Cornish v. Legal Aid Ontario, 2022 ONSC 4029

CITATION: Cornish v. Legal Aid Ontario, 2022 ONSC 4029

COURT FILE NO.: DC-20-6

DATE: 20220706

ONTARIO

SUPERIOR COURT OF JUSTICE

(DIVISIONAL COURT)

BETWEEN:

PHILIP BRENT CORNISH

Plaintiff/Appellant

-and-

LEGAL AID ONTARIO, LESLEY BYFIELD, JANET BUDGELL and JANET FROUD

Defendants/Respondents

Philip Cornish, acting in person

Christopher Casher, for the Defendants/Respondents

Heard: March 4, 2022, by video conference

Before: Justice R. Chown

REASONS FOR DECISION

[1] Mr. Cornish, a lawyer, brought a small claims court action (the Claim) against Legal Aid Ontario (LAO) and some of its employees after being removed from all LAO panels. The Claim alleges that Mr. Cornish was “wrongly denied payment” on four accounts, wrongly removed from LAO panels, and defamed. The Claim was dismissed on a motion brought under rule 12.02 of the Small Claims Court Rules. He appeals that result. For the reasons that follow, the appeal is dismissed.

Issues and Standard of Review

[2] Mr. Cornish’s amended notice of appeal lists 18 grounds of appeal. I have distilled these grounds into the following four controlling issues:

1. Did the deputy judge err by failing to recuse herself?

2. Did the deputy judge err by dismissing Mr. Cornish’s request for production of documents from LAO before the motion was heard?

3. Do the allegations in the Claim, other than the defamation claim, disclose a reasonable cause of action within the meaning of rule 12.02(1)(a)?

4. Is the defamation claim a “waste of time” within the meaning of rule 12.02(1)(c)?

[3] The standard of review on the first issue is correctness: Smith v. Duca Financial, 2016 ONSC 6289, at para. 14 to 15; Thyssenkrupp Elevator (Canada) Ltd. v. 1147335 Ontario Inc., 2012 ONSC 4139 (Ont. Div. Ct.), at para. 18.

[4] The second issue involved an exercise of discretion by the deputy judge on a procedural question, based only on submissions of counsel and with no motion record. This issue must be reviewed on the standard of palpable and overriding error.

[5] The standard of review on the third and fourth issues is correctness: Das v. George Weston Limited, 2018 ONCA 1053, at para. 65.

[6] I will review the allegations in the Claim in detail. I will then deal with issues in order.

The Claim

[7] The Claim alleges that LAO’s decision to remove Mr. Cornish from the panel of LAO lawyers “was wrongful, without merit, made in bad faith, defamatory and high-handed.” The Claim says at paragraph 11:

The Plaintiff therefore asserts causes of action against LAO and the other named Defendants in Breach of contract and statutory duty, quantum meruit, injurious falsehood and defamation. The Plaintiff further asserts that a duty of care or fiduciary duty is owed to him by the Defendants as a lawyer and pursuant to the rules of conduct of the Law Society of Ontario, which duty has been abrogated.

[8] The Claim reviews Mr. Cornish’s history with LAO, stating that for more than 25 years, he performed exemplary, high-calibre, conscientious and dedicated services on behalf of clients through LAO and its predecessor. He represented hundreds of clients qualifying for legal assistance with a high degree of skill and competence. He tried to comply with LAO rules and protocols, despite increasingly demanding requirements, the introduction of block fees, and the movement towards electronic billing.

[9] The Claim goes on to allege three instances where LAO dealt with Mr. Cornish unfairly and with bad faith and malice. In each of these instances, Mr. Cornish claimed compensation beyond what LAO had initially been willing to pay. In one of these, Mr. Cornish brought a small claims court action. That action was settled by LAO agreeing to pay further renumeration. In one, Mr. Cornish initiated an assessment before the Superior Court of Justice. This matter also resulted in a negotiated resolution pursuant to which Mr. Cornish was paid further compensation. In the third instance, Mr. Cornish’s client’s legal aid certificate was cancelled on the basis that the client had failed to declare employment income. Mr. Cornish had to seek to be removed from the record following the verdict and before sentencing.

[10] The Claim says that these contested disputes and other more minor incidents of discord led to antagonism and ill will on the part of LAO administrative staff, and that he was considered by LAO to be a “burden.” This resulted in bad faith and malice against him.

[11] The Claim then says at paragraph 19 that Mr. Cornish was wrongly denied payment of a number of invoices. In subparagraphs 19(a) to (d), the Claim cites four specific examples.

a. Due to an extended absence of his secretary, Mr. Cornish submitted billing after the billing deadline. LAO refused to grant an extension of time and denied payment of the account.

b. Mr. Cornish submitted an account and was advised that his client’s certificate had been cancelled six months previously. LAO refused to pay for Mr. Cornish’s billing for a six-month period when most of his billable time in the matter was incurred. Proper notice had not been provided to the client, who had moved multiple times due to recognizance residency conditions, and Mr. Cornish was not notified of the cancellation.

c. A client had been charged with sexual assault and, during the course of the case, fail to comply. LAO refused to provide a further certificate for the fail to comply charge. Mr. Cornish was not paid for his work for the fail to comply.

d. Mr. Cornish submitted accounts requesting discretion. The request for discretion was substantially disallowed in a form letter demonstrating a failure to properly consider the matter and exercise discretion.

[12] At paragraph 20 of the claim, Mr. Cornish claims that LAO exercised bad faith in denying payments and he claims payment or damages “on a breach of contract and on a quantum meruit basis.”

[13] The Claim then describes that LAO issued a notice of proposal to remove Mr. Cornish from all LAO panels. Mr. Cornish pleads that the complaints against him were exaggerated, inaccurate, false, and defamatory.

[14] The Claim then outlines a letter dated September 7, 2016 from LAO to Mr. Cornish. Mr. Cornish asserts that the letter was defamatory.

[15] The Claim states that allegations against him were based on malice and were made in bad faith, with improper, biased, and malevolent motives. Apart from what I have outlined, there are no specific facts pled to support these allegations.

[16] The question of whether Mr. Cornish should be removed from LAO panels was determined by the President’s Delegate. The Claim states:

The Plaintiff states that the allegations against the Plaintiff which were presented to the President's Delegate, Maureen Hastings, were substantially spurious, specious, false, exaggerated, misguided, biased and prejudiclal. The Plaintiff states that other employees and agents of LAO have been made aware of the discontinuance of the Plaintiff on the LAO panel of lawyers for reasons that were not properly founded, and that the actions of the named Defendants constitutes publication of defamation against the Plaintiff, particularly in the case of Janet Budgell, The Plaintiff rejects the decision of Maureen Hastings as not supported on the evidence.

[17] Mr. Cornish claims special damages and unliquidated damages but specifically excludes any claim for future income loss.

[18] During oral argument, Mr. Cornish acknowledged that his claim for breach of contract could not be sustained. Having considered the decision of Perell J. in Kotylo v. Legal Aid Ontario, 2014 ONSC 4492, Mr. Cornish agrees that this claim is precluded and he advised that he was no longer pursuing that claim.

Issue #1: The Recusal Request

[19] The recusal motion was brought on the date that LAO’s rule 12.02 motion was originally scheduled to be heard, which was Monday, May 13, 2019. As it turned out, the motion did not proceed that day because the docket was too full. However, the recusal motion was dealt with and a “ruling” was made. The recusal motion was brought informally and without prior notice. Mr. Cornish had only learned who the judge was going to be late in the week prior to the hearing.

[20] The basis of the recusal motion was that the deputy judge had previously ruled against Mr. Cornish in an unrelated matter that came before the deputy judge as a basket motion. Mr. Cornish was the plaintiff in that matter and was apparently suing a client for fees. The deputy judge ruled against Mr. Cornish in that matter and in doing so she had used language that Mr. Cornish characterized as “fairly harsh.” Mr. Cornish advises that, after further submissions, the deputy judge apparently set aside her endorsement and it was corrected. The endorsement in that matter was not in the appeal record but at my request was provided to me during the hearing. The deputy judge did say that Mr. Cornish’s account “would almost certainly raise eyebrows at the Law Society.” I infer from Mr. Cornish’s submissions that this was based on a misunderstanding by the deputy judge, but that misunderstanding was apparently corrected. In any event, the language of the endorsement is not intemperate.

[21] During submissions on the recusal motion, the deputy judge was referred to some of the leading cases. The test from Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at p. 394 was read to her. The deputy judge gave a very brief oral ruling that did not touch on the test. She did say, “I deal with the material that is before me.” She noted that there is a small bar in Walkerton and only three other deputy judges who may also have history with Mr. Cornish. During submissions, Mr. Cornish had said to the deputy judge that he had not had any other history with her, and she replied that they had never had a case together (she meant, apparently, as opposing counsel). The deputy judge effectively agreed with the submissions of counsel for LAO. In the circumstances, bearing in mind the discussion and submissions that she had just heard, her oral ruling was adequate.

[22] LAO’s rule 12.02 motion was argued on its merits on August 13, 2019. The deputy judge released her decision on November 28, 2019. After the release of her ruling, by letter dated December 6, 2019, Mr. Cornish wrote to the deputy judge, saying that there had been no formal reasons provided on the recusal issue and no consideration of his request for production of records from LAO. In oral submissions on this appeal, Mr. Cornish submitted that he wasn’t asking for further reasons and that the deputy judge provided the further reasons on her own, but he did close his letter by saying he was “seeking direction or clarification from the Court on these two points.”

[23] The deputy judge addressed these requests and her decision on costs in an endorsement dated June 23, 2020. In this endorsement, she said she carried no prior conceptions from the previous case to this case. She noted that she had eventually ruled in Mr. Cornish’s favour in the prior case. She then recited the applicable test from R. v. R.D.S., [1997] 3 S.C.R. 484, at para. 111. She then said, “On my review of the test as set out in R. v R.D.S. above, I am heartened by my resolve,” i.e., her resolve to proceed without recusing herself. That language is problematic as it has the appearance of after-the-fact reasoning and gives rise to a question of whether the analysis was done, even subconsciously, with the view of defending the decision rather than arriving at it: R. v. Teskey, 2007 SCC 25, at para. 18.

[24] Having said that, the record before me reveals no reasonable basis for the recusal motion. The deputy judge’s refusal to recuse herself was correct. A litigant cannot reasonably ask a judge to recuse herself simply because that litigant appeared before the judge before and lost, even if the language directed at the litigant was “pretty harsh.” A judge’s adverse finding in a previous hearing does not in itself create a reasonable apprehension of bias. It is true that an adverse finding of credibility “in strident terms” may give rise to a reasonable apprehension of bias on the part of a judge in a subsequent matter: Ontario (Director, Family Responsibility Office) v. Samra, 2008 ONCJ 465, at para. 45 to 47. However, that has not been shown to be the case here. The language used in the endorsement in the prior matter cannot be characterized as “strident.”

[25] I would not give effect to this ground of appeal.

Issue #2: The Request for Disclosure from LAO

[26] At the same hearing where the recusal motion was addressed, Mr. Cornish sought production of records from LAO. He acknowledged that his request was non-specific and that he had not brought a motion. He submitted that production orders are sometimes made in small claims court settlement conferences, but otherwise motions for production were generally unsuccessful. He complained that the LAO’s rule 12.02 motion was going to proceed prior to the settlement conference, and that would preclude him from obtaining a production order. He suggested the possibility of a settlement conference before the return of the motion but did not insist that this was the necessary course of action.

[27] The transcript reveals that Mr. Cornish thought LAO would have internal communications “that would speak to the issues of their intentions in dealing with me.” He believed “there would be potential memoranda and documentation that would assist in supporting my argument.” Counsel for LAO acknowledged that he was aware of Mr. Cornish’s request for documents but said that it was overbroad and non-specific, spanning many years of involvement between Mr. Cornish and LAO.

[28] The way things were left at that hearing was that Mr. Cornish would try to be more specific about the kind of documentation he was seeking and would contact respondent’s counsel. Mr. Cornish said to the deputy judge, “if my friend decides he’s still going to refuse it, well then we may need to take that up with you.” The deputy judge replied, “Okay. I’m not going to make an order about that …” The discussion reveals that no formal ruling was required or requested.

[29] There is nothing in the record before me to indicate that Mr. Cornish contacted counsel for LAO with a specific request for records, or that this issue was addressed again prior to or at the August 13, 2019 hearing of the rule 12.02 motion. Understandably, the deputy judge’s November 28, 2019 reasons for granting the motion did not address this issue.

[30] As mentioned above, Mr. Cornish’s December 6, 2019 letter addressed this issue. He said that the reasons “make no mention of this issue, and no consideration of production is made although a pertinent precedent exists.” In her June 23, 2020 endorsement, in what was clearly a response to Mr. Cornish’s letter, the deputy judge explained her reasoning for not ordering production of the records, indicating that there is no right of discovery in small claims court. She said there is a limited opportunity at a settlement conference for a deputy judge to disclosure of evidence under rule 13.03(1)(e). She then said it was guesswork whether a settlement conference judge would have made the requested order. She then said “I did not deal with this specific issue in my decision of November 28, 2019 and I do so now: I dismiss Mr. Cornish's oral motion for document disclosure for the above reasons.”

[31] This endorsement is problematic for two reasons. First, contrary to what was implied in Mr. Cornish’s December 6, 2019 letter, the deputy judge had not been asked to make a ruling. Second, her reasoning has the appearance of after-the-fact reasoning. However, again, the decision was correct. Mr. Cornish’s request for production of documents was made orally and without evidence, and was unfocused, unspecific, and overly broad, and he did not follow up to request production (or at least, based on the evidence before me, he did not follow up).

[32] I would not give effect to this ground of appeal.

Issues #3 and #4: Rule 12.02 and 21.01(1)(b) Motions

[33] The remaining two issues involve the application of rule 12.02 of the Small Claims Court Rules. Subrule 12.02(1) provides that the court may, on motion, strike out all or part of any document that,

(a) discloses no reasonable cause of action or defence;

(b) may delay or make it difficult to have a fair trial; or

(c) is inflammatory, a waste of time, a nuisance or an abuse of the court’s process.

[34] Subparagraph (a) of rule 12.02 is very similar to rule 21.01(1)(b) of the Rules of Civil Procedure. However, the prohibition on admitting evidence contained in rule 21.01(2) is absent from rule 12.02: Van de Vrande v. Butkowsky, 2010 ONCA 230, at para. 17.

[35] In Loojune v. Bailey, at para. 14 to 16, Lemon J. questioned whether a small claims court defendant could rely on an affidavit if the position the defendant advances is that the claim does not disclose a reasonable cause of action. Lemon J. determined he did not need to decide the issue. The same is true here. Even if there is a more relaxed standard in motions brought under rule 12.02(1)(a) than in motions brought under rule 21.01(1)(b), in this case, for the claims other than defamation, even with adherence to the strict requirements of rule 21.01(1)(b), the Claim does not disclose a reasonable cause of action.

[36] The jurisprudence under rule 21.01(1)(b) requires that, before a court will strike a claim, defendants must show that it is plain, obvious, and beyond doubt that the claim cannot succeed. The court's power to strike a claim is exercised only in the clearest of cases. The court is required to accept the pleaded allegations of fact as true unless they are patently ridiculous or incapable of proof. The pleading should be read generously with allowance for inadequacies due to drafting deficiencies.

[37] For the claims other than defamation, this test is met in this case.

[38] For the defamation claim, it is necessary to consider the evidence filed in the motion. When that evidence is considered, it must be concluded that it would be a “waste of time” within the meaning of rule 12.02(1)(c) to allow this matter to proceed.

Issue #3: No Reasonable Cause of Action

[39] I will now explain my reasoning for why the other elements of the Claim (that is, the elements other than defamation) do not disclose a reasonable cause of action. Briefly, this is because:

A. The small claims court does not have jurisdiction to hear lawyers’ legal aid fee disputes; and

B. The Claim does not disclose any basis for Mr. Cornish to claim damages arising from LAO’s decision to remove him from its panels.

A. The small claims court does not have jurisdiction to hear lawyers’ legal aid fee disputes

[40] All the matters and occurrences in issue took place prior to 2020. The parties agree that it is the Legal Aid Services Act, 1998, S.O. 1998, c. 26 (LASA) that governs and not the Legal Aid Services Act, 2020, S.O. 2020, c. 11, Sched. 15. In any event, apart from the numbering of the sections, the differences between the two acts are not material in this case. For simplicity, I will use the present tense in referring to LASA but will refer to the section numbers from the 1998 version.

[41] LASA and its regulations provide a system for legal aid services. Section 25 of LASA provides that an LAO area director may issue a legal aid certificate to individuals requiring legal services provided certain requirements are met. Section 29 provides that an area director may cancel a certificate. Section 30 provides for an appeal of a decision to cancel a certificate to an LAO area committee, and a further appeal to an officer or employee designated by the board of directors of LAO.

[42] Section 31 of LASA provides that LAO shall pay every lawyer who provides legal aid services pursuant to a certificate “a fee for the services rendered, determined in accordance with the regulations, and an amount for proper disbursements, determined in accordance with the regulations.” This section further provides that “A lawyer or service-provider who provides legal aid services pursuant to a certificate may appeal the Corporation’s determination of the lawyer’s or service-provider’s account in the manner set out in the regulations.”

[43] Sections 46 and 47 of the applicable regulation under LASA (O. Reg. 106/99), provide that a lawyer who is dissatisfied with the amount paid for an account submitted to LAO may request a review, and if still dissatisfied may appeal to an assessment officer appointed under s. 90 of the Courts of Justice Act.

[44] Section 83 of LASA provides that the Statutory Powers Procedure Act does not apply to any decisions made or proceedings conducted under LASA. It further provides that, “Except as specifically provided in this Act, every decision of the Corporation, its employees or a committee of its board of directors, and every decision of an area director or area committee is final and shall not be subject to appeal or judicial review.”

[45] It is apparent that the small claims court does not have jurisdiction to hear fee disputes or to address the concern raised by Mr. Cornish arising from the cancellation of the certificate of one of his clients. LASA contains a complete code for fee disputes.

[46] Mr. Cornish points to his own experience of bringing small claims court actions over fee disputes. In two cases, LAO settled the matters and did not insist that the small claims court lacked jurisdiction. He also submits that waiting for a review by an assessment officer is not practical. Mr. Cornish did not provide me with any jurisprudence that supports his submissions on this point. His arguments do not persuade me that the small claims court has jurisdiction to hear fee disputes. The procedure required in LASA appears sensible given the need for a simple and expeditious way to resolve fee disputes, which often involve modest amounts.

[47] The plea that LAO acted with malice and in bad faith towards Mr. Cornish does not, in the circumstances here, change anything. The issues described in paragraph 19 and 20 of the Claim are fee disputes. They are issues that the fee dispute resolution system mandated by LASA would be well-suited to resolve. Mr. Cornish cannot avoid the fee dispute resolution system by alleging bias, malice, or bad faith, or with his plea that he is entitled to be paid on a quantum meruit basis.

[48] The claim of breach of fiduciary duty has no air of reality. Nothing in the pleaded facts supports a conclusion that there was a fiduciary relationship between LAO and Mr. Cornish.

[49] It is plain and obvious and beyond doubt that Mr. Cornish cannot recover damages for his disputed fee claims and related allegations.

B. The Claim does not disclose any basis for Mr. Cornish to claim damages arising from LAO’s decision to remove him from its panels

[50] Section 23(1) of LASA provides that LAO area directors may establish panels of lawyers who agree to accept legal aid certificates.

[51] Sections 31 to 34 of O. Reg. 106/99 set out the procedure to be followed by LAO to remove a lawyer from a panel. The process involves notice to the lawyer and a hearing. There is no appeal. Under s. 83 of LASA, already described above, the decision “is final and shall not be subject to appeal or judicial review.”

[52] Mr. Cornish does not seek to be re-admitted to an LAO panel. He does not assert that the small claims court has jurisdiction to provide such a remedy. He does plead, at paragraph 27 of the Claim (quoted above), that he “rejects” the decision to remove him “as not supported on the evidence.” In this paragraph of the claim, he rolls together a claim for damages from the decision to remove him from the panel, and a claim for defamation in the allegations made against him in the hearing process. He says that “the actions of the named Defendants constitutes defamation.”

[53] The Claim for damages from this decision is not adequately pleaded and, in any event, could not be sustained. The Claim does not assert that the process to remove Mr. Cornish from LAO’s panels was not followed. It does not assert that the decision was unlawful or that LAO did not have the legal authority to make the decision. There is no claim for misfeasance in public office (and the pleaded facts would not appear to support this cause of action).

[54] In the circumstances, it is plain and obvious and beyond doubt that Mr. Cornish cannot succeed with his claim for damages arising from LAO’s decision to remove him from its panels.

Issue #4: The Defamation Claim

[55] Defamation claims must be pleaded carefully. The precise defamatory words must be pleaded and particulars as to when, where and to whom the words were published must be provided in the claim.

[56] The Claim asserts that a letter dated September 7, 2016 from the defendant Janet Budgell, Vice President South West Region for LAO was defamatory. Some phrases from the letter are described. However, a fundamental element of defamation – publication of the defamatory words – is not pleaded. The Claim does not assert any publication of the defamatory words to anyone. This was a letter from LAO to Mr. Cornish. In the circumstances, the Claim should have explained the circumstances of publication with particularity.

[57] The Claim then describes what was said about Mr. Cornish in Ms. Budgell’s “complaints.” It is not fully clear from the Claim, but it appears this is a further reference to the letter as opposed to other documents prepared by LAO staff. In any event, paragraph 27 of the Claim identifies the publication as follows: “other employees and agents of LAO have been made aware of the discontinuance of the Plaintiff on the LAO panel of lawyers for reasons that were not properly founded, and that the actions of the named Defendants constitutes publication of defamation against the Plaintiff.” During oral argument, Mr. Cornish advised that it was his position that the decision of the President’s Delegate is also defamatory, and in his submission that decision largely adopted the defamatory contents of the letter. There is no allegation of publication of defamatory remarks outside of LAO or outside of the hearing process.

[58] The Claim contains no allegation of any specific internal communication that was defamatory of Mr. Cornish. Mr. Cornish’s disclosure request may have been aimed, in part, at finding internal communications at LAO about him that may have been defamatory. However, Mr. Cornish cannot be permitted to advance a claim for defamation based on a suspicion he may have been defamed in LAO’s internal documents, and on the hope that these documents will be produced to him during the course of the litigation.

[59] LAO argues that the statements in the letter and decision were made on an occasion of absolute privilege. LAO relies on 1522491 Ontario Inc. v. Stewart, Esten, 2010 ONSC 727 for this proposition.

[60] In Brown on Defamation, 2nd ed. (Toronto: Thomson Reuters, Release No. 2022-2, June 2022), at §12:17, Prof. Brown writes that “An absolute privilege or immunity attaches to those communications which take place in the course of, during, incidental to, and in the processing and furtherance of, judicial or quasi-judicial proceedings.” [Footnotes omitted.] Prof. Brown further states in the same chapter that “[t]he absolute immunity applies not only to formal judicial proceedings but to statements made during administrative proceedings which are quasi-judicial in nature.”

[61] Mr. Cornish submitted that it is arguable that the absolute privilege that applies for judicial proceedings may not apply to the circumstances here because, in his submission, the President’s Delegate was not performing a quasi-judicial function and the hearing was not a quasi-judicial hearing. It was done entirely in writing. Mr. Cornish’s argues that this is at least a triable issue.

[62] I do not accept this argument. The public policy behind absolute immunity for judicial and quasi-judicial proceedings is fully applicable here. The President’s Delegate was deciding an issue that would affect important rights of Mr. Cornish. The right to a hearing is spelled out in LASA and its regulations, as well as an LAO policy. The process included submissions, response, reply, and sur-reply. This is clearly a quasi-judicial function, even though it did not involve oral testimony with cross-examination. In addition, there can be no doubt that LAO staff had an interest or obligation to inform each other about the steps taken to remove Mr. Cornish from the panel.

[63] It is plain and obvious and beyond doubt that Mr. Cornish’s defamation claim is a waste of time within the meaning of rule 12.02. There is no hint that there was any publication of the impugned words outside of LAO and it is clear that the words were published on an occasion of absolute immunity.

[64] This case is not like Hervieux v. Huronia Optical, 2016 ONCA 294, aff’g 2015 ONSC 1810, cited to me by Mr. Cornish, where the deputy judge held it was a waste of time to proceed to trial if there were no expert reports served by the plaintiff, and the Court of Appeal held, at para. 14, that it was wrong for the deputy judge to conclude that the plaintiff’s treating physicians could not provide expert evidence.

[65] If this was a rule 21.01(1)(b) motion, the proper approach may have been to grant the motion striking the claim with leave to amend to plead further particulars. However, this is a small claims court action, and the motion is brought under rule 12.02 of the Small Claims Court Rules. In the circumstances, it would be a waste of time to permit the action to proceed over whether Mr. Cornish was defamed in the internal communications of LAO. I emphasize that Mr. Cornish:

• does not seek to overturn the LAO decision to remove him from the panels;

• does not seek to be re-instated to the panels;

• acknowledges he cannot claim damages for breach of contract arising from non-payment of his accounts;

• has provided no particulars or evidence that he may have sustained a loss because one LAO staff member sullied his reputation through misstatements to other staff members;

• has not pled factual details that make it believable that LAO staff were actuated by bad faith or malice. (Inflammatory allegations of this nature “must be accompanied by specific allegations that could make them believable”: Overtveld and Gi-Las Management v. Joy Overtveld, 2021 ONSC 6393 at para. 52, leave for extension of the time to file a notice of appeal denied 2021 ONCA 930.)

• has not argued that the impugned words were published outside of LAO; and

• has not provided a reasonable basis to think that absolute immunity would not apply.

Disposition

[66] For the foregoing reasons the appeal is dismissed.

[67] At the hearing, I asked the parties to address costs by stating how much the loser of this appeal should pay. The parties were not prepared for this question. I will therefore receive written submissions on costs. LAO shall provide its written submissions by July 15, 2022. Mr. Cornish shall provide his responding submissions by July 25, 2022. Submissions shall be limited to 2 pages plus copies of offers to settle, bills of costs, costs outlines, and dockets as applicable.

[68] Finally, I received the packet of documents sealed pursuant to the order of Corbett J. dated June 2, 2021. I will be re-sealing the packet and returning it to Brampton for filing, with a copy of this endorsement affixed to it. The packet may be released to Mr. Cornish upon his requisition. If it is not picked up by Mr. Cornish within six months, it may be destroyed.

Chown J.

Released: July 6, 2022