Ontario Society for the Prevention of Cruelty to Animals

2012 ONSC 3647

COURT FILE NO.: SR11-992

DATE: 2012/06/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DAVID ROBINSON and MARILYN ROBINSON Plaintiff – and – ONTARIO SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS Defendant

Kurtis Andrews, for the Plaintiff

Lorne Honickman, for the Defendant

HEARD: April 11, 2012

Justice Pelletier

reasons for judgment on defendant’s motion for summary judgment and plaintiff’s cross motion for an order striking out the defendant’s claim of qualified privilege as a defence

Background

[ 1 ] In the winter of 2011, the OSPCA visited the Robinsons’ farm in Chesterville, Ontario on a number of occasions. The initial attendance had resulted from a citizen’s complaint concerning the conditions in which the Robinsons’ cattle were kept.

[ 2 ] As a result of the OSPCA’s attendance, a compliance order was issued requiring the Robinsons to improve the situation concerning feed and water for the animals, bedding and shelter, and average body condition to acceptable levels.

[ 3 ] The Robinsons appealed the compliance order. The Animal Care Review Board upheld the orders, deeming them to be based on reasonable grounds and concluding that the orders were reasonable in the circumstances as necessary to relieve the cattle of their distress. The Robinsons have appealed the Review Board’s ruling.

[ 4 ] As the Review Board was conducting its hearing, the Robinsons were charged with 14 counts under the Ontario Society for the Prevention of Cruelty to Animals Act in relation to the condition of their cattle and the conditions in which they were kept. Those charges are presently before the Ontario Court of Justice.

[ 5 ] At about the same time, the compliance orders were withdrawn as it was felt by the OSPCA that the required conditions concerning the cattle had been met.

[ 6 ] Against this backdrop of OSPCA investigations, compliance orders, hearings and charges, articles published and responded to have given rise to the present litigation. Following the Review Board’s hearing, but prior to the release of its ruling, and following the laying of OSPCA Act charges against the Robinsons, an article was published in the June 2011 edition of the Farmers’ Forum concerning this case. The article, authored by reporter Ian Cumming (Appendix A) is critical of the OSPCA, its employees and its practices. It supports the Robinsons and concludes with the observation that “when it comes to the law, the OSPCA is above it and every farmer needs to know it”. Approximately 14,500 copies of the Farmers’ Forum are printed and distributed in Eastern Ontario. The number of people accessing the publication online is unknown.

[ 7 ] The OSPCA responded in the July 2011 edition of the Farmers’ Forum (Appendix B). The Robinsons are suing the OSPCA for libel as a result of the contents of the letter. They deem the OSPCA response to be grossly inaccurate and damaging to the Robinsons’ reputation within the close-knit farming community in which they live.

[ 8 ] The OSPCA defends the suit by invoking 4 of the 8 recognized defences to defamation: justification, fair comment, responsible communication and qualified privilege. The Defendant also invokes the freedom of expression provisions at the Canadian Charter of Rights and Freedoms. The present motion for summary judgment by the Defendant is premised on the notion that the Court if capable of determining, on the basis of the existing record, that the defence of qualified privilege will prevail. The Plaintiffs dispute that assertion, suggesting that the defence of qualified privilege does not arise and was in any event vitiated by the Defendant’s malicious intent, and dishonest or reckless disregard of the facts.

[ 9 ] The Court must therefore determine if it is capable of assessing the merits of the qualified privilege defence on the basis of the record as it exists. This will turn on whether a full appreciation of the issue is possible at this juncture.

The Positions of the Parties

[ 10 ] Counsel for the Defendant argues that Ian Cumming’s article created an occasion requiring a response by the OSPCA. In the Defendant’s view, there was a duty to correct the errors contained in Mr. Cumming’s article and a corresponding duty by the Farmers’ Forum readership and others to be properly informed in relation to the OSPCA’s mandate and operations. The Plaintiff’s position is that the defence of qualified privilege is not unavailable to the Defendant for 5 reasons: the letter authored by Mr. Cumming did not create an occasion of qualified privilege, the response was motivated by ill-will towards the Robinsons, it grossly misstated the facts, it was made without any consideration of whom was aware of Mr. Cumming’s comments and who would receive the Defendant’s response, and finally, the original letter was that of Mr. Cumming, rendering a spirited counterattack against the Robinsons unfair and unnecessary. In the Plaintiff’s view, any response required to Mr. Cumming’s letter could have been provided without involving the circumstances of the Robinsons’ case, particularly as the matter was before both the Review Board and the Ontario Court of Justice.

The Law of Qualified Privilege

[ 11 ] The law concerning the defence of qualified privilege against a claim of libel can be summarized as follows: certain defamatory statements receive a limited and conditional immunity if they serve “the common convenience and welfare of society.” 1 The defence of qualified privilege is thus premised upon the need of the intended audience to receive frank and uninhibited communication concerning a particular subject.² The circumstances in which the defence arises are referred to as occasions of qualified privilege. The privilege attaches to the occasion and is limited in the response to that occasion. The determination of whether an occasion of qualified privilege exists depends upon whether the person publishing the statement has an interest or duty, legal, social, moral or personal, to publish the information and further, whether the person or persons to whom it is addressed have a corresponding duty or interest in receiving the information.³

1 Grant v. Torstar Corp. 2009 SCC 61 () , [2009] S.C.J. No. 61 at page 30
2 Reynolds v. Times Newspaper Ltd. [1999] 3 W.L.R. 1010 at 1017 [H.L.]
3 Hill v. Church of Scientology of Toronto 1995 59 (SCC) , [1995] S.C.J. No. 64 at para. 163

[ 12 ] The categories of qualified privilege are not exhaustive. Each claim must be assessed on an objective standard and in the context of the particular circumstances. A pre-existing relationship between the parties, though not essential, is most common. Qualified privilege will more readily be recognized in circumstances involving established relationships given that the defence is premised on a reciprocal duty to inform and to be informed. 4 Once invoked, qualified privilege creates a presumption against malice on the part of the defendant. The existence of malice, as a dominant and improper motive, defeats the defence. In this context, malice is defined as a desire to injure the plaintiff, intentional dishonesty, reckless disregard for the truth, or any ulterior motive that conflicts with the interest or duty created by the occasion. 5

4 Kearns v. Bar Council [2003] All E.R. 534 at p. 547 (C.A.)
5 Cusson v. Quan 2007 ONCA 771 () , [2007] OJ No. 4348 (Ont.C.A.) revd on other grounds 2009 SCC 62 () , [2009] SCJ No. 62 (S.C.C.)

[ 13 ] Deliberate falsehood is prima facie malicious, as in recklessness and indifference to the truth, tending to show that the defendant could have no honest belief in the statement made. 6 Carelessness or negligence is insufficient to establish malice as regards the truth or accuracy of the statement. An honest belief in the truth of a statement can be arrived at, without fault, even in circumstances of oversight or error. 7 Malice may be inferred from language that is “so violent, outrageous or disproportionate to the facts.” 8 The conduct of the defendant prior to, during and subsequent to the publications may also be instructive on determining whether the response exceeded the scope of qualified privilege.

6 TRC Engineering Consultants Ltd. v. Ontario (Ministry of the Solicitor General and Correctional Services ) [2003] O.J. No. 1001 (Ont. C.A.)
7 Botiuk v. Toronto Free Press Publications Ltd. 1995 60 (SCC) , [1995] S.C.J. No. 69
8 Korach v. Moore 1991 7367 (ON CA) , [1991] O.J. No. 1 (Ont. C.A.)

[ 14 ] The privilege also requires that the information be communicated to the appropriate persons. The privilege will be exceeded if the audience includes a disproportionate number of unintended recipients. 9 This consideration is challenging in cases involving information that becomes available on the Internet. 10

9 Wells v Sears 2007 NLCA 21 () , [2007] N.J. No. 106 (N.L.C.A.)
10 Christian Labour Association of Canada v. Retail Wholesale Union [2003] B.C.J. No. 3100 (B.C.S.C.)

[ 15 ] The privilege may be exceeded if it is invoked prematurely, particularly where vigourously contested assertions are to be determined imminently. 11

11 DeBuse v. McCarty and Stepney Borough Council [1942] 1 All E.R. 19 (C.A.)

[ 16 ] Finally, despite the creation of the relatively new defence of responsible communication in relation to media defendants, qualified privilege remains available in cases of mass media communications and is to be assessed using the same criteria as in all cases of qualified privilege; an occasion of publication which is privileged if the publisher has an interest or duty, legal, social, moral or personal, to publish the information at issue to the person to whom it is published, and the person to whom it is published has a corresponding interest or duty to receive it. 12

12 Grant v. Torstar Corp., supra

Summary Judgement

[ 17 ] Rule 20 of the Rules of Civil Procedure, amended January 1, 2010, creates the procedure whereby matters not requiring a trial be dealt with summarily. The Court can engage in a review of the existing record while performing a limited role in weighing evidence, assessing credibility and drawing reasonable inferences. The amended rule is not intended to replace trials, but rather ensure their necessity where a determination cannot otherwise be made. The issue has been framed as “can the full appreciation of the evidence and issues that is required to make dispositive findings be achieved by way of summary judgment, or can this full appreciation only be achieved by way of trial?” 13

13 Combined Air Mechanical Services Inc. v. Flesch 2011 ONCA 764 (ONT.C.A.)

Analysis

[ 18 ] For the Defendant’s summary judgment motion to succeed, the Court must be sufficiently situated, on the factual and legal issues, to be able to make final determinations in the Defendant’s favour on the defence of qualified privilege. Similarly, the Court, in assessing the Plaintiff’s cross motion to strike out the qualified privilege defence, must be able to rule in a dispositive fashion that the defence is without merit or would necessarily fail. The present record is insufficient on both fronts.

[ 19 ] The principal issue that remains triable is the factual background to this litigation. Assuming that an occasion of qualified privilege arose in the wake of Mr. Cumming’s letter, the response by the OSPCA is subject to certain reasonable limits. It is impossible presently to determine whether those limits were exceeded for the following reasons.

[ 20 ] Malice on the part of the OSPCA, notably in the conduct of the author of the June 29, 2011 OSPCA’s response, can be inferred if the impugned response was written without regard to the facts or in a manner demonstrating indifference or recklessness concerning the actual circumstances of this case. The latitude granted to a defendant relying upon certain facts in a qualified privilege response is not absolute. The extent to which a defendant’s reliance upon certain facts was reasonable depends necessarily on an examination of those facts. The OSPCA’s interactions with the Robinsons spans 5 months, including 5 visits to the farm. It involves the services of three veterinarians, two of whom, according to the Plaintiffs, gave evidence at the Review Board hearing that is inconsistent both with the Board’s findings and the subsequent affidavits of those veterinarians, prepared in contemplation of the pending Charter Application in the provisional offences prosecution presently before the Ontario Court of Justice. There is no record of the Review Board’s hearing. Beyond the August 15, 2011 decision itself, the evidence heard can only be described by those in attendance.

[ 21 ] The Review Board’s findings and conclusions are presently under review by way of appeal to the Superior Court.

[ 22 ] Amidst this multitude of statements, testimony, affidavits and examinations remain a number of factual issues that remain unanswered affirmatively. These include the quantity and quality of feed available to the Plaintiff’s herd, the conditions in which the calves found themselves, the availability of water, the availability of shelter, and the condition of the cattle and the attention paid by the OSPCA to those facts in formulating its response to Mr. Cumming’s article. To attempt presently to arrive at a patchwork determination of the facts relating to these issues, by an examination, comparison and reconciliation of the various sources of information to date is a disservice to the litigants and not an exercise contemplated by Rule 20 despite the recent amendments. Testimony given under oath or solemn affirmation, subject to rigourous cross-examination conducted before the trier of facts remains the most accurate and in some cases, the only manner of revealing the truth.

[ 23 ] There is little more that the author of the June 29 response can do beyond deny that she was motivated by ill-will, revenge, or a desire to convert this case into a fundraising exercise. Conversely, there is little more that the Plaintiffs can do beyond confronting the OSPCA representatives with that suggestion and certain circumstances allowing for such inferences. The impasse is difficult to resolve given that there exists evidence that both support and contradict these two positions.

[ 24 ] The affidavit evidence of Mr. Robinson and Chief Inspector Mallory and the related cross-examinations on those affidavits are instructive but not determinative of the issue of the defence of qualified privilege.

[ 25 ] Several areas remain contentious and cannot be resolved on the basis of the documentary record alone. These include:

• Mrs. Robinsons’ assertions that Inspector Bonnie Bishop is not qualified to draw conclusions on the condition of the cattle and the conditions in which the cattle were kept;

• That further orders were made without any consultation or basis in fact;

• That the Plaintiff’s veterinarian was never properly consulted, nor were local members of the farming community who took an interest in the proceedings;

• That the herd was inadequately examined and assessed by the OSPCA and its agents;

• That the veterinarian retained by the OSPCA is biased and inclined to support the OSPCA’s position ;

• That the Animal Care Review Board was not impartial in its treatment of the parties and the rulings made during the hearing;

• That the Board “grossly misrepresented the testimony of various witnesses”;

• That the OSPCA made no effort to minimize any harm to the Plaintiff’s reputation following the publication and online posting of the impugned communication.

[ 26 ] Most importantly, the Plaintiffs allege that Chief Inspector Mallory knew or ought to have known that there were these deficiencies in the OSPCA’s position.

[ 27 ] The cross-examination of Mrs. Robinson on her affidavit was hampered by the existence of outstanding charges, relating to the same circumstances, in the Ontario Court of Justice. Counsel for the Defendant was correct in not placing the Plaintiffs at risk of prejudice to their defence by addressing the merits of the matter during cross-examination on the affidavit of Mrs. Robinson.

[ 28 ] In due course, such cross-examination would be necessary to properly assess the merits of Mrs. Robinson’s contentions concerning the state of the cattle, the nature of the investigation and the outcome before the Review Board. This would necessarily impact on the assessment of the reasonableness and relative accuracy of the Defendant’s response to Mr. Cumming’s letter. In stating this, I am mindful that the defence of qualified privilege is available even if misinformation is related. The issue of recklessness by the Defendant in connection with the actual circumstances, however, requires a careful analysis of the facts, as known and inquired into by the Defendant.

[ 29 ] Beyond that, the cross-examination covered in more detail the issue of harm to the Plaintiff’s reputation flowing from the OSPCA response letter, which is of no moment in the present analysis.

[ 30 ] Similarly, Chief Inspector Mallory’s affidavit is a recital of circumstances relied upon by her in formulating the OSPCA response to the letter of Mr. Cumming. It does not purport to comment on the accuracy or reliability of the information that was available to her. It is by and large dependant on the evidence heard by the Review Board and the decision it arrived at, which is vigorously opposed by the Plaintiffs, by way of appeal of the Board’s decision, and an intention to defend the charges pending in the Ontario Court of Justice.

[ 31 ] Chief Inspector Mallory states in her affidavit that she was without any ill will towards the Robinsons and was simply fulfilling one of her many duties, which include public awareness and information. Chief Inspector Mallory expresses the view that the present lawsuit is itself ill-motivated, as an attempt by the Plaintiffs to “try and stifle and deter the OSPCA from discharging its duty, i.e. specifically, to provide information to the public and ensure that the public receives that information.”

[ 32 ] In her cross-examination on her affidavit, Chief Inspector Mallory, comprising some 205 pages of transcript, the witness is questioned in detail on the following subjects:

• The role and structure of the OSPCA

• Financing for the OSPCA and its challenges

• Enforcement of the Act

• The use of case specific references in press releases and on the OSPCA’s website

• The OSPCA’s reference guides and codes

• The role previously performed by the Dairy Farmers’ Association relating to the work of the OSPCA

• Whether the present case generated any revenues for the OSPCA by way of donation

• The extent of Chief Inspector Mallory’s knowledge of the present case from various sources and from her attendance for 5 days at the Review Board hearing

• Chief Inspector Mallory’s knowledge relating to farm practices generally

• Contentious issues and disputed facts during the Review Board hearing

• The potential readership of items posted on the Internet

[ 33 ] The cross-examination of Chief Inspector Mallory was difficult. Most pages of the transcript are punctuated by vigorous exchanges between counsel on the relevance of certain questions, and whether opposing counsel’s interpretation of certain facts is fair and accurate. The cross-examination of Chief Inspector Mallory on the relationship between the OSPCA and Dr. Armstrong was particularly difficult. Exchanges concerning the Review Board hearing and the validity of its findings also prompted more discussion between counsel than responses by the witness. Occasionally, those discussions digressed into spirited debate on the merits of the action and its defence, and the law of defamation generally.

[ 34 ] I am not indifferent to the challenges that examinations from discovery in the form of cross-examinations on affidavits can sometime pose for counsel. Counsel are duty bound to protect their witnesses and defend their positions. Occasionally, matters are referred to the Court for a determination on a contested point. On other occasions, undertakings are given or taken under advisement.

[ 35 ] Similarly, the Court recognizes that while affiants are bound to carefully review their affidavits and only swear to their accuracy if that is their honestly held belief, such documents are routinely prepared by counsel, on the instructions of their clients, with a view to addressing specific issues, sometimes legal, that may be of importance. The cross-examination of Mrs. Robinson touched upon this issue.

[ 36 ] Therein lies the importance of the trial process in the fact finding exercise. Witnesses provide testimony based uniquely on personal knowledge and honestly held beliefs where reliance on secondary sources is relevant, as in this case. The trial is focused on issues relevant to the litigation with immediate rulings in contentious areas.

[ 37 ] There exist reasons to conclude that the OSPCA response was not motivated by ill-will, in as much as Chief Inspector Mallory has said so, given also her explanation concerning her reliance on various sources of information and given her evidence on her role in educating the public, correcting errors in reporting, and defending the integrity of the OSPCA and its agents.

[ 38 ] That said, qualified privilege may be challenging to assert given the absence of a special relationship between the OSPCA and the intended readership of the June 29, 2011 response to Mr. Cummings’ article. The Defendant will be confronted with the issue of a response which is too broad and far- reaching in its distribution. The dominant motive will be an issue given that by their own evidence, the OSPCA could respond without invoking the facts of a particular case. That the matter was pending before 2 Courts on related proceedings accentuates this issue. The impugned letter was not a classic case of responding in kind contemplated by the defence of qualified privilege as the author of the article responded to was not, on the evidence available, connected to the Plaintiffs except in their mutual interest in matters of farming and government regulations. I am accordingly of the view that the defence of qualified privilege may be available if these hurdles are overcome, but that each of these issues must be squarely and directly put to the litigants and witnesses for the Court to be able to properly situate the defence of qualified privilege in this proceeding.

[ 39 ] I have therefore concluded that a full appreciation of the merits of the qualified privilege defence is not possible on the record before me. The issue of dominant purpose in the OSPCA response remains a live and triable issue notwithstanding Chief Inspector Mallory’s clear and specific denial of any improper motive during her cross-examination. Counsel for the Plaintiff is entitled to question the credibility and reliability of that evidence and a dispositive determination of that issue cannot be made presently.

[ 40 ] In providing their decisions, Courts are required to provide reasons for judgment that inform the litigants of the process by which the decision was arrived at and which allows for judicial review. Fully developed reasons for judgment could not be provided on the existing record.

[ 41 ] This case is part of a process that has resulted in hearings before an administrative tribunal, pending charges under the Provincial Offences Act and ultimately will involve a hearing in the civil courts. The applicable rules of evidence, the burdens of proof and the ultimate objectives are different in all three settings.

[ 42 ] The interests of the parties are best served by allowing a complete and discreet examination of the issues in the civil setting. The related proceedings may prove to be instructive to the parties and may play a role in the present action, particularly in the cross-examination of witnesses.

[ 43 ] On a practical level, having determined that the factual determination necessary to properly assess the merits of the qualified privilege defence can only be made on the basis of a complete and comprehensive evidentiary record, the inclusion of the qualified privilege defence as an issue at trial does not generate any extraordinary effort, time or costs to the parties and will allow a fulsome and comprehensive examination of all issues within the trial process, presumably with the benefit of determinations on matters presently outstanding in other related proceedings.

[ 44 ] In the result, both motions are dismissed. Unless they are able to agree otherwise, the parties may exchange and file written cost submissions by July 31, 2012.

Justice Robert Pelletier

Released: June 22, 2012

David Robinson and Marilyn Robinson v.

Ontario Society for the Prevention of Cruelty to Animals, 2012 ONSC 3647

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: DAVID ROBINSON and MARILYN ROBINSON v. ONTARIO SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS, 2012 ONSC 3647 REASONS FOR JUDGMENT Justice Robert Pelletier

Released: June 22, 2012