Court of Appeal for Ontario

Date: 20220822 Docket: M53709 (C70468) & M53709 (C70482)

Lauwers J.A. (Case Management Judge)

Docket: M53709 (C70468)

Between Probhash Mondal and 2345171 Ontario Inc. operating as Guelph Medical Imaging Plaintiffs (Appellants)

and

Ross Kirkconnell and Michelle Smith Defendants (Respondents)

Docket: M53709 (C70482)

And Between Probhash Mondal and 2345171 Ontario Inc. operating as Guelph Medical Imaging Plaintiffs (Appellants)

and

Stephanie Marie Evans-Bitten and Kathryn Evans-Bitten Defendants (Respondents)

Counsel: Nancy J. Tourgis, for the appellants (C70468) Kevin Sherkin, for the appellants (C70482) Natalie D. Kolos and Lauren Malatesta, for the respondents (C70468) Marcus McCann, for the respondents (C70482)

Heard: August 16, 2022 by video conference

Reasons for Decision

[1] I was appointed appeal management judge to coordinate two appeals from a single decision made by Morgan J., reported as Mondal v. Evans-Bitten, 2022 ONSC 809. The appeal respecting the case against the respondents Evans-Bitten (C70482) is scheduled for November 29, 2022, and the appeal involving the respondents Kirkconnell and Smith (C70468) is scheduled for November 15, 2022. The respondents in both appeals request that the appeals be heard together.

Factual and Procedural Context

[2] The appellant, Probhash Mondal, is the president of Guelph Medical Imaging. Mr. Mondal was an active Twitter participant. In 2019, he posted three tweets to which Stephanie Marie Evans-Bitten objected. Mr. Mondal took the tweets down in the fall of 2019.

[3] In June 2021, Ms. Evans-Bitten resurrected the tweets to which she objected and retweeted them. They came to the attention of Mr. Kirkconnell and Ms. Smith, who were respectively the executive director of the Guelph Family Health Team and the executive assistant. They sent an email embedding the tweets to all members of the Guelph Family Health Team. That Team was Guelph Medical Imaging’s major source of business by referrals.

[4] In mid-2021 the appellants, through two different counsel, started two lawsuits for defamation against the two sets of respondents. The respondents moved to dismiss the actions under s. 137.1 of the Courts of Justice Act, R.S.O. 1990 c. C.43 on the basis that they were strategic litigation against public participation.

[5] On September 14, 2021, the justice presiding at Civil Practice Court scheduled the motions to be heard together, on consent. The motion judge allowed the s. 137.1 motions and dismissed the actions. The appellants, again represented by two different law firms, launched separate appeals that were scheduled to be heard on two different dates by different panels of this court, as noted above.

[6] I heard submissions on August 16, 2022, having previously directed the parties to provide two-page written submissions in advance. Counsel for the responding parties each provided a written submission and appeared. Ms. Tourgis, representing the appellants in the appeal involving Mr. Kirkconnell and Ms. Smith, sent a written submission but did not appear due to a scheduling error on her part. Counsel for the appellants in the appeal involving Ms. Evans-Bitten, Mr. Sherkin, appeared but did not provide written submissions.

The Governing Principles

[7] There is little jurisprudence because parties in situations similar to this one usually cooperate and schedule the appeals together. This is the basic purpose for s. 11.9 of this court’s Civil Appeals Practice Direction. However, the Practice Direction does not mandate this result.

[8] The governing principles can be briefly stated. The basic principle is that appeals should be heard together where doing so would shorten the hearing of the appeals and result in saving of costs and court time: Williams v. Canada (Attorney General), 2007 CarswellOnt 9967 (C.A.). Judicial economy and a fair and efficient determination of the proceedings on appeal must be taken into account: Fairview Donut Inc. v. TDL Group Corp., 2010 ONSC 2845, per Strathy J. (as he then was), at para. 24.

[9] The Alberta Court of Appeal, in a similar situation as the one presented by these appeals, observed that it is efficient and convenient to hear appeals from a single proceeding together, in view of overlapping facts, issues, and arguments. This limits the judicial resources that must be dedicated to the dispute, since the court does not have unlimited resources: Moshinsky-Helm v. Helm, 2022 ABCA 32, at paras. 7, 8.

The Principles Applied

[10] Ms. Tourgis submits for the appellants that hearing the two motions together led the motion judge astray. Although there are some shared facts, she asserts that the cases are factually and legally dissimilar. The case against Ms. Evans-Bitten involves the original tweets. The case against Mr. Kirkconnell and Ms. Smith involves an email with the same tweets embedded. The cases are different even though they rest on the same three tweets by Mr. Mondal. She argues:

Having the two appeals heard separately will permit the appellants to have a hearing based upon the facts as presented in each of the two actions, rather than, it is respectfully submitted considering them to have the same factual matrix, which they do not. In addition, the public interest consideration of those different factual matrices requires a different analysis under s. 137.1 of the CJA. There was a real issue as to whether the email sent by the respondents can constitute fair comment in circumstances where the appellants had no interaction with the respondents with respect to Evans-Bitten tweet, it was sent unsolicited to the respondents and they did no do diligence whatsoever before publishing it to a large audience thereby causing damage to the appellants.

[11] I observe that the result in one appeal need not necessarily drive the result in the other. Appeals that are heard together in this court sometimes do diverge in outcome. Whether that happens in these appeals depends on the panel’s determinations.

[12] Judicial economy militates strongly in favour of having both appeals heard together, which would take the time of only three judges rather than six. There is no principled basis for hearing the appeals separately and no real risk that the court will confuse the issues in the two appeals. Justice will be fully done if the appeals are heard in sequence, one after the other by the same panel on the same day.

[13] The appeals are scheduled to be heard on November 29, 2022.

“P. Lauwers J.A.”