disposed of.

[13] The costs award was in the discretion of the motions judge and we are not satisfied that she exercised her discretion improperly in making costs payable forthwith having regard to the fact that portions of the action were dismissed.

[14] Costs of the appeal are to the respondent and are fixed at the agreed amount of $5000 inclusive of GST and disbursements.

“Karen M. Weiler J.A.”

“M. J. Moldaver J.A.”

“Janet M. Simmons J.A.”