Court File and Parties

Court File No.: CV-20-634610 Date: 2023-03-02 Superior Court of Justice - Ontario

Re: Dianne Ballam, Plaintiff - and - Jeremy Grimaldi, Dana Robbins, Lee Ann Waterman, Ted McFadden, The Richmond Hill Liberal, YorkRegion.com, York Region Media Group, Metroland Media Group Ltd., Torstar Corporation, and Linda Atamanchuk, Defendants

Before: Associate Justice Todd Robinson

Counsel: D. Elmaleh, for the plaintiff A. Lifshitz, for the defendant, Linda Atamanchuk

Heard: November 24, 2022 (by videoconference)

Reasons for Decision (Motion to Amend and Transfer to Small Claims Court)

[1] This defamation action arises out of an alleged incident between Dianne Ballam and Linda Atamanchuk at Ms. Atamanchuk’s home, which ultimately led to the publication of a newspaper article in 2019. Ms. Atamanchuk is alleged to have sold a piece of furniture to Ms. Ballam through Facebook Marketplace. Following the sale, Ms. Ballam allegedly hit Ms. Atamanchuk’s gate with her vehicle, causing damage to it. The newspaper article was subsequently published. It contained a number of statements about Ms. Ballam that are alleged to have been defamatory by implying an untrue innuendo of serious criminal conduct.

[2] Ms. Ballam served a notice of libel and ultimately commenced this action seeking damages for defamation and false light invasion of privacy. The ten named defendants are Ms. Atamanchuk and various owners and media publishers of the impugned article. Ms. Ballam’s position in the litigation is that the article caused harm to her personal and professional character and reputation, among other alleged losses. The claim against Ms. Atamanchuk is, essentially, that she instigated publication of the article. Ms. Atamanchuk denies any liability and has counterclaimed for $10,000, plus HST, arising from the damage to her gate.

[3] On this motion, Ms. Ballam seeks an order amending her statement of claim to reduce the quantum of damages to $35,000 and to remove all injunctive relief. She further seeks an order transferring this action to the Small Claims Court. The action has been settled with all defendants except for Linda Atamanchuk and discontinued against them.

[4] Ms. Ballam’s position is that, as a result of the settlement with the other defendants, which included amending the article and publishing a correction, the alleged criminal innuendo in the article was removed and a substantial portion of the harm she suffered as a result of the publication has been mitigated. A reduction in the damages claim and transfer to the Small Claims Court is thereby the appropriate course of action.

[5] Ms. Atamanchuk does not oppose the amendment relief, but does oppose transfer to the Small Claims Court. Ms. Atamanchuk essentially argues prejudice from losing procedural advantages under the Rules of Civil Procedure, RRO 1990, Reg 194 (the “Rules”) and unfairness in how Ms. Ballam has proceeded against Ms. Atamanchuk.

[6] I agree that the remainder of this action is more properly addressed in the Small Claims Court. I am thereby granting the amendment, which is unopposed, and the order transferring this action and the counterclaim to the Small Claims Court, with some costs thrown away payable to Ms. Atamanchuk.

Analysis

[7] Rule 26.01 of the Rules provides that the court shall grant leave to amend a pleading on such terms as are just, unless prejudice would result that could not be compensated for by costs or an adjournment. The amendment relief sought by Ms. Ballam is unopposed. I am granting it.

[8] Both parties agree that an associate judge has jurisdiction to transfer this action to the Small Claims Court. That jurisdiction has been confirmed in several cases: Ali v. Schwauren, 2011 ONSC 2158 at para. 2; Capano v. Rahm, 2010 ONSC 3241 at para. 5; Royal Bank of Canada v. Lendak, 2019 ONSC 4877 at para. 12. The parties disagree on whether I should order a transfer.

[9] The power to transfer a case to the Small Claims Court over the objection of a party is grounded in the inherent jurisdiction of the court to supervise its own process: Graves v. Avis Rent A Car System Inc., 1993 CarswellOnt 472, [1993] OJ No 2771 at para. 12; Ali v. Schwauren, supra at para. 2. Cases that are within the jurisdiction of the Small Claims Court should typically be transferred to that court unless there is prejudice that cannot be easily remedied: May v. Hutchinson, 2013 ONSC 7712 at para. 7; Korlyakov v. Riesz, 2020 ONSC 6622 at para. 7; Ali v. Schwauren, supra at para. 4.

[10] I am unconvinced by Ms. Atamanchuk’s arguments for why the action should remain in this court.

[11] The Small Claims Court has jurisdiction to address a defamation case. Notably, I have been directed to two reported decisions of the Small Claims Court in defamation claims: Cummings v. Burlington Radio Control Modelers; Lepp v. Toronto Star Newspapers Limited. Ms. Ballam is limiting her claim to the monetary jurisdiction of the Small Claims Court and removing requested relief that would be beyond its jurisdiction to grant. I agree with Ms. Ballam that the Small Claims Court and its procedures are capable of justly and fairly resolving the remaining dispute, including Ms. Atamanchuk’s counterclaim.

[12] Ms. Atamanchuk argues that, although there are nine other defendants with whom Ms. Ballam has now settled, the claims advanced against them, including injunctive relief, are distinct from the claim against her. Ms. Atamanchuk submits that she ought to have been sued separately, that the risk of inconsistent findings between two proceedings was nominal, and that a separate claim against Ms. Atamanchuk could have been brought in the Small Claims Court from the outset. I give no effect to this argument.

[13] It was reasonable for Ms. Ballam to join Ms. Atamanchuk in the action against the other defendants. Regardless of the relief ultimately available against Ms. Atamanchuk, there is a clear factual nexus between the allegations against Ms. Atamanchuk and those against the other defendants. In my view, factual findings in the dispute between Ms. Ballam and Ms. Atamanchuk would reasonably bear on the allegations against the other defendants. Similarly, whether the other defendants’ conduct amounted to defamation would reasonably bear on Ms. Atamanchuk’s liability for allegedly instigating the article and its publication. Joining all defendants in a single action makes sense. However, the injunctive relief sought in this action is clearly beyond the jurisdiction of the Small Claims Court.

[14] I also accept Ms. Ballam’s argument that suing Ms. Atamanchuk separately would have created a multiplicity of proceedings. Section 138 of the Courts of Justice Act, RSO 1990, c C.43 expressly provides that, as far as possible, multiplicity of legal proceedings shall be avoided.

[15] I agree with Ms. Ballam that the amended claim is now much more straightforward than the original claim. The court will unlikely now need to address issues around media liability or journalistic practices. The focus is solely on whether Ms. Atamanchuk’s conduct is actionable and, if so, what damages may flow from it. Also, Ms. Atamanchuk’s counterclaim for property damage is the type of claim commonly advanced in the Small Claims Court and well within the monetary jurisdiction of that court.

[16] I am satisfied that there is no genuine procedural prejudice to Ms. Atamanchuk from a transfer. Documentary discovery and examinations for discovery have not yet occurred. There will still be a form of documentary production in the Small Claims Court, albeit focused on the documents relied upon by the parties. While examinations for discovery are not available in that court, Ms. Atamanchuk’s counsel was unable to identify any specific issues on which an examination would be needed, other than Ms. Ballam’s damages. In my view, damages in this case is not a matter that clearly requires an examination for discovery. It follows that losing the right of examination is not serious prejudice warranting a refusal to transfer.

[17] Mandatory mediation does not apply in the Small Claims Court, but there is a mandatory settlement conference process. Also, nothing prevents the parties from mediating at their own initiative. It is frankly advisable in most, if not all, civil cases to engage in some form of alternative dispute resolution before going to trial, regardless of whether or not the applicable rules of court formally require a mediation.

[18] If this motion is not granted, Ms. Atamanchuk’s intends to move for summary judgment. It is not clear to me that this action will be found appropriate for summary judgment, although it would be improper for me to conduct that assessment on this motion. That is something to be done by a judge at Civil Practice Court.

[19] Even if a summary judgment motion proceeds, I am not convinced that the time and cost of such a motion will be any less than proceeding through the summary processes of the Small Claims Court, namely producing documents to be relied upon, proceeding through a settlement conference, and then preparing for and attending a short trial. Securing an appointment in Civil Practice Court, preparing and exchanging affidavits, completing cross-examinations, preparing facta, and arguing a summary judgment motion may take longer and, more importantly, could well cost the parties much more. In addition, if the judge hearing the motion finds triable issues, then a trial will still be required at greater expense to the parties.

[20] Ms. Atamanchuk argues that Ms. Ballam is seeking to avoid the costs consequences of this action by transferring to the Small Claims Court, where costs awards are capped. That, too, is not a reason to deny the transfer. It is undisputed that I have discretion to impose costs or other terms when granting a transfer to the Small Claims Court: Ali v. Schrauwen, supra at para. 8. That includes awarding costs of the proceeding to date.

[21] If a transfer is granted, Ms. Atamanchuk takes the position that she should be awarded her full indemnity costs to date, since strategic decisions were made and steps taken that have resulted in higher costs of defending this action as an ordinary action in the Superior Court of Justice. Ms. Ballam argues that there should be no order for costs thrown away.

[22] As a preliminary point, Ms. Atamanchuk’s position that she should be awarded her full indemnity costs is, in my view, unsupportable. Although I have been directed to several cases in which full indemnity costs were discussed (but not awarded) or in which costs thrown away were awarded as a term of a transfer, no case law before me appears to have actually granted full indemnity costs.

[23] In Mehrabi v. Colangelo, Master Muir held that a defendant’s costs thrown away should be limited to the steps taken that would not have been necessary if the action had been started in the Small Claims Court: Mehrabi v. Colangelo, 2019 ONSC 7208, at para. 8. I agree.

[24] As the party seeking costs, Ms. Atamanchuk has the burden of establishing those costs. However, I am unable to decipher what costs incurred by Ms. Atamanchuk to date are genuinely “thrown away.” Ms. Ballam correctly points out that there is no evidence in the record before me supporting that Ms. Atamanchuk has incurred any costs of defending this action. The responding affidavit was sworn by a student-at-law. It is silent on costs incurred. In addition, no bill of costs was included in the materials. That said, I accept that Ms. Atamanchuk, who is represented by counsel, has incurred legal costs of defending this action.

[25] Subsequent to the hearing, Ms. Atamanchuk did submit a bill of costs with her costs outline for this motion. It sets out full indemnity costs to date of $5,989.00 and partial indemnity costs of $3,972.63. However, the bill of costs and supporting invoices contain no breakdown of time spent correlated to specific tasks. There is also no evidence on time spent for me to rely on.

[26] For example, the responding factum asserts that time was incurred preparing an affidavit of documents, which is noted in one of the invoices appended to the bill of costs. However, Ms. Atamanchuk’s affidavit of documents was not served, a copy is not in evidence, and there is no evidence on how many documents are included or what was involved in collecting documents and performing a relevance and privilege review. The fee in the invoice is a block fee billing that includes the affidavit of documents and various other tasks. Similarly, the invoices include generic references to correspondence with counsel for the defendants, but there is no indication of the precise time spent.

[27] I agree with Ms. Atamanchuk’s submission that, when deciding what costs should be paid as a term of transfer, I should consider the defence litigation strategy that was adopted, including Ms. Atamanchuk’s choice of counsel and the steps taken to defend this action: May v. Hutchinson, 2013 ONSC 7712 at para. 9. Indeed, there does appear to be time spent on matters that would have been unnecessary in the Small Claims Court, such as researching a potential anti-SLAPP motion and the proposed summary judgment motion. However, the time claimed for those tasks are part of a same general block charge that also includes preparing the affidavit of documents and “extensive correspondence with all counsel”. It is not clear how much time was spent on strategic research tasks.

[28] Simply put, the record and bill of costs are insufficiently detailed to accurately discern what portion of the claimed costs are properly viewed as thrown away. Nevertheless, I am satisfied that there has clearly been some costs thrown away. In the circumstances, I cannot fairly award more than a modest amount to acknowledge that there has certainly been costs thrown away in tasks such as communicating with co-defendants and researching motions that are not available in the Small Claims Court.

[29] I accordingly fix Ms. Atamanchuk’s partial indemnity costs thrown away, payable by Ms. Ballam as a term of the transfer, at $950.00, plus HST.

Disposition

[30] For the above reasons, I am granting leave to amend the statement of claim and am directing that, following the amendment, this action and the counterclaim be transferred to the Small Claims Court with costs thrown away of $950.00, plus HST, payable by Ms. Ballam to Ms. Atamanchuk as a term of the transfer. I have signed an amended form of the draft order submitted, as amended electronically prior to signing.

Costs

[31] Costs outlines have been exchanged. Both parties rely on offers to settle, so I could not hear costs submissions at the time of the hearing. I encourage the parties to settle costs of the motion. If they cannot agree, then written costs submissions shall be exchanged. Ms. Ballam shall serve any costs submissions by March 16, 2023. Ms. Atamanchuk shall serve her responding costs submissions by March 30, 2023. There shall be no reply submissions absent leave of the court. Costs submissions shall not exceed four (4) pages, excluding any offers to settle and case law.

[32] Once served, all costs submissions shall be submitted by email directly to my Assistant Trial Coordinator, Christine Meditskos, with proof of service. Unless exchanged and submitted in accordance with the above, the parties shall be deemed to have agreed on costs.

ASSOCIATE JUSTICE TODD ROBINSON DATE: March 2, 2023