TSCC No. 1465 v. Buchwitz, 2021 ONSC 821

COURT FILE NO.: CV-19-632793 and CV-20-644861-0000

DATE: 20210212

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LILY BUCHWITZ

Applicant

– and –

ANDREW PACKWOOD and TORONTO STANDARD CONDOMINIUM CORPORATION NO. 1465

Respondents

AND BETWEEN:

TORONTO STANDARD CONDOMINIUM CORPORATION NO. 1465

Applicant

-and –

LILY BUCHWITZ and ANDREW CARIN

Lorne Honickman and Justin W. Anisman for Lily Buchwitz and Andrew Carin

Megan Mackey for the Applicant, Toronto Standard Condominium Corporation No. 1465

Christian Breukelman for the Defendants Michael Bethke and Andrew Packwood

Andrew D. MacMillan, In Person

Respondents

AND BETWEEN:

LILY BUCHWITZ

Plaintiff

-and -

MICHAEL BETHKE, ANDREW PACKWOOD, DREW MACMILLAN and JOHN DOE

HEARD: February 2, 2021

Defendants

papageorgiou j.

1On February 2, 2021, the parties appeared before me on an Application and Counter-Application. There were approximately 6,800 pages of material before me in respect of these Applications.

2At that time, the Respondent, Lilly Buchwitz (“Ms. Buchwitz”), brought the following motions:

a. an Order converting the Counter-Application to an Action pursuant to r. 38.10 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194;

b. an Order that the Counter-Application be consolidated with, tried together with, tried one after the other, or as the Trial Judge may direct, with a defamation action which Ms. Buchwitz initiated against three individuals, one of which is a former member of the Board of Toronto Standard Condominium Corporation 1465 (“TSCC 1465”);

c. an Order, pursuant to r. 30.1.01(8) of the Rules of Civil Procedure, permitting the applicant Lilly Buchwitz to rely on the evidence obtained by way of documentary discovery and examination for discovery in the Defamation Action for the purpose of the Application and Counter-Application on such terms as this Honourable Court deems just; and

d. an Order striking the Notice of Application in the Counter-Application, with leave to amend, on the basis that it offends the strict requirements for a pleading of defamation.

3I heard submissions on these issue, reserved, and adjourned the Application and Cross-Application pending my determination of these motions

Is this motion to consolidate res judicata?

4I had previously made rulings in this matter at two case conferences.

5First, the parties appeared at a case conference regarding whether the Application and Cross-Application should be heard together. At that time, TSCC 1465 requested that the Application and Cross-Application be heard together. On July 13, 2020, I ordered that:

Upon reviewing the application, the materials submitted, and hearing submissions from counsel, it is clear to me that but for the jurisdictional issue as to whether the cross-application must first proceed to mediation/arbitration, the application and cross application should be heard together. The cross application relates to the underlying basis for the lien registered by TSCC. If TSCC is successful in its cross application, then it has a valid lien (assuming it was registered in time, which is also in issue.). If TSCC’s cross application is not successful, then there is no basis for the lien. Having the party’s applications proceed separately will bifurcate the proceeding and may result in inconsistent findings.

6There was no appeal.

7I have reviewed the materials filed by Ms. Buchwitz prior to the July 13, 2020 case conference and there is no mention of any request to consolidate the Defamation Action with the Application and Counter-Application. Counsel must have raised this request during the case conference, however, because I reference it in a subsequent endorsement I made on October 20, 2020 where the parties appeared before me again for scheduling purposes.

8On October 20, 2020, counsel for Ms. Buchwitz requested that I consolidate the Counter-Application with the proceedings but there were no materials before me. I imposed a schedule whereby if Ms. Buchwitz wanted to consolidate these matters, she would be required to bring a formal motion. I stated:

If counsel for Ms. Buchwitz feels there are changed circumstances warranting further consideration of the Applications with the defamation proceeding, he may bring a formal motion returnable at the same time as these applications. The motions judge will no doubt consider whether there really are new grounds and if there are not, then there may be costs consequences as the bringing of this motion and the cross examinations which Ms. Buchwitz’ counsel says are required in respect of, are considerable.

9I did not have any materials before me on July 13, 2020 or October 20, 2020 regarding this issue, so my endorsement was based only upon counsel’s oral submissions and not upon any evidence filed. As well, counsel for the defendants in the Defamation Action had not been served with any materials and were not present. It would have been unfair to make any order in their absence.

10However, it was not my intention to foreclose Ms. Buchwitz’s ability to bring her motion; rather, it was my intention that the matter be considered upon a proper record, properly served, and not simply grounds advanced in oral argument without the necessary parties present.

11I expressly gave Ms. Buchwitz the opportunity to bring the motion on proper materials and the matter is, accordingly, not res judicata.

Consolidation and Conversion to an Action

12Rule 6.01 (1) of the Rules of Civil Procedure states that proceedings can be consolidated where: (a) they have a question of law or fact in common; (b) the relief claimed arises out of the same transaction or occurrence or series of transactions or occurrences; or (c) for any other reason an order ought to be made under this rule.

13The policy behind r. 6.01 is “to avoid a multiplicity of proceedings, to promote expeditious and inexpensive determination of disputes, and to avoid inconsistent judicial findings”: 4381840 Canada Inc. v. Charron, Langlois LLP et al., 2017 ONSC 5043, at para. 22.

14When determining whether to consolidate proceedings, the court considers several factors, including: the extent to which the issues in each proceeding are interwoven, whether there is expected to be a significant overlap of evidence or of witnesses among the various proceedings, whether the parties and the lawyers are the same, whether there is a risk of inconsistent findings or judgment if the proceedings are not joined, the litigation status of each proceeding, etc.: CN v. Holmes, 2011 ONSC 4837, at para. 44.

15In my view, these Applications should be consolidated with the Defamation Action for the following reasons.

16Both proceedings arise out of a long history of events between Ms. Buchwitz and TSCC 1465 and its Board of Directors (the “Board”).

17In 2015, Ms. Buchwitz commenced a defamation action against Mike Comrie, the former president of the Board. This action was settled in or around March 2017 and required Comrie to apologize, pay Ms. Buchwitz a confidential sum of money, and return control of the South Beach Facebook group to her.

18Ms. Buchwitz alleges that there was a continued campaign of defamation against her by members of the Board and issued a defamation action in May 2019 (the “Defamation Action”).

19The known defendants in the Defamation Action are Mike Bethke, the former president of the Board (“Bethke”); Andrew Packwood, the current president of the Board (“Packwood”); and Drew MacMillan, an owner of a unit at TSCC 1465 and the administrator of a Facebook Group where certain defamatory statements are alleged to have been made (“MacMillan”).

20Ms. Buchwitz alleges in the Defamation Action that Bethke, Packwood, MacMillan and John Doe others made defamatory comments to the residents and owners of TSCC 1465, which included that:

a. Ms. Buchwitz was and is “unethical”;

b. That Ms. Buchwitz breached and/or was breaching her duties and obligations a Director;

c. That Ms. Buchwitz was acting in an undisclosed conflict of interest;

d. That Ms. Buchwitz was exposing TSCC 1465 to risk of legal liability and damages; and

e. That Ms. Buchwitz was receiving a “kickback” and/or some other form of bribe or payment from contractors. (this claim relates in particular to a plumbing contractor that she is alleged to have recommended)

21The Statement of Claim in the Defamation Action was served on Packwood, Bethke and MacMillan in March 2019.

22The Statement of Defence, dated July 31, 2019 and delivered by Bethke and Packwood, includes the following pleadings:

a. Ms. Buchwitz advertised the services of a plumbing contractor to other residents under the name “South Beach Homeowners Association” and on Facebook Groups she administered titled “South Beach Marina Townhomes Association” and “Residents of South Beach Townhomes Toronto” and that this plumber had been convicted of counts under the Ontario College of Trades and Apprenticeship Act, 2009, S.O. 2009, c. 22, and when the Board learned they called a meeting to discuss concerns. Following this meeting, they requested that Ms. Buchwitz resign. At this time, they also requested that she change the name of her Facebook Groups to remove reference to TSCC’s unofficial name.

b. During 2018 Ms. Buchwitz repeatedly breached the Code of Ethics, sent inappropriate communications to TSCC 1465’s unit owners with respect to its business and attempted to retain consultants without due authorization of the Board.

c. Accordingly, because of her various actions, a petition was circulated among unit owners to requisitioning a meeting to have Ms. Buchwitz removed from the Board.

d. Eventually, there were enough signatures to require a meeting to be held.

e. A meeting was held, and Ms. Buchwitz was removed.

f. Although they denied posting any defamatory statements in any Facebook groups, they denied that any such comments were defamatory and in any event any statements were true.

g. That any statements they made with respect to the governance of TSCC 1465 were with respect to its governance and not in their personal capacity.

h. Any statements made were fair comment, made in good faith arising from the Directors’ duties arising from their roles and were protected by qualified privilege.

23Shortly after Bethke and Packwood delivered their defence, on or about August 13, 2019, TSCC 1465 caused their lawyers to deliver a letter (the “Demand Letter”) to Ms. Buchwitz which accused her of:

a. impersonating the TSCC 1465 and misrepresenting specific social media accounts as official accounts belonging to it;

b. posting defamatory statements about the Board on social media platforms;

c. providing misinformation to residents and owners of South Beach on social media; and,

24The Demand Letter incorporated reference to TSCC 1465’s declarations and bylaws (the “Governing Documents”) in support of the TSCC 1465’s allegations.

25The Demand Letter further required that Ms. Buchwitz reimburse TSCC 1465 for the costs that counsel incurred to prepare the Demand Letter (the “Disputed Fees”), in the amount of $1,457.70 by August 31, 2019, or the Disputed Fees would be deemed to be an additional contribution toward the common expenses payable solely by the Condominium Unit owner.

26On August 20, 2019, counsel to Ms. Buchwitz wrote to counsel for TSCC 1465 to demand that the allegations and demand for payment of the Disputed Fees be withdrawn, on the basis that these were a collateral attack on the Defamation Action. In this letter, Ms. Buchwitz explicitly refused to pay the Disputed Fees.

27On November 28, 2019, counsel for Ms. Buchwitz asked that TSCC 1465 refer this dispute to mediation and arbitration pursuant to s. 132(4) of the Condominium Act, 1998, S.O. 1998, c. 19 (the “Act”). TSCC 1465 refused.

28On November 29, 2019, TSCC 1465 registered a lien for non-payment of the Disputed Fees (the “Disputed Lien”) which TSCC 1465 deemed to be outstanding common expenses.

29Ms. Buchwitz took the position that the Disputed Lien was illegally registered. Her position is that the Disputed Fees are not common expenses as defined by the Act, the dispute giving rise to the Disputed Fees ought to have been referred to mediation and arbitration as required under the Act, and the lien was registered out of time (beyond the three-month limitation period). Accordingly, the Application was commenced for removal of the Disputed Lien,

30In response to the Application, TSCC 1465 brought a Counter-Application seeking Orders that, inter alia,

a. Ms. Buchwitz be enjoined from using email and social media accounts which impersonate TSCC 1465, including South Beach Marina Townhomes (TSCC 1465) Residents, South Beach Marina Townhomes (Facebook), @SouthBeachMarinaTownhomes (Instagram);

b. Ms. Buchwitz explicitly state in all communications and posts that these are not the official or authorized groups of TSCC 1465 and are being sent in her personal capacity, and that she post warnings at the top of any homepages she uses stating this;

c. Ms. Buchwitz be required to remove statements she posted on the internet which are defamatory and that she cease making defamatory statements with respect to TSCC 1465 or its directors;

d. Ms. Buchwitz be required to remove statements on the internet and cease making statements which contain misinformation, and which interfere with TSCC 1465’s communications and affairs;

e. Ms. Buchwitz be enjoined from taking photographs of common elements belonging to other owners and posting them on the internet;

f. Ms. Buchwitz be enjoined from discussing Kitec plumbing with other owners and recommending that an unlicensed individual perform plumbing work for residents;

g. Ms. Buchwitz return all stolen property to TSCC 1465; and

h. That Ms. Buchwitz’s husband, Andrew Carin, ensure the Buchwitz complies with any court Order.

31In my view, even though there are some differences in the parties and counsel involved, the factual issues raised by these Applications and the Defamation Action arise out of the same factual circumstances and essentially require a consideration of which party is behaving either in a defamatory manner or in a manner otherwise prohibited at law. The truthfulness of Ms. Buchwitz’s statements, which TCSS 1465 seeks to enjoin in the Counter-Application, will be relevant to the defendants’ potential defence of truth in the Defamation Action, as well as the Disputed Lien claim.

32One example that makes this clear is the issue of statements allegedly made by Ms. Buchwitz that she has been advising tenants to use unauthorized plumbers. TSCC 1465 seeks to enjoin these statements in the Counter-Application. In the Defamation Action, Ms. Buchwitz alleges that TSCC 1465 is telling people that she has advised tenants to use an unlicensed plumber because she received kickbacks and that this is defamatory. Bethke and Packwood specifically plead that they had to advise tenants to stop using the recommended plumber as part of their duty as Directors and they deny alleging that she received kickbacks. In her affidavit filed before me, Ms. Buchwitz says that she never knew that the plumber was unlicensed. This issue was subject to questioning during the examinations for discovery in the Defamation Action.

33During the hearing, counsel for TSCC 1465 submitted that they would be prepared to remove any orders requested in their Counter-Application which relate to the issue of the plumber or any other issues raised in the Defamation Action. In my view, this offer proves the point that the matters are interwoven. At this stage, determining how TSCC 1465’s Counter-Application can be parsed and altered to avoid this issue would result in even more complications in this proceeding. I have no doubt that given the way this matter has proceeded, there would be endless motions and arguments about what relates to the Defamation Action and what does not.

34Both the defence in the Defamation Action and the Counter-Application depend on the court finding that Ms. Buchwitz engaged in the alleged impugned conduct. If she is referring an unlicensed contractor, and if she is spreading misinformation through misleading social media posts and emails, then TSCC 1465 may be entitled to the relief it seeks and the defendants in the Defamation Action may have a defence of truth or qualified privilege to the allegations of defamation.

35Both proceedings require the court to consider the same events and occurrences and make findings of fact with respect to them. Both proceedings will require many of the same witnesses and documentary evidence.

36As well, Ms. Buchwitz alleges that the Counter-Application is a collateral attack on the Defamation Act and it will be difficult, if not impossible, for the court to consider that issue by way of Counter-Application without consideration of the merits of the Defamation Action.

37Finally, there is a risk of inconsistent factual findings if these proceedings proceed separately.

38I am satisfied that these matters have questions of law and fact in common, and the relief requested in both arises out of the same series of occurrences. I am also satisfied that Ms. Buchwitz would suffer prejudice if the order is not made. The orders sought in by TSCC 1465 in its Counter-Application, if granted, would result in at least a partial prejudgment of the some of the issues in the Defamation Action, without even considering the issues in that action. For example, an order enjoining Ms. Buchwitz from communicating with other owners as sought would implicitly mean that such communications were improper and would no doubt be used by the defendants in the Defamation Action in support of their truth and qualified privilege defences.

39I am cognizant that TSCC 1465 takes the position that it should not have to bear the expense of being involved in the Defamation proceeding, but Bethke and Packwood specifically raised the defence that they have no personal liability as they were acting at all times in their capacity as Directors of TSCC 1465. TSCC 1465 is already implicitly involved in the Defamation Proceeding and a rush to determine some of these issues by way of Counter-Application is not the answer.

40In my view, consolidating these matters will ultimately create a savings in pretrial procedures, and will result in an overall savings of time.

41In consolidating the Counter-Application with the Defamation Action, I am also consolidating Ms. Buchwitz’s Application for the discharge of the Disputed Lien. I specifically considered this matter on July 13, 2020, after requesting that counsel file materials on this issue which I reviewed. That Order was not appealed by Ms. Buchwitz.

42Ms. Buchwitz’s Application involves the issue of a Lien registered against her condominium in the amount of $1,457.70. I have no doubt that the cost of bringing this Application exceeds the amount of the Lien which frankly speaks to the acrimony between the parties. If she needs it vacated for some urgent reason, she can pay the money into court and seek repayment within the consolidated proceeding when it is tried.

43Having had an opportunity to thoroughly review the Application and Counter-Application, in my view, there will be material facts in dispute requiring a trial such as: i) whether the Facebook posts and other things posted by Ms. Buchwitz are in fact misleading; ii) whether there is any basis to enjoin her from making statements to other owners which are alleged to be “defamatory” or otherwise negative and harassing, or whether what she has said and seeks to say is true and constitutes an exercise of pointing out truthful criticisms of the Board; iii) whether she has misappropriated TSCC 1465 property; and iv) whether statements she has posted contain misinformation. In her affidavit sworn November 6, 2020, Ms. Buchwitz specifically denies many of the facts alleged by TSCC 1465 and it is not possible to determine these issues on the record before me. In my view, this is a complicated matter which should not proceed by way of Application in any event.

44Accordingly, I order that the Application and Counter-Application be converted to an Action pursuant to r. 38.10(3).and that these proceedings be consolidated with, tried together with, or tried one after the other as the Trial Judge may direct, with the Defamation Action pursuant to r. 6.01.

Discovery Evidence

45Rule 30.1.01(8) states the following with respect to the deemed undertaking rule:

If satisfied that the interest of justice outweighs any prejudice that would result to a party who disclosed evidence, the court may order that subrule (3) does not apply to the evidence or to information obtained from it, and may impose such terms and give such directions as are just.

46Given that the matters are now consolidated, I am ordering that Ms. Buchwitz may rely on the evidence obtained by way of documentary discovery and examination for discovery in the Defamation Action for the purpose of the Application and Counter-Application. I see no reason why this would be prejudicial to the parties in these circumstances. If the parties wish to make submissions on the specific use that can be made of the transcripts, they may do so when they submit a draft order.

Striking out the Notice of Counter-Application

47TSCC 1465’s Notice of Counter-Application pleads defamation.

48Unlike any other tort or cause of action, defamation claims cannot be brought unless the claim contains full and accurate particulars of the alleged material facts underlining the impugned statements. The law on this is summarized succinctly by Quigley J. in Leschyna v. CIBC World Markets Inc, 2005 49205 (Ont. S.C.), at paras. 17-19.

17The general rule for pleadings in a defamation action is that the defamatory words must be set out fully and precisely in the statement of claim. Actions for defamation are one of the few remaining actions in which regularity of pleading is insisted upon (Lana International Ltd. v. Menasco Aerospace Ltd. (1996), 1996 7974 (ON SC), 28 O.R. (3d) 343, 1 O.T.C. 298; Robertson v. Boddington and Robinson (1925), 1925 367 (ON SC), 56 O.L.R. 409, [1925] O.J. No.146 (H.C.); Laufer v. Bucklaschuk (1999), 1999 5073 (MB CA), 181 D.L.R. (4th) 83, [2000] 2 W.W.R. 462 (Man. C.A.))

18Defamatory words are those “that contain an imputation that tends to lower the plaintiff in the estimation of right thinking members of society generally or to expose him (her) to hatred, contempt, or ridicule. To be actionable, the words must be reasonably understood by others, in a defamatory sense. Words may be defamatory in their natural and ordinary meaning, they may carry an implied meaning (the true innuendo) and /or an extended meaning (the false innuendo). Unless the liberal meaning is plain and obvious, the plaintiff must plead what he (she) alleges the words were intended to mean.” (ref. Laufer v. Bucklaschuk, at 93)

19As a rule, pleading “the tenor, substance or purport of the libel or slander, or an approximation of the word or words to the effect of the defamatory words is insufficient. In other words, the plaintiff cannot rely on “some vague general statement” of the defamatory words. The words in question must be set out with “reasonable certainty, clarity, particularity and precision” to enable the defendant to plead to the allegation.” (ref. Sachs J. in De Haas v. Morney, [2003] O.J. No.549 (Sup. Ct) at para.5, quoting Brown, infra, The Law of Defamation.)

49The Counter-Application clearly offends this rule and does not provide adequate particulars.

50During the hearing, counsel for TSCC 1465 advised me that it did not intend to allege the cause of action “defamation”, and only used the term in a more colloquial manner. TSCC 1465 does not object to having it struck. As such, the reference to defamation in any pleadings filed in Court File No: CV-20-00644861 are struck out with leave to amend. As this matter will not proceed by way of Action with new pleadings, this remedy will apply to the new pleadings such that defamation my not be pleaded unless it complies with the above rules of pleading.

51Accordingly, this Court orders that:

a. Buchwitz v. Packwood and TSCC No 1465, Court File No: CV-19-00632793 and TSCC No 1465 v. Buchwitz, Court File No: CV-20-00644861 and Lilly Buchwitz v. Michael Bethke, Andrew Packwood, Drew MacMillan and John Doe, Court File No: CV-19-00619487 are consolidated to be heard at the same time, or one immediately after the other;

b. Buchwitz v. Packwood and TSCC No 1465, Court File No: CV-19-00632793 and TSCC No 1465 v. Buchwitz, Court File No: CV-20-00644861) shall hereinafter proceed as an action bearing the same Court File Nos. The parties shall attempt to work out a schedule for the exchange of pleadings and if they cannot agree they may make an appointment with me for a further case conference;

c. Buchwitz may rely on the evidence obtained by way of documentary discovery and examination for discovery in Court File No: CV-19-00619487 for the purposes of the converted Applications: Court File No: CV-19-632793 and Court File No: CV-20-00644861

d. References to alleged “defamation” in the Counter-Application in Court File No: 20-00644861are struck out with leave to amend in the new pleadings in accordance with the applicable rules of pleading should TSCC 1465 wish to maintain a defamation pleading.

52As to costs, the parties may make submissions if they wish within 7 days of the date of these reasons, but I am inclined to reserve the issues of costs to the judge deciding these proceedings on their merits.

53The parties shall prepare a draft Order regarding the consolidation of these matters and the conversion of the Application and Counter-Application within 15 days of these reasons. If they cannot agree on further steps or if there any additional issues that must be addressed, they may attend a further case conference before me.

54I am not seized of this matter.

Papageorgiou J.