Court File and Parties

COURT FILE NO.: CV-15-65605 DATE: 2017/02/16 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THE CANADIAN COUNCIL OF THE BLIND, LOUISE GILLIS and SANDRA POIRIER, Plaintiffs AND ROBERT BURT, Defendant

BEFORE: Justice Marc R. Labrosse

COUNSEL: David Contant, Counsel, for the Plaintiffs Julia Webster, Counsel, for the Defendant

HEARD: February 2, 2017

Endorsement

[1] The Plaintiffs move for an order striking portions of the Defendant’s Statement of Defence.

[2] The Defendant moves for an order that the Plaintiff’s provide a further and better Affidavit of Documents. The Defendant also seeks to amend its Statement of Defence.

Background

[3] The action arises from a tumultuous end to the Defendant’s role as a member and a director of the Canadian Council of the Blind (“CCB”). The facts are as set out in the parties’ facta and I will focus on those which are of particular importance for the purpose of these motions.

[4] The Plaintiff CCB is a charitable not-for-profit corporation that serves as an advocacy group for blind and visually impaired Canadians. The membership is comprised of blind and sighted individuals.

[5] The Defendant has been a member of CCB since 2003 or 2004 and a director elected to the National Board of Directors of the CCB since 2010.

[6] The Plaintiff Gillis has been a member of the CCB since 1998 and a director of the CCB since 2002. She has been the CCB’s National President since 2010.

[7] The Plaintiff Poirier has been a member of the CCB since 1984. She was a director of the CCB from 2004 to 2010.

[8] On May 27, 2015, a meeting was held by the CCB’s PEI Division to elect a director. It was initially reported that the Defendant had won the election as director but the CCB commenced an investigation into reported irregularities.

[9] On June 15, 2015, the Defendant sent an e-mail to over thirty individuals associated with the CCB in which the Defendant is alleged to have made defamatory statements.

[10] After requesting an apology from the Defendant, the Plaintiffs issued a Statement of Claim on September 2, 2015 claiming damages for the alleged defamatory statements. In his Statement of Defence dated December 11, 2015, the Defendant makes a series of allegations concerning the management and operation of the CCB. He has since made disclosure requests for supporting documentation relating to these allegations raised in the Statement of Defence.

[11] What is significant for the purposes of these motions is the Defendant’s pleadings at paras. 7 to 12 of the Statement of Defence (paras. 7 to 14 of the draft Amended Statement of Defence) together with the Defendant’s request for additional disclosure as set out in Exhibit “F” of the Affidavit of Eden Kaill dated May 30, 2016.

[12] Paras. 7 to 14 of the draft Amended Statement of Defence provide the following:

Background

7. This law suit is the product of a campaign to silence Mr. Burt and other members of the CCB. The Statement of Claim is at best a strategic lawsuit against public participation (a SLAPP suit). It is an attempt to stifle Mr. Burt’s legitimate criticism of the governance practices of the CCB. This action should be dismissed pursuant to section 137.1 of the Courts of Justice Act, R.S.O. 1990, c. C. 43.
8. Mr. Burt has been a dedicated member of the CCB since 2003. In 2010, Mr. Burt wanted to become more involved with the CCB and became a candidate for the Board of Directors. He was elected that same year and has since been a National Director.
9. The basis for Mr. Burt’s complaints against certain Directors of the CCB arises from serious and legitimate concerns he had regarding the CCB’s operations. While serving as a Director, Mr. Burt became aware of serious issues regarding the governance of the CCB. Simply put, it became apparent that the CCB Executive Committee was governing in the best interests of itself and its friends and not CCB members.
10. Mr. Burt, through his directorship, became concerned about the following issues at the CCB: (a) Richard M. Dorris, employed by the CCB as a “legal consultant” to revise the CCB’s by-laws (the “By-laws”), did not appear to have any professional credentials to do so; (b) A number of Board members were not provided information regarding the salary or job description of Jim Prowse, the CCB’s Executive Director; (c) Answers to requests for financial information were delayed and questions about finances were ignored or met with vague and misleading answers. For example, in May 2015, the Board had not received the audited financial statements for 2014 or the proposed budget for 2015; (d) Ms. Gillis has refused to provide the financial details of a CCB sponsored trip to China; (e) New honourary patrons, official supporters of the CCB, have been unilaterally appointed without Board approval; (f) Legally binding agreements have been executed with marketing agencies and Chinese organizations and citizens without consistent Board approval; and (g) A number of trademarks have been registered in the CCB’s name without consistent Board approval.
11. The continued reluctance to provide full financial disclosure, unilateral decision-making and a failure to adhere to the governance process outlined in the By-law and Act seriously limits the Board’s ability to properly govern the CCB. As a concerned Board member, Mr. Burt continued to ask questions and request additional documentation about the above-listed governance issues at the CCB.
12. Mr. Burt’s questioning angered a number of long-standing, entrenched Board members (including Mr. Gillis). In response, these same Board members campaigned to silence Mr. Burt by attempting to remove him from his directorship and therefore the Board. This law suit is a product of this same campaign.
13. The above issues form the background and context within which Mr. Burt’s alleged defamatory remarks were made. The June 15, 2015 email that is the subject of this lawsuit is a product of the CCB’s continued and consistent attempts to silence Mr. Burt from inquiring into the organization’s activities and operations, as he was entitled and required to do as a Director.
14. Mr. Burt’s comments in the June 15, 2015 e-mail were made as a CCB member and CCB Director, who had a history of legitimate concerns over the governance of the CCB.

[13] The key issue is whether paras. 9 to 12 of the Statement of Defence (and now paras. 7 to 14 of the draft Amended Statement of Defence) are properly pleaded as context and narrative to support the defences advanced by the Defendant. If so, then the Defendant may be entitled to seek the documentary evidence which properly relates to those paragraphs as pleaded.

Applicable Law

[14] Rule 26 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) provides that the Court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.

[15] Rule 25.11 of the Rules states that the Court may strike out or expunge all or part of a pleading, with or without leave to amend, on the ground that the pleading is scandalous, frivolous or vexatious.

[16] Rule 30 of the Rules creates an ongoing obligation to a party to provide an Affidavit of Documents which includes every document relating to any matter in issue and this includes documents containing information that may directly or indirectly enable either party to advance its case or the other party’s case: see C.M. Security Components Ltd. v. Canada at paras 13-15.

[17] When considering the law relating to the striking of pleadings, the Plaintiff relies on George v. Harris and Canadian National Railway v. Brant, 2009 ONSC 32911, 2009 CarswellOnt 3720, [2009] 4 C.N.L.R. 47, [2009] O.J. No. 2661 (S.C.J.). The Defendant relies on Bennett Environmental Inc. v. Toronto Star Newspapers Ltd. [Bennett Environmental]; Quizno’s Canada Restaurant Corp. v. Kileel Developments Ltd., 2008 ONCA 644. I have considered this jurisprudence in my analysis.

Analysis

[18] I am of the view that it is of no relevance to this litigation for the Defendant to prove his complaints or allegations against the national office and the Plaintiffs. As such, he is not entitled to the documentation requested in regards to those allegations. The manner in which this organization has been operated by its officers and directors on issues which are not directly related to the May 27, 2015 meeting in PEI are not relevant to the pleadings. I come to this conclusion for the following reasons:

(h) the Defendant states that the pleadings in paras. 7 to 14 in the draft Amended Statement of Defence are properly pleaded as giving context and as part of the narrative leading up to the May 27, 2015 meeting in PEI. However the disclosure requested, which is associated with the issue pleaded in para. 10, seeks to significantly expand the Plaintiff’s productions and step well beyond the scope of the alleged defamatory e-mail of June 15, 2015; (i) with the exception of the last paragraph of the June 15, 2015 e-mail, that e-mail makes no mention of any reproachable action on the part of CCB. Even when considering the last paragraph of the June 15, 2015 e-mail, this paragraph lacks specificity and can lead to different inferences. It is only suggestive of things happening at the national office. It does not refer to the issues raised in para. 10 of the Statement of Defence; (j) there is no counter-claim or other legal proceeding which can make the allegations in para. 10 relevant to the litigation. Those issues are not relevant to the issue of defamation with the exception of setting out the context of the relationship between the Defendant and the Plaintiffs leading up to the May 27, 2015 meeting in PEI; (k) as currently pleaded, the issue of the Defendant’s complaints about the national office are included as a pre-cursor to the events of May 27, 2015. The focus of the alleged defamatory statements do not relate to the actions of the national office which are alleged in para. 10 of the Statement of Defence; (l) the sole purpose of including the reference to the complaints made by the Defendant about the national office is to allow the Defendant to provide evidence of his claim that the national office was acting in a retaliatory manner towards him in challenging his re-election to the PEI Division. It is irrelevant to the Defendant’s defence if the allegations are true. It is only relevant for the Defendant to lead evidence as to why the national office took the steps it did surrounding the May 27, 2015 meeting in PEI; and (m) the Defendant has approached this litigation as a trial about CCB’s operations. His counsel clearly stated during these motions that this was all about “the lack of transparency at the CCB”. I disagree. This litigation is about a claim of defamation and the Defendant’s right to defend himself by way of justification and qualified privilege. The issue of conflict with the national office is part of the narrative leading up to the May 27, 2015 meeting in PEI and to support his allegation of reprisal. The Defendant is trying to turn this into a trial about the CCB and its actions and this is improper.

[19] For the reasons set out above, I conclude that while it is relevant to the Defendant’s allegations of reprisal to plead and be able to lead evidence of his conflicts with the national office, it is not relevant to delve into the specifics of the conflict and the nature of the allegations against the national office.

[20] In addition, the details or veracity of the allegations made by the Defendant shall not be admissible in evidence in these proceedings. I have considered the marginal probative value of this evidence in the context of the subject matter of this litigation. I have weighed it against the prejudicial effect that this evidence could have on the CCB and on the litigation: see Quizno’s Canada Restaurant Corp v. Kileel Developments Ltd. at para 15. While the evidence could end up being embarrassing and scandalous as against the CCB, it will also transform this litigation into a fishing expedition for evidence of the claimed irregularities rather than an assessment of the Plaintiffs’ claims for defamation. It will unnecessarily prolong the litigation and result in a loss of focus on issues which are not relevant to the claim for defamation.

[21] Consequently, those portions of both the Statement of Defence and the draft Amended Statement of Defence which reference the nature of the complaints and allegations against the national office are not relevant to the pleadings. I therefore strike the following portions of the Statement of Defence:

(a) the second sentence of paragraph 9; and, (b) paras. 10 and 11.

[22] With respect to the balance of the draft Amended Statement of Defence, I conclude that the provisions of Rule 26.01 direct the Court to allow the balance of the amendments and I deny the Plaintiff’s request to strike paragraph 12 of the Statement of Defence.

[23] The Plaintiffs have not sought any relief from the amendment Statement of Defence in the form of costs thrown away or an adjournment. They will have leave to amend their Reply if requested. The Plaintiffs will also serve a further and better Affidavit of Document as they acknowledged that other documents had been provided leading up to these motions which did not form part of the original Affidavit of Documents. These documents will served and filed within 30 days of this Endorsement.

[24] The Defendant will be able to lead evidence on the issue of his conflict with the national office prior to the May 27, 2015 meeting in PEI. However, the Defendant will not be able to obtain additional documentation relating to his specific complaints made against the national office. He is entitled to obtain evidence of the complaints he made to the national office and to examine the representative of CCB on the existence of the conflict and how this may have led to the actions of the Plaintiffs leading up to the May 27, 2015 meeting in PEI and then the June 15, 2015 e-mail. This properly allows the Defendant to present the evidence as part of setting the context and providing a narrative to what led to the May 27, 2015 meeting in PEI.

[25] To ensure that the intent of this Endorsement is maintained, I will seize myself of any disputes arising from the discovery process to ensure compliance with Rule 1.04 to ensure that this litigation moves forward in an expeditious and proportionate manner. The parties may contact my office and arrange for a motion on short notice to allow me to rule on any dispute which arises during the discovery process. I will also consider allowing the Defendant to participate to such motion by teleconference or video if requested.

Conclusion

[26] For the reasons stated above, the motions of each party are granted in part. The second sentence of para 9 and paragraphs 10 and 11 of the Statement of Defence are struck. The Defendant has leave to amend his Statement of Defence as set out in the draft Amended Statement of Defence but subject to those paragraphs already struck. The Plaintiff has leave to amend its Reply. The Plaintiff shall provide a further and better Affidavit of Documents. I will remain seized of the disclosure and discovery process to resolve any disputes.

Costs

[27] As the result of these motions has clearly been divided, I am inclined to order that both parties bear their own costs. However, there may have been offers which are in line with the result of this Endorsement. If this is the case and either party wishes to bring offers to my attention, they may do so in writing within 15 days of this Endorsement and the other party shall have 15 days to respond. The maximum length of any such cost submission will be three pages, excluding attachments.

Justice Marc R. Labrosse Date: February 16, 2017