Court File and Parties
COURT FILE NO.: 17-72832 DATE: 20190116 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: ROMEO AHIMAKIN, Plaintiff AND: VANESSA DORIMAIN, FADUMA WAIS, MORISSA DALHIA-ELLIS, MICHEL ANTOUN, GRAHAM ROBERTSON and THE FULCRUM, Defendants
BEFORE: MASTER Alexandre Kaufman
COUNSEL: Mitchell Rowe, for the Plaintiff / Responding party Mitch Kitagawa, for the Defendants / Moving parties
HEARD: January 10, 2019
Endorsement
1The defendants Vanessa Dorimain, Faduma Wais, Morissa Dalhia-Ellis and Michel Antoun move under Rule 56.01 for an Order for security for costs against the plaintiff, Romeo Ahimakin, in an amount to be determined by the Court.
2For the following reasons, I conclude that it would not be just to require the plaintiff to post security for costs. The plaintiff is a full-time university student working towards his second degree. He commenced an action for defamation arising from negative comments that were widely reported. To a young person about to enter the job market upon graduation, the protection of reputation is a matter of importance. Requiring him to post security for costs would very likely block his access to the Courts. This motion is dismissed.
The action
3On June 2, 2017 the plaintiff commenced this action, claiming damages for defamation arising out of comments made about him at a meeting of the Board of Administration of the Student Federation of the University of Ottawa (“SFUO”).
4The plaintiff was the president of the SFUO from May 2016 to May 2017. The moving parties were students at the University of Ottawa who held various positions on the Board of Administration of (“SFUO”).
5The plaintiff alleges that on March 5, 2017, the moving parties (except Ms. Dorimain) attended a board meeting of the SFUO where defamatory comments were made about him.
6In particular, he alleges that Ms. Wais read a report Ms. Dorimain had authored, which stated that the plaintiff was “violent and misogynist” ... “he shuts down women and tries to over power in most if not all conversations” ... “he has put his hands in my face like he was going to hit me” ... “and is someone I fear in the office.” The plaintiff alleges that Ms. Dalhia-Ellis stated at that same meeting that “certain members of the executive do engage in misogynistic behaviour”, and that she had been “silenced”, “laughed at” and “tone policed” by the plaintiff. Michel Antoun is alleged to have recorded these statements and uploaded them on his Facebook account. (Statement of Claim, at para 5).
7The defendant Graham Robertson, a reporter, was present at the meeting and reported these statements in the Fulcrum newspaper. The action against him and the Fulcrum was dismissed on consent on September 28, 2018.
8The plaintiff alleges that the defamatory statements were motivated by malice. Among other things, he states that full-time students were entitled to a bus pass paid from their student fees. The plaintiff received a complaint that Ms. Dorimain, Ms. Dahlia Ellis and one other person, who were not full-time students, had created fake bus cards for their personal use. The plaintiff states that he referred the matter to the SFUO disciplinary committee for investigation even though they asked him to keep the matter secret. He also alleges that Ms. Dorimain had given SFUO contracts to relatives, and that he refused to reimburse Ms. Dorimain for catering expenses which he did not believe had been incurred.
The plaintiff’s financial circumstances
9The plaintiff is 26 years old. He graduated in 2013 with a degree in health sciences and is now enrolled in a B.A. Communications program at the University of Ottawa. He works approximately 20 hours a week for St-Elizabeth Health Care while attending university full-time, earning $17.85 per hour. He currently resides in Gatineau in a rented apartment.
10The plaintiff filed recent pay stubs, one year’s worth of bank statements, his T4 for 2016, the lease for the apartment he shares with his girlfriend, and his University tuition statement. His average pay is $767 every other week. Except for his student debt (-$25,923) he does not have significant debt. He does not own any real estate and has no assets of value. His parents do not live in Canada and are retired. He has three brothers living in Canada but they are modestly employed and he swore that he cannot borrow money from them. He owns a car worth $5,000 which he intends to sell to pay off outstanding tuition. The rent on his apartment is $875 per month.
Estimated legal costs to defend this action
11The action is still in its infancy. Pleadings are closed but discoveries have not yet taken place. Counsel for the moving parties provided an estimate of the legal fees that will be incurred to defend this action. Including disbursements and HST, they total approximately $59,000.
The motion
12In their Notice of Motion, the moving parties relied on sections 12 and 18 of the Libel and Slander Act, RSO 1990 C. L. 12 (“LSA”) as well as Rule 56.01 of the Rules of Civil Procedure. At the hearing, Mr. Kitagawa advised that he was no longer relying on ss. 12 and 18 of LSA and was relying exclusively on Rule 56.01.
13In an action for libel or slander, a defendant may ground a motion for security for costs on ss. 12 or 18 of the LSA, or on Rule 56.01. In Khan v. Metroland Printing, Publishing & Distributing Ltd., 2005 ONCA 14941, the Court of Appeal held that in cases where the LSA applies, an order for security for costs may be made under Rule 56, so long as the particular sub-rule under which the order is made does not directly conflict with the LSA.
14The moving parties rely on subrule 56.01(a), which provides that on motion by a defendant, the court may make such order for security for costs as is just where it appears that:
(a) the plaintiff or applicant is ordinarily resident outside Ontario.
15The parties agree that subrule 56.01(a) does not conflict with ss. 12 or 18 of the LSA, and that the plaintiff is ordinarily resident outside Ontario.
The test under Rule 56
16A defendant bears the initial onus to establish that one of the six enumerated grounds under the rule exists. Rule 56.01 does not create a prima facie right to security for costs, but rather triggers an enquiry into whether it would be just to make such an order: Zeitoun v. Economical Insurance Group, 2008 ONSC 20996, [2008] O.J. No. 1771, 91 O.R. (3d) 131, 53 C.P.C. (6th) 308 (Div. Ct.) at para 44, affirmed Zeitoun v. Economical Insurance Group, 2009 ONCA 415, [2009] O.J. No. 2003, 96 O.R. (3d) 639, 73 C.P.C. (6th) 8 (C.A.).
17If one of the six enumerated grounds under Rule 56.01 exists, the onus shifts to the plaintiff to satisfy the court that an order for security for costs would be unjust: Kymbo International Inc. v. Teskey [2004] O.J. No. 4126 at para 4.
18An order for security for costs is highly discretionary. The Court can take a number of factors into account, including the merits of the claim, the plaintiff’s financial circumstances and the possibility that such an order may prevent a bona fide claim from proceeding. The Court must balance the defendant’s interest in being protected from the risk of not being able to collect an order for costs if one is made, and the plaintiff’s interest in not unfairly preventing its action from proceeding.
19If the plaintiff can demonstrate that he is impecunious, then he need only demonstrate that his action is not plainly devoid of merit. If he cannot show impecuniosity, a closer examination of the merits of the claim is warranted. In Browne v. Toronto Star Newspapers 2015 ONSC 2376, [2015] O.J. No. 2004, Master Dash wrote, at para 43:
If a plaintiff is able to demonstrate that he is impecunious, such that there is a danger that the plaintiff’s poverty would cause an injustice by impeding pursuit of a claim that otherwise would be permitted to be tried, he need only demonstrate that his action is not plainly devoid of merit, a very low standard, to shield him from an order for security. Where impecuniosity cannot be shown, such that there is no danger that the plaintiff’s poverty would bring the lawsuit to an end, then “a legitimate factor in deciding whether or not to require security for costs is whether the claim has a good chance of success.” This would warrant a closer examination of the merits of the claim.
The Issues
20This motion raises the following issues:
a. Is the plaintiff impecunious? and b. If so, is the action plainly devoid of merit?
The parties’ position on the plaintiff’s impecuniosity
21The moving parties argue that to establish impecuniosity, the plaintiff is required to set out his financial evidence with “robust particularity”. Because his financial status is known only to himself, there should be no unanswered material questions: See Sterling Electrical Contractors Inc. v. 20887585 Ontario Inc., 2010 ONSC 5346 at para 12. They argue that the plaintiff has not disclosed his income tax returns and has deposed that he will be continuing his studies as an International Student and that he will be paying significant fees and tuition to the University of Ottawa. However, he has provided no information on the source of the funds to pay the tuition. The moving parties argue that the plaintiff may either intend to continue his studies without paying, or, alternatively, that he has assets or income to pay the debt that he has not disclosed (Respondent’s factum at para 17). The moving parties argue that there are unanswered questions regarding the plaintiff’s financial situation.
22Additionally, they argue that impecunious means “having no money” or “penniless” and that the plaintiff, who earns approximately $30,000 a year, would be able to post some security for costs, at least in installments.
23The plaintiff argues that the standard for “impecuniosity” cannot be so low as to require one to be on welfare or homeless. The plaintiff is a full-time university student, and owes a significant amount of student debt. His financial circumstances do not permit him to borrow, and he is funding the prosecuting of this action by himself.
Discussion and analysis
24In Gamble v. Lakeside Inn, 2012 ONSC 3404 (“Gamble”), the R.S.J. Pierce defined impecunious as follows:
“Impecunious” is defined in Garner’s A Dictionary of Modern Legal Usage, 2nd ed. (Toronto: Oxford University Press, 1995) sub verbo “impecunious” as “poor” or “penniless.” The Canadian Oxford Dictionary (Don Mills, Ontario: Oxford University Press, 2001) sub verbo “impecunious”, defines the word as “having little or no money.”
25In Gamble, the defendant moved for security for costs against a medical student who was about to commence an internship that paid $46,000 per year. He owed $208,000 in student debt. He had a modest budget once he began his residency. After payment of essential expenses, taxes and student loans, he had a surplus of $324 per month. R.S.J. Pierce concluded, at para 16, that “in relation to his reasonable expenses, the plaintiff has little or no money. He is impecunious”.
26In comparison, the plaintiff’s financial situation is worse. A review of his bank statements for the past year shows that just prior to receiving his paycheck every other week, the plaintiff’s bank account is frequently in overdraft. If it is not in overdraft, the balance in the account is only a few dollars. The plaintiff has no “surplus” after his expenses are paid. The plaintiff’s bank account shows that he lives a very modest lifestyle. There are no large deposits or withdrawals. As is typical of students, he lives paycheck to paycheck.
27The plaintiff swore that he has no assets other than a car he values at $5,000 which he intends to sell to pay off his student debt. The record shows he owes the University of Ottawa $25,923 for the 2018-2019 academic year.
28I conclude that the plaintiff is impecunious. He has little or no money.
29I am also satisfied that the plaintiff has made full and frank disclosure of his financial circumstances and has met the high evidentiary burden of demonstrating impecuniosity. He has provided recent pay stubs, his bank account statement for the past year, his lease and his T4 statement from his employment with the SFUO.
30The moving parties argue that the plaintiff has not provided information about his retired parents’ financial circumstances. The jurisprudence requires him to disclose his financial status, not that of his parents. He is an adult and I do not believe that his parents have any obligation to lend him money to fund this litigation. But even if his parents had substantial means, one would have expected them to support their son financially throughout his education. As mentioned above, the plaintiff’s bank account is frequently in overdraft, shows no significant cash deposits, and he owes significant sums for tuition. I do not find that the absence of documentary evidence respecting parents’ financial circumstances renders his disclosure inadequate.
Is the plaintiff’s claim devoid of merit?
31The tort of defamation requires the plaintiff to prove three elements: (1) the defendant made a defamatory statement, in the sense that the impugned words would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) the words in fact refer to the plaintiff; and (3) the words were communicated to at least one person other than the plaintiff: Guergis v. Novak, 2013 ONCA 449, 116 O.R. (3d) 280, at para. 39; Grant v. Torstar Corp., 2009 SCC 61, [2009] 3 S.C.R. 640, at para. 28; see also Lysko, at para. 91.
32It is not disputed that the defendants said the alleged defamatory words at the March 5, 2017 board meeting, and that these words referred to the plaintiff. Because I have found the plaintiff impecunious, he need only demonstrate that his action is not plainly devoid of merit, which is a very low standard.
33Notwithstanding the defendants’ plea that these words bear different meanings in an academic and social justice context, it is certainly arguable that describing the plaintiff as a “violent” and “misogynist” would tend to lower the plaintiff’s reputation in the eyes of a reasonable person. The moving parties argue that the words were spoken on an occasion of privilege. However qualified privilege, if it does apply in this case, is defeated by the existence of malice or by exceeding the scope of the privilege. The plaintiff has provided some evidence which, if believed, could support a finding that the defendants were influenced by some improper motive. At this very early stage of the action, I am unable to conclude that the plaintiff’s case is clearly devoid of merit. As a result, I make no order requiring the plaintiff to post security for costs.
Costs
34The plaintiff has submitted a costs outline seeking total costs on a partial indemnity basis of $4,594.55, including disbursements and HST. The moving parties’ costs outline, also on a partial indemnity basis, totals $3,403.52, including disbursements and HST. The difference between the two is in large measure explained by the additional time required to draft the plaintiff’s affidavit (the moving parties’ affidavit only dealt with the estimated legal costs of defending this action).
35I fix costs in the amount of $4,000 payable to the plaintiff within 30 days.
Master Kaufman
Date: January 16, 2019