Court of Appeal for Ontario

Date: 20211116 Docket: C68148

MacPherson, Simmons and Nordheimer JJ.A.

BETWEEN

Qiangli Cao Plaintiff (Appellant)

and

City of Markham and Markham Public Library Defendants (Respondents)

Counsel: Qiangli Cao, acting in person David Boghosian and Matt Brown, for the respondents

Heard: November 15, 2021 by video conference

On appeal from the judgment of Justice Lorne Sossin of the Superior Court of Justice, dated February 10, 2020, with reasons reported at 2020 ONSC 764.

Reasons for Decision

[1] Mr. Cao is the CEO of Chinese Publications for Canadian Libraries Ltd. (“CPCL”).

[2] On a motion for summary judgment, the motion judge dismissed Mr. Cao's action against the City of Markham and Markham Public Library in which Mr. Cao claimed damages for defamation with racial discrimination and dereliction of duty.

[3] The motion judge found that the action was barred by issue estoppel. Mr. Cao appeals from the motion judge's decision. At the conclusion of the hearing we dismissed the appeal with reasons to follow. We now provide our reasons.

[4] CPCL had previously sued the City and the Library for improper termination of a contract for the supply of Chinese language materials to the Library. CPCL's action was dismissed on a summary judgment motion and the dismissal was upheld by this court.

[5] The motion judge who dismissed CPCL's action found the City was entitled to terminate the contract without cause on 30 days' notice and that it validly did so. However, she also concluded that there were more than sufficient grounds to have terminated the contract for cause thus demonstrating that there was no bad faith, improper purpose or arbitrariness in the termination. In that regard, she made specific findings that CPCL failed to comply with price requirements of the contract, missed delivery targets, breached collection profile targets and made cataloguing errors. She specifically rejected CPCL's submission that the evidence of the City's three affiants was false.

[6] The motion judge who dismissed Mr. Cao's claim found his action was based largely on impugning the evidence relied on by the CPCL motion judge. The motion judge concluded that the question of the validity of that evidence had been finally determined in CPCL's action, that Mr. Cao was a privy to that proceeding and that no new issues had been raised that could sustain Mr. Cao's action for defamation. We agree with the motion judge’s reasons and conclusion on this issue.

[7] The appeal is dismissed. The respondents are entitled to their costs of the appeal fixed at $2,000, inclusive of disbursements and HST.

“J.C. MacPherson J.A.”

“Janet Simmons J.A.”

“I.V.B. Nordheimer J.A.”