Court File and Parties

COURT FILE NO.: CV-13-0017 DATE: 2016-09-19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Teresa Hazel and Tony Morelli, The Plaintiffs being self-represented Plaintiffs (Responding Party)

• and -

Rainy River First Nation, Derek E. Zulianello, for the Defendant Defendant (Moving Party)

HEARD: August 9, 2016, at Fort Frances, Ontario

Mr. Justice F. B. Fitzpatrick

Reasons For Judgment

[1] The defendant, Rainy River First Nation (the “RRFN”) brings a motion for summary judgment seeking to dismiss the Plaintiffs’ claim. The Plaintiffs (individually referred to as “Hazel” and “Morelli”) claim to have been defamed by one of the RRFN’s band council resolutions (BCR), which described them as “undesirable” and prohibited them from entering on the Defendant’s territory under penalty of prosecution for trespass.

[2] The RRFN seeks summary judgment as it argues:

(a) The RRFN did not publish the BCR to anyone except the Plaintiffs; (b) The BCR was not defamatory; (c) The RRFN’s communication of the BCR to the Plaintiffs was an occasion of qualified privilege; (d) The Plaintiffs’ claim is barred by cause of action estoppel; and (e) The Plaintiffs’ claim is an abuse of process.

The Motion Material

[3] The most striking aspect of this motion was the evidence placed before the Court by both parties. The RRFN, represented by experienced and able counsel, chose to put forward only the transcripts of the examinations for discovery of the two Plaintiffs and the affidavit of documents and productions of the Plaintiff Hazel. As the moving party on a summary judgment motion, RRFN did not file any affidavit evidence from any person including a representative of the RRFN.

[4] The Plaintiffs, representing themselves, responded to the motion by placing before the Court the transcript of the examination for discovery of the representative of the RRFN Chief Jim Leonard as well as a copy of his affidavit of documents and productions. As parties responding to a summary judgment motion, the Plaintiffs did not place any affidavit evidence before the Court.

[5] Ordinarily, on any motion, and particularly a motion for summary judgment, the Court expects to receive affidavit evidence. Clearly Rule 20.01 contemplates that either a plaintiff or a defendant may move for summary judgment on “other evidence” and it does not expressly require affidavit evidence. For whatever reason both parties have declined to put affidavit evidence before the Court.

[6] I had the benefit of reviewing facta filed by both parties and listening to almost three hours of argument from both parties. I am mindful of the recent direction of the Supreme Court of Canada in Hyrniak v. Mauldin, 2014 SCC 7 and the jurisprudence following that decision. The law currently directs the court to determine matters by way of summary judgment if there is no genuine issue requiring a trial. The Court can determine there is no genuine issue for trial if the summary judgment process provides the evidence to fairly and justly adjudicate the dispute and is timely, affordable, and proportionate.

[7] Despite the lack of affidavit evidence, I find this is a fairly straightforward and factually simple matter. The requirement for a party to put its best foot forward when either making or responding to a summary judgment motion is still good law and a sound proposition. I am operating on the assumption that each party has chosen to put its best foot forward on the basis of the material they have filed. Principles of proportionality have particularly influenced my decision to grant judgment in this matter. In my view, although affidavit evidence would have been preferable, the transcripts that were filed have provided the Court with a sufficient evidentiary basis to determine the matter. Having heard the motion, I am in a position to make the necessary findings of fact and apply the law to the facts. In addition, granting judgment now is a proportionate, less expensive, and a more timely means to achieve a just result. I can make a fair and just determination on the merits for reasons set out as follows.

The Uncontested Facts

[8] Based on the material filed, I find the following facts are not contested by the parties.

[9] The Plaintiffs (individually referred to as “Hazel” and “Morelli”) are siblings who reside in Fort Frances, Ontario. Hazel was employed by the RRFN in the capacity of community communications officer between June 2012 and March 2013. On or about March 21, 2013, the Defendant terminated Hazel’s employment. Morelli composed a handwritten letter addressed “to whom it may concern,” dated March 26, 2013, and caused it to be delivered to the RRFN. The letter was written in response to the Defendant terminating Hazel’s employment. I do not think it necessary to reproduce the entirety of that letter here. It was contained in the affidavit of documents filed on this motion.

[10] I note that the Plaintiffs take exception to a characterization that there was anything inappropriate in the Morelli letter. However, upon my reading of it, it struck me as rambling. It contained language that would concern an objective reader. I can understand how a person receiving the Morelli letter would feel threatened.

[11] On March 28, 2013, Dean Wilson, the RRFN’s manager of administration, emailed Hazel. The full text of the email was in the motion material. I do not find it necessary to reproduce the email. The RRFN’s position was that Morelli’s letter was threatening and would lead to the RRFN prohibiting him from entering onto the RRFN’s territory.

[12] On July 24, 2013, a quorum of the council of the RRFN passed a BCR that read as follows:

WHEREAS: The Rainy River First Nations Council has deemed Teresa Hazel and Tony Morelli to be undesirables due to their behaviour towards Dean Wilson;

WHEREAS: The Rainy River First Nations Council has declared Teresa Hazel and Tony Morelli to be trespassers on Rainy River First Nations territory;

THEREFORE BE IT RESOLVED THAT: Teresa Hazel and Tony Morelli be removed as trespassers should either enter Rainy River First Nations territory and that appropriate charges be laid.

[13] Hazel received the BCR on September 18, 2013 by mail. Around the same time, Morelli received an envelope from the RRFN by mail. Morelli did not open the envelope. He returned it to the RRFN without discovering what was inside. Morelli came to know of the BCR because Hazel showed him the copy of the BCR that she had received.

[14] The BCR is kept in a resolutions book that is available to members of the RRFN who care to attend at the band office and review the book. The BCR has no expiration date.

[15] Hazel and Morelli have not entered onto the RRFN lands since the date they received the BCR.

[16] Hazel commenced a Small Claims Court action against the Defendant. The trial was heard on September 25, October 9 and October 18, 2013. In reasons for judgment dated October 24, 2013, a deputy judge found that Hazel had been wrongfully dismissed from her employment by the Defendant and awarded Hazel damages in the amount of $15,924.63, plus costs of $780.00.

[17] The deputy judge found that the BCR was an “aggravating factor” and the issuing of it was “unreasonable” and caused “upset and stress” to Hazel and “affect[ed] her reputation in the community where she lives and works.”

[18] The deputy judge awarded Hazel “additional damages as the Defendant has acted in bad faith.” Among the enumerated grounds for the finding of “bad faith” and award of “additional damages,” the deputy judge also found that the BCR was not reasonably issued.

[19] In this matter, each Plaintiff claims $1,000,000.00 as damages for defamation, plus $200,000.00 each as punitive damages, plus interest and costs. Morelli was not able to provide any basis for the amounts claimed as monetary relief, stating only that they are “round numbers.”

The Law

Summary Judgment

[20] A responding party is not required to bring a cross motion to obtain summary judgment (Landrie v. Congregation of the Most Holy Redeemer, 2014 ONSC 4008 at para. 51). Summary judgment may be granted against a moving party (Alof v. Ikeno, 2014 ONSC 2087). Rule 20.04 directs the court on how a motion for summary judgment is to be disposed of.

[21] In C.B.C. v. iSport Media and Management Ltd., 2014 ONSC 1905, Chiappetta J. stated at para. 21:

A judge hearing a summary judgment motion must now first determine whether there is a genuine issue requiring trial based only on the evidence before her without using the fact-finding powers in rule 20.04(2.1) and (2.2). There will be no genuine issue requiring a trial if evidence permits the motions judge to make a fair and just determination on the merits. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, less expensive, and a more timely means to achieve a just result.

Defamation

[22] Recently in Enverga v. Balita Newspaper, [2016] O.J. No. 3995, Lederman J. succinctly set out the well-settled law regarding defamation at para. 14:

In order to succeed on a claim for defamation, a plaintiff must establish the following:

(a) That the impugned words are defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person; (b) That the words in fact refer to the plaintiff; (c) That the words were published, i.e. that they were communicated to at least one person other than the plaintiff.

[23] Published words are defamatory if they have a tendency to lower the plaintiff in the estimation of right-thinking members of society generally and, in particular, to cause him to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. If these elements are established on the balance of probabilities, falsity and damage are presumed and the onus shifts to the defendant to escape liability.

[24] Defamation is the intentional publication of an injurious false statement. While it is true that an actual intention to defame is not necessary to impose liability on a defendant, the intention to do so is nevertheless inferred from the publication of the defamatory statement. This gives rise to the presumption of malice which may be displaced by the existence of a qualified privilege (Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 S.C.C. at para. 170).

[25] A defence of qualified privilege is available if the publisher has an interest or duty, legal, social, moral or personal, to publish the information in issue to the person to whom it is published, and the person to whom it is published has a corresponding interest or duty to receive it.

[26] Damages in a defamation matter are at large. The plaintiff does not have to prove actual loss. The standard factors to consider in determining damages for defamation include the plaintiff's position and standing, the nature and seriousness of the defamatory statements, the mode and extent of publication, the absence or refusal of any retraction or apology, the whole conduct and motive of the defendant from publication through judgment, and any evidence of aggravating or mitigating circumstances (Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 S.C.C. at para. 182).

Analysis

[27] The Defendant, moving party, has usefully set out the issues to be determined on this motion in its factum. I will deal with them in the order presented by the Defendant.

Publication

[28] The BCR was created by the RRFN. They move for judgment on the basis that the BCR was only published by them to the Plaintiffs and to no other person. The evidence of Chief Jim Leonard on discovery was that the BCR is placed in a book which is available to all band members to review if they wish. According to the discovery evidence of Chief Leonard no band members have looked at it.

[29] In my view, the act of a leadership body such as a band council of a First Nation producing a BCR is a process that logically and necessarily produces publication of the actual BCR document. I find the act of placing the BCR into a book available to community members is a sufficient act of publication for the purposes of sustaining an action for defamation. The fact that no one has looked at the BCR to date, other than the Plaintiffs or people to whom they have distributed it, does not negate the fact it has been published. No doubt, publication was very limited. However, this is a factor for the calculation of damages and not for the determination of the fact of publication.

[30] I draw an adverse inference from the fact that the RRFN did not provide affidavit evidence about the publication of the BCR on its motion for summary judgment. Rule 20.02 provides this court with discretion to draw such an inference when a party does not provide evidence of any person having personal knowledge of contested facts. Once the BCR had been passed by council, written on a piece of paper, and then placed into the public record of the First Nation, the treatment and handling of the BCR was entirely within the knowledge of members of the band council.

[31] There was no reason provided as to why the RRFN did not seek to explain the BCR process with affidavit evidence or how the BCR should be considered differently such that one could conclude there was only publication to the Plaintiffs in this matter. An affidavit could have explained if there was something special about this particular BCR and could have provided some evidence to sustain the position that publication occurred only to the Plaintiffs as alleged by the Defendant. I cannot make that conclusion based on the material placed before the Court. Accordingly, I find the Plaintiffs have proven “publication,” the first branch of the test for a finding of defamation.

Defamatory Words in the BCR

[32] There is no dispute that the words at issue in the matter are “WHEREAS: The Rainy River First Nations Council has deemed Teresa Hazel and Tony Morelli to be undesirables due to their behaviour towards Dean Wilson.” In particular, the description of the Plaintiffs as “undesirables” is alleged to be defamatory.

[33] There can be no dispute that the BCR is directed at the Plaintiffs. A plain reading of the document makes it clear.

[34] Quoting from the RRFN’s factum, the RRFN argues that the words in the BCR are not defamatory because:

The natural and ordinary meaning of the BCR consists of the following two elements:

(a) The Council of the Rainy River First Nations considered the Plaintiffs “undesirable” due to some unspecified behaviour in relation to Dean Wilson; and (b) The Council of the Rainy River First Nations barred the Plaintiffs from entering on the territory of the RRFN under penalty of prosecution for trespass.

[35] With respect, this argument ignores the actual word used by the BCR. The word used was “undesirables” not “undesirable.” This is significant because in my view the word “undesirables” is used as a noun in the BCR. This can be contrasted with the word “undesirable” which is an adjective. In this case, the use of an adjective would connote more of an opinion of the status of a person and sets up some basis for the Defendant’s argument that the word is not defamatory. However, that was not the word that was used.

[36] By using a noun and then deeming two people to be in the nature of that noun (undesirables) there is no question of the declaratory intent of the publisher of the word. In my view, the use of the word “undesirables” has a more forceful connotation than if someone is simply “considered to be undesirable.” It is the difference between saying “I don’t like those people because I believe them to be X” as opposed to saying “those people are X.” Using “undesirable” as an adjective makes the word personal to the speaker. Using “undesirables” as a noun makes the word personal to the object of the description. It does not take any particularly thorough or specialized knowledge of history to know that in modern times people excluded from lands and territories by governments were labeled “undesirables” by the excluding authorities. There can be no question of the negative and derogatory quality of the term “undesirables,” particularly where the term is used by the RRFN, a government body, to describe two specific individuals.

[37] In my view, no trial is required to determine if these words are defamatory. As a noun, the RRFN’s deeming of the Plaintiffs as undesirables is defamatory. This comes from a plain and ordinary reading of the words.

[38] Again I draw an adverse inference from the lack of affidavit evidence from the RRFN in its motion for summary judgment about any special meaning that could be attached to the use of the word “undesirables.” On the material filed, which in the circumstances of this case I have found to be adequate to allow me to grant judgment, I am able to determine the plain meaning of the words. I have done that. I have found the words to be defamatory.

[39] In my view being called an “undesirable” would reasonably lower the reputation of the Plaintiffs in the estimation of ordinary reasonable members of society. Accordingly, I find the Plaintiffs have proven the words used in the BCR were both meant to apply to them and were defamatory.

Qualified Privilege

[40] The onus of proving a defence of qualified privilege is upon the defence. In this matter, I am of the view that the material filed by both parties is not sufficient to prove that the publication of the BCR occurred on an occasion of qualified privilege. There is no question that the band council of the RRFN had and has a legal interest in determining who may attend on lands in control of the First Nation. To that extent, as a publisher, the RRFN had an interest or duty, legal, social, moral or personal to publish the decision to bar the Plaintiffs from lands in the control of the RRFN. The Plaintiffs have a corresponding interest to receive the BCR.

[41] However there was no material filed to explain how or why it was necessary for the RRFN in the course of acting in its duty or interest, to characterize the plaintiffs as “undesirables.” There was no evidence before me to prove why the duty to act in this case created the necessity for the RRFN to identify the Plaintiffs as undesirables so as to justify the RRFN publishing the BCR. It was the identification of the Plaintiffs as “undesirables” in the BCR which was defamatory. The RRFN has not filed satisfactory evidence to prove that the use of all the words in the BCR was necessary to fulfill its legal duty or protect its interests.

[42] Recently in the decision Bird v. Ontario, 2014 ONSC 2457, [2014] O.J. No. 3060 (affirmed [2016] O.J. No. 3987 Div. Ct.) Cornell J. dealt with the law of qualified privilege at paras. 26 through 29 as follows:

26 All of the circumstances are to be taken into account in determining whether a defence of qualified privilege exists. These factors include the relationship between the parties, the content of the particular statement and the nature of the interest put forward to justify the publication.

27 The onus lies upon the defendant to establish that an occasion of publication was privileged: see Pleau v. Simpsons-Sears Ltd., [1977] O.J. No. 2181, 15 O.R. (2d) 436 (Ont. C.A.) at p. 444.

28 Despite the fact that categories or the existence of qualified privilege are not closed, there are certain categories that have been recognized. These include family communications, communications regarding employment, union communications, management/employee communications, business and credit reports, business to business communications, shareholder and corporate communications, communications about litigation, communications about insolvency proceedings, complaints to authorities, medical communications, statements to public bodies and responses to criticism.

29 If a defence of privileged occasion is established by a defendant, it is open to a plaintiff to defeat such defence by proving that malice was the dominant motive or that the scope of the privilege was exceeded “if the information communicated was not reasonably appropriate or necessary in light of the legitimate purposes of the occasion”: see Botiuk v. Toronto Free Press Publications Ltd., [1995] S.C.J. No. 69, [1995] 3 S.C.R. 3 at para. 80. Where the statement is not appropriate for the privileged occasion, it cannot be said that the person receiving such comment has an interest in receiving it and accordingly the foundation of the privilege is lost: see RTC Engineering Consultants Ltd. v. Ontario (Ministry of the Solicitor General and Correctional Services), [2002] O.J. No. 1001, 58 O.R. (3d) 762 (Ont. CA) at p. 732-33.

[43] In my view, the Defendant’s argument of qualified privilege is pure speculation in the absence of affidavit evidence. Even if the defence could have been made out, the use of the word “undesirable” strikes me as unnecessary to achieve the legal duty or interest as argued by the RRFN. As in the Botiuk decision of the Supreme Court (cited above by Cornell J. in Bird) the information communicated was not reasonably appropriate or necessary in light of the legitimate purposes of the occasion. It would therefore create an occasion where the Plaintiffs would not have an interest in receiving it. Accordingly, all aspects of the defence have not been proven. The defence of qualified privilege is dismissed.

Issue Estoppel

[44] The Plaintiffs point out in their factum that this issue has itself been previously raised by the defence in a motion to strike pleadings. This argument was rejected by deP Wright J. in his decision dated June 13 2014 (Hazel v. Rainy River First Nations, 2014 ONSC 3632). At para. 25 deP. Wright J. plainly stated that this action was not a case where the plaintiffs were attempting to establish a new and fresh cause of action by advancing a new legal theory in support of a claim based essentially upon the same facts.

[45] In my view, the decision of deP. Wright J. dealt squarely with the matter of issue estoppel. This case is different from the case put forward by Hazel in the Small Claims Court action. It is an action in tort as opposed to an action in contract. Accordingly, there are no matters of issue estoppel raised by the materials filed on this motion. I find there is no merit in this aspect of the Defendant’s argument.

Abuse of Process

[46] For the above reasons, I am prepared to grant judgement in favour of the Plaintiffs based on the material filed. I disagree with the Defendant’s argument that the action is an abuse of process. The courts exist to resolve bona fide disputes. This was a bona fide dispute that could be resolved on a motion for summary judgment.

Assessment of Damages

[47] In my view the damages suffered by the Plaintiffs arising from this defamatory publication are minimal. Publication was and is extremely limited. There has been no real interference with the lives of Plaintiffs. On his examination for discovery, Morelli admits that there is no evidence that his reputation has been affected by the BCR.

[48] In the Bird decision noted above, a limited publication consisting of a recorded phone message from a conservation officer to a person charged with an offence, where the officer made defamatory remarks about the accused’s lawyer, Ms. Bird, resulted in a damage award in favour of the plaintiff in the amount of $10,000.00. In my view, this amount would be an appropriate assessment of damages in total for this case. I therefore assess damages in the amount of $5,000.00 for each Plaintiff.

[49] Accordingly, summary judgment will be granted in favour of the Plaintiff Teresa Hazel in the amount of $5,000.00 and in favour of the Plaintiff Tony Morelli in the amount of $5,000.00. These amounts are inclusive of prejudgment interest.

Costs

[50] The Plaintiffs were successful in this motion and in this action. Ordinarily that would result in an award of costs in their favour. However, given the amount of damages awarded in this matter, the case should have been brought in Small Claims Court. Accordingly, I exercise my discretion regarding costs consistent with the direction of Rule 57.05(1) to order that the Plaintiff shall not recover costs in this action or in this motion. In the event the moving party defendant made an offer to settle the motion and/or the entire action for a payment to the plaintiffs that totaled more than $10,000.00, I would be prepared to entertain a submission for costs by the Defendant. However absent that kind of offer, in my view, this would not be an appropriate case to award costs to the moving party defendant. If no request for submissions regarding costs is received on or before October 7th, 2016 the issue of costs will be deemed to have been disposed of on the basis of “no costs.” If costs are to be requested by the defendant, a conference call should first be requested from the trial co-ordinator at Thunder Bay so the logistics of the submission process can be resolved.

The Hon. Mr. Justice F.B. Fitzpatrick

Released: September 19, 2016

COURT FILE NO.: CV-13-0017 DATE: 2016-09-19 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Teresa Hazel and Tony Morelli, Plaintiffs (Responding Party) - and - Rainy River First Nation, Defendant (Moving Party) REASONS FOR JUDGMENT Fitzpatrick J. Released: September 19, 2016 /mls