CITATION: Royal Crown Academic School Inc. v. Wu, 2017 ONSC 7295
COURT FILE NO.: CV-16-555180
DATE: 20171212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROYAL CROWN ACADEMIC SCHOOL INC.
Plaintiff (Responding Party)
– and –
YOU WU, MINOR BY LITIGATION GUARDIAN TAO XU, JIARUI ZOU, MINOR BY LITIGATION GUARDIAN SHI ZHANG, and JING JULIA ZHU C.O.B. ICONIC LEGAL SERVICES
Defendants (Moving Party)
Chi-Kun Shi, for the Plaintiff (Moving Party)
Peter Downard and Rachel Laurion, for the Defendants (Moving Party)
HEARD: November 30, 2017
Reasons for Decision
Dietrich, J.
Introduction
[1] In this motion for summary judgment under Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the defendants seek to dismiss the action brought against them. The action brought by the plaintiff, Royal Crown Academic School Inc. (the “School”), is focused on defamation and libel.
[2] The School is established under the Education Act, R.S.O., 1990 c. E.2 and offers educational services in North York, Ontario, to international students.
[3] The defendant You Wu (“Wu”) was a student at the School attending the grade 12 regular class. Wu is a minor and is represented in this litigation by his mother Tao Xu, as litigation guardian.
[4] The defendant Jiarui Zou (“Zou”) was a student at the School attending the grade 10 class. Zou is also a minor and is represented in this litigation by her mother Shi Zhang, as litigation guardian. Both litigation guardians are residents of The People’s Republic of China.
[5] The defendant Jing Julie Zhu (“Zhu”) is a paralegal in good standing with the Law Society of Upper Canada and carries on practice under the name of Iconic Legal Services. At all material times, Zhu acted as the legal representative of each of Wu and Zou, through their respective litigation guardians.
[6] Each of the litigation guardians retained Zhu to bring an action against the School in the Toronto Small Claims Court on behalf of Wu and Zou, respectively. The claims were to be brought on the basis that substantial fees had been paid by the respective families of each of Wu and Zou in reliance upon the School’s brochure used in China to promote the school’s services (the “Brochure”).
[7] Each claimant’s case was that the Brochure guaranteed enrolment of the School’s students in named Ontario universities, including York University, and that after paying fees to the School, the claimants discovered that the School had no relationship with these universities. The claimants terminated their enrollment at the School and sought refunds of the fees paid to the School, which the School refused.
[8] Acting on the instructions of her clients, on November 11, 2015, Zhu sent an email to the Office of the President of York University (the “Email”), by which Zhu sought information relevant to her clients’ claims. The Email, as submitted, reads as follows:
“To Whom It May Concern.
I am the legal representative of an international student who was enrolled in Royal Crown Academic School’s Straight-to-York Universities Class.
My client was attracted by Royal Crown Academic School’s brochure, which states that Royal Crown Academic School provides Straight-to-York University Program.
Furthermore, Royal Crown Academic School promises that students who sign Royal Crown Straight-to-York University Class Cultivation Agreement can enroll in the York University.
My client is keen to enroll in the York University, and applied the above noted program without hesitation.
However, when my client commenced the studies in Royal Crown Academic School, my client found that the program was not same as the school stated.
By my client’s instruction, I am writing to confirm with you weather there is any Straight-to-York University Courses Agreement between York University and Royal Crown Academic School.
Thanks for your time and attention on this matter.
If you have any questions, please do not hesitate to contact me at [email address] or [fax number].
Jing (Julie) Zhu Paralegal Iconic Legal Services”
[9] By email dated November 13, 2015, the Office of the Counsel, York University confirmed to Zhu that York University had no relationship with the School.
[10] When Zhu’s clients returned from China in the spring of 2016, the actions against the School were commenced in the Toronto Small Claims Court. The Email was included in support of the claim respecting each of Wu and Zou.
[11] The School filed a Statement of Claim against the defendants in this court on June 21, 2016, seeking damages for defamation and other relief.
General Principles Applicable to Summary Judgment Motions
[12] To grant summary judgment the court must be satisfied that there is no genuine issue requiring a trial with respect to a claim in accordance with Rule 20.04(2) of the Rules of Civil Procedure.
[13] 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." The Supreme Court in Hryniak v. Mauldin, 2014 SCC 7, 1 S.C.R 87 (“Hryniak”) held at para. 49:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
[14] On a motion for summary judgment, the moving party must establish a prima facie case that there is no genuine issue requiring a trial. The onus then shifts to the responding party. It is not sufficient for the responding party to simply rely on allegations in their pleadings; they must set out, in affidavit material or other evidence, specific facts showing there is a genuine issue requiring a trial. The responding party cannot simply advise that further or better evidence may be available at trial. The responding party must “lead trump or risk losing” and put their “best foot forward”: see Whiteman v. Iamkhong et al., 2013 ONSC 2175 at paras. 29-31, aff’d 2015 ONCA 564.
Issues
[15] The defendants bring this motion for summary judgment on the basis that the Email was written on an occasion of absolute privilege and is therefore not actionable by the School; consequently, they assert that there is no genuine issue requiring a trial.
[16] The plaintiff defends the motion on the basis that absolute privilege may only be extended to occasions that are “prepatory”, “preliminary”, “intimately connected”, “necessary or incidental to the institution of proceedings” provided the communications on such occasions are intimately connected to the litigation, and that, in this case, these requirements are not met.
Analysis
[17] Statements made on a limited range of occasions, referred to as occasions of absolute privilege, should be immune from legal attack. Where absolute privilege applies no action can be brought regardless of whether the words were written or spoken maliciously, without justification or excuse, or negligently: see 1522491 Ontario Inc. v. Stewart, Esten Professional Corp., 2010 ONSC 727, 100 O.R. (3d) 595 (Div. Ct.) (“1522491”) at paras. 32-33, 35.
[18] As noted by Karakatsanis, J. in granting leave to appeal the decision of the motions judge in 1522491 Ontario Inc. v. Stewart, Eston Professional Corp., 2009 CanLII 15656 (ON SCDC), [2009] O.J. No. 1413 (Div. Ct.), statements will attract absolute privilege in the litigation context if they were made on occasions that are prepatory, preliminary, intimately connected, necessary or incidental to the institution of proceedings provided the communications on such occasions are intimately connected to the litigation: see para. 8. At para. 17, Karakatsanis, J. notes that “[w]hile an inquiry into the purpose of the statements must be made to determine whether the statements were ‘for the purposes of, or prepatory to, the commencement of judicial proceedings’, motivation, bad faith or malice behind the communication is irrelevant to absolute privilege provided it was intimately connected with the litigation”.
[19] It is the occasion on which the communication was made and not the nature of the words, which is dispositive: see 1522491 at paras. 36-45 and 59-60 and Salasel v. Cuthbertson, 2015 ONCA 115, 124 O.R. (3d) 401, affirming 2014 ONSC 3071, 120 O.R. (3d) 290 (“Salasel”) at para. 36.
[20] Absolute privilege applies to statements made in the course of a judicial proceeding or quasi-judicial proceeding: see O’Connor v. Waldron, 1934 CanLII 273 (UK JCPC), [1935] A.C. 76 at 81 (P.C.); Elliott v. Insurance Crime Prevention Bureau, 2005 NSCA 115, 236 N.S.R. (2d) at para. 112; Amato v. Welsh, 2013 ONCA 258, 362 D.L.R. (4th) 38 at paras. 37-38; and Salasel at para. 35 (Ont. C.A.).
[21] Absolute privilege will apply to a lawyer’s letter conveying a client’s instructions: see Salasel at paras 35-38 (Ont. C.A.) and Sprecher Grier Halberstam LLP v. Walsh, [2008] EWCA Civ 1324 at para. 52 (Eng. C.A.).
[22] A communication with a potential witness regarding evidence the potential witness may provide in a legal proceeding is made on occasion of absolute privilege whether the person who provided the information is called as a witness or not: see 1522491 at paras. 37-45 and 59-60 (Div. Ct.); Web Offset Publications Limited et al. v. Vickery et al. (1999), 1999 CanLII 4462 (ON CA), 43 O.R. (3d) 802 (C.A.), application for leave to appeal to the Supreme Court of Canada dismissed, [1999] S.C.C.A No 460 (S.C.C.).
[23] The protection of absolute privilege is applicable to a licensed paralegal performing a function which the paralegal is licensed to perform: see Cordero v. Hydro One Networks Inc., 2015 HRTO 1312 at paras. 26-28.
[24] The plaintiff asserts that there is no blanket rule that grants absolute privilege to lawyers or paralegals who communicate on behalf of clients who are contemplating litigation and that something more than the solicitor’s responsibility to assist and protect clients’ rights is required. The plaintiff also asserts that absolute privilege should not be available if any portion of the communication exceeds the limits of the privilege or if the communication includes anything that is not relevant and pertinent to the discharge of the duty or the exercise of the right of safeguarding the interest which creates the privilege.
[25] On the evidence in the motion record, I find that the inquiry made by Zhu of York University was a reasonable inquiry, no portion of which exceeded the limits of the privilege.
[26] It was not unreasonable for Zhu or her clients to inquire of York University whether it had a relationship with the School. The Brochure, in promoting the School, makes specific references to a “Guaranteed Enrolment in Three Renowned Universities with Agreement” as well as references to a “Straight to York University Class” including a photograph from York University and its logo. A casual reader of the Brochure could reasonably form an impression that the School had a relationship with York University.
[27] By including some context or grounds for the request, Zhu’s query did not exceed the limits of absolute privilege. The enquiry was relevant and not impertinent. I do not attribute any bad faith to the defendants in making what I find to be a reasonable inquiry of York University as to the existence of any relationship between it and the School. The inquiry was made as part of their investigation and preparation to file their claims against the School in their Small Claims Court actions. Their conduct was not high handed.
[28] The plaintiff also asserts that a relevant factor in assessing the applicability of the privilege is the length of time between the publication of the impugned communication and the commencement of the legal action. While some six months passed between the publication of the Email and the defendants commencement of the litigation, I do not find this period unduly long, especially in light of the fact that Zhu’s clients resided in China. It was not unreasonable for Zhu to wait until their next trip to Toronto to have a face to face meeting with them to finalize her retainer and to review the draft Statements of Claim with them.
[29] I conclude that the statements in the Email were made in the course of Zhu’s investigation of her clients’ cases with a view to the litigation that has been commenced. They were made based on her clients’ instructions and directed to a limited audience from which she anticipated obtaining relevant or potentially relevant information to her clients’ claims. Consequently, I find them to form part of a pre-litigation communication protected by absolute privilege.
Conclusion
[30] I have determined that there is no genuine issue requiring a trial based on the evidence in the motion record. I hereby grant summary judgment dismissing the action as there is sufficient evidence before me to fairly and justly adjudicate the dispute. A summary judgment, being a proportionate, more expeditious and less expensive means to achieve a just result, is appropriate in this case.
[31] The defendants shall be entitled to their costs on a partial indemnity basis in the amount of $20,000.
Dietrich, J.
Date: December 12, 2017
CITATION: Royal Crown Academic School Inc. v. Wu, 2017 ONSC 7295
COURT FILE NO.: CV-16-555180
DATE: 20171212
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROYAL CROWN ACADEMIC SCHOOL INC.
Plaintiff (Responding Party)
– and –
YOU WU, MINOR BY LITIGATION GUARDIAN TAO XU, JIARUI ZOU, MINOR BY LITIGATION GUARDIAN SHI ZHANG, and JING JULIA ZHU C.O.B. ICONIC LEGAL SERVICES
Defendants (Moving Party)
REASONS FOR JUDGMENT
DIETRICH, J.
Released: December 12, 2017