WARNING
This is a case under the Child, Youth and Family Services Act, 2017 and subject to subsections 87(8) and 87(9) of this legislation. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017 , which deals with the consequences of failure to comply, read as follows:
87 (8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.
(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.
142 (3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)( c ) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.
COURT OF APPEAL FOR ONTARIO
DATE: 20210310
DOCKET: C64004
Lauwers, Brown and Roberts JJ.A.
BETWEEN
AA Plaintiff (Appellant)
and
BB and CC Defendants (Respondents)
AA, acting in person BB, acting in person CC, acting in person
Heard: January 20, 2021 by video conference
On appeal from the judgment and orders made by Justice J. Christopher Corkery of the Superior Court of Justice, dated June 5, 2017, July 3, 2018, December 12, 2018, December 16, 2019, and June 1, 2020, with reasons reported at 2017 ONSC 3458, 2018 ONSC 4173, 2018 ONSC 7490, 2019 ONSC 7318, and 2019 ONSC 3423.
BROWN J.A.:
I. OVERVIEW
[1] The appellant, AA, and the respondent, CC, have two children. The respondent, BB, was a friend of CC. In April 2013, following AA and CC’s separation, the local children’s aid society (the “Society”) received a report from an anonymous caller that she had witnessed AA abusing his children and partner. BB made the call. The report was false. AA commenced an action against BB and CC claiming damages for intentional infliction of emotional distress, conspiracy, slander, and libel.
[2] AA’s action focused on two events. First, the April 16, 2013 report that BB made to the Society, which AA alleged was false and made at the behest of CC. Second, the April 25, 2013 telephone interview of CC by an employee of the Society (the “Interview Call”) as part of an investigation of the initial report from BB, during which CC made several statements about AA.
[3] The first trial of AA’s claim took place in late 2016, with the trial judge’s reasons released in June 2017: 2017 ONSC 3458 (the “First Reasons”). The trial judge granted AA judgment against BB for slander, awarding him $5,000 in general damages and $5,000 in punitive damages. However, the trial judge dismissed AA’s claim against CC.
[4] As a result of AA’s discovery of fresh evidence regarding CC’s role in BB’s report to the Society, the trial judge re-opened the trial and heard further evidence in November and December 2017. The trial judge released reasons in July 2018: 2018 ONSC 4173 (the “Second Reasons”). At the re-opened trial, the trial judge found that CC and BB conspired together to have BB make the false report to the Society, which slandered AA: at paras. 70 and 78. He granted judgment in favour of AA against CC and BB for $25,000, payable on a joint and several basis (the “Judgment”).
[5] AA represented himself at the trials. He sought costs of approximately $120,000 (796.95 hours x $150/hour) and $2,500 for disbursements. The trial judge awarded AA no costs for his time and disbursements of only $1,000 (the “Costs Order”): 2018 ONSC 7490, at paras. 16-17.
[6] In order to protect the identities of AA and CC’s children, the trial judge ordered that letters be used for the parties’ names. However, the local sheriff’s office was not prepared to enforce the Judgment in that form. To remove that obstacle to enforcement, the trial judge issued a subsequent order (the “Naming Order”) that continued the use of lettered names in the proceeding but directed that a new court file be opened for enforcement purposes. He stated, in 2019 ONSC 3423 (the “Naming Reasons”), at para. 14:
To address the plaintiff’s difficulty in enforcing his judgment, an order shall be prepared and entered by the court’s administration in accordance with Rule 59.03 of the Rules of Civil Procedure (Form 59B) using the full names of the parties and granting judgment in favour of the plaintiff in the amount of $25,000 against both defendants, jointly and severally. That judgment shall be placed in a new court file with a new court file number, containing no reference whatsoever to this file.
[7] AA appeals the two trial judgments, the Costs Order, and the Naming Order. For the reasons set out below, I would allow the appeal of AA’s claim for damages in respect of statements CC made during the Interview Call and his appeal of the Costs Order, in part, but dismiss the balance of the appeal.
II. THE QUALIFIED PRIVILEGE ISSUE
The issue stated
[8] As part of its investigation into BB’s call, an employee of the Society, Ms. Cooper, sought to interview CC about the events surrounding BB’s earlier report. Ms. Cooper conducted a telephone interview with CC on April 25, 2013, a little over one week after BB had made her report. The trial judge reviewed the evidence given at trial about the Interview Call at paras. 26 to 29 of the First Reasons. He wrote that Ms. Cooper testified, in part, that:
[CC] spoke about how AA was abusive and vindictive … CC told Ms. Cooper that at work she has talked about her frustration with AA and the court process and had sought advice from peers on how to manage the situation. She talked at work about the fact that [one of their children] broke her leg. She has talked at work about how AA is a terrible parent and an abusive person and that AA will spin a conspiracy theory so she will never see her children again.
[9] At para. 28, the trial judge wrote that CC testified, in part, that:
In her evidence, CC acknowledged that she did talk at work about [one of their children] breaking her leg, she does seek advice from her co-workers but at no time has she used AA’s name.
[10] After reviewing the law on qualified privilege in his First Reasons, the trial judge was not satisfied that AA had made out a separate claim for slander against CC for the answers she gave to the Society when questioned. He found that CC’s communications to the Society on that occasion were protected by qualified privilege, stating, at para. 68:
Communication with child welfare agencies responsible for protecting children in the course of their investigations is, in my view, but another “classic example” of an occasion of qualified privilege as referred to by the Court of Appeal in Cusson v. Quan. To find otherwise, would make it impossible for such public agencies to carry out their difficult but very necessary responsibility of protecting vulnerable children. I have no doubt that most interviews conducted in the course of such investigations will include statements that tend to lower another’s reputation in the eyes of a reasonable person. CC spoke to Ms. Cooper about AA on the promise from Ms. Cooper that she would not disclose what CC told her. This expectation was reasonable. Her discussion with Ms. Cooper was protected by qualified privilege, even if it included CC making admissions about what she said to others at work.
[11] At the re-opened trial, the trial judge heard fresh evidence that led him to conclude that:
(1) BB and CC acted in combination, by agreement or common design, to make a false report to the Society: Second Reasons, at para. 70; and
(2) CC was the source of the information BB reported to the Society: Second Reasons, at para. 71.
[12] The trial judge awarded $25,000 in damages against both BB and CC in respect of BB’s false reporting call, allocated as follows: (i) $10,000 for intentional infliction of emotional distress; (ii) $10,000 for slander; and (iii) $5,000 in punitive damages, in light of the “malicious nature of the false referral”: Second Reasons, at para. 83.
[13] However, the trial judge maintained his dismissal of AA’s claim against CC for statements made during the Interview Call. Using the identical language from his analysis in the First Reasons, the trial judge held that CC’s statements to the Society were protected by qualified privilege: Second Reasons, at para. 80. Having made that finding, in his Second Reasons the trial judge did not go on to consider whether the qualified privilege was defeated by any malice on the part of CC.
[14] AA submits that the trial judge made two errors in dismissing his claim against CC for the statements she made during the Interview Call with the Society: (i) finding that CC’s statements were protected by qualified privilege despite an internal Society document about general service standards, which the trial judge refused to admit at trial, stating that communications to the Society are not privileged; and (ii) failing to consider AA’s argument that any claim for qualified privilege was defeated by evidence that CC lied or misled the Society during the Interview Call.
The state of the appeal record
[15] A person who makes a statement that is defamatory of another may assert, by way of defence to an action for defamation or slander, that the statement was made on an occasion of qualified privilege. A defamatory statement made on an occasion of qualified privilege does not attract liability: RTC Engineering Consultants Ltd. v. Ontario (2002), 58 O.R. (3d) 726 (C.A.), at para. 14. Although the trial judge correctly stated the principles regarding the concept of qualified privilege in the law of defamation, [1] he did not clearly identify which statements made by CC during the Interview Call defamed AA.
[16] The absence of such a finding creates problems for appellate review. The case AA advanced at trial alleged that, during the Interview Call, CC informed the Society employee that she had told people at her work that AA was a terrible and abusive parent. AA made that allegation in his statement of claim. Also, during his submissions at the first trial, AA identified as defamatory CC’s statement to the Society that she had told co-workers that AA was “a terrible and abusive parent”.
[17] The appeal record did not include the transcript of the evidence given by the Society employee at the first trial. When the panel inquired whether a transcript of that evidence had been prepared, the parties advised that one had not. In those circumstances, the panel accepted the audio recording of the testimony of the Society employee for review. The panel was able to evaluate the April 25, 2013 Case Note of the Interview Call prepared by the Society employee in the context of her testimony at the first trial.
[18] While the Case Note is unclear whether CC reported that discussions at work included statements to co-workers that AA was a terrible and abusive parent, in her examination-in-chief the Society employee confirmed that CC had stated during the Interview Call that she had told co-workers that AA was “an abusive parent and a terrible person.” However, on cross-examination, the Society employee could not recall whether CC told her that CC had used AA’s name when talking at work. In her evidence-in-chief at the first trial, CC denied giving AA’s name to a co-worker in the context of any statement that would be defamatory of him.
[19] In his reasons for the first trial (at para. 27) and those for the second (at para. 36), the trial judge refers to the Society employee’s testimony that she could not recall if during the Interview Call CC said she had used AA’s name with co-workers. However, the trial judge did not make any finding as to whether he considered that statement by CC to the Society employee as the defamatory statement that could attract the defence of qualified privilege.
[20] The Case Note records several other statements made by CC during the Interview Call that were capable of defaming AA:
- “ [CC] spoke of how [AA] is an abusive and vindictive man”;
- CC stated that the Society employee had “fallen for AA’s act”;
- CC talked about “how [AA] is a terrible and abusive parent and that she feels he will spin a conspiracy theory and she will never see her children again.”
[21] CC did admit during cross-examination at the second trial that the Case Note was an accurate reflection of the conversation she had with the Society employee.
[22] The panel therefore is left in the position that: the trial judge considered AA’s claim against CC for defamatory statements made during the Interview Call; the trial judge did not make a finding as to which statements made by CC during that call defamed AA; yet the trial judge concluded that the statements were protected by qualified privilege.
[23] As unsatisfactory as that may be, and notwithstanding that the judgment under appeal is far less than $50,000, [2] given the length of time that has passed since the 2013 Interview Call and the fact that all parties are self-represented, it would not be in the interests of justice to remit this matter back to the trial judge. This is an appropriate case for this court to exercise its powers under s. 134 of the Courts of Justice Act (“CJA”), including by making any necessary findings of fact.
[24] As to AA’s defamation claim based on CC’s statement to the Society employee that she had commented on AA’s parenting to her co-workers, the conflicting evidence set out at para. 18 above, together with the absence of any evidence at trial from a co-worker of CC who was the recipient of any such statement, leads me to conclude that AA has not established, on a balance of probabilities, the element of identification essential to a defamation claim: Raymond E. Brown, Brown on Defamation, 2nd ed. (Toronto: Thomson Reuters, 2020), at ch. 6.1. However, given CC’s admission at trial that the Case Note accurately reflects the conversation she had with the Society employee during the Interview Call, I will proceed on the basis that CC told the Society employee that AA was “an abusive and vindictive man” and a “terrible and abusive parent”. Those statements certainly defamed AA. My analysis of the trial judge’s qualified privilege finding will treat these as the defamatory statements at issue in the Interview Call and will hereafter refer to them as the “Defamatory Statements”.
AA’s first argument on qualified privilege
[25] The appellant advances two arguments in support of his contention that the trial judge erred in finding that the Defamatory Statements CC made during the Interview Call were protected by qualified privilege.
[26] First, AA argues that the trial judge erred by refusing to admit a Society document which he contends demonstrates that the Interview Call was not an occasion of qualified privilege. As described in AA’s factum, the document stated, in part:
Communication between a worker and client are not recognized in Ontario as privileged, and as a result, Individuals and records may be subpoenaed by the Court. Information which clients have assumed would be held in strict confidence may have to be disclosed in the course of due legal process. Clients should, therefore, be advised of the limitations of the agency's ability to maintain confidentiality.
The trial judge ruled that he would not admit the document because it fell outside the scope of admissible evidence for the re-opened trial.
[27] I see no error by the trial judge in refusing to admit the document. The document does not assist in determining whether the Interview Call was made on an occasion of qualified privilege. The references in the Society document to “privilege” are not references to the concept of qualified privilege in the law of defamation.
[28] More relevant to the issue of whether the Defamatory Statements were made on an occasion of qualified privilege is s. 125 of the Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1 (“CYFSA”). That section sets out the obligation of a person to report information to a society where there are reasonable grounds to suspect that a child has suffered various kinds of harm. Section 125(10) creates a form of statutory qualified privilege:
This section applies although the information reported may be confidential or privileged, and no action for making the report shall be instituted against a person who acts in accordance with this section unless the person acts maliciously or without reasonable grounds for the suspicion. [Emphasis added.]
[29] This statutory qualified privilege attaches to statements made in a complaint to a society, as well as to statements made by a person to the society in the course of an investigation: W. (D.) v. White, 2001 CarswellOnt 5892 (S.C.), at paras. 85-92, aff’d (2004), , 189 O.A.C. 256 (C.A.), leave to appeal refused, [2004] S.C.C.A. No. 486; Nadejda Ryabikhina v. Stanislav (Stan) Savranskiy, 2010 ONSC 3860, at paras. 24-25, aff’d 2011 ONCA 219, leave to appeal to S.C.C. refused, 35927 (July 24, 2014); Sullivan v. Draper-Sereda, [2006] O.J. No. 4671 (Small Claims).
[30] The statements made by CC to the Society were in response to the Society’s request that she provide it with information as part of its investigation into BB’s call. Given its obligation to ascertain the accuracy of reports made to it, the Society had an interest in receiving information from CC about the call and, on her part, CC had a duty, whether legal, social, or personal, to provide the Society with the requested information: RTC Engineering Consultants, at paras. 14-16.
[31] Accordingly, the trial judge did not err in finding that CC made the statements to the Society on an occasion of qualified privilege.
AA’s second argument on qualified privilege
[32] As his second argument, AA submits, in effect, that the trial judge failed to determine whether CC’s claim for qualified privilege was defeated by her malice.
[33] In his discussion of the applicable legal principles, at para. 68 of the Second Reasons, the trial judge recognized that the defence of qualified privilege could be defeated by actual or express malice or if CC’s statements exceeded the limits of the applicable duty or interest: Korach v. Moore (1991), 1 O.R. (3d) 275 (C.A.), at pp. 278-80, leave to appeal refused, [1991] S.C.C.A. No. 30; Bent v. Platnick, 2020 SCC 23, 449 D.L.R. (4th) 45, at paras. 128 and 136. The limits of the privilege were explained by this court in RTC Engineering Consultants, at para. 18:
Not everything said or written on an occasion of qualified privilege is protected. As is evident from the term “qualified privilege” itself and from the previous discussion, the privilege is not absolute. It may be lost in one of two ways. First, it may be lost if the dominant motive for making the statement was malice. In this context malice means not just ill will towards another but any ulterior motive that conflicts with the interest or duty created by the occasion. And it includes recklessness. Both dishonesty and a reckless disregard for the truth may amount to malice. Second, a privilege may be lost if the statement is not commensurate with the occasion, either because the statement is not germane and reasonably appropriate to the occasion or because the recipients of the statement have no interest in receiving it. Put differently, to maintain privilege a defendant must communicate appropriate information to appropriate people. [Emphasis added.]
[34] In considering whether malice by the maker of the statement defeats qualified privilege, the primary consideration is the state of mind of the maker at the time the words were published: Brown, at ch. 16.2(2). The presence of an improper motive is the critical consideration. The privilege will be lost if it is shown that the statement was published for a collateral motive unrelated to the privilege’s purpose: Brown, at ch. 16.3(1). Accordingly, malice is essentially a question of good faith. The privileged occasion must be used for the purpose for which it is given; it must not be misused or abused by a defendant: Brown, at ch. 16.3(1).
[35] In RTC Engineering Consultants, this court, at para. 18, identified some aspects of the factual inquiry when it stated that malice in the context of qualified privilege “means not just ill will towards another but any ulterior motive that conflicts with the interest or duty created by the occasion. And it includes recklessness.”
[36] Unfortunately, the trial judge’s reasons on the issue of qualified privilege are brief and cryptic. He did not expressly make a finding about whether AA had proven CC made the Defamatory Statements with malice, thereby defeating the qualified privilege. However, given that he dismissed AA’s claim in respect of the Defamatory Statements on the basis of qualified privilege, the following remarks made at para. 80 of his Second Reasons might appear to address that issue of whether CC made the statements with malice:
I have no doubt that most interviews conducted in the course of such investigations will include statements that tend to lower another’s reputation in the eyes of a reasonable person. CC spoke to Ms. Cooper about AA on the promise from Ms. Cooper that she would not disclose what CC told her. This expectation was reasonable. Her discussion with Ms. Cooper was protected by qualified privilege, even if it included CC making admissions about what she said to others at work. [Emphasis added.]
[37] In the highlighted portion of these remarks, I take the trial judge to be saying that interviews by Society employees conducted during an investigation into a report often will result in the interviewee making defamatory comments about the subject of the investigation. As CC was responding to inquiries made by the Society employee, her comments are not necessarily the product of malice, but the product of the candour needed to ensure that such interviews operate as an effective investigatory tool.
[38] However, AA argues that, since the trial judge had found CC and BB combined to make a malicious initial referral to the Society, that malice would defeat any qualified privilege in respect of statements made by CC during the subsequent Interview Call. I do not accept that submission, as framed. The finding of malice in respect of the initial report does not automatically mean that malice was the dominant motive for CC making the statements over a week later during the Interview Call. The issue is whether, at the time of the Interview Call, malice was the dominant motive for CC making the Defamatory Statements: RTC Engineering Consultants, at para. 23.
[39] The trial judge failed to make a finding as to whether CC made the Defamatory Statements with malice. That was an error. It therefore falls to this court to decide the issue.
[40] Here, CC told the Society employee during the Interview Call that AA was an “abusive and vindictive man” and “a terrible and abusive parent”. CC made these statements during the Society’s investigation into BB’s serious allegations of abuse against AA. CC falsely denied knowing anything about the referral or its source. Yet, she used the occasion of the Interview Call to repeat, and therefore reinforce, allegations similar to those BB made in her false referral.
[41] Given those circumstances, and against the background of the trial judge’s findings that the initial referral allegations were made with malice, it is not possible to characterize CC’s Defamatory Statements during the Interview Call as simply an impulsively unreasonable or irrational emotional outburst. The preponderance of the evidence discloses that CC made the Defamatory Statements with malice, that is dishonestly or recklessly as to their truth, thereby defeating a defence of qualified privilege for CC.
[42] Notwithstanding that finding of liability against CC, in my view any damages for CC’s Defamatory Statements are nominal. CC made the Defamatory Statements only to the Society employee, whose files are sealed from general public view or access. As well, the Society closed its file regarding BB’s referral because it concluded the allegations against AA were unverified and malicious. In these circumstances, I would assess AA’s damages at $500.
[43] Consequently, I would allow AA’s appeal with respect to the dismissal of his claim for slander against CC in respect of the Interview Call. I would otherwise dismiss his appeal in respect of the trial judgments.
III. APPEAL FROM THE COSTS ORDER
[44] Leave to appeal a costs order will not be granted save in obvious cases where the party seeking leave persuades the court there are strong grounds upon which the appellate court could find that the judge erred in exercising his or her discretion: Brad-Jay Investments Limited v. Village Developments Limited (2006), 218 O.A.C. 315 (C.A.), at para. 21, leave to appeal refused, [2007] S.C.C.A. No. 92. An appellate court should set aside a costs award only if the trial judge has made an error in principle or the costs award is plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303, at para. 27.
[45] AA submits that the trial judge erred in failing to award pre-litigation costs related to the work he undertook with respect to the Child and Family Services Review Board and Norwich application proceedings. I disagree. It was entirely within the trial judge’s discretion not to award those costs. I see no error in the exercise of his discretion.
[46] AA next submits that the trial judge erred in failing to award him any costs for the time he spent on these proceedings. I do not accept this submission. In the present case, the trial judge identified and applied the correct principles of law, namely those stated in Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.). The trial judge held that AA failed to prove that he had to give up remunerative activity in order to perform work on this case that ordinarily would be done by a lawyer.
[47] AA submits the trial judge erred in so finding. However, while in this proceeding AA testified that he had to take off work during his earlier family law trial, neither the transcript nor his cost submissions at the re-opened trial demonstrate that AA had to forego remunerative activity to work on this case. AA’s statement, without more, that he had to work less than he otherwise would in order to focus on preparing paperwork and appearing in court is insufficient. Accordingly, I see no reversible error in the trial judge denying AA costs for work he conducted on this proceeding.
[48] As to disbursements, the trial judge limited the award to $1,000 because AA had not filed a breakdown to support his request for $2,500 in disbursements. I have reviewed the cost outlines found at Tabs A and B of AA’s July 29, 2018 cost submissions to the trial judge. While they do not break out costs and disbursements in a way typically seen in a cost outline prepared by a lawyer, to my eye a fair reading of AA’s incurred disbursements would place them at $1,500.00. Accordingly, I would allow the appeal from the Costs Order to the extent of varying the disbursements awarded from $1,000 to $1,500.
IV. APPEAL FROM THE NAMING ORDER
[49] The trial judge invoked s. 87(8) of the CYFSA to order that the letters AA, BB, and CC be used instead of the parties’ initials in all judgments and endorsements related to the matter.
[50] Section 87 of the CYFSA applies to hearings held under Part V of the Act dealing with child protection. Section 87(8) states that “[n]o person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.”
[51] AA submits that his civil action against BB and CC was not a hearing or proceeding under Part V of the CFYSA, so the trial judge erred by relying on s. 87(8) to grant the Naming Order.
[52] Whether or not the trial judge possessed jurisdiction under CFYSA s. 87(8) to issue the Naming Order, he certainly possessed the jurisdiction through a combination of his inherent jurisdiction and s. 137(2) of the CJA [3]: see Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41, [2002] 2 S.C.R. 522; Vancouver Sun (Re), 2004 SCC 43, [2004] 2 S.C.R. 332. Although the trial judge did not refer to the principles set out in Sierra Club, at para. 53, and Vancouver Sun, at paras. 30-31, his Naming Reasons disclose that, in essence, he considered: (a) whether some restriction on the naming of the parties was necessary to prevent a serious risk to the welfare of AA and CC’s children; and (b) whether the salutary effects of such a restriction would outweigh its deleterious effects. That analysis has been applied by Ontario courts to initialize or otherwise protect the identities of parties and their children in civil matrimonial litigation: L.C.F. v. G.F., 2016 ONSC 6732, 86 R.F.L. (7th) 338, at paras. 17-18; S.M. v. C.T., 2020 ONSC 4819, 46 R.F.L. (8th) 109, at paras. 27-28; G.S. and K.S. v. Metroland Media Group et al., 2020 ONSC 5227, 46 R.F.L. (8th) 357, at paras. 43-44.
[53] AA wants proper names used in all court orders and reasons in this proceeding so that he can inform “professionals providing care for the children” about the behaviour of BB and CC. The trial judge was concerned about such a possible use of proper names in court reasons, stating at para. 11 of his Naming Reasons:
Using actual names will always present a much higher risk of offending subsection 87(8) [of the CYFSA]. Once the names of the parties are revealed in a court decision, it will be difficult, if not impossible, for the court to know what additional facts included in the judgment may still point to or identify the persons protected by subsection 87(8). Even the use of initials is potentially compromising, particularly where it can be discovered that the full names of the same parties have been used in another related proceeding.
[54] That was a reasonable concern for the trial judge to have in the circumstances. It was also a reasonable basis upon which to exercise his discretion to use letters for the parties names in the court file but, in order to allow AA to enforce the Judgment, to use proper names in the public judgment in a separate, unconnected file. Finally, while AA certainly has a legitimate concern in protecting his reputation, this action did not involve defamatory statements that were widely published. BB and CC made their statements to employees of the Society. There was no evidence that those statements were re-published. The trial judge exercised his discretion in a balanced way, taking into account the interests of all parties, the children, and the public.
V. DISPOSITION
[55] For the reasons set out above, I would allow AA’s appeal from the dismissal of his slander claim against CC in respect of statements she made during the Interview Call and order CC to pay AA damages of $500. I would also allow the appeal of the Costs Order to the extent of increasing the award of disbursements to AA to $1,500.00, payable by BB and CC on a joint and several basis. I would dismiss the appeal in all other respects.
[56] AA is entitled to his reasonable disbursements for this appeal. AA may serve and file submissions (not to exceed three pages in length) regarding the disbursements he has incurred for this appeal within 10 days of the release of these reasons. BB and CC may file responding submissions (not to exceed three pages in length) within 10 days of the receipt of AA’s reasons.
[57] I would not order any other costs of the appeal.
Released: March 10, 2021 “P.L.” “David Brown J.A.” “I agree. P. Lauwers J.A.” “I agree. L.B. Roberts J.A.”
[1] 2018 ONSC 4173, at paras. 67-68.
[2] Courts of Justice Act, R.S.O. 1990, c. C.43, s. 19(1)(a).
[3] Section 137(2) of the CJA provides: “A court may order that any document filed in a civil proceeding before it be treated as confidential, sealed and not form part of the public record.”