ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-11-00430419
DATE: 20120112
B E T W E E N:
DONALD P. GRACEY and COLDHAM-GRACEY MANAGEMENT AND COMMUNICATIONS INC. operating as THE CG GROUP
Allan Rouben , for the Plaintiffs
Plaintiffs
- and -
THERESA SALZMANN Defendant
H. Cohen , for the Defendant
HEARD: January 9, 2012
GRACE J.
REASONS FOR DECISION
[ 1 ] Ms Salzmann copied others with her June 17, 2011 letter to the College of Chiropodists of Ontario (the “College”) including representatives of Health Canada and the Minister of Health and Long-Term Care in Ontario. The plaintiffs allege they were defamed by Ms Salzmann’s assertion that The CG Group “will be in a conflict of interest” if it represented the interests of the members of the Ontario Podiatric Medical Association (the “Podiatric Association”) in the development of a new regulation under the Controlled Drugs and Substances Act.
[ 2 ] Her counsel, Mr. Cohen, argues the comment is clearly not defamatory, that “the action is frivolous or vexatious or is otherwise an abuse of the process of the court” and should be dismissed. [1]
A. Background
[ 3 ] Ms Salzmann is a chiropodist. According to the Chiropody Act, 1991 , [2] chiropody is the “practice of the assessment of the foot and the treatment and prevention of diseases, disorders or dysfunctions of the foot by therapeutic, orthotic or palliative means.”
[ 4 ] Chiropodists are entitled to become members of the College. They are regulated by the Health Professions Procedural Code set out in Schedule 2 to the Regulated Health Professions Act, 1991 . The Chiropody Act, 1991 creates a class of members called podiatrists provided they were members of the College by July 31, 1993.
[ 5 ] Under current provincial legislation, podiatrist members of the College can do two things chiropodist members cannot: they are permitted to communicate a diagnosis identifying a disease or disorder of the foot as the cause of a person’s symptoms and are permitted to cut into the boney tissues of the forefoot.
[ 6 ] The scope of practice of chiropodists and podiatrists is a source of controversy in various jurisdictions, including Ontario. The Minister of Health and Long-Term Care has announced an intention to initiate a review of the professions by the Health Professionals Advisory Council (“Advisory Council”) in 2013.
[ 7 ] In August, 2010 representatives of the College and two professional associations, the Ontario Society of Chiropodists (the “Chiropodists Society”) and the Podiatric Association met. Shortly afterward they entered into a tripartite agreement. [3] They agreed the College would take the lead in dealings with the Ontario government relating to the “subject matter of” the Advisory Council’s review including “scope of practice matters.” [4] Those words were not defined or otherwise described.
[ 8 ] The right of the Chiropodists Society and the Podiatric Association to lobby or advocate on matters unrelated to the Advisory Council’s review was preserved
[ 9 ] On May 19, 2011, the Podiatric Association wrote to the College concerning a “New Class of Professions Regulations” being developed by Health Canada. The Podiatric Association advised the College that once the regulation was enacted, the Ontario government would determine “which (if any) controlled drugs and substances may be used, prescribed, dispensed or compounded by the practitioners added by the regulation.”
[ 10 ] The letter communicated the intention of the Podiatric Association to be actively involved with Health Canada and the Ministry of Health and Long-Term Care in the process and advised that the Podiatric Association would utilize the services of The CG Group/Don Gracey. From time to time the services of the CG Group/Don Gracey have also been and continue to be utilized by the College.
[ 11 ] The Podiatric Association maintained that the matters outlined were not caught by the tripartite agreement and did “not in any way violate the understanding we have in place with respect to the use of The CG Group’s services.”
[ 12 ] The letter was tabled and discussed at a June 3, 2011 meeting of the College’s Council which Ms Salzmann attended. Two weeks later Ms Salzmann sent her letter expressing her belief that the consultations and submissions contemplated by the Podiatrist Association concerning Health Canada’s New Class of Professions Regulation were caught by the tripartite agreement. As indicated, Ms Salzmann also raised a conflict of interest issue insofar as The CG Group was concerned.
B. The Issue and the Law
[ 13 ] Should the action be dismissed under rule 21.01 (3) (d) of the Rules of Civil Procedure on the basis it is frivolous, vexatious or otherwise an abuse of process?
[ 14 ] The cases counsel for the plaintiffs, Mr. Rouben, referred to me [5] establish these principles with respect to such a motion:
a) Rule 21.01 (3) (d) should only be used where it is plain and obvious that the plaintiff’s claim cannot succeed;
b) The question is simply whether the plaintiffs are advancing a reasonable argument that properly forms the subject matter of an action and, if not earlier resolved, a trial;
c) The court should be loath to determine fact dependent cases on a rule 21 motion. On such a motion a judge’s fact finding powers are extremely limited. [6] Such matters are most appropriately addressed at trial where evidence concerning the facts can be led and arguments concerning the merits of the parties’ positions properly developed. [7] As Grange J.A. aptly wrote:
Many a case apparently hopeless on the facts has been transformed into a winner by an unexpected burn of events in the form of either a surprise witness or a witness giving surprise evidence. [8]
C. This Case – Discussion and Conclusion
[ 15 ] Three things must be proven by the plaintiffs in this defamation action:
a) First, that in the eyes of a reasonable person the words used adversely affect the plaintiffs’ reputation;
b) Second, that the words used refer to the plaintiffs; and
c) Third, that the words were communicated to someone other than the plaintiffs. [9]
[ 16 ] It is not disputed that the words used by Ms Salzmann refer to the CG Group and that they were communicated to third parties. The statement of claim alleges that the words used by Ms Salzmann mean that the plaintiffs would act in an unethical manner, contrary to the interests of their clients. When pressed in argument Mr. Cohen acknowledged that in certain circumstances an allegation of a conflict of interest could call a person’s integrity into question and hence lower their reputation in the eyes of others. He submitted, however, that this is not one of those cases.
[ 17 ] That submission led us on a lengthy journey through the evolution of the distinction between chiropodists and podiatrists in Ontario, their educational backgrounds, their practices, existing legislation, the contemplated review by the Advisory Council, the terms of the tripartite agreement, its limitations, registrations effected by the plaintiffs [10] with the Office of the Commissioner of Lobbying of Canada evidencing efforts undertaken on behalf of the College and the Podiatric Association and letters written by others years ago concerning the CG Group and situations of possible conflict.
[ 18 ] All of that, Mr. Cohen submitted, fortified his submission that the statement in question here is unquestionably accurate, innocuous and in any event protected by defences of qualified privilege and fair comment. [11]
[ 19 ] With respect, those submissions quickly run aground. First, I am of the view the words used by Ms Salzmann are capable of being defamatory. Second, determining whether the words used in this case were defamatory cannot be determined now. Seven affidavits were filed on this motion: four on behalf of Ms Salzmann and three on behalf of the plaintiffs. Each party’s version of the facts is very much debated. Even the pleadings stage is not yet complete. [12] I say no more than this: I cannot and will not try to resolve factual issues on a rule 21 motion. Indeed, it would be impossible to do so. The debate is a real and serious one. I am not in a position to determine whether there was a conflict of interest or the effect of those words, if any, on the plaintiffs’ reputation. [13]
[ 20 ] Second, how can an action be frivolous, vexatious or otherwise an abuse of process when the elements of defamation are addressed so meaningfully that Ms Salzmann relies heavily on defences containing elements she must prove? Furthermore, both defences are defeated if Ms Salzmann’s actions were motivated by malice. [14] The issue of malice is very much alive in this proceeding and should not and cannot be determined at this stage or on this material.
[ 21 ] Third, Mr. Cohen has been unable to find a single case where a defamation action was dismissed at this juncture. Every case included in his book of authorities was determined after a trial. That is likely reflective of the fact that once a plaintiff shows that something was published which is harmful to their reputation, falsity and damage are presumed. [15]
[ 22 ] On the return of the motion Mr. Cohen relied heavily on Baglow v. Smith . [16] In that case a defamation action commenced by one owner and operator of an internet blog site against another was dismissed on a motion for summary judgment. Mr. Rouben suggested I should approach that case cautiously for two reasons. First and most importantly, this is not a motion for summary judgment. Factual disagreements are not to be determined on what is, essentially, an adequacy of pleadings motion. [17] Second, Baglow v. Smith predated the development of the “full appreciation” test recently outlined by the Court of Appeal in Combined Air Mechanical Services Inc. v. Flesch . [18] The parameters of the powers a judge may exercise on a motion for summary judgment have been more clearly articulated.
[ 23 ] I agree. This motion would be problematic even if summary judgment had been sought. It cannot succeed as a motion brought at an even earlier stage. This action raises real factual and legal issues. It is not frivolous. It is not vexatious. It is not an abuse of process. It is not plain and obvious that it cannot succeed. The motion is dismissed.
[ 24 ] At the conclusion of argument Mr. Rouben presented me with a draft timetable and asked that I impose it on the parties since the action was commenced in July, 2011 and is still in its infancy. Mr. Cohen had not seen the timetable beforehand. I am confident these two experienced counsel can act in short order to develop a timetable consensually. If I am wrong, the parties can address the draft timetable within the time limits set forth in the next paragraph.
[ 25 ] If the parties cannot agree on costs they are asked to make brief written submissions not exceeding three pages each exclusive of costs outlines, supporting dockets and offers to settle (if any). Those submissions may be provided to me through Judges’ Administration.
GRACE J.
Released: January 12, 2012
COURT FILE NO.: CV-11-00430419
DATE: 20120112
ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: DONALD P. GRACEY and COLDHAM-GRACEY MANAGEMENT AND COMMUNICATIONS INC. operating as THE CG GROUP Plaintiffs - and – THERESA SALZMANN Defendant REASONS FOR DECISION GRACE J.
Released: January 12, 2012
[1] He relies on rule 21.01 (3) (d) of the Rules of Civil Procedure.
[2] S.O. 1991, c. 20, s. 4
[3] A draft was introduced into evidence. The executed agreement was not.
[4] According to its terms, any of the signatories can withdraw from the agreement at any time.
[5] No rule 21 cases were provided to me by counsel for Ms Salzmann.
[6] Hart v. Roman Catholic Episcopal Corporation of the Diocese of Kinston in Canada , 2011 ONCA 728 at para. 11 .
[7] Carey Canada Inc. v. Hunt (1991), 74 D.L.R. (4 th ) 321 (S.C.C.) at 334 ; Nelles v. Ontario , [1989] 2 S.C.R. 170 ; Sussman v. Ottawa Sun, [1997] O.J. No. 181 (Gen. Div.) .
[8] Temilini v. Commissioner of the Ontario Provincial Police (1990), 73 O.R. (2d) 664 (C.A.) at 669
[9] Grant v. Torstar Corp., [2009] 3 S.C.R. 649 at para. 28 .
[10] And by persons connected with them.
[11] These submissions are also developed in paras. 12-17 of the defendant’s factum. It may be that Ms Salzman will also rely on the defence of responsible communication: Grant v. Torstar Corp., supra note 8.
[12] A statement of defence has not yet been filed. It remains to be determined whether the statement in question in this case is one of fact (the defence of fair comment does not apply to a misstatement of fact) or comment: Ross v. New Brunswick Teachers’ Association (2001), 2001 NBCA 62 () , 201 D.L.R. (4 th ) 75 (N.B.C.A.) at paras. 55-58 .
[13] The protection of one’s reputation “from wilful and false attack recognizes both the innate dignity of the individual and the integral link between reputation and the fruitful participation of an individual in Canadian society”: R. v. Lucas , [1998] 1 S.C.R. 439 at para. 48 .
[14] Grant v. Torstar Corp., supra note 8 at para. 31; Simpson v. Mair , [2008] 2 S.C.R. 420 at para. 28 ; Cherneskey v. Armadale Publishers Ltd. , [1979] 1 S.C.R. 1067 at para. 22 .
[15] Simpson v. Mair , supra note 12 at para. 1 .
[16] (2011), 107 O.R. (3d) 169 (S.C.J.) .
[17] City of Ottawa v. Goudie (2003), 223 D.L.R. (4 th ) 395 (S.C.C.) at paras. 30-34 .
[18] 2011 ONCA 764