CITATION: Wallbridge v. Brunning et. al., 2016 ONSC 7964

COURT FILE NO.: 20018/16

DATE: 2016-12-20

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JAMES WALLBRIDGE, ALMEDA WALLBRIDGE and WALLBRIDGE, WALLBRIDGE Plaintiffs

– and –

FAY BRUNNING and WILLIAMS-LITIGATION LAWYERS Defendants

COUNSEL:

G. Adair, Q.C., Counsel for the Plaintiffs

S. Secord, Counsel for the Defendant, Fay Brunning M. Kestenberg, Counsel for the Defendant, Williams Litigation Lawyers

HEARD: September 23, 2016

REASONS FOR DECISION

RASAIAH J.

OVERVIEW

[1] On or about May 20, 2016, the plaintiffs caused to be issued, a statement of claim alleging that defendant Fay Brunning (“Brunning”), made a series of defamatory comments, misrepresentations and allegations about or directed at the plaintiffs, related to their representation of former Indian Residential School students.

[2] The plaintiffs claim that the defendant law firm Williams Litigation Lawyers (“defendant Williams”) is vicariously liable for the defamatory comments, misrepresentations and allegations of Brunning.

[3] A motion for summary judgment was brought by the defendant Williams seeking a dismissal of the plaintiffs’ action as against them.

[4] The plaintiffs assert that there is a genuine issue requiring a trial, and seek an order dismissing the within motion.

[5] The defendant Williams filed a motion record containing its motion; the affidavit of Mr. Kelly Hart (“Mr. Hart”), a lawyer with the defendant Williams; the statement of claim; and defendant Williams’ statement of defence.

[6] A letter from defendant Williams’ counsel to plaintiffs’ counsel dated September 14, 2016 was filed by the plaintiffs. This letter provides Mr. Hart’s answers to written interrogatories made by plaintiffs’ counsel (as cross-examination on Mr. Hart’s said affidavit).

[7] The plaintiffs filed no affidavits.

[8] Both parties filed factums and books of authorities.

[9] Brunning did not participate in the within motion.

FACTS

Background

[10] The defendant Williams is a law partnership located in Ottawa, Ontario.

[11] Brunning is a lawyer duly licensed to practice law in the Province of Ontario. Brunning practices in association with the defendant Williams. She is the wife of Eric Williams, a minority partner in the defendant Williams’ law partnership.

[12] The plaintiff Wallbridge, Wallbridge is a partnership of lawyers practicing in the Province of Ontario with offices in Timmins, Sudbury, North Bay and New Liskeard, Ontario.

[13] The plaintiffs James Wallbridge and Almeda Wallbridge are lawyers duly licensed to practice law in the Province of Ontario. They jointly founded Wallbridge, Wallbridge.

Brunning’s Practice

[14] Brunning had a law practice which was unaffiliated with the defendant Williams before she began practicing in association with the defendant Williams.

[15] On or about January 2, 2016, Brunning began practicing in association with the defendant Williams.

[16] Brunning’s practice is separate from that of the defendant Williams.

[17] Brunning’s practice and the defendant Williams share the same office address, telephone number and fax number.

[18] Brunning pays the defendant Williams $3,000 per month for: her office space; the office of her employee; and as a contribution towards the cost of a front desk receptionist.

[19] Brunning hired her own employee who is solely dedicated to Brunning’s work.

[20] Brunning maintains her own accounting and bookkeeping services.

[21] Brunning has her own document management system separate from that of the defendant Williams.

[22] None of the defendant Williams lawyers have access to Brunning’s document management system.

[23] One area of Brunning’s practice includes the representation of former Indian Residential School students claiming compensation for historical mistreatment at various residential schools (“IRS Claims” or “IRS Claim”).

[24] The defendant Williams does not practice in the area of IRS Claims.

[25] At no time did any partner or lawyer of the defendant Williams participate in or act in respect of Brunning’s IRS Claims.

[26] No member of the defendant Williams made any representation to the plaintiffs or any other that Brunning was ever a partner or employee of the firm.

The Statement of Claim

[27] Paragraph 5 of the statement of claim, claims that the defendant Williams is vicariously responsible for “the actions of Brunning as described hereinafter”.

[28] What is “described hereinafter”?

[29] The allegations or actions of Brunning described at paragraphs 14 to 18 of the statement of claim include letters, and one email (collectively hereinafter referred to as “the correspondence”), authored by Brunning, and in particular, the statements made within them, alleging claims including but not limited to negligence; professional misconduct; unethical conduct; and obstruction of justice (“Brunning allegations”).

[30] The details are set out in paragraph 17 of the statement of claim:

17. Brunning’s increasingly serious defamatory comments continued up to and including at least April 13, 2016. Her defamatory comments included the following:

(i) “at no time until May 29, 2013 did ... meet a lawyer from Wallbridge”. (contained in a letter from Brunning to James Wallbridge and others dated September 8, 2015).

(ii) “The fault for that part of the IAP decision wherein ... convinced the adjudicator to find ...’s testimony to be not credible due to the discrepancies when comparing the application forms and the story told at the IAP hearing, lies with the substandard conduct of your firm.” (contained in a letter from Brunning to James Wallbridge and others dated September 8, 2015).

(iii) “Secondly, there is the disturbing issue of Wallbridge agreeing with the lawyers for the federal government and Catholic Church to withhold all the documents .....from all IAP claimants of St. Anne’s.” (contained in a letter from Brunning to James Wallbridge and others dated September 8, 2015).

(iv) “Wallbridge likely did not want to have the Cochrane Actions transferred into an IAP process. You understandably wanted settlement and payment of your fees for the legal work you had done in these civil claims”. (contained in a letter from Brunning to James Wallbridge and others dated September 8, 2015).

(v) “your firm should never have offered legal services to IAP claimants thereafter, agreeing to hide all that documentation from the IAP process”. (contained in a letter from Brunning to James Wallbridge and others dated September 8, 2015).

(vi) “How many more St. Anne’s students also suffered loss of compensation or under-compensation in the IAP system due to the failure of Wallbridge to tender all the evidence ... Why did you agree to hide the documents with the lawyers for Canada and the Catholic Church? .....You failed these vulnerable persons again in the IAP process”. (contained in a letter from Brunning to James Wallbridge and others dated September 8, 2015).

(vii) “Today the former students who were abused, are also questioning the role of the lawyers in suppressing evidence from the IAP claims arising out of St. Anne’s IRS”. (Email Brunning to Brian Gover and others dated September 28, 2015).

(viii) “The Defendants, Canada and the Catholic Church entities and their current lawyer, were complicit in knowing that the IAP claimants represented by those two firms could not under some unlawful agreement contrary to public policy, expose the fact of all of the documents about abuse not having been disclosed in the IAP process”. (contained in a letter from Brunning to Brian Gover and others dated March 18, 2016).

(ix) “It appears to me that some unlawful agreement was made between the lawyers in the Cochrane Civil actions, to obstruct justice for other former students of St. Anne’s IRS who may subsequently seek compensation in more civil actions and/or under the national class actions still under negotiation.” (contained in a letter from Brunning to Nelligan O’Brien Payne and others dated March 17, 2016).

(x) “To accomplish the goal of putting a cloak of secrecy over all of this abuse and the information gathered through the operations of the public justice system, it appears that the DOJ, NOP, and Wallbridge, came to some unlawful agreement to hide the facts/documentation gathered from third parties from the national class action litigation.” (contained in a letter from Brunning to Nelligan O’Brien Payne and others dated March 17, 2016).

(xi) “There was no reason for Wallbridge and NOP to act for IAP claimants after agreeing with the abusers and authorities liable for the abusers, to bury the evidence from the IAP process, except to make more money.” (contained in a letter from Brunning to Nelligan O’Brien Payne and others dated March 17, 2016).

(xii) “Obstruction of justice is extremely serious. When Ken Murray withheld videotape evidence he obtained while acting as defence counsel for Paul Bernardo, Mr. Murray later had to remove himself from record and disclose the evidence through an intermediary. Then, he subsequently faced Law Society discipline proceedings and criminal charges for obstruction of justice. In the interim, Karla Homolka got away with murder.” (contained in a letter from Brunning to Nelligan O’Brien Payne and others dated March 17, 2016).

(xiii) “The withholding of all this evidence by all these lawyers constitutes a prima facie situation of obstruction of justice. .....How is hiding this extensive evidence any different than when Mr. Ken Murray defended Paul Bernardo.....”. (Letter Wallbridge to Brian Gover dated March 18, 2016).

(xiv) “The documents you facilitated being withheld from the IAP.....were generated during the operations of the judicial system in Ontario.” (contained in a letter from Brunning to James Wallbridge and others dated April 8, 2016).

(xv) “Your firm withheld material evidence from the IAP claim .....all of which you must have used to get settlements from the same defendants in the Cochrane civil actions.” (contained in a letter from Brunning to James Wallbridge and others dated April 8, 2016).

(xvi) “Your firm was fully participating in keeping adjudicators in the dark about known abuse by this perpetrator at St. Anne’s IRS.” (contained in a letter from Brunning to James Wallbridge dated April 6, 2016).

(xvii) “Your firm has known since January 14, 2016, that you should send each client who was denied compensation or under-compensated, a letter to advise them to seek ILA, from a competent lawyer who knows the details about St. Anne’s IRS and the new evidence.” (contained in a letter from Brunning to James Wallbridge and others dated April 8, 2016).

(xviii) “The violation of legal rights of St. Anne’s survivors in the IAP process and incremental need for mental health support services, has contributed to this crisis. On at least two occasions, you have heard Ed Metatawabin, speak in open court about the fact that St. Anne’s survivors are traumatized by the IAP process and being found to be the liars.” (contained in a letter from Brunning to Catherine Coughlan and others dated April 13, 2016).

(xix) “Claimants such as .... and .... are discovering that their IAP rights have been violated because the lawyers in the Department of Justice withheld material evidence, along with lawyers who have acted and/or still act for the Catholic Church along with the lawyers in Wallbridge, Wallbridge.” (contained in a letter from Brunning to Catherine Coughlan and others dated April 13, 2016).

(xx) “They should reveal on what basis the Federal government and Catholic Church made Wallbridge hide from the national class action litigation all the third party evidence you all gathered during the Cochrane civil actions.” (contained in a letter from Brunning to Catherine Coughlan and others dated April 13, 2016).

(xxi) “Why did Wallbridge agree to bury the material evidence, despite national class actions still being negotiated.” (contained in a letter from Brunning to Catherine Coughlan and others dated April 13, 2016).

[31] The references to the correspondence in the statement of claim do not identify clearly whether any or all of the correspondence was sent on a without prejudice basis and/or whether or not any or all of the correspondence was sent in the context of a specific IRS Claim but they all appear to be focused on issues related to IRS Claims and claimants and/or events related to same.

[32] In the statement of claim, many of the references to whom the correspondence was sent includes “others”. Those “others” are not identified.

[33] From the drafting of the statement of claim, it is not clear as to how many pieces of correspondence were actually sent. Some of the correspondence share the same date and it is not clear if there is only one letter for that particular date or if there is more than one letter with the same date.

[34] Copies of the correspondence were not filed.

[35] Paragraph 19 of the statement of claim provides that the Brunning allegations were sent to named lawyers, a member of parliament, former clients of the plaintiffs, the Mushkegowuk Council, former Chief and Elder Ed Metatawabin, Deputy Grand Chief Rebecca Friday, and a self-styled journalist. The plaintiffs further claim the Brunning allegations were re-published by the self-styled journalist, to unknown readers in unknown numbers via two email blogs on the internet.

[36] Paragraph 20 of the statement of claim claims that the Brunning allegations were made by Brunning on the letterhead of, and by and with the authority of the defendant Williams. The plaintiffs further claim the Brunning allegations were not based on any investigation, competent investigation or facts known to the defendant Williams.

The Creation and Distribution of the Correspondence

[37] The defendant Williams had no knowledge of correspondence written or sent by Brunning during her association with the defendant Williams with respect to IRS Claims.

[38] The defendant Williams does not practice in the area of IRS Claims.

[39] At no time did any partner or lawyer of the defendant Williams participate in or act in respect of Brunning’s IRS Claims.

[40] The defendant Williams had no specific knowledge of the correspondence in question which is accepted by the plaintiffs.

Correspondence and Marketing

[41] The defendant Williams’ letterhead references Brunning as “Practicing in Association, not in Partnership”. In particular, Brunning’s name is listed with other lawyers’ names in the header of the letterhead with an asterisk beside her name. She is the only lawyer listed in the header of the letterhead with an asterisk. The bottom footer of the letterhead lists Brunning’s name again and all of her contact information. In this particular footer on the far right, listed by itself, with nothing listed above it or below it, is an asterisk with the words “Practicing in Association not in Partnership”. The header and footer are relatively the same proportionately.

[42] The defendant Williams began using this letterhead shortly after Brunning began practicing in association with the defendant William, and it remains in use.

[43] In respect of the email template, Brunning’s email signature indicates that she is “Practicing in Association with Williams”. The placement of these words is directly and closely below her name in what appears to be very similar if not the same font and size of her name.

[44] In respect of the web page filed, while it presents as the website for the defendant Williams firm, it includes a photo of Brunning and all of the other lawyers. Under Brunning’s photo are the words “Lawyer, Practicing in Association”. Under each photo of the other lawyers are the words “Counsel”, “Partner” and “Associate” as applicable. Brunning is the only lawyer listed as “Lawyer, Practicing in Association” on this webpage.

[45] In respect of court documents, Brunning, after listing her name and the words “Barrister and Solicitor”, includes the words “Practicing in Association with Williams Litigation Lawyers” directly under same which is followed by her contact information.

Evidence of Mr. Hart

[46] The letter from defendant Williams’ counsel to plaintiffs’ counsel filed by the plaintiffs, providing Mr. Hart’s answers to written interrogatories set out the following:

Question 1: Is Williams-Litigation Lawyers ("Williams") a limited liability partnership?

Answer: No. The firm is not a limited liability partnership. However, by way of correction, the firm name does not contain a hyphen between 'Williams' and 'Litigation’. It is simply named 'Williams Litigation Lawyers'.

Question 2: Is the letterhead reproduced as Exhibit "A" to your affidavit the letterhead used since its introduction by the entire law firm for the transaction of all business of the law firm?

Answer: Yes. The letterhead was introduced in January, 2016 at the time that Fay Brunning began renting space at the firm. The distinction is that each lawyer has an individualized footer with their respective email address and information. By way of example, my letterhead has all the names of the lawyers above the line at the top of the letterhead; below the line the information is specific to Kelly P. Hart, personally, although every individual letterhead that goes out of the firm has the asterisk on the bottom of the footer indicating “Practicing in Association, not in Partnership” as it relates to Fay Brunning.

Question 3: Are there any restrictions on Fay Brunning with respect to her use of the Exhibit “A” letterhead?

Answer: No. There are no restrictions on Fay Brunning's use of the letterhead. The letterhead that she uses is exactly as is set out in Exhibit "A" to my affidavit.

Question 4: Is there any oversight by any member or employee of the firm in respect of communications Fay Brunning sends to others by email or by the use of Exhibit "A" letterhead in the conduct of the practice of law?

Answer: No.

Question 5: Did Fay Brunning discuss the allegations she made against the Wallbridge firm or the Wallbridge firm's response to same with Eric Williams at any time prior to learning that Wallbridge had retained counsel to address these allegations?

Answer: No. I am informed by Eric Williams and believe that he did not discuss the subject allegations or the Wallbridge firm’s responses with Fay Brunning prior to being advised that there was a potential claim being made against Fay Brunning.

Question 6: Do you admit that Fay Brunning identifies herself as lawyer for a particular party on court documents as follows:

Fay K . Brunning Barrister and Solicitor Practicing in Association with Williams Litigation Lawyers 169 Gilmour Street Ottawa, ON K2P 0N8 Tel : 613-237-0520 Fax: 613-237-3 163

Answer: Yes.

SUMMARY OF DEFENDANT WILLIAMS POSITION

[47] The defendant Williams position is as follows:

1. The plaintiffs’ claims as against the defendant Williams can be appropriately determined by summary judgment; and summary judgment should be granted.

2. The plaintiffs have failed to put their best foot forward and lead any evidence that Brunning defamed the plaintiffs; the references to the correspondence in the statement of claim do not constitute evidence; the letters have not been put into evidence. Accordingly, without leading evidence establishing defamation, there is no genuine issue for trial as against the defendant Williams.

3. Even if there was evidence of defamatory conduct, the evidence does not support a finding that the defendant Williams is or should be vicarious liable in this case. The letterhead, email and website for the firm clearly identify their relationship with Brunning to the public as practicing in association with the defendant Williams. Brunning was never an employee, agent or partner of the defendant Williams or held out as same. Vicarious liability should not attach to defendant Williams on the facts of this case.

SUMMARY OF PLAINTIFFS’ POSITION

[48] The plaintiffs’ position is summarized as follows.

1. For policy reasons, Brunning should be treated as either a partner or employee of the defendant Williams; that the law will treat people practicing in association as a “collective entity law firm”. As such, the defendant Williams is vicariously liable; liable for the acts of those people who are in its collective entity. The correspondence has the force of the law firm behind it, and they were sent fully authorized by the law firm, no restrictions were imposed on the use of the letterhead and email template.

2. The reasons to support such a policy, the plaintiffs state are…”you own the law firm, you’re in charge of who uses your letterhead, you allow it to be used without restrictions; and the brand of the law firm is put behind the sting of the defamation”.

3. If the court decides to treat the law firm as a collective entity then the law firm is liable on ordinary principles of vicarious liability that apply to an employee or alternatively as a partner.

4. The plaintiff’s position is that there is genuine issue requiring a trial as to whether the defendant Williams is vicariously liable for the actions of defendant Brunning in publishing defamatory material.

5. Regarding the defendant Williams’ argument of there being “no evidence lead establishing defamation”, the plaintiffs submit that this ground is not set out in the defendant William’s factum as a ground for the motion. Further, there is no denial in the evidence that Brunning sent the correspondence. Finally, the court knows from hearing another motion in this proceeding, that Brunning is claiming defences for having written them, including but not limited to privilege and justification. The plaintiffs submitted that they could file a one-paragraph affidavit stating, “here are the letters” and nothing else to cure this failure. The letters on their face are plainly and obviously defamatory.

LAW

[49] Rule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (“Rules”), states that a defendant may, after delivering a statement of defence, move with supporting affidavit material or other evidence for summary judgment dismissing all or part of the claim in the statement of claim.

[50] Rule 20.02(2) of the Rules, states that in response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.

[51] Rule 20.04 (2) of the Rules states that the court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence; or

(b) the parties agree to have all or part of the claim determined by a summary judgment and the court is satisfied that it is appropriate to grant summary judgment.

[52] Rule 20.04(2.1) of the Rules, states that in determining under rule 20.04(2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[53] In Hryniak v. Mauldin, [2014] 1 SCR 87, 2014 SCC 7, the Supreme Court of Canada set out at paragraphs 49 and 50:

[49] There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. 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, more expeditious and less expensive means to achieve a just result.

[50] These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

[54] In Hryniak, supra, the Supreme Court of Canada set out at paragraphs 66, 67 and 68:

[66] On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole.

[67] Inquiring first as to whether the use of the powers under Rule 20.04(2.1) will allow the dispute to be resolved by way of summary judgment, before asking whether the interest of justice requires that those powers be exercised only at trial, emphasizes that these powers are presumptively available, rather than exceptional, in line with the goal of proportionate, cost-effective and timely dispute resolution. As well, by first determining the consequences of using the new powers, the benefit of their use is clearer. This will assist in determining whether it is in the interest of justice that they be exercised only at trial.

[68] While summary judgment must be granted if there is no genuine issue requiring a trial,[10] the decision to use either the expanded fact-finding powers or to call oral evidence is discretionary.[11] The discretionary nature of this power gives the judge some flexibility in deciding the appropriate course of action. This discretion can act as a safety valve in cases where the use of such powers would clearly be inappropriate…

ISSUES

[55] The issues are:

1. Vicarious liability, if any, of the defendant Williams.

2. Failure to lead evidence on the issue of defamation.

ANALYSIS

Issue One: Vicarious Liability

[56] I am of the view that the resolution of this issue does not require a trial. I am satisfied that I am in a position to make fair findings and grant summary judgment on the issue of vicarious liability of the defendant Williams based on and having regard for the evidence filed on the motion, the Rules and the applicable law. In respect of the evidence filed, I am not satisfied that there are material facts arising that require a trial to assess credibility, weigh evidence or draw factual inferences. The plaintiffs did not establish in affidavit material or on the evidence filed, specific facts demonstrating there is a genuine issue requiring a trial.

[57] It is not disputed that:

a. Brunning is not a partner of the defendant Williams.

b. Brunning was not held out as a partner of the defendant Williams.

c. Brunning is not an employee of the defendant Williams.

d. Brunning was not held out as an employee of the defendant Williams.

[58] There is no evidence that Brunning was held out as an associate of the defendant Williams either, which is distinct from practicing in association.

[59] There is no evidence that Brunning was acting as an agent for the defendant Williams.

[60] There is no evidence that Brunning had actual authority or was incited or encouraged Brunning to create and deliver the correspondence on behalf of or for the defendant Williams.

[61] There is no evidence of express or implied act by the defendant Williams from which authority could have been expressly or impliedly derived by Brunning to write the correspondence on behalf of or for the defendant Williams.

[62] The evidence supports that the defendant Williams did not know about the correspondence until after the fact.

[63] There is no evidence indicating that Brunning ever directly communicated that the contents of her letters and one email were the views and opinions of the defendant Williams.

[64] All of the correspondence was authored and signed by Brunning.

[65] There is no evidence that the defendant Williams specifically authorized the use of or ever would authorize or agree to the use of shared letterhead and shared email template to publish defamatory material.

[66] What is clear is that:

a. Brunning was practicing in association with the defendant Williams.

b. Brunning sent the correspondence on shared letterhead and email template.

c. The defendants had separate practices.

d. The defendants’ relationship was one of a space and cost-sharing arrangement.

[67] Given this type of relationship, should the defendant Williams, in this case, on these facts, be held vicariously liable, analogous of a partner or employer, for defamatory correspondence written by Brunning?

[68] The plaintiffs argue the answer is yes. The plaintiffs argue the defendants are a common entity tantamount to a partnership and/or employer/employee relationship. They argue against the defendant Williams …”you own the law firm, you’re in charge of who uses your letterhead, and you allow it to be used without restrictions. The brand of the law firm is put behind the sting of the defamation”.

[69] The Dictionary of Canadian Law, 4th ed., paged 1365, defines vicarious responsibility as follows:

1. Liability imposed on one person for the acts of another based on the relationship between the two persons. Liability imposed on an employer for the acts of the employees.

2. In determining whether an employer is vicariously liable for an employee’s unauthorized, intentional wrong in cases where precedent is inconclusive, courts should be guided by the following principles:

(1) They should openly confront the question of whether liability should lie against the employer, rather than obscuring the decision beneath semantic discussions of “scope of employment” and “mode of conduct.”

(2) The fundamental question is whether the wrongful act is sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. Vicarious liability is generally appropriate where there is a significant connection between the creation or enhancement of a risk and the wrong that accrues therefrom, even if unrelated to the employer’s desires. Where this is so, vicarious liability will serve the policy considerations of provision of an adequate and just remedy and deterrence. Incidental connections to the employment enterprise, like time and place (without more), will not suffice. Once engaged in a particular business, it is fair that an employee be made to pay the generally foreseeable costs of that business. In contrast, to impose liability for costs unrelated to the risk would effectively make the employer an involuntary insurer.

(3) In determining the sufficiency of the connection between the employer’s creation or enhancement of the risk and the wrong complained of, subsidiary factors may be considered. These may vary with the nature of the case. When related to intentional torts, the relevant factors may include, but are not limited to, the following:

(a) the opportunity that the enterprise afforded the employee to abuse his or her power;

(b) the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);

(c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;

(d) the extent of power conferred on the employee in relation to the victim;

(e) the vulnerability of potential victims to wrongful exercise of the employee’s power.

B. (P.A.) v. Curry, 1999 692 (SCC), [1999] 2 S.C.R. 534 McLachlin J.

3. Responsibility in law for the misconduct of another person. John G. Fleming, The Law of Torts, 8th ed. (Sydney: The Law Book Co., 1992) at 366.

4. “In the criminal law, a natural person is responsible only for those crimes in which he is the primary actor either actually or by express or implied authorization. There is no vicarious liability in the pure sense in the case of the natural person. That is to say that the doctrine of respondent superior is unknown in the criminal law where the defendant is an individual...where the defendant is corporate the common law has become pragmatic, as we have seen, and a modified and limited ‘vicarious liability’ through the identification doctrine has emerged...” R. v. McNamara (No. 1), (sub nom. R. v. Canadian Dredge & Dock C o.) 1985 32 (SCC), [1985] 1 S.C.R. 662 at 692, 45 C.R. (3d) 289, 9 O.A.C. 321, 19 C.C.C. (3d) 1, 19 D.L.R. (4th) 314, 59 N.R. 241, the court per Estey J.

[70] Black's Law Dictionary, 10th ed., page 1055 defines vicarious liability as:

Liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties.

[71] In Bazley v. Curry, 1999 692 (SCC), [1999] 2 S.C.R. 534, the Supreme Court developed the law associated with vicarious liability and with what is known as the Salmond test, which posits that employers are vicariously liable for: (1) employee acts authorized by the employer; or (2) authorized acts so connected with authorized acts that they may be regarded as modes (albeit improper modes) of doing an authorized act.

[72] In Bazley, supra, the Supreme Court of Canada found that vicarious liability as it relates to employment relationships has two requirements:

a. There must be an employment relationship between the individual and the corporation, or it must be shown that the relationship between the tortfeasor and the person against whom liability is sought is sufficiently close as to make a claim for vicarious liability.

b. The plaintiff must demonstrate that the tort is sufficiently connected to the tortfeasor’s assigned tasks such that the tort can be regarded as a materialization of the risks created by the enterprise.

[73] Other relationships of command or control or sufficient closeness may give rise to vicarious liability. In John Doe v. Bennett, [2004] 1 SCR 436, 2004 SCC 17 paras 19 to 21 the Supreme Court of Canada wrote:

19 This Court considered the application of the doctrine of vicarious liability to the tort of assault of children in Bazley v. Curry, 1999 692 (SCC), [1999] 2 S.C.R. 534, Jacobi v. Griffiths, 1999 693 (SCC), [1999] 2 S.C.R. 570, and K.L.B. v. British Columbia, [2003] 2 S.C.R. 403, 2003 SCC 51. The decisions affirm the same test for vicarious liability.

20 In Bazley, the Court suggested that the imposition of vicarious liability may usefully be approached in two steps. First, a court should determine whether there are precedents which unambiguously determine whether the case should attract vicarious liability. “If prior cases do not clearly suggest a solution, the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability”: Bazley, at para. 15; Jacobi, at para. 31. Vicarious liability is based on the rationale that the person who puts a risky enterprise into the community may fairly be held responsible when those risks emerge and cause loss or injury to members of the public. Effective compensation is a goal. Deterrence is also a consideration. The hope is that holding the employer or principal liable will encourage such persons to take steps to reduce the risk of harm in the future. Plaintiffs must show that the rationale behind the imposition of vicarious liability will be met on the facts in two respects. First, the relationship between the tortfeasor and the person against whom liability is sought must be sufficiently close. Second, the wrongful act must be sufficiently connected to the conduct authorized by the employer. This is necessary to ensure that the goals of fair and effective compensation and deterrence of future harm are met: K.L.B., supra, at para. 20.

21 In determining whether there is a sufficient connection in the case of intentional torts, factors to be considered include, but are not limited to the following (Bazley, supra, at para. 41):

(a) the opportunity that the enterprise afforded the employee to abuse his or her power;

(b) the extent to which the wrongful act may have furthered the employer’s aims (and hence be more likely to have been committed by the employee);

(c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer’s enterprise;

(d) the extent of power conferred on the employee in relation to the victim;

(e) the vulnerability of potential victims to wrongful exercise of the employee’s power.

The employer’s control over the employee’s activities is one indication of whether the employee is acting on his or her employer’s behalf: K.L.B., supra, at para. 22. At the heart of the inquiry lies the question of power and control by the employer: both that exercised over and that granted to the employee. Where this power and control can be identified, the imposition of vicarious liability will compensate fairly and effectively.

[74] Liability is imposed on the theory that the person may properly be held responsible where the risks inherent in his or her enterprise materialize and cause harm, provided that liability is both fair and useful: K.L.B. v. British Columbia, [2003] 2 SCR 403, 2003 SCC 51 para 18, referring to: Bazley v. Curry, 1999 692 (SCC), [1999] 2 S.C.R. 534; Jacobi v. Griffiths, 1999 693 (SCC), [1999] 2 S.C.R. 570.

[75] Compensation will not be fair where the organization fixed with responsibility for the tort is too remote from the tortfeasor for the latter to be acting on behalf of it: in such a case, the tort cannot reasonably be regarded as a materialization of the organization’s own risks. And vicarious liability will have no deterrent effect where the tortfeasor is too independent for the organization to be able to take any measures to prevent such conduct: K.L.B. v. British Columbia, [2003] 2 SCR 403, 2003 SCC 51 para 20.

[76] K.L.B. v. British Columbia, [2003] 2 SCR 403, 2003 SCC 51 para 21, the court wrote:

In Sagaz, supra, this Court considered the appropriate test for determining whether a tortfeasor is to be considered an employee or an independent contractor for the purposes of vicarious liability. The Court held that the existence of a contract referring to the parties as employer and independent contractor is not determinative (para. 49). The inquiry is rather a functional one: “what must always occur is a search for the total relationship of the parties” (para. 46). In Sagaz, the Court held that the “central question” in this functional inquiry “is whether the person who has been engaged to perform the services is performing them as a person in business on his own account” (para. 47). This way of putting the question reflects the type of enterprise that Sagaz was concerned with – namely, a for-profit enterprise. In the case at bar, we are concerned with a non-profit enterprise: the government-administered foster care system. In this context, the focus of the inquiry will be simply on whether the tortfeasor was acting “on his own account” or acting on behalf of the employer.

[77] There are no precedents that I was presented with which unambiguously determines whether this case should attract vicarious liability.

[78] As authority in examining the relationship between the defendant Williams and Brunning, the Plaintiffs referred the Court to Jajj v. 100337 Canada Ltd. 2014 CarswellOnt 7667, 2014 ONSC 3411, 120 O.R. (3d) 534, 241 A.C.W.S. (3d) 722, 60 C.P.C. (7th) 287. This case involved an appeal before Stinton J. by the defendant BJ Supermarket, from a Master’s decision refusing to disqualify counsel for the plaintiff Jajj.

[79] In Jajj, supra, the issue was actual or appearance of conflict of interest. The policy considerations in Jajj included the confidence of the public in the integrity of the profession and in the administration of justice, in preserving public confidence in the administration of justice by implementing advance measures that will protect client confidentiality, to offset any concerns that would arise legitimately in the circumstances of two associates providing advice and services to separate clients with competing interests.

[80] It seemed quite clear in Jajj, supra, that his determination was largely a question of fact.

[81] There are some notable differences in fact in Jajj, supra, to the case at bar. In Jajj, supra both counsel held themselves out as lawyers practicing under one firm name. Nowhere on their letterhead was there an indication that the name of the firm was not a firm name under which its various lawyers practiced as partners. There was nothing in the materials before Stinton J. of any public disclosure of the firm as an association or that the lawyers who practice under that name do so as lawyers who have practices that are somehow independent from another. On the face, he found that the firm exhibited to the general public, the same traits that one would expect to find if all the lawyers were partners or associates in a law firm partnership. There was no evidence that lawyer told the defendant’s representatives that the firm was merely an association of lawyers whose practices are independent of one another. Stinton J. considered more than once in the Jajj, the absence of public disclaimer and how the lawyers held themselves out to the public and their clients. He wrote that where lawyers wish to practice in association, they must at minimum publicly hold themselves out as practicing in that fashion. Stinton J. based his analysis on a standard of “a reasonably informed member of the public” in how the enterprise should be viewed.

[82] The plaintiffs also referred the Court to an earlier decision of Stinton J, namely Tiago v. Meisels, 2011 ONSC 5914. This is a decision on a motion brought by three defendants for partial summary judgment. The plaintiffs in this case had brought a claim for negligence against their former lawyer and three other lawyers, alleging they were partners in their former lawyer’s firm and therefore shared liability for their former lawyer’s negligence. The three lawyers denied the existence of partnership. The plaintiffs’ former counsel was a sole practitioner who shared office space with the three lawyers. Stinton J. found that the defendants held themselves out as partners, and failed to dispel that notion. The finding again largely was a question of fact.

[83] In Tiago, supra, like in this case, the plaintiffs conceded that the defendants were not in fact partners.

[84] Stinton J. analyzed the facts from what seems to be a different standard, the standard of an ordinary client; a lay person who approaches a lawyer seeking advice and representation who may not have an understanding and appreciation of the subtlety and fine points of the law and legal relationships.

[85] In Tiago, supra, the defendants practiced under a firm name that incorporated all of their surnames, describing themselves as barristers and solicitors. They shared space under a common name. They had common telephone and fax numbers. The name was used on their joint letterhead. It was also used on their business cards, on their office signage and by their joint receptionist in their shared office quarters when answering the telephone. He concluded these facts supported a finding that it was not unreasonable for a lay person to conclude that the defendants collectively comprised a legal entity of some nature; creating an impression that the individual lawyer was part of a larger collective.

[86] In Tiago, supra, the notation on the firm letterhead of “practicing in association” did not appear with prominence. In fact, Stinton J. noted it was anything but prominent. The defendants used diamonds and subsequently asterisks to draw attention to a footnote. Stinton J. commented on the lack of express indication as to whom or what the words “practicing in association” referred to.

[87] In Tiago, supra, Stinton J. noted the ability of a firm to contrast/address any confusion as to relationship by making it plain that the lawyers are not partners by stating on letterhead that they are “not practicing in partnership”.

[88] The case at bar is factually distinguishable from the Tiago, supra.

[89] Looking at the letterhead as a whole, the defendant Williams’ letterhead references Brunning’s name with the names of other lawyers at the top of the letterhead. There is an asterisk beside her name. She is the only lawyer listed on the letterhead with an asterisk beside her name. There can be no confusion, in my view, as to whom the asterisk attaches. On the letterhead in the header, the roles of counsel and partners are specifically identified beside the respective names. The bottom footer of the letterhead lists Brunning’s name again and all of Brunning’s contact information. In this particular footer on the most right side beside all of the contact information specifically for Brunning, standing out with nothing above or below it, is an asterisk and the words “Practicing in Association not in Partnership”. The header and footer are relatively the same proportionately. The layout is clear; easy to read. This particular set up, in my view, negates the existence or notion of a partnership and dispels the idea that her practice is one with the defendant Williams. It is communicating in my respectful view to the reader, “I am not their partner, I am practicing in association with them”. It is communicating there is a difference to be noted. It is communicating I am not in control of or have an ownership interest in the defendant Williams. All but one of the publications complained of were on this letterhead.

[90] Brunning’s email template, quite prominently, in similar, if not the same font and size, directly below the valediction “Yours truly,” states:

Fay Brunning Barrister and Solicitor Practicing in Association with Williams Litigation Lawyers

[91] Looking at the website page filed, directly and prominently under Brunning’s photograph and name are the words “Lawyer, Practicing in Association”. The website has her photo among the photos of other counsel, partners and associates of the firm. Each photo identifies the lawyer’s status with the firm…”counsel”, “partner”, and “associate”. The manner in which status is noted in my respectful view, would cause a reader at the very least to note that Brunning’s relationship was different from the rest listed. By listing the status of the various lawyers on their website, it is clear there are various statuses. Her relationship to the firm is not confusing or misleading. None of the relationships are confusing or misleading, they are listed explicitly. A reader would be able to note differences.

[92] Further, Brunning identifies herself on court documents in a clear prominent manner, as follows:

Fay K . Brunning Barrister and Solicitor Practicing in Association with Williams Litigation Lawyers 169 Gilmour Street Ottawa, ON K2P 0N8 Tel : 613-237-0520 Fax: 613-237-3 163

[93] Even if it could be said that practicing in association creates the appearance of collective enterprise, the analysis does not stop there in the context of vicarious liability. The Supreme Court of Canada was clear that the inquiry should be a functional one and a search for the total relationship. Subsidiary factors are also relevant. In this case, in my view, subsidiary factors include the specific design of the relationship, the operation of the relationship, and the designed public presentation of the relationship.

[94] Having regard for the total relationship and the facts of this case, I am of the view that vicarious liability should not lie with the defendant Williams.

[95] Functionally, the defendant Williams did not control the conduct of Brunning. It was not in command of Brunning.

[96] The defendants had a space and cost-sharing arrangement. The defendants shared office space/address, telephone number, fax number, and a receptionist. Brunning’s practice was separate. Brunning had her own employee, her own document management system to which the defendant Williams did not have access, had her own accounting and bookkeeping services.

[97] The actions of Brunning were not sufficiently close to the defendant Williams to justify vicarious liability. There is no evidence that the correspondence was written in relation to any tasks assigned to Brunning by the defendant Williams. The defendant Williams does not practice in the area of IRS Claims. At no time did the defendant Williams participate in or act in respect of Brunning’s IRS Claim files. The correspondence related to IRS Claims or claimants; the separate business of Brunning, independently run by her. With respect to IRS Claims, Brunning was performing as a person in business on her own account. She had complete control. The defendant Williams was not her superior. It does not make sense to anchor liability on the defendant Williams on these facts.

[98] Today there are many practice choices for lawyers. For a variety of reasons some lawyers choose to practice in association. There is less ability to control and oversee an associated law practice/firm for lawyers practicing in association. However, if a hope of vicarious liability is to encourage law firms practicing in association to take steps to reduce the risk of, or deter this harm in the future, the question begged is: what other steps could the defendant Williams in this case or any others in their position take to reduce the risk of, or deter “ostensible partner/employee” exposure in the future?

[99] Even if it can be said that the defendant Williams put risk out there by using shared letterhead and not restricting the use of the correspondence, again in this context, it is established that the defendant Williams took steps to identify the relationship to the reader, so as to make it clear to recipients. Again, the wording used in the letterhead was in fact, very similar to the suggestion made by Stinton J. in Tiago, supra. The plaintiff did not provide any evidence or suggestion as to what, if anything additional could have or should have reasonably been done to make the relationship clearer to the reader of the correspondence. There are professional rules of conduct governing marketing that arguably would require the defendant Williams’ letterhead to be exactly as it was (Rule 4.2-1 of the Rules of Professional Conduct).

[100] The plaintiff did not provide any evidence or suggestion as to how the defendant Williams could have prevented the correspondence from being written, except for oversight of correspondence.

[101] Should the defendant Williams have reviewed every letter sent out by Brunning?

[102] In my view, it is not reasonable or appropriate that every letter sent out by a lawyer practicing in association with a law firm be reviewed by that law firm for the appropriateness of its contents. That is the implication of the plaintiffs’ argument when it notes that there was no oversight by any member or employee of the defendant Williams in respect of the communications sent out by Brunning.

[103] Finally, the plaintiffs did not file any evidence of any of the recipients of the correspondence and in particular, whether or not he or she was misled about the relationship between the defendant Williams and Brunning and/or from whom they understood the communication was coming, and finally, if he or she did understand it to include the defendant Williams, why he or she believed that.

Issue Two: Failure to Lead Evidence of Defamation on the Summary Judgment Motion

[104] Given my decision above on the issue of vicarious liability, it is not necessary that I decide the issue of the filing of further material and/or summary judgment on this issue.

CONCLUSION

[105] Summary judgment is granted.

[106] The action as against the defendant Williams is dismissed.

Rasaiah, J.

Released: December 20, 2016

CITATION: Wallbridge v. Brunning et. al., 2016 ONSC 7964

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JAMES WALLBRIDGE, ALMEDA WALLBRIDGE and WALLBRIDGE, WALLBRIDGE

– and –

FAY BRUNNING and WILLIAMS-LITIGATION LAWYERS

REASONS FOR decision

Rasaiah J.

Released: December 20, 2016