Court File and Parties

COURT FILE NO.: CV-16-563880 MOTION HEARD: 20180730 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Dr. Noelle Ibrahim, Plaintiff AND: Irene Orellana, Defendant

BEFORE: Master P.T. Sugunasiri

COUNSEL: Knapp, M., Counsel, for the Defendant/Moving Party Anisman, J., Counsel for the Plaintiff/Responding Party

HEARD: July 30, 2018

REASONS FOR DECISION

Overview

[1] The issue in this motion is the scope of documentary discovery in this defamation lawsuit. The Defendant has proposed a discovery plan that seeks 12 classes of documents. The Plaintiff disputes 8 of those classes. For the following reasons, I agree with the Plaintiff and dismiss the Defendant’s motion to impose its discovery plan. The categories of documents that the Defendant requests go beyond the narrow scope of documentary discovery in defamation cases.

Facts:

Nature of the Action

[2] The action arises from two statements that the Defendant is alleged to have made to the police on March 29, 2015 and February 26, 2016 respectively. The Defendant was the Plaintiff’s personal trainer at Goodlife Fitness. On March 29, 2015, the Defendant made a statement to Toronto police that during a training session on the evening of March 27, 2015, the Plaintiff expressed anger towards her current and former employers and suggested that she wished to harm them. The Defendant also advised that the Plaintiff sent her and her daughter text messages the next day that made her feel frightened (“Statement #1).

[3] The Plaintiff alleges that Statement #1 caused her to be charged with a criminal offence, fired from her job at Deloitte’s and be subject to a recognizance with conditions prohibiting her from having contact with her peers and colleagues. This charge was eventually dropped apparently after the Plaintiff completed an anger management diversion program. This lead to the diminution of her reputation.

[4] The Defendant then repeated Statement #1 to the police on February 26, 2016 to seek a peace bond against the Plaintiff, on the basis that the Plaintiff had come looking for her at the club and had sent her various text message and left her voicemail messages (Statement #2). After a full hearing the peace bond application was dismissed.

The Pleadings

[5] The Plaintiff commenced the within action by issuing a Statement of Claim on November 9, 2016 seeking damages for defamation. In particular, the Plaintiff alleges that the defamatory statements has caused her irreparable harm to her career and has damaged her personal and professional reputation. The prayer for relief seeks general damages and “aggravated and exemplary damages” for the Defendant’s high-handed conduct. There is no claim for special damages for loss of income or psychiatric injury beyond that which is captured under the umbrella of general damages.

[6] On May 30, 2017 the Defendant delivered a Statement of Defence (“SoD”) which relies on the defences of qualified privilege, justification, and that the Plaintiff’s damages arise from unrelated incidents from 2011 to 2015.

[7] After the exchange of pleadings, the Defendant’s counsel conducted an internet search which revealed that on or about April 18, 2016, the Plaintiff had commenced an action in the State of New York. Ultimately the Plaintiff filed an “Amended Complaint” which states at paragraphs 16,17 and 18 that:

16. “Officials from COLUMBIA UNIVERSITY, including but not limited to LUCA PENA and DEIRDRE FUCHS, on or about April 22, 2015 made a false report to Canadian authorities which referred the plaintiff for criminal prosecution and as a direct result the plaintiff was charged in Canada with a violation of Canadian Criminal Code Uttering Threats, 264(1)(a), a crime of violence and moral turpitude which is punishable by up to five (5) years’ incarceration. Specifically, the defendants reported to the Canadian police that plaintiff had stated that she was ‘going to her work to shoot everybody’, which was false.

17. The actions of the defendants in referring the plaintiff for criminal prosecution in Canada resulted in the plaintiff being arrested, subjected to a Level 3 Strip Search, and incarcerated overnight, and ultimately resulted in hospitalization for acute psychiatric problems.

18. The Canadian charges against the Plaintiff were dismissed on or about June 3, 2015 at the request of the Crown after a hearing, and the basis being no reasonable prospect of conviction inasmuch as defendants LUCAS PENA and DEIRDRE FUCHS failed to confirm their own false prior accusations.”

[8] On December 1, 2017, the Ministry of the Attorney General provided the Defendant with a complete copy of a Crown Brief which revealed that the Plaintiff had numerous contact with the Niagara Police. Upon conducting a court file search, the Defendant found out that on November 8, 2013, the Plaintiff had issued a Notice of Action against Niagara Police and health care providers for her charge, arrest and 30-day detention in Milton for “false messages” in 2011. The Notice of Action also alleges negligent misdiagnosis on the part of the health care providers of bipolar disorder, schizophrenia and paranoid personality disorder.

[9] As a result of this information, the Defendant amended her defence to allege that the Plaintiff’s damages, if any, arise from the 2011 incident and/or the 2015 Columbia University incident.

[10] The relevant portions of the defence are as follows:

13. Irene pleads that both the March 2015 Statement and the February 2016 Statement are protected by qualified privilege. Irene states that her attendances before the Toronto Police Service on March 28, 2015 and February 26, 2016 were both occasions of qualified privilege. Irene denies that she acted with malice…

14. Irene denies that the March 2015 Statement bears the meanings attributed to it by the Plaintiff at paragraph 9 of the Statement of Claim and denies that the February 2016 Statement bears the meanings attributed to it by the Plaintiff at paragraph 11 of the Statement of Claim. Irene states, and the fact is, that the plain and ordinary meaning of those Statements was as follows:

    a) The Plaintiff had expressed anger and hostility toward certain institutions and individuals working at those institutions;

    b) The Plaintiff had expressed a desire to harm certain institutions and individuals working in those institutions, and had explored means in furtherance of that desire;

    c) The Plaintiff had expressed anger and hostility towards Irene:

    d) The Plaintiff was a potential danger to herself;

    e) The Plaintiff was a potential danger to others, including Irene, certain institutions, and individuals working at those institutions.

15. Irene pleads the defence of justification, and states that those meanings were in fact true. In the alternative, Irene states that she believed those meanings to be true and did not have reckless disregard to their truth or falsity.

16. Irene denies that the Plaintiff sustained damages, and puts the Plaintiff to the strictest proof, thereof…

16A. Irene states that the Plaintiff’s damages… arise from an incident on or about 2011 in which the Plaintiff was charged and arrested for “false messages”, and subsequently hospitalized for psychiatric treatment. As a result of the incident, the Plaintiff commenced an action in the Superior Court of Justice in the City of Toronto.

16B. Irene states that the Plaintiff’s damages… arise from an incident on or about April 22, 2015 in which the Plaintiff placed one or more telephone calls to Columbia University as a result of which the Plaintiff was charged win [sic] an offence under section 264.1(1) of the Criminal Code. The Plaintiff was arrested, subjected to strip search, and incarcerated overnight. Irene states that this incident exacerbated a pre-existing psychiatric illness and resulted in the Plaintiff’s hospitalization for psychiatric problems. As a result of this incident, the Plaintiff commenced an action in the United States of America with respect to these and other damages.

The Disputed Documents

[11] On January 2, 2018, the Defendant forwarded her proposed Discovery Plan to the Plaintiff. On February 23, 2018, the Plaintiff responded with her revisions, limiting the scope of documentary discovery. Of the 12 classes of documents requested, the Plaintiff disputes the following 8:

a. All documents relating to the Plaintiff’s arrest in 2011 with respect to “false messages”, and subsequent hospitalization for psychiatric treatment;

b. All documents pertaining to the Plaintiff’s action in connection with the 2011 arrest and hospitalization;

c. All documents relating to the Plaintiff’s participation in a diversion program with respect to the Toronto police charges, including but not limited to records from the anger management program and/or treating psychologist and/or treating psychiatrist.

d. All communications between the Plaintiff and Columbia University on or about April 22, 2015;

e. All documents relating to the charges laid against the Plaintiff in connection with her communications to Columbia University on or about April 22, 2015;

f. All records relating to the Plaintiff’s hospitalization subsequent to the charges laid;

g. The Plaintiff’s employment file from McKinsey, Deloitte, BMO and JP Morgan;

h. All health records for the Plaintiff, including but not limited to clinical notes and records of the Plaintiff’s family physician for the period three years prior to March 29, 2015, to the present; and

i. The accounts rendered to the Plaintiff in connection with the charges laid subsequent to the Defendant’s attendance before the Toronto Police Service on March 20, 2015, and the application under section 810 of the Criminal Code subsequent to the Defendant’s attendance before the Toronto Police Service on or about February 26, 2016.

Law and Analysis:

[12] The Defendant proceeds under Rules 29.1.03 of the Rules of Civil Procedure and the Court’s decision in Telus Communications Co. v. Sharp, 2010 ONSC 2878 (Master) to impose her discovery plan on the Plaintiff.

[13] The issue in the motion is whether the Plaintiff should be compelled to produce the documents described above. The Defendant’s position is set out in paragraph 14 of her factum where she submits that the document requested “may provide evidence whether the Plaintiff did, in fact, make the statements attributed to her and may provide evidence that the Plaintiff’s alleged damages were in fact caused by that incident.” The question of whether the Plaintiff did in fact make the statements attributed to her speaks to the defence of justification. The Defendant’s comments to the police would be justified if the Defendant can prove that the Plaintiff did in fact express and intention to harm her employer, and sent intimidating or threatening messages to the Defendant and her daughter. The Defendant submits that in order to prove that, she is entitled to explore the circumstances surrounding other instances when the Plaintiff was accused of threatening her employer; the idea being that if she made such threats elsewhere, she more likely than not made them here.

[14] It appears that the Defendant relies solely on the general test of relevance that is applied in all cases. It is clear that in defamation cases, however, the broad discovery otherwise afforded the parties is limited to the particulars pleaded when justification is raised as a defence. The rationale of the rule is to prevent a person from defaming another and then obtaining access to all of his books to see whether what was said can be justified.

[15] This notion of buttressing the Defendant’s position by looking to similar facts elsewhere has been addressed and rejected by courts in Ontario and elsewhere. In I.B.E.W., Local 213 v. Pacific Newspaper Group Inc., 2004 BCSC 310, the defendants sought the production of certain documents which were in issue in the libel action where they had pleaded justification. The British Columbia Supreme Court stated that libel defendants are not permitted to enter a generalized plea of justification and then embark on a fishing expedition through the discovery process in the hope of uncovering evidence which may buttress general allegations of facts justifying their defamatory statements.

[16] This reasoning was adopted by my colleague Master Short in Warman v National Post Co, 2010 ONSC 3670, and follows the reasoning of the Nova Scotia Court of Appeal in Kent v Kehoe, 2000 NSCA 3 when it stated at paras. 19 and 22 that:

A defendant who pleads justification, is taken to be possessed of facts which support the truth of what was said. For that reason, the defendant is not permitted to go on a fishing expedition through the discovery process… The strict requirements of pleading are related to the unique nature of defamation actions. The position of the parties differ from that in most forms of litigation. The plaintiff need only establish that the allegedly defamatory statements were published. The material is then presumed to be false…

When, however, the issue before the court is entitlement of the defendant to discovery, the court must consider the pleadings, not from the perspective of whether the plaintiff knows the case that must be met, but whether they are sufficiently specific to entitle the defendant to the discovery sought.

[17] With respect to the Defendant’s argument on damages, the Plaintiff is claiming damages at large. This means that once there is a finding of defamation, damages are presumed and the Plaintiff need not prove actual loss. The Damages are for the anxiety, and injury to the plaintiff’s feelings caused by the defamation, and damage to reputation.

[18] The Defendant submitted the Ontario Court of Appeal’s decision in Murphy v Alexander to suggest that the presumption of damages can be rebutted. In her view, some of the requested documents may provide evidence to rebut the presumption. In defamation law, “rebutting the presumption” can be done through mitigation. The Defendant may mitigate or lower the quantum of damages by demonstrating that the Plaintiff already had a poor reputation in the community. In doing so, she can raise the fact of previous convictions in a relevant sector of the Plaintiff’s life within a relevant period such as to affect her current reputation. She can also rely on past judicial proceedings involving the Plaintiff or adverse comments made by a judge about her in relevant areas. What she cannot do is open up the Plaintiff’s entire life to find acts of impropriety or adduce evidence relating to specific acts of misconduct. What the Defendant also cannot do is allow the inquiry to degenerate into trials of the truth or falsity of other incidents. Finally, the Defendant can adduce at trial, and therefore obtain at discovery, evidence of past conduct that is relevant to the context of the defamatory remarks in question.

[19] I now turn to the documents that the Defendant seeks. I note that in each category, the Defendant did not direct me to any jurisprudence in support of their position.

All documents relating to the Plaintiff’s arrest in 2011 with respect to “false messages”, and subsequent hospitalization for psychiatric treatment and all documents pertaining to the Plaintiff’s action in connection with the 2011 arrest and hospitalization

[20] According to the Defendant, the purpose of this information is to explore whether or not the Plaintiff made statements to the Defendant that the Defendant then simply repeated to the police. The Defendant clearly did not know this information when she made her statements to the police and so it could not form the basis of justification. It also does not fall into any one of the permitted categories of inquiry for the purposes of mitigating damages. The Defendant does not plead that this prior instance had already damaged her reputation in the community prior to Statements #1 and #2.

[21] The only purpose of such discovery then is to question the Plaintiff’s character and credibility in a she said/she said scenario. This is not an appropriate line of inquiry in a defamation case. Even if it were relevant, the Defendants do not need the documents of the arrest in 2011 to impugn the Plaintiff’s credibility. Rather, she can simply try to use the fact of the arrest to persuade the trier of fact that the Plaintiff is not to be believed in her denial of the comments attributed to her.

[22] Further, the hospitalization records for psychiatric treatment in 2011 has nothing to do with this action. The Plaintiff is not claiming any particular psychological injury beyond those that fall under the umbrella of general damages at large. In my view this is not the appropriate scope of discovery in the present action.

All documents relating to the Plaintiff’s participation in a diversion program with respect to the Toronto police charges, including but not limited to records from the anger management program and/or treating psychologist and/or treating psychiatrist.

[23] Some of this information is relevant to the issue of whether or not the Plaintiff made the comments that were then passed on by the Defendant to the police. If, for example, the Plaintiff’s entry into the diversion/anger management program was based on her admission that she did indicate to the Defendant that she wanted to harm her former employer or employers, this is directly relevant to the Defendant’s defence of justification and is therefore within the proper scope of discovery.

[24] However, in my view, the current pre-discovery request is overbroad without foundational questions establishing how the Plaintiff qualified for the diversion/anger management program and whether or not she saw a psychologist or psychiatrist with whom she discussed the conversation with the Defendant, the resulting charges, and the diversion program. As such, any request for documentary disclosure is better left to be addressed by way of undertaking at the discovery. My comments here are not determinative of relevance of this category of documents but rather leaves the issue open to be determined at a later date if necessary.

All communications between the Plaintiff and Columbia University on or about April 22, 2015; All documents relating to the charges laid against the Plaintiff in connection with her communications to Columbia University on or about April 22, 2015; and All records relating to the Plaintiff’s hospitalization subsequent to the charges laid

[25] The Defendant has not pleaded that the Columbia University or other incidents formed the basis of her comments nor that this incident had already damaged her reputation in the community. In an ordinary case, I would give a pleading its most generous reading. This is not the case in defamation actions. In my view it is not enough to allege that the 2015 incident at Columbia is an alternative cause of the Plaintiff’s damages. This is a different plea than that the Plaintiff’s damages are mitigated because her reputation in the community was already poor as a result of the Columbia incident. The issue of mitigation and reputation is neither raised in the pleading nor in the Defendant’s factum.

[26] What the Defendant does argue is that this information may provide evidence as to whether or not the Plaintiff made the comments attributed to her. I rely on my reasons at paragraphs 20 and 21 to conclude that the Defendant is not entitled to this information for this purpose.

The Plaintiff’s employment file from McKinsey, Deloitte, BMO and JP Morgan; All health records for the Plaintiff, including but not limited to clinical notes and records of the Plaintiff’s family physician for the period three years prior to March 29, 2015, to the present and; The accounts rendered to the Plaintiff in connection with the charges laid subsequent to the Defendant’s attendance before the Toronto Police Service on March 20, 2015, and the application under section 810 of the Criminal Code subsequent to the Defendant’s attendance before the Toronto Police Service on or about February 26, 2016

[27] Based on my discussion of damages in defamation cases, these documents are wholly irrelevant to this action and need not be produced.

Disposition:

[28] For the reasons outlined above, I dismiss the Defendant’s motion with costs to the Plaintiff. If the parties cannot agree on quantum, the Plaintiff may deliver a costs outline and the Defendant may deliver written submissions of no more than two (2) pages double-spaced to address any issues she has with quantum. These may be sent to my Assistant Trial Coordinator at Christine.Meditskos@ontario.ca.

Original signed “Master P. Tamara Sugunasiri Date Released: October 31, 2018