CITATION: Greening v. Canadian Nuclear Safety Commission et al., 2017 ONSC 6746
COURT FILE NO.: 16-56872
DATE: 2017-11-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
FRANK GREENING
Marc A. Munro, for the Plaintiff
Plaintiff
Responding Party
- and -
CANADIAN NUCLEAR SAFETY COMMISSION, ATTORNEY GENERAL OF CANADA and RAMZI JAMMAL
Richard G. Dearden, for the Defendants, Moving Party, Canadian Nuclear Safety Commission and Ramzi Jammal
Defendants
Moving Party
HEARD: Nov. 1, 2 and 3, 2017
REASONS FOR DECISION
P. R. SWEENY J.
Introduction
[1] This is a motion for summary judgment brought by the defendant Ramzi Jammal for an order dismissing the action as against him personally. He raises two issues:
He is accorded statutory immunity pursuant to s. 18(1) of the Nuclear Safety Control Act which prohibits civil proceedings against a person acting on behalf of the Canadian Nuclear Safety Commission (“CNSC”); and
He acted as an employee and officer of the CNSC and so is not personally liable.
[2] The plaintiff says that these issues should not be decided on a motion for summary judgment. He submits that there are genuine issues requiring a trial and that I will not be able to reach a fair and just determination of the issues on a motion for summary judgment.
Overview
[3] The plaintiff, Frank Greening, has a PhD in Chemistry from McMaster University. He worked for Ontario Hydro (currently known as Ontario Power Generation) in the position of senior research scientist. From 2010 to 2014, he worked at Bruce Power as a radiochemistry consultant. The defendant, Ramzi Jammal (“Jammal”), is the Executive Vice-President and Chief Regulatory Operations Officer of the CNSC. He has been employed in that position since 2007. The CNSC was established in 2000 under the Nuclear Safety and Control Act, SC 1997, c. 9 (NSCA) and reports to Parliament through the Minister of Natural Resources. The CNSC’s objectives are, inter alia, “to disseminate objective scientific, technical and regulatory information concerning its activities and the effects on the environment and the health and safety of persons with respect to the matters it regulates.”
[4] On January 6, 2014, the plaintiff provided the President and CEO of the CNSC with a copy of a letter he wrote to Ken Nash, president and CEO of the Nuclear Waste Management Organization. This letter raised concerns about the accuracy of nuclear waste inventory data in that it was based on calculated values rather than actual direct measurements.
[5] On February 17, 2014, the plaintiff wrote to the President and CEO of CNSC, enclosing a copy of a paper he had written entitled, “A Critique of the RADICON Study”. The RADICON study was an ecological study on populations living near Ontario’s three nuclear power plants. In his critique, the plaintiff challenged a number of the claims and assumptions that formed the technical basis of the RADICON study.
[6] On March 3, 2014, Jammal wrote to the plaintiff in response to his letter of January 4, 2014. In that letter, he advised that “despite uncertainty in the waste inventory calculations there was an adequate safety margin within the plans for the proposed Deep Geologic Repository to conclude that the design would protect both people and the environment despite any uncertainty in waste management data.”
[7] On March 4, 2014, the plaintiff responded to the correspondence of Jammal questioning how the CNSC could have no safety concerns.
[8] On April 2, 2014, Jammal wrote to the plaintiff. The letter is alleged to have defamatory words contained in it. In addition, the letter enclosed a critique of the plaintiff’s critique of the RADICON Study. The plaintiff alleges that the critique contains defamatory words written about the plaintiff.
[9] Contemporaneously with the delivery of the April 2nd letter and critique to the plaintiff, the April 2nd letter and critique, together with the correspondence of March 3 and March 4, 2014, were published on the CNSC website. In addition, the material published on the website was sent by email to some 2,000 email addresses.
[10] On April 4, 2014, the plaintiff discovered the website publication and emailed the CNSC demanding that the correspondence be removed from the website. He was particularly concerned about the fact that personal contact information was included in the posting.
[11] The CNSC responding by redacting the personal contact information but did not remove the defamatory letter from its website. The plaintiff complained to the Office of the Privacy Commissioner of Canada. The Privacy Commissioner conducted an investigation. The Privacy Commissioner determined that the ongoing publication violated the Personal Information Protection Electronic Document Act, S.C. 2000, c. 5. The Privacy Commissioner recommended that the letter be removed from the website immediately. The CNSC removed the posting on September 3, 2015.
[12] On March 31, 2016, the plaintiff issued the action against the CNSC, the Attorney General of Canada and Jammal. The claim seeks general damages for defamation, breach of confidence, breach of privacy, special damages and punitive damages in the amount of $250,000. In addition, the claim seeks a mandatory order removing material posted or caused to be posted and prohibiting the defendants CNSC and Ramzi Jammal from publishing anything about the plaintiff.
[13] In the statement of defence, the defendants specifically plead that Jammal did not act in his personal capacity and the pleadings assert, based upon s. 18 of the NSCA, that Jammal has immunity for civil liability. The defendants also assert that the words complained of are not defamatory, that they were made on a privileged occasion without malice, and that the communications were protected by a defence of responsible communication on matters of public interest. The defendants assert that the words complained of in the statement of claim are opinion and constitute fair comment, and were made in good faith and without malice on a matter of public interest and public concern. In addition, the defendants plead that “the words complained of are not inherently malicious and are proportionate to the occasion in which they were published.” On the issue of breach of confidentiality, the defendants assert that the communications between CNSC and the plaintiff were non-confidential. They deny they breached the plaintiff’s privacy by posting views about the plaintiff’s personal character and professional competence.
Issue
Should partial summary judgment be granted dismissing this claim against the defendant Ramzi Jammal personally?
[14] In Butera v. Chown, Cairns LLP, 2017 ONCA 783, the Court of Appeal dealt with the issue of the granting of partial summary judgment. The court reviewed the Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 and addressed the issue of partial summary judgment as follows:
[25] Hryniak does not address partial summary judgment per se except in the context of exercising the enhanced fact-finding powers contained in r. 20.04(2.1). In that regard, Karakatsanis J. observed that it may not be in the interests of justice to use the new fact-finding powers to grant summary judgment against a single defendant if the claims against other parties will proceed to trial in any event. Such partial summary judgment runs the risk of duplicative proceedings or inconsistent facts. On the other hand, Karakatsanis J. noted that the “resolution of an important claim against a key party could significantly advance access to justice and be the most proportionate, timely and cost effective approach.”
[26] The pre-Hryniak appellate jurisprudence on partial summary judgment limited its availability. At para. 3 of Corchis v. KPMG Peat Marwick Thorne, 2002 41811 (ON CA), [2002] O.J. No. 1437 (C.A.), this court applied Gold Chance International Ltd. v. Daigle& Hancock, [2001] O.J. No. 1032 (S.C.J.) to state that:
[P]artial summary judgment ought only to be granted in the clearest of cases where the issue on which judgment is sought is clearly severable from the balance of the case. If this principle is not followed, there is a very real possibility of a trial result that is inconsistent with the result of the summary judgment motion on essentially the same claim.
[27] Since Hryniak, this court has considered partial summary judgment in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438 and in Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922, 133 O.R. (3d) 561. Baywood was decided in the context of a motion for summary judgment on all claims, but where only partial summary judgment was granted. CIBC involved a motion for partial summary judgment.
[28] In both Baywood and CIBC, the court analyzed the issue from the perspective of whether (i) there was a risk of duplicative or inconsistent findings at trial and whether (ii) granting partial summary judgment was advisable in the context of the litigation as a whole. In both cases, the court held that partial summary judgment was inadvisable in the circumstances.
[29] The caution expressed pre-Hryniak in Corchis is equally applicable in the post-Hryniak world. In addition to the danger of duplicative or inconsistent findings considered in Baywood and CIBC, partial summary judgment raises further problems that are anathema to the stated objectives underlying Hryniak.
[30] First, such motions cause the resolution of the main action to be delayed. Typically, an action does not progress in the face of a motion for partial summary judgment. A delay tactic, dressed as a request for partial summary judgment, may be used, albeit improperly, to cause an opposing party to expend time and legal fees on a motion that will not finally determine the action and, at best, will only resolve one element of the action. At worst, the result is only increased fees and delay. There is also always the possibility of an appeal.
[31] Second, a motion for partial summary judgment may by very expensive. The provision for a presumptive cost award for an unsuccessful summary judgment motion that existed under the former summary judgment rule has been repealed, thereby removing a disincentive for bringing partial summary judgment motions.
[32] Third, judges, who already face a significant responsibility addressing the increase in summary judgment motions that have flowed since Hryniak, are required to spend time hearing partial summary judgment motions and writing comprehensive reasons on an issue that does not dispose of the action.
[33] Fourth, the record available at the hearing of a partial summary judgment motion will likely not be as expansive as the record at trial therefore increasing the danger of inconsistent findings.
[34] When bringing a motion for partial summary judgment, the moving party should consider these factors in assessing whether the motion is advisable in the context of the litigation as a whole. A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner. Such an approach is consistent with the objectives described by the Supreme Court in Hryniak and with the direction that the Rules be liberally construed to secure the just, most expeditious, and least expensive determination of every civil proceeding on its merits.
[35] Lastly, I would observe the obvious, namely, that a motion for partial summary judgment differs from a motion for summary judgment. If the latter is granted, subject to appeals, it results in the disposal of the entire action. In addition, to the extent the motion judge considers it advisable, if the motion for summary judgment is not granted but is successful in part, partial summary judgment may be ordered in that context.
[15] The question then becomes whether there are issues that may be readily bifurcated from those in the main action and may be dealt with expeditiously and in a cost-effective manner. The defendant Jammal asserts that they can be. He argues that the statutory immunity provided in s. 18(1) of the Nuclear Safety and Control Act and the law with respect to the personal liability of employees and officers, combined with the facts of this case, make it possible for me to grant summary judgment. I disagree and for the reasons that follow, the motion is dismissed.
[16] I shall briefly address each of the issues raised by the defendant.
Statutory Immunity – s. 18(1) of the Nuclear Safety Control Act
[17] The provision relied on by Jammal reads as follows:
18(1) No civil proceedings may be brought against any member or other person of authority acting on behalf or under the direction of the Commission for anything done, reported or said in good faith in the course of the exercise or performance or purported exercise or performance of any power, duty or function of the Commission under this Act or for any alleged neglect or default in the execution in good faith of any such power, duty or function.
[18] The defendants assert that there are three elements to the provision, which are:
Was Jammal acting under the authority or acting on behalf or under the direction of the Commission;
for anything done, reported or said in good faith; and
was it in the course of the exercise or performance or purported exercise of performance of any power, duty or function of the Commission under this Act?
[19] The defendant Jammal states that those three criteria can be easily met based on the evidence. Clearly, Jammal was communicating to the plaintiff on behalf of or under the direction of the Commission. He submits that his communication was for the purposes of dealing with the dissemination of objective scientific information under s. 9(b) of the NSCA. In addition, he states he was acting in good faith; that is, there is no evidence of bad faith.
[20] It appears to me that the significant issue is whether or not Jammal was acting in good faith. The plaintiff alleges that the communication contained defamatory words. As the Supreme Court of Canada noted in Prud’homme v. Prud’homme, 2002 SCC 85, [2002] 4 S.C.R. 633 at para. 57:
In the common law, malice is presumed once the plaintiff establishes that the defendant spoke the offensive words about him or her. The defendant may try to rebut that presumption by citing qualified privilege. If the defendant succeeds in establishing that the criteria for that defence have been met, the presumption of malice will fall and give way to a presumption of good faith. The plaintiff must then establish that the defendant acted in bad faith or had malicious intent.
[21] In McDonald v. Freedman, 2013 ONSC 6812, the Divisional Court noted at para. 27:
Accordingly, to defeat the presumption of good faith that arises if the occasion of publication was one of qualified privilege, a plaintiff must prove malice on the part of the defendant. In this context, "malice" means: (a) a lack of an honest belief in the truth of the libelous statements; or (b) a use of the privileged occasion for an improper purpose.
[22] In my view, the issue of whether or not the defendant Jammal acted in good faith is tied up with the determination of malice. In order to be successful in this claim against the Commission, based on the defences raised by the defendants, the issue of malice must be addressed at the trial. A jury notice has been served in this case. Accordingly, the jury will have to make the necessary findings of fact, which will include the issue of malice.
[23] Based on the evidence disclosed, I am not satisfied that it is in the interests of justice to make any determination on the issue of good faith. I am not satisfied that I can make a just determination based on the evidence before me. Accordingly, I am satisfied it is not appropriate to determine this issue on a motion for summary judgment.
Jammal is Not Personally Liable
[24] Jammal asserts that the correct analysis on this issue is set out by the Court of Appeal in Lobo v. Carleton University, 2012 ONCA 498 and in particular, paras. 6 and 7 where the court wrote:
[6] …This court’s decision in Montreal Trust Co. of Canada v. Scotia McLeod Inc. … 481 (Ont. C.A.) set out the criteria that need to be met to establish personal liability. These are:
(1) the actions of the employees are themselves tortious; or
(2) the actions of the employees exhibit a separate identity or interest from that of the corporation or employer so as to make the act or conduct complained of their own.
As to the first basis, it is conceded that there is no plea in the fresh as amended statement of claim for fraud, deceit, dishonesty or want of authority on the part of the individual respondents.
[7] With respect to the second branch of the Scotia McLeod case, we agree with the motion judge, at para. 35, that “the amended pleading […] does little more than “window dress” the suggestion of a separate identity or interest of the named Defendants from that of [Carleton University]” and, at para. 32, that “the allegations made against each in pith and substance relate to decisions made within their ostensible authority as [Carleton University] employees.”
[25] Based on this test, Jammal asserts that there is no fraud, deceit, dishonesty or want of authority in this case. Accordingly, he argues that the first branch is not met and his actions do not exhibit separate identity or interest from the corporation so as to make the conduct his own.
[26] The defendants cite Gyamfuaa v. LeBlanc, 2016 ONSC 5868 where Faieta J. held that, “A finding of fraud, deceit, dishonesty or want of authority is typically required to attract personal liability” (at para. 9).
[27] The plaintiff points out that there is an allegation of defamation. Defamation is an intentional tort. It would prima facie appear to bring the plaintiff within the exception of the tortious act of the defendant on the first branch of the test. I note that in Gyamfuaa, Faieta J. addressed issues of allegations of defamation. He noted that the defamation, that is the words of the plaintiff, were not specifically pleaded. However, he allowed the claim to be amended with respect to the defamation claims. In my view, there is a significant issue as to whether an employee who defames a person can escape personal liability.
[28] I am not satisfied that it is appropriate to determine this issue on the basis of the record before me and on a motion for summary judgment.
[29] Jammal also asserts that he has no personal liability for the torts of breach of confidence and breach of privacy. In my view, all these issues are best determined in the context of a full trial on a full evidentiary record with the trier of fact able to make determinations on all the issues. I am satisfied that viva voce evidence would assist the trier of fact in making these determinations.
[30] In summary, I am satisfied that there is a genuine issue requiring a trial and that I cannot reach a fair and just determination of the issues on this motion for summary judgment. In this case, granting partial summary judgment would not lead to any judicial economy. Mr. Jammal must give evidence at the trial. He will be cross-examined. There may be other witnesses giving evidence with respect to the circumstances surrounding the publication on the website. It is in the interests of justice that this matter proceed to trial and that all the issues including the personal liability of Jammal be determined at a trial. In the result, the motion for summary judgment is dismissed.
[31] In my view, there is no need to exercise any of the powers set out in Rule 20.05 of the Rules of Civil Procedure with respect to the trial. In addition, it is not an appropriate case that I should seize myself of the matter as a trial judge. This is a jury trial. The defendant has been examined for discovery. The plaintiff is still to be examined by the defendant. The plaintiff’s motion for a further and better affidavit of documents has been adjourned sine die, returnable on seven days’ notice.
[32] If the parties are unable to agree on costs, I will accept written submissions addressed to me at my chambers in Hamilton (limited to 5 pages, double-spaced) together with an appropriate bill of costs and supporting dockets from the plaintiff within 14 days. The defendants shall have 14 days to reply. The submissions should also address the costs incurred with respect to the motion to extend the time to file responding material. If submissions are not received by December 30, 2017, the issue of costs will be deemed settled.
Sweeny J.
Released: November 20, 2017
CITATION: Greening v. Canadian Nuclear Safety Commission et al., 2017 ONSC 6746
COURT FILE NO.: 16-56872
DATE: 2017-11-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
FRANK GREENING
Plaintiff
- and -
CANADIAN NUCLEAR SAFETY COMMISSION, ATTORNEY GENERAL OF CANADA and RAMZI JAMMAL
Defendants
Moving Party
REASONS FOR DECISION
PRS:mw
Released: November 20, 2017