WARNING

This case is subject to subsections 87(8) and 87(9) of the Child, Youth and Family Services Act, 2017. These subsections and subsection 142(3) of the Child, Youth and Services Act, 2017, which deals with the consequences of failure to comply, read as follows:

87(8) Prohibition re identifying child — No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child’s parent or foster parent or a member of the child’s family.

(9) Prohibition re identifying person charged — The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142(3) Offences re publication — A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court File and Parties

COURT FILE NO.: CV-15-109 DATE: 20180703 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

AA Plaintiff Self-represented

– and –

BB and CC Defendants Self-represented Self-represented

HEARD: November 28, 29, 30, December 1 and 2, 2016 November 21, 22, 23, 28 and December 4, 2017

Amended ENDORSEMENT

Amended decision: The text of the original judgment was amended on July 22, 2020 and a description of the amendment is appended.

corkery j.

[1] On April 16, 2013, the Kawartha Haliburton Children’s Aid Society received a report from an anonymous caller stating she had witnessed a man abusing children and a woman. BB was the caller. She was a friend of CC. CC is the mother of AA’s two children. The report was false. AA has sued CC and BB claiming damages for intentional infliction of emotional distress, conspiracy, slander and libel. He has spent the past five years prosecuting this action and trying to clear his name.

[2] The trial of this matter initially took place in November and December, 2016. Although she had filed a defence, BB did not participate in the trial. No lawyer or agent appeared on her behalf. No communication was received from her as to why she did not attend. The trial proceeded in her absence and AA was allowed the opportunity to prove his claim against her, pursuant to Rule 52.01(2).

[3] On June 5, 2017, I released my initial decision. The plaintiff’s claim was dismissed as against CC and judgment was granted against BB for slander with general damages in the amount of $5,000.00 plus $5,000.00 for punitive damages.

[4] On July 18, 2017, the plaintiff successfully moved to set aside my original judgment under Rule 59.06(2)(a) on the basis of his discovering new facts. Applying the test set out by the Ontario Court of Appeal in Mehedi v. 2057161 Ontario Inc., 2015 ONCA 670, I ordered the trial be re-opened to receive and consider new evidence relating to communication between the defendants, including: texts, emails and telephone conversations.

[5] The re-opened trial proceeded in November and December, 2017. BB did participate in this part of the trial. At her request, she was permitted to participate in the trial by telephone conference call. All three parties were allowed to testify with respect to the new evidence relating to communication between the defendants.

A. Background

[6] AA and CC share custody of their two young children, born in 2008 and 2009. They separated in January, 2011, ending a four-year relationship. On April 21, 2011, AA filed an application seeking custody of his children. CC sought custody, support and a restraining order. After a thirteen-day trial, Gunsolus J. ordered that the parties would have shared custody with the children residing with both parents on a week-about schedule. The order is extensive and includes detailed provisions addressing emergency medical care for the children.

[7] During the course of the litigation, commencing in 2011, there were five referrals to the Society about AA made by someone associated with his children’s mother (see AA v. Kawartha-Haliburton Children’s Aid Society, 2014 CFSRB 63 at paragraph 9). None of the previous referrals were verified.

[8] In 2016, the defendants, BB and CC, were co-workers who provided support to each other as single parents. They helped each other by caring for each other’s children.

[9] The April 16, 2013 anonymous report was not the first complaint that the Society had received concerning AA. There had been at least five previous “referrals” concerning him. A “referral” is the word used by the Society for a report they receive about a possible child in need of protection. None of the five previous “referrals” concerning AA were “verified” by the Society, meaning that their investigation of the five previous referrals did not confirm what was reported.

[10] On April 30, 2013, the Society wrote to AA to inform him that the April 16, 2013 allegations against him were not verified and that his file was closed. In that letter, the investigator also stated that there was “some concern that the allegations reported to the Society were malicious in nature…”.

[11] AA had more than “some concern” that the allegations were malicious. He was certain they were malicious. He commenced this action as a result of those allegations.

[12] In his Statement of Claim, AA alleges that the defendants, CC and BB, conspired together to make a fabricated complaint to the Society. AA alleges that BB made the malicious call to the Society using information she received from CC. AA further alleges that CC is liable for statements she made to the Society in the course of its investigation.

[13] AA claims damages in the amount of $70,000 for the loss of his career, his income and pension, aggravated and punitive damages, and costs. He asserts three causes of action:

a. intentional infliction of emotional distress; b. conspiracy; and c. slander and libel.

B. The Facts

1. The Pleadings: deemed admissions of BB

[14] By Notice of Action dated April 16, 2015, and Statement of Claim dated July 2, 2015, AA commenced this action.

[15] In paragraph 11 of his Statement of Claim, AA alleges as follows:

11. On or around April 16th 2013 [BB] called the Kawartha Haliburton Children’s Aid Society (KHCAS) and made allegations that I harmed my children as well as abused both physically and verbally my girlfriend Kelly Grant in front of my children, Kelly’s children, and another friend’s children. Among the statements made were the following: 1) That I had thrown my daughter [K.H.], and had thrown a chair and shovel at my partner Kelly Grant; 2) Swore in front of the children saying “You’re a cunt”, “You’re a bitch”, “You can’t even take care of the kids and this is all you’re supposed to do”.

[16] In her defence, BB did not deny paragraph 11 of the Statement of Claim nor did she state that she had no knowledge of it. Similarly, she did not deny nor did she state that she had no knowledge of paragraphs 14, 15, 16, 18, 19 or 20 of the Statement of Claim. Under Rule 25.07(2), BB is deemed to have admitted these paragraphs. Her admission of paragraph 11 of the Statement of Claim is consistent with the pleading in her brief defence in paragraph 1:

The defendant is a Duty to Report Mandated Reporter under Ministry of Children Youth services legislation (CFSAS s 72(2) and (CFSA s. 72(3)).

[17] In particular, I note the following deemed admissions by BB:

1. BB was the anonymous female caller person who called the Society on April 16, 2013 and made allegations about AA to Ms. Hill (paragraph 11 of the Statement of Claim);

2. BB repeated those allegations on April 22 to Ms. Cooper and made additional allegations that AA had poisoned the neighbour’s dog and that most people in the neighbourhood think there is something wrong with AA (paragraph 15 of the Statement of Claim); and

3. BB knew or ought to have known that making a false allegation to the Society about AA would be “hugely damaging” to him and understands the implications of making a referral to the Society (paragraphs 43 and 45 of the Statement of Claim).

2. Evidence from the initial trial

a) Sunday, April 14, 2013

[18] The evidence of what happened on April 14, 2013 is not contentious. Both AA and his partner, K.G., testified.

[19] In 2013, AA and K.G. were in a relationship. On Friday, April 12, 2013 K.G. travelled from Oshawa to Peterborough with her two older children to spend the weekend with AA and his two children. On the Sunday evening, April 14, 2013, they enjoyed a barbeque with another friend, N.H., and her two children. At the time, AA’s and CC’s two daughters were 5 and 3 years old. K.G.’s son was 9, one daughter was 6 and her youngest daughter (who was not with her that weekend) was 3 months. N.H.’s daughter was 13, her son was 10.

[20] Just after 7:00 p.m., the three adults were inside AA’s house and the six children were outside playing on a trampoline, when K.G.’s son came to the back door to say that AA’s daughter, K.H., was hurt. AA went out to the trampoline and carried K.H. into the house to a couch. She was crying and saying her leg hurt. No bruising or swelling was apparent on her leg. AA and K.G. made her comfortable and put an ice pack on her leg. K.H. fell asleep on the couch around 7:30 and AA carried her to bed. N.H. and her children left for home around 8:00 p.m. AA did not contact CC that evening.

[21] On Monday morning K.H. told her father her leg still hurt and she was unable to put weight on it. AA decided to take her to the hospital to have it looked at. After dropping his other daughter off at the daycare, AA arrived at the hospital at 8:30 a.m. He did not contact CC as he knew that she had would have just arrived home from working a night shift. K.H. was content and AA thought she may have a sprain. Also, either before arriving at the hospital or shortly after arriving, the battery of his cell phone died. Apparently, AA was able to charge it at the hospital.

[22] Around 11:00 a.m. K.H.’s leg was x-rayed. Initially, AA was told by the x-ray technician that there was no break. AA texted CC that he had taken K.H. to the hospital and she was fine. This was the first communication he had with CC about K.H.’s injury. Shortly thereafter, AA was informed by the doctor that the x-ray revealed a fracture. AA immediately informed CC of this new information. CC responded by texting that AA had no authority to authorize medical treatment. AA told the doctor that K.H.’s mother was on her way and that she would provide directions as to treatment. The doctor proceeded to put a splint on K.H. When CC arrived at the hospital, she made the arrangements for K.H. to get a cast the following day. K.H. remained with her father until the next morning. They departed the hospital between 12:00 p.m. and 1:00 p.m.

[23] On Tuesday, April 16, 2013, AA took K.H. to the cast clinic to meet her mother after he dropped his other daughter off at the daycare. AA provided mother with further information about how K.H. injured her leg and then went to work.

[24] At 10:49 a.m., CC emailed AA seeking clarification regarding how K.H. broke her leg. She wanted to know what time the trampoline incident occurred and the details of what occurred on the trampoline. CC also expressed her concern that she had not been informed of the injury until the next morning after x-rays had been taken, although she is the parent with primary responsibility for making medical decisions.

[25] At 4:18 p.m., AA responded to the e-mail, answering CC’s questions. As he had been at work, he did not see the e-mail until later in the day. He reported the facts as outlined herein and expressed his view that he had not made any medical decisions and had reported the injury to CC when appropriate.

b) The Referral to the Society

[26] On Tuesday, April 16, 2013, at 1:51 p.m., the Society received a telephone call from an anonymous female. She informed Jennifer Hill, an intake worker at the Society, that she had observed incidents of a man abusing children and screaming at a woman. She reported seeing five or six children playing on a trampoline on the previous Saturday. A woman and a man were outside with the children. One of the children started yelling that her leg hurt and the man got mad and told her to shut up and keep playing. The caller reported that the man then started yelling at his partner: “You’re a cunt.” “You’re a bitch.” “You can’t even take care of the kids and that is all you are suppose [sic] to do.” She said he threw a chair and a shovel toward her. Then the little girl started yelling about her leg and dad again told her to shut up. He then lifted her up off the ground by her right arm and threw her up and across the trampoline. The caller was concerned for the little girl as there was no net on the trampoline. The little girl continued to cry and yell that her leg was hurting.

[27] The anonymous caller stated she observed the incident from the home of a neighbour she was visiting. On the day she was calling, she stated there were no children around. She assumed they were in school. The same day, before she called, she had heard the man yelling at the woman “Get it fucking cleaned up stupid”.

[28] The caller provided the address of the home she was observing. From its records, the Society determined the address provided was that of AA. The caller was adamant that her identity remain anonymous. She provided only a first name, Marie, and a telephone number where she could be contacted.

c) Society Investigation

[29] As a result of the call, the Society commenced a child protection investigation. Bobbi Cooper, a child welfare worker with the Society, conducted the investigation.

[30] On April 18, 2013, Ms. Cooper conducted a home visit at AA’s home. She interviewed AA and his two children and K.G. and her five-year-old daughter. Her interviews confirmed the facts of the trampoline incident consistent with that described by AA and K.G. outlined above. They all denied that AA was angry or yelling.

[31] On April 19, 2013, Ms. Cooper spoke by telephone with K.G. K.G. expressed her concerns that the call appeared to be malicious.

[32] On April 22, 2013, Ms. Cooper contacted the anonymous caller, leaving a voice message on the number provided by the caller for “Mary”, not “Marie”, to call Ms. Cooper. Ms. Cooper wanted to clarify with the caller information she had provided in the original referral, such as the day of the week when the incident occurred and whether the power was out. Ms. Cooper had already determined that power had been off all weekend at AA’s home due to a local outage. “Mary” returned Ms. Cooper’s call. Mary did not want to identify the neighbor she was staying with, but stated that the house is on the street behind AA’s house and the back yard’s back onto one another. Mary could not recall the exact day of the incident, but believed it occurred on Sunday. She confirmed that she could hear the yelling from her friend’s house.

[33] On April 25, 2013, Ms. Cooper met with N.H. and her two children at the Society office. Her interviews with them also confirmed the facts of the trampoline incident as outlined above. N.H. and her two children stated that AA was not yelling, swearing or angry at anyone. N.H. stated that at no point in her friendship with AA has she heard AA yell or swear at his children or K.G. She would not lie for him or ask her children to cover for him.

[34] On April 25, 2013, Ms. Cooper spoke with CC by telephone. At 4:20 p.m. on April 25, 2013, Ms. Cooper had left two voice messages requesting that CC call her. One message was left on the number Ms. Cooper had on file for CC. The other message was left on the contact number provided by Mary and which Ms. Cooper had used to contact Mary on April 22, 2013. At 5:00 p.m., Ms. Cooper received a telephone call from Mary’s contact number, the caller said nothing and hung up. Two minutes later, Ms. Cooper received the call from CC, from a telephone number Ms. Cooper did not know.

[35] CC told Ms. Cooper she did not know what was going on. Ms. Cooper explained that the Society had received a referral concerning AA and that she was trying to determine if there was any link between the referral source and CC. CC denied any knowledge of a call being made to the Society regarding AA. Ms. Cooper asked CC how she knew to call her. CC explained that she had received a message from her co-worker, BB to call Ms. Cooper.

[36] Ms. Cooper testified that CC discussed with Ms. Cooper the difficulties of her custody litigation with AA. It had cost her a lot of money and it was now difficult to co-parent with AA. She spoke about how AA was abusive and vindictive. CC said she had asked other people not to call the Society about AA, as a judge had told her she would never see her children again if anybody from her camp contacted the Society again. Ms. Cooper told CC she had no intention of telling AA or K.G. about their conversation. Ms. Cooper told CC that she believed that the referral was made maliciously. CC reacted by becoming upset and stating she had nothing to do with the referral to the Society. CC told Ms. Cooper that at work she has talked about her frustration with AA and the court process and had sought advice from peers on how to manage the situation. She talked at work about the fact that K.H. broke her leg. She has talked at work about how AA is a terrible parent and an abusive person and that AA will spin a conspiracy theory so she will never see her children again. In cross-examination, Ms. Cooper stated she could not recall if CC stated that she used AA’s name when she spoke of him at work.

[37] In her evidence, CC acknowledged that she did talk at work about K.H. breaking her leg, she does seek advice from her co-workers but at no time has she used AA’s name. During their family litigation many allegations were made by both sides. Referring to Ms. Cooper’s case note of the interview between CC and Ms. Cooper, CC stated that she believes that note speaks for itself.

[38] Ms. Cooper’s case note of her conversation with CC: notation “She stated that she has talked about how he is a terrible and abusive parent and that she feels he will spin a conspiracy theory and she will never see her children again.”

[39] On April 25, 2013, Ms. Cooper visited AA’s property without informing AA. She observed that there was no adjacent property from which the anonymous caller could reasonably see or hear the things she claimed to have seen and heard.

[40] On April 26, 2013, Ms. Cooper met with K.G. and her eight-year old son.

[41] On April 29, 2013, Ms. Cooper determined that the allegations made in the referral were unverified.

[42] On April 30, 2013, Ms. Cooper wrote to AA to inform him that the allegations were determined to be unverified and that his file was now closed. She also communicated the Society’s remaining concern at the conclusion of the investigation that the allegations reported were malicious in nature.

d) Obtaining Disclosure

[43] AA was shocked when he received Ms. Cooper’s letter. Up to that point, Ms. Cooper had provided very little detail to him about the nature of the allegations he was facing. This initial disclosure caused him great stress.

[44] AA testified that he had thought that with the conclusion of his family litigation with CC, the unfounded referrals about him to the Society would end. He explained how those allegations had caused him a great deal of stress and he could not eat or sleep and his doctor telling him not to go to work. False allegations against him had already been the cause of one failed relationship and now he feared it would cause K.G. to leave him. He promised her and himself that he would get to the bottom of this to protect her, their children and himself from any more such allegations.

[45] He committed himself to finding the source of the April 16, 2013 referral and to holding that person accountable.

[46] AA tried to take a sabbatical from work without a doctor’s note. Ultimately, he lost his job. AA did not call his employer to provide evidence as to the precise reason he was dismissed.

[47] AA’s own investigation began with the Society which led to a process involving the Society’s Internal Complaints Review Panel. AA was not satisfied with that process and on November 21, 2013, filed an application with the Child and Family Services Review Board.

[48] In a lengthy decision dated October 30, 2014 (AA v. Kawartha-Haliburton Children’s Aid Society, 2014 CFSRB 63), the Board ordered, together with other relief, that AA be given full access to his file redacted to exclude identifying information of third parties (AA v. Kawartha-Haliburton Children’s Aid Society, 2014 CFSRB 63 at paragraph 139, paragraph 1 of the directions therein.)

[49] The Board’s decision also included a “Confidentiality Order” that prohibited AA, the applicant, from using any of the information provided and used in the proceeding from being disclosed or relied upon in any other proceeding. Thus, AA was required to commence an application in this court for disclosure of the names of the person or persons who made the referral. That application was granted by MacDougall J. on May 29, 2015.

3. The Plaintiff’s Rule 59.06 motion

[50] On July 18, 2017, I heard the plaintiff’s motion to re-open the trial under Rule 59.06. It was opposed by CC. I determined that the trial should be re-opened to hear new evidence. I set aside my original judgment and made the following order:

1. The trial of this matter will continue in the fall 2017 sittings commencing November 20, 2017 before me.

2. Only new evidence of communication between the defendants will be received in the continuation of the trial, including: texts, emails and telephone conversations.

3. The defendants shall serve updated affidavits of documents together with any new documents identified for which privilege is not claimed on or before July 31, 2017.

4. The plaintiff may bring any motion with respect to disclosure on August 1, 8 or 29.

5. The parties shall attend for a judicial pre-trial in Lindsay on October 12, 2017.

4. Evidence from the second part of the trial

a) Evidence of AA

[51] On June 13, 2017, AA’s daughter arrived at his home after being with her mother, with an iPhone. AA learned from K.H. that her mother had given her the phone. AA checked the contents of this phone and discovered that it had many old text messages, including messages about him. AA transferred the texts to his computer to preserve them. He did not edit the texts or modify them in any way.

[52] Included in these texts AA discovered on the iPhone given to his daughter is an exchange between CC and BB in which BB is reacting to having been served with AA’s claim against her in this action. BB is upset that CC’s “ex” is suing her.

[53] On October 7, 2015, after BB tells CC she has been served by AA, the following text exchange takes place between BB and CC:

11:42:00 BB: I know you are scared I will not be your scape goat. So your email today saying don't text email or call today. Seriously. You and your mom who is now in violation of privacy is asking someone to set themselves up for lawsuit. You (CC) set this whole issue up. You are abusing the courts with your games. I will nol; 11:43:55 CC: What are you talking about?! You are not a scape goat for anything. I am not abusing the courts for anything.; 11:44:27 CC: My mom?!; 11:47:20 CC: I also never sent you an email today.; 12:00:02 BB: What you don't get is because of you. I am now in the middle of a law suit with your ex.; 12:01:39 CC: I have no control over my ex. He is emotionally and mentally unstable and unpredictable. I have no idea why you are turning against me all of a sudden.; 12:07:50 BB: I am not turning against you. Yet your last comment was well you were manated to report it has nothing to do with me. The fuck it doesn't. In case you haven't forgotten it is the holiday season. I lost my nephew and parents at this time. So this year as I am trying to move forward I have your ex with a bs claim my address in a different city and now safety concerns. Happy thanksgiving to me.; 12:09:22 CC: (BB), I can't control him. It's not fair. He's suing me too. He's psychotic. I know that this is a tough time for you and I hate that he's doing this. I have no control over him and his psychotic actions.; 12:10:30 BB: I can't and won't do this ; 12:13:26 CC: He's filed a lawsuit. We have to respond and defend ourselves or it doesn't go away.; 12:14:40 BB: I shouldn't be in this Shit at all. Period; 12:15:26 CC: I agree 600%; 12:16:30 BB: And when you state well you hate report. Nothing to do with me. Sorry all to do with you.; 12:19:24 CC: I'm sorry that he's doing this.; 18:43:58 BB: Are friendship was and is done. You threw it away long before today. I won't throw you under a bus but I also won't be thrown there either. I am filing a defence that I reported and legally had to. Do not report that you didn't know me and that I was rogue. Don't just don't. My statement will be the truth protecting me p and the girls. Don't say any different because I won't lie. You decided a long time ago that fuck her and you acted accordingly. I am not nothing and won't be treated as nothing. DON'T REPLY I DON'T WQNT TO HEAR ANY MORE LIES. JUST KNOW I WON'T WRITE THEM..; 18:51:36 BB: Not once in this issue have you said Omg I am sorry. And when you got served and not yesterday did you say a fucking word to me. It isn't and won't be all about you. Not for me and p not this time.;

[54] On October 8, 2015, BB continues:

05:36:25 BB: Hi I drove down and filed today. Said duty to report. Didn't know him. Knew you from work. That is it. Quoted duty to report protection and law. And filed a motion to suppress my address due to safety concerns related to cases I worked on.; 05:41:51 BB : Won't put you or girls in jeopardy

b) Evidence of BB

[55] BB testified that she made the call to the Society because of her “duty to report” although she admitted that she did not witness the incident. She stated that she learned of AA’s address from one of his daughters and that she called the Society to protect his daughter because she was “dealing with a lot of stuff.”

[56] BB said that she received the information she reported to the Society from the girls (AA and CC’s daughters). The were present when BB and CC were having a conversation before CC went off to work. BB was caring for the children that night. BB recalled that the younger one was in a cast. BB was talking with the girls and the information came out. BB confirmed that she received the information when both girls and her own son were present.

[57] BB waited 24 to 36 hours before contacted the Society.

a) Evidence of CC

[58] CC testified that on the night before the call was made to the Society, she was in the hospital due to a miscarriage. She explained that she did not mention this in the original trial because she had no memory of it until now. She is currently receiving psychotherapy to deal with post-traumatic stress disorder. Through therapy she recently discovered that she is blocking out memories and entire blocks of time.

[59] She testified about her efforts to provide AA with complete disclosure. However, she offered no explanation as to why she never disclosed the undeleted texts on the iPhone she gave to her daughter.

[60] Most of her testimony related to explaining the reasons for her sending and receiving so many text messages in 2017.

[61] In cross-examination, CC acknowledged that between April, 2013 and June, 2013 she exchanged over 1,000 texts with BB. She agreed that she attended the hospital on April 15, 2013 and that, when leaving, AA offered that she could take children but she declined. Her memory remained unclear as this was the day after she had spent the evening at the hospital after the miscarriage.

C. The Law

1. Intentional infliction of emotional distress

[62] The Ontario Court of Appeal recently affirmed the elements necessary to prove the tort of intentional infliction of emotional distress: Prinzo v. Baycrest Centre for Geriatric Care (2002), 60 O.R. (3d) 474 (C.A.). The tort of intentional infliction of mental suffering has three elements. The plaintiff must prove:

1. The defendant’s conduct was flagrant and outrageous;

2. The defendant’s conduct was calculated to harm the plaintiff;

3. The defendant’s conduct caused the plaintiff to suffer a visible and provable illness.

2. Conspiracy

[63] In 1983, the Supreme Court of Canada recognized two categories of civil conspiracy: lawful means conspiracy (or simple motive conspiracy) and unlawful means conspiracy: Canada Cement LaFarge Ltd. v. British Columbia Lightweight Aggregate Ltd., [1983] 1 S.C.R. 452 at pp. 471-2.

[64] Essential, however, to any civil conspiracy is that two or more persons must act in combination by agreement or common design. As that essential element is lacking in this case, it is unnecessary to review the nuances of the developing law and the more recent decisions of the Supreme Court of Canada and our Court of Appeal with respecting the lawful and unlawful means categories.

3. Slander and libel

[65] To succeed in the tort of defamation the plaintiff must prove three things:

A plaintiff in a defamation action is required to prove three things to obtain judgment and an award of damages: (1) that the impugned words are defamatory, in the sense that they would tend to lower the plaintiff's reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff. If these elements are established on a balance of probabilities, falsity and damages are presumed. The plaintiff is not required to show that the defendant intended to do harm, or even that the defendant was careless. The tort is thus one of strict liability. (Grant v. Torstar Corp., [2009] 3 S.C.R. 640, 2009 SCC 61 at para. 28.)

[66] Once the plaintiff proves the three essential elements on a balance of probabilities, the defendant can defend the claim by proving the defamatory words were true or that the words were part of a privileged communication absolute or qualified.

[67] Qualified privilege was explained by the Supreme Court of Canada in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130:

143 Qualified privilege attaches to the occasion upon which the communication is made, and not to the communication itself. As Lord Atkinson explained in Adam v. Ward, [1917] A.C. 309 (H.L.), at p. 334:

. . . a privileged occasion is . . . an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.

[68] In Cusson v. Quan, 2007 ONCA 771, the Ontario Court of Appeal recognized some of the contexts in which a qualified privilege may arise.

[39] Employment references, business and credit reports, and complaints to police, regulatory bodies or public authorities are classic examples of occasions of qualified privilege. The rationale for qualified privilege is that on such occasions, "no matter how harsh, hasty, untrue, or libelous the publication . . . the amount of public inconvenience from the restriction of freedom of speech or writing would far outbalance that arising from the infliction of private injury" (Huntley v. Ward (1859), 6 C.B. (N.S.) 514, at p. 517).

[40] The privilege is said to be qualified as it can be defeated upon proof of malice, that is spite or ill-will, ulterior purpose, or, more commonly, proof that the defendant either knew the statement was false or was reckless as to its falsity: see Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130, at para. 145 ("Hill v. Scientology"). The privilege can also be lost where the limits of the duty or interest are exceeded by the use of words not reasonably appropriate to the occasion.

D. Analysis

a) Conspiracy

[69] In my original decision, I was not prepared to conclude that BB and CC acted in combination by agreement or common design which is necessary to prove the civil tort of conspiracy.

[70] Considering the evidence received in the second part of this trial, I am satisfied on a balance of probabilities that BB and CC did act in combination by agreement or common design to make a false report to the Society.

[71] I reject the evidence of BB that she learned of the information that she reported to the Society from one of AA and CC’s daughters. The children were never in her company between the time of the injury and the time of the report to the Society. The only possible source for BB learning of the injury was from CC and I find that CC was the source of the information. Considering the texts exchanged between CC and BB and CC’s inconsistent and evasive evidence, I find her evidence to be neither reliable or credible.

[72] I am not satisfied that any special damages have been identified or proven by AA that related directly to the conspiracy. Accordingly, the conspiracy claim merges with the two claims addressed below.

b) Intentional Infliction of Emotional Distress

[73] In this case, I am satisfied on a balance of probabilities that the three elements of the tort of intentional infliction of emotional distress have been proved by the plaintiff. In making a false referral to the Society, BB engaged in conduct that was flagrant and outrageous and that was calculated to harm the plaintiff.

[74] My original decision was released without my having the benefit of the very recent decision of the Supreme Court of Canada in Saadati v. Moorehead, [2017] 1 S.C.R. 543, 2017 SCC 28, on the extent to which expert evidence of mental health is required to prove damages. On the evidence of AA alone, I am satisfied that the false referral caused AA to suffer a visible and provable illness.

[75] On his evidence, I am satisfied that the false referral caused him to suffer depression and anxiety beyond “the upset, disgust, anxiety, agitation or other mental states that fall short of injury: Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, 2008 SCC 27 at para. 9.

[76] On the evidence before me, AA is entitled to general damages for intentional infliction of emotional distress in the amount of $10,000.00 for which BB and CC are jointly and severally liable.

c) Slander and Libel

[77] The communication that BB had with the Society referred to AA using words that unquestionably would tend to lower the plaintiff's reputation in the eyes of a reasonable person.

[78] AA has proved on a balance of probabilities his claim of slander against both BB and CC who conspired together.

[79] I am not satisfied that AA has made out a separate claim for slander against both CC for the answers she gave to the Society when questioned.

[80] Communication with child welfare agencies responsible for protecting children in the course of their investigations is, in my view, but another “classic example” of an occasion of qualified privilege as referred to by the Court of Appeal in Cusson v. Quan, 2007 ONCA 771. To find otherwise, would make it impossible for such public agencies to carry out their difficult but very necessary responsibility of protecting vulnerable children. I have no doubt that most interviews conducted in the course of such investigations will include statements that tend to lower another’s reputation in the eyes of a reasonable person. CC spoke to Ms. Cooper about AA on the promise from Ms. Cooper that she would not disclose what CC told her. This expectation was reasonable. Her discussion with Ms. Cooper was protected by qualified privilege, even if it included CC making admissions about what she said to others at work.

[81] I was provided with no authorities dealing with the quantum of damages in these circumstances. In determining the appropriate amount, I have considered how long it took the Society to complete its investigation, the nature of the allegation, the number of people and who heard the false allegation and the fact that the Society records show it as an unverified referral noting a concern that it may have been malicious. It impossible to know if this lowers or improves AA’s reputation in the eyes of the Society.

[82] On the evidence before me, AA is entitled to general damages for slander in the amount of $10,000.00 for which BB and CC are jointly and severally liable.

d) Punitive damages

[83] Given the malicious nature of the false referral, AA is entitled to punitive damages in the amount of $5,000.00 for which BB and CC are jointly and severally liable.

E. Conclusion

[84] Judgment is granted in favour of the plaintiff against both defendants in the total amount of $25,000.00 for which BB and CC are jointly and severally liable.

[85] I will receive brief submissions, no more than eight pages, to be served and filed on or before July 31, 2018. I will also receive any reply from any party of no more than two pages to be served and filed on or before August 14, 2018.

J.C. Corkery J.

Released: July 3, 2018

Appendix

Amendments made July 22, 2020:

In accordance with the order made June 1, 2020 (AA v. BB and CC, 2019 ONSC 3423):

• the endorsement was amended to use the letters AA, BB and CC in place of the names or initials of parties, and
• the warning was added.