COURT FILE NO.: CV-20-83950
DATE: 2021/10/13
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
GABRIEL J. MARTEL
Plaintiff
– and –
CITY OF OTTAWA
– and –
JEFF DELOYDE
Defendants
Self-represented, for the Plaintiff
Jeremy Wright, for the Defendants
HEARD: By videoconference on October 5, 2021.
ReasonS for DECISION
Parfett J.
[1] The Defendants have brought a motion to have the claim issued by the Plaintiff dismissed with costs on the basis the Statement of Claim does not disclose a reasonable cause of action against the Defendants.
BACKGROUND
[2] The Plaintiff was employed as a senior construction superintendent by a company called ASCO. It was his role to manage the site of the Britannia Water Filtration Project undertaken by the City of Ottawa.
[3] There were problems noted with the site by the Defendant, Jeff DeLoyde. He set out those problems in an Interim Vendor Performance Management Report (VPM) dated January 27, 2020. Subsequently, a letter was written to the Plaintiff’s employer asking that he be removed as the site manager due to the ongoing problems.
[4] According to the Plaintiff, the VPM report was posted on a database called MERX that is open to municipalities and other paid subscribers.
[5] The Plaintiff alleges in his Statement of Claim that the complaints that his work was unsatisfactory, that he failed to monitor the work or properly organize the tasks and generally was incompetent are false and defamatory. He therefore claims damages for libel and slander.
ISSUE
[6] The issue to be determined is whether the allegations in the Statement of Claim, even if accurate, could constitute libel and if so, whether the statements are protected by qualified privilege.
LEGAL PRINCIPLES AND ANALYSIS
[7] Rule 21.01(1)(b) of the Rules of Civil Procedure[^1] provides,
A party may move before a judge,
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence…
…and the judge may make an order or grant judgment accordingly.
[8] Libel is defined in the Act as,
Defamatory words in a newspaper or in a broadcast shall be deemed to be published and to constitute libel.[^2]
[9] The principles governing defamation and the defence of qualified privilege are thoroughly canvassed in Vanderkooy v. Vanderkooy. In that case, the court notes:
A defamatory statement is one which has a tendency to injure the reputation of the person to whom it refers; which tends, that is to say, to lower him [or her] in the estimation of right-thinking members of society generally and in particular to cause him [or her] to be regarded with feelings of hatred, contempt, ridicule, fear, dislike, or disesteem. The statement is judged by the standard of an ordinary, right-thinking member of society.[^3]
[10] A defamatory statement is one that is presumed to be false. Truth is a complete defence to defamation. However, as stated in Vanderkooy,
To successfully establish truth as a full defence, the defendants must displace the presumption of falsity and need only demonstrate that the statements are substantially correct.[^4]
[11] To constitute libel, the statement must be published. The definition of ‘broadcast’ is set out in s. 1 of the Libel and Slander Act,[^5] which states,
Definitions
1 (1) In this Act,
“broadcasting” means the dissemination of writing, signs, signals, pictures and sounds of all kinds, intended to be received by the public either directly or through the medium of relay stations, by means of,
(a) any form of wireless radioelectric communication utilizing Hertzian waves, including radiotelegraph and radiotelephone, or
(b) cables, wires, fibre-optic linkages or laser beams,
and “broadcast” has a corresponding meaning; (“radiodiffusion ou télédiffusion”, “radiodiffuser ou télédiffuser”)
“newspaper” means a paper containing public news, intelligence, or occurrences, or remarks or observations thereon, or containing only, or principally, advertisements, printed for distribution to the public and published periodically, or in parts or numbers, at least twelve times a year. (“journal”) R.S.O. 1990, c. L.12, s. 1 (1).
[12] This definition is very broad and includes any dissemination, including by electronic means to other persons.
[13] The defence of qualified privilege comes into play if it has been demonstrated that the statement is defamatory.[^6] Central to the concept of qualified privilege is the notion of reciprocity. In other words,
…[a] defendant must have some interest in making the statement and those to whom the statement is made must have some interest in receiving it.[^7]
[14] Qualified privilege is aimed at serving the public interest in the sharing of information, rather than the private interests of either the defamer or recipient.[^8] As noted in Reynolds v. Times Newspapers Ltd.,
The essence of this defence lies in the law's recognition of the need, in the public interest, for a particular recipient to receive frank and uninhibited communication of particular information from a particular source.[^9]
[15] However, the defence is not all inclusive. It ‘attaches only to the extent that the communications were reasonably appropriate in the context of the circumstances at the time the information was given.’[^10] Consequently, anything that is not relevant to the exercise of the duty or the safeguarding of the interest which creates the privilege will not be protected.^11 The defence can also be defeated if the dominant motive is malice.[^12]
[16] The scope of the interested persons who can receive a statement that is otherwise defamatory is relatively narrow. As explained in Vanderkooy,
In determining whether the communication was made to an appropriate recipient, or class of recipients, the court applies an objective test: “The issue is not whether the defendant had a right to make the communication or thought that he or she had a duty to make it, but rather whether a reasonable person would feel compelled by a duty to make the communication” (Halls v. Mitchell, 1928 CanLII 1 (SCC), [1928] S.C.R. 125). Flowing from the nature of this privilege, the case law has generally recognized four key contexts in which qualified privilege may be found to exist: “(a) protection of one’s own interest, (b) common interest or mutual concern, (c) moral or legal duty to protect another’s interest, and (d) public interest” (Allen M. Linden, Canadian Tort Law, 5th ed. (Toronto: Butterworths, 1993 at p. 665).[^13]
[17] What is critical is that the maker of the statement owed a duty to the person or persons to whom the statement is made and that the recipient of the statement had a corresponding interest in receiving the statement. In the case of Robinson v. Ontario Society for the Prevention of Cruelty to Animals, the court noted that,
The privilege also requires that the information be communicated to the appropriate persons. The privilege will be exceeded if the audience includes a disproportionate number of unintended recipients.[^14]
[18] The Plaintiff relied heavily in his submissions on the case of Bent v. Platnick.[^15] However, that case involved a different legislative regime. The Plaintiff in the Bent case sued for defamation not libel and consequently, many of the principles set out in that case do not apply in the present case. That said, the section of the decision dealing with qualified privilege sets out an excellent summary of the law.[^16]
[19] In the present case, and for the purposes of this motion to dismiss pursuant to R. 21.01 of the Rules of Civil Procedure, it is assumed that the statements made in relation to the Plaintiff were defamatory and were published in the MERX database.[^17]
[20] Therefore, the narrow issue is whether the defence of qualified privilege applies. The Defendants argued that the statements were sent to the Plaintiff’s employer, who was the contractor carrying out the work for the Britannia Water Filtration Plant project. They state that the City of Ottawa had a duty to advise their contractor of the problems they had noted at the site and that ASCO had an interest in receiving the information.
[21] If ASCO was the only recipient of the VPM and/or letter of removal, I would agree. However, as noted earlier, for the purpose of this motion, it was conceded by the Defendants that the statements may have been posted on the MERX database.
[22] The only information concerning this database was provided by the Plaintiff, who stated that it was a database available to municipalities and other paid subscribers. Without more information, it is not possible to determine if the other potential recipients of the statements could be included in the scope of interested parties who had a right to receive the information set out in the statements.
[23] Consequently, at this particular time, it is not possible to determine whether the defamation action on its face is of questionable merit, and that the defence of qualified privilege will be found to be completely dispositive of the claim.
[24] Therefore, the motion is dismissed.
COSTS
[25] If the parties cannot agree on the issue of costs, brief submissions as to costs may be made to me in writing within 30 days of today’s date.
The Honourable Madam Justice Julianne Parfett
Released: October 13, 2021
COURT FILE NO.: CV-20-83950
DATE: 2021/10/13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
GABRIEL J. MARTEL
Plaintiff
– and –
CITY OF OTTAWA
– and –
JEFF DELOYDE
Defendants
reasons for decision
Parfett J.
Released: October 13, 2021
[^1]: R.R.O. 1990, Reg. 194.
[^2]: Section 2.
[^3]: Vanderkooy v. Vanderkooy, 2013 ONSC 4796 at para. 155, citing Colour Your World v. Canadian Broadcasting Corp. (1998), 1998 CanLII 1983 (ON CA), 38 O.R. (3d) 97 (C.A.).
[^4]: At para. 163. See also Bent v. Platnick, 2020 SCC 23 at para. 107.
[^5]: R.S.O. 1990, c.L.12, as amended
[^6]: At para. 166.
[^7]: RTC Engineering Consultants v. Ontario et al (2002), 2002 CanLII 14179 (ON CA), 58 O.R. (3d) 726 (C.A.), at para. 16.
[^8]: Macintosh v. Dun, [1908-10] All E.R. Rep. 664 (P.C.), at 667.
[^9]: [1999] 3 W.L.R. 1010, at 1017 (H.L.).
[^10]: Vanderkooy at para. 169, citing Hill v. Church of Scientology of Toronto, 1995 CanLII 59 (SCC), [1995] 2 S.C.R. 1130 at 1189-1190.
[^12]: Bent at para. 121.
[^13]: At para. 173. See also, Wallbridge v. Brunning, 2017 ONSC 2596 at paras. 52-53.
[^14]: 2012 ONSC 3647 at para. 14.
[^15]: Supra., Note 4.
[^16]: At paras. 121-129.
[^17]: The Plaintiff did not plead this fact in his Statement of Claim but referred to it in his motion materials and submissions. The Defendants did not dispute the accuracy of this assertion.