COURT FILE NO.: 14-62129
DATE: 2022-06-27
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: CANADIAN UNION OF POSTAL WORKERS
AND
QUEBECOR MEDIA INC., SUN MEDIA CORPORATION, TVA GROUP INC., JERRY AGAR AND AVI BENLOLO
BEFORE: The Honourable Mr. Justice Pierre E. Roger
COUNSEL: David Migicovsky and Karin M. Pagé, Counsel for the Plaintiff
R. Paul Steep and Christine L. Lonsdale, Counsel for the Defendant Avi Benlolo
HEARD: June 22, 2022
Reasons for Judgment ON MOTION FOR SUMMARY JUDGMENT
Roger J.
[1] The defendant, Avi Benlolo, brings this motion for summary judgment to dismiss the action against him on the basis that there is no genuine issue requiring a trial.
[2] The action against Mr. Benlolo seeks damages for defamation for a broadcast in which Mr. Benlolo participated on July 23, 2014, and for the republication of the alleged defamatory words on July 28 and 29, 2014.
[3] Mr. Benlolo argues that the claims against him should be dismissed on summary judgment because (1) the tort of defamation has not been established, (2) the defences of justification and fair comment are available, and (3) no damages have been suffered by the plaintiff.
[4] The plaintiff argues that this is not an appropriate case for summary judgment because what is requested is a partial summary judgment and the issues are not readily bifurcated, and because a trial is scheduled in this matter starting on November 14, 2022. In addition, they argue that some of the words of Mr. Benlolo were objectively defamatory, that the defences of justification and fair comment have not been established, and that they have suffered damages.
[5] The issue on this motion is primarily whether a fair and just determination of the claims against Mr. Benlolo can be made on a motion for summary judgment.
[6] For the following reasons, I find that a motion for summary judgment cannot, in the circumstances of this case, provide such a process.
[7] A defendant may, after delivering a statement of defence, move with supporting affidavit or other evidence for summary judgment seeking to have all or part of the statement of claim dismissed.
[8] Rule 20.04 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provides that the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.
[9] At a summary judgment motion, the moving party defendant initially bears the evidentiary burden of demonstrating that there is no genuine issue requiring a trial with respect to its defence: see Aga v. Ethiopian Orthodox Tewahedo Church of Canada, 2020 ONCA 10, 442 D.L.R. (4th) 257 at para. 61, citing Sanzone v. Schechter, 2016 ONCA 566, 402 D.L.R. (4th) 135, at paras. 24 and 32.
[10] In Hryniak v Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, at para. 68, Karakatsanis J., writing for the Court, outlined a two-step procedure for deciding a summary judgment motion: see also Royal Bank of Canada v. 1643937 Ontario Inc., 2021 ONCA 98, 154 O.R. (3d) 561, at para. 24.
[11] The motion judge must first determine if there is a genuine issue requiring trial based only on the evidence placed before them, and without using the fact-finding powers provided at rr. 20.04(2.1) and (2.2). There is no genuine issue requiring a trial where the summary judgment process provides the judge with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure: see Hryniak, at para. 66.
[12] If there appears to be a genuine issue requiring a trial, the motions judge should then determine if the need for a trial can be avoided by using the fact-finding powers under rr. 20.04(2.1) and (2.2). Where it would not be against the interests of justice to do so – where it will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole – the judge may exercise his or her discretion to use those powers: see Hryniak, at para. 66; Royal Bank of Canada, at para. 24.
[13] However, a motion for partial summary judgment is a rare process that should be reserved for issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously in a cost-effective manner. As explained by the Court of Appeal in Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, at para. 34:
[34] When bringing a motion for partial summary judgment, the moving party should consider these factors in assessing whether the motion is advisable in the context of the litigation as a whole. A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost-effective manner. Such an approach is consistent with the objectives described by the Supreme Court in Hryniak and with the direction that the Rules be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.
[14] A partial motion for summary judgment should be a rare procedure because it may give rise to concerns that could run counter to the stated purposes of a summary judgment motion, which include to provide a proportionate procedure that fairly and justly adjudicate the dispute in a timely, affordable and proportionate manner. Such concerns can occur where a partial summary judgment motion may lead to inconsistent findings, where it may delay the main action, or where the matters or issues in the action are intertwined. As indicated by the Court of Appeal in Mason v. Perras Mongenais, 2018 ONCA 978, at paras. 22-23:
[22] In my view, the motion judge erred in principle in granting partial summary judgment, in the context of this litigation as a whole. In doing so, the motion judge failed to heed the advice given by this court in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438, about the risks associated with granting partial summary judgment. Those risks were repeated in this court’s decision in Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561. As Pepall J.A. said in Butera, at para. 34:
A motion for partial summary judgment should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner.
[23] The potential liability of the respondent to the appellant is not an issue that can be readily bifurcated from the rest of the appellant’s claim. The nature of the appellant’s claim is such that it is inextricably linked to the claim against the other defendants, especially Chambers. Indeed the motion judge appears, at one point, to recognize this problem when he says, at para. 99:
I recognize that nothing is certain and there are risks of both duplication and that a judge could look at the same undisputed facts that I have reviewed and possibly see them differently.
[15] The above is applicable to the circumstances of this case where a partial motion for summary judgment could lead to inconsistent findings on the issue of defamation, on the issue of justification and fair comment, and on the issue of damages. Indeed, some of these issues are intertwined with the claims against the other defendants or are not readily bifurcated from some of those involving the other four defendants, none of which is bringing a motion for summary judgment. For example, there is a risk of duplication and inconsistent findings because the facts and issues relate to the same broadcast, the questions and the answers in the broadcast may have to be considered, the words are similar as is the alleged sting, legal issues are similar, and republication is alleged at paragraph 42 of the amended amended statement of claim which adds to the level of connection between the claims.
[16] The decision in Extreme Venture Partners Fund LLP v. Varma, 2019 ONCA 446, does not assist the moving defendant, as that case is an example of circumstances when a partial summary judgment may be appropriate, with facts very different from this case.
[17] As well, the moving defendant is not assisted by the fact that he is bringing his motion for summary judgment five months before the scheduled trial of this matter. The trial is scheduled for five days starting on November 14, 2022.
[18] This action was started in September 2014, with pleadings and examination for discovery completed since the end of 2017. Irrespective of Covid related delays and of who is to blame for various delays, proceeding with a motion for summary judgment after more than six years of litigation is not a more expeditious or less expensive process when the trial is of short duration and when the facts and issues are intertwined. Moreover, as indicated above, this is a partial motion for summary judgment, and, irrespective of the outcome, a five-day trial will nonetheless be required for the remaining defendants, with the defendant, Mr Benlolo, likely required, in any event, to testify at the trial given his involvement with the remaining defendants.
[19] The motion for summary judgment of Mr. Benlolo would therefore not achieve the desired objective of a proportionate, cost-effective and timely dispute resolution.
[20] The endorsement of my colleague, Senior Regional Justice MacLeod, of August 31, 2021, by which he scheduled this motion and trial does not preclude the above findings as scheduling these matters does not address their merit. The cases relied upon by the defendant Benlolo relating to a collateral attack are not applicable. As well, the facts in Fruitland Juices Inc. v. Custom Farm Service Inc., 2012 ONSC 4902, 112 O.R. (3d) 453, are different from the facts of this case; that case involved a motion for leave to bring a motion for summary judgment after setting the action down for trial, with no scheduled trial date, and it did not trigger the issues potentially associated with a partial motion for summary judgment.
[21] Considering all of the above, the defendant’s motion for summary judgment is dismissed.
[22] On the issue of costs, if the parties are unable to agree on costs, then the parties shall email to my attention their respective costs submissions not exceeding five pages and five enclosures (a) by the plaintiff by July 8, 2022, (b) by the defendant Benlolo by July 15, 2022, and (c) any brief reply by the plaintiff not exceeding two pages and two enclosures by July 17, 2022.
Justice Pierre E. Roger
Released: June 27, 2022
COURT FILE NO.: 14-62129
DATE: 2022-06-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
CANADIAN UNION OF POSTAL WORKERS
Plaintiff
– and –
QUEBECOR MEDIA INC., SUN MEDIA CORPORATION, TVA GROUP INC., JERRY AGAR AND AVI BENLOLO
Defendants
rEASONS FOR JUDGMENT
Pierre E. Roger J.
Released: June 27, 2022