Court File and Parties

COURT FILE NO.: CV-16-547427 DATE: 20170421 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MARIA BLAZANIN Plaintiff – and – ZVJEZDANA BAKSAJ PLAZONJA and ZVONIMIR FILIPIC aka “COKO” Defendants

Counsel: Self-represented and acting in person (for the Plaintiff) Mick Hassell, for the Defendants

HEARD: April 20, 2017

Endorsement

DIAMOND J.:

[1] In or around early November 2008, the plaintiff (through her counsel at the time) commenced a legal proceeding against Marko Perkovic and Sandra Perkovic (“the Perkovic action”).

[2] On February 28, 2012 (during the currency of the Perkovic action), the plaintiff’s counsel received witness statements signed by the defendants in this proceeding, Zvjezdana Baksaj Plazonja and Zvonimir Filipic (“the defendants”). There is no dispute that the plaintiff herself received and reviewed those’ witness statements in the Perkovic action by early March 2012.

[3] The trial of the Perkovic action proceeded before Justice Dow on January 11, 2016. Neither Mark nor Sandra Perkovic attended the trial, and the plaintiff obtained judgment against Marko and Sandra Perkovic on an undefended basis.

[4] The Statement of Claim in this action was issued on February 26, 2016. In this action, the plaintiff seeks damages against the defendants for defamation, claiming that the contents of the witness statements provided in the Perkovic action were false and untrue.

[5] The defendants now bring a motion for summary judgment seeking an order dismissing the plaintiff’s action on the basis that she failed to commence this proceeding within the two year period set out in the Limitations Act, 2002, S.O. 2002, c. 24 (“the Act”). In addition and in the alternative, the defendants seek leave to amend their Statement of Defence to add a defence of absolute privilege, and seek summary judgment dismissing the plaintiff’s action on that basis as well.

[6] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the Court shall grant summary judgment if the Court is satisfied that “there is no genuine issue requiring a trial with respect to a claim or defence”. As a result of the amendments to Rule 20 introduced in 2010, the powers of the Court to grant summary judgment have been enhanced to include, inter alia, weighing the evidence, evaluating the credibility of a deponent and drawing any reasonable inference from the evidence.

[7] In Hryniak v. Mauldin, 2014 SCC 7, the Supreme Court of Canada held that on a motion for summary judgment the Court must first determine whether there is a genuine issue requiring a trial based only upon the record before the Court, without using the fact-finding powers set out in the 2010 amendments. The Court must review the factual record and only grant summary judgment if there is sufficient evidence to justly and fairly adjudicate the dispute, and summary judgment would be an affordable, timely and proportionate procedure.

[8] If the Court determines the presence of a genuine issue requiring a trial, the inquiry does not end there as the analysis proceeds to whether a Court can determine if a need for a trial may be avoided by use of the aforesaid fact-finding powers.

[9] The overarching principle is proportionality, and summary judgment ought to be granted unless the added expense and delay of a trial is necessary for a fair and just adjudication of the case. For the reasons which follow, and on the record before me, I am able to find the necessary facts and apply the relevant legal principles to conclude that there are no genuine issues requiring a trial.

[10] Pursuant to section 5(1) of the Act, a claim is discovered on the earlier of the day upon which a person with the claim first knew, or a reasonable person with the abilities and in the circumstances of that person first ought to have known,

(i) that the injury, loss or damage had occurred,

(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,

(iii) that the act or omission was that of a person against whom the claim was made, and

(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

[11] Section 5(2) of the Act and the jurisprudence developed thereunder is clear that a person with a claim shall be presumed to have known of the matters referred to above on the day the act or omission upon which the claim is based took place unless the contrary is proved. This is a presumption that can be rebutted by a plaintiff with necessary evidence.

[12] A plaintiff is not required to possess a comprehensive understanding of his/her potential claim in order for the limitation period to commence. As held by the Court of Appeal for Ontario in Lawless v. Anderson, 2011 ONSC 102, “the question to be posed is whether the prospective plaintiff knows enough facts on which to base an allegation of negligence against the defendant”.

[13] Discoverability is thus a fact-based analysis. The discovery of a claim does not depend upon a plaintiff’s knowledge that his/her claim is likely to succeed, or awareness of the totality of a defendant’s wrongdoing. Knowledge of the material facts, and not the elements of a cause of action, will inform the Court’s assessment of the commencement of a limitation period.

[14] Applying these principles to this case, there is no dispute on the record before me that the Statement of Claim in this action was issued nearly four years after the plaintiff subjectively concluded that the contents of the witness statements were false and defamatory. She gave evidence that this action was not commenced earlier as a result of receiving alleged negligent legal advice on the part of her (then current) counsel. This of course does not rebut the presumption that she knew her “injury loss or damage” occurred in early March 2012.

[15] In her responding material, the plaintiff argues that the limitation period has been tolled and extended into 2016. In support of her argument, she points to a lengthy email exchange between herself and an individual known as Dalma Mare (“Mare”) dated January 25-26, 2016, in which Mare unilaterally identifies herself as someone the plaintiff “knows but was never a friend”. Mare advised the plaintiff, inter alia:

“I thought you should know rumor is that you ripped of (sic) Thompson and then sued him and that he didn’t get notice of the trial and you won because they never showed up. It’s also been said that you stole monies from the Home Foundation and others. Your old email address doesn’t work so I found your work email. Hope that’s ok. I used to get email notification of your events but not anymore.

I don’t want to get in the middle of you and Zvec and don’t want any problems. I just thought that you should know. Zvec talked about you and Thompson. She said you stole money from the Home Foundation so its easy to believe that you also stole money from Thompson. She said a few other uncomplimentary things about you. She said she knows you from your days in Zrinski.

Zvec said it. Others heard it as well. I was surprised because like I said I never heard anything bad about you before. I always heard nice things about you. I used to hear about how the kids in Croatian school loved being in your class. I was also at all your concerts and had a great time. Like I said I thought you should know. Maybe one day I will let you know who I am but for now I just can’t.”

[16] The plaintiff’s argument is somewhat akin to section 13 of the Act which provides that where a person acknowledges liability with respect to a claim for a liquidated sum, the act or omission upon which the claim is based shall be deemed to have taken place from the day on which the acknowledgement was made, but only if the acknowledgment is in writing and signed by the person making it or the person’s agent.

[17] The plaintiff’s argument fails for several reasons:

(a) there is no admissible evidence from Mare by way of affidavit or Rule 39.03 examination (which did not take place). An email from an (effectively) anonymous third party cannot satisfy the plaintiff’s obligation to “lead trump or risk losing” in responding to a motion for summary judgment;

(b) Mare is not “the person or the person’s agent for the purpose of section 13;

(c) in any event, section 13 of the Act applies to claims for payment of a liquidated sum. The plaintiff’s claim is for defamation, which seeks damages at large; and,

(d) even if there was admissible evidence filed on the part of the plaintiff (i.e. an affidavit from Mare), such evidence cannot toll or extend the limitation period.

[18] As held by my colleague Justice Stinson in Bedessee Imports Ltd. v. KM Imports Inc., 2014 ONSC 189:

“While the plaintiffs’ claim in relation to the conversation between Mr. Mohammed and Mr. Herbert sounds in slander, based on the allegedly defamatory words spoken by him on that occasion, Mr. Mohammed’s words were, in effect, republished in Mr. Herbert’s letter. A claim for defamation based on a written communication sounds in libel. The preceding analysis deals with the plaintiffs’ claims for slander; it does not, however address the claim for libel, based on the written republication of Mr. Mohammed’s words in Mr. Herbert’s reporting letter. To succeed in a claim for libel, a plaintiff must prove that the defendant’s words were communicated to a third party, in writing. As well, every republication of a defamatory statement gives rise to a new cause of action. As discussed by Peter A. Downard in his text, Libel, 2nd ed., (Markham: LexisNexis, 2010) at p. 79:

“Each separate publication is a separate and distinct libel. Each publication will be subject to its own limitation period …, where any such period runs from the accrual of the cause of action. When an action based on the initial publication of defamatory matter would be statute barred as a result of the passage of time, a subsequent republication of defamatory matter within the limitation period may allow an action to proceed.”

[19] As every publication of a defamatory statement gives rise to a new cause of action, the plaintiff’s claim for damages as a result of the delivery of the witness statements is a “separate and distinct libel”, and subject to its own limitation period. If the defendants have subsequently made further, alleged defamatory statements about the plaintiff (as alluded to by Mare in her emails), the plaintiff is free to commence a new action seeking damages as a result of those new, alleged statements. However, as the plaintiff was well aware of the material facts to know that her “injury loss or damage” relating to the witness statements occurred in March 2012, the limitation period for her existing cause of action expired by March 2014.

[20] As a result, the defendants’ motion for summary judgment is granted and the plaintiff’s claim is dismissed. As I have dismissed the plaintiff’s claim on the primary grounds raised by the defendants in their motion, the alternative grounds (i.e. leave to amend to plead absolute privilege) have been rendered moot.

Costs

[21] With respect to costs of this motion and action, after the close of pleadings the defendants served an offer to settle proposing that the plaintiff’s claim be dismissed on a without costs basis. That offer was open for acceptance until April 29, 2016, after which the terms were revised to include a dismissal of the plaintiff’s action in exchange for payment of the defendants’ costs in the amount of $5,000.00 all inclusive.

[22] In my view, the defendants’ offer to settle has triggered the costs consequences of Rule 49.10 of the Rules of Civil Procedure, and as such, the defendants are entitled to their costs of this action on a substantial indemnity basis from the date of the offer onward.

[23] I have reviewed the defendants’ Bill of Costs. I am required to consider what is “fair and reasonable” in fixing costs with a view to balance and compensation of the successful party with the goal of fostering access to justice Boucher v. Public Accountants Council (Ontario), 71 O.R. (3d) 291 (C.A.).

[24] I do not find the rates or hours charged by the defendants’ counsel to be excessive. The motion was of mild to average complexity, but the issues were important to the defendants. In my view, and in all the circumstances of the case, I order the plaintiff to pay the defendants their costs of this action (including this motion) in the all-inclusive sum of $9,000.00 and payable forthwith.

Diamond J.

Released: April 21, 2017