COURT FILE NO.: 07-CV334390-PD1
DATE: 20120222
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ANDRE GRAVELLE Plaintiff/Appellant
CTV TELEVISION INC., CTV INC., CTV GLOBEMEDIA INC., LLOYD ROBERTSON, VICTOR MALAREK, KATHERINE JANSON, JOHN DOE, STEVEN HRAB, and MARK GLIBANK
Defendants
AND KRISTEN GILBANK SAVOIE Defendant/Respondent
BEFORE: MATLOW, J.
COUNSEL: Peter I. Waldman, for the Plaintiff/Appellant
Joanna Cox, for the Defendant/Respondent
DATE HEARD: November 25, 2012 at Toronto
E N D O R S E M E N T
MATLOW, J.;
This appeal
[1] This is an appeal by the plaintiff from the order of a Master dated January 21, 2011, transferring this action and place of trial from Toronto to Hamilton. In an endorsement made on November 25, 2011, I allowed the appeal, set aside the order of the Master and stated that written reasons would follow. This endorsement contains those reasons.
[2] The plaintiff’s claim in this action is for damages and other relief from the defendant, Kristen Gilbank Savoie (“KGS”) and nine other defendants for defamation. The motion before the Master was brought only by KGS who is also the only defendant who responds in this appeal.
[3] In March, 2005, the plaintiff was investigated and charged by the police in Hamilton with the murder of Lynn and Fred Gilbank, the parents of KGS and the defendant, Mark Glibank, (whose surname may have been misspelled in the statement of claim and other documents in this action). The events surrounding the murders including the arrest of the plaintiff and his lengthy bail hearing were widely reported by the news media in Hamilton.
[4] The charge against the plaintiff was subsequently withdrawn in June, 2006, and the withdrawal was also widely reported by the news media in Hamilton. Those reports included statements that the withdrawal was the result of corruption in the Hamilton Police Department and the Office of the Attorney-General and the involvement of a former client of Lynn Gilbank who had become a police informer. The reports also included references to the plaintiff’s family as the “Gravelle Crime Family”, to his own criminal record and often implied that it was the plaintiff who committed the murders.
[5] The defamation alleged in this action included a televised statement made by KGS supporting the corruption allegations.
The motion before the Master
[6] The Master’s Reasons indicate that he initially approached the motion brought by KGS as if it were an “application under rule 13.05(7)” but I have not been able to find a rule bearing this number and was not referred to one by counsel. Later in his Reasons when he referred to rule 13.1.02(2) it became evident that the motion was under that rule.
[7] The Master’s Reasons begin, without explanation, with the following:
You are called to the Degree of Barrister-at-law to protect and defend the rights and interest of such citizens as may employ you. You shall conduct all cases faithfully and to the best of your ability. You shall neglect no one’s interest nor seek to destroy any one’s property. You shall not be guilty of champerty or maintenance. You shall not refuse causes of complaint reasonably founded, nor shall you promote suits upon frivolous pretences. You shall not pervert the law to favour or prejudice any one, but in all things shall conduct yourself truly and with integrity. In fine, the Queen’s interest and the interest of citizens you shall uphold and maintain according to the constitution and law of this Province. All this you do swear to observe and perform to the best of your knowledge and ability. So help you God.
The Barristers Oath
[8] He then continued with the opening numbered paragraphs as follows:
[1] Lynn Gilbank was a barrister.
[2] This Oath, as set out above, had long been in place at the time of her call to the bar. She practiced litigation in the Hamilton area and did criminal defence work. She was called to the Ontario bar in February of 1996. In 1998, she and her husband Fred, a computer expert, were both 52 years old.
[3] In the early hours of November 16, 1998, the couple were shot to death in their Ancaster home. The press described their deaths as “execution-style”, shotgun slayings.
[4] The moving party Kristen Gilbank Savoie and her brother Mark Gilbank are the couple’s surviving children.
[5] The motion before me relates to an application under Rule 13.05 (7) to transfer the place of trial from Toronto to Hamilton.
[9] Later in his Reasons, in addressing the plaintiff’s opposition to the trial of this action being moved to Hamilton, in part because of his concern that he could not likely get a fair jury trial in Hamilton, the Master went on to say the following:
[41] In this case, I see no advantage in choosing a “neutral” site. There are clearly issues raised with respect to whether a fair trial can be obtained in Hamilton. I am not satisfied that there is sufficient evidence before me at this stage to conclude that, a properly instructed jury in Hamilton, will deliver anything but a true verdict in this case.
[10] The Master then went on, in paragraph 43, to consider “the nine factors set out in subrule 13.1.02(2)(b)” that he was required to consider in determining whether the transfer to Hamilton “is desirable in the interest justice”. In relation to subrule (iv), which he referred to as “Local community interest”, he stated the following:
The moving defendant has requested that the action be tried with a jury. Her counsel asserts that the appropriate jury would be members of the local community who can best assess the statements alleged to be defamatory, and the effect, if any, on the plaintiff’s reputation. I accept the assertion that residents of Hamilton would have a particular interest in this case, as virtually all of the circumstances in the case relate directly to events which took place in their community. Counsel for the plaintiff asserts that all other circumstances must give way to that of having a fair trial, in order that the plaintiff is able to secure an unprejudiced jury. It is asserted that the prejudicial newspaper publicity, coupled with the fact that a party is a public official, may be sufficient to warrant that the trial would have to take place in another jurisdiction. For the reasons outlined above in my analysis of Grant v Todorovic (supra) I do not feel that this is such a case. Clearly there are conflicting views between the parties as to the appropriate manner of respecting the community in this case. Exercising my discretion, with regard to this factor, it is still my opinion that Hamilton is a more appropriate forum. (emphasis added)
[11] In relation to subrule 43 ix, in which he addressed an unspecified “any other relevant matter(s)” set out in rule 13.1.02.(2)(b)(ix), the Master stated the following:
Relying upon Oliver v Gothard, counsel for the plaintiff asserts that it is conducive to the appearance of fairness for all parties that an action take place in another location in circumstances where fairness or corruption of a judicial system in a