ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 08-CV-356936
DATE: 20130228
BETWEEN:
Rashid A. Balogun
Plaintiff
– and –
Deloitte & Touche LLP
Defendant
Rashid A. Balagun, self-represented Plaintiff
Carlos P. Martins, for the Defendant
HEARD: February 27, 2013
Morgan J.
[1] This is a motion for summary judgment by the Defendant. Counsel for the Defendant submits that the issues are res judicata, having already been decided in a previous British Columbia action between the same parties.
[2] Alternatively, counsel for the Defendant argues that the claim alleges defamation with respect to statements that are clearly covered by qualified privilege. In addition, he submits that there is no evidence of repetition of the defamatory statements and thus no genuine issue requiring a trial.
[3] The Plaintiff was employed as a “tax manager” by the Defendant in British Columbia from mid-2005 until June 16, 2006. There was a disagreement between the Plaintiff and the Defendant as to whether he had quit his job or was fired. The Plaintiff brought an action in British Columbia claiming damages flowing from the termination of his employment and related events. That action was tried in an eight day trial in the Supreme Court of British Columbia in June 2011. The judgment of Smith J. of the B.C. court was issued on October 4, 2011 [Balogun v Deloitte & Touche, LLP, 2011 BCSC 1314].
[4] The first paragraph of the reasons for judgment of Smith J. sets out the parameters of the B.C. claim as follows:
The plaintiff, who is now 49, worked for approximately eight months as a ‘tax manager’ in the Prince George office of the defendant, a national accounting firm. He says his employment was terminated and he seeks damages for wrongful dismissal. The defendant says he voluntarily resigned. The plaintiff also seeks damages for defamation, which the defendant denies.
[5] In the result, Smith J. found that the Plaintiff had not voluntarily resigned, and that the Defendant was under a misapprehension in that regard. Specifically, he found [at para 35]: “although they believed the plaintiff had resigned, [they] recognized the ambiguity in the situation when they discussed requesting a letter of resignation.” He therefore held that, although there was a sincere belief that the Plaintiff had quit, he was in fact terminated and deserved pay in lieu of notice.
[6] The defamation claim, as pleaded and tried in British Columbia, concerned statements made by the Defendant in filling out the Report of Employment regarding the Plaintiff that is required by the federal government for employment insurance purposes. The defamation issue was described by Smith J. as follows [at para 50]:
The plaintiff also seeks damages for defamation. This relates to the statement in the ROE [Report of Employment] that he resigned. He says this falsely labels him a ‘quitter’ which damages his reputation and makes it difficult for him to find other jobs in the field.
[7] This claim was rejected in its entirety by Smith J., who held [at para 52]:
In any case, employees regularly quit jobs for a variety of reasons and I fail to see how a simple statement that the plaintiff did so, even if it was untrue, was capable of being defamatory. If any authority is needed on that point, it is found in Bailey v. Ventin, 1993 CarswellOnt 3852 (S.C.J.). There, an architect was dismissed and the firm sent a letter to clients stating that the plaintiff had left the firm. The court applied the well known test in Sim v. Stretch, (1936) 52 T.L.R. 669 (‘would the words tend to lower the plaintiff in the estimation of right thinking members of society generally?’)…
[8] Moreover, the British Columbia proceedings concluded with an express finding that the Defendant’s personnel acted in good faith toward the Plaintiff. As Smith J. put it [at para 44]:
Damages resulting from the manner of dismissal are available only if the employer engages in conduct that is ‘unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive’… [citation omitted] There is no evidence in this case of any conduct that comes close to meeting the test…
[9] The Plaintiff commenced the within defamation action against the Defendant, arising from the same events surrounding the termination of his employment, on June 16, 2008. The Statement of Claim describes two distinct communications by employees or partners of the Defendant which are alleged to be defamatory in that they advise the listener – in one case a prospective employer of the Plaintiff and in the other case a federal government agency – that the Plaintiff quit his job. The Plaintiff submits that these two new communications are not the same as the one that was in issue in the British Columbia action, but rather are repetitions and republications of the defamatory statements that were in issue there.
[10] As indicated, at issue in the B.C. action was the statement made by an employee of the Defendant on the Record of Employment that the Plaintiff had voluntarily resigned from his job. The first of the two allegedly defamatory statements at issue in the within action is a statement to the same effect by a partner of the Defendant firm, Charles Buchan, to a representative of Price Waterhouse who had called Buchan for a job reference for the Plaintiff. The entire evidence for this claim comes from Buchan’s own affidavit, as follows:
Subsequent to Mr. Balogun’s departure and until the present time, I was contacted only once with respect to Mr. Balogun’s employment at Deloitte by a third party. The only person who contacted me worked for or on behalf of the accounting firm Price Waterhouse Coopers at its location in San Jose, California. This occurred sometime in the summer of 2006.
At no point during this conversation did I provide any information or comment as to Mr. Balogun’s profession performance at Deloitte. At the request of the person who contacted me, I provided confirmation of the length of Mr. Balogun’s employment Deloitte. Also at the request of the person who contacted me, I provided the reason for Mr. Balogun’s departure from Deloitte, which I understood at that time to be that he had quit his employment. No other information was requested, and I provided no other statement, comment or reference about Mr. Balogun.
[11] The Plaintiff argues that this statement came subsequent to the filling out of the Record of Employment and so was either a separate defamatory statement or a repeat of the defamatory statement considered in the B.C. proceedings; and that, in either case, it is separately actionable. He also submits that the meaning of any statement must be taken in context, and the different context of this conversation from the filling out of a Record of Employment changes the meaning of the allegedly defamatory statement.
[12] I agree, of course, that a repetition of a defamatory statement or a republication of a libelous comment would be separately actionable acts. The crucial point, however, is that the words must be defamatory in the first place. The words in issue here, however, have been determined not to be defamatory. Smith J. not only sat through many days of evidence on this issue, but reviewed carefully the case law which has considered similar statements in the past. He determined, as have numerous other courts, that a “simple statement that the Plaintiff did so [i.e. quit his job]” is not defamatory.
[13] In the within action, it is asserted that Buchan’s identically “simple statement” that the Plaintiff had quit his job is newly actionable. It is not. The context of a phone call with a prospective employer does not change the meaning of the words used, especially given the banal way in which the conversation transpired.
[14] This is a paradigmatic case for the application of the doctrine of issue estoppel. The concept of issue estoppel is invoked in order to “[preclude] a party from relitigating a legal or factual issue that has been conclusively resolved in a prior proceeding.” Smith Estate v National Money Mart Co., 2008 CarswellOnt 6415, at para 33 (Ont CA). This is what the Plaintiff here appears to be attempting to do.
[15] Smith J. conclusively resolved the question of whether the simple statement that the Plaintiff quit his job is defamatory; the Plaintiff clearly does not agree with the conclusion reached in British Columbia and so is attempting to relitigate it here. As the Supreme Court of Canada has put it, issue estoppel limits the Plaintiff “to one bite at the cherry”. Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460, at para 18. He cannot revisit the “quit” issue in a new action.
[16] The other instance of alleged defamation at issue in the within action is a statement made by another partner of the Defendant, Betty Anne Shiels, to an employee of Service Canada who called her for clarification of the Record of Employment submitted by the Defendant. Specifically, the Service Canada employee wanted clarification of the statement on the ROE that the Plaintiff had quit his job – i.e. she requested clarification of the very statement that was at issue in the British Columbia proceedings.
[17] The allegedly defamatory statement by Shiels is reproduced in a Service Canada memo found in the record. The memo records the salient part of the conversation as follows:
She states that the claimant had been spoken to on numerous occasions regarding he [sic] work performance and the company requirements. They did not believed [sic] he was working at a level to which he indicated he was capable when he was hired. He was scheduled to go on holidays the last two weeks of June and the week prior tothis was agains spoken to about his performance. The claimant got upset about this and said that there was no one in the company who was capable of evaluating his performance. They felt that by saying this and his behaviour he had indicated at that time that he quit his job.
[18] The Plaintiff argues that this statement goes beyond the comment that he quit his job and attacks his professional competency. In my view, that greatly overstates the nature of Shiels’ conversation with the Canada Service agent. She did little more than to provide context and reasons for the very notation on the Record of Employment that he had quit. It is noteworthy that Shiels engaged in this brief conversation at the request of the same agency that had already received the ROE.
[19] What’s more, it turns out that this information was of no detriment – indeed, it appears to have been helpful – to the Plaintiff. The very next day, Service Canada issued a ruling in which the Plaintiff was granted the Employment Insurance benefits that he sought. The ruling dated July 21, 2007 makes it clear that the context provided by Shiels was instrumental in establishing that the Plaintiff had not simply resigned his position out of the blue, and that his severance was of a nature that did not disqualify him from benefits.
[20] The result of the conversation between Shiels and Service Canada confirms the conclusion reached by Smith J. that the statement that a person quit his job is not offensive or defamatory in any way. Indeed, the Ontario Court of Appeal has specifically found that a statement that a person has chosen to leave his employment is very different from a statement that he was forced out of his firm, and is generally an innocuous way to characterize the employee’s departure. Mantini v Smith Lyons LLP (2003), 2003 22736 (ON CA), 64 OR (3d) 516, at para 13.
[21] The Plaintiff cites Lockington v. Siegrist & Co., 1935 60 (ON CA), [1935] OR 402 (Ont CA) for the proposition that a mistake like this, where a person’s severance from his job is mischaracterized, can sometimes be a sign of malicious intent by the speaker. The Lockington case, however, was one where a third party was advised that the plaintiff had been fired from his job when in truth he had quit. That scenario presents a false analogy to the present case; advising a third party that a person has quit his job, where the truth is that he was fired, is not the same as its reverse. Where a person that was fired is said to have quit, the statement is, as the court in Mantini held (and as Smith J. held in the in B.C. action), an entirely benign comment.
[22] What is most important here, of course, is the simple fact that, right or wrong, Smith J. already ruled on the point. The British Columbia judgment says that the Defendant’s statement informing of a government agency that the Plaintiff quit was not defamatory; ipso facto, the short contextualization of that statement by Shiels to the very same government agency does not raise a new issue. If the within action were to proceed to trial, the court would have to decide the very question that has already been decided by the British Columbia Supreme Court.
[23] The three necessary ingredients for issue estoppel – “(1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised their privies” – are all clearly present here. Angle v. M.N.R., 1974 168 (SCC), [1975] 2 SCR 248, at 254, quoting Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 AC 853 (HL). The Plaintiff is estopped from relitigating the defamation claim.
[24] There is nothing more alleged in the within action than two instances that repeat the defamation allegations already tried in British Columbia. The action is therefore dismissed.
[25] The Defendant is to have its costs on a partial indemnity scale for the entire action. The Plaintiff shall pay the Defendant a total of $42,000.00, inclusive of disbursements and HST.
Morgan J.
Released: February 28, 2013
COURT FILE NO.: 08-CV-356936
DATE: 20130228
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Rashid A. Balogun
Plaintiff
– and –
Deloitte & Touche LLP
Defendant
REASONS FOR JUDGMENT
E.M. Morgan J.
Released: February 28, 2013