Wurdell v. Paramount Safety Consulting Inc. & Ben Scipione, 2024 ONSC 669

CITATION: Wurdell v. Paramount Safety Consulting Inc. & Ben Scipione 2024 ONSC 669

DIVISIONAL COURT FILE NO.: DC-22-168

DATE: January 30, 2024

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BETWEEN: )

PAUL WURDELL ) N. Papageorge, for the Appellant

Appellant )

• and - )

PARAMOUNT SAFETY CONSULTING ) D. Jafari, for the Respondents

INC. AND BEN SCIPIONE )

Respondents )

) HEARD: October 30, 2023 in Hamilton

DECISION

Introduction

[1] This appeal involves a decision of Deputy Judge B. Culp of the Small Claims Court (“the motion judge”), dated November 2, 2022 (“the Order”), that struck out the Appellant’s claim in defamation. The Appellant seeks to set aside that part of the order and restore his claim.

Background

[2] The Appellant was previously employed by the Respondent, Paramount Safety Consulting Inc., which is owned by the Respondent, Ben Scipione. The Appellant obtained his position with Paramount through an employment agency called Agilec.

[3] The Appellant commenced a Small Claims Court action alleging wrongful dismissal against Paramount. In the course of those proceedings, Paramount filed documents that included a letter that the Appellant alleges was defamatory of him. The letter, dated May 6, 2020, was sent by Mr. Scipione of Paramount to G. Zylstra of Agilec, and purports to reflect a telephone conversation the two of them had that day, and sets out reasons why Paramount terminated the Appellant’s employment (“the Letter”). The Letter indicates on its face that it was sent “Via Mail/Fax/E-mail”.

[4] After reviewing the Letter, the Appellant amended his action to include a claim in defamation against both of the Respondents.

[5] The Respondents brought a motion to strike paragraphs 37-58 of the amended statement of claim relating to the defamation claim in their entirety, pursuant to Rule 12.02(1)(c) of the Rules of the Small Claims Court, O. Reg. 258/98, on the basis that the Letter “was not a publication or a newspaper and such documentation was not intended to be viewed by the public” and so libel or slander is not available to the Appellant; and, alternatively, on the basis that the claim was statute-barred since notice had not been given under s. 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12. (The Respondents relied on a third alternative basis for striking the paragraphs, that the defamation claim was discovered through privileged settlement discussions, but that is not relevant to this appeal.)

[6] Rule 12.02(1) of the Small Claims Court provides:

Motion to Strike out or Amend a Document

12.02 (1) The court may, on motion, strike out or amend 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.

[7] Section 5(1) of the Libel and Slander Act reads:

Notice of action

5 (1) No action for libel in a newspaper or in a broadcast lies unless the plaintiff has, within six weeks after the alleged libel has come to the plaintiff’s knowledge, given to the defendant notice in writing, specifying the matter complained of, which shall be served in the same manner as a statement of claim or by delivering it to a grown-up person at the chief office of the defendant.

[8] After hearing the submissions of the parties, the motion judge held that the Letter was private and “not published”; and, in the alternative, that there was non-compliance with the notice requirement set out in s. 5(1) of the Libel and Slander Act. As a result, the motion judge ordered:

That the words “defamation” and “defamatory” shall be struck from paragraphs 1(g) to (j), 37 to 40, 47 and 48 and any other paragraphs of the Plaintiff’s amended Statement of Claim along with the words “and the Libel and Slander Act, R.S.O. 1990, c. L.12”, as amended from paragraph 57.

[9] While the motion judge made other orders as well, those are not being appealed.

Issues

[10] The following issues are raised in this appeal:

(a) Did the motion judge err in finding that the letter was not “published”?

(b) Did the motion judge err in finding that s. 5(1) of the Libel and Slander Act applied?

(c) Did the motion judge err in law by applying the wrong test for striking pleadings?

Standard of Review

[11] Deference should be given to a motion judge’s decision and an appellate court should intervene only if the motion judge misdirected himself, came to a decision that is so clearly wrong as to be an injustice, or gave no or insufficient weight to relevant considerations: see Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141, at para. 38.

[12] If an appeal is based upon an error of law, the standard of review is correctness. If an appeal is based on an error of fact, the standard of review is a palpable and overriding error. Further, if there is an alleged error of mixed fact and law, the standard of review is a palpable and overriding error: see Housen v. Nikolaisen, 2002 SCC 33, [2002] S.C.J. No. 31.

Analysis

(a) Did the motion judge err in finding that the letter was not “published”?

[13] It is the position of the Appellant that the motion judge did not apply the proper test for prima facie defamation as articulated by the Supreme Court of Canada. That test is set out in Grant v. Torstar Corp., 2009 SCC 61, and requires only that the defamation be published to one other person who is not the plaintiff. Here, the motion judge held that publication needed to be to more than one person. As a result, he held that a private letter sent to one other person was not published.

[14] The Respondents submit that the motion judge properly distinguished Torstar. The motion judge did not err in determining that a “private correspondence in a closed, unpublished environment” is not a communication to the public or a communication to third parties. Since the Letter was not “published” to more than one person, it cannot ground a defamation claim.

Discussion

[15] Defamation may take the form of libel when the defamatory communication is in written or otherwise permanent form. In Torstar, at paragraph 28, the Supreme Court of Canada set out the three elements required to be established, on a balance of probabilities, in order to prove defamation:

(i) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;

(ii) that the words in fact referred to the plaintiff; and

(iii) that the words were published, meaning that they were communicated to at least one person other than the plaintiff.

[16] Only the third condition is in issue on this appeal.

[17] It is clear from Torstar that words can be “published” by way of a written communication sent from one person to one other person. It is not necessary that the written communication be sent to multiple recipients.

[18] Here, the statement of claim contains allegations that satisfy the Torstar conditions. That is, the materials before the motion judge permit a finding that the Letter was “published” since it was sent from Mr. Scipione to Mr. Zylstra, a person who is not the Appellant. Thus, the third condition in Torstar is satisfied.

[19] The motion judge did not state or apply the correct test for defamation in his reasons. As a result, I find that he erred in holding that a defamatory statement must be made to “third parties, plural” and that it must be “disseminated to the public”. He further erred in finding that the Letter “has not been published” because it is a “private communication between two parties, not intended to be publicized or shared outside of the two of them in a private setting”.

[20] In my view, whether or not the Letter is “private” and protected by a defence of, for instance, qualified privilege, justification, fair comment or consent, is a matter for trial. That is not something that should be determined on a pleadings motion like this one.

[21] I am compelled to find that the motion judge committed a reversible error in finding that the Letter was not published.

[22] Accordingly, this ground of appeal is allowed.

(b) Did the motion judge err in finding that [s. 5(1)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l12/latest/rso-1990-c-l12.html) of the [Libel and Slander Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-l12/latest/rso-1990-c-l12.html) applied?

[23] The Appellant’s position is that the motion judge was bound by Ontario Court of Appeal decisions that have held that a written communication sent by email or facsimile does not engage the notice requirement in s. 5(1) of the Libel and Slander Act. Further, the Ontario Divisional Court has held that a party seeking to rely on the s. 5(1) notice requirement must lead compelling evidence about its application and that was lacking in the materials before the motion judge. The Respondents did not lead any evidence that could support a finding that the Letter sent by email in this case constitutes a “publication” that triggered notice to have been provided pursuant to s. 5(1) prior to the claim being commenced.

[24] It is the Respondents’ position that the Appellant pleaded and relied on the Libel and SlanderAct and not the common law tort of defamation. As a result, the onus was on him to show how the Libel and Slander Act applied. Here, the Appellant’s defamation claim was statute-barred by operation of s. 5(1) and so the motion judge was correct in striking the defamation pleadings since it would be a waste of court time for the claim to proceed. It would be inappropriate and unfair to the Respondents for the motion judge to have “read in” the general common law tort of defamation when the Libel and Slander Act was specifically pleaded by the Appellant.

Discussion

[25] I conclude that the motion judge erred in his alternative finding that, if this is a case to which the Libel and Slander Act does apply, then the Appellant did not comply with the notice requirement under s. 5(1) of the Act and so his defamation claim should be struck.

[26] The purpose of the s. 5(1) notice is to bring an alleged libel to the publisher or broadcaster’s attention so that they may investigate and, if deemed appropriate, publish or air a retraction, correction, or apology; this enables the publisher or broadcaster to reduce or eliminate any damages: see Janssen-Ortho Inc. v. Amgen Canada Inc. (2005), 256 D.L.R. (4th) 407 (Ont. C.A.), 2005 19660 (ON CA), at para. 38; and J.K. v. The Korea Times & Hankookilbo Ltd. (The Korea Times Daily), 2016 ONCA 375, at para. 19(iv).

[27] The Ontario Court of Appeal has affirmed that allegedly defamatory emails do not constitute a broadcast or a newspaper for the purposes of the Libel and Slander Act, and so the s. 5(1) notice requirement does not apply to them: see Janssen-Ortho Inc., at para. 6; and Weiss v. Sawyer, 2002 45064 (ON CA), 61 O.R. (3d) 526, at paras. 28-30.

[28] The jurisprudence is also clear that oral communications made over a telephone call do not constitute a “broadcast” within the meaning of the Libel and Slander Act: see Elguindy v. Koren, 2008 7744 (ON SC), at para. 27; and Bedessee Imports Ltd. v. K M Imports Inc., 2014 ONSC 1889, at para. 81.

[29] Section 5(1) is not triggered in this case. Simply pleading the Libel and Slander Act does not engage the s. 5(1) notice requirements. Rather, there must be an underlying newspaper publication or an underlying broadcast for s. 5(1) to apply. Here, there is no publication in a newspaper or broadcast alleged in the statement of claim. Nor was there any evidence led by the Respondents that there was a newspaper publication or broadcast at issue.

[30] The motion judge erred in finding that the Letter was subject to compliance with the notice required under s. 5(1) on the evidentiary record before him. It follows that it was not open to him to conclude that the defamation claim should be struck on this basis.

[31] I am compelled to find that the motion judge committed a reversible error in finding that s. 5(1) of the Libel and Slander Act applied in the circumstances.

[32] Accordingly, this ground of appeal is allowed.

(a) Did the motion judge err in law by applying the wrong test for striking pleadings?

[33] It is the position of the Appellant that the motion judge was required to apply the “plain and obvious” test on the motion to strike pleadings. This mandates that the pleadings must be taken as true and provable for the purpose of the motion. However, the motion judge improperly assumed a trier-of-fact role and determined that the Letter was “unpublished” and that it was private correspondence.

[34] The Respondents contend that the “plain and obvious” test does not apply on a motion to strike under Rule 12.02(1)(c) of the Small Claims Court Rules. Rather, the Ontario Court of Appeal has held that a motion to strike in the Small Claims Court resides somewhere between a Rule 20 and Rule 21 motion under the Rules of Civil Procedure and, as a result, the motion judge was not excluded from considering evidence, unlike on a Rule 21 motion. The motion judge did not err in not applying the “plain and obvious” test. It was within his power to consider evidence and to make determinations of fact in deciding the motion.

Discussion

[35] In light of my rulings above on the other two appeal grounds, it is not necessary for me to decide this issue as well. However, in the event that I am wrong, I decide as follows.

[36] There appears to be some debate about the correct test to be applied to a motion brought under Rule 12.02 of the Small Claims Court Rules. However, after reviewing the caselaw submitted by counsel and given that the Respondents’ motion to strike was made under Rule 12.02(1)(c) and not (a), in my view, the apt test is “no meaningful chance of success” as was held in O’Brien v. Ottawa Hospital, 2011 O.J. No. 66 (Div. Ct.), at paras. 14 and 16.

[37] This was also effectively the test described by the Ontario Court of Appeal in Van de Vrande v. Butkowsky, 2010 ONCA 230. At para. 19 of that decision, the Court of Appeal discussed the difference between Rule 12.02 and Rules 20 and 21 of the Rules of Civil Procedure, as follows:

Conceptually, I view rule 12.02 as being situated somewhere between the Rules 20 and 21 of the Rules of Civil Procedure. It is not a summary judgment motion involving extensive affidavits and a requirement such as contemplated in Rule 20 of the Rules of Civil Procedure where the responding party must put his “best foot forward”. It is more akin to a Rule 21 motion, although it is worded more broadly and does not have the same prohibition on the filing of affidavit evidence. It is a motion that is brought in the spirit of the summary nature of Small Claims Court proceedings and involves an analysis of whether a reasonable cause of action has been disclosed or whether the proceeding should be ended at an early stage because its continuation would be “inflammatory”, a “waste of time” or a “nuisance”.

The Court of Appeal then went on to hold that it saw no basis to interfere with the motion judge’s findings and conclusions that, in applying Rule 12.02(1)(c), the claims asserted had “no chance of success” and ought to be struck (paras. 23, 24 and 26).

[38] I am satisfied that the motion judge did not err in considering the evidence before him and the matter as a whole and making findings of fact to determine the motion.

[39] Accordingly, there is no basis for this court to interfere on this ground of appeal.

Disposition

[40] For all of these reasons, I conclude that the motion judge erred in striking the Appellant’s pleadings as it relates to the defamation claim.

[41] The appeal is allowed and paragraph 1 of the motion judge’s Endorsement Record/Order of the Court, dated November 2, 2022, is hereby set aside.

Costs

[42] Costs of the appeal are awarded to the Appellant fixed in the amount of $5,000.00, inclusive of applicable taxes and disbursements, payable forthwith.

MacNEIL J.

Released: January 30, 2024