ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-52841
DATE: 2012/12/ 20

BETWEEN:

Jordan Luc Thode Plaintiff/Respondent – and – University of Ottawa and Gillian McLellan Defendants/Moving Parties

Phillip Trotter, for the Plaintiff/Responding Party

Stephanie Drisdelle, for the Defendants/ Moving Parties

HEARD: December 13, 2012

REASONS FOR DECISION ON MOTION

McNAMARA J.

[ 1 ] This is a motion by the defendants seeking dismissal of the plaintiff’s claims on the basis that they disclose no reasonable cause of action within the context of rule 21.01.

[ 2 ] By the date of the return of the motion, the plaintiff, by way of an amended Statement of Claim, had withdrawn claims for damages for intentional or negligent infliction of mental distress and for damages for negligent investigation. That left claims against the defendant University for damages for defamation, negligence, and punitive damages. As against the defendant McLellan claims are advanced for defamation and punitive damages.

[ 3 ] On the motion the defendant proceeded on three bases:

a) that the action should be struck on the ground that this court has no jurisdiction;

b) that the Statement of Claim does not disclose a cause of action in defamation; and

c) the Notice of Action is a nullity.

Basic Factual Background

[ 4 ] The only pleading filed to date is the Statement of Claim which was subsequently amended.

[ 5 ] In very brief form, the Amended Statement of Claim alleges that in September of 2009 the plaintiff and the defendant McLellan were both students at the defendant University. They were initially friends. The Claim alleges, however, that sometime in mid-November of 2009 the defendant McLellan allegedly defamed the plaintiff by reporting false allegations to a protection officer at the University Protection Services. It is pled that, according to a Protection Services report dated November 15, 2009, the applicant McLellan falsely reported that:

• Two weeks earlier the plaintiff had approached the defendant McLellan after class and advised her he really liked her, had strong feelings for her, and wanted to pursue his feelings in a relationship knowing she had a boyfriend.

• That the plaintiff told the defendant he was not able to sleep, paced in his bedroom all night to fall asleep, and also advised her he could not live without her.

• That the defendant was concerned for the plaintiff’s health as he might hurt himself and did not seem to have any friends or family in the area.

• That the defendant had reported that the plaintiff had asked her out four times and had said things that made her feel uncomfortable.

[ 6 ] It is also pled that the defendant McLellan made changes to the original report including allegations that the plaintiff told her that he vomited when he found out she had a boyfriend, and that he was sad that she had met the love of her life.

[ 7 ] The plaintiff denies the allegations, says they are false and that the defendant McLellan in making the statements defamed him. He alleges further that the university, in reporting and publishing the false allegations, defamed him as well. The plaintiff also pleads that the defendant university was negligent in the way it handled the entire matter.

Analysis

[ 8 ] Motions under rule 21.01 will only succeed where it is plain and obvious, assuming the facts plead to be true, that the pleading discloses no reasonable cause of action. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed. In other words the threshold for sustaining a pleading is not a high one.

[ 9 ] With that by way of background, I move on to the arguments raised by the moving parties.

[ 10 ] The defendants argue firstly that this court does not have jurisdiction because this matter is of an academic nature. They submit that where the essence of a dispute is in respect of academic matters which are internal to the university and within its internal code, the court should not intervene because of the special relationship of members of a university, the importance of academic independence, and the special ability of university tribunals to fairly consider their internal procedures and customs. (See Gauthier c. Saint-Germain, 2010 ONCA 309.)

[ 11 ] Generally speaking, while that statement is accurate, the cases make it clear that whether a dispute is an academic dispute is a question of fact. The only document before me on this motion relative to that issue is the Statement of Claim. There is nothing in that document that would lead to a conclusion that the dispute between these parties arises out of the academic decisions and procedures of the University. Rather the remedy claimed is for defamation and negligence. It does not seek, for example, to have an internal academic decision of the University reversed or anything else of that nature. There is nothing before the court about any internal codes of the University, nor the availability of university tribunals to consider problems of this nature.

[ 12 ] It is not plain and obvious that the court has no jurisdiction over the subject matter of the action.

[ 13 ] Turning to the claim for defamation, it is common ground that there are three elements which a plaintiff must establish to succeed in a defamation action:

a) That the words complained of were published;

b) That the words complained of referred to the plaintiff;

c) That the words complained of, in their natural and ordinary meaning, or in some pleaded extended meaning, are defamatory of the plaintiff.

Counsel for the defendant in her submissions argued, in essence, that the words complained of in this case did not meet the requirements of the third element set out above.

[ 14 ] What makes a statement defamatory was well put by Cunningham J., as he then was, in Leenen v. Canadian Broadcasting Corp., 2000 22380 (ON SC), [2000] O.J. No. 1359. In that decision he commented as follows at para. 40:

A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers, a statement which tends to lower that person in the estimation of right-thinking members of society generally and, in particular, to cause the person to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem. The very essence of a defamatory statement is its tendency to injure reputation, which is to say all aspects of a person's standing in the community. (Emphasis added)

[ 15 ] The Statement of Claim alleges, amongst other things, that as a result of the statements in question the plaintiff’s reputation in his chosen, very specialized academic field has been adversely affected and that he was forced to transfer to another university. Assuming those facts to be true and with nothing to the contrary, it is arguable the reputation of the plaintiff could be injured by them. As with virtually all of the cases cited by counsel for the defendant during her submissions on this point, whether or not the plaintiff has been defamed will require evidence. It is certainly, in my view, not plain and obvious that the Statement of Claim discloses no reasonable cause of action in this regard.

[ 16 ] I move finally to the argument that the Notice of Action is a nullity.

[ 17 ] Counsel for the defendant submits the Notice does not comply with rule 14.03(2) in that it does not contain a short statement of the nature of the claim.

[ 18 ] I disagree.

[ 19 ] The Notice, in para. 1, clearly states it seeks damages against the defendant University for defamation, negligence, and punitive damages. As against the defendant McLellan, it seeks damages for defamation and punitive damages. That is the inherent or essential character of the claims. It is true that it does not mention the specific events that led to the claims being advanced, but that was remedied by the Statement of Claim filed well within the 30 days required under rule 14.03(3).

[ 20 ] This factual situation is very different from that in Young v. Progressive Insurance, 2002 79676 (ON SC), [2002] O.J. No. 909, that was relied upon by counsel during her submissions. The Notice of Action in the case at bar identifies the same defendants as appear in the Statement of Claim, and there is no evidence before me that the claim in this matter was issued on the last day of limitation as was the case in Young. The defendants suffered no demonstrable prejudice from the wording of the Notice of Action.

[ 21 ] Counsel for the responding plaintiff conceded during submissions that the Statement of Claim requires amendment, particularly in the area of the claim for negligence. Both counsel advised that they felt they could agree on any amendments should I order the dismissal of the defendants’ motion.

[ 22 ] That motion is dismissed and the plaintiff is granted leave to amend the Statement of Claim.

[ 23 ] The responding plaintiff, having succeeded in resisting the defendants’ motion, should have his costs unless there are facts of which I am unaware. If the parties are not able to agree on costs, brief written submissions can be filed within 21 days from the date of this decision.

The Hon. Mr. Justice James McNamara

Released: December 20, 2012

COURT FILE NO.: CV-11-52841

DATE: 2012/12/20

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Jordan Luc Thode Plaintiff/Respondent – and – University of Ottawa and Gillian McLellan Defendants/Moving Parties REASONS FOR DECISION ON MOTION The Hon. Mr. Justice James McNamara

Released: December 20, 2012