2017 ONSC 34
COURT FILE NO.: 16-69526
DATE: 2017/01/05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Miranda Dyck
Plaintiff
– and –
The Canadian Association of Professional Employees, Pierre Lebel, André Picotte, Employees’ Staff Union and Yves Rochon
Defendants
Jonathan P.M. Collings, for the Plaintiff
Peter Engelmann and Colleen Bauman, for the Defendants Canadian Association of Professional Employees, Pierre Lebel and André Picotte
HEARD: November 29, 2016
REASONS FOR Decision
R. Smith J.
[1] The defendant, André Picotte (“Picotte”), has brought a motion under Rule 21.01(1)(b) to strike the plaintiff’s Statement of Claim as against him on the ground that it discloses no cause of action.
[2] On July 12, 2016, Pierre Lebel (“Lebel”) send an email to Picotte and others complaining to them about the plaintiff allegedly following his daughter on Twitter. Lebel asked Picotte, the vice-president of the union CAPE, to send an email to the plaintiff to ask her to stop following his daughter on Twitter and to stop going after his family.
[3] Picotte sent a reply email only to Lebel at 12:02 a.m. saying “ok” and then shortly thereafter replied again only to Lebel asking him to send him the plaintiff’s email address and to provide him with proof that the plaintiff was actually following his (Lebel’s) daughter on Twitter.
Analysis
[4] No evidence is admissible on a Rule 21.01(1)(b) motion, but a judge may consider any document incorporated by reference in the pleading that forms an integral part of the factual matrix (see McCreight v. Canada, 2013 ONCA 483. In this case, the email exchange is admissible as it is included in the Statement of Claim.
[5] In Carey Canada Inc. v. Hunt, 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, the Court set out the test to be applied and held that assuming the facts as stated in the Statement of Claim can be proved, is it “plain and obvious” that the claim discloses no reasonable cause of action.
Issue #1 – Did Picotte republish the allegedly defamatory material by replying only to the sender of the email?
[6] In Aristocrat Restaurant Ltd. v. Ontario [2003] O.J. No. 5331, the Court held that material facts must be pleaded to support all of the essential elements of a recognized cause of action. In Guergis v. Novak, 2013 ONCA 449, 116 O.R. (3d) 280, the Court held that one of the essential elements of a defamation action is that the plaintiff must prove that the words were communicated or published.
[7] In his book called the Law of Defamation in Canada, the author, Raymond E. Brown, stated that publication is a “term of art that requires communication of defamatory matter to a third person”. Publication also includes “republication”, where the words originally published were communicated to someone else.
[8] The cases of Eglantine Inn Ltd. v. Smith, [1948] N.I. 28 (K.B.) and Allen v. American Indemnity Company, 12 S.E.2d 127 (Ga. Ct. App. 1940) and the author Raymond Brown state that if the defamatory information is sent back, only to the person who supplied the allegedly defamatory information in the first instance, such as in replying to an email, this does not constitute publication or republication for purposes of a defamation action.
[9] Paragraph 9 of the plaintiff’s Statement of Claim alleges that Picotte republished the initial email to at least Lebel. According to the above caselaw, by replying only to Lebel’s email, Picotte did not republish or publish Lebel’s initial email.
[10] During the motion, the plaintiff agreed with Picotte that simply replying by email, only to the sender of an allegedly defamatory email, does not constitute publishing or republishing to a third party. I agree.
Disposition of Issue #1
[11] If Picotte replied only to Lebel, who sent him the allegedly defamatory e-mail, then this does not constitute publishing or republishing of the material. As a result, there are no material facts pleaded that would support a finding that replying only to Lebel’s email constitutes publishing of defamatory material.
Issue #2 – Does pleading that it is unknown whether the allegedly defamatory e-mail was published further constitute material facts to establish that republishing occurred?
[12] The Ontario Court of Appeal in Lysko v. Braley, (2006) 2006 CanLII 11846 (ON CA), O.J. No. 1137 held that pleadings in an action for defamation are of particular importance and require that a concise statement of facts be pleaded.
[13] The plaintiff’s pleading states that “It is unknown whether the Lebel emails have been republished further “This is not a pleading specifically against Picotte but I will assume it includes Picotte.” In submissions, the plaintiff stated that she is in fact pleading that when Picotte replied to Lebel’s e-mail, he sent “blind copies” (Bcc copies) to other individuals and she is unaware of who those persons may be. Unfortunately, the plaintiff has not pleaded any material facts to support her bald allegation, which is that Picotte sent blind copies to other persons when he replied to Lebel.
[14] The reality is that the plaintiff is unaware and has not discovered any material facts to support her allegation that Picotte republished Lebel’s email by sending blind copies to other persons. This allegation is pure speculation by the plaintiff as she has not pleaded any material facts to support this allegation.
[15] In Guergis, at para. 52, the Court of Appeal held that the right to plead that a defamatory statement was made to certain unnamed persons was restricted. In order for such a pleading to stand, a plaintiff need only make out a prima facie case that the statement was made to a named person and produce uncontradicted evidence of publication to a named person. The plaintiff in this case has not made out a prima facie case that Picotte published a defamatory statement to a named person. His reply to Lebel did not constitute publication or republication and no material facts are pleaded to support the bald allegation that Picotte published or republished Lebel’s email to any third person.
Disposition of Issue #2 and the Motion
[16] For the above reasons, the claim against Picotte is struck without leave to amend. André Picotte’s name shall be removed from the style of cause, from paragraph 6, the first part of paragraph 19 and in paragraph 46.
Costs
[17] Picotte seeks an award of costs inclusive of disbursements of $16,925.03. In the Plaintiff’s costs outline, she seeks costs of $4,416.80 on a partial indemnity basis.
[18] Considering the factors set out in Rule 57, including that the defendant was successful on the motion, the matter was of average complexity and the reasonable expectations of the unsuccessful party as well as the offers to settle of the defendant to consent to the motion without costs, the plaintiff is ordered to pay costs of $7,500 inclusive of disbursements and HST.
Justice Robert Smith
Released: January 5, 2017
2017 ONSC 34
COURT FILE NO.: 16-69526
DATE: 2017/01/05
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Miranda Dyck
Plaintiff
– and –
The Canadian Association of Professional Employees, Pierre Lebel, André Picotte, Employees’ Staff Union and Yves Rochon
Defendants
REASONS FOR JUDGMENT
R. Smith J.
Released: January 5, 2017