CITATION: MATTSON ET AL v. TOM QUIGGIN ET AL, 2017 ONSC 984

COURT FILE NOS.: 14-61631 & 14-61632

MOTION HEARD: 2016/11/15

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dr. Ingrid Mattson v. Tom Quiggin and TSEC

and

Dr. Wael Haddara and Dr. Yaser Haddara v. Tom Quiggin and TSEC

BEFORE: Master Fortier

COUNSEL: Jeff Saikaley, for the plaintiffs

Lorne Honickman, for the Defendants, Tom Quiggin and Terrorism and Security Experts of Canada Network (TSEC)

REASONS FOR DECISION

Introduction

[1] This is a motion brought by the defendants:

A- For an order pursuant to Rule 6.01 of the Rules of Civil Procedure, R.R.O. 1990, Reg.194 (“Rules”) to consolidate two actions or in the alternative for an order to have the actions heard together; and

B- For an order compelling the plaintiffs to serve a further and better affidavit of documents.

Background

[2] This motion concerns two defamation actions, both commenced on August 8, 2014 against Tom Quiggin and Terrorism and Security Experts of Canada Network (TSEC). The plaintiffs in one action are Dr. Wael Haddara and Dr. Yasar Haddara (the “Haddara action) and the plaintiff in the other action is Dr. Ingrid Mattson (the “Mattson action”)

[3] The plaintiffs in both actions:

i- Are claiming damages for alleged defamatory comments in a report titled “the Muslim Brotherhood in North America (Canada/USA)” (“the Report”) which was written by the defendant Quiggin and published on the TSEC blog on May 27, 2014;

ii- Are represented by the same counsel;

iii- Are claiming general damages in the amount of $100,000 and $25,000 for alleged defamatory content in the Report and related media stories;

iv- Allege the wording of the Report by innuendo defames them by implying, for example, that they are linked to terrorist activity, are involved in criminal wrongdoing and are involved in funding terrorist activity.

[4] Examinations for discovery in both actions were completed by June 2015. The undertakings given on discovery have been answered. The Haddara action is currently on the trial list for 10 days in June, 2017. Through what appears to be an administrative error, a trial date has not yet been set for the Mattson action, which is expected to be a shorter trial, lasting between 2-4 days.

[5] Although the plaintiffs refuse to have the matters consolidated, they would consent to holding the trials one after the other.

[6] In April 2016, the defendants requested from the plaintiffs in both actions a further and better affidavit of documents, along with a request for specific documents. The plaintiffs responded that the documents were either not relevant or not available.

[7] The following is the list of the documents sought by the defendants:

i- Documents of the Muslim Association of Canada that refer to the proposed hiring of a PR consultant in support of libel actions against critics;

ii- Documents concerning the role of the National Council of Canadian Muslims in the actions against the defendants;

iii- All email communications between the Haddara Plaintiffs and Sheriff Haddara, the Freedom and Justice Party ( Muslim Brotherhood) Minister of Oil in the government of Mohamed Morsi;

iv- Email or other communications between the Haddara plaintiffs and Essam al- Haddad, former assistant to the President for External Affairs in the former Egyptian government of Morsi, specifically any emails concerning invitations to the Haddara Plaintiffs to be functionaries in the Egyptian government.

v- Documents showing the transfer of money or other means of support to CAIR USA from CAIR Canada during the period in which Wael Haddara was on the board of directors of CAIR Canada.

vi- Documents concerning financial and administrative support from the Muslim Association of Canada to the Muslim American Society, as well as any document describing Yaser Haddara’s role with the Muslim American Society.

vii- Documents identifying the organization for which Dr. Mattson worked in Afghanistan in 1987, as well as Dr. Mattson’s role at the time.

viii-Documentation related to the delegation from Egypt to Washington DC of the Muslim Brotherhood/Freedom and Justice Party, for which Wael Haddara served as head (including documents related to the organization of the trip, the invitation to Wael Haddara and documents from the Centre for Study of Islam and Democracy in relation to the trip).

Issues

A- Should the actions be consolidated and, if so, in what manner?

B- Are the requests for additional documents relevant and in the power, possession or control of the Plaintiffs?

A - CONSOLIDATION

Position of the Parties

[8] The defendants submit that both actions have multiple questions of law and fact in common and there will be a significant overlap in evidence in the two actions. Consolidating the actions will not prejudice the parties and will provide a more cost-effective and expeditious determination of the disputes.

[9] The plaintiffs in both the Haddara and Mattson actions are opposed to a consolidation of the actions. They argue that they do not have any connection with each other’s lawsuit, the allegations against each of them are distinct and the cases should be tried separately to avoid any conflation of the facts and evidence that each might present at trial. The plaintiff in the Mattson matter further argues that she would be prejudiced if the cases were consolidated as the Haddara action is likely to take much longer than the Mattson action thereby increasing her costs.

Law and Analysis

[10] Orders to consolidate proceedings, or requiring that they be heard together, are discretionary. Rule 6.01 of the Rules outlines the court’s discretion. Rule 6.01 reads as follows:

6.01 (1) Where two or more proceedings are pending in the court and it appears to the court that,

(a) they have a question of law or fact in common;

(b) the relief claimed in them arises out of the same transaction or occurrence or series of transactions or occurrences; or

(c) for any other reason an order ought to be made under this rule, the court may order that,

(d) the proceedings be consolidated, or heard at the same time or one immediately after the other; or

(e) any of the proceedings be,

(i) stayed until after the determination of any other of them, or

(ii) asserted by way of counterclaim in any other of them

(2) In the order, the court may give such directions as are just to avoid unnecessary costs or delay and, for that purpose, the court may dispense with service of a notice of listing for trial and abridge the time for placing an action on the trial list.

[11] The underlying policy of Rule 6 is to promote expeditious and inexpensive determination of disputes, avoid a multiplicity of proceedings and to avoid inconsistent judicial findings. [^1]

[12] In exercising the discretion under Rule 6.01 the court must be mindful of both section 138 of the Courts of Justice Act and Rule 1.04 (1). Section 138 provides that wherever possible, multiplicity of proceedings shall be avoided. Rule 1.04 (1) directs the court to interpret and apply the Rules so as to “secure the just, most expeditious and least expensive determination of every civil proceeding on its merits”. In my view, these principles apply to the matters before me.

[13] Having said that, to succeed on a motion under Rule 6.01, the moving party must first demonstrate that one or more of the criteria (“gateway criteria”) in subrules (a) through (c) are met. [^2] If any of the criteria are met, the court will then consider a number of factors to determine whether the balance of convenience favors consolidating proceedings. These factors include [^3] :

(a) the extent to which the issues in each action are interwoven;

(b) whether the same damages are sought in both actions, in whole or in part;

(c) whether damages overlap and whether a global assessment of damages is required;

(d) whether there is expected to be a significant overlap of evidence or of witnesses among the various actions;

(e) whether the parties are the same;

(f) whether the lawyers are the same;

(g) whether there is a risk of inconsistent findings or judgment if the actions are not joined;

(h) whether the issues in one action are relatively straight forward compared to the complexity of the other actions;

(i) whether a decision in one action, if kept separate and tried first would likely put an end to the other actions or significantly narrow the issues for the other actions or significantly increase the likelihood of settlement;

(j) the litigation status of each action;

(k) whether there is a jury notice in one or more but not all of the actions;

(l) whether, if the actions are combined, certain interlocutory steps not yet taken in some of the actions, such as examinations for discovery, may be avoided by relying on transcripts from the more advanced action;

(m) the timing of the motion and the possibility of delay;

(n) whether any of the parties will save costs or alternatively have their costs increased if the actions are tried together;

(o) any advantage or prejudice the parties are likely to experience if the actions are kept separate or if they are to be tried together;

(p) whether trial together of all of the actions would result in undue procedural complexities that cannot easily be dealt with by the trial judge;

(q) whether the motion is brought on consent or over the objection of one or more parties.

[14] I find that the defendants have demonstrated that two of the gateway criteria have been met under rule 6.01(1) (a) and (b) because:

a) It is evident from a review of the pleadings in both actions that they have both questions of law and fact in common. For example, both actions deal with:

i- Whether the contents of the Report are defamatory to the Plaintiffs in their plain and ordinary meaning or by innuendo in that they imply the Plaintiffs are connected to terrorist activity;

ii- Whether the defences to defamation (justification, fair comment, and qualified privilege) are applicable;

iii- The affiliations between organizations to which the plaintiffs belong;

iv- The impact of the Report in the media.

b) It is clear that the two actions arise from the same transaction or occurrence. More particularly the plaintiffs in both actions are claiming damages for alleged defamatory comments in a report titled “the Muslim Brotherhood in North America (Canada/USA)” (“the Report”) which was written by the defendant Quiggin and published on the TSEC blog on May 27, 2014.

[15] It is also evident from a review of the pleadings in both actions that the balance of convenience favors an order under Rule 6.01. The following are the factors that were considered in coming to that conclusion:

a) The issues in each action are interwoven;

b) The same damages are sought in both actions;

c) There will be an overlap of the evidence and witnesses;

d) The defendants are the same;

e) The lawyers are the same;

f) There is a risk of inconsistent findings or judgment if the actions are not joined;

g) The litigation status of each action is similar. Both are ready for trial.

[16] It is important to note that consolidation differs in significant ways from an order that matters be heard together. Typically, consolidated actions proceed as one and require parties to re-plead so that there is just one set of pleadings, one set of discoveries and all issues are subsequently dealt with in one trial. Actions ordered heard together, on the other hand, maintain their distinct identities.

[17] Both actions are well beyond the pleadings stage. Discoveries have been held and the actions are ready for trial, with a trial date set in the Haddara matter. It is therefore late in the proceedings to order that the matters be consolidated into one action. In addition, the plaintiffs have made the point that the Haddara trial will be longer and more complex than the trial in the Mattson action thereby increasing the costs of the plaintiff in the Mattson action. In my view, the most advantageous method of proceeding is to order that the two matters be heard together or one after the other, in the discretion of the trial judge.

B-FURTHER AND BETTER AFFIDAVIT OF DOCUMENTS

Position of the Parties

[18] The defendants submit that the documents requested are all relevant to the allegations in the pleadings, and are essential to the defendants’ ability to make full answer and defence. They state that the documents are within the power and control of the plaintiffs.

[19] The defendants argue that both actions concern the allegations of defamation against the plaintiffs primarily by innuendo for highlighting the plaintiffs’ affiliation with organizations that have links to the Muslim Brotherhood or other groups that have been labeled “terrorist” organizations. The requested documentation is necessary to understand the full involvement of the plaintiffs in organizations with connections to the Muslim Brotherhood or other so-called “terrorist” entities and are relevant in determining whether the Report’s allegations about the Plaintiffs are defamatory, and whether the defences of justification, fair comment and qualified privilege apply.

[20] The plaintiffs take the position that they were examined for discovery, gave undertakings and answered those undertakings and all documents relevant to any matter in issue have been disclosed in accordance with the Rules. Furthermore, it was argued that the extent of discovery is not unlimited must be kept within reasonable and efficient bounds under the Simplified Procedure. Proportionality and relevance are key factors.

[21] The plaintiffs argue that given that the action is ready for trial, the request for further documents at this late stage can only be seen as an abuse of process and a fishing expedition to see if the defendants can identify any additional information to prove their allegations.

[22] According to the plaintiffs, the defendants are seeking documents that relate to organizations that the plaintiffs are no longer involved with. The documents requested are housed with the organizations in question and not in the plaintiffs’ possession, power or control. The plaintiffs argue that there are specific Rules to obtain disclosure from third parties.

The Law and Analysis

[23] Under the Rules of Civil Procedure, Rule 30.02 (1) requires that relevant documents be disclosed. Further, Rule 30.07 (b) provides that there is an ongoing obligation on a party to deliver a supplementary affidavit of documents if he or she discovers that the affidavit is inaccurate or incomplete. It is to be noted that a party is not relieved from the ongoing obligation to provide a complete affidavit of documents by the fact that opposing counsel did not seek undertakings on the examination for discovery. [^4]

[24] Pursuant to Rule 30.06 (b), the Court has the power to order service of a better affidavit of documents in circumstances where a relevant document in a party’s possession control or power may have been omitted from the party’s affidavit of documents.

[25] Rule 30.06 (b) reads as follows: states:

30.06. Where the court is satisfied by any evidence that a relevant document is in a party’s possession, control or power may have been omitted from the party’s affidavit of documents, or that a claim of privilege may have been improperly made, the court may,

(b) Order service of a further and better affidavit of documents;

[26] When a party seeks a further and better affidavit of documents, it must be shown that the information sought is relevant to the matters in issue and that the documents actually exist.

[27] It is the pleadings that frame the issue of relevance. What documents the parties are entitled to is not a matter for the exercise of discretion but rather, is a matter of law. Fact finding and weighing the evidence are not proper considerations for the determination of relevance for the purpose of what should be contained in the affidavit of documents. [^5]

[28] Where on a rule 30.06 motion, the defendant contends that the plaintiff has not met his obligation to produce relevant documents, then the defendant must provide some evidence that the plaintiff has relevant material in his possession or control. It cannot be based on mere speculation that potentially relevant documents exist.

[29] In addition, a motion for a further and better affidavit of documents cannot be a licence to conduct a classic “fishing expedition” in the hopes of attempting to identify any additional information to prove the moving party’s allegations. [^6]

[30] Having reviewed the pleadings in both actions, and keeping in mind that:

a) It is the pleadings that frame the issue of relevance;

b) A party is not relieved from the ongoing obligation to provide a complete affidavit of documents by the fact that opposing counsel did not seek undertakings on the examination for discovery;

c) The existence of a potentially relevant document within the power and control of a party cannot be based on mere speculation;

d) A motion for a further and better affidavit of documents cannot be a licence to conduct a classic “fishing expedition”.

I find that the documents requested by the defendants fall into two categories:

i- Relevant to the Haddara action;

ii- Not relevant and part of a “fishing expedition” and/or no evidence that it is within the power and control of the plaintiffs.

[31] I find the following documents to be relevant as the defendants must be permitted to attempt to persuade the ultimate trier of facts that what was stated in the Report is, on a balance of probabilities, true. The information sought also appears to be relevant to a determination of the truth of the meanings set out in various paragraphs in the Statements of Defence as well as to the defence of justification:

a) Email communications between the Haddara Plaintiffs and Sheriff Haddara, the Freedom and Justice Party Minister of Oil in the government of Mohamed Morsi;

b) Email or other communications between the Haddara Plaintiffs and Essam al- Haddad, former assistant to the President for External Affairs in the former Egyptian government of Morsi, specifically any emails concerning invitations to the Haddara Plaintiffs to be functionaries in the Egyptian government.

c) Production of documents describing Y. Haddara’s role with the MAS.

d) Documentation related to the delegation from Egypt to Washington DC of the Muslim Brotherhood/Freedom and Justice Party, for which Wael Haddara served as head (including documents related to the organization of the trip, the invitation to Wael Haddara and documents from the Centre for Study of Islam and Democracy in relation to the trip).

[32] In my view the following documents have not met the test of relevance:

a) Documents of the Muslim Association of Canada that refer to the proposed hiring of a PR consultant in support of libel actions against critics.

b) Documents concerning the role of the National Council of Canadian Muslims in the actions against the Defendants.

c) Documents showing the transfer of money or other means of support to CAIR USA from CAIR Canada during the period in which Wael Haddara was on the board of directors of CAIR Canada.

d) Documents concerning financial and administrative support from the Muslim Association of Canada to the Muslim American Society.

e) Documents identifying the organization for which Dr. Mattson worked in Afghanistan in 1987, as well as Dr. Mattson’s role at the time.

Conclusion

[33] For the reasons outlined above, it is ordered that the two actions shall be heard together or one after the other, in the discretion of the trial judge.

[34] The relevance of the documents referred to in paragraphs 31 above has been established and a further and better affidavit of documents shall be delivered by the plaintiffs to include the said documents.

[35] There has been divided success with respect to both issues on this motion. Therefore, if the parties cannot agree about the matter of costs, they may make submission in writing beginning with the defendants within 15 days of the release these Reasons for Decision followed by the plaintiffs submissions within a further 15 days. Written submissions are to be no more than 3 pages in length each.

Master Marie Fortier

DATE: February 9, 2017

[^1]: Pilon v. Janveaux [2000] O.J. No. 4743 (S.C.J.) at para. 6. [^2]: Burnco Manufacturing Inc. v. EllisDon Corp., 2016 ONSC 5806 at para. 19. [^3]: 1014864 Ontario Ltd v 1721789 Ontario Inc. 2010 ONSC 3306 at para. 18. [^4]: Denault v. Alplay [2016] O.J. No. 1392 at para. 23. [^5]: Denault at paras. 11, 13, 17. [^6]: Deep v. Toronto Star Newspaper Ltd. (2004), 133 ACWS (3d) 245 at para. 31.