Court of Appeal for Ontario

Citation: Catford v. Catford, 2013 ONCA 58

Date: 20130130

Docket: C55867

Before: Doherty, Laskin and Blair JJ.A.

Between:

Roderick Roland Catford

Appellant

and

Peter Catford, Ellen Catford, the County of Simcoe and Jamie Moran

Respondents

Counsel:

Roderick Catford, appearing in person

Timothy Flannery, for the appellant

Kara E. Hamilton and D. Lex Arbesman, for the respondents, Peter and Ellen Catford,

Peter Krysiak, for the County of Simcoe and Jamie Moran

Heard and released orally: January 15, 2013

On appeal from the order of Justice S. Healey of the Superior Court of Justice, dated July 13, 2012.

ENDORSEMENT

[1] As against the County and its employee Mr. Moran, the appellant seeks to pursue only the defamation claim. We will assume without deciding that by putting the relevant documents into the Ontario Works file, the respondents could be said in law to have published the contents of those documents for the purposes of a defamation claim.

[2] The appellant acknowledges that the gathering of the material in question by the County and Mr. Moran attracts qualified privilege. To succeed in this claim, the appellant must establish malice. The motion judge reviewed the record before her and concluded “there is simply no evidence” of malice. In this court, counsel for the appellant argued that the respondent Moran’s failure to investigate allegations made in three letters sent by the appellant to Moran demonstrated recklessness and, therefore, raised a genuine issue for trial on the question of malice.

[3] On the evidence before the motion judge, Moran examined the claim put forward by the appellant’s daughter with Ontario Works in accordance with the procedures and criteria established by Ontario Works. He concluded that under those procedures and criteria the daughter was eligible for financial assistance. Moran received the three letters referred to by the appellant and on the evidence considered those letters. The fact that Mr. Moran does not appear to have accepted the position advanced by the appellant in those three letters is simply not capable of supporting any inference of malice. We agree with the motion judge’s assessment of the evidence as it relates to the issue of malice. The defamation claim was properly dismissed by the motion judge, and the appeal as against the County and Mr. Moran is dismissed.

[4] On the question of costs as it relates to the County and Mr. Moran, the motion judge awarded costs on a solicitor and client basis. She did so because, in her view, the appellant had made unsubstantiated allegations of fraud and other forms of serious misconduct against the County and Mr. Moran. Unproven allegations of fraud and similar misconduct are a well-recognized basis upon which to award costs on a substantial indemnity basis. We see no reason to interfere with the motion judge’s exercise of her discretion in this regard. We also would not interfere with the quantum awarded by the motion judge.

[5] The appeal as it relates to costs is also dismissed.

[6] In all the circumstances, costs of this appeal and the appeal in C55868 are awarded in favour of the County and Moran in the amount of $12,000, inclusive of disbursement and all applicable taxes. Costs of the appeal are also awarded in favour of the Catford defendants in the same amount.

“Doherty J.A.”

“John I. Laskin J.A.”

“R. A. Blair J.A.”