Court File and Parties

Court of Appeal for Ontario Date: 2020-02-20 Docket: C67396

Before: Doherty, Brown and Thorburn JJ.A.

Between: Mark Amorosi, Plaintiff (Respondent)

And: Gerry Barker, Defendant (Appellant)

Counsel: Jordan Goldblatt, for the appellant Iain A.C. MacKinnon, for the respondent

Heard and released orally: February 10, 2020

On appeal from the order Justice Petersen of the Superior Court of Justice, dated August 9, 2019.

Reasons for Decision

[1] The necessary factual background is set out in the reasons of the motion judge: see Amorosi v. Barker, 2019 ONSC 4717.

[2] There are two grounds of appeal:

1. Did the motion judge err in granting an adjournment of the motion to allow for cross-examination of the appellant (plaintiff) on his affidavit filed on the motion?
2. Did the motion judge err in the balancing of the competing interests required under s. 137.1(4)(b) of the Courts of Justice Act?

The Adjournment Issue

[3] The appellant argues that the adjournment should not have been granted because it effectively deprived the motion judge of jurisdiction to hear the motion by extending the hearing of the motion beyond the 60-day time limit referred to in s. 137.2(2).

[4] Read with s. 137.2(3), the requirement in s. 137.2(2), that the motion “shall be heard” within 60 days, requires that the date on which the motion is heard, that is commenced, must be within 60 days of the filing of the motion.

[5] The language of the subsection permits the interpretation that 60 days refers to the commencement of the motion. The practicalities of litigation in the province demand that interpretation. Clearly, the legislation intended that these motions should be heard expeditiously. Equally clearly, the legislature did not intend to impose an arbitrary and unbending limit on the time needed to hear and determine the motion. It does not take much imagination to think of fact situations in which a 60-day hard cap would lead to wasting of important resources and unfair results.

[6] The purpose animating s. 137.1 is fully served by interpreting the section as requiring that the motion be returnable before the motion judge within 60 days of the filing of the motion. The motion judge is then in a position to ensure that the motion proceeds expeditiously and fairly to all concerned.

[7] The second issue, that is the balancing of the competing interests under s. 137.1(4)(b), engages a motion judge’s discretion. There are clearly competing interests which must be examined. The motion judge did that. This court has addressed the exercise of the discretion under that provision in a series of cases. In doing so, the court has recognized that different judges may well exercise their discretion differently in given cases. This court shows deference to those determinations.

[8] The appellant argues that the motion judge erred in concluding there was evidence supporting the respondent’s alleged damages flowing from the alleged defamation. The appellant submits that, on the record, the alleged damages were attributable to an entirely independent event which led to the respondent’s dismissal.

[9] We see no error in the motion judge’s consideration of this evidence. The evidence offered by the plaintiff (respondent) suggests a causal connection between the defamation and damages suffered by the respondent. The appellant’s (defendant) material puts forward a separate cause for the damages. In exercising her discretion under s. 137.1(4)(b), the motion judge was entitled to consider that there was evidence of a causal connection between the defamation and the alleged damages. The respondent (plaintiff) was not required to prove his damages in the context of his response to the s. 137.1 motion.

[10] Counsel for the appellant in oral argument also referred to two alleged factual errors, which he said constituted clear and palpable errors, warranting the intervention of the court. We are not satisfied that the motion judge made either error and, in our view, neither error, if made, was sufficiently material to warrant the intervention of this court.

[11] Finally, we note that, in considering the plaintiff’s potential damages for the purposes of the balancing under s. 137.1(4)(b), the motion judge observed, at para. 55 and again at para. 70, that the plaintiff’s damages “might well be significant”. In our view, it was open to her to reach that assessment and to take that assessment into account in the balancing required under the provision. We see no basis upon which we should interfere with the motion judge’s determination.

[12] The appeal is dismissed. Costs of the appeal awarded to the respondent in the amount of $10,000, inclusive of disbursements and all relevant taxes.

“Doherty J.A.”

“David Brown J.A.”

“Thorburn J.A.”