COURT FILE NO.: CV-13-3758-00 DATE: 20170518

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

TRACEY KANAK Plaintiff

• and -

DARRYL RIGGIN Defendant

Counsel: Robert Rastorp and Andrew Rogerson, for the Plaintiff Julian Porter, Q.C. and Matthew Doak, for the Defendant

HEARD: November 21-25, 2016

REASONS FOR JUDGMENT

MCSWEENEY J.

Overview:

[1] Tracey Kanak took issue with her former manager Darryl Riggin about what he said during a job reference. Specifically, she sued him for defamation. The trial lasted five days.

The Position of the Parties

[2] The Plaintiff, Tracey Kanak, alleges that the defendant, Darryl Riggin, made the following statements about her:

a) There was a lot of conflict between Ms. Kanak, her supervisor and other employees;

b) Ms. Kanak did not take directions well;

c) Ms. Kanak is narrowly-focused;

d) Ms. Kanak does not handle stress well; and

e) He [Darryl Riggin] would not re-hire Ms. Kanak.

[3] Ms. Kanak pleads that in making the statements, Mr. Riggin was motivated by malice, spite and a desire to get revenge on her.

[4] Darryl Riggin confirms that he was contacted to provide an oral reference concerning Ms. Kanak. He admits that he said he would not re-hire Ms. Kanak, and further admits the “gist” of the other statements ascribed to him. He states, however, that the statements were made as part of a larger conversation in which he also spoke of Ms. Kanak’s strengths.

[5] Mr. Riggin pleads further that the statements were made in an employment reference, which is an occasion of qualified privilege. As such, they cannot be considered defamatory unless the plaintiff can prove malice. Mr. Riggin denies that he was motivated by malice. He pleads that he spoke in good faith, and that the statements he made accurately reflected his appraisal of Ms. Kanak’s skills as an employee under his supervision.

[6] Ms. Kanak denies that qualified privilege applies, and that even if it does, the privilege does not protect Mr. Riggin’s statements because he was motivated by malice. She states that he harboured a desire for revenge against her based on three events in the workplace in which she had embarrassed him, contradicted him or had shown him to be wrong.

[7] Ms. Kanak pleaded her claim originally in slander and defamation, later amending it to add claims based on the same facts. In the alternative, she pleaded breach of contract and the following torts: intentional interference with contractual or economic relations; infliction of emotional distress; and invasion of privacy.

[8] Mr. Riggin takes the position that the alternative pleadings are not available to the plaintiff because they are based on the same facts as the original claim and are simply “dressed up” pleadings of defamation.

Uncontested Facts

[9] Both the plaintiff and defendant testified at trial. The following facts were either admitted or uncontested:

a. In May 2006, Ms. Kanak was hired at Atomic Energy of Canada Limited (“AECL”) by Mr. Riggin. Ms. Kanak held the position of Senior Cost Control Analyst.

b. She was employed at AECL from 2006 to 2011. During that time she worked hard and received positive performance ratings and merit based salary increases. During that time she was selected for a prestigious assignment to a project in South Korea.

c. While the parties worked together at AECL, Ms. Kanak reported to a supervisor who in turn reported to Mr. Riggin.

d. Ms. Kanak, along with other employees, was laid off in October 2011 when the corporate assets of AECL were sold to SNC Lavalin. Between October 2011 and February 2013 she worked elsewhere and also upgraded her skills.

e. Ms. Kanak received a conditional offer of employment from Bruce Power on February 4, 2013 in response to a job application she had made for the position of Financial Analyst. Ms. Kanak was unemployed at the time of her application.

f. Ms. Kanak accepted Bruce Power’s conditional offer on February 12, 2013.

g. One of the conditions of the offer of employment was positive reference checks.

h. A company called BackCheck performed reference interviews for Bruce Power, as well as general employment and education verifications. Ms. Kanak passed all of the background checks which were conducted by BackCheck. BackCheck concluded its investigation of Ms. Kanak on or about February 21, 2013.

i. One of the references provided by the plaintiff was out of the country and unavailable at the time BackCheck conducted its investigation. Bruce Power subsequently requested an alternative reference from Ms. Kanak, who gave them the name of Robert Keeler.

j. Christa Glazier, an employee in the Human Resources department of Bruce Power, telephoned Robert Keeler directly. Robert Keeler supplied a positive reference for Ms. Kanak. Robert Keeler also told Ms. Glazier that the defendant had more experience supervising Ms. Kanak than he had.

k. On or about March 19, 2013, Christa Glazier telephoned Mr. Riggin for a reference about Ms. Kanak.

l. On March 22, 2013, Bruce Power revoked its conditional offer of employment to Ms. Kanak on the basis that she had “failed to meet the conditions of employment.” Bruce Power subsequently advised that its revocation of the conditional offer of employment was based on the negative employment reference it obtained from Mr. Riggin.

Defamation: the Legal Framework

[10] The legal framework applicable to defamation alleged in the employment context was recently summarized by Miller J. in Papp v. Stokes et al., 2017 ONSC 2357:

65. As indicated in Grant v. Torstar Corp. 2009 SCC 61, [2009] S.C.J. No. 61 at paragraphs 28-30:

28 A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damage are presumed, though this rule has been subject to strong criticism: see, e.g., R. A. Smolla, "Balancing Freedom of Expression and Protection of Reputation Under Canada's Charter of Rights and Freedoms", in D. Schneiderman, ed., Freedom of Expression and the Charter (1991), 272, at p. 282. (The only exception is that slander requires proof of special damages, unless the impugned words were slanderous per se: R. E. Brown, The Law of Defamation in Canada (2nd ed. (loose-leaf)), vol. 3, at pp. 25-2 and 25-3.) The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability.

29 If the plaintiff proves the required elements, the onus then shifts to the defendant to advance a defence in order to escape liability.

30 Both statements of opinion and statements of fact may attract the defence of privilege, depending on the occasion on which they were made. Some "occasions", like Parliamentary and legal proceedings, are absolutely privileged. Others, like reference letters or credit reports, enjoy "qualified" privilege, meaning that the privilege can be defeated by proof that the defendant acted with malice: see Horrocks v. Lowe, [1975] A.C. 135 (H.L.). The defences of absolute and qualified privilege reflect the fact that "common convenience and welfare of society" sometimes requires untrammelled communications: Toogood v. Spyring (1834), 1 C.M. & R. 181, 149 E. R. 1044, at p. 1050, per Parke B. The law acknowledges through recognition of privileged occasions that false and defamatory expression may sometimes contribute to desirable social ends.

66 In Korach v. Moore 1991 ONCA 7367, [1991] O.J. No. 1, the Court of Appeal indicated that where qualified privilege is established, the onus rests on the plaintiff to show malice. [All emphases added]

[11] As described above, in order to make out her defamation claim, Ms. Kanak has the onus of establishing that the statements were made, and that they were defamatory of her. If the statements are found to be defamatory, the onus then shifts to Mr. Riggin to establish a defence. In this case, the only defence pleaded is qualified privilege; the defendant did not plead justification. If qualified privilege applies, the onus shifts back to Ms. Kanak to establish malice which defeats the privilege.

[12] It is therefore necessary to determine the following:

a) What did Mr. Riggin say about Ms. Kanak to Bruce Power?

b) Were Mr. Riggin’s remarks defamatory?

c) Were the remarks made on an occasion of qualified privilege?

d) If the occasion was one of qualified privilege, is the privilege defeated by malice?

e) If no defamation is found, can Ms. Kanak pursue a remedy under the alternate causes of action?

Issue 1: What did Mr. Riggin say to Bruce Power about Ms. Kanak?

[13] It is not disputed that the words pleaded in Ms. Kanak’s claim are taken from notes made by Christa Glazier of Bruce Power, based on her conversation with Mr. Riggin.

[14] No one else took part in that conversation and Ms. Glazier was not called to testify at trial. The only direct evidence of the content of the conversation was the testimony of the defendant.

[15] Mr. Riggin testified as follows: he received a “cold call” from Ms. Glazier asking him for a reference for Tracey Kanak. He knew Ms. Glazier. It was not unusual for him to receive reference requests. For example, he had previously provided “cold call” references where a prospective employer was looking recruit someone with a certain skill set, or where an offer of employment had already been made. Ms. Glazer did not tell him that Bruce Power had made a conditional offer to Ms. Kanak, nor that she was calling specifically about Ms. Kanak’s suitability for a Financial Analyst position.

Alleged Statements Re: Conflict with Others, Taking Direction and Handling Stress

[16] Mr. Riggin confirmed that he made the following comments regarding Ms. Kanak: (1) there was a lot of conflict between Ms. Kanak, her supervisor and other employees; (2) Ms. Kanak did not take directions well; and (3) Ms. Kanak does not handle stress well.

[17] I therefore find that the statements ascribed to Mr. Riggin at subparagraphs 11(a), (b) and (d) of the Statement of Claim are proven.

Allegation that the Plaintiff is Narrowly-Focused

[18] With respect to the allegation that Ms. Kanak is “narrowly-focused,” Mr. Riggin testified that he did not use those words in the reference. In the absence of evidence from Ms. Glazier to the contrary, and given Mr. Riggin’s admissions with respect to the other statements pleaded, I accept his evidence. I find that the statement alleged at subparagraph 11(c) of the statement of claim is not proven.

Allegation that the Defendant Stated He Would Not Hire Plaintiff Again

[19] Mr. Riggin testified that when asked by Ms. Glazier whether he would hire the plaintiff again, he did not say only “no,” as alleged in the claim. Rather, in answering her question, he distinguished between Mr. Kanak’s skills and suitability for a project controls position in a team environment and as an “individual contributor” in a finance role. He told Ms. Glazier that he would not hire the plaintiff in a project controls role, but that he would hire her for a finance role as an individual contributor.

[20] This distinction was also made by Mr. Riggin to Ms. Kanak directly when she called him after she learned she had not gotten the Bruce Power job. The plaintiff testified that Mr. Riggin told her in that conversation that he would not hire her as a project planner, but would hire her in an autonomous financial position, as that is where she would “shine.”

[21] On the evidence before me, I accept that Mr. Riggin told Ms. Glazier that he would not re-hire the plaintiff in a project controls role, but would hire her in a finance role as an individual contributor.

The Words Proven

[22] I find as a fact that Mr. Riggin made the following statements about Ms. Kanak during his conversation with Ms. Glazier:

a) There was a lot of conflict between Ms. Kanak, her supervisor and other employees;

b) Ms. Kanak did not take directions well;

c) Ms. Kanak does not handle stress well; and

d) He [Darryl Riggin] would not re-hire Ms. Kanak in a project controls position, but would hire her in an autonomous financial position.

Issue 2: Were Mr. Riggin’s remarks defamatory?

[23] As described earlier, the test for defamation requires the plaintiff to establish three things:

1. That the impugned words were defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person;

2. That the words in fact referred to the plaintiff; and

3. That the words were published, meaning that they were communicated to at least one person other than the plaintiff.

[24] There is no dispute that (2) and (3) are established: the words were specifically about the plaintiff; and the words were spoken by the defendant to Christa Glazier.

[25] The remaining question is whether the words complained of, in their plain meaning, would tend to lower Ms. Kanak’s reputation in the eyes of a reasonable person. I find that the words spoken would have that effect. Difficulties in getting along with people, in coping with stress, and in taking directions are not positive descriptors of workplace behaviour. Put another way, all are generally considered to be undesirable characteristics in an employee. I therefore conclude that the words spoken by Mr. Riggin were defamatory of the plaintiff.

Issue 3: Were the remarks made on an occasion of qualified privilege?

[26] The defendant pleads that qualified privilege applies because his remarks were made as part of an employment reference. The employment reference has been described as “a classic occasion of qualified privilege”: see Roger D. McConchie & David Potts, Canadian Libel and Slander Actions (Toronto: Irwin Law, 2004), at p. 379.

[27] The social policy underpinning the protection of employment references in this manner is clear: an employer must be able to give a job reference with candour as to the strengths and weaknesses of an employee, without fear of being sued in defamation for doing so. Without this protection, references would either not be given, or would be given with such edited content as to render them at best unhelpful or at worst misleading to a prospective employer.

[28] Ms. Kanak argues that qualified privilege cannot apply because she was not working with Mr. Riggin at the time the reference was given. The plaintiff provided no case law authority on this point.

[29] I do not agree with this submission. If qualified privilege were so fettered in its availability as a defence, individuals with a history of successive employments would only be able to turn to their most recent employer for a candid reference. Further, given that many individuals do not look for new work until they are no longer employed at their previous position, such a finding would in practical terms prevent all but one of an applicant’s previous employers from having the protection of the privilege necessary to give a full and candid reference.

[30] There is no dispute that the comments made by Mr. Riggin were made in the context of a job reference call. I conclude that the statements were made on an occasion of qualified privilege.

Issue 4: Is the qualified privilege defeated by malice?

[31] Malice may be either intrinsic to the words spoken, or established by extrinsic evidence: Korach v. Moore, 1991 ONCA 7367, 76 D.L.R. (4th) 506 at 513, per Houlden J.A., dissenting but not on this point. In this case the defamatory words are not so inflammatory that malice can be inferred from their utterance. The plaintiff seeks to prove through extrinsic evidence that Mr. Riggin was motivated by malice or spite in saying what he did about her.

[32] It is settled law that the protection of qualified privilege is lost if the plaintiff proves that the dominant motive for publishing the defamatory expression is actual or express malice. Actual or express malice includes:

a) Spite or ill will;

b) Any indirect motive or ulterior purpose which conflicts with the occasion;

c) Speaking dishonestly, or in knowing or reckless disregard for the truth.

(Roger D. McConchie & David Potts, Canadian Libel and Slander Actions, supra, pp. 405-406)

[33] In considering the evidence, I note that Ms. Kanak does not allege that Mr. Riggin exhibited malice toward her during the time they worked together. It is common ground that it was Mr. Riggin who hired Ms. Kanak, and that he was her manager over a period of approximately five years with the exception of her posting to the project in South Korea.

[34] With respect to Ms. Kanak’s application for the South Korea project, Mr. Riggin testified that he supported her supervisor’s decision to give a performance rating to Ms. Kanak which was slightly higher than he otherwise felt was accurate. He did so because he did not want to impede her having the opportunity to go to South Korea. Mr. Riggin testified that he liked Ms. Kanak. Ms. Kanak testified that she thought Mr. Riggin liked her.

[35] Several co-workers (“peer witnesses”) called by Ms. Kanak testified with respect to the dynamics in their part of the AECL workplace. Their testimony established that overall the workplace was one in which there were several stressors, in particular relating to the management style of Ms. Kanak’s supervisor, through whom she reported to Mr. Riggin. Ms. Kanak and her peer witnesses gave extensive evidence with regard to the demanding management style of this supervisor and its detrimental impact on staff morale.

[36] The only suggestion of any negative behaviour from Mr. Riggin himself regarding Ms. Kanak came from a peer witness, Wayne Roberts. Mr. Roberts testified that he heard Mr. Riggin refer to Ms. Kanak as “a nut” on one occasion in 2008. Mr. Riggin testified that he did not use that word about Ms. Kanak. Mr. Roberts admitted that he had been released from AECL by Mr. Riggin. Mr. Riggin testified as to the actions of Mr. Roberts which led to the decision to end his employment.

[37] There was clearly a history of conflict between Mr. Roberts and Mr. Riggin. I find that the allegation was not established on a balance of probabilities that Mr. Riggin referred to the plaintiff as “a nut.”

[38] Ms. Kanak asserts that, despite Mr. Riggin and herself getting along seemingly well when they worked together, Mr. Riggin must have “stored up venom to be used at a later date.” Ms. Kanak believes that this venom was expressed in the form of an untrue and malicious job reference.

[39] Specifically, Ms. Kanak sought to establish that there were three occasions over the years she worked at AECL which provided motivation for Mr. Riggin to be vindictive toward her. The following three topics she raised are considered below:

a) Their different views on the “Kronos” timekeeping software;

b) Mr. Riggin referring to female staff as “girls”; and

c) Ms. Kanak’s criticism of Mr. Riggin for giving her supervisor his own office.

The Kronos Software

[40] The Kronos timekeeping software was intended to help AECL track, manage, and forecast project costs, specifically labour costs. The evidence of all witnesses established that the effective implementation of this software required extensive data entry because its functionality was dependant on accurate data input. The parties agreed that at one point, Ms. Kanak was assigned to try to make Kronos work more effectively, and that she did a very good job of doing so.

[41] Despite Ms. Kanak’s and others’ best efforts, upper management ultimately discontinued the use of Kronos as the resources it consumed were out of proportion to the benefit it provided as a cost control tool.

[42] It was Ms. Kanak’s contention that the cancellation of Kronos was perceived by Mr. Riggin as a criticism of him and one for which he held her responsible.

[43] Mr. Riggin’s evidence on this issue was that “Kronos was a huge headache that gave us nothing in return.” He testified that when the decision was made to discontinue its use, “I was glad to be rid of Kronos.” His evidence about Kronos was supported by Mr. Robert Keeler, a witness called by the plaintiff.

[44] I find that the evidence does not establish that the cancellation of Kronos left Mr. Riggin with malicious or spiteful feelings towards Ms. Kanak.

Incident where Female Staff were called “the Girls”

[45] Ms. Kanak testified to an occasion on which she spoke to Mr. Riggin about the terminology he used for addressing two female staff members. She had heard him refer to them as “the girls.”

[46] Both she and Mr. Riggin agree that this conversation took place, and that after she expressed her concern, Mr. Riggin used more respectful terminology to refer to those female staff. Ms. Kanak speculated that her criticism of Mr. Riggin on this occasion could have been the reason for him to begin to harbour spite and vindictiveness towards her.

[47] Testifying on this point, Mr. Riggin offered the explanation that he had been calling the two particular female staff “the girls” because he had known each of them since they were children as he knew their parents: he therefore still saw them as “girls.” Nonetheless, he conceded that Ms. Kanak was appropriate to correct him and that he did correct his language after she spoke to him.

[48] The evidence on this point does not establish that this small workplace incident was other than it appeared. I do not find that Mr. Riggin, as a result of this interaction, developed spite or ill will against the plaintiff.

The Plaintiff’s Criticism of the Defendant for Giving her Supervisor his Own Office

[49] The plaintiff testified that Mr. Riggin may have developed spite or ill will toward her due to an incident in which she raised her voice in front of her colleagues and criticized Mr. Riggin for giving a separate office to her supervisor. She agreed that she communicated loudly words to the effect, “why would any decent manager reward bad behaviour by giving a manager his own office?”

[50] The parties agree that after Ms. Kanak’s outburst, which was overheard by others, Mr. Riggin asked her to come and speak to him in his office. In that meeting he told her that it was inappropriate that she express herself in the workplace in that fashion. The parties differ as to the specific words spoken by Mr. Riggin, but they agree that he was critical of her outburst and that Ms. Kanak apologized to him for it. In her testimony, Ms. Kanak conceded that she was “out of line.” With respect to this occasion, Mr. Riggin expressed understanding for Ms. Kanak’s actions. He testified that from his perspective “Tracey was venting frustration that I gave [the supervisor] an office rewarding his bad behavior as she saw it.”

[51] I accept the plaintiff’s position that the workplace environment was difficult under her particular supervisor. The announcement that the supervisor would be assigned to his own office was difficult for Ms. Kanak and for her colleagues to accept.

[52] Mr. Riggin testified that his decision to move the supervisor to a separate office was in fact part of his response to the complaints he received about the supervisor including complaints from Mr. Kanak.

[53] I find that the evidence does not establish that Ms. Kanak’s “venting frustration” with respect to her supervisor being assigned his own office led or contributed to Mr. Riggin developing a spite or ill-will toward her.

Defendant’s Knowledge of Job Offer from Bruce Power

[54] Ms. Kanak argued that Mr. Riggin knew or should have known about the financial analyst job offer from Bruce Power when he was called for a reference by Ms. Glazier. It was therefore malicious, she argues, for him to criticize her project control skills as that was not relevant to the reference he was being asked for.

[55] Mr. Riggin testified that he did not know that Bruce Power had already offered Ms. Kanak a finance job at the time he spoke with Ms. Glazier. The parties agree that in his conversation with Ms. Kanak after the reference call, Mr. Riggin was “shocked” to learn that the reference had been sought in respect of a finance position which had already been offered to her. I find on the evidence that Mr. Riggin was not told by Ms. Glazier either that a conditional offer of employment had already been made to Ms. Kanak, nor that the position offered was a finance role.

Credibility and Reliability of Defendant

[56] Mr. Riggin’s testimony was careful and clear, and it explained the basis for his assessment of Ms. Kanak. Mr. Riggin has over forty years’ experience in the nuclear power industry. Specifically, he had worked in the area of project controls starting with his first career position in 1974. This long experience in the area informed his opinion of Ms. Kanak that “she needed more project controls experience.” He discussed the basis for this assessment and what he believes to be the core competencies and experience which are required in order for someone to be ready for a project controls role.

[57] In his testimony, Mr. Riggin also explained, with examples, the basis for his view that Ms. Kanak has had difficulty getting along with her supervisor and others in the workplace, and that she did not take directions or handle stress well. As referenced earlier, he testified to the three specific occasions put forward by Ms. Kanak. He also testified as to other observations, interactions and incidents relating to Ms. Kanak, upon which the comments in the job reference were based.

[58] I found Mr. Riggin to be a credible witness on the following bases:

1. he testified in a measured and clear manner;

2. he was subjected to a very provoking cross-examination, during which his assessment of the plaintiff did not vary;

3. he readily admitted several facts which were favourable to Ms. Kanak, including the defamatory words;

4. he was able to explain the basis for his views of Ms. Kanak’s weaknesses, and did so with reference to his experience and observations of her in the workplace;

5. he readily admitted that Ms. Kanak has strengths, and his overall assessment had both positive and negative components.

[59] In giving his reference about Ms. Kanak, I find as fact that Mr. Riggin spoke honestly and described what he believed to be the truth. He was neither dishonest nor reckless in doing so.

[60] My conclusion is consistent with the observations of the plaintiff’s witness Robert Keeler. As Mr. Riggin’s direct supervisor, Mr. Keeler was not aware of Mr. Riggin having any issues with Ms. Kanak and stated he was “perplexed that this case is here.” He described Mr. Riggin as doing a good job on a busy project.

[61] At the end of her testimony, Ms. Kanak stated with regard to Mr. Riggin: “I don’t understand in any way, shape or form that he can feel that way about me.” It was clear that Ms. Kanak was still affected by Mr. Riggin’s view of her and had difficulty accepting it. During her evidence she questioned Mr. Riggin’s competence. At one point, in the context of his assessment of her suitability for a project controls position she questioned “whether he had Alzheimer’s”. There was no basis in the evidence for such speculation regarding Mr. Riggin’s mental health.

[62] The record demonstrated that many of her employment references, to use Mr. Keeler’s phrase, felt that Ms. Kanak was “walking on water.” Mr. Riggin did not. Based on the evidence Ms. Kanak called on her behalf, it appeared to me that she was effectively trying to prove that what Mr. Riggin said about her could not possibly be his view, unless he were motivated by spite or “had Alzheimer’s.”

Conclusion Re: Defamation

[63] I have considered the totality of the evidence adduced at trial. The evidence does not establish malice on the part of the defendant. The plaintiff has therefore failed to defeat the defence of qualified privilege.

Alternative Causes of Action

[64] As referenced earlier, the plaintiff pleads alternative causes of action. The case law establishes that there is no absolute bar to a plaintiff claiming damages for defamation and concurrently, or in the alternative, for other torts. However, a claim for defamation cannot be “dressed up” as another claim in order to evade the defences available in a defamation action: Avalon Rare Metals Inc. v. Hykawy, 2011 ONSC 5569 per L.B. Roberts J. (as he then was):

[15] It is common ground that there is no absolute bar to a plaintiff claiming damages for defamation and concurrently or in the alternative damages for other torts. At the same time, it is also undisputed that a claim for defamation cannot be “dressed up” as another claim to evade the defences available in a defamation action.

[16] In consequence, the questions to be determined on this motion are whether all of the pleaded causes of action are independent for whether they are subsumed under the law of defamation. In other words, do all of the pleaded claims rest on the impugned publications and do all of the damages claimed arise only as a result of those publications?

See also: Carbone et al v. Michael DeGroote et al, 2014 ONSC 6146 citing Avalon with approval at para. 74; Byrne v. Maas, 2007 ONSC 49483 at para. 9; and Trizec Properties Inc. v. Citigroup Global Markets Inc., 2004 ONSC 1548, at paras. 13, 14, and 15.

[65] In this case the plaintiff has conceded that her alternative pleadings are based on precisely the same allegations as the defamation. In this context, I find that the alternative causes of action are not independent. In other words, each of her various claims for damages rests on the same impugned publication. All of the damages Ms. Kanak alleges; including loss of job opportunity, moving costs and psychological harm, arise from the various impacts on her of failing to obtain the Bruce Power job.

[66] Accordingly, I conclude that the alternative claims are not separately actionable by Ms. Kanak. They are subsumed under the law of defamation, and are “dressed up” pleadings of defamation.

[67] For the foregoing reasons, the plaintiff’s action is dismissed in its entirety.

Costs

[68] The defendant is entitled to his costs. If the parties are unable to agree on costs, they may exchange and file written submissions as to costs, not to exceed three pages exclusive of a Bill of Costs and any relevant offers to settle, no later than June 9, 2017.

MCSWEENEY J.

Released: May 18, 2017