SUPERIOR COURT OF JUSTICE – ONTARIO

Court File No.: CV-07-542
Date: 2013-03-28

RE: Julie Craven and John Craven, Plaintiffs

AND:

Richard Chmura, Defendant

BEFORE: The Honourable Mr. Justice Robert Nightingale

COUNSEL:
Michael Jaeger, Counsel, for the Plaintiffs

Richard Chmura – Self Represented

HEARD: December 19, 2012

ENDORSEMENT

[1] The Plaintiffs Julie Craven and John Craven, being the two remaining Plaintiffs in this action, brought this motion for summary judgment against the remaining Defendant Richard Chmura, having been granted leave by the pre-trial justice on December 7, 2010.

[2] The Plaintiffs in their Statement of Claim sought significant damages including general, punitive and aggravated damages as a result of numerous allegedly defamatory statements made on two websites operated by the Defendant in the summer of 2007. In their motion for summary judgment, the Plaintiffs ask for general damages for libel, intentional infliction of mental suffering, invasion of privacy and intimidation together with punitive and aggravated damages and special damages “in the discretion of this Honourable Court or as determined on a reference”.

[3] The Plaintiffs also ask for an order directing the Defendant to terminate the operation, dissemination and broadcast of his two websites and also for an order restraining him from establishing or operating any websites containing the same or similar content to that which is or has been posted on these two existing websites.

[4] The Plaintiffs alternatively have brought a motion to strike out the Defendant’s Statement of Defence or portions thereof as showing no reasonable defence.

[5] The Defendant, who is self-represented, opposes the Plaintiffs’ motion suggesting that this case should proceed to trial his having raised various defences including that the statements made are not capable of being or in fact are not defamatory to the Plaintiffs as well as defences of justification, fair comment, qualified privilege and responsible communication of a matter of public interest, giving a wide latitude to an interpretation of those defences pled.

FACTUAL BACKGROUND:

[6] The affidavit of the Plaintiffs provided the following evidence and factual background in this case.

[7] The Plaintiff Julie Craven is the daughter of the Plaintiff John Craven and they are the mother and grandfather respectively of the deceased Jared Osidacz. The Plaintiff Julie Craven was at one time married to the late Andrew Osidacz, the father of Jared. The Defendant Richard Chmura is the former brother-in-law of the late Andrew Osidacz.

[8] On the evening of March 18, 2006, Andrew Osidacz during an unsupervised access visit stabbed their eight-year-old son Jared to death. After killing Jared, he then forced his way into the Plaintiff Julie Craven’s home, held her at knife point for over 45 minutes until police arrived and shot Andrew Osidcaz dead as he was about to plunge a large butcher knife into her throat.

[9] The Plaintiff’s affidavit alleges the Defendant set up two websites in the summer of 2007 and states that she believes that both websites containing a series of statements libel and defame her father and herself. Her affidavit stated that the websites sought to glorify the life of Andrew Osidacz and also attempted to defame and intimidate herself and members of her family relating to these events that happened in March 2006. The affidavit said that the sites alleged that her family and her were false victims and accused her family of contributing to Jared’s death.

[10] The Plaintiff Julie Craven was obviously an eyewitness/victim to the events that took place in March 2006. Her affidavit confirmed that liability for the March 18, 2006 wrongful death of Jared by the estate of Andrew Osidacz and for assault with a weapon and forcible confinement against her as a result of that incident was conclusively established by an Order of this court on January 21, 2009 in a separate action commenced by Julie Craven against the estate of Andrew Osidacz. That court Order is referred to in the Plaintiffs’ affidavit material and was not disputed in the Defendant’s affidavit.

[11] The Defendant’s affidavit indicated that he intended to show that evidence exists that would contradict the version of the Plaintiff Julie Craven on how the incident happened as she alleged suggesting that his then 14 year old son’s evidence was that she was in another room altogether when Andrew Osidacz was killed by the police. However, the Defendant himself was not present at the scene as he in fact resided out of the country at the time and no evidence from the Defendant’s son was provided by affidavit evidence or otherwise.

[12] The Defendant admitted in his Statement of Defence that he alone acted to create and operate the websites and placed the articles and statements in question on them.

[13] The alleged defamatory statements individually are each very short excerpts from four lengthy poems written by others and one article added to the Defendant’s websites written by himself which the Plaintiff alleges defame her and her family by describing her as:

a) being the ex-wife from hell. “She was his girlfriend after an ex-wife from hell”

b) being poisoned fish in the sea. “One like the other how could a good man chose so wrong poisoned fish in the sea”

c) being filled with hatred and vengeance. “Ex-wife’s family filled with hatred and vengeance.”

d) being stupid. “The game is over! Why are you all so stupid?!”

e) being a “false victim” as he had not touched her on the night of the murder or in an earlier incident in 2002 in which he plead guilty and was convicted of assaulting her. “The police ran in...inexperience and dense...four shots too many. He had not touched her... he would never hurt a fly... not before, not then”

f) being a long-time victim of mental illness. “Julie was also a victim of crime and a devastated grieving mother. She also has been a long-time victim of mental illness...”

g) having used her deceased son Jared as a pawn. “Ex-wife used her pawn. Son was a pawn in her game.”

h) having pushed Andrew Osidacz to murder her son Jared. “Some people did all they could to cause him pain...with the help of many they pushed...then desperation fell like rain...it should not have happened we sadly wished.”

i) having given testimony at Queen’s Park in August 2006 that was “filth” and “diatribe”. “He found the filth thanks to a google search”... “Alex checked and found himself staring at his poor grieving aunt’s diatribe about his uncle, Jared’s father Andrew.”

j) having accused Andrew Osidacz of bestiality and/or having sex with his mother. “But this Government of Ontario website called Hansard- suggests in one place that Alex’s uncle had sex with both animals and his grandmother.”

k) having lied about the murder of Jared Osidacz. “They watch us now from heaven’s gate. They watch the ones they left behind... They watch with hope but see only hate. Cut through the lies, it’s truth they hope to find.”

l) having engaged in a brazen attempt to extort money from Andrew’s family, aided by politicians. The exact wording or context of this statement is not in the material.

m) having stabbed Andrew Osidacz with a screwdriver in April 2002 the night he was charged with assaulting her. The exact wording or context of this statement is not in the material.

n) having laid false assault charges against Andrew Osidacz in April 2002. The exact wording or context of this statement is not in the material.

o) plotting to take away the matrimonial home from Andrew Osidacz. The exact wording or context of this statement is not in the material.

[14] The statements are also suggested to be defamatory because of the Defendant’s publishing certain contents of her personal medical history on the Internet and publishing certain findings of a CAS investigation on the Internet that tended to cast her in a poor light.

APPLICABLE LAW

[15] In order to establish a claim for defamation, a Plaintiff must establish that:

a) the impugned words are defamatory in the sense that they would tend to lower the Plaintiff’s reputation in the eyes of a reasonable person;

b) the words in fact refer to the Plaintiff;

c) the words were published, i.e. that they were communicated to at least one person other than the Plaintiff. Grant v. Torstar Corp., 2009 SCC 61, 2009 SCC 61.

[16] The classic statement of the law is that words are defamatory if they tend to cause the Plaintiff to be regarded by reasonable persons with hatred, contempt, fear or ridicule. Words are also defamatory if they impute improper and disreputable conduct, even though an ordinary person might not regard that conduct with hatred, contempt, fear or ridicule. Libel, Peter Downard, 2d ed.s.3.01.

[17] In determining whether this is an appropriate case for summary judgment under Rule 20, it appears that the Rule itself does not limit its application to any particular kind of claim. In the recent decision of Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, the Court of Appeal confirmed that the purpose of Rule 20 is to eliminate unnecessary trials. It went on to state that of the cases amenable to summary judgment, one involved defences that were shown to be without merit and another in which the trial process is not required in the interest of justice. Regarding the latter category, the Court applied a “full appreciation test” in determining whether or not a trial is required in the interest of justice.

[18] Rule 20 specifically allows the motion judge to weigh the evidence, evaluate the credibility of a deponent and to draw any reasonable inference from the evidence in determining whether there is a genuine issue requiring a trial. The Court in Combined Air confirmed that both parties were required to put their best foot forward on a motion for summary judgment and must put forward all evidence on which they intend to rely and cannot suggest there may be other evidence available which might assist in establishing its claim or defence.

[19] Although the corporate Plaintiff was successful in its motion for summary judgment in a defamation action in the case of 2964376 Canada Inc. v. Bisaillon 2012 ONSC 3113, the Ontario Court of Appeal in the subsequent decision of Baglow a.k.a. Dr. Dawg v. Smith 2012 ONCA 407 confirmed that summary judgment has rarely been granted in defamation cases probably because the courts have recognized that the threshold over which a statement must pass in order to be capable of being defamatory of the Plaintiff is relatively low and because the question whether a statement is in fact defamatory has long been considered the purview of the trier of fact.

[20] Notwithstanding the extensive materials and there being little in dispute of a factual nature that would be no different were the case to proceed to trial that were available to the motions judge in that case hearing the summary judgment motion, that was held not to be sufficient to grant summary judgement. In that case involving blogging exchanges between the parties, the Court found that summary judgment was not appropriate as cross examinations on the parties positions initially put forward were required as well as a consideration of the view that a reasonable reader may take of the exchanges in context. The court found for similar reasons that whether the impugned words constitute “comment” or “fact” or the issue of malice in relation to the defence of fair comment could not be resolved at the summary judgment motion stage as they both required a delicate balancing of the factual context in its entirety for determination. Lastly, determining actual and express malice requires the trier of fact to draw inferences from proven facts. It concluded that often proof of malice is found beyond the four corners of the publication at issue.

[21] That decision was subsequently considered and followed by Justice Edwards in McDonald v. Freedom 2012 ONCA wherein he declined to grant summary judgment in favour of the Defendant regarding allegations of defamation in an email letter the Defendant sent to the Ministry of Health and Long-Term Care and the College of Physicians and Surgeons regarding the Plaintiff. Even though there had been extensive cross examinations on the affidavits of the parties with transcripts filed in the motion for summary judgment (which did not happen in this case as no cross examinations on the parties affidavits have been held) and it was suggested that the motions judge had a complete record all the evidence before him and could have a full appreciation of all the issues that would be before the jury in that case, Justice Edwards dismissed the summary judgment motion relying on the principles of Baglow, supra. Justice Edwards confirmed that the threshold of whether the statements were defamatory was for the trier of fact and that there was a novel issue involving absolute privilege in that case. Lastly, the issue of malice including the presence or absence of it, was one that should be left to the jury because of Defendant’s defence of qualified privilege after they had the opportunity to hear the evidence of both parties.

[22] Given the reasoning of Baglow, the absence of evidence of the exact wording of a good number of the allegedly defamatory statements made and the need to need to determine after a review of all the evidence at trial what a reasonable reader may make of the statements including whether they go beyond just vulgar abuse or insults and the other issues in this action noted below, in my view this matter should be dealt with at a trial rather than summary judgment.

(continues exactly as in the source document…)

The Honourable Mr. Justice Nightingale

Date: March 28, 2013