ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-13-490626

DATE: 20151023

BETWEEN:

DANIELS MIDTOWN CORPORATION and DANIELS CORPORATION
Plaintiffs

– and –

PAUL MARIAI
Defendant

Jeremy Devereux and Ryan Hauk for the Plaintiffs

Michael S. Teitelbaum for the Defendant

HEARD: October 14, 2015

PERELL, J.

REASONS FOR DECISION

[1] The Defendant Paul Mariai is the owner of a unit in a condominium building located at 20 Burkebrook Place in Toronto. Mr. Mariai was a member of the board of directors of the condominium corporation, T.S.C.C. 1849, known as Kilgour. From time to time, Mr. Mariai was the president of the condominium corporation.

[2] Burkebrook Place was developed and constructed by the Plaintiffs, Daniels Midtown Corporation and Daniels Corporation (“Daniels Corporations”).

[3] After construction was completed and the condominium corporation organized in 2007, there was a dispute between the Daniels Corporations and the condominium corporation about construction deficiencies. The dispute heated up in 2012, and the condominium corporation sued the Daniels Corporations alleging that there were structural defects and a problem with water penetrating the structure. During the course of the construction-deficiency litigation, in a separate action, the Daniels Corporations sued Mr. Mariai for defamation.

[4] The construction-deficiency litigation settled in 2014 without a settlement of the defamation action.

[5] In the on-going defamation action, Mr. Mariai now brings a motion pursuant to two branches of Rule 21 of the Rules of Civil Procedure. More precisely, he relies on: (1) rule 21.01(1)(a); and (2) rule 21.01(3)(d). He moves to have the Daniels Corporations’ defamation action dismissed pursuant to either rule.

[6] In the defamation action, Mr. Mariai denies making any defamatory statements. He also pleads that the statements he made were true. And, he pleads the defences of absolute and qualified privilege.

[7] Pursuant to his Rule 21 motions, Mr. Mariai submits that the defences of absolute privilege or qualified privilege apply to preclude the Daniels Corporations’ defamation claims. Alternatively, he submits that the defamation action is frivolous, vexatious and an abuse of process. Therefore, Mr. Mariai submits that the defamation action can and should be determined on an expeditious and proportional basis and that it should be dismissed.

[8] I dismiss Mr. Mariai’s motion. For reasons that will shortly become apparent, I shall be circumspect in describing the background facts necessary to explain why I am dismissing Mr. Mariai’s Rule 21 motion.

[9] As already noted, Mr. Mariai’s motion is two-branched, and one branch is pursuant to rule 21.01(1)(a) and the second branch is pursuant to rule 21.01(3)(d). Rule 21 states:

RULE 21 DETERMINATION OF AN ISSUE BEFORE TRIAL

WHERE AVAILABLE

To Any Party on a Question of Law

21.01 (1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly.

(2) No evidence is admissible on a motion,

(a) under clause (1) (a), except with leave of a judge or on consent of the parties;

(b) under clause (1) (b).

To Defendant

(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,

Action Frivolous, Vexatious or Abuse of Process

(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,

and the judge may make an order or grant judgment accordingly.

[10] Mr. Mariai’s use of Rule 21 is problematic and improper. He relies on the pleadings, including his own statement of defence, as evidence for both the rule 21.01(1)(a) branch and also for the rule 21.01(3)(d) branch of his motion. Mr. Mariai submits that the based on all the pleadings, the incontrovertible facts, and the documents incorporated by reference, including the demands for particulars and responses thereto, the defences of absolute privilege or qualified privilege apply or that the defamation action is an abuse of process.

[11] For a motion under rule 21.01(1)(a), the issue to be determined must be an issue of law raised by the pleading. An issue of fact or of mixed fact and law cannot be determined on a motion made under this rule: Gibson v. Cigna Life Insurance Co. of Canada, [1998] O.J. No. 5447 (Gen. Div.); McLean v. Vassel, [2001] O.J. No. 3212 (S.C.J.). If there is a factual dispute or if a full factual record is necessary to decide the issue of law, the court should decline to hear the motion under rule 21.01(1)(a): Portuguese Canadian Credit Union Ltd. (Liquidator of) v. CUMIS General Insurance Co., 2011 ONSC 6107; Rhône-Poulenc Canada Inc. v. Reichhold, [1998] O.J. No. 2531 (Gen. Div.).

[12] Mr. Mariai’s approach to establishing the background facts for the motion is problematic, because while evidence may be used to support the branch of the motion under rule 21.01(3)(d), which Mr. Mariai has actually not done, evidence may only be used under rule 21.01(1)(a), if the court grants leave, which it has not been asked to do in the immediate case. In other words, I can use the evidence delivered for the motion to decide whether the Daniels Corporations’ defamation action is frivolous and vexations under rule 21.01(3)(d), but I cannot use the affidavit evidence for rule 21.01(1)(a).

[13] Mr. Mariai’s problematic approach is exasperated by the fact that it is only the Daniels Corporations that have filed evidence for the purposes of the rule 21.01(3)(d) branch of the motion. Mr. Mariai has not filed evidence and instead relies on the pleadings.

[14] For the rule 21.01(3)(d) branch of Mr. Mariai’s motion, the Daniels Corporations delivered an affidavit from Tom Dutton, their Senior Vice President. The result is that Mr. Mariai has no evidence to support his contention that the defamation action is an abuse of process and nothing to contradict Mr. Dutton’s assertion that the action is a genuine defamation claim and not litigation for some improper purpose.

[15] The next problematic factor is that Mr. Mariai is using rule 21.01(1)(a) in an improper way. In his factum and in oral argument, Mr. Mariai attempted to use rule 21.01(1)(a) to prove his defences of absolute and qualified privilege. This, however, is not the proper way to use rule 21.01(1)(a).

[16] The court applies the same test for the determination of an issue of law under rule 21.01(1)(a) and to determine whether a pleading should be struck because it discloses no reasonable cause of action or defence under rule 21.01(1)(b). The test is often described as the plain and obvious test. See: Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; Canada (Attorney General) v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735. The rule is not designed to answer questions of law where material facts are in dispute: Portuguese Canadian Credit Union Ltd. (Liquidator of) v. CUMIS General Insurance Co., supra.

[17] For a defendant, rule 21.01(1)(a) is not designed to prove his or her defences; rather, the rule is designed to provide the defendant with an opportunity of showing that it is plain and obvious that the plaintiff’s claim is untenable in law. In other words, the rule is not designed for a defendant to bootstrap his or her own defences; rather, the rule is designed to dismantle the plaintiff`s claim as bound to fail assuming the plaintiff’s pleaded material facts are capable of being proven to be true.

[18] I recognize that there are defamation cases where a defendant has used Rule 21 to show that it is plain and obvious that the plaintiff’s claim is bound to fail because the defamatory words were spoken on an occasion of absolute or qualified privilege, but that is not the same thing as a defendant using Rule 21 as a means of showing that it is plain and obvious that his or her defence of absolute or qualified privilege is bound to succeed, which is what Mr. Mariai is trying to do in the immediate case.

[19] Put somewhat differently, if Mr. Mariai wishes a summary determination of the merits of his defences, then he should have brought a summary judgment motion not a Rule 21 motion.

[20] I have been circumspect in detailing the background facts as they are pleaded in the full set of pleadings because I do not wish to be taken to making any findings of fact about the claim or the defences, which remain to be determined on the merits.

[21] For the above reasons, Mr. Mariai’s motion is dismissed.

[22] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the submissions of the Daniels Corporations within 20 days of the release of these Reasons for Decision followed by Mr. Mariai’s submissions within a further 20 days. I alert the parties that my present inclination is to order costs in the cause.

Perell, J.

Released: October 23, 2015

COURT FILE NO.: CV-13-490626

DATE: 20151023

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

DANIELS MIDTOWN CORPORATION and DANIELS CORPORATION
Plaintiffs

– and –

PAUL MARIAI
Defendant

REASONS FOR DECISION

PERELL J.

Released: October 23, 2015