CITATION: Geil v. Beselaere, 2022 ONSC 4162
COURT FILE NO.: CV-21-666
DATE: 2022-07-15
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Jason Geil
Plaintiff and Responding Party
– and –
Todd Beselaere
Defendant and Moving Party
N. Amaral, for the Plaintiff
A.J. Wachna, for the Defendant
HEARD: January 14, 2022
the honourable mr. justice i.r. smith
reasons on motions
Introduction
[1] The defendant moves for summary judgment pursuant to Rule 20 and to dismiss the action against him pursuant to s.137.1(3) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA”).
[2] The plaintiff has brought a cross-motion for permission to file a reply affidavit and to submit evidence not yet in his possession.
[3] For the reasons which follow, I would allow the defendant’s motion and dismiss the plaintiff’s cross-motion
Background
[4] The background facts are straightforward. On February 9, 2021, the defendant received a telephone call during which he says that he and others were threatened by someone he did not know. He kept a screen shot of the telephone number from which the call had come and reported the matter to the police. Upon investigation by the police, it was discovered that the number was assigned to the plaintiff, who was arrested and charged with threatening. The defendant says that at no time did he tell the police that the plaintiff was the caller. He reported only the telephone number captured on the screen shot and the nature of the threat.
[5] The plaintiff sued the defendant “for making a false claim to police” and “knowingly making misleading statements to the police;” and alleging that the defendant “knew or ought to have known” that the plaintiff did not threaten the defendant. The plaintiff claims $70,000 in damages. His statement of claim asserts that on February 9, 2021, an employee of the plaintiff named “Allen” used the plaintiff’s cell phone to call the defendant’s business for a purpose relating to that business. Allen did not speak to the defendant; he spoke to someone named “Andrew.” The plaintiff says that no threat against the defendant or anyone else was made during the telephone call on February 9, 2021. In his factum on the motion, the plaintiff describes his suit as “tantamount to slander and liable” [sic] and asserts that the “false report was initiated with malice”.
[6] The statement of defence asserts that at all times the defendant “acted in a lawful, careful and prudent manner and there was no breach of duty, want of care or malice regarding the plaintiff.”
Analysis
The motion to file further evidence
[7] The defendant argues that his report of the threatening telephone call to the police was an expression on a matter of public interest; that the suit against him has no merit; that he has valid defences to it; and that the public interest in allowing the suit to proceed is outweighed by the public interest in protecting the expression (see, CJA, s.137.1(3) and (4)). The defendant further argues that the action should be dismissed because his report to the police is protected by qualified privilege and by the defence of truth or justification. Accordingly, he moves for summary judgment.
[8] Sub-section 137.1(3) of the CJA requires that a proceeding be dismissed if the defendant satisfies the court that the “proceeding arises from an expression made by the person that relates to a matter of public interest.” However, sub-section 137.1(3) is subject to sub-section (4), which provides that the proceeding shall not be dismissed if the plaintiff satisfies the court that the proceeding has substantial merit, that the defendant has no valid defence, and that the harm suffered by the plaintiff as a result of the expression “is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.”
[9] This matter was originally before my colleague Nightingale J. I have reviewed the transcript of that appearance. At that time, an earlier cross-motion by the plaintiff (for further production from the defendant) was allowed and the defendant’s motion to dismiss was adjourned to be heard by me. While the matter was before Nightingale J., he observed that the plaintiff relied for its evidence on an affidavit sworn by his counsel’s law partner. Justice Nightingale questioned the appropriateness of relying on an affidavit from counsel in the context of a motion to dismiss the action.
[10] Indeed, judges of this court have repeatedly criticized the use of lawyer’s affidavits on motions to dismiss proceedings. Instead, as part of putting the party’s “best foot forward”, evidence from the party or others with firsthand evidence is to be preferred (see, for example, Ferreira v. Cardenas, 2014 ONSC 7119 at paras. 13 – 18; Forestall v. Carroll, 2015 ONSC 2732; Sky Solar (Canada) Ltd. v. Economical, 2015 ONSC 4714 at para. 92; Paramandham v. Holmes, 2015 ONSC 1903 at para. 37).
[11] The lawyer’s affidavit filed by the plaintiff in this matter is replete with hearsay, contains some expression of opinion, contains no evidence of any personal relevant knowledge of the affiant, and reviews matters which are controversial as between the parties. The only identified source of the lawyer’s information and belief is counsel for the plaintiff. I decline to give the lawyer’s affidavit any weight.
[12] Since this matter was before Nightingale J., and before it was heard by me, the plaintiff brought the cross-motion referred to above, requesting permission to file a new affidavit of the plaintiff and for permission to file evidence not yet in his possession. In short, the plaintiff argues that in the time available to him, he was unable to gather together all the evidence required to respond to the motion. In particular, he observes that he has not received full disclosure in his criminal matter and that he expects the disclosure to provide some or all of the evidence he requires to respond to the defendant’s motion.
[13] I am of the view that the cross-motion should be dismissed. First, I reject all the reasons presented to me and to Nightingale J. for the delay in getting an affidavit from the plaintiff and for presenting other evidence. In my view, there was no reason that an affidavit or affidavits from the plaintiff and other witnesses could not have been prepared for the return date before Nightingale J. I do not accept that the time constraints for a motion under s. 137.1 were so onerous that this was impossible.
[14] This is not a complicated matter and I do not agree that the plaintiff needs disclosure in his criminal case to respond to the motion. Nothing prevented the plaintiff from swearing an affidavit setting out his denial that he called or threatened the defendant. Nor have I been provided with any reason that there was no affidavit before the court from “Allen.” To the extent that the plaintiff relies on background information relating to a fraught relationship between the plaintiff and an acquaintance of the defendant named Greenaway as evidence of a motive to falsify a complaint to the police, I see no reason why that evidence could not have been put before the court in a proper form. All the facts asserted by the plaintiff find expression in the statement of claim and could have been marshalled by him for this motion. None of this depended on receiving disclosure from the Crown.
[15] In any case, as I was advised during argument, the plaintiff does have some disclosure from the Crown, including the defendant’s statement to the police and the transcript of his 911 call. That evidence is not before me, and I am advised that no request has yet been made for permission to use evidence from the criminal disclosure in this civil proceeding. That which remains outstanding from the Crown is vaguely described to me in argument (but not in the evidence[^1]) as texts between the defendant and a police officer to whom the defendant is distantly related and perhaps between that police officer and others. Apparently, the plaintiff hopes to establish a close relationship between the defendant, the officer, and Greenaway.
[16] The plaintiff has filed his own affidavit for the cross-motion which is before me, but that affidavit does not, in any meaningful or complete way, deal with the defendant’s motion to dismiss.
[17] The plaintiff cross-examined the defendant on his affidavit. Now, after that examination, he wants to lead more evidence. In my view, he had an adequate opportunity to prepare a proper affidavit or affidavits to respond to the motion to dismiss. As I have said, I see no reason why the balance of the Crown’s disclosure is necessary for the plaintiff’s response to the defendant’s motion and no adequate reason is set out in the evidence. As Nightingale J. did, I find that this was a choice made by the plaintiff with which he is now fixed.
[18] The motion to file further evidence is dismissed.
[CJA, section 137.1](https://www.canlii.org/en/on/laws/stat/rso-1990-c-c43/latest/rso-1990-c-c43.html#sec137.1_smooth)
[19] I turn then to the substance of the defendant’s motion to dismiss the action. On a motion under s. 137.1, the onus is on the defendant to establish on a balance of probabilities that his statement to the police was an expression in the public interest (1704604 Ont. Ltd. v. Pointes Protection Association, et al., 2020 SCC 22, at para. 23). If it is, the burden then shifts to the plaintiff to show that his suit has substantial merit, and that the defendant has no valid defence, and that the public interest in allowing the suit to proceed is outweighed by the public interest in protecting the expression.
Was the defendant’s call to the police an expression in the public interest?
[20] The parties agree that the defendant’s call to the police was an “expression” as that term is defined in s. 137.1(2). They disagree, however, about whether the call was a statement in the public interest. The defendant argues that a complaint to the police is a matter of public interest: the complainant in such a case has an interest in reporting crime, the police have an interest in receiving reports of crime, and the public has an interest in encouraging people who believe themselves to be the victims of crime to report to the police. The plaintiff argues that the expression in this case was not a matter of public interest, it was more akin to a private matter between the defendant and the plaintiff. Moreover, no public interest could attach to a false statement to the police.
[21] In my view, the reporting of crime to the police is a matter of public interest. Such reports are important expressions in any democracy governed by the rule of law (Pointes, supra, at para. 30). In Ng. v. C.G., 2020 ONSC 6825 at paras. 10 – 15, Chalmers J. found that there was a public interest in reporting sexual assault to the police. The plaintiff in that case conceded as much. I see no reason why reports of crimes other than sexual assault are not also in the public interest. Indeed, it may be the duty of citizens to report crime (see Gittens v. Brown, 2003 CanLII 40565 (Ont. S.C.J.) at para. 29). Here, the defendant reported a threat of potential violence to himself and to others to the police whose duty to the public it is to prevent such harm to the defendant and others. That expression was in the public interests in preventing harm and in detecting and prosecuting crime.
[22] As for the truthfulness and/or good faith of the report to police, in the absence of any proper evidence from the plaintiff suggesting otherwise, the evidence of the defendant, on which he was cross-examined by the plaintiff’s counsel, leads to the conclusion that the expression was made in good faith. On the evidence before me, the defendant has met his burden of establishing that his report to the police, which did not name the plaintiff, was made without malice and was an expression made in the public interest. He asserted under oath, and was cross-examined on this point, that he knew it was unlawful to make a false statement to the police.
[23] The burden then shifts to the plaintiff to establish each of the remaining three parts of the test in s. 137.1. Failure to succeed on any one of these parts of the test will be fatal to the plaintiff’s position (Pointes, supra, at paras. 32 – 33).
Does the suit have substantial merit?
[24] First, the plaintiff must show that there are grounds to believe that his suit has substantial merit (CJA, s. 137.1(4)(a)(i); Pointes, supra, at para. 35). For the reasons described above, the plaintiff is not able to establish that his suit has substantial merit. He has led no proper evidence even accepting that motions under s. 137.1 will often have a limited record and allow for limited cross-examination (see Pointes, supra, at paras. 38 – 42). Moreover, neither the defendant’s affidavit nor the plaintiff’s cross-examination of the defendant reveals any evidence to support the claim made by the plaintiff.
[25] In Pointes (at paras. 59 – 54), the Supreme Court held that a determination under this part of the test requires that the court assess the evidentiary basis for the claim. There must be evidence reasonable capable of belief that establishes some chance of success and the court should engage in some weighing of the credibility of evidence tendered.
[26] In this case, as I have observed above, the defendant supplied a straightforward affidavit and was presented for cross-examination. He confirmed the truthfulness of his evidence, which is corroborated by telephone records, and re-affirmed that he knew that it was unlawful to make a false report to the police. His evidence provides no support for the plaintiff’s claim. By contrast, the plaintiff chose not to supply his own evidence, or any other proper evidence, in support of this action. There is, therefore, no evidence to weigh in support of the proposition that the suit has substantial merit.
[27] Even if I were to take into account the “evidence” summarized in the lawyer’s affidavit and in submissions, I note that it suggests that the defendant was engaged in a kind of conspiracy against the plaintiff, whom he did not know, and that the other members of that conspiracy included Greenaway and the police officer, the latter of whom may have manipulated the Assistant Crown Attorney who conducted the plaintiff’s bail hearing. These assertions are speculative and have not been shown to have substantial merit.
[28] The plaintiff fails on this branch of the test.
Is there a valid defence?
[29] The burden is also on the plaintiff to show that there are grounds to believe that the defendant has no valid defence to the claim against him (CJA., s. 137.1(4)(a)(ii)). Again, the court is to engage in an assessment of the evidence, bearing in mind the stage of the proceedings, for the purpose of determining the validity of the proposed defences (Pointes, supra, at paras. 56 – 58).
[30] Here, the defendant argues that he has at least two valid defences: qualified privilege and truth. In my view, on the basis of the evidence of the defendant, these are both valid defences. The plaintiff has led no proper evidence to the contrary.
[31] As for qualified privilege, as the defendant argues, the privilege applies as a defence to defamation where the “occasion” of the impugned statement is protected because the maker of the statement had an interest in making it and because the receiver of the statement had an interest in receiving it (Grant, et al. v. Torstar Corporation, et al., 2009 SCC 61, at para. 34; RTC Engineering Consultants Ltd. v. Ontario (2002), 2002 CanLII 14179 (ON CA), 58 O.R. (3d) 726, at paras. 14 – 16). As I have held above, on the evidence before me, the defendant has established that these interests exist in this case. In the absence of evidence to the contrary, the plaintiff has failed to establish, as is his burden, that there are grounds to believe that this defence is not a valid defence in this proceeding.
[32] Moreover, the defendant asserts that the defence of truth or justification is a valid defence available to him in this case of defamation (see Grant, supra, at paras. 32 – 33). The defendant’s evidence, as I have said, is straightforward and was unshaken on cross-examination where he confirmed his knowledge of the unlawfulness of making a false complaint to the police. The fact that he received a telephone call from the plaintiff’s cell phone is corroborated by the screen shot he captured and by the account statement of his service provider. The defendant claims that he did not know who he was speaking to and told the police as much. There is no evidence to the contrary before me. I add that the defendant swore that all calls to his business are forwarded to his cell phone, to which only he has access. Again, there is no evidence to the contrary before me. Accordingly, the plaintiff has failed to establish that there are grounds to believe that justification is not a valid defence available to the defendant.
[33] The plaintiff also fails on this branch of the test.
[34] As the plaintiff has not succeeded under either part of the test set out in s. 137.1(4)(a), it not necessary to engage in the weighing exercise described in s. 137.1(4)(b) (see Pointes, supra, at para. 33).
[35] For all these reasons, the defendant’s motion under s. 137.1 of the CJA is allowed. The action is dismissed.
Summary Judgment
[36] It is therefore not strictly necessary to consider the defendant’s alternative request for summary judgment. However, I will observe that had I not dismissed the action on the basis of s. 137.1 of the CJA, I would have allowed the motion for summary judgment. For reasons discussed above, the defendant’s evidence shows that the defendant made a report of a threat to the police based on a telephone call that he received. His evidence is corroborated by documents and he submitted to cross-examination. He maintained the truthfulness of his straightforward version of events. In the absence of any proper and admissible evidence from the plaintiff, the defendant has demonstrated that there is no genuine issue for trial.
Costs
[37] If the parties are unable to agree on costs, the plaintiff may serve and file brief written submissions respecting costs within 10 days of the release of these reasons. The defendant may serve and file brief responding submissions respecting costs within seven days of the service of the plaintiff’s costs submissions. The plaintiff’s reply, if any, may be served and filed within 3 days of receipt of the defendant’s costs submissions. Each party’s initial written submissions shall not exceed three double-spaced pages, exclusive of offers to settle, cost outlines and authorities while the plaintiff’s reply submissions, if any, shall not exceed two double spaced pages. All costs submissions shall be forwarded to my attention by way of email to my judicial assistant, Kelly Flanders, at Kelly.Flanders@ontario.ca with a copy to Kitchener.SCJJA@ontario.ca. If no submissions are received within this timeframe, the parties will be deemed to have settled the issue of costs between themselves.
I.R. Smith J.
Released: July 15, 2022
CITATION: Geil v. Beselaere, 2022 ONSC 4162
COURT FILE NO.: CV-21-666
DATE: 2022-07-15
ONTARIO
SUPERIOR COURT OF JUSTICE
Jason Geil
Plaintiff and Responding Party
– and –
Todd Beselaere
Defendant and Moving Party
REASONS ON MOTIONS
I.R. Smith J.
Released: July 15, 2022
[^1]: Even the late-filed and unsworn letter from the plaintiff’s criminal counsel reveals nothing about what disclosure from the Crown remains outstanding.