Citation: Buck v Morris, 2013 ONSC 7193

COURT FILE NO.: CV-09-096918-00

DATE: 20131203

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Evelyn Buck

Plaintiff

– and –

Phyllis Morris, Evelina MacEachern, Wendy Gaertner, Stephen Granger, John Gallo, Al Wilson, Metroland

Defendants

Kevin L. MacDonald and Jamie M. Sanderson, for the Plaintiff

David G. Boghosian and Luciana Amaral, for the Defendants Phyllis Morris, Evelina MacEachern, Wendy Gaertner, Stephen Granger, John Gallo, and Al Wilson

HEARD: November 18 and 19, 2013

REASONS FOR DECISION

EDWARDS J.:

Overview

[1] This action involves a claim by the plaintiff for various heads of damages relating to an alleged defamatory statement made by the defendants, Phyllis Morris (“Morris”), Evelina MacEachern (“MacEachern”), Wendy Gaertner (“Gaertner”), Stephen Granger (“Granger”), John Gallo (“Gallo”), and Al Wilson (“Wilson”) (collectively the “defendants”). The claim as against Metroland Media Group Ltd. and Ian Proudfoot was settled at the commencement of trial.

The Facts

[2] The plaintiff, in the trial record, is described as “a great grandmother who throughout better than thirty years has been a dedicated and conscientious politician”. At the time of the alleged defamatory statement she was an elected town councillor for the Town of Aurora.

[3] The defendant, Phyllis Morris, at the time of the alleged defamatory statement was the mayor of the Town of Aurora, while the defendants were town councillors for the Town of Aurora.

[4] The plaintiff’s claim arises out of the publication of what has been described as the council statement on the Town of Aurora website as well as the publication of the same statement in two local newspapers. I will refer to this document hereinafter as the “Statement”. The Statement had been prepared with the advice of outside counsel.

[5] On June 18, 2009, the Town of Aurora appointed David Nitkin as the Integrity Commissioner pursuant to the provisions of section 223.3(1) of the Municipal Act.

[6] During the course of a closed session meeting of the Aurora town council on July 21, 2009, a resolution was passed authorizing a formal complaint (the “Complaint”) to be filed with the Integrity Commissioner relating to certain conduct of the plaintiff. The resolution also provided that the Statement should be read out in an open session of the Aurora Town Council by the mayor and that the Statement should be published in both local newspapers and on the Town website, together with the confidential legal opinion that had been obtained by the Town of Aurora from outside counsel.

[7] The Complaint was delivered to the Integrity Commissioner on July 22, 2009. On August 5, 2009, Mr. Nitkin sent an email to all members of the Aurora Town Council advising that he had provided his report (“The Nitkin Report”) to the Town’s director of corporate services. On September 15, 2009, a motion was passed at the Aurora Town Council pursuant to which The Nitkin Report was received for information and was made public.

[8] At the commencement of this trial, plaintiff’s counsel, without objection by defence counsel, made reference to The Nitkin Report in his opening to the jury. My notes of the opening by plaintiff’s counsel in this regard indicate that Mr. MacDonald advised the jury that the Complaint made by the defendants was “unacceptable, ill-formed, and wholly political”.

[9] The actual decision of Mr. Nitkin is reproduced below and at the bottom of the first page after a number of preambles, Mr. Nitkin states:

It is the decision of my Office that this statement of complaint, as is, is unacceptable and that, as is, no investigation or inquiry shall take place. The complaint is ill-formed in that some of its enumerated signatories have refused to sign and have indeed repudiated the use of their name. It is incomplete in that the impacts or significance of the impacts of its allegations upon the behaviour, duties, and/or reputation of councillors (or the organization) themselves is absent. Query 008 [The Complaint] is inappropriate in that the way which it was crafted, politicized and communicated may be, and be seen to be, wholly political. Explanation of this last point can be seen in the many tests or measures of degree of political interference that were raised in my e-mail of July 30^th in direct communication to the proponents.

The Issues

[10] It was not until the second day of the direct examination of the plaintiff’s first witness that the defence took issue with respect to the tendering of The Nitkin report as an exhibit. The issue I have to decide is whether or not The Nitkin Report is admissible. So as not to unduly delay the trial of this matter, I have already released oral reasons denying the plaintiff’s request to tender The Nitkin Report as an exhibit. These reasons expand on my earlier brief oral reasons in court.

Position of the Plaintiff

[11] Counsel for the plaintiff takes the position that, both from a procedural and from a substantive perspective, the report should be admitted into evidence. From a procedural perspective, plaintiff’s counsel notes that the defendants’ statement of defence makes reference to The Nitkin Report in a number of material ways. In the defendants’ amended statement of defence at paragraph 4, the defendants plead:

With respect to paragraphs 11, 33, 34, and 42 of the statement of claim, the council defendants rely on the documents in their entirety, rather than as referenced or quoted in the statement of claim.

[12] The reference to paragraph 42 of the statement of claim is important in that paragraph 42 describes The Nitkin Report in detail.

[13] The council defendants go further in their statement of defence as it relates to The Nitkin Report and plead as follows:

25. The decision by Council to terminate Nitkin’s contract was not influenced by the contents of his written report on the Code of Conduct complaint brought by the Council defendants. The meeting which was convened to discuss the concerns of some Councillors about Nitkin, and which resulted in a decision to terminate his contract, was scheduled before the release of his report. Further, none of the Council defendants had seen his report or been told anything about is contents at he time that the meeting took place.

26. The Council resolution to terminate Nitkin’s contract was worded so as not to impact on any decisions that he had already reached in respect of Code complaints.

[14] Plaintiff’s counsel argues that the aforementioned pleading effectively admits the authenticity and reliability of The Nitkin Report; an admission, which it is suggested, cannot be withdrawn.

[15] As well, plaintiff’s counsel argues that until the second day of this trial, there had been no issue raised by the defence with respect to the admissibility of The Nitkin Report and that this is re-enforced by reason of the fact that no objection was taken in his opening to The Nitkin Report and Mr. Nitkin’s ultimate conclusions.

[16] It is argued by plaintiff’s counsel that from a substantive perspective, the opinion of Mr. Nitkin is admissible for two reasons. First of all, it is suggested that the opinion of Mr. Nitkin is a public document and therefore admissible on the assumption that a public official will perform his or her duties honestly, carefully, and correctly as enunciated by the Supreme Court of Canada in R. v. Finestone, 1953 CarswellQue 9 (S.C.C.)..

Legal Basis

[17] The admissibility of a public document is referenced in a decision of the New Brunswick Court of Appeal in R. v. Bellman, 1938 CanLII 261 (NB CA), 1938 CarswellNB 10 (N.B.C.A.). In that regard, it is noted that the reasons for the admissibility for a public document relates to the fact that:

It is highly expedient to dispense with proof of such official publications by public officials. A great waste of time of public officials would be involved if they were liable to be called upon to prove the making of all Government maps, charts and other official documents.

[18] As well, in Bellman, the court considered a public document admissible because:

There is a substantial guarantee of the trustworthiness of such public documents which takes the place of cross-examination because: (a) it is to be presumed that public officers do their duty and (b) the fact that such documents are open to public inspection results in the exposure and correction of any errors therein.

[19] In addition to the argument that The Nitkin Report falls within the category of a public document and therefore is admissible into evidence, plaintiff’s counsel argue that the report should be admitted as an exception to the hearsay rule where it can be demonstrated that the evidence meets the criteria of reliability and necessity as set down by the Supreme Court of Canada in R. v. Khan, 1990 CanLII 77 (SCC), 1990 CarswellOnt 108 (S.C.C.).

Position of the Defence

[20] Counsel for the defendants take the position that The Nitkin Report should not be admitted for a number of reasons. While candidly admitting that until the commencement of this trial, he had been of the understanding that Mr. Nitkin would be a witness called by the plaintiff and as such a compellable witness, defence counsel acknowledged that he only discovered at the commencement of trial that Mr. Nitkin, in fact, is not a compellable witness. Section 223.7 of the Municipal Act provides:

Neither the Commissioner nor any person acting under the instructions of the Commissioner is a competent or compellable witness in a civil proceeding in connection with anything done under this Part.

[21] Given the aforementioned provisions of the Municipal Act, defence counsel takes the position that his client will be fundamentally prejudiced by reason of the fact that the Integrity Commissioner, Mr. Nitkin, would not be subject to cross-examination.

[22] It is also suggested by the defendants that The Nitkin Report offers an opinion on the very issue that the jury is called upon to decide and, as such, the opinion deals with the ultimate issue that has traditionally fallen within the province of the jury.

[23] Finally it is submitted by defence counsel that to prove The Nitkin Report through another witness is nothing more than hearsay.

Analysis

[24] I have ultimately come to the conclusion that The Nitkin Report is not admissible. This trial is a defamation action in which the jury will be called upon to answer numerous questions. Fundamental however to the answering of those questions will be a finding as to whether or not the Statement was defamatory or not. The opinions expressed by Mr. Nitkin in his report of August 5^th, in my view, adds nothing to the decision that the jury in this case will ultimately be called upon to make. In a situation where Mr. Nitkin will not be subject to a cross-examination there is, in my view, a real danger that the jurors could abdicate their role as fact finders and simply accept the opinion of Mr. Nitkin, given his impressive title as the Integrity Commissioner.

[25] While Mr. Nitkin occupied the statutory role of an Integrity Commissioner, the jury will not have the benefit of knowing what, in fact, his credentials were when he undertook his review of the Complaint. The jury will also not have the benefit of knowing what, if any, investigative work Mr. Nitkin undertook to ultimately arrive at his opinion. I do note that in the report itself, there is reference to three emails which are dated July 30, July 28, and July 24 in which he appears to have advised the complainants, who are the defendants in this matter, that the formal complaint was “ill formed and inappropriate”. This court will not have the benefit of knowing what thought process and what information Mr. Nitkin had to arrive at the aforementioned conclusion. He is not a compellable witness and without the benefit of knowing how Mr. Nitkin arrived at his conclusions, it would be highly prejudicial to allow the jury to rely on the opinions of Mr. Nitkin to inform themselves with respect to their fundamental task of determining whether or not the Statement was defamatory or not.

[26] Dealing with the question of the admissibility of Mr. Nitkin’s report from the perspective of whether or not it is necessary or reliable, I begin my analysis in this regard by adopting the following statement of the Supreme Court of Canada in R. v. Khelawon 2006 SCC 57, [2006] S.C.J. No. 57 at paragraph 35:

Our adversary system puts a premium on the calling of witnesses, who testify under oath or solemn affirmation, whose demeanor can be observed by the trier of fact, and whose testimony can be tested by cross-examination. We regard this process as the optimal way of testing testimonial evidence. Because hearsay evidence comes in a different form, it raises particular concerns. The general exclusionary rule is a recognition of the difficulty for a trier of fact to assess what weight, if any, is to be given to a statement made by a person who has not been seen or heard, and who has not been subject to the test of cross-examination. The fear is that untested hearsay evidence may be afforded more weight than it deserves. The essential defining features of hearsay are therefore the following: (1) the fact that the statement is adduced to prove the truth of its contents and (2) the absence of a contemporaneous opportunity to cross-examine the declarant.

[27] I have no hesitation in coming to the conclusion that the jury in this case could pay undue attention to the opinion of the Integrity Commissioner. This is particularly so in a situation where Mr. Nitkin cannot be cross-examined. Fundamentally, in my opinion, the jury is in as good a position, if not better than Mr. Nitkin, to come to the ultimate conclusion as to whether or not the Statement was defamatory. The jury will have had the benefit of hearing the evidence of all of the material witnesses who were involved at the time that the Statement was published and the jury will be in a position to come to an unfettered decision in this regard, without being potentially prejudiced by the opinion of someone who holds the title of Integrity Commissioner but whose fact-finding process will not be the subject of cross-examination. I am not satisfied that it is necessary as an exception to the hearsay rule set forth in Khan that the evidence of Mr. Nitkin should be tendered in evidence without formal proof.

[28] During the course of argument, I suggested to counsel that I was concerned that The Nitkin Report while not being admissible with respect to the fundamental issue that the jury will have to decide, i.e., defamation, it could nonetheless be relevant (assuming a finding of defamation and an absence of any defence such as qualified privileged or fair comment) with respect to the plaintiff’s claim for punitive damages.

[29] This is not a case where it would be appropriate to allow the admission of The Nitkin Report at this stage of the trial even with a mid-trial and final instruction to the jury that the report could only be used for the very limited purpose of assisting the jury with respect to their determination of whether or not the plaintiff was entitled to punitive damages.

[30] To allow The Nitkin Report in for the sole purpose of assisting the jury in their determination of whether or not the plaintiff would be entitled to punitive damages opens up the possibility that this court would be called upon to effectively bifurcate this trial. In that regard, this court has to be mindful of Rule 6.1.01 of the Rules of Civil Procedure, which provides:

With the consent of the parties, the court may order a separate hearing on one or more issues in a proceeding, including separate hearings on issues of liability and damages.

[31] This is a jury trial and it is clear from the aforementioned rule that while this court does have the jurisdiction to order what would effectively be a bifurcation of all of the issues with the exception of punitive damages, such bifurcation can only occur with the consent of the parties. Absent such consent, this court does not have jurisdiction to make such an order. The parties have not consented to bifurcating the jury’s deliberations on the discreet issue of punitive damages which would allow for the admission of The Nitkin Report for the limited purpose of the jury’s assessment of punitive damages. That being the case, I am of the view the prejudice of admitting The Nitkin Report now, but limited to the issue of punitive damages, far outweighs its probative value. Even with a strong limiting instruction as to the sole purpose for which The Nitkin Report was admitted (i.e., the assessment of punitive damages), I am not convinced that the jury would not directly or indirectly make an improper use of The Nitkin Report in their deliberations with respect to the main issue they have to decide – that being the issue of defamation. The Nitkin Report is therefore inadmissible for the reasons set forth above.

Justice M.L. Edwards

Released: December 3, 2013