COURT FILE NO.: 07-CV334390-PD1

DATE: 20120425

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, 2011 at Toronto

A M E N D E D 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[4] The charge against the plaintiff was subsequently withdrawn in June, 2006, and the withdrawal was also widely reported by the news media in Hamilton.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 of justice”. In relation to subrule (iv), which he referred to as “Local community interest”, he stated the following:

Local community interest:

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.

[11] In relation to subrule 43(ix), where he addressed the words “any other relevant matter(s)” set out in rule 13.1.02.(2)(b)(ix), he stated the following:

Other factors:

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 particular area is in issue and the lawyers involved practice in that particular area and the type of evidence which may be presented calls into question the judicial system. I continue to have full faith in Ontario’s justice system and see no compelling reason why in this particular case, Hamilton ought not to be chosen.

[12] Near the end of his Reasons, the Master returned to the theme with which he began his Reasons and added the following.

[45] The symbol of the Advocates’ Society is the gryphon. It was said to be the offspring of a lion and an eagle, and Sir Thomas Browne records that it is emblematic of watchfulness, courage, perseverance and rapidity of execution.

[46] This Court owes a duty of watchfulness over its barristers.

[47] “Attention must be paid”, to their courage and perseverance so as to encourage those who come after them.

[48] Do our Courts owe any duty to the child of a murdered barrister to exercise discretion in a manner which takes into account the specific circumstances of the barrister’s murder? Particularly where it is alleged to have been committed as a consequence of the performance of her professional responsibilities?

[49] I am satisfied that, entirely without any consideration of this question, I would have determined, in any event, that this was an appropriate case for a change of venue of the trial to Hamilton.

[50] To the extent that there was otherwise any doubt in my mind, I believe it would have been incumbent on the Court to consider the circumstances and, in particular, the desires of the daughter of one of its officers. Were it necessary for me to do so, my respectful answer to the plaintiff’s counsel’s able submissions in paragraph 48 quoted above would be no, not here, not on these facts.

Analysis

[13] The starting point in every motion under rule 13.1.02 (2) is that there is a presumption of entitlement in favour of the place proposed for trial by a plaintiff, or the place where the action is commenced, which should not be disturbed unless there is a clear need to make a change or a clear advantage to do so. The exercise is not simply to choose between two alternative places.

[14] The Master’s statement set out and highlighted in paragraph 10, above, “that Hamilton is a more appropriate forum” does not reflect the proper test. If that is the test that he applied, he erred.

[15] The objective of securing a fair trial for every litigant should be given highest priority and should ordinarily trump all of the other factors set out in the rule. It cannot reasonably be said that “a transfer is desirable in the interest of justice” if the effect of the transfer is to result in the loss of the likelihood of a fair trial.

[16] A fair trial by jury is one in which the jurors are impartial and in which the litigants do not have a reasonable apprehension of bias on the part of the jurors.

[17] The Master recognized the importance of preserving a fair trial in this action and summarized his conclusion in paragraph 41 of his Reasons, set out in paragraph 9 above. He stated first that:

There are clearly issues raised with respect to whether a fair trial can be obtained in Hamilton.

and then went on to say that:

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.

[18] However, by rejecting, in this manner, the plaintiff’s position that his right to a fair trial would be lost if the place of trial were moved to Hamilton, the Master committed an error of law which rendered his order unsupportable. Having recognized that there were “clearly issues raised…”, it was not necessary or, even logically possible, for him to conclude that a properly instructed jury would necessarily deliver a true verdict. Rather, he ought to have addressed whether the plaintiff had a reasonable apprehension that a Hamilton jury would render an unfair verdict. Such a finding, alone, would have been sufficient to require him to dismiss KGS’ motion. I am persuaded that, had he addressed this issue correctly, the only reasonable answer would have been in the affirmative.

[19] The Master’s expression of “full faith” in Ontario’s justice system, set out in paragraph 11, above, was not relevant to his consideration of the motion before him. What he thought about our justice system ought to have been kept to himself.

[20] I turn, next, to the Master’s decision to commence his Reasons with the oath and to what he went on to say in paragraphs 1 to 5, inclusive, and paragraphs 45 to 50, inclusive, all of which are set out above.

[21] These parts of the Master’s Reasons also were not relevant in any way to the motion before him. However, they reveal a clear and powerful propensity by the Master to show his positive feelings towards Lynn and Fred Gilbank and to memorialize the death of Lynn, in particular, because she was lawyer. They also reveal a similar propensity, especially in paragraph 48, with respect to his feelings and his sense of duty to KGS. However, No matter how much sorrow he felt, it was wrong for him to give effect to his unfounded belief that the court had some special duty “to the child of a murdered barrister”. The message given, despite the Master’s attempt to soften it with the language contained in paragraph 49, was that lawyers and their children are entitled to be treated by the court more favorably than others. However, nothing could be further from the truth. It is a fundamental principle of law that persons who come before the court are to be treated the same, with fairness and courtesy and without favoritism of any kind. What the Master said in his Reasons was totally out of place and his need to write them should have alerted him that this was a motion that he should decline to hear.

[22] The inclusion of these views in his Reasons amounted to an effective denial of a fair hearing to the plaintiff and an abdication of jurisdiction by the Master. For this reason too, his order is not supportable.

[23] The errors of law described above fail to meet the applicable standard of review, correctness. The failure of the Master to find that it would not be desirable in the interest of justice to move the place of trial was a patent and overriding error.

[24] Written submissions with respect to costs may be made as previously ordered.

Matlow J.

DATE: April 25, 2012