SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-08-11090CM

MOTION HEARD: 20121214

RE: Matthew Sankoff, Plaintiff

AND:

Her Majesty the Queen in Right of Ontario (Ministry of Community Safety and Correctional Services), Julian Fantino, The Ontario Provincial Police, Toronto Police Services Board, William Blair and Susan Burke, Defendants

BEFORE: Master Pope

COUNSEL:
Celina G. Aguero, for the Plaintiff

Kim Twohig, for the Defendants, Her Majesty the Queen, Julian Fantino, and the Ontario Provincial Police

Michael Smith, for the Defendants, Toronto Police Services Board, William Blair and Susan Burke

HEARD: December 14, 2012

REASONS FOR DECISION

[1] Each group of defendants brought separate motions for orders to compel the plaintiff to answer all of his outstanding discovery undertakings and refusals given at his examination for discovery held on July 24, 2012. Regarding the plaintiff’s undertakings, they seek an order for a timeline within which the undertakings must be satisfied.

Background

[2] On February 11, 2008, the Ontario Provincial Police (“OPP”) and numerous other municipal police services from across the province arrested and charged numerous individuals with crimes in connection with child pornography on the internet. In particular, a Criminal Code search warrant was conducted at a residence in Toronto in relation to the alleged offences. The plaintiff was not the subject of the warrant, but the plaintiff resided at the same address as the subject of the warrant.

[3] On the day after the arrests, the OPP held a press conference and issued a typed press release in which the plaintiff was erroneously named as one of the individuals arrested and charged with a number of offences relating to child pornography.

[4] Thereafter, various media outlets across the country reported the story, including the plaintiff’s name, age, city of residence and particulars of the criminal charges relating to child pornography.

[5] After the news conference, the OPP discovered the error regarding the inclusion of the plaintiff’s name in the media release. The OPP issued a correction immediately upon discovery of the error to retract the reference to the plaintiff in the media release to confirm that he had not been charged and to apologize. The same day, a press conference was held when the media in attendance were advised of the mistake.

[6] The plaintiff commenced this action on May 12, 2008, in which he claims damages of $14 million for negligent investigation, breach of fiduciary duty, abuse of statutory powers, defamation and mental distress. The plaintiff states that he suffers from liver disease, ulcerative colitis and a peptic ulcer and that he is a candidate for a vital organ transplant. He was 29 years of age when he commenced this action. Born and raised in Windsor, he moved to Toronto in early 2008. As a result of the defendants’ actions, he claims that his reputation has been damaged, his enjoyment of life and ability to earn an income has been compromised, and he has suffered mental distress, anxiety, fear and depression.

[7] Also in 2008, the plaintiff commenced ten other actions against various news reporting agencies that published the erroneous information seeking damages for defamation ranging from approximately $1 million to $10 million. (“related actions”). The damages allegedly suffered by the plaintiff are the same or similar in all actions.

[8] All of the related actions have been settled, dismissed for delay or dismissed as abandoned. The only other examination for discovery conducted in the related actions was in the action against the Canadian Press. None of the dismissal orders contained a confidentiality clause.

[9] At his examination for discovery, the plaintiff refused to answer certain questions about the related actions, terms of settlement, other persons to whom libel notices may have been given or from whom demands for retraction and apology were made, the plaintiff’s involvement with pornography or his relationship with his apartment mate who was convicted of child pornography offences.

[10] The issues on this motion are whether the questions asked of the plaintiff are relevant to his claim and whether they are proper questions.

[11] The defendants in the related actions were not served with this motion; however, Mr. Smith advised that his office served the former counsel for all of those defendants. Many of the former counsel advised Mr. Smith that they no longer represented the defendants or they did not have authority to accept service of the motion material. None of those defendants filed responding material to this motion.

Questions regarding disclosure of settlements in related actions

Questions 1, 16-19

[12] This action is at the discovery stage. The test for disclosure of documents at the discovery stage is relevancy.

[13] In my view, any settlements in the related actions are relevant to the issue of quantum of damages claimed by the plaintiff and relevant to the defendants’ ability to assess damages in this action. Disclosure of settlements in the related actions may assist in settling this action before trial.

[14] Recognizing that the plaintiff had separate causes of actions against all of the defendants in this action and the related actions, it is clear that he has made claims for generally the same damages in all the actions, in particular, damage to his reputation. Further, all of the allegations in all of the actions arose from the same set of facts; namely, the error in the press release. It is a general principle in law that a plaintiff cannot be overcompensated for the same damages. For those reasons, it is my view that disclosure of settlements in the related actions is relevant to the issues in this action. Moreover, in my view, it will be important and necessary that the trial judge know of any amounts paid to the plaintiff in the related actions so that the trial judge can make a global assessment of damages.

[15] My rulings regarding the above-noted questions are as follows:

Question 1: This question is not relevant to any matter in issue in this action and it offends the rule of proportionality. The answer was a proper refusal.

Questions 16 and 17: These questions are relevant; therefore, the answers were improper refusals.

Questions 18 and 19: These questions are not relevant and they offend the rule of proportionality. The answers were proper refusals.

Questions regarding the plaintiff’s health and reputation

Questions 2-6

Questions 2 and 4: These questions are not relevant to any matter in issue in this action and they offend the rule of proportionality. The answers were proper refusals.

Question 3: This question was not a proper question as it elicits the plaintiff’s opinion. The answer was a proper refusal.

Questions 5 and 6: These questions are not relevant to any matter in issue in this action. There is no issue raised in any of the pleadings that the plaintiff was involved in the pornography industry. The answers were proper refusals.

Questions regarding plaintiff’s relationship with Mr. Sisi and the plaintiff’s reputation

Questions 20-28

[16] Based on the rules regarding scope of discovery and the pleadings, the defendants are entitled to ask questions regarding the extent to which the plaintiff’s reputation was affected by the erroneous publication. The facts in this action reveal that the plaintiff resided in the same residence as Mr. Sisi and that Mr. Sisi was convicted of possession of child pornography.

[17] The ordinary definition of “reputation” means the overall quality or character as seen or judged by people in general.

[18] For the above reasons and given the allegation of damage to his reputation, the defendants are entitled to ask questions, such as, where the plaintiff worked, his daily activities, with whom he associated. However, many of the questions offend the rule of proportionality.

Questions 20 through 28: These questions are not relevant and they offend the rule of proportionality. The answers were proper refusals.

Questions regarding mitigation

Questions 7-15

[19] The general principle is that a plaintiff claiming any tort has a duty to mitigate his damages. The plaintiff’s position is that he is not required to mitigate; however, he has provided no support for that proposition. Questions regarding mitigation are also subject to the rule of proportionality.

Questions 7, 8, 9, 10, 11, 12: These questions are relevant to the issues of the plaintiff’s reputation and mitigation. The answers were improper refusals.

Question 13: This question is relevant; however, the second half of the question as to “why those requests were not made sooner” is not relevant and offends the rule of proportionality. The answer to the first half of the question was an improper refusal.

Questions 14 and 15: These questions offend the rule of proportionality. The answers were proper refusals.

Plaintiff’s Undertakings

[20] The timetable order dated May 17, 2012 provided for compliance with undertakings by September 30, 2012. The examination for discovery of the plaintiff was held on July 24, 2012. The defendants seek a new timeline within which the plaintiff is to satisfy his undertakings.

Disposition

[21] For the above reasons, the plaintiff shall re-attend at his examination for discovery at his own costs and to answer questions 7 through 12, the first half of question 13, and questions 16 and 17.

[22] The plaintiff shall comply with the undertakings he gave at his examination for discovery within 60 days of the date this decision is released.

[23] Given the divided result on this motion, there shall be no order as to costs.

Original signed by “Master Pope”

Master Lou Ann M. Pope
Case Management Master

Date: July 16, 2013