ONTARIO

SUPERIOR COURT OF JUSTICE

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

DATE: 20131209

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: December 4, 2013

REASONS FOR DECISION

EDWARDS j.:

[1] The plaintiff wishes a direction in the charge to the jury that will allow the jury to draw an adverse inference from the fact that the defence did not call Mr. Elliott and Mr. Garbe who are both two senior Town officials at the Town of Aurora.

[2] This is a defamation action in which the defendants, who were members of the Aurora Town Council, voted in favour of publishing a statement (the “Statement”) on the website of the Town of Aurora, as well as the publishing of the Statement in two local newspapers. The publishing of the Statement arose, in part at least, as a result of alleged public criticism of senior Town officials by the plaintiff in her blog postings in early June 2009.

[3] The defence called the former Town Solicitor to comment on the publishing by the plaintiff of the criticism of him in her blog. The defence did not call two of the other officials against whom the plaintiff had made various criticisms. These two Town Officials, Mr. Garbe and Mr. Elliott, were under subpoena and on the defendants list of witnesses. On November 6^th, prior to the commencement of the trial in this matter, defence counsel advised plaintiff’s counsel that he was not intending to call these two individuals.

[4] Ultimately it will be up to the jury to determine whether or not the plaintiff did, in fact, criticize any of the Town officials, including Mr. Elliott and Mr. Garbe in her blog postings. That will be a question of fact that the jury will ultimately have to decide. Whether or not, in fact, these two officials felt any impact as a result of such criticism, assuming such criticism is found, is not the decision that this jury will ultimately have to make. Rather, the jury will have to determine whether, in fact, there was criticism of Town officials that warranted any response by the defendants and whether that response was appropriate under the circumstances and whether it was defamatory.

[5] As summarized in Wiche v. Ontario, [2001] O.J. No. 1850, Ground J. stated:

The authorities establish the principle that adverse inference may be drawn from the failure to call a witness where: (a) the party has not explained the failure to call an important witness, (b) the evidence of that witness has not been provided from other sources, (b) a prima facie case has been established by the opposing party that the party failing to call a witness must disprove or risk losing the case, and (d) that party alone could bring the witness before the court.

[6] I am not satisfied that either Mr. Elliott or Mr. Garbe are within the exclusive control of any or all of the defendants. Either of these witnesses could have been brought before the court by either the plaintiff or the defendants. If the plaintiff had any concerns with respect to the evidence these witnesses might present and whether they could be adverse to the plaintiff, an appropriate application could have been made to have them declared adverse so that their evidence could have been the subject matter of cross-examination by the plaintiff.

[7] The circumstances under which an adverse inference should be drawn, in my view, is restricted to the circumstances as set forth by Ground J. in Wiche, noted above. I also subscribe to the view set forth by Quinn J. in Miller v. Carley, 2009 39065 (ON SC), 98 O.R. (3d) 432 at para. 202:

The law is clear that the circumstances in which an adverse inference may be drawn by a trier of fact based on the failure to call a witness or reduce certain evidence will be rare and should only be done with the greatest precaution, particularly where an explanation for not introducing the evidence has already been provided to the court.

[8] This is not one of those rare cases where I am satisfied that the jury should be directed that an adverse inference could be drawn from the failure to call Mr. Elliott and Mr. Garbe and I will be so instructing the jury.

Justice M.L. Edwards

Released: December 9, 2013