Whitfield v. Whitfield, 2017 ONSC 4680
CITATION: Whitfield v. Whitfield, 2017 ONSC 4680
COURT FILE NO.: 139/10
DATE: 20170802
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DR. AGNES JANE WHITFIELD
Plaintiff
– and –
BRYAN WHITFIELD
Defendant
Dr. Agnes Jane Whitfield, In Person,
Matthew R. Gourlay, for the Defendant
HEARD: July 7, 2017
GILMORE J.
Overview
[1] The plaintiff brings a motion for an order to correct an alleged error in the judgment of the trial judge dated May 1, 2014, an order to vary the trial judge’s decision on the ground of fraud and facts arising after the trial decision was released, and an order for a stay of execution of the orders of the Court of Appeal dated July 20 and September 30, 2016.
[2] The plaintiff sought and was granted a bilingual hearing. A bilingual judge, staff and an interpreter were provided as neither the defendant nor his counsel spoke French. The plaintiff’s materials were in English. She alternated between French and English throughout her submissions and was accommodated no matter which official language she chose to speak.
[3] Many of the plaintiff’s submissions centered on the importance of this court recognizing the rights of sexual abuse victims and concerns about how they have been treated by courts across Canada. The suffering of sexual assault victims cannot be underestimated and it is important for all courts to ensure that victims of abuse are treated with respect and dignity. However, it must be pointed out that this motion is not about the treatment of victims of sexual abuse by the judicial system. It is about technical arguments raised by the plaintiff on which the court has been asked to render a decision. Whether the plaintiff was abused by the defendant or not is not a determination that this court has been asked to make nor can it within the legal framework of this motion.
Background Facts
[4] The plaintiff sued her defendant brother in 2002 for sexual abuse which she alleged had been inflicted on her by him decades earlier. The claim was framed on the basis of recovered memories. The defendant counterclaimed for defamation. After a trial which lasted some 24 days, a trial decision was rendered on May 1, 2014, by Justice J. McIsaac. The defendant was ordered to pay the plaintiff damages of $354,200. Costs of $97,000 were ordered to be paid by the defendant on May 28, 2015. Justice McIsaac retired in December 2015. As the trial judge was no longer available, it was agreed that this motion would be heard by me.
[5] The defendant appealed to the Ontario Court of Appeal. The appeal was granted on July 20, 2016. The plaintiff’s claim was dismissed and judgment granted on the defendant’s defamation claim in the amount of $5,000. The plaintiff was ordered to pay costs of the appeal in the amount of $66,683.65 and trial costs of $162,239.25. The plaintiff sought leave to appeal to the Supreme Court of Canada. The leave application was dismissed on February 2, 2017.
[6] The defendant has garnished approximately $10,000 from the plaintiff’s wages to date. The plaintiff is a professor in the Department of English at York University. She is fluently bilingual in French and English. The defendant has been retired for the last 15 years.
Jurisdiction and the Plaintiff’s Arguments.
[7] The defendant submits that this court does not have jurisdiction to decide the motion because there is no judgment to vary or set aside. The Court of Appeal vacated the judgment and dismissed the plaintiff’s claim.
[8] The plaintiff relies on Rule 59.06 (1) of the Rules of Civil Procedure on the basis that the trial judge made an “accidental slip.” Her position is that the trial judge stated that “the plaintiff admits publication of all of the alleged defamatory communications.” This in turn led the Court of Appeal to find that the communications to Ms. Whetung did not qualify for the defence of qualified privilege and damages for defamation were ordered. The plaintiff submits that she did not concede to having published emails to Valerie Whetung and if she had known the judge was going to frame her concession in this way she would have addressed it in her evidence.
[9] The plaintiff takes the position that this was a material and incorrect finding on the part of the trial judge which has resulted in a miscarriage of justice.
[10] The plaintiff relies on Rule 59.06(2) submitting that there was fraud or new facts arising after the judgment was released. This relief is requested because of a finding by the Conseil de Discipline de l’Ordre des Psychologues de Quebec (“the Ordre”). The Ordre is the disciplinary body which regulates the profession of psychologists in the province of Quebec.
[11] Prior to trial, the defence proposed having the plaintiff assessed by Dr. France Slako, a psychologist from Quebec. The plaintiff refused to submit to the assessment. A report was prepared by Dr. Slako without interviewing the plaintiff. The plaintiff made a complaint to the Ordre. Dr. Slako admitted culpability and the disciplinary body made a finding that Dr. Slako, in preparing a report without interviewing the plaintiff, had breached her professional obligations. Dr. Slako did not testify at trial nor was her report filed.
[12] The plaintiff’s position is that the defence deliberately hid from the court the fact that Dr. Slako was facing a disciplinary hearing related to the content of her report at the time of trial. Had the trial judge known this, he would have drawn an adverse inference against the defendant and legitimized the plaintiff’s concerns about the bias of the two defence experts, a finding which would have in turn affected the Court of Appeal’s decision.
Analysis and Ruling
[13] I agree with the defendant that this court does not have jurisdiction to hear the plaintiff’s motions. The Court of Appeal found a reversible error and vacated the trial judgment. The judgment in favour of the defendant remains intact and cannot be varied by this court. However, in the event I am wrong with respect to the issue of jurisdiction, the plaintiff’s motion still fails on the issues of accidental slip and adducing fresh evidence because of fraud, as set out below.
[14] In Mehedi v. 2057161 Ontario Inc. (Job Success), 2014 ONCA 604, the Ontario Court of Appeal deals with re-opening a trial on the basis of fraud. The plaintiff relies on this case for the proposition that such motions must be heard by the trial judge. This argument fails in two aspects. First, there is no fraud, as I will outline below and, second, the Mehedi case deals with an unsuccessful party and judgment against that party which was upheld on appeal. In that case it was held that the case could be re-opened and remitted back to the trial judge with fresh evidence despite the appeal having already taken place. This was because there was fresh evidence of fraud which may have affected the trial judge’s decision.
[15] This case differs from Mehedi in that the plaintiff at bar was successful at trial. The Court of Appeal found a reversible error as opposed to simply upholding the decision as it did in Mehedi.
[16] With respect to Dr. Slako, this argument has no foundation for the following reasons:
(a) Dr. Slako did not testify at trial.
(b) Dr. Slako’s report was not filed at trial.
(c) The results of the disciplinary proceedings and the decision of the Ordre were not available until August 17, 2016, well after both the trial and appeal took place. In any event, even if the results were available at the time of trial or the appeal, I do not accept that they would have had any bearing on the result given that Dr. Slako was not a witness at trial.
(d) The plaintiff’s submission that the defendant deliberately hid information related to Dr. Slako from the plaintiff is rejected. The plaintiff admitted that even with her status as the complainant in the disciplinary matter, she had no access to the file until the decision was published in August 2016. It is difficult, then, to suggest that the defendant somehow had access to this information and hid it from the plaintiff and the trial judge.
(e) The plaintiff suggests that if the trial judge had known about Dr. Slako’s disciplinary matter, he would have drawn an adverse inference against the defendant. Instead, he chose to draw no inference from the fact that the defence did not produce an expert to contradict the findings of the plaintiff’s expert, Dr. Maddox. I reject this argument by the plaintiff. It conveniently leaves out the salient facts that Dr. Slako was not a witness, no one had any real information about the status of the disciplinary matter, and that the court adverted to the fact that the plaintiff frustrated the defendant’s efforts to have her independently assessed.
(f) The Court of Appeal’s decision was centred on the trial judge’s wrong reliance on the evidence of Dr. Maddox and therefore, issues related to Dr. Slako are irrelevant and at best, corollary.
[17] Therefore, I find that the plaintiff’s request to re-open the trial judgment on the basis of fresh evidence or fraud would be dismissed even without the jurisdiction issue as outlined above.
[18] Turning to the plaintiff’s argument regarding re-opening the trial judgment based on an accidental slip, this motion must also be dismissed. The reasons are as follows:
(a) The argument relating to the plaintiff not copying Ms. Whetung on certain emails was raised for the first time on this motion.
(b) The trial judge’s finding was a general one relating to an admission to writing and communicating defamatory emails. The judge does not particularize the recipients of the emails.
(c) The plaintiff’s position that somehow this is all the fault of the defendant because the plaintiff was not challenged about the issue of Ms. Whetung in cross-examination, is both groundless and petty.
The Stay
[19] If I am wrong on the jurisdiction issue and have incorrectly dismissed the plaintiff’s motions, there remains the issue of whether a stay of the Court of Appeal’s orders dated July 20, 2016, and September 20, 2016.
[20] While I agree with the plaintiff that the threshold for granting a stay is a low one, as per RJR-MacDonald v. Canada (Attorney General), [1994] 1 S.C.R., it still requires that the court make a preliminary assessment of the merits of the case. The test for a stay fails on this first ground.
[21] I find that the merits of the plaintiff’s case are front and centre as the question here. The jurisdiction of this court to re-open a trial judgment after appeal does not exist except in certain narrow circumstances which do not exist here. Further, the disciplinary history of a psychologist who was not a witness at trial cannot be relevant to any argument related to fraud or fresh evidence. Finally, it is now too late to parse the effect of whether copying Ms. Whetung on the bottom of emails as opposed to including her on the recipient line would affect the finding of the trial judge or the Court of Appeal with respect to the defence of qualified privilege.
Order
[22] The plaintiff’s motions are dismissed.
[23] The parties may provide written submissions on costs of no more than two pages in length, excluding any Offers to Settle or Bill of Costs. The submissions are due seven days from the release of this decision on a seven day turnaround starting with the defendant. If no submissions are received within 35 days of the date of this decision, the issue of costs shall be deemed to be settled. Costs submissions may be provided electronically to my assistant at therese.navrotski@ontario.ca
Gilmore J.
Released: August 2, 2017
CITATION: Whitfield v. Whitfield, 2017 ONSC 4680
COURT FILE NO.: 139/10
DATE: 20170802
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
DR. AGNES JANE WHITFIELD
Plaintiff
– and –
BRYAN WHITFIELD
Defendant
REASONS FOR JUDGMENT
Gilmore J.
Released: August 2, 2017