ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Rhonda Whitley
Plaintiff
– and –
Dorothy Homma and Terry Butler
Defendants
Graydon Sheppard, Counsel for the Plaintiff
Scott C. Beattie - Counsel for Homma and Allan V. Mills - Counsel for Butler
HEARD: December 6, 2013
The Honourable Mr. Justice James W. Sloan
1In this action, I will refer to the parties as the Plaintiff or the Defendants or by their surnames.
2All of the parties are the children of a woman who died on September 20, 2011 after a battle with cancer.
3It does not appear that the children got along well and certainly the Plaintiff and the Defendant Homma did not.
4After the death of their mother, the Plaintiff alleges that one or both of the Defendants defamed her by publishing that they thought she may have poisoned their mother.
5The Statement of Claim specifically states at paragraph 4:
“Following the death of their mother, the defendants made a report to the Hamilton Police Service to the effect that the plaintiff had caused the death of their mother by the administration of poison.”
6Both Defendants now bring a motion to this court seeking summary judgment to dismiss the Plaintiff’s claim.
7Although no examinations for discovery have taken place, the Defendants point out that each party has filed an affidavit, and the Plaintiff has filed her Affidavit of Documents and produced the documents set forth in the affidavit.
8Among the documents produced by the Plaintiff are the complete notes and records of the Hamilton medical coroner and the Hamilton Police Service. These documents were produced prior to the Plaintiff amending her Statement of Claim.
9The Defendants contend that the allegation in paragraph 4 of the Statement of Claim is clear, precise, and specific and that the sole allegation against the Defendants is that they made a report to the Hamilton Police Service.
10It is evident from reviewing the Statement of Claim that when it was amended by the Plaintiff, after her receipt of the police and coroner's records, she maintained her main allegation in paragraph 4 and simply pluralized the paragraph such that it included both Defendants and not a single Defendant. Nowhere is there an allegation that either of the Defendants made a report of her alleged poisoning of their mother to the coroner.
11The Defendants submits that there is no evidence whatsoever to show that either of the Defendants made a report to the Hamilton Police Service. Therefore they submit that the action cannot possibly be successful, and should be dismissed at this stage.
12In fact, it is Homma’s position that she had no contact with the Hamilton Police Service whatsoever.
13It appears clear, that on September 21, 2011, Butler called the coroner's office and stated "that his sister residing in Ottawa (Homma) was alleging that their sister residing Hamilton (Plaintiff) had been feeding poison to their late mother…"
14The coroner was then in contact with the Hamilton Police Service who started an investigation.
15It was acknowledged by Homma, that in a meeting with the Hamilton coroner on September 24, 2011, she confirmed "that she had made the allegations in a fit of anger and despair".
16In the case of Grant v Torstar Corp. 2009 SCC 61, at paragraph 28, the Supreme Court of Canada sets out three things that a plaintiff in a defamation action would be required to prove to obtain judgment and an award of damages. The court's third point states "that the words were published, meaning that they were communicated to at least one person other than the plaintiff."
17On the evidence before me I find that Homma communicated the words to Butler and Butler then called the coroner. However, the Statement of Claim specifically alleges that the Defendants published the words by making a report to the Hamilton Police Service.
18Is it fatal to the Plaintiff's action, that she alleges that the words were communicated to a specific entity when there is no evidence to support that allegation?
19Butler also submits that he did not publish the words but that he republished them to the coroner and the coroner republished them to the police.
20There is no allegation in the Statement of Claim, that the words were ever republished. Is the lack of this allegation fatal to the Plaintiff's case?
21Both Defendants state that the Plaintiff is attempting to reframe her Statement of Claim in her Factum by alleging in her Factum that there was a republication trail from Butler to the coroner to the police.
22Homma submits, that as the initial publisher, she is prima facie not liable for damages caused by the republication of her defamatory expression subject to three exceptions: 1) -where she authorized or intended Butler to repeat or republish them to a third person: 2) -where the repetition or republication to a third person was the natural and probable result of the original publication: or 3) - where the person to whom the original publication was made was under a moral duty to repeat or republish the words to a third person.
23Homma argues that the case of Jordan v Talbot [1998] O.J. No. 1876, as considered in Browne v Toronto Star Newspapers Ltd. 2013 ONSC 3348 at paragraph 3, requires the plaintiff to specifically plead the precise exception relied upon. However, the Brown case was a motion to strike out part or all of a Statement of Claim and not a motion for summary judgment. On most motions to strike out the Statement of Claim, if successful, the court would allow the offending party to amend their claim.
24In this case, if the summary judgment motion is successful the claim would be dismissed and the Plaintiff would be statute barred from commencing another claim.
25Although there is no motion before me to amend the Statement of Claim, Butler submits that even if the claim were amended he would plead qualified privilege and relies on the case of Hill v Church of Scientology of Toronto 1995 59 (SCC), [1995] 2 S.C.R. 1130 at paragraphs 143 to 147.
26In essence paragraph 143 states:
"…a privileged occasion is…an occasion where the person who makes the communication has an interest or a duty, legal, social, or moral to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential."
27The Plaintiff at paragraph 5 of her Factum submits that Homma does not deny that she contacted the coroner. It was never made clear to this court, why Homma would deny something that the Statement of Claim did not allege that she did. This argument does not assist the Plaintiff.
28Somewhat similarly in paragraph 7 of the Plaintiff's Factum, she submits that Butler did not deny that he republished the allegation of poisoning. Again it was never made clear to this court why he would deny something that the Statement of Claim did not allege that he did. Again, this argument also does not assist the Plaintiff.
29The Plaintiff argues that it is only an irregularity that the wrong person is set out in the Statement of Claim and that this can be amended at any time including on a motion for summary judgment. However, there is no such motion before me.
30The Plaintiff also argues that the Defendants did not bring a motion for particulars and therefore waived compliance with the Rules. The Defendants can proceed in any way they see fit & therefore this argument does not assist the Plaintiff.
31The Plaintiff also submits, that the defendants would have known, that if they communicated the words to the corner that the corner would have reported the facts to the police.
32Plaintiff further submits that what the Defendants are really complaining about is the pleadings, but they have dressed it up as a summary judgment motion. She goes on to submit that no discoveries have been held and it would be premature and fundamentally unfair to dismiss the action at this stage.
33With respect to the defendant Butler, I am granting his motion for summary judgment and dismissing the Plaintiff’s claim against him. Although he may have had other reasons for contacting the coroner, such as trying to keep an uneasy peace between family members, he came into possession of allegations about a potential criminal act. Unless he disbelieved the allegations entirely, he had a moral and legal duty to pass the information on to the authorities. He certainly acted appropriately by contacting the coroner's office to express his concerns, since they were the public body charged with the duty to determine whether or not the deceased had passed away from some means, other than her cancer.
34I find on the evidence before me that the claim has no chance of success against Butler even it could be amended.
35With respect to the Defendant Homma there is no doubt that the subject words used, were defamatory, that the words referred to the Plaintiff and that they were published to a third party, in this case Butler.
36The Plaintiff, however, appears to have taken a very cavalier approach to her pleadings in this matter.
37The Plaintiff had all of the police and coroner's notes and records by March of 2013.
38When the Plaintiff amended her Statement of Claim pursuant to the order of Justice Arrell dated April 30, 2013, she knew, that Homma spoke the words to Butler and that Butler in turn had contacted the coroner's office who then contacted the police.
39Unbelievably, in her amended Statement of Claim she made absolutely no allegations whatsoever, that Homma published the words to Butler, that Butler republished the words to the coroner or that the coroner republished the words to the police.
40There is simply no evidence before me on which the plaintiff could prove her case as set out in her pleadings.
41I therefore dismissed the Plaintiffs claim against Homma also.
42If the parties are unable to agree on costs Mr. Beattie & Mr. Mills shall forward their brief submissions on costs to me by January 14, 2014. Mr. Sheppard shall forward his brief response to me by January 21, 2014. Mr. Beattie & Mr. Mills shall then forward their reply, if any, to me by January 28, 2014. Cost submissions may be sent to my attention by email, care of Kitchener.Superior.Court@ontario.ca
J. W. Sloan
Released: January 7, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Rhonda Whitley
Plaintiff
-and-
Dorothy Homma and Terry Butler
Defendants
REASONS FOR JUDGMENT
J. W. Sloan J.
Released: January 7, 2014