Court File and Parties
Court File No.: 06-CV-319553 PD2 Motion Heard: 23102017 Superior Court of Justice - Ontario
Re: Dr. Asaf Durakovic, Plaintiff/Moving Party And: Tania Guzman, Regional Municipality of York Police Service Board, Peter Heard, Scott Browne, York Regional Children’s Aid Society, Deena Hugh-Yeun, Bonita Majonis, Denise Lehman Brown, and Certain Unnamed Persons, Defendants/Responding Parties
Before: Master P.T. Sugunasiri
Counsel: M. Klippenstein, Counsel, for the Plaintiff/Moving Party G. Asaro, Counsel for the Defendants/Responding Parties York Regional Children’s Aid Society, Deena Hugh-Yeun, Bonita Majonis and Denise Lehman Brown D. Richmon, Counsel for the Defendant/Responding Party Guzman G. Wray, Counsel for the Defendant/Responding Party Regional Municipality of York Police Service Board, Peter Heard, Scott Browne
Heard: October 23, 2017
Reasons for Decision
[1] The Plaintiff, Dr. Durakovic bring this motion pursuant to Rule 26.01 to amend his pleading for a third time, in this unique civil action arising from an acrimonious family law dispute. For the reasons set out below, I allow the motion with costs.
Chronology of Events and Relevant Allegations:
[2] The original Statement of Claim was dated October 30, 2006 and was delivered on the heels of a Notice of Action issued September 29, 2006.
[3] It lies in slander for statements made by Ms. Guzman to the police on October 2, 2004 to the effect that Dr. Durakovic had ties to Al Qaeda, was a violent extremist, was connected to a person who was in flight training with the 9/11 terrorists and other similar allegations. These words were alleged to have been repeated by Officers Heard and Browne (referred to collectively with the Defendant, Regional Municipality of York Police Services Board, as the “Police”) and snowballed into precipitous and unjustified actions by the Police and York Regional Children’s Aid Society, Deena Hugh-Yeun, Bonita Majonis and Denise Lehman Brown (“CAS Defendants”). The very serious steps taken by these defendants, including a full-scale lock down of Dr. Durakovic’s home, the removal of his children, and the laying of criminal charges, were deeply harmful to him, his reputation, and his relationship with his daughters.
[4] Dr. Durakovic also alleges that Ms. Guzman’s false and scandalous statements poisoned the mindset of the CAS and the Police and shaped their handling of the criminal investigation and family intervention. He alleges slander and negligence or intentional misconduct by them.
[5] Since commencing the action, the family law proceedings came to an end. Dr. Durakovic became subject to two adverse family law orders obtained in June and November of 2008 (“2008 family law proceedings”) that involved the input of the Defendants. In those proceedings, he was required to pay spousal and child support and lost custody and access to his daughters.
[6] In February of 2013, Dr. Durakovic was largely successful in resisting a summary judgment motion brought by the CAS Defendants. In dismissing the motion (except with respect to the allegation of slander), Justice Morgan addressed the issue of institutional bias and mindset, and concluded that it was a triable issue whether or not such bias existed and whether it shaped the CAS Defendants’ approach to the case and indeed to their position in the 2008 family law proceedings.[^1]
[7] On August 28, 2014, Dr. Durakovic was permitted to amend his claim for a second time to particularize the slanderous statements made by Ms. Guzman in October of 2004.
[8] Mr. Durakovic now seeks to amend his claim for a third time. The proposed amendments are as follows:
The Plaintiff’s claim is for:
General, aggravated, and special damages in the amount of $1,000,000, plus a portion of the amount owing by the Plaintiff Dr. Durakovic to the Defendant Tania Guzman according to family court decisions obtained in part as a result of the defamation described herein, which portion claimed is $750,000.00
64.1 The Plaintiff Durakovic asserts that the falsehoods propounded by the Defendant Guzman about the Plaintiff, specifically that he was a radical Muslim terrorist with substantial links to Al Queda and to Taliban, were constantly repeated throughout the subsequent family law proceedings by the Defendant Guzman, that they substantially influenced the CAS in those proceedings so as to result in a biased mindset against him in the influential role of the CAS in the court process, and that they had an overall severely damaging effect on the proceedings and the result of the proceedings, including on the two subsequent court decisions, one regarding finances dated June 11, 2008 by Justice Scott, and one regarding custody and access dated November 12, 2008 by Justice Maddalena, and the plaintiff claims damages arising from those court judgments wrongfully influenced by the false and malicious accusations of terrorism by the Defendant Guzman.
64.2 The Plaintiff asserts that the Defendant Guzman repeated the false and malicious allegations of terrorism for years in numerous court filings in the custody and access proceedings, and in the financial proceedings.
64.3 The Plaintiff Durakovic asserts that the CAS continued for many years to be substantially influenced by the false and malicious terrorism accusations propounded by the Defendant Guzman, and through the important and influential role of the CAS in the custody and access proceedings the CAS gave unfounded and severely damaging credibility to the false and malicious accusations, allowed their own judgment and actions to be influenced by the accusations, and influenced the process and outcome of the custody and access proceedings, including the Judgment of Justice Maddalena, which in turn impacted the financial decision of Justice Scott, all in favour of the Defendant Guzman, who had propounded the falsehoods, and against the Plaintiff Durakovic.
64.4 The Plaintiff Durakovic asserts that the false and malicious accusations of the Defendant Guzman influenced the York Regional Police in the family court proceedings so as to bias them against the Plaintiff Durakovic, since the Police were put in a conflict of interest position as a result of them have acted precipitously and egregiously against the Plaintiff Durakovic based on the false allegations of the Defendant Guzman, and the police accordingly were unable to act fairly towards the Plaintiff Durakovic since to do so would appear to be an admission of error on their part in the extreme actions they had earlier taken against the Plaintiff Durakovic based on the false terrorism allegations of the Defendant Guzman.
64.5 The Plaintiff Durakovic asserts that throughout the family law proceedings the false and malicious accusations made and repeatedly reiterated by the Defendant Guzman influenced the proceedings by tapping into and “making use of” background societal biases and prejudices against Muslim men who might be seen as radical Islamic terrorists, and bringing those biases and prejudices into all aspects of the financial proceedings and the custody/access proceedings, so as to taint and tilt the proceedings against the Plaintiff Durakovic and in favour of the Defendant Guzman.
64.6 The Plaintiff Durakovic asserts that throughout the family law proceedings the Defendant Guzman repeatedly relied on a recording she had made secretly of an alleged conversation between the Plaintiff Durakovic and the Defendant Guzman, which she claimed constituted “uttering threats” against her, and which had resulted in criminal charges against him, which charges were dismissed for various reasons, including the court’s doubts about the Defendant Guzman’s credibility, and the court’s finding that the recording appeared to have been altered and was inauthentic. The Plaintiff asserts that the recording was improperly used in the family law proceedings by the Defendant Guzman, and that its improper use had serious impacts on the proceedings.
64.7 The Plaintiff Durakovic asserts that the cumulative effect of the above factors, all rooted in the false and malicious statements of the Defendant Guzman, as frequently repeated by her, and as absorbed by the CAS and as affecting the York Police, was to poison in a general way the assessments of credibility of the various parties in the family law proceedings, and in particular on various specific issues dependent on credibility assessments. The result was that the credibility of the Plaintiff Durakovic was systematically undermined, and the credibility of the Defendant Guzman was systematically overestimated.
64.8 The Plaintiff Durakovic asserts that the continued and long term impact and influence of the false and malicious statements of the Defendant Guzman, and in particular the absorption of the statements by the CAS and by the York Police, made it extremely difficult for the Plaintiff Durakovic to counteract them in the family law proceedings.
64.9 Dr. Durakovic claims damages for the consequences of the judgments improperly and fraudulently obtained by Ms. Guzman as a result of the false, outrageous and scandalous allegations made by her, including damages both for the amounts in equalization, spousal and child support that would not have been awarded but for Ms. Guzman’s conduct, and to compensate Dr. Durakovic for the enormous loss and hurt suffered as a result of him being denied a relationship with his daughters.
Analysis:
[9] Rule 26.01 of the Rules of Civil Procedure reads as follows:
26.01 On motion at any stage of an action the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment.
[10] Despite the mandatory language of Rule 26.01, the Court retains residual jurisdiction to exercise a gatekeeping role, similar to motions to strike. In other words, if it is plain and obvious that an amendment is not tenable, then the amendment should not be allowed.[^2]
[11] The Defendants argue that the amendments are not legally tenable for two reasons: 1) the amendments raise new causes of action that are out of time by operation of the Limitations Act, 2002; and 2) the amendments amount to a collateral attack on the decisions of Justice Scott and Justice Maddalena made in the two 2008 family law proceedings.[^3]
[12] I disagree. it is not plain and obvious that the proposed amendments cannot succeed however steep Dr. Durakovic’s uphill climb may be. In so concluding, I construct the proposed amendments liberally and take the facts as pleaded, to be true.
The Proposed Amendments Do Not Raise New Causes of Action
[13] On my reading of the proposed amendments, Dr. Durakovic wishes to plead: a) that the defamatory words repeated by the Ms. Guzman at the 2008 family law proceedings caused him harm by improperly influencing the Court’s decisions, and b) that the defamatory words said in October of 2004 and repeated by Ms. Guzman during the 2008 family law proceedings caused internalized bias in the Police and CAS Defendants causing them to give undue credibility to Ms. Guzman’s claims against him in the 2008 family law proceedings.
[14] There are two aspects to these proposed allegations. The first is that Ms. Guzman’s scandalous statements to the Police and CAS Defendants in 2004 poisoned the Police and CAS Defendants and negatively shaped their positions at the 2008 family law proceedings. This in turn led to damaging judicial decisions. The second is that Ms. Guzman repeated the 2004 allegations at the 2008 family law proceedings which also caused damage.
[15] With respect to the first aspect, I agree that the proposed amendments do not make reference to the 2004 statements. However, read liberally and allowing for drafting errors and irregularities, it can be readily inferred that the amendments are intended to capture the snowball effect of Ms. Guzman’s comments. For example, paragraph 64.3 pleads that “the CAS continued for many years to be substantially influenced by the false and malicious terrorism accusations propounded by the Defendant Guzman…” In other words, the proposed amendments can be viewed as a pleading of continuous damage inflicted by the original statements.
[16] The Defendants provided evidence and argument that in fact Justices Scott and Maddalena did not rely on Ms. Guzman’s slanderous words in coming to their decisions. Whether or not the comments impacted on the 2008 family law proceedings is not a question to decide on this motion. For the purposes of assessing tenability, I take the pleadings to be true.
[17] The second aspect of the proposed amendments relates to the repetition of the slanderous comments during the 2008 family law proceedings. This does constitute a new cause of action. As noted by the Ontario Court of Appeal in Murphy v. Alexander, every repetition of slanderous comments leads to a new cause of action.[^4]
[18] As such, to the extent that Dr. Durakovic is alleging damages from the repetition of the slander itself, it is statute-barred. However, when read as a whole, I find that the thrust of the proposed amendments is to allege the snowball effect of the original comments. The repetition of the slanderous comments is a part of this larger narrative. Forensically excising it at the pleadings stage does not advance the litigation. In my view, this issue is better addressed by allowing the proposed amendments without prejudice to the Defendants raising a limitations defence in response.
[19] In Murphy, the Court of Appeal recognized this distinction between seeking damages for the repetition itself, and using evidence of repetitions to create a narrative relevant to overall damages:
Murphy argues that in assessing damages for defamation, particularly where, as here, malice is demonstrated, it is permissible to have regard to additional defamatory remarks made by the defendant, both before and after the defamation sued upon, to show surrounding circumstances and a history of animus between the parties. It is true that in assessing damages for defamation, particularly aggravated damages, the court is entitled to consider the entire conduct of the defendant, both before and after an action is commenced, as well as in court during the trial: see for example, Cassell & Co., supra, at 1071-72 and Hill v. Church of Scientology, supra, at paras. 182-83 and 189. Thus, R.E. Brown, in The Law of Defamation in Canada, 2d ed. (Toronto: Carswell, 1994) states at 1500: "The reiteration of the defamatory charge at different times and at different places by the defendant may be taken into consideration in fixing the damages."
In the same text, however, Brown also states at 1501: "[W]hile the evidence is admissible in aggravation of damages, no damages may be directly awarded for any defamatory remarks that are not the subject-matter of the cause of action" [emphasis added].
[20] I also rely on Justice Lauwers’ (as he then was) determination that the broader definition of “cause of action” as being the factual matrix underpinning a plaintiff’s complaint is most appropriate in Rule 26.01 motions.[^5] In, the present case, I find that the bulk of the proposed amendments are inextricably tied to the factual matrix already pleaded by Dr. Durakovic.
[21] In this regard, I further observe that this issue of bias, the Defendants’ state of mind, and its impact on the family dispute was present in the original claim that was issued in 2006 (see for example, paragraph 12 of the Statement of Claim). At the time of the alleged slander in October of 2004, Dr. Durakovic and Ms. Guzman were already in the throes of an acrimonious family breakdown involving custody and separation issues (see paragraphs 13-33). Even at that time, Dr. Durakovic alleged that Ms. Guzman’s actions were intended to negatively influence the family law proceedings that, were, as a whole, already underway. These issues were ultimately argued before, and decided by, Justices Scott and Maddalena in the 2008 family law proceedings. He further alleges that the negligence of the CAS Defendants and Police in failing to properly investigate the scandalous allegations put them in a mindset that helped Ms. Guzman turn an acrimonious family law matter into an “anti-terrorism campaign” against Dr. Durakovic.
[22] The subject was also addressed by Justice Morgan at the summary judgment motion, which I note is based on the original Statement of Claim and was decided after the 2008 family law proceedings. He states:
It is a triable issue as to whether the terrorism, Taliban, and death cult accusations spread by Ms. Guzman to the Police and CAS Defendants were internalized by CAS and intentionally left in file and acted upon. It is not credible that these allegations were not alarming and did not inflame the assessment of the Plaintiff in a biased way…
If there was such internalization of the inflammatory accusations against the Plaintiff, the intentional conduct and negligence alleged to have occurred in managing the CAS file also reflected a form of bias and bad faith in dealing with him. This combination of wrongful acts, in turn, may have impacted not only the beginning of the child protection and family proceedings against the Plaintiff but on their end as well.[^6]
[23] The proposed amendments speak to the impact of the accusations on the “end” of the family law proceedings. Even if I were to accept the Defendants’ argument that Justice Morgan’s comments on this point were obiter, they are nevertheless helpful and persuasive. Further, Justice Morgan’s comments are made in the context of a summary judgment motion in which the CAS Defendants were obliged to put their best foot forward. If, even after that, these were Justice Morgan’s comments, it is all the more reason to allow the proposed amendments and have them tested at trial.
[24] In other words, it is not plain and obvious that the proposed amendments would fail such that they should not be permitted.
The Proposed Amendments Are Not Necessarily a Collateral Attack on the Scott and Maddalena Decisions
[25] This brings me to the argument that the proposed amendments amount to a collateral attack on the 2008 family law proceedings. In my view, it is not plain and obvious that the proposed amendments would not succeed because they amount to a collateral attack. There are valid competing arguments that should be resolved at a trial and not on a pleadings motion.
[26] The Defendants rely on several cases in which an action was struck as an abuse of process because it was an improper attempt to re-litigate a previous family law hearing.[^7] The Divisional Court in P.(R.) v. Children’s Aid Society of Lanark (County) & Smith Falls (Town) commented: “By challenging how conclusions were reached, is one not challenging the conclusions? Permitting the plaintiff to proceed in this fashion would be tantamount to allowing the plaintiff to appeal earlier decisions, something he is not entitled to do.”[^8]
[27] Justice Morgan, however, addressed this issue in the context of the summary judgment motion, albeit only with respect to the action as against the CAS Defendants. He held:
The within action does not focus on the children but rather has a significantly different focus: the rights of the Plaintiff. There is no abuse of process in litigating this claim against the CAS Defendants, as it has never been litigated before.
Of course, the Plaintiff cannot re-open any of the conclusions reached in Family Court or, for that matter, in the criminal proceedings. They are all final and must be taken as given. Some of those rulings may be central to the losses the Plaintiff claims, and others may either undermine his claim or help him prove his case at trial…
[28] Justice Morgan made these comments, knowing the outcome of the 2008 family law proceedings, and recognizing that Dr. Durakovic was asserting systemic bias and the impact of that bias on the family law proceedings from beginning to end. Dr. Durakovic is now pleading the impact of the bias at the end. It is not clear, therefore, that the proposed amendments in the unique facts of this case, are a collateral attack on the 2008 family law proceedings.
[29] At the very least, it is arguable that the proposed amendments are not a collateral attack on the 2008 family law decision and the issue should be left for trial. There are, for example, other analogous situations in which a Plaintiff was permitted to seek damages resulting from what he or she considered an improper decision, rather than seeking to overturn the decision itself. This occurred, for example, in Canada (Attorney General) v. Telezone Inc. In that case, the Supreme Court of Canada decided that the plaintiff, Telezone, was permitted to bring an action for damages arising from the decision of Industry Canada to deprive it of a personal communication license rather than having it first judicially review the decision in Federal Court. Telezone believed that the decision was improperly and unfairly made. The Attorney General sought to strike the action on the basis that it was a collateral attack on the decision, and that a judicial review was the appropriate route. As in the case of the present defendants, the Attorney General suggested that bringing an action for damages would essentially involve re-opening the licensing decision. Nevertheless, the SCC determined that an action for damages was appropriate and permissible.[^9]
[30] The difference here may be that Dr. Durakovic is seeking specific damages which would in effect set off his financial obligations arising from the 2008 family law proceedings. In Telezone, the plaintiff was seeking damages for financial losses arising from Industry Canada’s refusal to grant it a license. One might say that the proposed amendments here are therefore linked more directly to the 2008 family law decisions and therefore align with the facts that were before the Divisional Court in P.(R.) v. Children’s Aid Society of Lanark (County) & Smith Falls (Town), supra. However, for the purposes of this motion, it is not necessary to determine which argument should succeed. The existence of feasible argument on both sides of the issue is sufficient for me to conclude that it is not plain and obvious that the proposed amendments cannot succeed.
[31] I am fortified in my view by the fact that Justice Morgan considered the issue with a substantially more robust record than the one before me. If on summary judgment a Court has found there to be triable issues on bias and its influence on the family law proceedings from beginning to end, then there can be no doubt that an amendment to the pleading on this issue should be allowed to proceed. When the action was started, the outcome of the family law proceedings was not known. However, it does not necessarily mean that the factual matrix originally pled is not tied to the further damages now being raised.
[32] As noted above, my decision to allow the proposed amendments does not abrogate the Defendants’ rights, nor is there any non-compensable prejudice. Discoveries have not yet occurred. The Defendants may defend against the proposed amendments as they see fit and all of the issues raised herein can be properly determined on a full record.
Costs:
[33] Dr. Durakovic has been successful on this motion and is entitled to partial indemnity costs jointly owed by the Defendants. If the parties cannot agree on quantum, the Plaintiff may serve and file his Costs Outline and brief submissions of no more than two pages double spaced, within 14 days of these reasons. The Defendants may submit any responding submissions within 14 days from the date the Plaintiff serves and files his materials.
Master P.T. Sugunasiri
Date: February 2, 2018
[^1]: Durakovic v. Guzman, 2013 ONSC 958 at paras. 65 and 66.
[^2]: Marks v. Ontario (City), 2011 ONCA 248 at para. 19; 1317424 Ontario Inc. v. ChryslerCanada Inc., 2015 ONCA 104 at para. 7; and Brookfield Financial Real Estate Group Limited v. Azorim Canada (Adelaide Street) Inc., 2012 ONSC 3818 at paras. 27-28.
[^3]: I observe that a similar argument was made in the CAS Defendants’ summary judgment motion in which they argued that the action against them amounted to a re-litigation of the 2008 family law proceedings – see Morgan, J.’s analysis in Durakovic above at paras. 102-111.
[^4]: Murphy v. Alexander, [2004] OJ No 720 at para. 40 (CA)(QL) [hereinafter “Murphy”].
[^5]: 1309489 Ontario Inc. v. BMO Bank of Montreal, 2011 ONSC 5505 at paras. 19-21.
[^6]: Durakovic v. Guzman, 2013 ONSC 958 at paras. 65 and 66.
[^7]: See P.(R.) v. Children’s Aid Society of Lanark (County) & Smith Falls (Town), 2008 CarswellOnt 4280 (DivCt) and Plummer v. Children’s Aid Society of Hamilton, 2011 ONSC 4231.
[^8]: P.(R.), ibid. at para. 6.
[^9]: Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 SCR 585.