Court of Appeal for Ontario

CITATION: Conn v. Goldstone Resources Inc., 2011 ONCA 727

DATE: 20111121

DOCKET: C53870

MacPherson, LaForme JJ.A., and Hackland J. (ad hoc)

BETWEEN

Gary Conn

Plaintiff (Appellant)

and

Goldstone Resources Inc., Phillip Cunningham, Morris Prychidny, Paul Little, Jeffrey Elliot, Ania Baska and Ross McGroarty

Defendants (Respondents)

Counsel:

Peter A. Downard and Vera Toppings, for the appellant

Patricia Virc, for the respondents Baska and McGroarty

Murray Stieber, for the respondents Cunningham, Prychidny, Little and Elliot

Joseph D’Angelo, for the respondent Goldstone Resources Inc.

Heard and released orally: November 18, 2011

On appeal from the judgment of Justice Kelly A. Gorman of the Superior Court of Justice dated May 24, 2011.

ENDORSEMENT

[1] The appellant appeals the order of a motion judge granting summary judgment to the respondents, dismissing the action. The appellant alleged that he was defamed by a paragraph in the respondents’ statement of defence in a wrongful dismissal action, which was allegedly circulated outside of the proceedings prior to being filed with the court. The statement of defence alleged that his termination from employment was justified for several reasons including that he participated in:

Installing undisclosed cameras, equipped with microphones, in the living accommodations where geologists and mining staff spent their off hours at Goldstone’s six bedroom house in Beardmore which serves as an office and residence for the company’s mining staff, presumably for the purpose of secretly monitoring their private activities for his own amusement. By doing so, Conn invaded the employees’ privacy and committed a criminal act of dishonesty [...]

[2] The respondent sought summary judgment on the basis that the alleged defamatory statements which form the basis of the claim are true and therefore that there was no genuine issue requiring a trial. The motion judge accepted that position, finding that on the record before her, the respondent had established the “substantial truth” of the allegations.

[3] In so finding the motion judge noted that the sole issue in the pleadings that was not admitted was the assertion that the appellant installed the surveillance equipment “for his own amusement” and the implication that this was done for his personal gratification as a “peeping tom” or “voyeur”.

[4] The motion judge held that the purpose for which the appellant installed the cameras was immaterial because as we interpret her reasons, the sting of the defamation was that the appellant unlawfully and without legal justification intercepted the private communications of these employees.

[5] In our view there was sufficient evidence to support the motion judge’s conclusion on this issue. The appellant filed no affidavit material on the motion, in the face of the requirement in Rule 20.02(2) requiring “a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.” In contrast the respondents filed affidavits from employees generally supporting the conclusions which she reached.

[6] Accordingly, the appeal is dismissed.

[7] The respondents are entitled to their costs of the appeal fixed as follows: Goldstone Resources Inc. $9,000, the Cunningham respondents $6,000 and the Baska respondents $5,000, all inclusive of disbursements and HST.

“J.C. MacPherson J.A.”

“H.S. LaForme J.A.”

“Hackland J. (ad hoc)”