SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-10-164
Date: 2013-02-06

RE: RANDY KALAN, Plaintiff

AND:

THE CORPORATION OF THE CITY OF BRANTFORD

And GARTH DIX, Defendants

BEFORE: Turnbull, J.

COUNSEL:
Peter Quinlan, Counsel, for the Plaintiff

Jason Squire, Counsel, for the Defendants

HEARD: January 30, 2013

Endorsement

[1] This claim is brought by the former deputy fire chief of the City of Brantford, arising out of his termination without cause by decision of Brantford City Council on November 24, 2009. As currently constituted, the claim alleges the notice period paid by the City of was inadequate, and it alleges defamation by the fire chief who recommended the plaintiff’s termination. The motion presently before this court is brought by the defendants who seek an order striking any claims of defamation made by the defendants in the amended statement of claim, or alternatively striking paragraphs 27 and 58 of the amended statement of claim.

The Facts

[2] On November 23, 2009, Dan Temprile, the General Manager, Public Health, Safety and Social Services, of the City of Brantford, submitted a report to the Mayor and members if City Council with respect to the termination of the employment of the plaintiff, then Deputy Fire Chief, Randy Kalan. The front page of the report was clearly marked “Private and Confidential” with the level of confidentiality marked at “High Risk.” Pursuant to section 239 (2)(b) of the Municipal Act, 2001, the report was identified as one relating to “personal matters about an identifiable individual, including municipal or local board employees.”

[3] The report was signed by, Mr. Temprile, the then Fire Chief, Garth Dix and was considered at a “in camera” meeting of Brantford City Council on November 24, 2009. It recommended the termination of the employment of the plaintiff on a without cause basis. That recommendation was accepted.

[4] Subsequent to the plaintiff’s termination and the commencement of these legal proceedings, the plaintiff obtained possession of a “leaked” copy of the report. Counsel for the plaintiff advised counsel for the defendants that his client had presented him with a copy of the report. Although counsel for the plaintiff had read the report he agreed to have his copy of the report sealed and not to refer to it again until the determination of a motion for directions to determine whether the plaintiff’s counsel could make use of the report and particularly whether the report was privileged.

[5] The matter was fully argued by counsel before me. In an endorsement dated March 28, 2011, I ordered that the contents of the November 23, 2009 report were privileged and ordered that the report not be produced. At that time, on the consent of counsel, I read the copy of the report which had been sealed. I determined that portions of the report were subject to solicitor/client privilege and that the whole of the report was subject to a “communications privilege” arising out of the “Wigmore factors,” given that the report was prepared for an in camera meeting of City Council. I found that the city’s ability to receive and consider confidential advice on employee relations would no doubt be injured by production of the report. I found that the confidential reporting relationship between employees of a municipal corporation and their employer should be “sedulously fostered.” I further found that the privilege had not been waived by the leaking of the report.

[6] At the time of making the order, I also ordered that a substantial number of the paragraphs in the statement of claim be struck and granted the plaintiff leave to amend his defamation claims in accordance with the reasons issued in writing on March 28, 2011. By December 2011 the plaintiff had not amended his statement of claim in accordance with my directions. The defendants brought a further motion to compel compliance with the previous order. In the face of that motion, which was ultimately returnable March 9, 2012, the plaintiff moved for leave to extend the time to amend his statement of claim. I granted leave for the plaintiff to amend his statement of claim specifically without ruling on the propriety of paragraphs 27 and 58 of the proposed amended pleading.

[7] Paragraphs 27 and 58 of the Amended Statement of Claim purport to explicitly rely upon the November 23, 2009 report despite this court’s determination that the report was privileged and that the privilege was not waived. For clarity I am going to reproduce paragraphs 27 and 58 of the amended statement of claim, which read as follows:

27. Dix made statements in writing in a report to City Council presented in mid-November of 2009, to provide information to City Council regarding termination of the plaintiff which statements were false including the following:

(a) that the plaintiff had lost the respect of the fire fighters of the City of Brantford;

(b) that the plaintiff was untrustworthy;

(c) that the plaintiff could not be trusted around women;

(d) that the plaintiff was of a character unfit for a position of management;

(e) a statement to the effect that a major occurrence would happen involving the plaintiff which would bring the city into public disrepute;

(f) by presenting in the report facts and concerns occurring early in the plaintiff’s employment and while on probation, as matters occurring recently thereby misleading all persons reading the report as to current problems with the plaintiff;

(g) such further and other matters as may be itemized upon the defendant producing the report to council.

58. The plaintiff further stated that Dix, in his report to Council of November of 2009, deliberately omitted achievements by the plaintiff which may have had a positive influence on representatives of City Council.

Position of the Plaintiff

[8] Mr. Quinlan relies upon paragraph 1 of the court’s order dated the 21st day of December 2011, which reads as follows:

a. The court orders and declares that the November 23, 2009 report is privileged and does not have to be produced by the defendants to the plaintiff at this juncture.

[9] Mr. Quinlan submitted that it was his understanding that this would not pre-empt his client being able to make the pleading stated in paragraph 27 and 57 of the Amended Statement of Claim. He argued that inasmuch as the parties are merely at the pleading stage, the plaintiff should not be precluded from proving his claim.

[10] Rule 26.01 provides that “on motion at any stage of an action, the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result which could not be compensated for by costs or an adjournment.” Mr. Quinlan argued that the plaintiff should not be denied the right to examine the defendants with respect to what was stated in the meeting at city council based upon the proposed amendments to the pleadings.

Position of the Defendants

[11] Mr. Squire submits that the court has already made the determination that the report is privileged. He submitted that this is simply an attempt by the plaintiff to make an “end run” around the earlier order of the court to violate the privileged communications found to exist between the defendants and City Council.

Issues and the Law

[12] Rule 25.11 states “the court make strike out or expunge all or part of a pleading or other document, with or without leave to amend, on the ground that the pleading or other document, a) may prejudice or delay the fair trial of the action; b) is scandalous, frivolous and vexatious; or c) is an abuse of the process of the court. Privileged communications are inadmissible. In the case of North American Carbon Canada Inc. v. Ontario Power Generation Inc., 2003 25888 (ONSC), Karakatsanis, J. (as she then was) held,

“A reference to a privileged document which would be inadmissible at trial is scandalous, frivolous or vexatious and should be struck from a pleading under Rule 25.11(b).”

[13] In my view, the pleading of the plaintiff is vexatious and is also an abuse of the process of the court.

[14] Mr. Quinlan submitted that the comment made by me in the original ruling in this matter released March 28, 2011, at paragraph 33, confused him. That paragraph stated as follows:

33. It is therefore ordered that the contents of the report of November 23, 2009 authored by Garth Dix and Dan Temprile are subject to the communications privilege and the report does not have to be produced by the defendants to the plaintiff at this juncture.

[15] For clarification, “at this juncture” simply meant until there is some evidence, such as the defendant waiving the privilege attached to the report, which would warrant the court reversing that decision.

[16] Both paragraphs as presently pleaded specifically plead and rely upon the “statements in writing and a report to City Council” which is the very report which I have ruled to be privileged. In my view, the entire communication is privileged.

[17] In the circumstances, I have no hesitation in striking paragraphs 27 and 58, as amended.

[18] Mr. Quinlan requested leave to further bring a motion orally during the hearing of this motion, to amend those paragraphs so that the paragraphs would make no reference to statements allegedly made by the defendant, Dix at the City Council meeting. I refused to make those amendments without a proper motion being brought and granting the defendants ample opportunity to provide responding materials.

[19] The plaintiff is entitled to obtain the factual information and to use it in this case but it must be obtained from some source other than from the privileged communication. As M. Proulx and D. Layton wrote in Ethics and Canadian Criminal Law, (Irwin Law Inc. 2001) at p. 173:

…the privilege applies to the communication itself, [it] does not bar the adduction of evidence pertaining to the facts communicated if gleaned from some other source.

[20] In their well-regarded text entitled The Law of Evidence in Canada, 3rd Ed. (Lexus Nexis Canada Inc. 2009), the learned authors stated the following at p. 931

The protection is for communications only and facts that exist independent of a communication may be ordered disclosed. [my emphasis added].

Conclusion

[21] In the circumstances, the defendants’ motion is granted and paragraphs 27, and 58 of the Amended Statement of Claim are struck.

The plaintiff is granted leave to bring a further motion to amend his Statement of Claim. If he decides to do so, the Notice of Motion and supporting materials shall be served and filed on or before March 15, 2013.

Costs

[22] Mr. Squire presented a costs outline with respect to this matter in which he seeks the substantial indemnity costs of $4,745.00 plus H.S.T. with respect to this motion. In assessing costs, the court is bound to consider the factors listed in Rule 57 of the Rules of Civil Procedure.

[23] In this claim the plaintiff seeks damages of $5,000,000 from the City of Brantford and $2,500,000 from Chief Dix personally. This is but one of the various issues or matters the court is to consider in assessing costs under Rule 57.01(1). A claim of such magnitude is clearly of importance to both parties.

[24] I have also taken into account that the plaintiff’s conduct in this matter has tended to lengthen the matter. This is the third motion, pre-discovery because of reliance on a pleading which relies on a privileged document. The plaintiff was given the opportunity to withdraw the pleading but chose not to do so.

[25] Mr. Squire, counsel for the defendant, was called to the Bar in 2000. He seeks a substantial indemnity rate of $290 per hour for himself and $145 per hour for his student. I find these rates and the work done to be reasonable, fair and within the reasonable expectations of the parties.

[26] In my view, the defendants should have their costs on this motion on a partial indemnity basis. I have some sympathy for Mr. Quinlan with respect to the interpretation he applied to the words in my earlier endorsement when I wrote “at this juncture”. I fix the defendants’ costs in the sum of $3,000.00 plus H.S.T. Those costs are payable in any event of the cause.

Turnbull, J.

Date: February 6, 2013