Court File and Parties

COURT FILE NO.: CV 16-28 DATE: 2019/06/03 SUPERIOR COURT OF JUSTICE - ONTARIO

Between ROBERT DAVIDSON, Plaintiff

AND:

REGAN HOSKIN and RIORDAN CAR AND TRUCK RENTALS INC., Defendants

BEFORE: Turnbull, J.

COUNSEL: I. Iwasykiw, Counsel, for the Plaintiff Richard Campbell, Counsel, for the Defendants

HEARD: April 8, 9, 10 and 11, 2019.

Judgment

[1] The plaintiff seeks damages for inducing a breach of contract and for the tort of defamation. The plaintiff asserts that as he attempted to obtain financing to purchase a tractor truck to permit him to operate his own trucking business, the Defendants made false or misleading statements to third parties who were prepared to lease him a vehicle and/or to provide him financing. The defendant Hoskin, who is an employee of the defendant Riorden, denies such conduct.

[2] In September 2015, the plaintiff leased a 2004 Freightliner Classic Tandem Tractor (2004 FL) from the defendant Riordan. The lease commenced October 1, 2015 and was to conclude on April 1, 2018. At the time, he was employed by J-Line Transport Ltd. and he needed the truck to be able to resume his occupation as an owner-operator. The first payment on the lease was due October 22, 2015 but the plaintiff did not make that payment and remained in arrears on the lease from that day to the day he returned the vehicle to Riordan on May 22, 2016.

[3] The defendant Regan Hoskin is the sales manager of Riordan Car and Truck Rentals Inc. He has held that position for approximately eleven years. He has been involved in the leasing industry since the early 1990’s. He recalled first meeting the plaintiff when he was approached by a broker named Ken Niccol to help find a tractor and trailer for Mr. Davidson. This ultimately resulted in Riordan signing a lease with Mr. Davidson for the 2004 FL. The lease required that payments were due in advance. A written authorization was signed by both parties providing the first month’s rent for October 2015 would be withdrawn automatically from the plaintiff’s bank account on October 22, 2015 and thereafter on the 22nd of each month. The payment due on October 22, 2015 was not made and the lease remained one month in arrears during the entirety of its existence, despite requests being made by Riorden staff members to the plaintiff from time to time to put the lease into good standing. Mr. Hoskin stated that while the arrears gave Riordan the right to re-possess the vehicle, that was not done.

[4] Mr. Davidson testified that as soon as he got the vehicle, he had to have it put in a garage for three weeks to have needed repairs completed. Thereafter, he alleged that he had regular mechanical problems with it which restricted his ability to do his work at J-Line. Finally, in May 2016 when he learned that the entire wiring system had to be replaced, he contacted the defendant Hoskin to ask what the defendants were prepared to contribute to the estimated $15,000 wiring repair bill. When Hoskin indicated they were not prepared to assume any responsibility for the vehicle repairs, the plaintiff returned the truck to Riordan on or about May 26, 2016.

[5] At that time, Hoskin asked the plaintiff to sign a Consent to Release Form which is used when Riordan disposes of a vehicle for a client. The plaintiff refused. Hoskin advised the plaintiff that Riorden would take the truck back and release him from further obligations to Riordan upon the plaintiff signing a letter of direction permitting Riordan to dispose of the truck by further sale. He testified that the return of the vehicle was not and would not be referred to any credit agency but would merely have speeded up the process of disposing of the truck. He emphasized that Riordan never made a negative report to any credit reporting agency with respect to Mr. Davidson. Hoskin testified that it was the first time in his career with Riordan that he had agreed to take back a vehicle and not charge the customer for any shortfall after the sale of the vehicle. He felt that because of the hostile nature of the calls Riordan staff were receiving from the plaintiff, it would just be better and easier to take the truck back and part ways. Hoskin recalled that Mr. Davidson spoke with him on the phone and told him he would not sign any release and that Mr. Hoskin could “rot in hell with the truck”.

[6] The plaintiff alleges that after he refused to sign the requested letter of direction, Hoskin began making slanderous and defamatory comments about him to people in the truck rental community asserting that the truck was re-possessed by Riorden due to the plaintiff’s inability to make the monthly payments. Mr. Hoskin denies this.

[7] The defendants assert that after the plaintiff returned the truck, he commenced a campaign of harassing and threatening phone calls to Hoskin and Riorden, which the plaintiff denied or downplayed.

The Lease

[8] Mr. Davidson agreed that he read the lease with Riordan and understood its terms. In particular, the lease contained the following provisions which are directly relevant to the dispute between the parties:

5. Lessee selected the Vehicle. Lessor purchased the vehicle from the Vendor in accordance with Lessee instructions. Lessee is leasing the Vehicle “as is”. Lessor is not responsible for Vehicle failure or the vendor’s acts, or for any service, repairs or installation. Lessee agrees that Lessor has made no representations, warranties or conditions (express, implied, statutory or otherwise) whatsoever to the Lessee with respect to the Vehicle, including, without limitation, as to its condition, merchantability, capabilities, operation, use, quality or fitness for any particular purpose.

6. Time is of the essence of this Agreement and in the event that the Lessee fails to ….pay in full, on the due date any lease payments hereunder….Lessor shall have the exclusive right to take immediate possession of the equipment wherever found….

Events Subsequent to the Return of the Truck to Riorden

[9] Mr. Davidson explained that after returning the truck to Riorden, he immediately sought out another vehicle to permit him to work at J-Line as an owner-operator. He investigated a number of vehicles, obtained financing approvals with respect to at least two of them and at the last moment, the deals fell through. He asserts that this occurred because of the defamatory words and comments made by the defendant Regan Hoskin, for whose actions he asserts that Riordan is responsible as his employer.

[10] Mr. Davidson testified that as he was en route to return the 2004 FL truck to Riorden, he stopped at another heavy vehicle dealer called All Truck. He looked at a 2009 Western Star Truck (2009 WS) and in due course, made an application for financing. He stated that he was approved. There was reference to the documents relating to this transaction by Mr. Train. Before signing a lease or other legal documents, he took it for a test drive and felt that there were problems with the front end of it. Hence, he decided not to proceed any further with the transaction.

2000 Peterbilt Application

[11] Continuing his search for a replacement truck tractor, he found a 2000 Peterbilt truck at Truck and Car ca., another dealer in the community.

[12] The owner of that firm is Garry Kang, who testified as a witness for the plaintiff. He explained that when a customer is interested in a large vehicle purchase, he helps his customer arrange financing by referring the client to a financial broker. At that time, Mr. Kang referred virtually all his clients to David Train who was a financing broker employed by Execucor Inc. After checking the credit information and credit rating of the proposed customer, Mr. Train would seek out a leasing company which would be prepared to finance the transaction by purchasing the vehicle and then signing a lease with the owner/operator.

[13] Mr. Kang testified that Mr. Davidson was “up front” with him about the dealings and difficulties he had experienced with Riordan. In his cross-examination, Mr. Kang stated that he phoned Mr. Hoskin, which was his first discussion with him. He was somewhat vague with respect to that conversation and could not remember Hoskin’s exact words. He did recall that Hoskin advised him that Riordan had its equipment back and that the client would not live up to his financial obligations. He recalled Hoskin describing Davidson as a tough guy to deal with. Kang said that that was not his experience with Mr. Davidson.

[14] Mr. Kang stated that Mr. Davidson initially expressed interest in a 2000 Peterbilt Truck which was on his lot. He prepared the necessary application form with Mr. Davidson and submitted it to Mr. Train for his review and assistance. In due course, Davidson stated that Mr. Train, contacted him about the transaction and stated that he would have to pay a $20,000 deposit to proceed with the deal and hence, Mr. Davidson decided not to proceed. Mr. Kang testified that Train said that as Mr. Davidson had had a vehicle repossessed in the past, it was bad on Davidson’s credit and essentially no-one would approve him. Kang did not recall him saying anything further.

Peel Financial and Bodkin Leasing Transaction

[15] Mr. Kang also had a 2010 Western Star tractor (2010 WS) on his lot which was of interest to Mr. Davidson. Mr. Davidson decided he wanted to acquire that vehicle for his work as an owner/operator truck driver. Because Mr. Kang knew that Mr. Train had serious reservations about his ability to obtain financing for Davidson, he then assisted Davidson to apply for financing through a firm called Peel Financial. In turn, they contacted Bodkin Leasing Ltd. which would purchase the vehicle and then lease it to the plaintiff. The financing was approved and the plaintiff signed a vehicle lease agreement with Bodkin Leasing Corp. dated July 7, 2016.

[16] Mr. Hoskin testified in his cross examination that sometime on July 4, 5 or 6, 2016, he spoke by a telephone conference call with Rojah Singh of Bodkin Leasing and Sukahbir Dahliwal of Peel Financial. He stated that they wanted him to provide a credit reference for Mr. Davidson. He stated that Mr. Davidson had returned his truck to Riorden and the lease had been in arrears. At the end of the conversation, he recalled saying “good luck” and agreed it was not necessarily in a complimentary sense. Despite this arguably negative credit reference, Bodkin representatives signed the lease indicating Bodkin was prepared to proceed with the transaction.

[17] Mr. Davidson then delivered a bank draft for $12,000 to Mr. Kang as a down payment to finalize the transaction. Upon receipt of the $12,000 down payment, a power of attorney was given to J-Line to plate and insure the truck and to put its name on the vehicle.

[18] The truck then went into the shop at Truck and Car .ca for some minor repairs. Mr. Davidson testified that when he came into Mr. Kang’s office the next day, he learned that the deal had been rescinded, allegedly based upon what someone said to representatives of Bodkin Leasing. Mr. Davidson said he overheard a phone conversation between Mr. Kang and someone at Bodkin. Allegedly David Train had told someone at Bodkin that the truck would probably be repossessed for non-payment. Mr. Train denied that in his testimony. Mr. Davidson testified that he had spoken to Sergio Cavall at Bodkin about the termination of the contract which allegedly occurred due to the negative comments made by someone about Mr. Davidson. No-one from Bodkin Leasing was called to verify such conversation ever took place, who made the comments and that the alleged comments were accurate.

[19] In cross-examination, Mr. Davidson was unable to explain why he did not pursue his contractual rights to delivery of the 2010 WS truck against Bodkin because he had a signed an apparently binding lease agreement.

MoneyLine and HarbourEdge Transaction

[20] When the Bodkin Lease transaction fell through, Mr. Kang testified that he still thought that Mr. Davidson’s application for credit looked satisfactory. As a result, he then turned to another broker called Moneyline Financial to see if they could arrange the financing of the 2010 WS for Mr. Davidson. Moneyline got Mr. Davidson approved by a firm called HarbourEdge Financial Corporation in mid July 2016.

[21] Just at the time that Mr. Kang got notice from MoneyLine of the approval, Mr. Train dropped by his office. Mr. Train would randomly come by to say hello from time to time and Mr. Kang said it was common practice for them to see each other like that. He explained to Train that he had successfully used Moneyline to get the financing and showed him all the papers. He asked Train why he was unable to get Davidson approved by his lenders when Moneyline had been successful. He recalled that Mr. Train went outside when he (Kang) had to accept a phone call. As he spoke on the phone in his office, Mr. Kang was able to see Mr. Train on his cell phone outside his office pacing back and forth. Shortly after that, Train stated he had to leave and nothing more was said about the Moneyline transaction.

[22] Mr. Kang stated that when the application is approved, the client’s cheque is sent to the broker and then HarbourEdge representatives would send him a power of attorney indicating to whom they wanted the ownership transferred. Mr. Train was not certain if Mr. Davidson did sign a lease with HarbourEdge. A signed lease was not presented to the court.

[23] Mr. Train testified that after his company received the required down payment of approximately $12,000 from Mr. Davidson, his firm Truck and Car .ca transferred the ownership of the 2010 WS truck to HarbourEdge but then the balance of the financing never came from HarbourEdge. Mr. Kang was frustrated by this turn of events and spoke to the broker at Moneyline Financial. Mr. Kang said that he never heard anything further from HarbourEdge about the transaction and it never closed. He spoke to Hardeep Singh of Moneyline about the matter who told him that they believed it was a good transaction and they could not understand what was concerning Mr. Train and the defendant Mr. Hoskin. Mr. Singh was never called as a witness to verify those comments nor was anyone from HarbourEdge to explain why the transaction did not proceed.

[24] Mr. Train stated that it was his understanding that the two transactions for the 2010 WS truck were not completed because of Mr. Hoskin speaking to parties involved in the transactions. Aside from that statement, which is hearsay and at best speculative, the plaintiff offered no other evidence to support that contention. Mr. Hoskin denied that in his testimony. He was emphatic that he had never spoken to anyone from HarbourEdge at any time. I accept his evidence.

July 26, 2016 Recorded Phone Call

[25] Mr. Davidson agreed he did not speak to anyone at Riorden until he recorded a phone call on July 26, 2016 which he had with Mr. Hoskin. The transcript of that conversation was entered as exhibit 10. Mr. Hoskin was unaware that it was being recorded. It was, to say the least, a heated conversation. In it, Mr. Hoskin referred to the correspondence received from Davidson before the return of the truck in which he threatened to sue Riorden. Mr. Davidson indicated to Mr. Hoskin that he wanted Riorden to sell the 2004 FL truck to Gary Kang. In due course, Mr. Hoskin told the plaintiff to just have Kang call him about it. Mr. Hoskin emphasized to Mr. Davidson that the commercial vehicle leasing business “is a small community. It’s a very, very small community out there. Okay? So you, you just read between the lines with that statement.” Mr. Hoskin criticized Mr. Davidson for not signing a release when he returned the vehicle to Riorden which would have permitted Riorden to resell the vehicle without any recourse to Davidson for any shortfall. The conversation ended on an angry note with each indicating that they would get lawyers involved in the matter.

July 27, 2016 Phone Call

[26] Mr. Hoskin stated that the next day, July 27, 2016 he returned a phone call to Mr. Kang which had been made the prior day. He recalled they started off with pleasantries. Kang then asked if he or his firm was able to take over the lease on the 2004 FL truck formerly operated by Davidson. When he advised Kang the lease could not be assumed because it had been terminated, Kang enquired if he could purchase the vehicle to which Hoskin replied affirmatively. Mr. Kang did not purchase the truck.

[27] Mr. Kang, who was called as a witness by the plaintiff, agreed that he usually used a speaker phone in his office for his phone conversations. He vaguely recalled the phone call with Mr. Hoskin later in the summer and agreed it possibly was around July 26th, 2016. He was unable to recall what was said. He did not recall Mr. Hoskin saying anything negative about Mr. Davidson in that phone call. Mr. Davidson was unable to recall the exact words used by Hoskin in that telephone call.

[28] Mr. Davidson testified he was in Kang’s office when this conversation took place. He stated that Mr. Hoskin untruly asserted that the 2004 FL had been repossessed for non-payment. He doubted that Mr. Hoskin knew he was listening to the conversation on the speaker phone.

[29] Mr. Hoskin denied that at any time did he indicate to Mr. Kang that Davidson had bad credit nor did he ever tell Kang that Davidson would be likely to default on any financing arrangement. I accept the evidence of Mr. Hoskin that he did not indicate that the vehicle had been re-possessed nor did he make the other statements attributed to him. Mr. Kang was an impressive witness and his lack of recollection of that statement being made together with his certain recollection that Mr. Train was the person who advised him the truck was repossessed, leads me to accept the evidence of Mr. Hoskin. Furthermore, near the end of his examination-in-chief, Mr. Davidson asserted that during the tape recorded conversation he had with Mr. Hoskin, Hoskin allegedly said that he repossessed the vehicle from Davidson for non-payment. Davidson asserted this was proof of Hoskin’s defamation of his character. A careful review of the transcript reveals that nothing of the sort was said by Mr. Hoskin.

[30] Mr. Kang testified that he had never been involved in two unusual transactions like these involving Mr. Davidson where financing approvals had been obtained and the transaction did not close. He stated that after both applications were declined, he never had any discussions with Mr. Hoskin. He believed Mr. Train was responsible for passing on the information to third parties about Mr. Davidson’s truck allegedly being repossessed and his lease payments being in arrears. He stated that he was so incensed by Mr. Train’s behaviour that he ceased dealing with him and has had no transactions with him since that time. He expressed regret about sharing the details of Mr. Davidson’s approval through Moneyline with Mr. Train because he felt that if he had not done so, the transaction would have closed.

[31] In his cross examination, Mr. Kang agreed that a voluntary repossession occurs when the client agrees to deliver the truck back to the lessor and both parties agree to that. In looking at the consumer report on Mr. Davidson dated May 26, 2016, Mr. Kang agreed that it is not normal to have a “serious delinquency” on a score (which is what is recorded on that consumer report) and that such an entry might incline a lender to not advance funds.

[32] Mr. Davidson testified that he worked with J-Line as a truck driver to about mid-August and thereafter went to work as a driver for another company located much closer to his residence in Cambridge. He did not produce any evidence of his earnings after August 2016. He stated that he ceased looking for a tractor to become an owner/operator in October 2016. He also provided no evidence of his income in 2016 or ensuing years and the court was advised by his counsel that he has not filed income tax returns since that time. He did not provide evidence of his 2015 income as reported to the Canada Revenue Agency.

Issues

1. Did the Defendants Induce a Breach of Contract?
2. Did the Defendant Hoskin defame or slander the plaintiff?
3. If the answer to either of questions 1 or 2 is affirmative, what are the damages sustained by the plaintiff.

Summary of the Position of the Plaintiff

[33] During the trial, counsel for the plaintiff who recently took over carriage of the file for the Plaintiff, sought an amendment to the plaintiff’s claim. Counsel agreed that the plaintiff’s claim for negligent misrepresentation shall be dismissed. In the statement of claim contained in the trial record, the plaintiff sought damages against the defendants for the tort of interference with contractual relations. She sought to delete that claim and to replace it with a claim for the tort of inducing a breach of contract. Mr. Campbell very fairly acknowledged that he would not be prejudiced because the statement of claim articulated the facts supporting such a claim. I therefore granted leave to the plaintiff to amend his pleading accordingly and to present evidence and to argue the tort of inducing a breach of contract.

[34] The plaintiff submits that Mr. Hoskin’s discussion with representatives of Peel Financial (Sukhbir Dhaliwal) and Bodkin Leasing Corporation (Raja Singh) on July 4, 5 or 6th 2016 induced a breach of contract on the part of Bodkin which decided not to proceed with the transaction after the discussions with Mr. Hoskin.

[35] The plaintiff further submits that Mr. Hoskin’s comments to Mr Singh and Mr. Dhaliwal, Mr. Train, and Mr. Kang were defamatory. He argues that Mr. Hoskin deliberately spoke to people in the leasing industry, which Hoskin agreed in cross examination is a relatively small community, suggesting that the plaintiff’s lease had been in arrears (rather than simply one month being not paid due to the fact the vehicle was in a repair shop for three weeks after he got it from Riorden) and that his vehicle had been re-possessed by Riorden rather than having been returned by him by mutual agreement. It is also alleged that certain comments made by Mr. Hoskin about Mr. Davidson to people in the industry were defamatory. Hoskin was asked by Mr. Singh and Mr. Dhaliwal what he could tell them about Mr. Davidson. Hoskin stated “good luck” and agreed it was said with a negative intonation in his voice. Mr. Kang testified that Mr. Hoskin had described Mr. Davidson as a “tough guy to satisfy” in response to their enquiries about Mr Davidson as a customer. Mr. Hoskin also expressed scepticism to Ken Niccol, who was a broker in the industry, about whether Mr. Davidson had actually spent $11,000 for repairs and maintenance on the truck as he alleged, thereby raising questions about his integrity and honesty.

[36] The plaintiff further submits that Mr. Hoskin is liable for having made defamatory statements about the plaintiff to David Train, who in turn, repeated them to others in the commercial leasing community.

[37] The plaintiff seeks general damages for the damage caused to his reputation in the community. He further seeking special damages for the loss of income sustained by him due to his inability to qualify for financing for another tractor truck to permit him to work as an owner/operator.

Summary of the Position of the Defendant

[38] The defendants deny they are liable for damages for defamation on several grounds. First, any comments made by Mr. Hoskin were true and not defamatory. Second, they argue that the plaintiff has failed to prove his case because many of the people to whom defamatory statements were allegedly made were never called as witnesses by the plaintiff. Third, the plaintiff has not pled that the defendants are liable for any republication of the alleged defamatory statements by David Train. Fourth, there is a marked lack evidence of the precise words allegedly used. Fifth, the plaintiff has failed to produce the required witnesses and documents to prove his loss of income flowing from the alleged defamatory statements. The court is urged to draw an adverse inference against the plaintiff’s failure to produce such supportive financial information and to call witnesses to verify the alleged statements were made.

Analysis

Inducing Breach of Contract

[39] In the case of Drouillard v. Cogeco Cable Inc., 2007 ONCA 322, 86 O.R. (3d) 431 (C.A.) the court specified four elements which the plaintiff must prove to success in this cause of action:

(1) The plaintiff had a valid and enforceable contact with Bodkin Leasing. On the facts, I find that there was such a valid, enforceable contract.

(2) The defendants were aware of this contract.

[40] I am not satisfied that when he spoke to Messrs. Singh and Dhaliwal on July 4, 5, or 6, 2016, Mr. Hoskin knew that there was a valid lease in place between Bodkin Leasing and the plaintiff. This opinion is re-enforced by the fact that the lease was signed July 7, 2016. Hence, at the time of that telephone call, there is no evidence that a valid, enforceable contract was in existence.

(3) The defendant Hoskin intended to and did procure the breach of the contract.

[41] Mr. Hoskin never stated he intended to induce a breach of the contract nor was he asked in cross examination. There is no evidence that it was Mr. Hoskin’s conduct which induced a breach of the contact. Counsel for the plaintiff urged me to infer that it was his conduct which led to the breach but from the evidence before the court, I do not feel that such an inference can be made. The fact that the lease was signed on July 7th, 2016, the day after Hoskin’s phone call with Messrs. Singh and Dhaliwal, flies in the face of such an inference.

[42] The Court of Appeal further approved the principle that a breach of contract which is a natural consequence of the defendant’s conduct is not sufficient to found liability. The plaintiff must have intended it. I find no evidence that Mr. Hoskin intented to cause a breach of the contract between the plaintiff and Bodkin Leasing or anyone else.

And

(4) As a result of the breach, the plaintiff suffered damages.

[43] In light of my finding on the second and third points listed above, I need not consider this matter. Nevertheless, I will deal with the issue of damages, and the lack of probative evidence of damages, later in this judgment.

[44] I dismiss this claim with costs to the defendants.

Defamation

[45] The Supreme Court of Canada has set out the three elements of the tort of defamation which the plaintiff must prove to succeed in such a claim: Grant v. Torstar Corp., 2009 SCC 61 at para 28

a. That the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;

b. That the words in fact referred to the plaintiff; and

c. That the words were published meaning they were communicated to at least one person other than the plaintiff.

[46] In Lotin v. Gregor, [2019] ONSC 1510, Kimmel J. of this court helpfully summarized some of the factors to be taken into account in dealing with each of these elements. A defamatory statement tends to lower the reputation of the person to whom it refers in the estimation of right thinking people generally, and in particular to cause the plaintiff to be regarded with feelings of hatred, contempt, ridicule, fear, dislike or disesteem. The test is an objective one inasmuch as the statement is judged by an ordinary right-thinking member of society.

[47] In considering whether a statement is defamatory, Kimmel. J. adopted a two- step process for the judge to follow. First, the impugned words must be capable of a defamatory meaning. Austin v Lynch 2016 BCSC 1344, 31 C.C.L.T. (4th) 279 at para. 55. Second, the court must decide if a reasonable person would have understood the words in their defamatory sense. The broad effect of the words must be considered and the disputed sections must be given fair treatment in their context. In that respect, the entire circumstances surrounding the making of the statement must be considered including the person or people to whom the statement(s) were made, the reasonable implications the words may bear and the manner in which the words were presented. I have attempted to follow these principles in making my decisions in this matter with respect to various statements made by Mr. Hoskin which the plaintiff alleges were defamatory.

[48] The plaintiff has alleged that the defendant Hoskin, made several defamatory statements about him which individually and collectively damaged his reputation. As Hoskin’s employer, Riorden is argued to be vicariously liable for his tortious conduct. Counsel emphasized that the comments were made in the context of the plaintiff’s efforts to get financing for a used tractor truck with which he could make a living. On Mr. Hoskin’s own testimony, the leasing community was “a small community”. From Mr. Hoskin’s answer to the question I posed to him, I infer from that a relatively small number of lessors and financiers are involved in this industry as it relates to the purchase and/or leasing of large commercial truck and tractor vehicles.

[49] It is alleged that Mr. Hoskin, intentionally, knowing it was not true, told other people in the industry including Mr. Singh of Peel Financial, Mr Dhaliwal of Bodkin leasing, Mr. Kang of Truck and Car.ca and David Train of Execucor Financial that Mr. Davidson’s 2004 FL truck had been re-possessed which would suggest that he was incapable of meeting his financial obligations and was a bad credit risk.

Hoskin’s Statement to Mr. Singh of Bodkin Leasing and Mr. Dhaliwal of Peel Financial

[50] Mr. Singh and Mr. Dhaliwal were not called as witnesses. The plaintiff has the onus of proving his case. The plaintiff asks the court to infer that the reason why the Bodkin Leasing transaction was not consummated was due to what Mr. Hoskin said about Mr. Davidson or due to what Mr. Train said to Mr. Singh and Mr. Dhaliwal when he repeated to them what Mr. Hoskin said to him. I do not infer that to be the case at all based on the evidence of Mr. Hoskin and Mr. Train.

[51] In his examination in chief, Mr. Hoskin testified that he is often asked to give verbal credit references for former clients. He agreed that when Mr. Singh of Bodkin Leasing spoke to him about Mr. Davidson and asked what he could tell him about the plaintiff, Mr. Hoskin said “good luck”. By that, he simply meant that they had not had a satisfactory relationship. When Mr. Singh asked him if Davidson’s account with Riorden was satisfied, Mr. Hoskin told him it was in arrears and that he had returned the truck. Mr. Hoskin stated that the statements were true when he made them. He agreed that he was under no obligation to give that information to Mr. Singh but he did it as a professional courtesy between lenders.

[52] On the facts before this court, I do not find the statements made to Mr. Singh to be defamatory. They were truthful and certainly not defamatory. As stated above, they clearly did not discourage Bodkin Leasing from signing a lease with the plaintiff dated July 7, 2016.

Hoskin’s Statement to Mr. Kang

[53] Mr. Kang stated in cross-examination that his first contact with Mr. Hoskin relative to Mr. Davidson was at or about the time he first met the plaintiff. He could not recall the exact words of Mr. Hoskin in that phone call. He remembered generally that Mr. Hoskin indicated that Riorden had its equipment back and that the client (Davidson) did not live up to his financial commitments. He agreed that if the lease was in arrears, that is true. He also recalled Mr. Hoskin indicating that Mr. Davidson was a difficult person to deal with.

[54] Mr. Hoskin denied that he ever told Mr. Kang that Mr. Davidson had bad credit nor did he say that Mr. Davidson would be likely to default on any financing arrangement into which he may enter. Mr. Hoskin initially testified that he had no further discussions with Mr. Kang about Mr. Davidson but then recalled a further telephone conversation later in the summer of 2016.

[55] I note that even if Mr. Kang’s evidence on that point is correct, those comments had no evident effect on Mr. Kang’s ability to negotiate two transactions for Mr. Davidson to lease a truck. For reasons not related to the defendants, at least based on the evidence before this court, those transactions did not close. In fact, the lease dated July 7, 2016 between the plaintiff and Bodkin Leasing was a firm and binding deal in Mr. Kang’s opinion. Mr. Davidson never explained why he did not move to enforce that agreement.

[56] Mr. Kang recalled clearly speaking with David Train about Mr. Davidson’s first application and Mr. Train told him that as there was a previous re-possession, it was bad on Mr. Davidson’s credit rating and that it was unlikely anyone would approve financing for him. Mr. Train never did show him the documents about the refusal he allegedly had received on an application for another truck lease for Mr. Davidson. Mr. Kang ultimately felt that David Train was responsible for passing on information about Mr. Davidson which resulted in the Bodkin and HarbourEdge transactions falling apart. He acknowledged that he made a serious mistake when he showed the documents relating to the Moneyline approval he obtained for Mr. Davidson to Mr. Train. In his opinion, if he had not shared the financing approval he had obtained for Mr. Davidson with Mr. Train, the transaction would have been consummated. He further agreed in cross-examination that the Equifax Consumer Report for Mr. Davidson dated May 26, 2016 recording a Beacon score of 622 reflected a serious delinquency and other negative comments. He suggested that while Beacon Scores are not the major concern of a lessor in his industry, it is not normal to have a notation of “serious delinquency” on a score and it may incline a lendor not to advance funds.

[57] Mr. Hoskin testified that after the plaintiff returned the truck to Riorden, Riorden never made any negative report about the plaintiff to any credit reporting agency. He also noted that Riorden contractually did not have to take back the truck. It was the first time in his experience with Riorden that it had ever been done. He explained that the phone calls he and the staff were receiving from Mr. Davidson were hostile and he felt it would just be easier and better for both parties to take the truck back and part ways. He noted that in due course the truck was re-sold at a loss but Riorden did not seek the shortfall from the plaintiff.

[58] On the evidence before this court, I do not find any statements made by Mr. Hoskin to Mr. Kang were defamatory. They were not necessarily complimentary but they comments made were true. There also was no malice in the dealings of the defendants with the plaintiff.

Hoskin’s Statement made to David Train

[59] David Train recalled that he tried to assist Mr. Davidson in the Leasing of a 2009 Western Star truck through Lakes Leasing. Mr. Davidson signed his business statement representing his financial situation in connection with this proposed transaction on May 25, 2016. When Mr. Davidson did not qualify for financing through Lakes Leasing, Mr. Train recalled phoning Mr. Hoskin during the course of that transaction to see about the possibility of Riorden helping Mr. Davidson lease another vehicle. He noted that he had learned that Riorden was on the Equifax Consumer Report dated May 26, 2016. Mr. Train recalled that Mr. Hoskin advised him that Mr. Davidson had surrendered his vehicle to Riorden. He did not recall Hoskin saying anything about Davidson’s payments to Riorden. This was also confirmed in the email he received from Kirby Finance dated May 26, 2016. Mr. Train stated that the fact the truck had been voluntarily surrendered would have indicated to him that Mr. Davidson was probably having trouble making his payments. Mr. Train agreed that “in his world”, Mr. Hoskin’s statement that the truck was surrendered meant that it was a voluntary repossession. After this effort to help Mr. Davidson, Mr. Train had no further dealings with Mr. Davidson.

[60] Mr. Train agreed that he did tell Mr. Kang that Davidson had had a voluntary repossession and who it was with. He justified that based on the “vendor relationship” he had with Mr. Kang. He did recall Mr. Kang telling him he had been able to get alternative financing for Mr. Davidson but he could not recall with whom that had been arranged. Mr. Train agreed that while the truck and heavy vehicle sales and financing industry is rather small, but it is big enough that he does not know everyone involved in the business.

[61] There is no evidence that Mr. Hoskin ever stated that there had been a re-possession or that he expected or encouraged Mr. Train to repeat any of his comments to others.

Statements Allegedly Made by Regan Hoskin that the Plaintiff Was abusive to members of the staff at the Riordan office and that he was not an easy person to get along with.

[62] I found Mr. Davidson to be an argumentative and often an unresponsive witness. I am not surprised that Mr. Hoskin and the staff found that he was hostile during some his phone calls to the company. The recorded telephone conversation with Mr. Hoskin on July 26, 2016 reflects that attitude. Undoubtedly, he was frustrated with the maintenance expenses he had incurred for the truck, but he signed an agreement to lease the truck “as is” and did not rely on any representations as to its condition from Mr. Hoskin or Riorden. The court received no evidence from anyone indicating that Mr. Hoskin made such representations. He did indicate to Mr. Kang that Mr. Davidson was not easy to get along with and Mr. Kang found that not to be the case in his dealings with Mr. Davidson. This comment made by Mr. Hoskin, while not complimentary, reflected his personal experience and presumably that of the Riorden staff in dealing with Mr. Davidson.

[63] I am not surprised when Hoskin was the object of comments from Mr. Davidson which included “you can rot in hell with your truck”. For reasons he never explained, Mr. Davidson would not just sign a release which would have facilitated the process for Riorden to re-sell the vehicle. Instead, he dragged the process out and made much to do about the outdated notice he received under the Personal Property Security Act. It is also significant that despite whatever comment Mr. Hoskin might have made about the difficulty of working with Mr. Davidson, it did not deter or prevent Mr. Kang from working with him.

[64] I do not find that the comments made were defamatory within the context that they were made. Furthermore, they were true.

Statements Made by Mr. Hoskin that Mr. Davidson had made no repairs to the Truck

[65] In the statement of claim, at paragraph 16, the plaintiff’s pleading reads:

The Plaintiff claims that Hoskin also told the Plaintiff’s friends that the Plaintiff did not maintain the truck or pay for any of the repairs to the truck.

[66] The plaintiff led no evidence from any his friends that Mr. Hoskin made any such statements.

[67] The plaintiff alleges that he was defamed by Mr. Hoskin when he suggested to a third party, Ken Niccol, an employee at Execucor, that Davidson had made no repairs to the truck during the time it was in his possession. In support of that contention, counsel for the plaintiff noted an email dated October 5, 2015 in which Mr. Niccol advised Mr. Hoskin that Mr. Davidson’s truck had not yet been plated because it was still in having repairs done to it. That allegation is alleged to have been further continued in an exchange of seven pages of emails between Ken Niccol and Mr. Hoskin on June 5 and 6, 2016 after Mr. Davidson had returned the truck to Riorden.

[68] In his email of June 5, 2015 to Mr. Hoskin (page 7), Mr. Davidson asserted that he had put approximately $11,000 into parts and repair for the vehicle. In an email of June 6, 2016, Mr. Niccol suggested to Mr. Hoskin that $11,000 would be close to normal repair and maintenance for a 2004 Freightliner. (page 4). Mr. Hoskin replied by email suggesting that he guessed that Mr. Davidson had not done any repairs to the truck. (page 1).

[69] The plaintiff argues that this was a defamatory statement as Mr. Hoskin should have known that he had done repairs to the vehicle upon taking possession of it and the Riorden phone logs notes he was complaining about paying for repairs.

[70] I find that the statement by Mr. Hoskin was not defamatory. The statement is ambiguous at best and Mr. Hoskin was not closely cross examined on it. There is a difference between maintenance (which involves parts and labour) and repairs when a major component of a vehicle fails, such as a transmission, the suspension or the electrical system. Mr. Hoskin had serious questions about Mr. Davidson due to his angry and confrontational approach to this whole matter. He questioned whether Mr. Davidson was truthful as evidenced by Davidson apparently telling staff at Riorden that he had to buy a new seat for the truck for $800 and yet when Davidson spoke to Hoskin about it, he kept saying he was going to have to buy one.

[71] I do not find that the statement to Mr. Niccol questioning whether $11,000 of repairs had been done to the truck is defamatory. Taken within the context that the statement was made, and recognizing there can be simple difference in interpretation and meaning of the word “repairs”, I reject the submission that Mr. Hoskin slandered the plaintiff. I note that Mr. Niccol was not called by the plaintiff to prove what he understood by the words used by the defendant Hoskin.

[72] In this case, the plaintiff has chosen not to call several of witnesses and evidence to support his allegations. As noted above, we did not hear from Mr. Singh or Mr. Dhaliwal. A representative from Peel Financial or Moneyline or HarbourEdge was not called. Mr. Davidson did not enter as exhibits any of his income tax returns supporting his claim for damages. He asserted in one of his applications for financing that he owned a property in Tennessee worth several hundred thousand dollars and that he had a retirement fund of approximately $250,000. In later financial applications, he did not refer to these assets. He did not provide the evidence supporting his representations to potential lenders that he was earning $20,000 per month. He gave a list of undertakings at his examination for discovery and the undertaking chart was entered as Exhibit 13 in this matter. The fifth undertaking on that chart required him to provide his personal and business income losses for the months after July 2016. Those were never produced. In undertaking 6, he identified Sergio Caval as someone to whom Mr. Hoskin had allegedly said false things about Mr. Davidson. Mr. Caval was not called as a witness.

[73] I draw an adverse inference against the plaintiff for failing to call those witnesses and for failing to produce information pursuant to his undertakings given at examination for discovery.

Conclusion re Defamation

[74] In the absence of evidence of exact words used, I infer from the fact that the hearers of the alleged words continued to do business with Mr. Davidson that the words did not lower their opinion of him. Hence, they were not defamatory.

Republication of Hoskin’s Alleged Defamatory Comments by Mr. Train

[75] In her submissions, counsel for the plaintiff argued that Mr. Hoskin knew or ought to have known that his defamatory comments about the plaintiff would be repeated to others in the leasing industry. In particular, she submitted that the plaintiff should have known that David Train would repeat Hoskin’s alleged comments to others about Davidson’s truck being repossessed and that he was a poor credit risk.

[76] Republication was never pleaded in this case. Our courts have clearly stated that pleadings are more important in defamation cases than in practically any other case. The precise words complained of must be identified, the person who allegedly uttered the words must be identified, the time and place of the utterance must be identified and any other relevant information to identify the circumstances of the utterance must be provided. In Cole v. Donovan, [1996] O.J. No. 3857 (S.C.J.), O’Driscoll J. stated at para. 13 that because the words complained of and their meaning form the basis of a claim of defamation, the pleadings in such cases are of paramount importance. In Lysko v. Braley, [2006] O.J.No. 1137 (C.A.), the court again stated at para. 91 that “pleadings in defamation cases are more important than in any other class of actions.”

[77] In Browne v. Toronto Star Newspapers et al., 2013 ONSC 3348, Lax J. was confronted with a mid-trial request to amend pleadings to plead republication. In that context, the republication related to republication of the offending words on websites of other offending parties other than the website of the defendant Toronto Star Newspapers. Lax. J. wrote as follows at para. 4:

It is uncontroversial that every republication of a libel is a new libel and each publisher is responsible for his act. If this were not the case, the original publisher would become responsible for the acts of those over whom it has not control. In the very old case of Speight v. Gosnay, (1891) 60 L.J.Q.B. 231, a case involving slander, the court identified exceptions to this rule. The one in question here is whether the repetition is the natural and probable consequence of the original publication.

[78] The general rule about republication is that Mr. Hoskin is not liable for republication of any defamatory statement he may have made unless it falls within one of the exceptions to that rule. The exception must be specifically pleaded. I dismiss the argument about republication as the plaintiff has not pleaded this cause of action.

[79] In the event I am incorrect in that finding, I do not find that in the circumstances Mr. Hoskin did make defamatory statements about the plaintiff to Mr. Train. And if I again am incorrect in that finding, I do not find that that Mr. Hoskin intended or authorized Mr. Train to repeat what he had said to him. I do not find that the repetition of what he said to Mr. Train is the natural and probable consequence of the original publication. Mr. Hoskin would have no knowledge of who Mr. Davidson would be using as a broker to find financing in future transactions. He would not have knowledge that Mr. Train would repeat any information he received from him to slander the plaintiff.

[80] The claim based upon republication is therefore dismissed.

Damages

[81] The plaintiff has claimed damages for loss of income occasioned as a result of his inability to obtain financing for another vehicle. However, after the two unsuccessful attempts to get financing with Bodkin Leasing and HarbourEdge, he did not lead any other evidence of his efforts to obtain another vehicle.

[82] Conceptually, the court would need to compare the plaintiff’s income from before and after the triggering event(s). It then would be asked to conclude the difference is the amount of the loss. In the absence of the documentation to prove those figures, which he undertook to produce but did not do so, the court can and does draw an adverse inference against the plaintiff that those figures would not have helped the plaintiff.

[83] The evidence which has been produced by the plaintiff to support his claim is:

a. A letter from Margaret Townsley, the owner of J-Line Trucking. In it, she asserted that Mr. Davidson could earn as much as $20,000 per month as an owner/operator with her company. However, that evidence is hearsay and inadmissible. She was not called as a witness.

b. Mr. Davidson relied upon the Davidson Haulage balance sheet for the period ending December 31, 2015. He was unable to provide evidence of who prepared this document, evidence of the documents relied upon to prepare it, nor information about the methodology used to prepare it. The document makes no reference to the 2004 Freightliner as an asset nor are the lease payments listed as a liability. This document was not provided prior to trial so that the defendants could refer it to an accountant of their choice. It shows that the gross income of Davidson Haulage for the year ending December 31, 2015 was approximately $33,000 with a net income of $15,288.00. This arguably would cover the last quarter of the year 2015, which would indicate that approximately $5,000 per month of income was earned by the plaintiff, prior to payment of taxes.

[84] Mr. Davidson also produced Broker pay statements from J-Line Transport for the period April 22, 2016 to May 27, 2016 (which is most of a period when he still had the 2004 Freightliner) and they show he earned approximately $4343.00 after expenses (and prior to payment of taxes) in that one month period. He stated that he started working with J-Line as an owner/operator in April 2016.

[85] Mr. Davidson stated in his examination in chief, that if the truck had been roadworthy in the first four weeks after he took possession of it in September, 2016, he would have earned $4,000 per week. I find that is a gross overstatement of his possible earnings and I am reinforced by the limited and inadequate financial information he has produced which indicates that he was able to earn approximately $4,000 to $5,000 per month net.

[86] If the plaintiff in fact was defamed and suffered a loss of income as a result of that tortious act, I would have assessed the damages at $20,000 (subject to the following) representing the loss of income he would have experienced for the months of June, July, August and September 2016. I would have reduced this figure by fifty per cent as he has not produced the needed information to the other parties nor to the court to allow a proper analysis to be undertaken of his purported loss of income. He has provided the court with no efforts of his attempts at obtaining other financing or his income from other sources during those months or even during the remainder of the calendar year of 2016.

[87] If the plaintiff was defamed, alternatively to the estimated loss of income award, I would have assessed his damages at $25,000 based on the record before the court.

Conclusion

[88] The plaintiff’s claims are dismissed.

Costs

[89] I will receive written submissions from the defendants’ lawyers together with a costs summary of up to three single spaced pages together with a costs summary, on or before June 10, 2019. The plaintiff’s lawyer may respond with up to three single spaced pages of submissions on or before June 20, 2019. The defendants’ lawyers may reply briefly, on or before June 25, 2019.

Turnbull, J. Date: June 3, 2019.

Footnotes:

[1] Exhibit 1:found at exhibit ID 2, tab 12. [2] Exhibit ID 3, Tab 5. [3] Exhibit 16. [4] Exhibit 5: Application to Peel Financial. [5] Exhibit 6. This is the vehicle purchase agreement dated July 7, 2016 whereby Bodkin was to purchase the 2010 WS truck. [6] Exhibit 7. [7] Exhibit 8. [8] Exhibit ID 1, tab 44. [9] Exhibit 10, page 8. [10] Exhibit 20. [11] Drouillard v. Cogeco Cable Inc., supra, at para 30 citing John G. Fleming, The Law of Torts, 9th ed. (Sydney: LBC Information Services, 1998) at 761-762. See also Correia v. Canac Kitchens, 2008 ONCA 506 at para 99. [12] Grant v. Torstar Corp., 2009 SCC 61 at para 28. [13] Lotin v Gregor, supra, at par 43. [14] Lotin v Gregor, supra, at para 44. [15] Lotin v Gregor, supra at para. 45 [16] Lotin v Gregor, supra at paras. 46 and 47, citing with approval Bernstein v Poon, 2015 ONSC 155 at paras. 42-45. [17] Exhibit ID 3, tab 3. [18] Exhibit 17, ID3, tab 5, page 1. [19] Exhibit 18, ID 3, tab 5, page 4. [20] Exhibit 22, ID 2, tab 5 page 8. [21] Exhibit 26, ID 2, tab 4, page 148. [22] Exhibit ID 2, tab29, pages 7 to page 1 (chronologically following the email chain). [23] See. [24] Exhibit 2, found at exhibit ID 1, tab 48. [25] Counsel agreed that the documents produced at tabs 45-50 of Exhibit ID 1 (the Plaintiff’s Trial Document Brief) were not produced until the opening of trial.