The Ontario College of Teachers v. Ahmed Bouragba

COURT FILE NOS.: CV-16-562585

DATE: 2021/03/22

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: THE ONTARIO COLLEGE OF TEACHERS, Plaintiff

AND:

AHMED BOURAGBA, Defendant

BEFORE: MASTER RONNA M. BROTT

COUNSEL: Charlotte-Ann Malischewski, for the Plaintiff Email – cmalischewski@mccarthy.ca

Ahmed Bouragba, Self-represented Defendant Email – ahmbouragba@hotmail.com

HEARD: January 12, 2021

ENDORSEMENT

PROCEDURAL HISTORY OF THE ACTION

[1] This is a defamation action. Pleadings are closed. The action has not yet proceeded to discoveries nor has there been a mediation. The matter has not been set down for trial.

[2] The action was commenced on October 20, 2016. On or about November 4, 2016 Mr. Bouragba (“the defendant”) served a Request for an Order to Dismiss the Action, alleging that the action was a frivolous and vexatious proceeding. On February 1, 2017 and April 27, 2017, the defendant served on the Ontario College of Teachers (“the plaintiff”) two separate and different Statements of Defence. On or about June 6, 2017, the plaintiff confirmed that the latter one had been filed with the court.

[3] On March 7, 2018 the defendant served on the plaintiff a motion to dismiss the action under Section 137.1 of the Courts of Justice Act, R.S. O. 1990, c. C.43 (“Section 137.1 motion”). The Section affords a procedural mechanism for the dismissal of proceedings that limit freedom of expression on matters of public interest. Justice Pollak dismissed the defendant’s motion and permitted the plaintiff’s defamation action to proceed.

[4] Mr. Bouragba appealed Justice Pollak’s Order and on December 31, 2019 the Ontario Court of Appeal allowed the appeal without costs and remitted the motion for re-hearing back to a different Judge of the Ontario Superior Court.

[5] On February 29, 2020 the defendant served the plaintiff with an application for leave to appeal to the Supreme Court of Canada the decision of the Ontario Court of Appeal on the issue of costs only. Mr. Bouragba later expanded the appeal to include other issues. On October 29, 2020 the Supreme Court of Canada dismissed Mr. Bouragba’s application for leave to appeal the decision of the Ontario Court of Appeal. On November 30, 2020 Mr. Bouragba filed a request for the Supreme Court of Canada to reconsider and to date no decision has been rendered.

[6] On March 4, 2020 the plaintiff wrote to the defendant to advise him that it no longer wished to pursue the action. The plaintiff sought the consent of the defendant to discontinue the action but the latter refused to provide his consent. Accordingly, the plaintiff requested a case conference with a Master to schedule the long motion to discontinue the defamation action in its entirety, with prejudice. At the case conference which proceeded on August 13, 2020, the defendant opposed the scheduling of the motion but it was ordered that the plaintiff’s motion to discontinue the action would be heard.

[7] The defendant then sought a case conference with a Judge to schedule the re-hearing of his s. 137.1 motion. On September 3, 2020, Justice O’Brien issued a scheduling endorsement in which she ordered that the Master’s motion to discontinue be heard first and that Mr. Bouragba “may take steps to schedule his 137.1 motion after the Supreme Court leave decision is rendered and if the action is not finally disposed of at the motion to discontinue”.

[8] On September 30, 2020 Mr. Bouragba served a Notice of Appeal seeking to stay Justice O’Brien’s Endorsement and on November 27, 2020 the College served a cross-motion to quash Mr. Bouragba’s appeal for want of jurisdiction. The Court of Appeal heard both motions on January 4, 2021. On January 8, 2021 the Court of Appeal quashed the appeal and held that as Justice O’Brien’s Order is a scheduling order which does not determine the merits of either Mr. Bouragba’s s. 137.1 motion or the plaintiff’s motion to discontinue, it is interlocutory in nature and therefore the Court of Appeal does not have jurisdiction to entertain the appeal. There is no hearing date scheduled for the s. 137.1 motion.

[9] The plaintiff now brings this motion seeking leave to discontinue the action with prejudice pursuant to Rule 23.01 of the Rules of Civil Procedure which states:

(1) A plaintiff may discontinue all or part of an action against any defendant,

(a) before the close of pleadings, by serving on all parties who have been served with the statement of claim a notice of discontinuance (Form 23A) and filing the notice with proof of service;

` (b) after the close of pleadings, with leave of the court; or

(c) at any time, by filing the consent of all parties.

[10] The defendant opposes the motion for the following reasons, many of which were also asserted by the defendant in his opposition to the scheduling of this motion in August 2020:

1. Jurisdiction of the Master;

2. Section 137.1 of The Courts of Justice Act, R.S.O., 1990, c. C. 43;

3. The Order of the Court of Appeal must be complied with and to not do so renders the plaintiff in contempt or acting in bad faith;

4. The plaintiff has failed to meet the test to discontinue this action.

1. JURISDICTION OF THE MASTER

[11] The defendant relies on Rule 37.02(2) which confers on a Master “the jurisdiction to hear any motion in a proceeding…except a motion

(a) where the power to grant the relief sought is conferred expressly on a judge by a statute or rule.”

[12] Rule 37.02 (2) confers upon Masters the jurisdiction to hear any motion in a proceeding except with a few specified exceptions, the most important being where jurisdiction is expressly conferred on a judge. Mr. Bouragba submits that because any matter governed by s. 137.1 of The Court of Justice Act must be determined by Judge, this motion to discontinue must be heard by a Judge.

[13] Motions under s. 137.1 of the Courts of Justice Act are not specifically excluded under rule 37.02 nor is there anything in s. 137.1 that prohibits a Master from hearing a motion for leave to discontinue an action. A court hearing a motion is to make its determination within the confines of the Rule under which the party is moving.

[14] Rule 23.01 motions are routinely heard by Masters. Motions to discontinue are heard within a variety of actions. As Rule 23.01 does not specifically require that motions to discontinue must be heard by Judges, Masters have the inherent jurisdiction to hear such motions.

[15] The defendant further argues that if a Master makes a decision on the discontinuance, and he then seeks to appeal, it is unclear where such an appeal would lie. Masters’ decisions are appealed either to one judge of the Superior Court or to the Divisional Court. The defendant asserts that because an appeal under s.137.1 must go to the Court of Appeal, this inconsistency requires that this motion be heard by a judge in the first instance.

[16] As the substantive issue on this motion is to discontinue the action, over which a Master does have jurisdiction, the appeal route is the same as with any other Master’s motion.

[17] Moreover, Justice O’Brien has specifically directed that the motion to discontinue be heard first by me.

2. SECTION 137.1 OF THE COURTS OF JUSTICE ACT, R.S.O., 1990, c. C. 43

[18] The relevant sections state:

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

Order to dismiss

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest. 2015, c.23, s.3.

(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.

[19] In United Soils Management Ltd. v Katu Mohamed 2017 ONSC 904 Justice Penny, on appeal from the Order of Master Muir, considered whether the filing of a statement of defence and counterclaim after the defendant brought a motion to dismiss under s. 137.1 constituted a ‘further step’ in the proceeding. Penny, J. concluded that filing a statement of defence did constitute a further step contrary to s. 137.1 (5). The defendant relies on Penny, J’s reasons quoting paragraph 16 which states that there are “no exceptions [to this prohibition], nor is the court afforded power to grant relief from the prohibition in any circumstances.” Mr. Bouragba submits that once a motion is brought under s. 137.1, the action is stayed and the only live issue is the anti-SLAPP motion. It is the defendant’s submission that the booking of the plaintiff’s motion to discontinue, the appearance before a judge to have the s. 137.1 hearing heard before this motion and the appeal of that Judge’s motion to the Court of Appeal on January 4, 2021 were all errors by our courts – all causing ‘significant damage to the quality of the administration of justice.’.

[20] In United Soils, both the Master at first instance and Penny, J. on appeal agreed that the filing of a pleading after the defendant had brought her motion to dismiss under . 137.1 constituted a further step in the proceeding and Penny, J. concluded that it was thereby contrary to s. 137.1 (5). In the case at bar, the plaintiff is not seeking to take any further step in the proceeding to advance the litigation. Rather, the plaintiff is wanting to bring the entire proceeding to an end. Therefore, s. 137.1(5) does not bar the plaintiff from bringing this motion to discontinue.

3. THE ORDER OF THE COURT OF APPEAL MUST BE COMPLIED WITH

[21] Mr. Bouragba asserts that the plaintiff’s motion to discontinue this action is an attempt by the plaintiff to circumvent the December 31, 2019 Order of the Court of Appeal which ordered the s. 137.1 motion be remitted to the Superior Court. He asserts that the plaintiff is attempting a ‘go-around’, and is seeking to avoid the hearing of the s. 137.1 issue. In Poffenroth Agri Ltd. v Brown, 2020 SKCA 68, the Saskatchewan Court of Appeal held that the bringing of the motion to discontinue in order to circumvent the Court of Appeal’s order to remit the s. 137.1 issue to the Superior Court was “prima facie an abuse of the court process”.

[22] In the Poffenroth case, there was a question as to whether the Poffenroth claim should proceed in Alberta or Saskatchewan as there were two almost identical claims commenced in each province. The plaintiff had simply filed a Notice of Discontinuance in the Saskatchewan action and had not sought leave of any court to do so. The Poffenroth case is distinguishable, and the discontinuance filed in the Saskatchewan case did not end the dispute between the parties as there was a continuing action in Alberta.

[23] In the case at bar, the Court of Appeal decision dated December 31, 2019 deals only with the issue of remitting the s. 137.1 issue back to the Superior Court. The issue of a discontinuance of the entire action was not before the Court of Appeal. Furthermore, if leave to discontinue the action is granted, it would be unnecessary to hear the s. 137.1 issue as the action will be at an end – subject only to the issue of costs, if any, to which the defendant may be entitled.

4. THE PLAINTIFF HAS FAILED TO MEET THE TEST FOR DISCONTINUANCE

[24] In 1623242 Ontario Inc. v Great Lakes Copper Inc., 2016 ONSC 1002, Justice Price outlines at para. 12 the test for granting leave to discontinue an action:

The court’s exercise in discretion to grant leave to discontinue should consider several factors; “the state of the progress of the action; the prejudice suffered by either party should leave be granted or refused; and the court’s ability to neutralize prejudice by imposing terms.”

Progress of the action

[25] This claim, although commenced in 2016, is still just at the early post-pleadings stage, with Affidavits of Documents having been exchanged.

Prejudice

[26] The defendant in bringing the s. 137.1 motion, was seeking to have the action dismissed – declared at an end. On this motion, the plaintiff seeks to have the action discontinued – declared at an end. It certainly appears that the parties are seeking the same outcome which is that the action be declared at an end.

[27] If leave to discontinue is denied, the defendant’s s. 137.1 motion would have to be scheduled and re-heard. If that motion is denied, then the action will be ready to proceed to discoveries, perhaps have interlocutory motions heard, and then to go pre-trial and trial. Clearly there would be prejudice to both parties in terms of time and the huge financial burden of the proceeding.

[28] If leave to discontinue is granted, the court has discretion to impose terms. For example, it could deny the plaintiff from commencing any further proceedings for the same causes of action and/or it could make an order for costs. These terms clearly limit any potential prejudice to the defendant.

[29] The defendant submits that a dismissal under s. 137.1 would serve as a public interest statement and a deterrence against the College of Teachers whereas the motion to discontinue does not serve the public interest. The defendant asserts that the prejudice to him, his family and the public interest cannot be neutralized.

[30] While the defendant may have a legitimate interest in having the s. 137.1 motion heard and obtaining a ruling that the plaintiff’s action unduly limits expression on matters of public interest, the concrete result on this action would be the same: the termination of the proceeding.

[31] Mr. Bouragba relies on Simanic v Ross, 2004 CanLII 66337 (ONSC) at para. 33, which states:

On applications for leave to discontinue it is obvious that a number of factors have been considered by the courts and must be considered by me. One of those is what has been called a “right” in a defendant to have an issue tried in the court the plaintiff selected. An example of that is Blum v Blum. In the course of giving the decision of the Ontario Court of Appeal, Mr. Justice McLennan referred with approval to the decision of Mr. Justice Riddell [page 169] in Schlund v Foster, who referred to an action being “…carried on so far that the plaintiff is no longer dominus litis, but the defendant has acquired rights and is entitled to a judicial declaration as to merits between himself and the plaintiff;…”(see p.178)

I think the operative phrase in that reference is “carried on so far”. That draws attention to the stage the action has reached when the plaintiff seeks to break it off. The proceedings had gone along a substantial way…

[32] Here, the action has not been “carried on so far”. The proceeding has not gone along a substantial way but rather is still in-between the pleadings and discovery stage. Further, in Simanic, Low, J. dismissed the plaintiff’s appeal from a Master’s order dismissing his motion for leave to discontinue his action because he sought the discontinuance in order to prosecute a later action in St. Kitts – and to compel the defendant to defend himself in St. Kitts rather than in Ontario. Had the court permitted the discontinuance, the action would not have brought to an end the dispute between the parties because there would still be another outstanding action – the one in St. Kitts.

[33] Rule 1.04 states:

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

[34] Both parties have at different times, sought to bring an end to these proceedings. Unquestionably the most expeditious and least expensive determination of this action is to discontinue the proceeding at this time, While the s. 137.1 motion was, back in December 2019, ordered to be remitted to a Superior Court Judge, it would fly in the face of governing principles of the Rules of Civil Procedure, and specifically rule 1.04 to hear that s. 137.1 motion and effectively bar a discontinuance. The most just and expeditious result is to grant the plaintiff’s motion to discontinue the proceeding.

[35] There is no prohibition to ending proceedings when other matters are still ‘live’ in an action.

[36] Accordingly, it is ordered that the action is discontinued. The court further orders that the discontinuance shall be deemed a bar to any subsequent action(s) brought by the plaintiff arising from the same causes of action asserted within this action.

COSTS OF THE ACTION/COSTS OF THE MOTION

[37] The question of costs of the action after discontinuance is governed by rule 23.05(1) of the rules which provides:

If all or part of an action is discontinued, any party to the action may, within thirty days after the action is discontinued, make a motion respecting costs of the action.

[38] When this motion was scheduled in August 2020, it was also ordered that should Mr. Bouragba wish to bring a cross-motion for costs, the deadline for doing so was September 30, 2020. He never brought the cross-motion, responding to the plaintiff on October 18, 2020 that “it cannot be submitted under the stay of the action as I mentioned to the court that I cannot violate the statute like Master Brott or Justice O’Brien, probably I will do it under s. 137.1 Anti-SLAPP motion since it is allowed without breach of statute.” The defendant did not bring any motion for costs of the action despite being permitted to do so.

[39] It is clear that Mr. Bouragba proactively chose not to seek costs of the action. His factum refers only to costs of this motion. While I find that the defendant has chosen not to put the issue of costs of the action before this court, and while I will make no determination on the issue of costs of the action at this time, the rule provides that in light of the order to discontinue the defendant may, within thirty days bring his motion for costs.

[40] The only question of costs before this Court are costs on this motion. The defendant submits that he is entitled to costs of $40,000.00 for this motion and “an order for punitive damages caused by the flagrant abuse of process”. The rules require that Costs Outlines be filed. Neither party has done so. It is ordered that the parties attempt to agree on the issue of costs within thirty (30) days following the release of these reasons. If unable to agree on costs, they shall exchange and file with my Assistant Trial Coordinator, Christine Meditskos, Costs Outlines together with brief (1-2 page maximum) written submissions within 20 days thereafter. The defendant also has thirty (30) days to deliver a motion to request costs of the action, including any and all steps for which the defendant may be eligible to claim costs.

MASTER RONNA M. BROTT

Date: March 22, 2021