CITATION: Spero v. Dean, 2016 ONSC 6996

COURT FILE NO.: CV-16-559021

DATE: 20161114

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

VESNA SPERO

K. J. Peacocke and M.L. Kropp, for the Plaintiff

Plaintiff

• and -

JAMES DEAN

B. Blay and I. Sneddon, for the Defendant

Defendant

HEARD: November 9, 2016

Grace J.

1Sadly, once married parties are no longer joined in heart, body or soul but as antagonistic parties in an ocean of family and civil litigation. This will form a small part of one chapter of the still growing saga.

2A motion to change a spousal support was initially decided in Mr. Dean’s favour. Ms. Spero sought a stay of the resulting order pending the outcome of her appeal to the Divisional Court.¹

3An affidavit sworn by Mr. Dean on November 9, 2015 was filed before the hearing of the motion to stay. Mr. Dean deposed that Ms. Spero was enrolled at King’s College at Western University and provided details of the program and courses he had “discovered” she was taking.

4Ms. Spero maintains the program and course information was confidential.

5In time the parties’ lawyers exchanged e-mails and letters on the topic. No progress was made. This action was commenced in Toronto on August 25, 2016.

6Ms. Spero seeks various remedies including damages for the torts of intrusion upon seclusion, nuisance and intentional infliction of mental distress. She also asks for the relief claimed in the motion I will soon describe.

7Mr. Dean filed a statement of defence and counterclaim. For present purposes it suffices to say he is vigorously defending all aspects of this proceeding. He also seeks damages for alleged harassment, defamation, abuse of process and intentional infliction of emotional distress.

8That brings me to the motions that are the subject of this endorsement. Mr. Dean seeks to transfer the proceeding from Toronto to London. Ms. Spero’s motion requests an order compelling Mr. Dean to disclose the source of the information concerning the program and courses described in his November 9, 2015 affidavit.

A. Motion to Transfer the Proceeding

9No statute or rule requires commencement or hearing of a proceeding of this kind in any particular locale. Consequently, Ms. Spero was permitted to choose where the statement of claim would be issued. As noted, Toronto was her place of choice: rule 13.1.01(2) of the Rules of Civil Procedure.

10A plaintiff’s selection may be challenged. Rule 13.1.02(2) allows the court to order the transfer of the proceeding in two situations. Mr. Dean relies on one of them. Rule 13.1.02(b) permits the court to order a transfer if satisfied it is desirable in the interest of justice having regard to the nine delineated factors. All are equally important. The law requires an overall – or holistic – assessment of them: Chatterson v. M & M Meat Shops Ltd. (2014), 2014 ONSC 1897, 68 C.P.C. (7th) 135 (Ont. Div. Ct.) at para. 22.

11Before addressing the sub rule I should briefly address why the motion was heard in London. Ordinarily motions are to be heard where an action is commenced. However, a motion seeking a transfer of a proceeding may be brought and heard in the county to which the transfer is sought: rule 13.1.02(3.1).

12I turn to the applicable matters the court is required to consider.

13The first factor is where a substantial part of the events that gave rise to the claim occurred. As noted, this latest piece of litigation relates to information which is alleged to have been improperly obtained and disclosed. The affidavit was sworn by a resident of and in relation to an ongoing proceeding in London. The disclosure related to a program and courses offered by the university that is located in that city. The first factor favours London.

14Where a substantial part of the damages were sustained is the second factor. Ms. Spero alleges she suffered harm because of what transpired. She lives in London. The second factor favours London.

15The third and fourth factors do not apply. I move to the fifth factor: the convenience of the parties, the witnesses and the court. As mentioned Ms. Spero and Mr. Dean reside in London. Mr. Dean’s lawyer is London based. Ms. Spero’s has offices in Toronto and London. Ms. Spero has identified two other witnesses so far: a family physician and a psychologist. Both practice their field in London.

16Counsel for Ms. Spero raised the possibility of at least one non-London based witness given Mr. Dean’s refusal to disclose the source of the information he discovered. Given the comments already made, it seems likely that person will be from the London, rather than Toronto, area. Even if I were to assume that witness was Toronto based, London is more convenient to the majority of the known witnesses.

17From the court’s perspective, convenience is clear. The parties and their counsel have a local presence. If the parties, their counsel and/or witnesses are remote, in-person attendances are more difficult to arrange and maintain. Arranging dates for out-of-town health professionals to attend can be particularly problematic. Furthermore, courthouses are placed where they are for a reason. They are intended to serve the communities in which they are located. If a proceeding is logically and overwhelmingly connected to one court location, it should be commenced and heard there absent something unusual and compelling. This factor favours London too.

18The sixth factor is of no consequence. I move to the seventh. It requires consideration of the advantages and disadvantages of a particular place with respect to securing the just, most expeditious and least expensive determination of the proceeding on its merits. Counsel for Ms. Spero noted that mediation is mandatory in Toronto: rule 21.1.04(1) 2. In London it is not. The parties are, of course, free to mediate at any time by agreement. The parties are on opposite sides of a wide chasm. While I cannot be sure, based on the record compiled on these motions, mandatory mediation seems more likely to add, rather than save, time and expense in this case.

19Furthermore, if the availability of rule 24.1 was of primary importance civil actions should be brought only in the cities to which it applies: Ottawa, Toronto and Windsor. With respect, that cannot be an overriding consideration.

20Ms. Spero also noted that motions are heard daily in Toronto. Civil motions of thirty minutes or less are heard in London only on a Tuesday. Longer motions are heard on special appointment dates which Ms. Spero described as “few and far between.” With respect, that assertion was not borne out by the documents Ms. Spero filed.

21As of September 8, 2016, a motion within the jurisdiction of a Master in Toronto could not be scheduled until October 17, 2016 with two exceptions. A motion before a judge in Toronto could not be accommodated until on or after October 5, 2016.

22Short motions can be scheduled for any Tuesday in London. As of September 9, 2016, a one hour motion could be accommodated on four days in September and three in October, 2016. Predictably, more dates were available in November and December. Interestingly, argument took place on a date that was not available on September 9. To my eye, availability of motion dates in the two regions seemed comparable. This factor is neutral.

23The eighth factor is whether judges and court facilities are available in the receiving location proposed by the moving party. The materials did not address the availability of trial dates. In London, a weekly running list system is used in all months but July and August. The lists are not closed. Assignment court is held monthly. Cooperative and efficient counsel can obtain early trial dates. In fairness, the ability to reach civil trials is unpredictable and becoming more so with the prioritization of family cases. The release of R. v. Jordan, 2016 SCC 27 adds another layer of scheduling complexity.

24However, the current status is this. Civil trial lists are fluid. Occasionally a weekly list collapses and there are more judges than civil cases ready to be tried. Far more often there are more cases than judges. That can change mid-week especially if a matter settles or finishes. If a civil trial is not reached within a reasonable time it is rescheduled. Every effort is made to give those cases priority the next time their trial date arrives.

25I know that reaching civil trials is an increasing challenge in Toronto too. Judicial vacancies have been allocated to the civil team. The experiences in the two cities seem comparable. This factor is also neutral.

26The final factor is open-ended. It directs the court to consider any other relevant matter.

27Mr. Dean is a London lawyer. Before that he was a police officer with the London Police Service. No one has suggested this matter cannot be fairly heard in London. However, Ms. Spero has asked for an out-of-town judge from time to time in the past and requested one hear these motions. The underlying rationale was explained in the reply factum filed on Ms. Spero’s behalf at paras. 9 and 10:

The reason Ms. Spero believes it is preferred that an out of town judge hears proceedings in this matter is to avoid a situation where, for example, a motion is set only to have to be adjourned because the assigned judge is not comfortable with hearing a matter which involves serious allegations against a member of the local Bar…

By bringing her proceeding in Toronto, the issue of having to arrange an out of town judge, which involves time and expense, would be non-existent.

28That is a relevant consideration. In some cities matters involving local solicitors are heard by judges drawn from another location as a matter of course: Peake v. Dashney, 2009 CarswellOnt 1797 (S.C.J.) at para. 13.

29The request is considered on a case-by-case basis in London. Mr. Dean practices criminal law. On occasion he appears in this court. Once in a while he has appeared before me on a criminal case. I recall presiding over a three or four day civil trial Mr. Dean conducted. However, I had no hesitation in telling counsel that I could hear and determine these motions without any actual or perceived bias or prejudice.

30Importantly, I do not believe an informed, thoughtful, realistic, practical, reasonable and right-minded person would conclude that judges sitting in London, regularly or occasionally, would consciously or unconsciously fail to decide the issues fairly whether arising whether on a motion or at trial: Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259 at para. 60. I will ensure that steps are taken to identify any particular judge in London who feels otherwise in an effort to ensure that any future court attendance is not wasted. The issue raised by Ms. Spero is relevant and important but easily manageable.

31After reviewing and assessing the applicable factors cumulatively I am of the view it is desirable in the interest of justice to order the transfer of this proceeding to London.

B. The Motion to Compel Disclosure

32Ms. Spero’s lawyers have been seeking the identity of the person who disclosed details of her program and courses at Western since March 17, 2016.

33A March 31, 2016 response from Mr. Dean’s lawyers explained that the fact of Ms. Spero’s enrolment at King’s College was available on Western University’s website.

34That letter was described as “wholly unsatisfactory” in correspondence that flew the next day. It contained a second request for the source of the program and course information. Mr. Dean’s lawyers declined to “disclose who of your client’s classmate(s)” provided that intelligence.

35More letters were exchanged. In one dated July 26, 2016, Mr. Dean’s lawyer maintained Ms. Spero was “openly communicating” information concerning her attendance at Western. He also took the position “the accusation that Mr. Dean ‘acquired’ records from…Western…makes your letter defamatory.”

36As noted, a statement of claim was issued the following month. This motion followed soon afterward.

37Mr. Dean resists the motion on substantive and procedural grounds. I deal with those matters in turn.

38Substantively, counsel for Mr. Dean submits the information is not compellable at all. I disagree.

39I start with an observation which all civil and family litigation lawyers should have in mind. As mentioned, the November 9, 2015 affidavit was delivered in the context of a motion for a stay pending the outcome of an appeal to the Divisional Court. Jurisdiction to grant a stay is conferred by rule 38(35) of the Family Law Rules and rule 63.02(1) of the Rules of Civil Procedure.

40Affidavits for use on motions in family or civil proceedings may contain statements of the deponent’s information and belief. However, permission is qualified. Rule 39.01(4) of the Rules of Civil Procedure requires the disclosure to be accompanied by “the source of the information”. Rule 14(19) of the Family Law Rules is worded a little differently. It requires the affiant to reveal “the source of the information…identified by name”.

41The affidavit of Mr. Dean to which I have referred did not comply with those long-standing and well-known requirements. At the outset of the November 9, 2015 affidavit Mr. Dean deposed he had “personal knowledge of the matters sworn to below.” As mentioned, Mr. Dean later swore that he had “discovered” the program and courses in which Ms. Spero was enrolled at King’s College. He did not say how the discovery had been made. It is clear from the communications sent by Mr. Dean’s lawyers in the months that followed that Mr. Dean obtained the program and course information from a third party. That fact and the person’s identity should have been disclosed in the November 9, 2015 affidavit. If Mr. Dean was unwilling to comply with the applicable rule, the affidavit should have been silent on the topic.

42The submission made on Mr. Dean’s behalf ignored the responsibility and obligation he assumed when he swore the affidavit.

43The argument also failed to recognize the procedural rules that apply to this action.

44In Jones v. Tsige (2012), 2012 ONCA 32, 108 O.R. (3d) 241 (C.A.) (“Jones”) the Court of Appeal held that the tort of “intrusion by seclusion” exists in Ontario. The curiously coined cause of action is not nearly as complicated as it sounds. Sharpe J.A. offered this description at para. 71 of Jones:

The key features…are, first, that the defendant’s conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action…

45The Court of Appeal held in Jones that a bank employee committed the tort of intrusion by seclusion when she repeatedly accessed the banking records of her romantic partner’s former spouse without permission or justification.

46The elements of the tort are set forth in the statement of claim issued on Ms. Spero’s behalf. Ms. Spero alleges that Mr. Dean obtained information pertaining to her studies intentionally and without lawful justification, that the particulars of her program and courses was private, that a reasonable person would regard the invasion as highly offensive and that distress and anguish has been occasioned.²

47Mr. Dean’s counsel suggested this action may not get very far because consideration is being given to a motion to strike and/or a motion for summary judgment. This endorsement reflects the current status and the progression of this proceeding in the usual course. I will not comment on or speculate about motions that are not before the court. Their possibility is of no present consequence.

48The scope of an examination for discovery is set forth in rule 31.06(1). A party is obligated to answer any proper question relevant to any matter in issue in the action to the best of that person’s knowledge, information and belief. That rule encompasses the identity of the person who provided Mr. Dean with the details of Ms. Spero’s program and courses. It is relevant to the tort of intrusion by seclusion cause of action and to the assessment of damages: Jones, supra at paras. 87 and 88.³

49Further, unless the court orders otherwise, names and addresses of persons who might reasonably be expected to have knowledge of the matters in issue are to be provided if requested at an examination for discovery: rule 31.06(2). Mr. Dean has expressed concern that Ms. Spero will act inappropriately if given the information she seeks. She has expressly undertaken not to do any such thing. In any event, she is bound by the deemed undertaking rule: rule 30.1.01.

50Clearly, Mr. Dean will have to disclose the information Ms. Spero seeks during his examination for discovery.

51That leads to Mr. Dean’s opposition based on procedural grounds. Pleadings recently closed. The parties have not agreed to a discovery plan. Examinations for discovery have not been held.

52Ms. Spero recognizes the fact she is essentially seeking early discovery of one piece of information. She argues the court can and should order Mr. Dean to disclose his source. Ms. Spero alleges an anxiety disorder has left her paralyzed. At para. 57 of her September 23, 2016 affidavit Ms. Spero deposed:

For almost a year now I have grown increasingly paranoid, reserved and isolated to the point of not enrolling in school this September, which has caused me great sadness.

53Her lawyers submit that s. 101 of the Courts of Justice Act provides the court with jurisdiction to make the order sought. In part that section provides:

In the Superior Court of Justice, an interlocutory injunction or mandatory order may be granted…by an interlocutory order, where it appears to a judge of the court to be just or convenient to do so.

54Ms. Spero’s counsel was unable to provide any authority which used that or an analogous provision in the manner requested. I was referred to the Legislation Act, 2006, S.O. 2006, c. 21, Sch. F, s. 64(1) which states:

An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.

55I do not feel assisted by those provisions. A cursory review of the annotations to s. 101 suggests the section is designed to compel, prevent, limit or control one or more future events. The past is relevant to the analysis but the section is not intended to remedy a past but no longer operative concern.

56Ms. Spero’s notice of motion sought an interlocutory order restraining Mr. Dean from “obtaining or accessing private information of any kind belonging to” Ms. Spero. However, that request was not developed factually and not pursued by Ms. Spero’s counsel in written or oral argument. There is simply no evidentiary foundation for any suggestion Mr. Dean’s allegedly wrongful conduct will be repeated. Nor is there a present basis for believing the source of the information will be unavailable unless disclosed now.

57Factually, I am unable to accept that the requested disclosure will magically relieve Ms. Spero of the anxiety she describes. What’s done is done. A substantial factual record was assembled on the motion. Repetition of the allegedly wrongful conduct is highly unlikely.

58A piecemeal approach to the discovery process is to be discouraged unless there are exceptional circumstances. This case does not fit within such a category.

59However, I will not dismiss Ms. Spero’s motion. That is one of the dispositions rule 37.13(1) allows. An adjournment with or without terms is another. For now, Ms. Spero’s motion is adjourned sine die returnable on four days’ notice. Ms. Spero may serve a notice of return of motion if Mr. Dean refuses to disclose the source of the program and course information at a future examination for discovery or other appropriate date.

C. Disposition

60For the reasons given, an order shall issue transferring this proceeding from Toronto to London. Ms. Spero’s motion is adjourned sine die returnable on four days’ notice insofar as paras. (a), (b) and (f) are concerned. Paragraph (c) of Ms. Spero’s notice of motion was not pursued and is hereby dismissed without prejudice to another motion for that relief based on future events.

61Rule 1.04(1.1) directs the court to make orders and directions that are proportionate to the importance and complexity of the issues and to the amount involved in the proceeding.

62The history of proceedings between the parties is concerning. Twelve volumes of factual and legal material was assembled for these motions alone.

63The path to mutually assured economic destruction is brightly lit. Each party alleges psychological harm too. Allowing this action to meander does a disservice to the parties. They need to proceed expeditiously and at least initially, with a guiding and independent hand.

64In Mauldin v. Hyrniak, 2014 SCC 7, [2014] 1 S.C.R. 87 the Supreme Court of Canada spoke of the need for a culture shift in the conduct of civil proceedings. At para. 32, Karakatsanis J. wrote in part:

This culture shift requires judges to actively manage the legal process in line with the principle of proportionality…While judges can and should play a role in controlling…risks, counsel must, in accordance with the traditions of their profession, act in a way that facilitates rather than frustrates access to justice. Lawyers should consider their client’s limited means and the nature of their case and fashion proportionate means to achieve a fair and just result.

65While written in the context of a motion for summary judgment, the passage applies equally to the process as a whole.

66Rule 50.13(1) was introduced in 2014. It allows a judge, at any time and on their own initiative, to direct the parties to participate in a case conference. The presiding judge may, among other things, explore methods to resolve contested issues and establish a timetable for the proceeding. Procedural orders may be made. Directions may be given.

67Pursuant to that rule, I hereby direct that a case conference be held before me. Counsel are directed to communicate forthwith. They are to review together their availability from 9 until 10 a.m. during the weeks of November 28, December 5, December 12, 2016, January 9 and 16, 2017. They are to select a minimum of three and maximum of five mutually convenient dates for a one-hour long in person case conference. Those dates are to be communicated to the trial coordinator in a jointly written letter by no later than November 22, 2016. The trial coordinator will advise counsel of the date chosen by the court. If none of the dates can be accommodated counsel will be advised and a request for additional dates made.

68Before the case conference counsel shall utilize their best efforts to agree to a discovery plan in accordance with rule 29.1.03. They shall also utilize their best efforts to timetable all other remaining steps in the action.

69The necessity for and timing of submissions on costs of these motions will also be addressed at the case conference.

Footnotes

1. 1The appeal was successful: 2016 ONSC 4298 (Div. Ct.) with supplementary reasons at 2016 ONSC 56503 (Div. Ct.). Mr. Dean is seeking leave to appeal to the Court of Appeal.
2. 2The allegation that Mr. Dean’s conduct was intentional and without justification is found in para. 14. The privacy of the program and course information is alleged in para. 10. Allegations concerning highly offensive conduct causing distress and anguish are found in paras. 11, 12, 13, 15, 16, 18 and 22.
3. 3It was not necessary to consider the other causes of action Ms. Spero relies upon.