ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 126/09
DATE: 2012/04/07
BETWEE N:
DAVID FREE
Self Represented
Plaintiff
- and -
RICHARD SMITH, KRIS NICHOLLS, PATTI PAUL, MARK URBANSKI, THE MUNICIPALITY OF MAGNETAWAN
Ian St. John for defendant Magnetawan Stephen Brogden for defendants, Smith et al
Defendants
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N: Court File No. 137/09
DAVID FREE )
) Self Represented
Plaintiff )
- and –
WALLY REIF, JIM MCPHERSON, AND )
THE MUNICIPALITY OF MEAFORD )
Defendants )
Ian Newcombe, for the Defendants, MacPherson et al
The Honourable Mr. Justice Arrell
JUDGMENT
Introduction:
[1] The plaintiff has sued Reif and McPherson for defamation. He has sued them and Meaford for a breach of a mediated settlement agreement with his former employer Meaford.
[2] He brings this motion for partial summary judgment seeking damages of $187,500.00 for breach of the agreement; aggravated damages; an injunction prohibiting any further public statements by the personal defendants and costs. He agrees the defamation part of the action must go to trial.
[3] He also seeks a summary judgment against the defendant Magnetawan for wrongful dismissal. He sues the individual defendants in that law suit for defamation, which he agrees must go to trial.
[4] Ramsay, J. on September 10, 2010 ordered that all actions be tried together.
Facts:
a) Re: Meaford et al:
[5] The plaintiff was a CAO for Meaford. His employment ended and a mediated settlement occurred by which he received $187,500.00. The terms of the Minutes of Settlement contained a confidentiality clause and public statements were to be confined to the terms of the joint press release.
[6] The plaintiff alleges that the defendants McPherson, a council member and Reif, who was mayor breached the agreement by making public comments contrary to the confidentiality clause and further that some of those comments were slanderous.
[7] The parties have very divergent views as to the intention and purpose they each had when agreeing to the confidentiality clause. As well both parties allege the other has breached the clause which of course is denied.
Analysis:
[8] This court has reviewed the reams of material filed by the parties, along with cross examinations on affidavits. It is abundantly clear that there is a great deal of evidence that will have to be called and credibility determined. This, in my view, can only occur by way of trial with viva voce evidence called and it being subject to cross-examination.
[9] The plaintiff also seeks summary judgment regarding damages for breach of the agreement. He has filed no material on this motion to assist the court in any manner as to what his damages may be, if in fact a court determines there has been a breach of the agreement. Since I have already concluded viva voce evidence must be called to determine whether the terms of the agreement have been violated it follows that damages, even if there was some evidence before me as to how they should be calculated, cannot be determined without a determination by the court that in fact a breach occurred.
[10] R.20, as amended, now states that the court shall grant summary judgment if there is “no genuine issue requiring a trial.” Combined Air Mechanical Services Inc et al v. William Flesch et al (2011) ONCA 764.
[11] The purpose of the new Rule is to eliminate unnecessary trials, not to eliminate all trials. The guiding consideration is whether the summary judgment process, in the circumstances of a given case, will provide an appropriate means for effecting a fair and just resolution of the dispute before the court. Combined Air Mechanical , supra at para. 38.
[12] In order to determine whether the summary judgment process will effect a fair and just resolution I must conclude that I have a full appreciation of the evidence and issues that are required for me to make dispositive findings by way of summary judgment in the case at bar.
Combined Air Mechanical , supra
[13] I am unable to conclude that I can make dispositive findings on this case without a trial. There are clearly genuine issues for trial that require a full hearing as do the interests of justice.
[14] The plaintiff also seeks an interim injunction basically preventing any comments regarding this settlement.
[15] The test for an interlocutory injunction is as follows:
a) Is there a serious issue to be tried?
b) Will the moving party suffer irreparable harm if the injunction is not granted?
c) Which party will suffer the greater harm from granting or refusing the remedy pending a decision on the merits?
RJR MacDonald v. Canada (Attorney General), 1994 117 (SCC) , [1994] 1 S.C.R. 311 at paras. 72 and 80
[16] I conclude there is a serious issue to be tried. That being whether there was a breach of the agreement.
[17] The real issue is whether the plaintiff has proven he will suffer irreparable harm that he cannot be compensated for in monetary terms. There is no such evidence before me and the plaintiff fails on this ground. As well, the plaintiff has not provided on undertaking to abide by an Order concerning damages that the court may make if it ultimately appears that the granting of the Order has caused damage to the Defendants, as required by Rule 40.03 of the Rules of Civil Procedure.
[18] On the third aspect of the test the plaintiff has failed to persuade me on the evidence produced that the balance of convenience favours him over the defendants. Indeed there is no evidence before me that any comments about the settlement have been made by anyone in the last 2-3 years. As such there would appear to be no ongoing issue and indeed no evidence that either party cannot be compensated adequately in damages and costs after trial.
b) Re: Magnetawan :
Facts:
[19] The plaintiff brings this motion against the defendant Magnetawan for sanctions for it failing to adhere to an agreed timetable.
[20] The plaintiff also seeks damages for wrongful dismissal from his alleged employment with the defendant Magnetawan and aggravated damages in this summary judgment motion. He has also brought an action against the four individual defendants for defamation, which he agrees must go to trial.
[21] The witnesses on the defamation issues will be generally the same as those who would give evidence on the issues currently before me on this summary judgment motion. It is difficult to see any real savings in trial time whether summary judgment is granted or not.
[22] This action arises out of an engagement the plaintiff had with Magnetawan between March 30, 2009 and June 12, 2009 when his services were terminated.
[23] The plaintiff alleges he was hired as CAO and clerk of the municipality. He states there was no fixed term and denies the position was temporary. He claims he was terminated without notice or cause contrary to the Municipal Act or the town’s own hiring policy.
[24] The defendant denies the plaintiff was ever an employee and alleges at best he was an independent contractor. It claims it needed to fill the role of CAO/clerk on a temporary basis as a result of the sudden departure of its CAO/clerk and while looking for a permanent replacement.
[25] The defendants allege the plaintiff was advised that the interim position would only last about 8 weeks until the position was filled permanently.
[26] The contract was with D.R. Free and Associates to provide CAO/clerk services.
[27] It is clear that much of the engagement was by verbal discussions and not reduced to writing.
Analysis:
[28] The onus is on the plaintiff to persuade this court there is no genuine issue for trial. He has not done so.
[29] This case is all about the credibility of the various parties and what they thought they were agreeing to. The court, in order to determine the issue, must hear viva voce evidence and corresponding cross-examination. This is not a case that can be determined by affidavit evidence even if there has been cross examination. The versions are too divergent and the outcome will depend on which party the court believes.
[30] As such this is not a case that is appropriate for summary judgment. It will not save court time if granted. There is no evidence on the issue of aggravated damages. Summary judgment will not affect a fair and just resolution because this court does not have a full appreciation of the evidence and issues that are required for it to make dispositive findings by way of summary judgment.
Combined Air Mechanical , supra.
[31] It is clear there have been breaches of the time table agreed to by the defendant municipality and set by Turnbull, J. It is also clear the defendant has brought no motion to amend the timetable. Rule 3.04(4) allows the court to impose sanctions for failure to abide by a court ordered timetable.
[32] The defendant agrees there have been delays for various reasons which may or may not be valid. If valid a motion should have been brought to amend the timetable.
Conclusion:
[33] The summary judgment motion by the plaintiff in the Meaford action is dismissed.
[34] The summary judgment motion in the Magnetawan action is dismissed.
[35] The motion for sanctions in the Magnetawan action is granted and sanctions are fixed at $1,500.00 payable by the defendants to the plaintiff within 30 days.
[36] As discussed, and agreed to by all parties during the hearing, this is an appropriate case for a case management judge to be formally appointed by the Regional Senior Justice of this region.
[37] That has now occurred and I have been appointed the case management judge and Mr. Newcomb will arrange a conference call with the parties and me through my trial co-ordinator in Brantford, at 9:15 on or before May 25, 2012.
[38] This matter is adjourned to the Simcoe Assignment Court to be held on June 20, 2012. It is expected on that date that all parties will be prepared to set an early date for trial, have a list of witnesses and a realistic estimate as to the length of time required for trial.
[39] The costs of these motions will be in the cause and left to the discretion of the trial judge.
ARRELL, J.
Released: May 7, 2012
COURT FILE NO.: 126/09; 137/09
DATE: 2012/04/07
ONTARIO SUPERIOR COURT OF JUSTICE BETWEE N: DAVID FREE Plaintiff - and - SMITH, et al Defendants REASONS FOR JUDGMENT ARRELL, J.
Released: May 7, 2012