CITATION: GRG Building Consultants Inc. v. Juffs, 2016 ONSC 6905
COURT FILE NO.: CV-12-450781
DATE: 20161108
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GRG BUILDING CONSULTANTS INC.
Plaintiff
– and –
JONATHAN H. JUFFS, GRAHAM D. OLIVER, and OLIVER INTERACTIVE, INC.
Defendants
JONATHAN H. JUFFS, GRAHAM D. OLIVER, and OLIVER INTERACTIVE, INC.
Plaintiffs by Counterclaim
– and –
GRG BUILDING CONSULTANTS INC., GERALD R. GENGE, and DALE D. KERR
Defendants to the Counterclaim
Jerry Z. Chen, for GRG Building Consultants Inc., Responding Parties
Jonathan Mesiano-Crookston, for Jonathan Juffs, Moving Party
HEARD: August 19, 2016
R.F. GOLDSTEIN J.
REASONS FOR JUDGMENT ON SUMMARY JUDGMENT MOTION
BACKGROUND
[1] Jonathan Juffs worked for GRG Building Consultants from 2002 to 2010. GRG is an engineering consulting firm. Most of GRG’s clients are condominium property managers. Condominiums are required to maintain reserve funds. Property managers usually retain GRG and similar companies to conduct performance audits and reserve fund studies.
[2] Juff’s worked as a project manager at GRG from 2002 to 2004. He was promoted to operations manager in 2004. He was responsible for Reserve Fund Studies. His responsibilities required that he use reserve fund templates and specifications.
[3] In 2010 Juffs resigned from GRG. He gave GRG notice of two weeks. Juffs then took up a position with Aecon Materials Engineering, or AME. AME is a subsidiary of Aecon Construction, Canada’s largest publicly-traded construction company.
[4] Gerald Genge and Dale Kerr are the principals of GRG. They are also married to each other, although that seems not to be particularly relevant. They say that when Juffs resigned from GRG he told them that he would not be going to a competing business. They say, however, that that is exactly what Juffs did. They say that he solicited business. They also say that in his new position he used copyrighted and proprietary information that rightly belonged to GRG, including the reserve fund templates and specifications. They also say that he took GRG client information and used it to solicit business in his new job at AME.
[5] Genge sent three emails in 2010 to Juffs superior at AME, as well as to others. Kerr sent a letter in 2012. In essence, the emails and the letters alleged that Juffs took proprietary information, used it in his new job, and breached his fiduciary duty to GRG. Juffs says that he eventually lost his job as a result. He says that none of the allegations in the email and the letter are true.
[6] GRG eventually sued Juffs. Juffs defended, and counterclaimed against GRG. He joined Genge and Kerr in the counterclaim. The counterclaim alleges that the three emails and the letter were defamatory.
[7] Juffs moves for summary judgment on the counterclaim. He says that the emails and the letter are defamatory on their face, and that a court can deal with the issue on a summary judgment motion.
[8] GRG, Genge, and Kerr resist the motion. They argue that the issues on the counterclaim are intimately bound up with the claim. There are pure credibility issues and therefore better suited to the trial process. If summary judgment is granted then there is a risk of inconsistent verdicts.
[9] I agree with GRG, Genge, and Kerr. For the reasons that follow, the motion is dismissed.
ANALYSIS
[10] Summary judgment may be granted where there is no genuine issue for trial: Rule 20.04(2) of the Rules of Civil Procedure. There is no genuine issue for trial where a judge can reach a fair and just determination on the merits. A judge can make a fair and just determination where:
- A judge can make the necessary findings of fact;
- A judge can apply the law to the facts; and,
- The process is a proportionate, more expeditious, and less expensive means to achieve a just result.
[11] See: Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 at para. 49.
[12] If there is no genuine issue requiring a trial, then summary judgment must be granted. If there is a genuine issue requiring a trial, then a judge must determine whether the matter can be resolved using the fact-finding powers under the Amended Rule 20: Hryniak v. Mauldin, at para. 68.
[13] See also: Sweda Egg Farms v. Egg Farmers of Ontario, 2014 ONSC 1200 at para. 33.
[14] Although the parties have filed large application records, cross-examinations on affidavits, and answers to undertakings, the issue on this motion is quite simple: can I decide on the basis of the record before me whether the emails are defamatory? If not, can I decide the issues using the new fact finding powers in Rule 20?
[15] The answer to both questions is “no”. It is impossible to separate the issues on the counterclaim from the issues on the claim. That is because the issue on the claim is the mirror of the issue on the counterclaim. The truth or falsity of the statements in the emails and the letter are at the heart of both the claim and the counterclaim. The issues need to be decided together. Much of the affidavit evidence on truth or falsity is heavily contested. I cannot make findings of fact on the counterclaim outside of the context of the claim. A judge can certainly make credibility findings on the basis of a paper record, but it becomes very difficult as complexity increases. Furthermore, the fact-finding powers under Rule 20 would not be particularly useful – a “mini-trial” would simply replicate a trial.
[16] Juffs argues that whether correspondence is defamatory is a question of law: Color Your World Corp. v. Canadian Broadcasting Corp. (1998), 1998 CanLII 1983 (ON CA), 38 O.R. (3d) 97 (CA) at para. 39. It is a simple matter of looking at the words, determining whether the words are capable of conveying a defamatory meaning, and granting judgment on the counterclaim.
[17] In my respectful view, it is actually not so simple. I start with the elements of the tort of defamation. A plaintiff must prove three things:
- That the words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;
- That the words in fact referred to the plaintiff; and,
- That the words were published, meaning that they were communicated to at least one person other than the plaintiff.
[18] See: Grant v. Torstar Corporation, 2009 SCC 61, [2009] 3 S.C.R. 640 at para. 28.
[19] There is no question that the words referred to Juffs, the plaintiff by counterclaim. There is also no question that the words were communicated to at least one person other than Juffs. It is the truth and context of the words that is hotly contested. The pleadings are aligned, in essence, with the facts set out in the various affidavits on this motion. GRG alleges that Juffs took proprietary material, including client lists and “works”. “Works” is defined in the pleadings to mean copyrighted material created and owned by GRG. Genge and Kerr are the defendants by counterclaim. In their defence to the counterclaim they rely on and plead GRG’s allegations in the claim. I excerpt the key allegations:
On September 13, 2010 Juffs resigned from GRG, giving two weeks notice, indicating orally that he had accepted a position as a construction trouble-shooter with AECON, a company not considered to be a competitor of GRG. In fact, he was working for a subsidiary of AECON called AECON Materials Engineering (“AME”) which is in direct competition with GRG.
Prior to leaving GRG, Juffs removed company materials, including client contact lists, email correspondence…
Once at AME Juffs began to contact GRG clients to solicit their business…
Juffs has used the Works while employed at AME, as part of AME’s work product…
Through his acts described above, Juffs infringed GRG’s copyright in the Works, causing GRG harm…
Through his acts described above, including his misappropriation of GRG’s internal and confidential files and information… Juffs breached his fiduciary duty to GRG causing GRG harm.
Through his incorporation of the Works as part of AME’s work product, which is in direct competition to GRG, Juffs breached his fiduciary duty to GRG, causing GRG harm.
[20] Thus, Genge, Kerr, and GRG commenced litigation against Juffs on the basis that he had left their employ and taken confidential material and solicited clients. They claimed that he was a senior employee who owed a fiduciary duty to GRG.
[21] Juffs filed a statement of defence. In it he denied that he owed a fiduciary duty to GRG. He also denied that the proprietary information that GRG claimed it owned were worthy of copyright. He pleaded that he, in fact, was the author of the proprietary information. If anyone owned it he did. I excerpt the key statements in the defence:
Jonathan did not take any client lists belonging to GRG when he left. GRG did not have a client list to take.
Jonathan denies soliciting GRG’s clients upon his departure.
[22] Juffs also stated that he was under no obligation not to compete with GRG. He says there was no non-competition clause in his employment agreement. In fact, he claims that he actually referred clients of GRG who contacted him after he left back to GRG.
[23] After Juffs left GRG Genge sent the three emails that Juffs says are defamatory. Kerr sent the one letter that Juffs says is defamatory. These emails and letter are the basis for the counterclaim:
- On October 12, 2010, shortly after Juff’s departure from GRG, Genge sent an email to Juff’s supervisor at Aecon. Genge copied the email to other Aecon and GRG employees. Genge said in the email that Juffs had stolen or would steal copyrighted proprietary information from GRG. Genge also stated that Juffs had lied to him about his new employment. Genge asked that AECON take steps to correct the situation.
- On October 12, 2010 Genge sent an email to a GRG client. Genge suggested that Juffs would steal intellectual property and solicit GRG clients.
- On October 21, 2010 Genge sent an email to Juff’s supervisor at Aecon. He stated that Juffs had taken copyrighted GRG property, that the GRG clients had complained about him. He stated that Juffs had lied to GRG about his new employment at AME.
- On January 5, 2012 Kerr mailed an old-fashioned letter to Juff’s supervisor at Aecon. She stated that Juffs had used GRG’s proprietary information and asked that Aecon remedy the situation.
[24] Juffs stated in his counterclaim that all of the allegations made in the emails and letter were untrue.
[25] If words are defamatory, then there are two defences that are available to a defendant: justification and privilege. Justification means, in essence, truth: the words are substantially true: Grant v. Torstar Corporation at para. 33. Qualified privilege means that on the occasion on which the communication was made the person who made it had an interest or a legal social, or moral duty to make it. The effect of qualified privilege is to rebut the presumption of malice: Hill v. Church of Scientology, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130 at paras. 143-44. GRG, Kerr, and Genge pleaded, in response to the counterclaim, truth and qualified privilege.
[26] I say “if the words were defamatory” because, in my view, a court needs the entire context to make a determination: Bang Gu Jiang v. Sing Tao Daily, 2014 ONSC 287 at paras. 31-32. I have reviewed affidavits and transcripts filed by the parties. They tell radically different stories.
[27] Ultimately, this is one of those cases where a judge is simply going to have to hear the claim and counterclaim together, make findings of fact, assess credibility, and come to a resolution. Use of the amended fact-finding powers for this motion would, in essence, simply replicate what would happen at a trial – except without the context provided by the claim itself.
[28] In my view, therefore, this is not one of those cases where there is no genuine issue requiring a trial.
DISPOSITION
[29] The motion for summary judgment is dismissed. Costs of the motion are reserved to the trial judge.
R.F. Goldstein J.
Released: November 8, 2016
CITATION: GRG Building Consultants Inc. v. Juffs, 2016 ONSC 6905
COURT FILE NO.: CV-12-450781
DATE: 20161108
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GRG BUILDING CONSULTANTS INC.
Plaintiff
– and –
JONATHAN H. JUFFS, GRAHAM D. OLIVER, and OLIVER INTERACTIVE, INC.
Defendants
JONATHAN H. JUFFS, GRAHAM D. OLIVER, and OLIVER INTERACTIVE, INC.
Plaintiffs by Counterclaim
– and –
GRG BUILDING CONSULTANTS INC., GERALD R. GENGE, and DALE D. KERR
Defendants to the Counterclaim
REASONS FOR JUDGMENT ON SUMMARY JUDGMENT MOTION
R.F. Goldstein J.