National Council of Canadian Muslims v. Harper, 2015 ONSC 7185

COURT FILE NO.: 15-64750-SR 283-2014

DATE: 2015/12/02

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: NATIONAL COUNCIL OF CANADIAN MUSLIMS (NCCM) – Plaintiff (Responding Party)

v.

THE RIGHT HONOURABLE STEPHEN HARPER, JASON MACDONALD AND HER MAJESTY THE QUEEN IN RIGHT OF CANADA – Defendants (Moving Parties)

BEFORE: Madam Justice Liza Sheard

COUNSEL: Jeff Saikaley, for the Plaintiff (Responding Party)

Peter A. Downard and Fida Hindi, for the Defendants/Moving Parties

HEARD: August 25, 2015

ENDORSEMENT

Introduction

[1] This motion is brought by the defendants. They seek an order extending the time for the oral examination for discovery of the plaintiff from the two hours mandated under rule 76 of the Rules of Civil Procedure[^1]to 21 hours. They also seek an order that the plaintiff deliver a further and better affidavit of documents.

[2] The plaintiff brought its action under the simplified procedure pursuant to r. 76. Rule 76 sets out the procedures to be followed in actions in which the amount claimed is $100,000.00 or less and in which the plaintiff’s claim is exclusively for money, real property and/or personal property.

[3] The plaintiff’s claim is for general, aggravated and punitive damages for the alleged libellous statements made and published by one or more of the defendants. As drafted and issued, the claim seeks more than $100,000.00. The statement of claim also seeks injunctive relief:

1.iv. A complete public retraction of the defamatory comments; and

1.v. A permanent injunction restraining the defendants and or any other person acting for the defendants from publishing, causing to be published, posting, or reposting any words, audio or visual recording images, or any other material that are defamatory to the plaintiff.

[4] At paragraph 39 of their statement of defence, the defendants object to the action proceeding under the simplified procedure on the basis that it does not comply with the requirements of r. 76.02.

[5] At paragraph 18 of its reply, the plaintiff abandoned any claims that do not comply with r. 76. Therefore, for the purposes of this motion, this action is considered one that is properly brought and maintained under r. 76.

[6] The relevant provisions of r. 76 are:

AFFIDAVIT OF DOCUMENTS

Copies of Documents

76.03 (1) A party to an action under this Rule shall, within 10 days after the close of pleadings and at the party’s own expense, serve on every other party,

(a) an affidavit of documents (Form 30A or 30B) disclosing to the full extent of the party’s knowledge, information and belief all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power; and

(b) copies of the documents referred to in Schedule A of the affidavit of documents. O. Reg. 284/01, s. 25; O. Reg. 206/02, s. 19; O. Reg. 438/08, s. 52.

NO WRITTEN DISCOVERY, CROSS-EXAMINATION ON AN AFFIDAVIT OR EXAMINATION OF A WITNESS

76.04 (1) The following are not permitted in an action under this Rule:

1. Examination for discovery by written questions and answers under Rule 35.

2. Cross-examination of a deponent on an affidavit under rule 39.02.

3. Examination of a witness on a motion under rule 39.03.

Limitation on Oral Discovery

(2) Despite rule 31.05.1 (time limit on discovery), no party shall, in conducting oral examinations for discovery in relation to an action proceeding under this Rule, exceed a total of two hours of examination, regardless of the number of parties or other persons to be examined. O. Reg. 438/08, s. 53.

The defendants submit that rr. 2.03 and 3.02 (1), would allow this Court to extend the time for oral examination from two to 21 hours. Rules 2.03 and 3.02(1) read as follows:

2.03 The court may, only where and as necessary in the interest of justice, dispense with compliance with any rule at any time. R.R.O. 1990, Reg. 194

3.02 (1) Subject to subrule (3), the court may by order extend or abridge any time prescribed by these rules or an order, on such terms as are just. R.R.O. 1990, Reg. 194

Plaintiff Opposes Defendants’ Motion

[7] The plaintiff resists the defendants’ motion on a number of grounds. The plaintiff asserts that it has produced all relevant documents having regard to the principles of relevance and proportionality. It says that there are no additional relevant documents within the plaintiff’s power, possession or control that can be produced without significant expenditure of time and resources. Also, that significant time and expense would be incurred to locate tangentially relevant documents, which may or may not exist.

[8] The plaintiff also submits that it deliberately chose to proceed under the simplified rules to streamline the litigation and minimize its costs and that it has limited funds.

[9] The plaintiff asserts that the defendants are employing a strategy designed to cause the plaintiff to incur substantial legal fees and to delay the eventual trial of the action.

[10] Finally, the plaintiff states that the defendants ought either to abide by the provisions of the simplified procedure or to seek an order that it proceed under the ordinary procedure. The defendants do not seek that latter relief on this motion.

[11] The defendants argue that the plaintiff is trying to “shoehorn a big case into a small box”. In submissions, counsel for the defendants advised that the defendants have twice objected to using the simplified procedure but the plaintiff has insisted that the case can be fairly tried under the simplified procedure.

[12] R. 76.02(5) provides that if a defendant objects to the action proceeding under that rule because the claim does not comply with r. 76.02(1), the objection is remedied by the plaintiff abandoning all claims that do not comply with the subrule. The plaintiff has done that. It is not clear that the defendants have any basis to otherwise seek to have the action proceed under the ordinary procedure.

Background

[13] The plaintiff sued Stephen Harper (“Mr. Harper”), then Prime Minister of Canada, Jason MacDonald (“Mr. MacDonald”), then his Director of Communications, and the Crown. The claim alleges that on January 19, 2014 Mr. Harper travelled to Israel with a delegation of over 200 ministers from relevant portfolios and stakeholders who could “help Canada strengthen its ties to the [Middle East] Region”. Mr. Harper included Rabbi Daniel Korobkin in the delegation.

[14] By way of a press release and an open letter to Mr. Harper dated January 14, 2014, the plaintiff expressed its objections to Rabbi Daniel Korobkin being included among the delegates.

[15] It is alleged that on January 16, 2014, on instruction from Mr. Harper, his chief spokesperson, Mr. McDonald, responded to the plaintiff’s published objections and stated: “We will not take seriously criticism from an organization with documented ties to a terrorist Organization such as Hamas”. The plaintiff claims that this statement is defamatory and contains serious false allegations. The claim identifies these as “the defamatory words”.[^2] For ease of reference, I will also refer to the statement as “the defamatory words.”

[16] Paragraph 17 of the statement of claim sets out the basis upon which the plaintiff asserts the defamatory words to be defamatory. Briefly, paragraph 17 states as false any allegations that NCCM is a criminal organization, a terrorist organization, affiliated with a criminal or terrorist organization or supports a criminal or terrorist organization, or shares the same violent objectives as a criminal and terrorist.

[17] As stated above, in its reply the plaintiff abandoned all claims not permitted under r. 76. Therefore, I understand the plaintiff has abandoned its claim for injunctive relief and has limited its claim to a monetary award of $100,000.00, plus interest and costs.

[18] On June 9, 2014 the defendants served a demand for particulars to which the plaintiff delivered a response on June 20, 2014. The defendants served a statement of defence dated June 24, 2014. In objecting to the action proceeding under the simplified procedure, the defendants stated that this was not a case “in which the attenuated discovery rights contemplated by the simplified procedure are appropriate or in the interests of justice.”[^3]

Court’s Exercise of Discretion

[19] Both parties urge the Court to consider rr. 1.04 and (1.1) of the Rules of Civil Procedure in determining whether to grant the defendants’ motion. That subrule reads:

1.04 (1) General Principle - These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

(1.1) Proportionality - In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding. O. Reg. 438/08, s. 2.

[20] The defendants submit that the pleadings raise a matter of significant public importance; the issues are complex; and, with respect to the monetary aspect of the claim, in defamation cases it is less about the monetary damages than about the reputational harm. The defendants argue that it is common in defamation cases for the costs of the litigation to exceed any award of damages.

[21] The defendants rely on r. 76, rr. 29 and 30 of the Rules of Civil Procedure in support of their request for an order for a further and better affidavit of documents. They argue that they need and are entitled to the additional documents requested in order to properly defend the plaintiff’s claim and that their request is proportionate, given the complexity and importance of the issues.

[22] The defendants submit that the heart of their defence is justification. The amended statement of defence contains many specific details of the information and basis upon which the defendants made the defamatory words.

[23] Beginning at paragraph 31 of their statement of defence, the defendants assert that the defamatory words were substantially true and that:

(a) Hamas has been designated as a terrorist organization;

(b) the NCCM is governed by the Canada Not-For-Profit Corporations Act, and from July 7, 2000, the date of its incorporation, to June 24, 2013 the plaintiff’s name was Council on American Islamic Relations (Canada), also known as CAIR-Canada or CAIR-CAN. The corporation’s name was changed to the NCCM on June 24, 2013;

(c) CAIR-Canada was closely associated with the Council on American-Islamic relations based in Washington, DC, USA and that in 2003 a publication by CAIR-Canada refers to CAIR as CAIR-CAN’s parent organization.

Issues on the Motion

[24] There are two issues raised on this motion:

1. Has the plaintiff complied with its obligations under r. 76.03 or should it be ordered to provide a better affidavit of documents with copies of the Schedule “A” documents? and

2. Should the Court exercise its discretion to extend the time for the oral examination of the plaintiff from the two hours mandated by r. 76 to 21 hours?

Issue (1): Further and Better Affidavit of Documents

[25] The plaintiff alleges that in asking for additional documents, the defendants are on a “fishing expedition”. It also asserts that the defendants have deep-pockets and are seeking to impose undue hardship upon the plaintiff.

[26] The plaintiff also argues that the documents requested are unreasonable, would require the plaintiff to incur significant expense and would be unfair or oppressive to the plaintiff. Those factors are set out in r. 29.

Production Orders Requested

[27] Paragraph 59 (a) to (p) of the defendants’ Factum list the nature of the documents sought to be included in the plaintiff’s further and better affidavit of documents. For ease of reference, I refer to the defendants’ numbering:

59. An order that the plaintiff deliver an affidavit of documents disclosing any documents within the power, possession or control of the plaintiff, including any and all paper or electronic communications among directors, officers or employees of the plaintiff, or between any such persons and third parties, and formal or informal minutes or notes of meetings or discussions, relating to the matters at issue in this action, including, without limiting the foregoing, the following subjects relevant to the pleadings in this action:

(a) the NCCM’s opposition in August and September 2013 to the appearance in Toronto of two American speakers on radical Islam (paragraphs 12, 13 and 14 of the amended statement of defence in paragraph 10 of the statement of claim.)

[28] In support of this request, the defendants refer to Exhibit “GG” of the affidavit of Janet Lalonde sworn July 21, 2015 (“the Lalonde Affidavit”).[^4]

[29] Exhibit “GG” to the Lalonde affidavit is a copy of a letter written by Julius Suraski, Board Member, Jewish Defence League of Canada (“JDL Canada”) to Patrick Regina, General Manager Hilton Toronto/ Markham Suites Hotel (“the Hotel”) on August 16, 2013 (“the Suraski Letter”). The Suraski letter is responding to a letter apparently written by NCCM dated August 14, 2013. This letter was not produced by the plaintiff.

[30] Based on the Suraski letter, it would appear that NCCM made allegations against JDL Canada including an accusation that JDL Canada “has been deemed a right-wing terrorist group” by the FBI. The NCCM letter was apparently sent to the Hotel to protest or object to the Hotel allowing Robert Spencer and Pamela Geller to speak at the Hotel. Indeed, that is the import of the allegations set out in paragraphs 11 to 18 of the amended statement of defence.

[31] The penultimate paragraph of the Suraski Letter contains its own allegation against NCCM:

Finally, for your information, the writer NCCM - the National Council of Canadian Muslims - is the recent reincarnation of CAIR-Canada – a notorious organization affiliated with the parent organization in the United States which was determined to be an unindicted co-conspirator in the recent “Holy Land Trials” where members of its board were prosecuted and found guilty of laundering money for terrorist organizations connected to the Muslim Brotherhood - currently wreaking the terror and havoc around the world.

[32] Exhibit “GG” was a document produced by the defendants. It pre-dates the defamatory words upon which the plaintiff sues. It forms part of the 11-volume brief of documents produced by the defendants.

[33] At paragraphs 15-18 of the amended statement of defence the defendants make specific reference to the involvement of Rabbi Daniel Korobkin at the talk delivered by Robert Spencer and Pamela Geller.

[34] At paragraph 10 of its statement of claim, the plaintiff states:

…the NCCM objected to Mr. Korobkin because of his decision to align himself with individuals recognized as vitriolic anti-Muslim activists. In fact Mr. Grogan defended and praised two American campaigners, Pamela Geller and Robert Spencer, of a group known as Stop Islamization of America, which has been designated as a hate group by evil (sic) liberties monitoring groups such as the Southern Poverty Law Centre and the Anti-Defamation League.

[35] The reference to Rabbi Daniel Korobkin in the amended statement of defence appears to support the defendants’ view that he is not anti-Muslim.

[36] Notwithstanding that the plaintiff makes allegations concerning Rabbi Daniel Korobkin in its statement of claim, whether or not the plaintiff is justified or right in its allegations against Rabbi Daniel Korobkin is not relevant to the central issues in this action which relate to allegations that the plaintiff has links to “a terrorist organization such as Hamas”.

[37] Further, the defendants appear to have ample documentary information relating to the position of NCCM against Rabbi Daniel Korobkin: there is no issue as to plaintiff’s views of Rabbi Korobkin. Documents on that issue or on issue of the basis for which the plaintiff asserted that JDL Canada was “a terrorist group” are not relevant to the litigation. Their production will not assist in the determination of the issues in this action. Guided by r. 29, I dismiss the defendants’ request for an order requiring NCCM to produce all documents relevant to the aforesaid subject matter, including the NCCM August 14, 2013 letter.

[38] The above order is made without prejudice to the right of the defendants to bring a fresh motion after the examination of the plaintiff, should the evidence given on the examination establish the relevance of the documents referred to at para. 37 above.

[39] Subparagraph 59(b) requests the following:

(b) With Respect to Rabbi Daniel Korobkin’s September 17, 2013 speech (paras. 16–18, and 22 of amended defence and para. 10 of claim) the defendants ask for production of NCCM documents regarding Rabbi Korobkin’s speech and the NCCM’s awareness of its content.

[40] For the reasons set out above respecting the order requested at subparagraph 59(a), I also dismiss this request.

[41] Subparagraph 59(c) requests the following:

(c) The defendants ask for full production regarding the plaintiff’s preparation and publicizing of its public letter to Mr. Harper dated January 14, 2014.

[42] The defendants defend the claim on the grounds that the alleged response to the plaintiff’s letter was not defamatory; that persons subjected to a public attack have a right to respond to the attack; and that the response is privileged. Specifically, at paragraph 29 of their amended statement of defence, the defendants state that Mr. MacDonald was responding to the plaintiff’s allegation that Mr. Harper’s government, by reason of its association with Rabbi Korobkin, appeared to be accepting and legitimizing the promotion of hate against Canadian Muslims.

[43] Paragraph 29 of the amended statement of defence further reads:

Jason MacDonald’s response was, in effect, that the NCCM was in no position to make such an extreme criticism on the basis of an association between the Prime Minister’s Government and Rabbi Korobkin when there was documentary evidence that the NCCM was an organization that had ties to Hamas. He offered, in effect, the familiar defence that the NCCM was throwing stones when it lived in a glass house.

[44] Further, at paragraph 30, the defendants state that: “Jason MacDonald’s response was made on a privileged occasion. His response was clearly within the recognized bounds of a privileged response to public criticism. He stated the words complained of honestly and in good faith…”

[45] The defendants’ third ground of defence is truth: that the plaintiff does have ties to terrorist organizations such as Hamas.

[46] Based on the defences pleaded, NCCM’s intention in preparing the open letter is not relevant. The pleadings do not provide a basis upon which an order could be made to require NCCM to make full production regarding the preparation and publicizing of its open letter. Again, guided by r. 29, the pleadings and the evidence on the motion, I dismiss the defendants’ motion for this order.

[47] Subparagraph 59(d) seeks the following:

(d) The defendants seek an order for production of any NCCM documents relating to the Jason MacDonald statement to Sun News (see paras. 23-25 of the amended statement of defence in paragraph 12 of the statement of claim).

[48] This statement, the impact upon NCCM, including any documents that were generated as a result, and the events that surrounded the publication of the alleged defamatory statement are central to the plaintiff’s claim and the defendants’ defence of it.

[49] If they have not already been produced, I order NCCM to list and produce any documents in NCCM’s possession, power or control relating to the events of the publication of the Jason MacDonald statement and NCCM’s response to that statement, unless subject to privilege.

[50] Subparagraph 59(e) seeks the following:

(e) The defendants seek production of documents in the power, possession or control of the plaintiff that indicate an awareness on the part of the plaintiff either before or after its name change in 2013 that “it has been a matter of public record for years that CAIR in the United States has been linked to Hamas, and that the NCCM has been linked to CAIR.”

[51] Based on the pleadings, this information would be relevant to the claims and defences. Whether it is or is not costly to the plaintiff to locate and produce these documents, the importance and complexity of the issues requires that these documents be produced.

[52] If it has not already done so, the plaintiff is ordered to produce the documents identified in subparagraph 59(e), of the defendants’ Factum.

[53] Also central to the determination of the issues, is the defendants’ allegation that NCCM and CAIR-CAN, the name allegedly used by the plaintiff prior to 2013, were connected with the Council on American-Islamic relations (“CAIR”) in the United States and that CAIR has documented ties to terrorist organizations such as Hamas.

[54] For that reason, the defendants seek the order set out at subparagraph 59(f) of their Factum:

(f) The relationship between the NCCM, before or after its 2013 change of name, and CAIR is of central relevance to the action. Annual reports of the NCCM produced by the defendants (but not the NCCM) refer to CAIR as the NCCM’s “sister organization”, and that the NCCM and CAIR “coordinate on areas of mutual concern”. [The defendants seek an order that] [T]he NCCM should be required to produce all documents relating to its relationship and dealings with CAIR.

[55] The plaintiff resists this production request on the basis that it is a “fishing expedition” and that the production would be used to try to find evidence of which the defendants have no current knowledge in order to establish a basis for their “truth” defence. In other words, they are simply looking for information that might support “the defamatory statement”.

[56] The orders sought under paragraphs 59 (f) to (o) of the defendants’ Factum are broad. The plaintiff may incur a significant expense in finding and producing the requested documentation. However, that concern must be balanced against the right of the defendants to defend the claim.

Legal Analysis

[57] The issues raised by the pleadings are complex. They are also important to all the parties.

[58] In resisting the production requested, the plaintiff relies upon the legal principles set out in Deep v. Toronto Star Newspaper Limited[^5], I.B.E.W., Local 213 v. Pacific Newspaper Group Inc.[^6], and Kent v. Kehoe[^7].

[59] In Deep, the defendant had published an article reporting on fraud charges that had been brought against the plaintiff with respect to alleged OHIP overbilling. The plaintiff commenced a libel action against the defendants. The decision relied upon by the plaintiff, is the Superior Court decision of the appeal from the Master’s order.

[60] The Master had ordered production of the plaintiff’s OHIP billing records, as well as production of the Crown’s Brief in its prosecution of the plaintiff relating to fraud charges brought against the plaintiff respecting his alleged OHIP overbilling. The Master ordered production of the Crown Brief despite that the criminal charges had been stayed.

[61] The plaintiff appealed. The Court upheld the Master’s order for production of the Crown Brief on the basis that, having asserted the defence of justification, the defendants were entitled to disclosure of the facts of the investigation to permit them to pursue this defence.

[62] The Master had also ordered disclosure of the plaintiff’s OHIP billing records for 10 years. The defendants acknowledged that they sought that disclosure in order to identify other instances of overbilling, not known to them at the time of their alleged defamatory publication.

[63] At paragraph 21 of its decision, the court stated:

In other words, the purpose of this disclosure is to seek to establish a basis for the defence of truth to the libel action beyond a defence based on the particular situations identified in, and forming the subject matter of, the Article.

[64] The Court set aside the Master’s order on the basis that the defendants were simply looking to conduct “…a classic fishing expedition to see if they can identify any additional cases to support their statements in the Article.”[^8]

[65] The Court concluded that the defendant could not “re-investigate” the same OHIP records in the hopes of discovering facts that might support the truth of their defamatory statements.[^9]

[66] The court’s conclusion in Deep was reached, in part, on the basis that the pleadings did not include specific particulars with respect to an overbilling of OHIP for the 10 year period. Therefore, there was no basis “to justify a broad order of disclosure in the absence of demonstrated relevance.”[^10]

[67] The court in I.B.E.W., Local 213, reached a similar conclusion. The defendants’ discovery of the plaintiff’s documents was restricted to documents relating to the facts as pleaded. However, the defendants were not restricted to relying on evidence that they possessed at the time the alleged libellous statements were made. Consistent with the conclusions in Deep, the court in I.B.E.W. agreed that defendants are not permitted to embark upon a fishing expedition in the hope of uncovering evidence that may “buttress general allegations of facts justifying their defamatory statements.”[^11]

[68] In denying the broad production order sought, the court found that the pleadings were not specific enough to allow discovery. The court held that it would be unfair to a plaintiff to allow the defendant to assert that the plaintiff itself had particulars that would support the defamatory statement and then to allow the defendant a broad and exhaustive discovery of the plaintiff to justify its statement.

[69] The court concluded that the statements complained of in the alleged libel were of a “generic nature” and that the defendants had failed to plead sufficiently specific particulars to entitle them to the discovery of the documents they were seeking. Although the application for a production order was dismissed, the defendants were permitted to renew the application should they amend their pleadings to provide particulars.

[70] Finally, the plaintiff relies on the Nova Scotia Court of Appeal decision in Kent v. Kehoe[^12]. Kent was an appeal from an order of a judge of the Superior Court. The judge had dismissed the defendant’s motion seeking production of certain documents. The rule under which the production was sought in Kent differs from the rule which is the subject of this motion. However, the legal principle respecting production of documents in a defamation case has application here.

[71] The Nova Scotia Court of Appeal cited with approval from the summary of the law set out by the lower court. At page 2 of the Appellate decision, the court reproduced the summary. Beginning at para. [5] of the lower court’s decision:

Disclosure in Defamation Cases

However, according to J. Porter and D. Potts, Canadian Libel Practice, at 386 on p. 105, in defamation cases, where the defendant pleads justification and/or fair comment, the particulars pleaded will limit the scope of discovery and the inspection of documents. This rule and its rationale were set out in Care Canada v. Canadian Broadcasting Corp., [1998] O.J. No. 1532 (QL) (Master) at paragraph 3:

For well over a century, the scope of the examination in a libel action has been limited. Where the defendant pleads justification, it bears an onus to prove that the words are substantially true. Where the alleged libel is general in nature and no particulars are given, a defendant may not use the discovery to find a defense of which it was not aware at the time of pleading. The rationale for this rule was to prevent a person from defaming another and then obtain access to all his books to see whether what was said can be justified. Once a defendant has particularized the defense, it is limited at discovery and trial to the issues that have been defined by the particulars furnished.

While that quotation prohibits the use of discovery to find a new ground of defense, the rule also applies to prevent a defendant from using pre‑trial disclosure to bolster a defense of justification which was not supported by particulars of facts, incidents or transactions. The Alberta Supreme Court in Parkland Chapel Ltd. v. Edmonton Broadcasting Co. Limited et al (1964), 1964 CanLII 480 (AB KB), 45 D.L.R. (2d) 752 (Alta. S.C.) at 6‑7 Quicklaw stated:

The defendants in the present case, in my opinion cannot embark on an effort to ferret out items of truth, something that will "justify" their statements but they, on the strength of their pleadings, must be held to have made statements based on certain information ‑ best known to themselves ‑ and must prove it by their own evidence and not from the plaintiff.

See also for example Drake v. Overland, 1979 ABCA 304, [1980] 2 W.W.R. 193 (Alta. C.A.) and Fletcher‑Gordon v. Southam Inc., [1997] B.C.J. No. 107 (QL) (S.C.), aff'd. [1997], B.C.J. No. 369, (QL) (C.A.) which held at 2 of the QuickLaw text:

The plaintiffs are correct. The defendants are not entitled to proceed to discover documents so as to bolster a defense of justification unless particulars of facts, incidents or transactions have been given in support of such a plea.

[72] In the cases cited by the plaintiff, the facts differ materially from the facts in this motion. In this case, the defendants’ amended statement of defence contains extensive details and specific allegations upon which they base their defence of truth.

[73] From and after paragraph 31, the amended statement of defence describes the incorporation of the plaintiff and its name change on June 24, 2013; it makes specific reference to the connection or relationship between CAIR-CAN and CAIR; it sets out details of its allegation connecting the plaintiff with the 2007 litigation in United States of America v. Holy Land Foundation for Relief and Development et al.[^13]; it provides details for its allegation that a director of the plaintiff corporation were named on the U.S. Government List of Unindicted Co-conspirators; it sets detailed allegations that this and another director were also board members of an association that openly endorsed Hamas; it sets out details of the Canada Revenue Agency declining to grant charitable registration of another organization, the Jerusalem fund for human services; and that CRA has identified it as providing part of a support network for Hamas.

[74] In the amended portion of the amended statement of defence, there are over two pages of detailed allegations against former directors of the plaintiff and their connection to organizations tied to Hamas.

[75] Unlike the facts of the cases referred to by the plaintiff, in the case before me the defendants have set out extensive and detailed allegations that form the basis of their request for production of documents.

[76] In the facts of this case, subject to any claim for privilege, and unless already produced, the law requires the plaintiff to make fuller production.

[77] In addition to orders set out above, the plaintiff is ordered to list and produce the following documentation in its power, possession and control:

(i) That relate to its relationship and dealings with CAIR, subject to privilege; and

(ii) That relate to decisions, actions or communications by or on behalf of NCCM or its predecessor CAIR-CAN, made or taken by Jamal Badawi or Wael Haddara that relate in any way to any of the organizations identified by the defendants as having ties to Hamas including CAIR, the Muslim Association of Canada, the Jerusalem Fund for Human Services and IRFAN-Canada.

[78] The above order is intended to deal with the requests for production set out at the defendant’s Factum at subparagraph 59 (f) to (o).

[79] At subparagraph 59 (p) of their Factum, the defendants ask for disclosure of the identity of persons who donated to NCCM, including the amounts they donated, from the date of the plaintiff’s incorporation on July 10, 2000 to the current day. In resisting that order, the plaintiff relies on the decision of Master Gluestein in the decision of International Relief Fund for the Afflicted and Needy v. Day, (“IRFAN”)[^14]

[80] In IRFAN, the plaintiff had alleged that it had suffered a loss in donations by reason of the defamatory statements made by the defendant. No such allegation has been made in this case. The defendants’ motion for this order is therefore dismissed.

Issue (2): Should the Court exercise its discretion to extend the time for the oral examination of the plaintiff from the two hours mandated by r. 76 to 21 hours?

[81] The plaintiff argues that it ought to be given the protection of the limited time allowed for oral examinations for discovery as provided by r. 76. The plaintiff states that, having abandoned its claim in excess of $100,000.00 and the other relief, it ought to be entitled to the benefit of the two-hour discovery time limit provided by the rule.

[82] In resisting the defendants’ motion both for production and for an extension of time for the discovery, the plaintiff also relies upon the principle of proportionality, as codified in r. 1.04 (1.1).

[83] The plaintiff states that the facts in this matter are not complex.

[84] It may be true that the plaintiff’s allegation is clear and straightforward. However, to establish whether or not the defence of truth has been made out will be a complex exercise. The defendants state that their documents comprise 11 volumes.

[85] The plaintiff argues that the defendants have an unfair advantage because of their deep pockets and that to grant the relief sought would be unfair to the plaintiff.

[86] It may well be that this litigation is costly and puts a burden upon the plaintiff. However, the blame lies with the nature of the claim and the defence of the claim, which dictates the evidence to be examined.

[87] In its Responding Motion Record, the plaintiff provided the affidavit of Ihsaan Gardee. In his affidavit, Ihsaan Gardee states that many of the documents sought by the defendants are either not within the possession, power or control of the NCCM or have already been produced. That may well simplify the efforts and reduce any new costs that may be incurred by the NCCM in complying with the orders I have made on this motion.

[88] In view of the productions that have now been ordered, and in view of the extensive documentation that has already been produced by the defendants, there is a likelihood that this action may be determined more by the contents of the documents than by the oral evidence of a representative of the plaintiff or defendants. Therefore, it may well be that, after further documentary production has been made, the two hours of oral examination will be sufficient.

[89] The 21 hours of examination sought by the defendants are more than ten times those allowed by r. 76. Even for claims brought under the usual procedure, oral examinations for discovery are not to exceed a total of seven hours, “except with the consent of the parties or with leave of the court.”[^15]

[90] In contrast to r. 31.05.1, r. 76.04(2) does not include a provision to extend the two-hour maximum by consent of the parties or court order. Therefore, the Court would have to look elsewhere for jurisdiction to grant such an order.

[91] Counsel did not refer me to any cases under r. 76.04(2) as it currently reads. However, the reasoning in the cases decided before the rule was amended to allow for a two-hour oral examination remains applicable.

[92] The plaintiff referred to the 1997 decision of Justice McDermid in Gibbons v. York Fire & Casualty Insurance Co.[^16] In Gibbons, the defendant sought to remove the action from the simplified procedure. The plaintiff responded by abandoning damages beyond the (then) $25,000 maximum. The defendant also sought an order allowing it to examine the plaintiff for discovery.

[93] The court denied the motion and stated:

8 There is no doubt that the simplified procedure removes from the arsenal of the litigants some of the traditional armament of battle. However, that is exactly what it was meant to do in the interests of expediting and reducing the cost of trials when the amount in issue is less than $25,000. In my opinion, the policy underlying the simplified procedure rules is sound and ought not to be rendered impotent by creating so many exceptions to its application that these rules are left without any force or effect.

[94] A similar conclusion was reached by Justice Farley in Baker v. Chrysler Canada Ltd.[^17]. Again, this case was decided under the earlier version of the rule, which did not allow any examination for discovery. Also, as in Gibbons, the defendant sought an order allowing it to conduct an examination for discovery. The motion was denied. The court stated:

6 The defendants submitted that it would only be just that they have the benefit of discovery. However I would observe that R.76 provides that, no matter how complicated the case and how essential the aspect of credibility, the case be tried according to the simplified procedure since the cut off was not on the basis of complexity or credibility or other reason. Rather the cut off was a specific dollar figure (of $25,000 per plaintiff).

[95] Similar to the case before me, in Gibbons the defendant argued that r. 2.03 should be applied to grant the extension of oral discovery time. The court was not persuaded and stated, in part:

7… I do not see that justice is compromised by the streamlined procedures of R.76 … If so, then many parties in many cases under R.76 would want discovery. Neither do I see this as amenable to inherent jurisdiction since the Rules here are quite specific as to this present case coming under the Simplified Procedure and thus there is no gap to be filled by inherent jurisdiction: see Montréal Trust Co. v. Churchill Forest Industries (Man.) Ltd. (1971), 1971 CanLII 960 (MB CA), 21 D.L.R. (3d) 75 Man. C.A.

[96] The reasoning in these cases applies here. Even if I were to find that the Court does have inherent jurisdiction, I would and do not exercise it on the facts before me.

[97] Further, in view of the documentary production orders made above, it is far from clear that after documentary production the defendants would need more than two hours to complete the examination for discovery of the plaintiff. Accordingly, I dismiss the defendants’ motion for an extension of the time for an oral examination of the plaintiff.

Costs

[98] There has been a mixed result on this motion. In the circumstances, I award costs in the cause in an amount to be agreed upon by the parties or, failing agreement, as determined by me. Should it be necessary for me to fix costs, the parties should exchange and submit their Costs Outlines to me within three weeks of the date of this endorsement.

Madam Justice Liza Sheard

Date: December 2, 2015

CITATION: National Council of Canadian Muslims v. Harper, 2015 ONSC 7185

COURT FILE NO.: 15-64750-SR 283-2014

DATE: 2015/12/02

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: NATIONAL COUNCIL OF CANADIAN MUSLIMS (NCCM) – Plaintiff (Responding Party)

v.

THE RIGHT HONOURABLE STEPHEN HARPER, JASON MACDONALD AND HER MAJESTY THE QUEEN IN RIGHT OF CANADA – Defendants (Moving Parties)

BEFORE: JUSTICE LIZA SHEARD

COUNSEL: for the Plaintiff, Responding Party

for the Defendants, Moving Party

ENDORSEMENT

L. Sheard J.

Released: December 2, 2015

[^1]: Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [^2]: Statement of Claim at para. 12. [^3]: Defendants’ Amended Statement of Defence, para. 38. [^4]: Defendants’ Motion Record, Tab GG [^5]: Deep v. Toronto Star Newspaper Ltd., [2004] O.T.C. 747 (Sup. Ct.). [^6]: International Brotherhood of Electrical Workers, Local No. 213 v. Pacific Newspaper Group Inc., 2004 BCSC 310, 25 B.C.L.R. (4th) 383. [^7]: Kent v. Kehoe, 2000 NSCA 3, 181 N.S.R. (2d) 137. [^8]: Deep, supra note 5, para. 31. [^9]: Ibid, at para. 33. [^10]: Ibid, at para. 34. [^11]: I.B.E.W., Local 213, supra note 6, at para. 9. [^12]: Kent v. Kehoe, supra, note 7. [^13]: As referenced to at para. 31(e) of the Amended Statement of Defence [^14]: International Relief Fund for the Afflicted and Needy v. Day, 2008 CanLII 49851 (Ont. Sup. Ct.). [^15]: See r. 31.05.1 (1), Rules of Civil Procedure. [^16]: Gibbons v. York Fire & Casualty Insurance Co. (1997), 47 O.T.C. 200 (Ct. J. (Gen. Div.)) [^17]: Baker v. Chrysler Canada Ltd. (1998), 112 O.A.C. 277 (Div. Ct.).```