SUPERIOR COURT OF JUSTICE - ONTARIO
COURT FILE NO.: 1864/14 (Milton)
DATE: 2014 09 25
RE: DANILO DE IULIIS also known as DANNY DE IULIIS, EMILIA DE IULIIS, SEBASTIAN DE IULIIS, by his litigation guardian, EMILIA DE IULIIS, ANDREA DE IULIIS, by her litigation guardian, EMILIA DE IULIIS, and DOMINIC DE IULIIS, by his litigation guardian, EMILIA DE IULIIS
v.
LUIGIA GRAZIA ZILLI, personally, and carrying on business as KERR VILLAGE ART GALLERY, and CORPORATION OF THE TOWN OF OAKVILLE operating as “Town of Oakville”
BEFORE: EMERY J.
COUNSEL:
Douglas J. Simpson, for the Plaintiffs
Robert W. Wilson, for the Defendant, Luigia Grazia Zilli
Scott Hamilton, for the Defendant, The Corporation of the Town of Oakville
HEARD: August 21, 2014
ENDORSEMENT
[1] Danilo De Iuliis is convinced that Luigia Grazia Zilli laid a complaint against him on May 16, 2012 to his employer, the Town of Oakville because he had broken off an affair with her two months before. Mr. De Iuliis had been employed as a Parking Control Officer by the Town and Ms. Zilli’s business was located on his patrol route. Mr. De Iuliis is equally convinced that the Town relied upon the complaint laid by Ms. Zilli and subsequent statements made by her in the course of its investigation when it terminated his employment two months later.
[2] Mr. De Iuliis and his family commenced this action against Ms. Zilli and the Town of Oakville seeking damages they have allegedly suffered as a result of the defendants tortious conduct. Mr. De Iuliis seeks general, special and punitive or exemplary damages against Ms. Zilli for defamation, intentional infliction of emotional suffering, extortion, intimidation, uttering death threats and intentional interference with contractual relations between himself and the Town. He seeks general, special and punitive or exemplary damages against the Town for defamation and for negligent investigation.
[3] Mr. De Iuliis has deposed that the plaintiffs commenced this action before they could obtain the complaint and statements of Ms. Zilli or the documentary record of the investigation conducted by the Town to preserve their claims within the relevant limitation period. Mr. De Iuliis deposes that it has always been the intention of the plaintiffs to amend the Statement of Claim once those documents were produced.
[4] The plaintiffs bring this motion under Rule 30.04(5) to compel the defendant Zilli and the defendant Town to produce the required documents. Before submissions, counsel for Ms. Zilli advised the court that the plaintiffs had settled the motion with Ms. Zilli. Therefore, the motion proceeded as against the Town only for production of the following documents:
The complaint received by the Town from the defendant Luigia Grazia Zilli on May 16, 2012;
All documents received by the Town from the defendant Luigia Grazia Zilli on or after May 16, 2012;
The record of any oral statements, to the extent that they were reduced to writing by employees of the Town, made by Ms. Zilli on or about May 16, 2012 either preceding or following the complaint; and,
Transcripts or notes taken by employees of the Town of any interviews of Ms. Zilli conducted by the Town between May 16, 2012 and July 25, 2012.
Background
[5] Counsel for the Town of Oakville served a Notice of Intent to Defend on or about April 23, 2014. The Town of Oakville then served a Demand for Particulars dated May 2, 2014. The Demand included a request for particulars of the allegations contained in paragraph 27, various sub-paragraphs of paragraph 31, and paragraphs 32 and 35 of the Statement of Claim.
[6] On or about May 30, 2014, Mr. De Iuliis served particulars in response to the Demand for Particulars of the Town. In response to the Demand for Particulars to the allegations contained in paragraphs 27 and 31 of the Statement of Claim, Mr. De Iuliis stated that the plaintiffs will bring a motion under Rule 30.04(5) to obtain them from the defendants.
[7] The plaintiffs had already applied to the Town of Oakville for access to the documents required to provide these particulars to the allegations contained in the Statement of Claim, under the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56. The Town of Oakville has provided Mr. De Iuliis his employment file. However, the Town refused to provide the complaint(s) and statement(s) of Ms. Zilli to the Town on the basis that the Act does not apply to “records collected, prepared, maintained or used by or on behalf of an institution in relation to meetings, consultations, discussions or communications about labour relations or employment related matters” pursuant to section 52(3).
[8] The plaintiffs have also served a request to inspect documents on each of the defendants. Both defendants have refused to produce the documents requested. I note that the request to inspect documents does not make reference to any pleading, affidavit or other document, as required by Rule 30.04(1) or (2).
[9] Neither of the defendants have filed a Statement of Defence. Mr. De Iuliis states in his affidavit that the defendants have indicated their intention to bring a Motion under Rule 21 to strike out all or part of the Statement of Claim. Although materials for those motions have not been served, October 21, 2014 has been reserved as a date for the court to hear those motions.
[10] There is evidence before me that Mr. De Iuliis has good reason to conclude that Ms. Zilli had made complaints or statements about him to the Town of Oakville that lead to the investigation. He attaches to his affidavit an email sent by Ms. Zilli to himself in which she threatened to inform the Town about a personal relationship between them that implied her intention to procure the termination of his employment.
[11] Mr. De Iuliis has given evidence that he inferred from the events that followed Ms. Zilli’s threat on May 16, 2012 that her complaint or statements to the Town on or after May 16, 2012 were of a serious and damaging nature to him.
[12] On May 16 2012, the Town issued a letter to Mr. De Iuliis stating that he had been placed on administrative suspension because it had received a complaint from a member of the public. Mr. De Iuliis deposes that although the complainant was not identified in the letter, he is certain that the complaint was made by Ms. Zilli. In her email, Ms. Zilli declared to Mr. De Iuliis that when someone betrays her, she goes into “destroyer mode”.
[13] The Town subsequently terminated Mr. De Iuliis from his position as a parking control officer in July 2012. In the Statement of Claim, Mr. De Iuliis pleads that he accepted a severance package from the Town to mitigate his damages.
Analysis
[14] Rule 30.04(5) provides the court with the discretion to order the production of documents at any time, provided those documents are not privileged and are in the possession, control or power of the other party. However, there are limits on the exercise of this discretion. Generally, the power to order documentary disclosure before the close of pleadings is used sparingly. Where it is in the interest of justice to order production before the close of pleadings, using that power merits greater consideration.
[15] In Re Official Receiver of Hong Kong and Wing, et al., 1986 2811 (ON SC), [1986] O.J. No. 1104 the court held that production of a documents should not be ordered prior to the close of pleadings unless the court is satisfied that the documents at issue were essential or necessary for the purpose of allowing the requesting party to plead. It would appear this statement was based on Rule 30.03(1) as it read before the amendments to the Rules of Civil Procedure came into effect on January 1, 2010. There is no reason for present purposes why that principle should not be considered the general rule today even with introduction of the Discovery Plan under Rule 29.1.03.
[16] The affidavit sworn by Melanie Fullerton in response to the motion contains a helpful chronology of most events in the litigation to date. However, the affidavit does not give a reason why the Town is refusing the request for documents at this stage, or makes any claims for privilege over the documents.
[17] There is no denial that those documents are in the possession, power or control of the Town. Indeed, the letter from the Town to Mr. De Iuliis dated May 16, 2012 and attached to as Exhibit “B” to his affidavit refers specifically to a complaint and the start of an investigation. And attached at Exhibit “A” to Ms. Fullerton’s affidavit is the letter from the Town to Mr. De Iuliis dated July 25, 2012 confirming the conclusion of the investigation resulting in his dismissal.
[18] Where a party makes a claim for defamation, the law contains technical requirements for pleading defamation as a cause of action. Those requirements do not require the Statement of Claim to set out the exact words used, but the words that are substantially the words allegedly spoken or published to make it sufficiently clear to enable the defendant(s) to plead: Lysko v. Braley (2005) 2006 11846 (ON CA), 79 O.R. (3d) 721 (Ont. C.A.). Mere speculation is not enough: Promatek Industries Ltd. v. Creative Micro Designs Inc., [1989] O.J. No. 159 (Ont. Master).
[19] Likewise, the requirements of making a claim for negligent investigation informed by defamatory statements raises the requirement that the plaintiffs know the basis for the investigation in order to plead. The tort of negligent investigation has been recognized in Ontario as a cause of action at least since Hill v. Hamilton-Wentworth Police Services Board, [2005] 34230 (Ont. C.A.), affirmed at [2007] SCC 44. The Court of Appeal in Hill described the appropriate standard of care for the investigating officers as being what would be expected of reasonable officers in like circumstances, subject to the qualification that the standard of care is tied to reasonable and probable grounds at the point of arrest.
[20] I would think that the question of “like circumstances” makes the documents relevant to allow the parties to plead for the purpose of eventual disclosure and production. The question is, however, whether the court should order production of those documents before the defendants have pleaded.
[21] I conclude that the Town must produce those documents now as those documents are essential to the plaintiffs’ case. The documents are not only essential because of the evidence of Mr. De Iuliis that the plaintiffs always intended to amend the Statement of Claim when those documents were obtained and the strict rules for pleading defamation claims, they were made essential when the Town gave notice of its intention to bring a motion under Rule 21 to strike the Statement of Claim.
[22] In Freedom International Brokerage Company v. Tullett Prebon Canada Limited, 2009 54766 (ON SC), the plaintiff by counterclaim alleging libel and slander moved for the production of a letter in the possession of the defendant to the counterclaim. The defendant to the counterclaim had served a Demand for Particulars of the allegations of the libel and slander. The defendant to the counterclaim did not deny the existence of the letter but took issue with the lack of specifics and particularity in the pleading. Although the plaintiff by counterclaim responded to the Demand for Particulars and stated it would provide a more fulsome response once the letter was produced, the defendant to the counterclaim served its motion to strike pleadings.
[23] Master Brott expressed the view that on a motion under Rule 30.04(5), when the court finds a valid reason to order one party to an action to produce a document to another party, then the one party should be ordered to produce those documents.
[24] The Court in the Freedom International Brokerage case found that it was the pending motion of the defendant to the counterclaim to strike pleadings that rendered the production of the subject letter essential. The Master also indicated that she relied heavily on Rule 1.04 that requires that all Rules of Civil Procedure shall be construed liberally to secure the just, most expeditious and least expensive determination of every civil proceeding on the merits. She expressed the view that the motion to strike might be averted once the letter was produced.
[25] The decision in Freedom International Brokerage is on all fours with the motion before me. I do not accept the argument made by the Town that the reasoning of the Master in Freedom International Brokerage can be distinguished on the facts. The reality is that a defendant bringing a motion to strike and the threat of bringing a motion to strike coupled with booking a long motion date is a distinction without a difference. In each instance, the pleading of the plaintiff is under attack and the life of the action is placed in imminent danger of being dismissed.
[26] Production of the documents at issue by the Town will enable the plaintiffs to amend the Statement of Claim to meet the technical requirements for pleading defamation and negligent investigation claims. Production of those documents will allow the plaintiffs to provide a more fulsome response to the Demand for Particulars served by the Town. When those amendments are made and particulars given, the Rule 21 motion may be adverted if it is brought at all. If the defendant Town brings the motion, each of the parties will at least have the subject documents to use as they may. It will level the playing field and give each of the litigants the same advantage with respect to those documents. There is something fundamentally unfair about a defendant who not only demands particulars it already possesses, but also seeks to strike pleadings or dismiss the action of a plaintiff because of documents it alone controls and is holding back.
[27] In my view, the plaintiffs’ motion is not a fishing expedition. It is a legitimate request for documents in the hands of the Town that in the interests of justice should be produced under the prevailing circumstances. Those documents are relevant and would likely be disclosed after pleadings were closed in the normal course of events. The plaintiffs are at an unfair disadvantage by not having access to those documents now.
[28] I therefore order the Town of Oakville to produce the documents at issue by October 3, 2014.
[29] If any party seeks costs of this motion, written submissions may be made consisting of no more than three typewritten pages not including a costs outline, and sent by fax to my Judicial Assistant Sherry McHady at (905) 456-4834 by October 10, 2014.
Emery J
DATE: September 25, 2014
COURT FILE NO.: 1864/14 (Milton)
DATE: 2014 09 25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: DANILO DE IULIIS also known as DANNY DE IULIIS, EMILIA DE IULIIS, SEBASTIAN DE IULIIS, by his litigation guardian, EMILIA DE IULIIS, ANDREA DE IULIIS, by her litigation guardian, EMILIA DE IULIIS, and DOMINIC DE IULIIS, by his litigation guardian, EMILIA DE IULIIS
v.
LUIGIA GRAZIA ZILLI, personally, and carrying on business as KERR VILLAGE ART GALLERY, and CORPORATION OF THE TOWN OF OAKVILLE operating as “Town of Oakville”
COUNSEL: Douglas J. Simpson, for the Plaintiffs
Robert W. Wilson, for the Defendant, Luigia Grazia Zilli
Scott Hamilton, for the Defendant, The Corporation of the Town of Oakville
ENDORSEMENT
EMERY J.
DATE: September 25, 2014