Court File: CV-18-595693

MOTION HEARD: 20190402

AMENDED REASONS RELEASED: 20191030

SUPERIOR COURT OF JUSTICE – ONTARIO

BETWEEN:

CORE INSIGHT STRATEGIES INC.

Plaintiff

and

ADVANCED SYMBOLICS (2015) INC.

Defendant

BEFORE: MASTER D. E. SHORT

COSTS COUNSEL: Natalie Schernitzki F (416) 368-6068 -for moving plaintiff nschernitzki@businesslawyers.com

Ken Rubin

• for proposed party kenrubin@rogers.com

Original Judgment RELEASED: September 20, 2019

Costs Judgment RELEASED: October 29, 2019

Reasons for Decision re Costs

[1] My original reasons [found at 2019 ONSC 2109] opened with this quotation:

"The overarching purpose of access to information legislation, then, is to facilitate democracy. It does so in two related ways. It helps to ensure first, that citizens have the information required to participate meaningfully in the democratic process, and secondly, that politicians and bureaucrats remain accountable to the citizenry ."

Dagg v Canada (Minister of Finance), 1997 CanLII 358 (SCC), [1997] 2 SCR 403

[2] In the above extract Justice Cory, writing for the majority at the Supreme Court, identified the balancing act that is required in a case such as this.

[3] This was a motion to add Ken Rubin as a Defendant in a commercial action where he had made requests for public information and the plaintiffs asserted that those requests, by virtue of being asked regarding the plaintiffs, amounted to defamation by Mr Rubin.

[4] The applicable Legislation is the Municipal Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. M.56, s. 19, (“MFIPPA”) which provides in part:

1. The purposes of this Act are,

(a) to provide a right of access to information under the control of institutions in accordance with the principles that,

(i) information should be available to the public,

(ii) necessary exemptions from the right of access should be limited and specific, and

(iii) decisions on the disclosure of government information should be reviewed independently of government; and

(b) to protect the privacy of individuals with respect to personal information about themselves held by institutions and to provide individuals with a right of access to that information.

[5] Ontario’s Courts of Justice Act was amended in 2015, to add Section 137.1, under the heading “Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest (Gag Proceedings)”. It reads in part:

Dismissal of proceeding that limits debate

Purposes

137.1 (1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action. 2015, c. 23, s. 3.

[6] The following subsection addresses the implementation of an automatic stay with respect to proceedings impacted by the statutory provisions:

(5) Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of.

[7] In light of this provision, I regard this action in its entirety as presently stayed until all available appeal rights have been exhausted.

[8] Section 137.1 concludes with a listing of the potential cost consequences flowing from the section:

Costs on dismissal

(7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances.

Costs if motion to dismiss denied

(8) If a judge does not dismiss a proceeding under this section, the responding party is not entitled to costs on the motion, unless the judge determines that such an award is appropriate in the circumstances.

Damages

(9) If, in dismissing a proceeding under this section, the judge finds that the responding party brought the proceeding in bad faith or for an improper purpose, the judge may award the moving party such damages as the judge considers appropriate.

[9] In this case, the motion to add a party fell within the jurisdiction of a Master. The motion was not a motion by an existing defendant to dismiss an action wherein he had been sued.

[10] I regard a pleadings amendment challenge as being similar to that contemplated by these 2015 amendments. To the extent necessary I relied upon rule 1.04 to as authority for my determining the issues before me:

1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.

(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.

(2) Where matters are not provided for in these rules, the practice shall be determined by analogy to them.

[11] I was not satisfied that requests of the nature filed by Mr. Rubin could be construed as any actionable wrong doing.

[12] In my view the degree of prejudice flowing from exercising his rights under the existing, relatively new, statutory provisions justified my refusal to permit the addition of a party such as Mr. Rubin.

[13] The Ontario Court of Appeal also held in 1317424 Ontario Inc. v Chrysler Canada Inc., 2015 ONCA 104, at para 7, that "[o]ne factor is that an amendment will not be allowed if it would have been struck out had it been originally pleaded" and "applying the analysis from Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, a claim will be struck out under rule 21.0l(l)(b) if it has no reasonable chance of success.

[14] On the original motion the Plaintiff alleged that the FOI Requests are defamatory, as the plain meaning and/or innuendo of the words used therein implied that the Plaintiff was "unethical, untrustworthy, lacking in credibility and engaged in improper and/or criminal conduct".

[15] I accepted counsel’s argument that in this case, “the threshold question of law - namely, whether the words complained of are capable of the defamatory meanings alleged – needed to be answered in the negative because:

(a) the words complained of do not state or imply that particular conduct took place, they merely request documents that may or may not exist;

(b) the context in which the words were used does not support the meaning advanced by the Plaintiff; and

(c) the government officials processing the FOI Requests would not understand the words complained of to be defamatory.

[16] In Grand Financial Management Inc. v Solemio Transportation Inc., 2016 ONCA 17 5, at para 62 (leave to appeal refused, 2016 ONCA 175), the Ontario Court of Appeal held that the essential elements of the tort of intentional interference with economic relations are as follows:

“[F]irst, the defendant must have intended to injure the plaintiff’s economic interests; secondly, the interference must have been by illegal or unlawful means; and thirdly, the plaintiff must have suffered economic harm or loss as a result."(Internal citations omitted)

[17] I adopted the proposed defendant’s counsel’s submission that, “Allowing such unmeritorious allegations that raise issues not worthy of trial to proceed at this stage would not only be unjust given the seriously harmful effects on access to information and free expression … but it would also be a waste of court resources, as they would be struck upon pleading.”

[18] If individuals filing requests under access to information legislation were faced with the prospect of civil liability, simply for making a request, the purpose of access to information legislation would be frustrated, the defences available to a defamation claim would be unduly limited, and the s. 2(b) Charter guarantee of freedom of expression would be impacted. These harmful effects would cause an injustice not compensable in costs.

[19] I held that the purpose of access to information legislation would be frustrated if requesters were faced with the prospect of civil liability for filing a request. The legislation already provides checks and balances where disclosure of information might be harmful, or a request is frivolous or vexatious.

[20] Freedom of information requests are necessarily made before the requester is in a position to substantiate or verify a statement. If a requester were required to have the facts necessary to substantiate or verify a potentially defamatory implication made in a freedom of information request, the defences available would be severely limited.

[21] In Grant v. Torstar, 2009 SCC 61, the Supreme Court of Canada held, at para.61. that the law of defamation must strike a balance between freedom of expression and reputation.Allowing a defamation claim on the basis of a freedom of information request would tip the balance too far in favour of the right to protect individual reputation.

[22] I found persuasive counsel’s submission:

43. Finally, the Supreme Court of Canada has repeatedly recognized that freedom of expression is intimately linked to access to information. The spectre of civil liability for simply filing freedom of information requests would have serious implications for s. 2(b) freedom of expression guarantee.

Disposition

[23] Plaintiffs motion to add Ken Rubin was “dismissed with costs”.

[24] I received no submissions which would cause me to deviate from the Statutory guidelines of the Ontario’s Courts of Justice Act. Section 137.1, under the heading “Prevention of Proceedings that Limit Freedom of Expression on Matters of Public Interest (Gag Proceedings)”. It reads in part:

[25] Section 137.1 concludes with a listing of the potential cost consequences flowing from the section:

Costs on dismissal

(7) If a judge dismisses a proceeding under this section, the moving party is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless the judge determines that such an award is not appropriate in the circumstances. [my emphasis]

[26] Here the successful proposed defendant incurred personal expenses for his own travel and preparation for the motion. However, he seeks only the full amount paid to counsel for representing him with respect to the motion, totalling $15,000.

[27] I see no reason not to grant this request.

[28] Costs fixed at $15,000 (all in) to be paid to Mr Rubin, by November 30, 2019.

R. 275c/DS __________________

Master D.E. Short