ONTARIO

SUPERIOR COURT OF JUSTICE

BARRIE COURT FILE NO.: CV-10-1355

DATE: 20130205

BETWEEN:

SANDY McDONALD

Plaintiff

– and –

MARK FREEDMAN

Defendant

J.C. Lisus and C. Muir, for the Plaintiff

C.K. Boggs, for the Defendant

HEARD: January 23, 2013

REASONS FOR DECISION

DiTOMASO J.

THE MOTION

[1] The Defendant moves for an Order granting leave to appeal to the Divisional Court from the Order of Edwards J. dated October 2, 2012 dismissing the Defendant’s motion for summary judgment.

OVERVIEW

[2] The Plaintiff and the Defendant are medical doctors. The Plaintiff is a vascular surgeon who runs a clinic that offers diagnostic imaging services. The Defendant is a neurologist who has devoted much of his professional career to the study of multiple sclerosis (“MS”). In this action, the Plaintiff claims damages based on an email sent by the Defendant to the Minister of Health and Long-Term Care (the “Minister”) and the President of the College of Physicians and Surgeons of Ontario (the “CPSO”).

[3] The Defendant’s email requested an investigation regarding a significant public health issue in which the Plaintiff and his clinic had become involved: the diagnosis and treatment of a posited medical condition, chronic cerebrospinal venous insufficiency (“CCSVI”), theorized as being causally related to MS. The legitimacy of this theoretical condition, and the appropriateness of any associated treatment at the present time including funding therefore at public expense, continue to be the subject of significant medical and public debate.

[4] The Defendant brought a motion for summary judgment on the ground that various defences apply and therefore, the Plaintiff’s action cannot succeed. Those defences are as follows:

(a) The Defendant’s communication to both the Minister and the CPSO, constituting a report to regulatory entities with investigative and remedial authority regarding matters within their respective jurisdictions, was sent on an occasion of absolute privilege;

(b) In the alternative, the Defendant’s communication to the CPSO was sent on an occasion of absolute privilege and the communication to the Minister was sent on an occasion of qualified privilege, in good faith and without malice;

(c) In the further alternative, to the extent that the words complained of constituted assertions of fact, both individually and in the context of the entire communication, they were true in substance and in fact. To the extent that the words complained of commented on or expressed an opinion, they constituted fair comment.

[5] Justice Edwards’ decision can be found in the Motion Record, Volume 1 Tab 2.

[6] With respect to absolute privilege, the motion judge stated that the application of this defence was a “novel question” and that the issue required a “full factual record” as well as the “opportunity to hear and assess the two main protagonists”.[^1]

[7] The motion judge made no comment on whether the circumstances were such as to give rise to an occasion of qualified privilege. As well, he did not address whether any of the impugned statements constituted expressions of opinion, and, if so, whether they constituted fair comment. The motion judge did not state that there was any impediment to him undertaking the analysis on these points.

[8] Similarly, regarding the defence of justification, the motion judge made no comment as to the truth of any of the impugned statements. He also did not state that there was any reason why he could not consider this issue on the record before him.

[9] Instead, the motion judge stated that it is “particularly noteworthy that the trial of this action will be conducted before a jury” and that “the right to a jury trial is a fundamental right not to be withdrawn or revoked lightly without cause”.[^2] In particular, the motion judge held that it was “fundamental” that the Plaintiff have the opportunity to have the “question” of malice “fully canvassed before a jury”.[^3] The motion judge did not refer to any specific evidence as raising a genuine issue for trial with respect to malice, and acknowledged that it “may very well be” that the Defendant’s email was sent without malice.[^4]

[10] The motion judge ultimately dismissed the Defendant’s motion on the basis that summary judgment would “essentially take from the plaintiff the fundamental right to a jury”, which the motion judge held was of particular importance in the context of a defamation case.[^5]

THE ISSUE

[11] The issue requiring determination is whether leave to appeal should be granted.

POSITIONS OF THE PARTIES

Position of the Moving Party Defendant Mark Freedman

[12] The Defendant submits that the motion judge erred in making no determination regarding the application of any of the defences and instead dismissed the Defendant’s motion on the basis that the Plaintiff – having previously delivered a Jury Notice – had a “right to a jury trial”. The fact of the Plaintiff’s Jury Notice did not create a different test or standard on the motion. The application of the various defences were appropriate matters for the motion judge to determine based on the material facts which he found were not in dispute. It is submitted that there was no material factual issue required to be resolved by trial, or otherwise, for the purposes of applying the law.

[13] It is the Defendant’s position that there is good reason to doubt the correctness of the motion judge’s Order and that the proposed appeal involves matters of sufficient general importance that leave to appeal should be granted.

Position of the Plaintiff Sandy McDonald

[14] The Plaintiff submits that the motion judge was correct in concluding that it was not appropriate to grant summary judgment on the record before the court. He reasoned that a trial was required to determine whether the subject email was, as a matter of fact, outside “the bounds of scientific and professional regulatory discourse”. He came to the same conclusion respecting malice, rightfully considering it fundamental for a jury to watch and listen to the evidence and determine what the Defendant was up to when he sent that email. In so doing, it is submitted that the motion judge properly applied recent authority of the Court of Appeal regarding summary judgment and defamation actions to an extensive record. Therefore, leave to appeal should not be granted.

ANALYSIS

The Test for Leave to Appeal

[15] The test for leave to appeal is governed by Rule 62.02(4) of the Rules of Civil Procedure which sets out the two independent grounds upon which leave to appeal an interlocutory order may be granted:

Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

[16] Leave to appeal may be granted if either of the above grounds is satisfied. With respect to the ground which is set out in Rule 62.02(4)(a), the requirement of a “conflicting decision” is satisfied by demonstrating a difference in the principles chosen as a guide to the exercise of discretion.[^6]

[17] With respect to the first conjunctive ground for granting leave under Rule 62.02(4)(b), above, a judge hearing a motion for leave to appeal need not consider the decision in question to be wrong or even “probably wrong” in order to have good reason to doubt its correctness. As well, the judge need not conclude that, if he or she had heard the original motion, he or she would have decided it otherwise. The judge must only be satisfied that the correctness of the order is “open to very serious debate”.[^7]

[18] The second conjunctive ground in Rule 62.02(4)(b) requires that the proposed appeal involve matters of general importance, not merely matters of particular importance to the individual litigants. General importance relates to matters of public importance, the development of the law and the administration of justice, so as to warrant consideration by a higher level of judicial authority.[^8]

The Test on a Motion for Summary Judgment

[19] With respect to the amendments to Rule 20 which came into effect on January 1, 2010, the Court of Appeal has confirmed that one of the objectives was to make summary judgment more accessible – with a view to achieving cost savings and more efficient dispute resolution, thereby advancing the principle of proportionality.[^9]

[20] Even under the former rule, summary judgment was available if there were no material facts in dispute. This has not changed with the “full appreciation” test. Rather, in Combined Air the Court of Appeal explained that the “full appreciation” test must be applied before motion judges exercise their expanded powers to weigh evidence, evaluate credibility, or draw inferences from the evidence. In cases where it is not necessary to exercise those powers in order to conclude that there is no genuine issue requiring a trial, the test is met and summary judgment should be granted.[^10]

[21] The new Rule 20 does not change the evidentiary obligations on a summary judgment motion. Each side must “put its best foot forward” and the court is entitled to assume that the record contains all the evidence which the parties would present at trial.[^11]

[22] In response to evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, through admissible evidence, specific facts showing why there is a genuine issue requiring a trial.[^12]

[23] In my view, a Plaintiff cannot preclude a motion for summary judgment simply by delivering a Jury Notice. As well, neither the fact of a Jury Notice, nor the type of case involved, gives rise to a different test on the motion.[^13]

Rule 62.02(4)(a) – Conflicting Decision

[24] The Defendant sought summary judgment on the ground that various defences applied and therefore, the Plaintiff’s action could not succeed.

[25] With respect to both absolute privilege and qualified privilege, it is settled law that the focus of the analysis is on the occasion when the communication is made. In this case, the motion judge’s reasons set out the relevant facts comprising the occasion: the context in which the communication arose, what exactly was said, to whom, and what their role was in relation to the health care system. Further, with respect to the requirement of “reciprocity” for purposes of qualified privilege, the motion judge’s reasons set out the fact that the recipients of the Defendant’s email reciprocated the Defendant’s interest in the issues by confirming that the email was appropriately communicated to them as per their respective areas of responsibility within the health care system. All of this is to say that the facts in respect of the occasion upon when the communication was made were clear and could not be in dispute. The communication by the Defendant was considered by the Defendant, Plaintiff, the CPSO and the Minister as a complaint. It was dealt with as a complaint. It was investigated as a complaint by the College and reported back to the parties in accordance with the complaint process, notwithstanding the fact that the complaint was not initiated by way of formal process.

[26] With respect to the motion judge’s statement that the application of absolute privilege is a “novel” issue, I agree that this statement is contrary to the Court of Appeal’s decision in Sussman v. Eales, [1985] O.J. No. 412 (H.C.J.) at pp. 1 and 2; Hamalengwa v. Duncan, 2005 33575 (ON CA), [2005] O.J. No. 3993 (C.A.) at paras. 1 and 3 and 1522491 Ontario Inc. v. Stewart et al., 2010 ONSC 727 (Div.Ct.) and subsequent cases which laid down the relevant principle: the defence is available to “a citizen complaining in a confidential way to a body created by statute”.

[27] Further, as stated in Brown, The Law of Defamation in Canada it is “for the judge to determine whether the occasion is such that is protected by either an absolute or qualified immunity”.[^14]

[28] The Courts have applied existing law to undisputed facts. It is submitted that the motion judge did not make the determination of whether the occasion is such that it was protected by either an absolute or qualified immunity. On this record, the motion judge did not consider the defences of absolute or qualified immunity on the undisputed facts before him.

[29] The question of whether a given occasion is subject to absolute and qualified privilege “is a question of law for the judge to decide”.[^15] In this case, where the Plaintiff is presumed to have “put his best foot forward” and presented all the evidence on which he would rely at trial, the motion judge observed that the record was consistent with the absence of any malice at all on the part of the Defendant.[^16]

[30] The Defendant asserts that the critical issue here is that the motion judge declined to make any determination with respect to the defences when there was no legal, factual or other impediment to him doing so. It is submitted that the motion judge’s failure to make any determination regarding any of the various defences is contrary to the law in which legal determinations of privilege may be made by a judge not only on motions pursuant to rule 21 but also on a Rule 20 motion for summary judgment. I agree that the motion judge’s failure to make any determination regarding any of the various defences conflicts with decisions where such offences of absolute and qualified privilege have been determined by a judge and, more, was incumbent upon the motion judge to make such determination on a Rule 20 motion for summary judgment.

[31] For these reasons, I find that pursuant to Rule 62.02(4)(a) there are conflicting decisions that deal with the analysis of absolute privilege and qualified privilege and, it is desirable that leave be granted on this ground.

Rule 62.02(4)(b) – Reason to Doubt Correctness/Importance

[32] The position of the Plaintiff is that the Defendant cannot meet the heavy burden on this motion for leave to appeal. The motion judge’s decision is correct and the matter of importance relates only to the parties. There is no basis upon which to grant leave. Rather than create further delay in the trial of this matter, this court should dismiss the motion for leave and allow the parties to resolve their interests at trial.

[33] With respect, I do not agree. I find that the correctness of the decision is open to “very serious debate”. There is good reason to doubt the correctness of the order of the motion judge where he declined to make any determination of the privilege defences before him given that no material facts were in dispute regarding the email.

[34] Further, it appears that the motion judge declined to make any determination as a result of his conception of the Plaintiff’s “right to a jury trial”, which he regarded as “fundamental”. Apparently, the motion judge was referring to a party’s right to require a case to be tried by a jury if and when it is tried. I agree with counsel for the Defendant that this is a separate and distinct issue from whether there is a genuine issue requiring a trial.

[35] It is argued that the motion judge erroneously conflated a party’s right to elect trial by jury with a “right to a trial”. The motion judge relied upon a statement by the Court of Appeal in Baglow v. Smith, 2012 ONCA 407 at para. 24.

[36] From a review of this paragraph, it is clear that the court’s statement that “summary judgment has rarely been granted in defamation cases” was within the context of whether the words complained of in that case were defamatory or not. In the case at bar, there is no issue for the purposes of the motion as to whether any contents of the Defendant’s email were capable of bearing a defamatory meaning. It can be construed that the motion judge apparently regarded the above passage as being of general application to motions for summary judgment in defamation cases when in fact, it had no application to the motion before him. There was no issue regarding whether the Defendant’s email was capable of bearing a defamatory meaning. Rather, the Defendant’s motion was based on available defences. An analysis of those defences was required in order to determine whether on a motion for summary judgment there was an issue requiring a trial. The Defendant’s position was there was no issue requiring a trial and that the motion judge ought to have come to that conclusion had he applied the proper law, made the determinations required by a judge and not a jury, and lastly applied the “full appreciation test” in a proper manner pursuant to Rule 20. Once again, the motion judge was called upon to determine the application of the defences raised and he declined to do so.

[37] I find that there is good reason to doubt the correctness of the order of the motion judge as it is open to a very serious debate. In particular, on the record before the court, containing all of the material facts which are not in dispute and binding decisions regarding the privilege defences in particular, there is good reason to doubt the correctness of the motion judge’s reasons to dismiss the motion for summary judgment. On this branch of Rule 62.02(4)(b), it is therefore desirable that leave to appeal be granted.

[38] Further, I find the proposed appeal involves matters of importance where, in my opinion, leave to appeal should be granted. The importance of this matter is not merely one that exists between the parties. Rather, it concerns the availability of summary judgment in defamation actions generally as well as the proper approach to motions for summary judgment calling for the determination of legal questions with limited or no contentious factual issues. On this ground, leave to appeal is granted.

DISPOSITION

[39] For the reasons above, leave to appeal the decision of the motion judge to the Divisional Court is granted.

[40] The parties have agreed that costs are to be determined by way of written submissions, within 14 days of this decision. The parties are to exchange a concise summary regarding costs no longer than two pages together with Bills of Costs, Costs Outline and relevant authorities. Within that time, they are to deliver their written submissions to my judicial assistant at Barrie.

DiTOMASO J.

Released: February 5, 2013

[^1]: Motion Record, Vol. 1, Tab 2, p. 18; Reasons, para. 45
[^2]: Motion Record, Vol. 1, Tab 2, p. 17; Reasons, para. 41
[^3]: Ibid., p. 18; para. 46
[^4]: Ibid.
[^5]: Ibid.
[^6]: Comtrade Petroleum Inc. v. 490300 Ontario Ltd. (1992), 1992 7405 (ON SC), 7 O.R. (3d) 542 (Div.Ct.) at 544
[^7]: Ash v. Lloyd’s Corp. (1992), 1992 7652 (ON SC), 8 O.R. (3d) 282 (Gen. Div.) at 284
[^8]: Ash v. Lloyd’s Corp. supra at p. 284-285
[^9]: Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764, paras. 1-3
[^10]: Ibid, paras. 42-43, 50-52, 72-75
[^11]: Combined Air Mechanical Services Inc v. Flesch, para. 56.
[^12]: Rules of Civil Procedure, Rule 20.02(2)
[^13]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 20
[^14]: R. Brown, The Law of Defamation in Canada, at page 17 – 106
[^15]: Globe and Mail Ltd. v. Boland, 1960 2 (SCC), [1960] S.C.R. 203 at 206
[^16]: Motion Record Vol. 1 Tab 2 p. 18 Reasons para. 46