Court File and Parties
COURT FILE NO.: CV-17-129488 DATE: 20201217 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: John Doe 129488 previously known as Cecil Murray Kirby Plaintiff – and – Canadian Broadcasting Corporation Defendant
COUNSEL: Alfred Schorr, for the Plaintiff M. Philip Tunley and Jennifer P. Saville, for the Defendant
HEARD: September 15, 2020
Reasons for Decision
McKELVEY J.:
Introduction
[1] In the early 1980’s the plaintiff, Cecil Kirby, entered into an agreement with the RCMP to become a police informant. Mr. Kirby had a long history as an “enforcer” with organized crime. As a result of his cooperation, a number of prominent organized crime figures were convicted of serious criminal offences. Mr. Kirby was given immunity from prosecution for what was described as over 100 indictable offences and was placed into a witness protection program, in accordance with a contract with the RCMP.
[2] By 1984, The Fifth Estate, a CBC program, was investigating organized crime in Canada. The CBC approached Mr. Kirby to learn more about his time as an enforcer with an organized crime family and Mr. Kirby agreed to be interviewed on camera and to speak about his involvement in organized crime. This interview was broadcast on The Fifth Estate and was entitled “The Informer”. During the interview Mr. Kirby discussed his role in motorcycle gangs and the mafia and how he carried out enforcement for these organizations and later became an informant for the RCMP.
[3] As part of his involvement with The Fifth Estate program, Mr. Kirby signed a contract dated February 9, 1984 which engaged his services as a “Program Researcher” and which paid him compensation for his services. As part of this written agreement, the plaintiff agreed that “all such work as you may do hereunder shall become the property of the corporation to be used by it in any way whatsoever”.
[4] The interview with Mr. Kirby was broadcast on The Fifth Estate in 1984. The evidence suggests that the program was shown on two occasions because originally there was a blackout for the program in Toronto. There is also evidence that a portion of the interview was rebroadcast on the CBC program “News Hour” which also would have occurred in 1984.
[5] 2015 was the 40th season for The Fifth Estate program on CBC. As part of the anniversary they broadcast portions of what they considered to be their “favourite” programs over that 40 year history. On January 23, 2015, The Fifth Estate, at the end of their program, broadcast a short clip from the interview with Mr. Kirby. The clip was taken directly from the program as it had aired in 1984 and was approximately 1 minute and 44 seconds in length. The clip included approximately 33 seconds from the program where Mr. Kirby was interviewed on camera. The January 2015 broadcast was also available on The Fifth Estate website.
[6] On May 27, 2015, counsel for Mr. Kirby wrote to the CBC asserting that while Mr. Kirby had agreed to be interviewed for a Fifth Estate episode in 1984, it had been a condition of that agreement that the program would, “be aired within two weeks of its production and never shown again”. It was asserted that at the time of his original interview Mr. Kirby was involved in a witness protection program during which he and possibly other members of his family were to be relocated, a new identity established and thereafter he would be in effect “on his own”.
[7] In commenting on the rebroadcast of the program in 2015, counsel for Mr. Kirby stated,
You can imagine the shock and concern that Mr. Kirby sustained. For almost thirty years he had a new identity and a life. As a result of these rebroadcasts various persons have told him and members of his family that they recognized him and didn’t know that he was in fact the Cecil Kirby shown in the episode. He is presently on the run; attempting to relocate elsewhere.
Mr. Kirby is convinced that a number of the organized crime figures in connection with which he was instrumental in their convictions still have an outstanding contract for his death. He is also concerned about members of his family now that his former identity has been exposed.
[8] After receipt of the letter from Mr. Kirby’s counsel, the CBC removed the 2015 program and the interview clip which had been included in the January 2015 program from its website so that it could no longer be accessed by members of the public.
[9] Mr. Kirby subsequently commenced a civil action against the CBC for its rebroadcast of the 1984 interview. The action claims damages for breach of contract or alternatively, breach of Mr. Kirby’s privacy, or in the further alternative, negligence. It is asserted in the action that there was an express agreement that the plaintiff’s interview with The Fifth Estate “would be shown nationally on one occasion within two weeks of the agreement and never to be repeated”.
[10] In their defence, the CBC asserts that there was no agreement that the plaintiff’s interview on The Fifth Estate would never be rebroadcast and further submitted that its contract with Mr. Kirby allowed it to rebroadcast the program at its discretion.
[11] The CBC has now brought a motion for summary judgment seeking a dismissal of the plaintiff’s claim. In support of its motion the CBC relies on the Affidavit of Mr. Bob McKeown, an investigative reporter with the CBC, who conducted the interview with the plaintiff as well as an Affidavit by Mr. Robert Moore who is the Manager, Royalties and Revenue Shares, for in house programming at CBC. The plaintiff relies on an Affidavit from Mr. James Dubro, who assisted Mr. Kirby in negotiating his involvement with The Fifth Estate Program.
[12] For the reasons which follow, I have concluded that this motion should be granted.
Rule 20 – Summary Judgment
[13] This is a motion for summary judgment under Rule 20 of the Rules of Civil Procedure. In 2014, the Supreme Court of Canada released its decision in Hryniak v. Mauldin, 2014 SCC 7, which considered when it is appropriate to grant summary judgment under Rule 20 of the Rules. Rule 20.04(2) provides that,
The court shall grant summary judgment if,
(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
[14] Rule 20.04(2.1) provides that,
In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:
- Weighing the evidence.
- Evaluating the credibility of a deponent.
- Drawing any reasonable inference from the evidence.
[15] In its decision in Hryniak, the Supreme Court of Canada notes that there will be no genuine issue requiring a trial when a judge is able to reach a fair and just determination on the merits of a motion for summary judgment. This will be the case when the process allows the judge to make the necessary findings of fact, allows the judge to apply the law to the facts, and is a proportionate, more expeditious, and less expensive means to achieve a just result. The question a court must consider is whether the judge has confidence that he or she can find the necessary facts and apply the relevant principles to fairly resolve the dispute.
[16] In the present case I have concluded that the issues raised in the summary judgment motion do not require a trial. For the following reasons I believe I am in a position to make the necessary findings of fact and apply those facts to the law in a way that will reach a fair and just determination on the merits of this case.
Does the written agreement between the plaintiff and the CBC cover the interview the plaintiff gave for The Fifth Estate program?
[17] As noted previously, the CBC and Mr. Kirby entered into a written agreement dated February 9, 1984 in which Mr. Kirby’s services were engaged, “as Program Researcher for a period of five weeks, commencing January 31, 1984 and ending March 6, 1984, in connection with the program BIKER, for the Corporation’s THE FIFTH ESTATE”. The agreement which is very brief and was only a page long was signed both on behalf of the CBC and by the plaintiff.
[18] The first issue which needs to be addressed is whether this agreement covered the interview conducted by The Fifth Estate and which was shown on its program. The interview with Mr. Kirby is not specifically referenced in the agreement which refers only to Mr. Kirby’s engagement as a “Program Researcher”.
[19] The position of the CBC is that the plaintiff’s interview is covered by the agreement. The plaintiff’s counsel in oral argument did not admit that the written agreement covered the interview, but did acknowledge that Mr. Kirby was paid for the interview. This is significant because there is no evidence that any payment was made to Mr. Kirby other than pursuant to the written agreement.
[20] In the Supreme Court of Canada decision in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, the Court provides guidance with respect to the proper interpretation of a contract. The Court notes that the contract must be read as a whole, giving the words used their ordinary and grammatical meaning, consistent with their surrounding circumstances known to the parties at the time of formation of the contract.
[21] The importance and limitations of the surrounding circumstances are set out at para. 57 of the Court’s decision where it states,
While the surrounding circumstances will be considered in interpreting the terms of a contract, they must never be allowed to overwhelm the words of that agreement (Hayes Forest Services, at para. 14; and Hall, at p. 30). The goal of examining such evidence is to deepen a decision-maker’s understanding of the mutual and objective intentions of the parties as expressed in the words of the contract. The interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract (Hall, at pp. 15 and 30-32). While the surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement.
[22] In responding to the motion, the plaintiff has filed an Affidavit from James Dubro who assisted Mr. Kirby in negotiating his involvement with the CBC. At paragraph 12 of Mr. Dubro’s Affidavit, he states,
Because CBC did not pay performers fees it was necessary to treat Mr. Kirby throughout as if he was a research consultant who could then be paid. We were also paying him for his travel from his secret location. Mr. Kirby did provide a lot of research information which was the subject matter. Accordingly the Agreement that was entered into (Exhibit “A” to the Affidavit of Mr. McKeown) only provided for consulting services. The contract request form which also appears at Exhibit “A” to the Affidavit of Mr. McKeown refers to “non-performers”. Superficially and in particular in connection with the questionnaire at Schedule B the contract does not provide for any performance but only for consulting services.
[23] The evidence of Mr. Dubro therefore supports a conclusion that the interview of the plaintiff was in fact covered by the agreement but was not specifically referenced in the agreement because the CBC had a policy of not paying for interviews.
[24] The link between the interview and the agreement is further supported by comments made by the plaintiff during the course of the interview. During the course of the interview the plaintiff did not disagree with a suggestion put to him that he was paid for participating in the interview. As noted previously, there is no evidence to suggest that the plaintiff received any other compensation from the CBC other than the payment that was provided for under the written agreement dated February 9, 1984.
[25] Taking into account the evidence with respect to the surrounding circumstances, I am therefore satisfied that the reference to the plaintiff’s services as a Program Researcher included his participation in the interview for The Fifth Estate program.
Was there an oral agreement to only show The Fifth Estate program on one occasion?
[26] At paragraph 8 of the plaintiff’s statement of claim the alleged oral agreement between the plaintiff and the CBC is set out as follows,
- In or around February of 1984 while still under protection the Plaintiff entered into an Agreement with the Defendant to be interviewed on the Defendant’s program “The Fifth Estate”. It was expressly agreed that this would be a one time interview which would be shown nationally on one occasion within two weeks of the agreement and never to be repeated. The Plaintiff’s face and features were not camouflaged in any way.
[27] There is nothing in the written agreement or any other document which would limit the right of the CBC to rebroadcast the interview.
[28] Further, the position of the CBC is that there was no oral agreement where they agreed to only show the program once. The CBC relies on the Affidavit of Bob McKeown who conducted the interview with the plaintiff for The Fifth Estate. He states at paragraph 15 of his Affidavit,
To my knowledge, there was never an agreement that Mr. Kirby’s interview on the Program would never be rebroadcasted.
[29] He further states that in his career at the CBC he has never agreed not to rebroadcast a program.
[30] It does not appear, however, that Mr. McKeown was closely involved in the negotiation of the agreement. However, he notes later in his Affidavit that in the mid-late 1980’s he met Mr. Kirby in downtown Toronto on at least two further occasions to discuss further story ideas. Based on those meetings it was his understanding that Mr. Kirby was willing to cooperate with CBC for a further story and during those discussions he notes that at no time did the plaintiff mention the existence of any agreement with the CBC not to rebroadcast the 1984 program, nor did he express any concern about the program or its subsequent rebroadcast on News Hour.
[31] It is somewhat unusual that the plaintiff elected not to file any affidavit to support the allegation in his statement of claim. On this motion the plaintiff relied only on the Affidavit of Mr. Dubro who reported on comments made to him by the plaintiff about the alleged oral agreement. The defence argued that as hearsay, the comments made by the plaintiff to Mr. Dubro are not to be admitted. However, Rule 20.02 of the Rules provides that an affidavit for use on a motion for summary judgment may be made on information and belief as provided in r. 39.01(4), but, on the hearing of the motion, the court may, if appropriate, draw an adverse inference from the failure of a party to provide the evidence of any person having personal knowledge of contested facts. Rule 20.02(2) is also significant and provides that,
In response to affidavit material or other evidence supporting a motion for summary judgment, a responding party may not rest solely on the allegations or denials in the party’s pleadings, but must set out, in affidavit material or other evidence, specific facts showing that there is a genuine issue requiring a trial.
[32] Rule 39.01(4) provides that an affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.
[33] The evidence given by Mr. Dubro in his Affidavit, however, does not appear to conform to the requirement for evidence to be given by way of information and belief. He expresses no belief in the information given to him by Mr. Kirby and his evidence goes further to cast serious doubt on the accuracy of Mr. Kirby’s assertions.
[34] Mr. Dubro’s Affidavit with respect to the alleged oral agreement is found at paragraph 14 which states as follows:
Recently I spoke to Cecil concerning the issues raised in the lawsuit and in particular reference to “all such work as you may do hereunder shall become the property of the corporation to be used by it in any way whatsoever.” Cecil advised me that he recalls specifically that he demanded and CBC agreed that the program would only be shown on one occasion. I know it was shown on more than one occasion because there was a blackout in Toronto and accordingly it was aired a second time. I do not recall this stipulation but I cannot say that he is wrong in his recollection. What I do remember distinctly is that it was agreed that the program would never be aired again without prior advice to Cecil to ensure that there would be no threat to his safety. I note at page 64 of the Motion Record that CBC’s program rights summary states explicitly “no documentation is available re rights for re-use”.
[35] It is apparent that the evidence of Mr. Dubro falls short of being evidence admissible based on belief with respect to the oral agreement alleged by the plaintiff. In fact his evidence would support a conclusion that there was no such agreement as alleged by the plaintiff. Instead Mr. Dubro suggests that there was a different representation made by the CBC that if the program was to be aired again, the plaintiff was to be given some advance notice. He suggests that a program rights document supports his assertion, but the CBC has responded with an Affidavit of Mr. Moore who states that the reference to “no documentation is available re: rights for re-use” refers only to the fact that there “is no documentation on the rights for re-use pertaining to the stock footage and still images listed below on that page”.
[36] Mr. Moore further states at paragraph 10 of his Affidavit:
I believe that if there was an agreement that the Program would not be re-broadcasted or distributed, this would have been explicitly indicated on the first page under the heading “Rights and Comments”.
[37] The Supreme Court of Canada decision in Hryniak does not alter the principle that a court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The Court is entitled to assume that the parties have respectively advanced their best case and that the record contains all the evidence that the parties will respectively present at trial, see Starcall Wireless Communications Inc. v Bell Mobility Inc., 2017 ONSC 2813, [2017] O.J. No. 2467.
[38] As noted by the Court of Appeal in Chernet v. RBC General Insurance Company, 2017 ONCA 337, [2017] O.J. No. 2094, it is trite law that both parties on a summary judgment motion are required to put their best foot forward. Summary judgment motions are decided by evidence of the facts and by inferences drawn by those facts, not by speculation about the facts.
[39] Taking into account all of the evidence I have before me on this motion I have concluded that there was no oral agreement by the CBC to only run The Fifth Estate program on one occasion as alleged in the statement of claim. There is in fact no admissible evidence before me to support such a finding. Even taking into account the hearsay statement of Mr. Kirby as set out in Mr. Dubro’s Affidavit, which as noted is not admissible, that evidence is not credible when the evidence of Mr. McKeown, Mr. Moore and Mr. Dubro are taken into account. In arriving at this conclusion, I have taken into account that the plaintiff is the person with direct knowledge of his allegation that there was an oral agreement which is in dispute and he has failed to provide any direct evidence on this motion. The plaintiff’s action must, therefore, fail.
[40] Even if I was satisfied there was admissible evidence to support an oral agreement not to rebroadcast the program or to support the assertion by Mr. Dubro that the CBC undertook to give notice of an intention to rebroadcast the program, this would not be sufficient to create a binding obligation on the CBC. In the Sattva Capital decision the Supreme Court emphasizes that evidence about the surrounding circumstances of a contract can be relied upon in the interpretative process to understand the intention of the parties. Courts are not entitled to use the surrounding circumstances to deviate from the text such that the court effectively creates a new agreement.
[41] In the present case, the agreement entered into between the parties provided that upon payment of the agreed upon compensation, all of the plaintiff’s work, “shall become the property of the corporation to be used by it in any way whatsoever”. In my view, the meaning of this provision is clear. The CBC owned the interview with Mr. Kirby and had the right to use it in any way it wished. This would include rebroadcasting the interview and there was no precondition to be satisfied before it was rebroadcast.
[42] There is no basis for the plain wording of the written agreement to be varied by the oral representations which are alleged and referenced in the evidence before me. As noted by Geoff Hall in his text, Canadian Contractual Interpretation Law, (3d) 2016, at p. 85, oral evidence will not be admitted “which would contradict express terms of a written contract”.
[43] At p. 86 of his text, Mr. Hall notes:
The second circumstance in which the parol evidence rule is applied comes from three separate cases in which the Supreme Court of Canada has held that a collateral contract may not contradict the written contract….
[44] The plaintiff’s claim in tort and invasion of privacy must also fail in light of the terms of the written agreement. There is no basis to hold the CBC liable in negligence for re-airing the program when it had the lawful right to do so in accordance with the written agreement. Similarly, there is no basis for a court to conclude that there was a triable issue on the claim for breach of privacy. The Court of Appeal’s decision in Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241, outlines the elements of the action for intrusion upon seclusion. At para. 71 it states that the key features of the cause of action include a requirement that the defendant must have invaded, without lawful justification, the plaintiff’s private affairs or concerns. In the present case the agreement between the plaintiff and the CBC provides a lawful justification for the actions of the CBC.
Conclusion
[45] I have granted the defence motion for a dismissal of the plaintiff’s claim. Having said that, I accept that the rebroadcast of an interview given almost 30 years ago would be a matter of concern for Mr. Kirby. The Affidavit of Mr. Dubro indicates that the major crime family for whom the plaintiff was an enforcer is still very active. It is reasonable to conclude, therefore, that the rebroadcast of the interview had the potential to alert the public to the current whereabouts of the plaintiff. Certainly this information has the potential to seriously affect the plaintiff’s safety as well as other members of his family. These risks are real.
[46] There is no allegation or evidence before the Court which suggests that the CBC or anyone acting on its behalf intended to put Mr. Kirby in harms way through a rebroadcast of the program. Once advised about the plaintiff’s concerns the CBC acted responsibly by removing the interview from public access. I would urge the CBC to ensure that this interview is not made available to the public and provide some reassurance to the plaintiff about this.
[47] Similarly, I would encourage the plaintiff to contact the RCMP if he continues to have any concerns about his safety and I would respectfully request that in this situation the RCMP give full consideration to the plaintiff’s circumstances and provide assistance which it feels is appropriate consistent with either the agreement it entered into with the plaintiff or alternatively based on its obligations as a police force in maintaining public safety.
[48] For the above reasons, the plaintiff’s action is dismissed. If costs are demanded and cannot be agreed upon, then an appointment should be made with the trial coordinator within 30 days of the release of this decision to address the issue of costs. In such event, the parties will deliver concise briefs at least two days before their attendance. If no arrangements are made within 30 days for an appointment to speak to costs, there will be no order for costs.
Justice M. McKelvey
Released: December 17, 2020
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: John Doe 129488 previously known as Cecil Murray Kirby Plaintiff – and – Canadian Broadcasting Corporation Defendant REASONS FOR DECISION Justice M. McKelvey