Court File and Parties
NEWMARKET COURT FILE NO.: CV-15-121907 DATE: 20190415 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ANTHONY PULLANO Plaintiff – and – STEVE HINDER and MAGNA INTERNATIONAL INC. and THE STRONACH GROUP Defendants
Counsel: William Reid, counsel for the Plaintiff Deborah Berlach and Nicola Brankley, counsel for the Defendants
HEARD: November 19, 20, 21, 22, 23, 26, 27, 28, 29, 30, December 4, 5, 6 7, 2018
Reasons on Issues of Nominal Damages, Vicarious Liability, Costs and Form and Content of Judgment
MCCARTHY J.
Background
[1] This matter was tried before a jury in Newmarket in November and December 2018. The jury returned its verdict on December 7, 2018. The parties to this action have furnished me with written submissions on the following outstanding issues:
(i) The availability of nominal damages; (ii) Vicarious liability of Magna International Inc. (“Magna”) and the Stronach Group (“Stronach”); (iii) Costs of the action; (iv) The form and content of judgment.
The Verdict
[2] Following a multi-week trial featuring a claim for damages by the Plaintiff arising out of an alleged battery and a counter-claim for damages by the defendant for alleged defamation, the jury found that the Defendant Steven Hinder (“Hinder”) had punched the Plaintiff Anthony Pullano (“Pullano”) on March 20, 2014.
[3] The jury went on to find that the punch had caused no physical, emotional or psychological injury to Pullano. In particular, the jury found that the site of Pullano’s implantable cardiac device had not become infected as a result of the punch.
[4] Given that the jury found that there was no injury and no infection caused by the punch, it was not left open to the jury to award general damages. The jury specifically addressed the entitlement of the Plaintiff to both aggravated and punitive damages. In both instances, the jury found that there was no conduct on the part of the Defendant Hinder which gave rise to an entitlement to any aggravated or punitive damages.
[5] On the counterclaim, the jury found that multiple statements made by Pullano qualified as defamatory. As well, the jury determined that Pullano had not made out any of the defences to defamation available to him at law. The jury went on to award general damages to Hinder (as plaintiff by counterclaim) in the amount of $50,000. The jury declined to award any aggravated or punitive damages on the counterclaim.
The Plaintiff’s Position
[6] Pullano asserts that, as a matter of law, he is entitled to nominal damages because of the jury’s finding that Hinder had punched him. Pullano seeks a declaration that, since Hinder was employed by Stronach and Magna, and was acting within the scope of his employment on the date in question, both employers are vicariously liable for the battery committed by Hinder. Finally, in spite of the jury’s unfavourable verdict, the Plaintiff seeks costs and disbursements for Hinder’s battery, on a partial indemnity basis, in the amount of $140,357.92.
The Defendants’ Position
[7] The Defendants argue that there is no basis in law and no jurisdiction in this court to do what the Plaintiff has requested, which in essence is to have the court alter the jury’s decision to include a finding that the contact by Hinder caused some offence to the Plaintiff’s reasonable sense of dignity or was physically or psychologically injurious so as to qualify as battery. The Plaintiff has provided no authority allowing the trial judge to award damages after the jury specifically found that no damages were warranted. The issue of vicarious liability is a moot point because no findings were made by the jury which could lead to a judgment in the Plaintiff’s favour. In the alternative, the Plaintiff has not established that Hinder’s wrongful act of delivering a punch was sufficiently related to conduct authorized by the employer to justify the imposition of vicarious liability. In respect of costs, the Defendants argue that the Plaintiff was unsuccessful on all accounts and should not be awarded any costs. On the other hand, the Defendants successfully defeated the Plaintiff’s claim, while Hinder was successful in his defamation action. The Defendants seek costs of both the claim and the counter-claim in the amount of $188,522.19 inclusive of fees, HST, and disbursements.
Analysis
a) Nominal Damages
[8] I am not prepared to accede to the Plaintiff’s request to award him nominal damages. This would serve both to usurp the role of the jury ex post facto and to nullify the decision it made not to award any damages under the categories open to it in the questions on the verdict sheet. The parties crafted the questions for the jury and submitted them to the court on consent. The court discussed with counsel in open court whether a question on battery would be given to the jury; the parties opted instead for question #1 which read as follows: “On the balance of probabilities, do you find as a fact that the defendant Steven Hinder punched the plaintiff Anthony Pullano on March 20, 2014? Answer ‘Yes’ or ‘No’.”
[9] The jury answered “yes” to that question and then, as directed, proceeded to address the questions on injuries and causation posed to it in question #s 2, 3, and 4. Having heard all of the evidence pertaining to the alleged impact of the punch on Pullano and specifically on the post-incident infection to the Plaintiff’s implantable cardiac device, the jury answered “No” to the twin questions of whether the punch caused physical, emotional or psychological injury to Pullano, and whether the punch caused the infection to occur in Pullano’s implantable cardiac device. Consistent with these findings and the direction on the verdict sheet, the jury was not required to provide any details of injuries sustained by Pullano as a result of the punch.
[10] Given that the jury had found no injuries and no causal link between the punch and the infection, it was not required to assess any entitlement to general damages. The jury went on to consider the discrete questions of aggravated and punitive damages, and the questions related to the counter-claim.
[11] While it may be that nominal damages would normally be awarded upon a finding of battery, I am not prepared now to insert an amount or answer a question which was not put before the jury. At no time did Plaintiff’s counsel seek the insertion of a question or a claim for nominal damages on the verdict sheet; nor did Plaintiff’s counsel request such damages from the jury in his closing. Indeed, there is no claim for nominal damages in the statement of claim. I am not prepared to speculate on what the jury might have awarded, if anything, for nominal damages had these damages been sought or had a question related to nominal damages been properly put to it. Ideally, the questions that are to be put to the jury in a civil action should be agreed upon by counsel or, failing that, be the subject of submissions made by both counsel. While the court retains the ultimate jurisdiction to frame the issues and compose the questions for the jury, it should do so only as a last resort; where for example, the parties cannot agree on the form or content of a question or where they prove unable or unwilling to suggest questions which are comprehensible, appropriate or flow logically from the pleadings and the evidence.
[12] Here, counsel for the parties were invited to, and did in fact, propose questions to the court which had been arrived at on consent, and presumably, after some thought about the practical and legal ramifications of the answers that might be given by the jury to those questions. The desirability of a question pertaining to battery was canvassed in open court. In their respective wisdom and for reasons that would have been their own, the parties together crafted the questions which appeared on the verdict sheet. Those questions did not include one about battery or about nominal damages.
[13] As well, I find that it would be greatly unfair to the Defendants to award an amount for nominal damages when the Defendants were not afforded the opportunity to make submissions to the court on the content of any relevant portion of the jury instructions or to address that question, including entitlement and quantum, with the jury in closing argument. To award nominal damages now, when neither the issue nor the question was put before the jury, would only serve to subvert the integrity and relevance of the civil jury process.
[14] Finally, I am not persuaded that the basis for an award of nominal damages would even exist. In Non-Marine Underwriters, Lloyd’s of London v Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, the Supreme Court of Canada held that for battery to be made out, the contact must result in some offence of dignity or physical or psychological harm. I accept the Defendants’ submissions that, in the case at bar, the jury found that contact was made by Hinder. In answering the “causation” and “injury” questions, the jury was asked and indeed obliged, to turn its mind to whether the damage was in any way harmful to the Plaintiff. It answered “no” to those questions. There was no basis, therefore, for any award of damages, nominal or otherwise.
b) Vicarious Liability
[15] In light of the fact that the jury awarded no damages in favour of the Plaintiff and in light of my conclusion that no nominal damages can be awarded by the court, I find it unnecessary to determine the question of whether the defendants Stronach and Magna are vicariously liable for the conduct of Hinder. The issue of vicarious liability is moot because no findings were made by the jury which could lead to a judgment against Hinder. If there is no judgment against Hinder, then the issue of vicarious liability of either Magna or Stronach does not arise.
c) Costs
[16] The court has the discretion under s. 131 of the Courts of Justice Act, RSO 1990, c C.43 (CJA) to award costs and may determine by whom and to what extent costs shall be paid. Rule 57.01 of the Rules of Civil Procedure sets out some of the relevant factors the court should consider when exercising that discretion.
[17] The Plaintiff was entirely unsuccessful at trial. The finding by the jury that he had been punched by Hinder, in all of the circumstances, cannot be viewed as constituting any measurable level of success. The jury dismissed the notion that Pullano sustained any physical, emotional or psychological injury. The jury rejected the suggestion that the punch had caused the infection of his implantation site. There was no basis for an award of general damages. I have found that an award of nominal damages is unwarranted. The jury found no conduct on the part of Hinder deserving of aggravated or punitive damages. Conversely, the jury found multiple instances of defamation of Hinder by Pullano; implicit in its verdict is that it accepted Hinder’s evidence that he had suffered emotional upset and embarrassment as a result of Pullano’s defamatory comments being disseminated via social media to the broader community.
[18] The Plaintiff amended his claim in March 2018 to increase the claim for damages to $5 million. This amended claim was accompanied by a 42 page financial expert report which set out calculations of alleged losses from the Plaintiff’s business and the salary he claimed to have lost from his failed bid to be elected a municipal councillor in the fall of 2014. The Defendants were obliged to conduct further discoveries and to prepare what would have been a lengthy cross-examination on the significant economic loss claim. Less than a week before trial, the Plaintiff advised that he was no longer pursuing any loss of business claim. The Plaintiff did not abandon his claim for a loss of town councillor salary until well into the commencement of the trial. In addition, the Defendants were initially advised that upwards of 15 witnesses would be called by the Plaintiff. The Defendants were obliged to prepare for cross-examination of these witnesses. The Plaintiffs called only six witnesses at trial. I find that the Plaintiff must be responsible for the costs incurred by the Defendants for what turned out to be wasted trial preparation.
[19] I was not made aware of any offers to settle. In any event, I find that the Plaintiff is not presumptively entitled to costs of any kind given that he recovered nothing in the action and is not entitled to any kind of favourable judgment.
[20] The Plaintiff’s ultimate claim was for $5 million dollars. He was awarded nothing for damages and will recover nothing in this litigation. Each of the parties was unsuccessful in their respective claims for aggravated and punitive damages.
[21] Although the issues in the litigation were not terribly complex, those same issues were of real importance to the parties. The nature of the proceedings, the manner in which they were publicized and portrayed by the Plaintiff on social media, taken together with the involvement of prominent political and corporate actors in the Newmarket/Aurora community, leant the case a higher profile than it perhaps deserved. This was highly publicized, hotly contested, and emotionally infused litigation which, as became quickly obvious to any neutral observer, involved accusations, recriminations, allegations, and hostility beyond what anybody could reasonably have expected to result from a brief encounter between acquaintances at a seemingly benign and convivial acclamation meeting for a political candidate.
[22] Finally, it cannot have been lost on Pullano, a businessman, former politician, and a person of some sophistication that, in bringing a claim against corporate giants like Stronach and Magna, seeking punitive and aggravated damages, making serious personal allegations against a prominent member of the community, publicizing the details of the action on social media, and in making statements which he ought to have known might attract a counterclaim for defamation, he was almost inviting a contentious, lengthy, and expensive trial. The costs of his unsuccessful action and of Hinder’s successful counterclaim for defamation, to which Pullano’s initiative gave birth, must lay largely at Pullano’s feet.
[23] I am prepared to award costs to the Defendants for the entire action at a partial indemnity rate. Senior counsel was involved from the outset; that was to be expected in light of the amounts claimed and the importance of the issues. It is not at all unusual for senior counsel to be assisted by a junior throughout litigation. I take judicial notice of the fact that preparation time for a jury trial often matches or even exceeds the time actually spent in open court during a trial. “Trial time”, for a litigator, involves far more than asking questions and making submissions before judge and jury.
[24] Proportionality has a role to play in costs. The amounts claimed under the various heads of damages were enormous and exposed the Defendants to a potentially large judgment as well as to potential embarrassment and shame. Pullano called into question the personal integrity of Hinder and attempted to sully his name in the community. By dragging corporate actors Stronach and Magna into the mix, through allegations of a conspiracy and cover up, it is obvious that Pullano was bent on pursuing his own murky and obscure private agenda. Social media attacks on individuals have become all too commonplace in recent years. They are evidently an inexpensive method by which motivated individuals are able to launch distant but personal attacks upon others with aplomb and apparent disregard for consequences. Pullano’s method of communicating his grievances towards Hinder, Stronach and Magna was ill-chosen; worse, the content of his messages, which clearly attracted the disdain of the jury, were on the whole cynical, petty, callous, and abusive. In my view, Pullano’s online campaign against the Defendants serves as an unfortunate example of how communication via social media often deteriorate into irresponsible comment and uncivilized dialogue between individual citizens on matters of public and private interest.
[25] The jury found thirty-one instances of defamation on the part of Pullano; the evidence certainly supported these findings. Even in costs submissions, Plaintiff’s counsel was intent on alleging that Hinder was a liar who encouraged independent lay witnesses to perjure themselves. I am unable to accept that submission. Pullano acted unreasonably during the course of the litigation by embarking on a campaign of defamation against the Defendants. That is a factor that I must consider in exercising my discretion to award costs.
[26] On the whole, the time and disbursements in the Defendants’ bill of costs appear reasonable to me. The Defendants had to cover many bases during the litigation and in preparation for trial: medical evidence; expert opinions and issues of causation; pre-existing medical conditions; business and income losses; aggravated and punitive damages; defamation and the defences to defamation; vicarious liability; Facebook and social media posts and tweets; and the evidence of lay witnesses. Defence counsel did an admirable job throughout and are to be commended; they were both well prepared and organized. Submissions made and objections taken in open court were reasonable, courteous, thoughtful, meaningful and principled. Cross-examination was thorough but also discerning and measured.
[27] I have arrived at the conclusion that a just, fair and proper amount for the Plaintiff to pay in costs is $120,000 for fees plus HST of $15,600 plus the claimed disbursements $38,909.63 (inclusive of HST). This totals $174,509.63. This award of costs is slightly less than that what is sought by the Defendants. I have reduced the claim for what appears to be some excessive charges for documentary discovery and some duplication of effort by counsel in trial preparation.
[28] In concluding on the issue of costs, I would add that, in the event that I am wrong on the issue of nominal damages and an appellate court should see fit to award Pullano some amount for nominal damages in the range that he suggests ($1 to $25), this would not alter my disposition on the issue of costs. In my view, in the circumstances of this case, to bring such an extensive claim and to achieve only a judgment for nominal damages would qualify the litigation as frivolous and a waste of the court’s time. Certainly, no amount of nominal damages in the range sought would lead me to conclude that Pullano achieved any level of success sufficient to be deserving of costs. As well, taking into account the significant damages award against him for defamation, no reasonable view of the case could sustain the conclusion that Pullano was in anyway successful.
d) Judgment
[29] Section 108(5)(b) of the CJA provides as follows:
Verdicts or questions --- Where a proceeding is tried with a jury, judgment may be entered in accordance with the verdict or the answers to the questions.
[30] I see no reason not to enter judgment in accordance with the answers of the jury. There was ample evidence upon which the jury could have answered the questions as it did. While the jury found that Hinder punched Pullano (as confirmed by the “Yes” to question number one), there is no basis upon which judgment can be granted in favour of the Plaintiff given the global effect of the answers. A judgment must be an operative document, one that is comprehensive enough to incorporate and give effect to the findings of the trier of fact but also clear and concise enough to leave it capable of being both enforced and complied with. There shall be an order to go for judgment in favour of the Defendants, as follows:
- The claims of the Plaintiff are dismissed as against all Defendants;
- The Defendant Hinder shall recover the amount of $50,000.00 from the plaintiff for general damages;
- The Defendant Hinder is entitled to pre-judgment interest of 1.3% per annum on the above amount in accordance with s. 128 of the CJA amount from the date of the issuance of the counter-claim (March 7, 2018) to the date of the jury’s verdict (December 7, 2018) for a total of $489.73;
- The Defendant Hinder is entitled to post-judgment interest in accordance with s. 129 of the CJA at a rate of 3% per annum from December 7, 2018;
- The Plaintiff shall pay the Defendants their costs of the action (including the counter-claim) fixed and payable forthwith in the amount of $174,509.63.
[31] Order to go for judgment accordingly.
MCCARTHY J.