ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-09-096918-00
DATE: 20131203

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 13, 2013

REASONS FOR DECISION

EDWARDS j.:

Overview

[1] This is a defamation action arising out of the publication of what has been described as a “Statement from the Town of Aurora Council” which was published on the website of the Town of Aurora on July 16, 2009 and was subsequently published by Metroland in its printed edition of the Banner on July 28, 2009. I will refer throughout these reasons to the aforesaid statement as (the “Statement”).

[2] The plaintiff at the time of the publication of the Statement was an elected Town Councillor with the Town of Aurora. The defendant Phyllis Morris was the Mayor of the Town of Aurora, while the defendants Evelina MacEachern, Wendy Gaertner, Stephen Granger, John Gallo, and Al Wilson were also elected Town Councillors for the Town of Aurora. The action as against Metroland has been settled.

[3] The plaintiff at the commencement of trial sought leave to introduce evidence arising out of another action brought by the defendant Phyllis Morris against Richard Johnson (“Johnson”), William Hogg (“Hogg”), and Elizabeth Bishenden (“Bishenden”). The statement of claim in the Morris v Johnson et al action (the “Morris Action”) was commenced by notice of action on October 8, 2010. At the time that Ms. Morris commenced the Morris Action, she was the Mayor of Aurora. The defendant Hogg is described in the Morris Action as the moderator of a website called “AuroraCitizen.ca”. The defendant Bishenden is described as the moderator of the aforesaid website and the defendant Johnson is described as a frequent writer on the website.

[4] In the Morris Action, it is alleged that between August 24 and October 4, 2010, the defendants in that action had maliciously published false and defamatory statements in respect of Ms. Morris. Ultimately the Morris Action was discontinued by Ms. Morris and Master Hawkins was called upon to deal with the question of the defendants’ costs in the Morris Action. In dealing with the costs submissions, Master Hawkins addressed the question as to whether or not the Morris Action was “SLAPP Litigation”. The term SLAPP is an acronym for “strategic litigation against public participation”. It was submitted on behalf of the defendants in the Morris Action that because the Morris Action was SLAPP litigation, the defendants should be entitled to an elevated award of costs. Ultimately, Master Hawkins came to the conclusion that the Morris Action was in fact SLAPP litigation and fixed special enhanced costs of the action in favour of the defendants in the amount of approximately $21,000 and ordered the plaintiff Ms. Morris to pay those costs within thirty days to Johnson and Hogg.

[5] The plaintiff in this action seeks to call Johnson and Hogg as witnesses who will testify about what Mr. Hawkins characterized as a SLAPP lawsuit in the context of their belief that the Morris Action was another manifestation on the part of the Mayor to stifle descent within the Aurora Town Council. Essentially, it is submitted that the Morris Action is similar fact evidence that should be admitted to assist the jury in their deliberation, particularly to rebut any argument that the actions of the defendants in publishing the Statement were not malicious.

[6] Mr. Boghosian opposes the receipt of the evidence concerning the Morris Action and the SLAPP litigation on a number of grounds. He first of all argues that he is caught by complete surprise as none of the documents now tendered by Mr. MacDonald arising out of the Morris Action were produced until the Friday before this trial commenced. This concern can, in my view, be addressed if need be with an adjournment to allow Mr. Boghosian to properly prepare and respond to this new evidence. Mr. Boghosian also opposes the receipt of the Morris Action on the basis that the Morris Action did not involve any of the councillor defendants who Mr. Boghosian presently represents, other than Ms. Morris. Mr. Boghosian argues that to allow in the evidence from the Morris Action would be to potentially tarnish his other defendants with the same brush as Ms. Morris. Again, in my view, this concern can be addressed by the court through a strong mid-trial charge to the jury in terms of the use to which the Morris Action could be used by the jury if admitted.

[7] The fundamental objection that Mr. Boghosian takes with respect to the Morris Action is that it has very little probative value. In this action the main issue is whether or not the plaintiff was defamed by the publication of the Statement. Mr. Boghosian submits the Morris Action is irrelevant and has no probative value. Moreover, it is argued that the prejudicial effect of admitting this evidence far outweighs whatever limited probative value it might have. I agree.

Analysis

[8] This is not a criminal case. It is a defamation action where the plaintiff alleges that as a result of the publication of the Statement she has been defamed and has suffered various heads of damages. As set forth in the Law of Evidence in Canada, 2nd Edition, the general rule with respect to similar fact evidence is stated by Sopinka, Lederman, and Bryant, as follows:

11.208 It is apparent from the foregoing that while the rules relating to the admissibility of similar fact evidence in civil cases reflect very strongly the influence of the “category” approach of the earlier criminal cases, they in fact focus on whether the evidence is relevant to a material issue. The categories of relevance are not closed and the inquiry should concentrate on determining the probative value of evidence without the constraint of fitting the evidence into a particular pigeonhole. Moreover, prejudice, which dominates the determination of admissibility of similar fact evidence in criminal cases, plays a significantly lesser role in civil cases, and evidence of similar facts should be admitted if it is logically probative to an issue in the case as long as, to borrow the formula of Lord Denning, it is not unduly “oppressive or unfair” to the other side, does not consume a disproportionate amount of court time, and does not bear the whole burden of proving the case.

[9] The focus of this court must fundamentally be with respect to the relevance of the Morris Action, together with a determination of what probative value such evidence might have and finally, whether the prejudice far outweighs its relevance.

[10] In my opinion, the Morris Action has limited relevance to the fundamental issue that the jury in this case has to decide, that being whether or not the Statement published by the defendants defamed the plaintiff. If the Morris Action was allowed into evidence, I am also extremely concerned that this trial could become sidetracked by a collateral issue, that being the issues that were litigated in the Morris Action, its merits and the defences that were advanced by the defendants.

[11] I am also extremely concerned that this court could be called upon to address further issues concerning litigation involving Ms. Morris and in that regard I note that my colleague Gilmore J. had occasion to deal with an application by George Hervey in which Mr. Hervey sought a declaration that the respondent, Ms. Morris, breached various sections of the Municipal Conflict of Interest Act. Without going into any of the details of the application before Gilmore J., I note that after lengthy reasons a determination was made that Ms. Morris had not breached the Municipal Conflict of Interest Act.

[12] A trial judge has a fundamental gatekeeper function, which requires that the trial, especially a jury trial in a defamation action, is not allowed to get into collateral issues that have tangential value to the jury’s ultimate determination.

[13] I am not satisfied that the Morris Action has much, if any, probative value with respect to the issues that are the subject matter of the action presently before this court. The jury in this case must decide whether or not the plaintiff has been defamed and thereafter whether or not the defendants are entitled to any of the various defences that have been set up in their statement of defence, specifically defences with respect to justification, qualified privilege, and malice. The determination of those issues, in my view, will not be best served by the introduction of the Morris Action but, rather, best determined in isolation to the issues that are raised by the parties in their pleadings quite independent of any issues related to other litigation, specifically the Morris Action and the matter before Justice Gilmore.

[14] For these reasons, the plaintiff’s motion to introduce as similar fact evidence, the Morris Action, is dismissed.

Justice M.L. Edwards

Released: December 3, 2013