COURT OF APPEAL FOR ONTARIO

CITATION: Boiko v. Grover, 2015 ONCA 161

DATE: 20150312

DOCKET: C57903

Lauwers, Hourigan and Pardu JJ.A.

BETWEEN

Yuri Boiko

Plaintiff (Appellant)

and

Chander Grover, Peter Hackett, Mary McLaren, National Research Council

Defendant (Respondent)

Counsel:

R. Mitchell Rowe, for the appellant

Helene Robertson, for the respondents

Heard and released orally: March 2, 2015

On appeal from the summary judgment of Justice B.R. Warkentin of the Superior Court of Justice, dated October 15, 2013.

ENDORSEMENT

[1] The appellant was hired by the respondent, the National Research Council (“NCR”) in November 2001. As an employee of the NRC, he was subject to the terms and conditions of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (“PSSRA”), which was in effect at the time. The other respondents are employees of the NRC.

[2] The first three years of the appellant’s employment were a probationary period. After he received a number of unfavourable performance reviews during this period, the NRC terminated his employment in July 2004.

[3] Consistent with the NRC’s standard practice, the human resources department prepared a draft “Release on Probation” document (the “Release”), which summarized the contents of the appellant’s performance reviews. The Release was reviewed by managers and other NRC human resources employees, including the individual respondents.

[4] The appellant has since filed numerous complaints against the NRC in various forms. He commenced the underlying action for defamation in March 2009, seeking $1 and a letter of apology as damages. His statement of claim alleges that statements in the Release were defamatory.

[5] The respondents brought a motion for summary judgment arguing that the appellant’s claim (1) was barred by the PSSRA; (2) was out of time; (3) did not correctly plead the elements of defamation; and (4) was subject to the defence of qualified privilege.

[6] The motion judge granted the motion for summary judgment on three of the four grounds submitted by the respondents. First, the motion judge found that the claim was barred by the PSSRA. Although the claim was framed as a defamation action, she found that it was in reality a dispute related to the termination of the appellant’s employment. She considered this to be precisely the type of workplace dispute Parliament determined should be resolved by the grievance scheme governed by the PSSRA. The appellant has already availed himself of that system.

[7] The motion judge found that there was no evidence to support the appellant’s argument that the sole purpose of the Release was a malicious desire to damage his reputation. To the contrary, the Release was a summary of the reasons for terminating his employment, and there was nothing new in it that went beyond the performance reviews. The Release was a type of document routinely used by the NRC. Further, the appellant conceded that the Release was never published outside select NRC employees.

[8] Second, the motion judge found that the appellant did not discharge his burden of demonstrating that any of the statements in the Release were defamatory. The motion judge did not accept that the impugned statements were untrue. As a result, even if the appellant was not required to pursue his complaint through the grievance system, the motion judge found that none of the elements of defamation could be established, and there was no need for a trial on this issue.

[9] Third, the motion judge found that the respondents were protected by qualified privilege, since they prepared the Release in the course of their employment. The appellant did not provide any evidence of malice on the part of the respondents, which is the only basis for depriving them of the defence of qualified privilege.

[10] The motion judge concluded on these three separate bases that there was no genuine issue for trial.

[11] This appeal is the latest step in a long series of claims by the appellant against the respondents in relation to the NRC’s termination of his employment. The appellant has brought a number of grievances, an application for judicial review and Canadian Human Rights Commission complaints. He now seeks to litigate the underlying dispute as a claim for defamation.

[12] We see no error in the motion judge’s determination that the defamation characterization does not permit the appellant to circumvent the applicable PSSRA grievance procedure, which he is still pursuing. We also find no error in the motion judge’s alternative conclusions – that there was no evidence to support the elements of defamation and that the respondents were protected by a qualified privilege.

[13] The appeal is dismissed with costs to the respondent, fixed in the amount of $3,000, all-inclusive.

“P. Lauwers J.A.”

“C.W. Hourigan J.A.”

“G. Pardu J.A.”