Court File and Parties
COURT FILE NO.: CV-17-0041
DATE: 2018/06/08
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Shaun McLaughlin and John Edwards, Plaintiffs/Defendants by Counterclaim
AND
Steven Maynard, also known as Steve Maynard, Defendant/Plaintiff by Counterclaim
BEFORE: Madam Justice R. Ryan Bell
COUNSEL: Jonathan P.M. Collings, Counsel for the Plaintiffs
Steven Maynard, Self-represented
HEARD at Ottawa: June 1, 2018
ENDORSEMENT
Overview
[1] John Edwards is a councillor of the Town of Mississippi Mills. Shaun McLaughlin is the mayor of the Town. They commenced a defamation lawsuit against Mr. Maynard in July 2017. Mr. Maynard filed a counterclaim against Mr. Edwards and Mr. McLaughlin, alleging defamation, intentional or negligent infliction of mental suffering, harassment and abuse of power. The action against Mr. Maynard was dismissed by Hurley J. on November 15, 2017 (2017 ONSC 6820). What remains is Mr. Maynard’s counterclaim.
[2] Mr. Edwards moves for summary judgment to dismiss the counterclaim against him. Mr. Maynard maintains that there are genuine issues that require a trial. Mr. McLaughlin takes no position on the motion.
[3] For the following reasons, I am satisfied that the claims against Mr. Edwards can be properly and efficiently disposed of on a motion for summary judgment. I am satisfied that there is no genuine issue requiring a trial in the case against Mr. Edwards. I grant summary judgment in favour of Mr. Edwards and dismiss Mr. Maynard’s counterclaim against him.
Partial Summary Judgment
[4] 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.” 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: (i) allows the judge to make the necessary findings of fact; (ii) allows the judge to apply the law to the facts; and (iii) is a proportionate, more expeditious and less expensive means to achieve a just result (Hryniak v. Mauldin, 2014 SCC 7, at para. 49).
[5] Hryniak does not alter the principle that on a motion for summary judgment, the court will assume that the parties have placed before it all of the evidence that the parties would present at trial. Mr. Maynard submits that there are issues that require a trial in this case because on his cross-examination, Mr. Edwards was evasive and refused to answer proper questions. With respect, Mr. Maynard could have brought a motion under Rule 34.12 of the Rules of Civil Procedure to obtain a ruling on the propriety of the questions objected to. In fact, the transcript of Mr. Edwards’ cross-examination discloses that Mr. Maynard put an end to the cross-examination for the very purpose of obtaining a ruling from the court. Mr. Maynard did not do so, nor did he seek an adjournment of Mr. Edwards’ motion for summary judgment. I also add that during the course of his submissions on the motion, Mr. Maynard highlighted a number of instances on Mr. Edwards’ cross-examination where he felt that Mr. Edwards had been evasive or that counsel had objected improperly. In my view, the objections made by counsel during the cross-examination were not improper.
[6] As for Mr. Maynard’s submission that a trial is required in order for him to be permitted to examine or cross-examine other witnesses, Rule 39.03 provides that a person may be examined as a witness before the hearing of a pending motion for the purpose of having a transcript of the person’s evidence available for use at the hearing of the motion. Mr. Maynard did not avail himself of this opportunity either.
[7] This is a motion for partial summary judgment. In Hryniak, the Supreme Court of Canada emphasized the need to consider the consequences of the summary judgment motion in the context of the litigation as a whole. Where some of the claims against some parties will proceed to trial in any event, it may not be in the interest of justice to grant summary judgment against a single defendant. Granting partial summary judgment in such circumstances may run the risk of duplicative proceedings or inconsistent findings of fact. On the other hand, 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” (Hryniak, at para. 60).
[8] 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 (Butera v. Chown, Cairns LLP, 2017 ONCA 783, at para. 34). As the Court of Appeal stated in Butera, at para. 34: “[s]uch 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.”
[9] Where allegations against a party are separate and distinct from the allegations against another party and there is no risk of duplicative proceedings or inconsistent findings of fact, partial summary judgment will be available (Omotayo v. Da Costa, 2018 ONSC 2187; Uni-Select Eastern Inc. v. Innovative Coating Systems Inc., 2018 ONSC 2345).
[10] In this case, I am satisfied that I can fairly and justly adjudicate the dispute between Mr. Maynard and Mr. Edwards and that partial summary judgment is a timely, affordable and proportionate procedure as there is no risk of duplicative proceedings or inconsistent findings of fact. The defamation allegation against Mr. Edwards relates to one social media post and is readily bifurcated from the claims against Mr. McLaughlin. I am able to dispose of the balance of the allegations against Mr. Edwards as a matter of law.
The Defamation Allegation
[11] In 2017, Mr. Maynard commenced an application against Ms. McCubbin, a town councillor, and the Town seeking a declaration that Ms. McCubbin was ineligible to sit on council because at the time of her nomination and election to council in 2014, she was an employee of the local library board.
[12] Mr. Maynard’s application was withdrawn prior to any evidence being filed and costs were awarded to the Town. At the costs hearing, Quigley J. noted Mr. Maynard’s submission that the abandonment of the application was not as a result of the merits of the case but due to threats to his personal safety. Notwithstanding that submission, Quigley J. found that Mr. Maynard was not representing the public in bringing the application, was not a member of Mississippi Mills and had caused the taxpayers of the Town to engage counsel “to defend a – and I use this term reservedly – the fact is that it was a vexatious, and no merit application.” On that basis, Quigley J. ordered Mr. Maynard to pay the Town’s costs within 90 days.
[13] On July 26, 2017, Mr. Edwards published a comment on “The Millstone”, an online newspaper for the Mississippi Mills area, with the headline “Court confirms Jill McCubbin’s right to sit as Mississippi Mills Councillor”. In his counterclaim, Mr. Maynard alleges that the post as a whole and the specific words “[d]espite all the negativity and accusations now agreed to be false and without merit by Mr. Maynard (why else would he withdraw)” and “[w]ould it be too much to expect an apology from Mr. Maynard & PRATAC for this failed and groundless attack” are “maliciously false”, defamatory and calculated to cause serious harm to Mr. Maynard’s reputation.
[14] The counterclaim further alleges that the words, in their natural and ordinary meaning, were meant and understood to mean that Mr. Maynard: (i) was motivated by malice when he applied to the court to determine if Ms. McCubbin was eligible to hold a seat on town council while she was employed by the local library board; (ii) knew that his application was false and without merit but chose to waste the court’s time and taxpayers’ dollars by pursuing his application; (iii) admitted and agreed that his application was false and without merit and abandoned it only after it had served its vexatious purpose; and (iv) is colluding with the Pakenham, Ramsay & Almonte Taxpayers’ Advocacy Coalition (PRATAC) for nefarious purposes.
[15] Mr. Edwards denies that the post is defamatory of Mr. Maynard. Mr. Edwards also relies on the defences of justification and fair comment. I have determined that there is no liability on the part of Mr. Edwards for defamation based on these defences.
[16] Dealing first with the defence of justification, I find that the statements in the post are substantially true. The evidence before me is that Mr. Maynard’s application was withdrawn, that Quigley J. described it as vexatious and having no merit, and that Quigley J. ordered Mr. Maynard to pay the Town’s costs associated with the withdrawn application. There is also evidence in the record of Mr. Maynard’s involvement with PRATAC, through his attendance at PRATAC’s executive and general meetings. Mr. Edwards’ post does not allege malice on the part of Mr. Maynard and it does not insinuate a nefarious purpose for Mr. Maynard’s involvement with PRATAC.
[17] I also find that Mr. Edwards has made out the defence of fair comment. A defendant claiming fair comment must satisfy the following test: (i) the comment must be on a matter of public interest; (ii) the comment must be based on fact; (iii) the comment, though it can include inferences of fact, must be recognizable as comment; (iv) the comment must satisfy the following objective test: could any person honestly express that opinion on the proved facts?; and (v) even though the comment satisfies the objective test, the defence can be defeated if the plaintiff proves that the defendant was actuated by express malice (Grant v. Torstar Corp., 2009 SCC 61, at para. 31).
[18] Mr. Maynard has admitted that his application was a matter of public interest, and that PRATAC’s activities were of interest to the community at large. The underlying facts are that Mr. Maynard’s application was withdrawn, that Quigley J. described it as vexatious and having no merit, and that Mr. Maynard was involved with PRATAC. I find that the comments are recognizable as comment and that a reasonable person could honestly express such comments based on these facts.
[19] Mr. Maynard’s position is that Mr. Edwards failed to verify or attempt to verify his statements. Mr. Maynard says that Mr. Edwards was untruthful in his affidavit when he swore that “[t]he Post was meant to be a summary of what I understood the Application to have been been, based on my review of the Court documents and correspondence, and my numerous discussions with Town Staff”, and says that the only explanation for the publication of the post was malice.
[20] I disagree. The question is whether a reasonable person could honestly express the comments based on the proven facts, not whether Mr. Edwards failed to verify his statements. The comments contained in the post satisfy the objective test.
[21] There is no evidence of malice on the part of Mr. Edwards.
[22] As I have found that the defences of justification and fair comment have been made out, I need not consider Mr. Edwards’ alternative argument that the statutory immunity in s. 448 of the Municipal Act, 2001, S.O. 2001, c. 25 applies in respect of the defamation allegation.
The Remaining Allegations Against Mr. Edwards
[23] I have concluded that all of the remaining allegations against Mr. Edwards must fail on the basis of s. 448(1) of the Municipal Act, 2001 and a lack of evidence.
[24] Subsection 448(1) provides:
(1) No proceeding for damages or otherwise shall be commenced against a member of council or an officer, employee or agent of a municipality or a person acting under the instructions of the officer, employee or agent for any act done in good faith in the performance or intended performance of a duty or authority under this Act or a by-law passed under it or for any alleged neglect or default in the performance in good faith of the duty or authority.
[25] Mr. Maynard’s claim against Mr. Edwards for intentional or negligent infliction of mental suffering is based on emails he wrote to Mr. Edwards, to which Mr. Edwards did not respond. Mr. Maynard has admitted that he wrote to Mr. Edwards in his capacity as town councillor, and as someone who might have influence on the mayor. After receiving two of Mr. Maynard’s emails, Mr. Edwards wrote to the mayor and town staff with his recommendations. Mr. Edwards’ failure to reply does not, in my view, constitute evidence of malice or wrongful conduct.
[26] Subsection 448(1) provides immunity for Mr. Edwards for acts done in good faith in the performance of his duties (Catford v. Catford, [2012] O.J. No. 6690 (S.C.), at para. 5, aff’d 2013 ONCA 58). Mr. Edwards was acting in his official role. There is no evidence of malice. The protection in s. 448(1) of the Municipal Act, 2001 applies.
[27] Mr. Maynard also alleges that Mr. Edwards knew or ought to have known that filing a statement of claim against Mr. Maynard would exacerbate his “already increased anxiety and depression by the stalker(s)” and that the claim constituted harassment and an abuse of power by Mr. Edwards.
[28] I agree with counsel for Mr. Edwards that these issues were dealt with by Hurley J. in his decision on costs, following the dismissal of the action (2018 ONSC 263). At para. 15 of his costs decision, Hurley J. stated:
None of the steps taken by the plaintiffs or their counsel after the lawsuit was commenced constitute proof that the proceeding itself was brought for an improper purpose. Moreover, I consider the acts complained of to be routine incidents of the litigation process and in no way comparable to the oppressive litigation tactics that occurred in United Soils Management Limited.
[29] In his counterclaim, Mr. Maynard is attempting to relitigate issues surrounding the commencement of the action. That he cannot do as those issues have already been determined.
[30] Finally, there is no evidence to support a claim for punitive damages.
Summary
[31] For these reasons, Mr. Edwards’ motion for summary judgment is granted. Mr. Maynard’s counterclaim against Mr. Edwards is dismissed.
[32] The parties are encouraged to try to reach an agreement on costs of the motion, failing which they may make written submissions limited to a maximum of three pages, double-spaced, exclusive of a costs outline, within 30 days of the date of release of this decision.
Justice R. Ryan Bell
Date: June 8, 2018
COURT FILE NO.: CV-17-0041
DATE: 2018/06/08
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Shaun McLaughlin and John Edwards, Plaintiffs/Defendants by Counterclaim
AND
Steven Maynard, also known as Steve Maynard, Defendant/Plaintiff by Counterclaim
BEFORE: Madam Justice R. Ryan Bell
COUNSEL: Jonathan P.M. Collings, Counsel for the Plaintiffs
Steven Maynard, Self-represented
HEARD at Ottawa: June 1, 2018
ENDORSEMENT
RYAN BELL J.
Released: June 8, 2018