Overview of the Proceeding

[1] M.B. (the “plaintiff”) commenced a proceeding against the Niagara Regional Police Services Board (the “defendant”) by statement of claim issued November 28, 2022. The defendant seeks an order for summary judgment.

[2] The plaintiff’s claim relates to an incident that occurred involving the plaintiff and police officers from the Niagara Regional Police Service (“NRPS”) on May 25, 2019, resulting in criminal charges against the plaintiff.

[3] The plaintiff’s claim may be summarized as follows:

a. damages for pain and suffering, assault, battery, false arrest, false imprisonment, misfeasance in public office and negligence in the amount of $1,000,000;

b. general damages for defamation in the amount of $1,000,000;

c. special damages in an amount to be particularized at trial;

d. punitive and aggravated damages in the amount of $200,000;

e. an interim, interlocutory and permanent order enjoining the defendant from making, publishing, disseminating or broadcasting the defamatory words or words of like or similar effect and to delete and/or expunge such words from its record;

f. pre- and post-judgment interests, costs and disbursements; and

g. such further and other order as this court may allow.

Plaintiff’s Request for an Adjournment

[4] The plaintiff requested an adjournment of the summary judgment motion because she did not have the opportunity to conduct cross-examinations on the affidavits relied on by the defendant. I declined the adjournment on the basis that:

a. The defendant’s motion was served on the plaintiff on February 17, 2023.

b. The defendant’s motion was initially scheduled to be heard by this court on June 29, 2023. Cross-examinations were ordered to be completed by August 28, 2023.

c. The plaintiff did not make any effort to schedule cross-examinations until a notice of examination was served on August 22, 2023.

d. The plaintiff was represented by counsel throughout this proceeding and had six months to conduct examinations.

e. The plaintiff did not offer any explanation for the delay in scheduling examinations.

Nature of the Motions

[5] There are two motions before the court.

[6] By notice of motion dated February 17, 2023, the defendant requests an order dismissing the plaintiff’s action on the basis that:

a. The relief and/or remedies claimed by the plaintiff are statute barred pursuant to the Limitations Act, 2002, S.O. 2002, c. 24 Sched. B, as amended (the “Limitations Act”.

b. The plaintiff entered into a peace bond and restitution order with regard to the matter acknowledging the sufficiency of the allegations, waiving the hearing of further evidence, conceding that probable grounds existed for such an order and consenting to the order.

c. The plaintiff’s claim is largely one of defamation and is statute barred pursuant to the provisions of the Libel and Slander Act, R.S.O. 1990, c. L. 12, as amended (the “Libel and Slander Act”).

[7] By notice of motion dated June 23, 2023, the plaintiff requests an order granting leave to amend her statement of claim. The plaintiff asserts that after her statement of claim was issued and served, she discovered that her lawyer omitted certain information which if not included in her claim, could be prejudicial to her interests. As a result, she instructed her lawyer to amend the statement of claim.

[8] The motion to amend was not heard on this date; however, I have approached the summary judgment motion with full consideration of the additional facts pleaded in the draft amended statement of claim.

[9] I am satisfied on the record before me that there is no genuine issue requiring a trial and that summary judgment is appropriate. I am also satisfied on the record before me, taking into consideration that each party is presumed to put their best foot forward on this motion, that the absence of cross-examination would not have created a genuine issue for trial.

[10] For the reasons that follow, I grant the motion for summary judgment and dismiss the plaintiff’s claim.

Factual Background

[11] On May 25, 2019, the plaintiff was arrested by police officers for whom the defendant is vicariously liable. The plaintiff was charged with mischief under s. 430(4) of the Criminal Code, R.S.C., 1985, c. C-46, and taken to the local hospital for a mental health assessment. The details of the incident were reported in a police incident report GO#2019-46930 (“GO-2019”).

[12] On November 28, 2022, the plaintiff issued a statement of claim against the defendant, seeking damages in the total sum of $2,200,000.

[13] In respect of her claim for defamation, the plaintiff alleges that the defendant and/or its police officers:

a. falsely and maliciously published words that the plaintiff was mentally incapacitated;

b. published defamatory words by way of referring the plaintiff to a mental hospital pursuant to the Mental Health Act, R.S.O. 1990 c. M.7;

c. used the defamatory words in their natural and ordinary meaning which meant and were understood to mean that the plaintiff was suffering from some incurable psychosis, including schizophrenia, suicidal ideation, mental disability, nervous wreck, depression etc.;

d. used defamatory words which were false and maliciously published by the defendant knowing that they were false or with careless disregard as to whether they were true or not.

[14] In her amended statement of claim, the plaintiff pleads that an incident occurred with police on July 20, 2021. The details of the incident were recorded in a police incident report GO-21-7769 (“GO-2021”).

[15] The plaintiff alleges that:

a. defamatory words were contained in a police incident report, GO-2019 Mischief – Other, and in the officers’ handwritten notes;

b. the defamatory words or material initially contained in GO-2019 were republished and repeated in a police incident report GO-2021, authored by Constable Marcus Krebs following an incident involving the plaintiff on July 20, 2021.

[16] The statement of claim was issued on November 28, 2022.

Issue

[17] Is the defendant entitled to summary judgment on the basis that the plaintiff’s claim is statute barred and/or that there is no genuine issue requiring a trial?

Summary Judgment

[18] Rule 20.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”) provides that a defendant may move for summary judgment after delivering a statement of defence.

[19] Rule 20.04(2)(a) of the Rules provides:

(2) The court shall grant summary judgment if,

(a) the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[20] Rule 20.04(2.1) of the Rules sets out the powers of the court on a motion for summary judgment:

(2.1) In determining under clause (2) (a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

Weighing the evidence.
Evaluating the credibility of a deponent.
Drawing any reasonable inference from the evidence.

[21] Rule 20.04(4) of the Rules states that where the court is satisfied that the only genuine issue is a question of law, a judge may determine the question and grant judgment accordingly.

[22] A statement of claim fails to disclose a reasonable cause of action if it is barred by a limitation period: Coulson v. Citigroup Global Markets Canada Inc., 2010 ONSC 1596, at para. 129.

[23] The Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, guides the court on a summary judgment motion. The governing principles can be found at paras. 49 and 50:

There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

These principles are interconnected, and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

[24] The onus is on the defendant to establish that there is no genuine issue requiring a trial.

[25] The plaintiff must either refute or counter the defendant’s evidence or risk summary judgment. The plaintiff must lead trump or risk losing and cannot rely solely on allegations or denials in its pleadings: Nine-North Logistics Inc. v. Atkinson, 2014 ONSC 7243, 124 O.R. (3d) 40, at para. 41.

[26] Each party must put their best foot forward on a motion for summary judgment and lead all facts and evidence that show whether or not there is a genuine issue requiring a trial. The motion judge is entitled to assume that the motion record before the court contains all the evidence that the parties would otherwise present if there is a trial, and that the parties are not holding anything back on the evidence tendered: Nine-North Logistics, at para. 41.

[27] The basic chronology of events and fundamental facts are not in dispute. Therefore, I am satisfied that this matter can be resolved by way of summary judgment.

[28] I find that I can reach a fair and just determination on the question of whether the plaintiff’s case is statute barred and whether on the evidentiary record before me, a genuine issue remains that requires a trial. The process of summary judgment allows this court to make the necessary findings of fact and apply the law to those facts.

[29] The determination of the essential question by way of summary judgment will lead to a fair and just result. It will serve the goal of timeliness, affordability and proportionality in light of the litigation as a whole. Summary judgment is a proportionate, more expeditious and less expensive means to achieve a just result.

Evidence on the Motion

[30] On May 25, 2019, the NRPS received a call from an Uber driver regarding his fare, the plaintiff. The Uber driver indicated that the plaintiff had damaged his vehicle and had said that she wanted to kill herself. Two police officers were dispatched to investigate.

[31] The two officers attended the call, spoke to the Uber driver and the plaintiff, investigated the scene and formed reasonable grounds to arrest and charge the plaintiff with mischief.

[32] The plaintiff was advised that she was under arrest and advised of her rights.

[33] During their interactions with the plaintiff, the police observed her to be yelling, swearing and emotionally charged. Once placed in the police vehicle, she kicked the back door of the vehicle and started talking about killing herself.

[34] Based on statements taken from the Uber driver, the plaintiff’s own statements and observations of her actions, the police took the plaintiff to the local hospital for a mental health assessment.

[35] The plaintiff was admitted to the hospital at 1:10 a.m. on May 26, 2019, and the police returned to the station to complete paperwork.

[36] A copy of GO-2019 together with the police officers’ notes were subsequently submitted to the Crown Attorney’s office for prosecution.

[37] On July 17, 2019, the criminal charges against the plaintiff were dealt with by way of the imposition of a peace bond with conditions and a restitution order. Justice H. Brownstone’s order dated July 17, 2019 states that the plaintiff acknowledged the sufficiency of the allegations, consented to such an order, waived the hearing of further evidence and conceded that probable grounds existed for the granting of the order.

[38] On July 20, 2021, the NRPS responded to a mischief call at Juneberry Road in Thorold, Ontario. The property was a rooming house occupied by six roommates, including the plaintiff. The incident involved an allegation of mischief against the plaintiff regarding a cut internet cable belonging to one of her roommates. No charges were laid against the plaintiff.

[39] GO-2021 was prepared by the police officer following the incident, and it references certain excerpts contained in GO-2019.

[40] GO-2021 was not filed with the court. Copies of correspondence prepared by the plaintiff’s then counsel Mr. Baldeo, dated March 18, 2022 and April 28, 2022, to the Niagara Regional Police Service, Records & Information Management, are attached as exhibits to the plaintiff’s affidavit sworn May 9, 2023. The April 28, 2022, letter refers to the content of GO-2021 and the content of concern to the plaintiff.

Analysis

[41] The plaintiff’s claim was commenced three and a half years after the incident of May 26, 2019 and approximately one year and six months after the incident of July 20, 2021.

[42] The defendant submits that the plaintiff’s defamation claim, in respect of events that occurred on May 26, 2019, is statute barred. The plaintiff agrees that her claims from the May 26, 2019 incident are statute barred.

[43] The plaintiff submits that a republication of the defamatory comments contained in GO-2019 occurred when the defendant referred to the contents of GO-2019 in GO-2021. The plaintiff argues that the republication initiates a new limitation period, as a result of which, assuming leave to amend the statement of claim is granted, her proceeding is not statute barred.

[44] A claim of defamation takes two forms: libel and slander. The impugned words in this case were contained in GO-2019 and GO-2021 in written form. Accordingly, the plaintiff’s claim is one of libel: Libel and Slander Act, s. 2.

[45] The plaintiff must prove three essential elements to substantiate her claim of defamation:

i) the impugned words are defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person;

ii) the words in fact referred to the plaintiff; and

iii) the words were published, meaning that they were communicated to at least one person other than the plaintiff.

See: Grant v. Torstar Corp, 2009 SCC 61, [2009] 3 S.C.R. 640, at para 28.

[46] If the plaintiff establishes these three elements, the onus then shifts to the defendant to establish one of the available defences.

[47] To prove the element of publication, a plaintiff must establish that the defendant has, by any act, conveyed defamatory meaning to a single third party who has received it: Crookes v. Newton, 2011 SCC 47, [2011] 3 S.C.R. 269, at para 16.

[48] There is no evidence before me that information recorded by the defendant and contained in GO-2019, GO-2021 and/or police notes was released by the defendant to a member of the public or to the media.

[49] There is also no evidence before me that the police records were publicly accessible.

[50] The mere fact of making a police report does not amount to publication: see MacRae v. Feeney, 2016 ABCA 343, 366 C.R.R. (2d) 252, at para 16; Rebello v. Ontario, 2023 ONSC 3574, at para 91.

[51] GO-2019 was disclosed to the local Crown Attorney’s office for the purpose of prosecution. The disclosure of the records may fit within a narrow definition of communication to a third party other than the plaintiff. However, I am satisfied that the defence of qualified privilege would be available to the defendant.

[52] In RTC Engineering Consultants Ltd. v. Ontario (Ministry of Solicitor General & Correctional Services-Office of Fire Marshall) (2002), 2002 CanLII 14179 (ON CA), 58 O.R. (3d) 726 (C.A.), at para. 16, Laskin J. explained:

At the heart of the defence of qualified privilege is the notion of reciprocity or mutuality. 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. "Interest", however, should not be viewed technically or narrowly. The interest sought to be served may be personal, social, business, financial, or legal. The context is important. The nature of the statement, the circumstances under which it was made, and by whom and to whom it was made are all relevant in determining whether the defence of qualified privilege applies.

See also: Presley v. Reti, 1998 CarswellYukon 99 (S.C.).

[53] While the defence of qualified privilege is not absolute, there is no evidence before me to establish that qualified privilege should not apply. For example, there is no evidence that the defendant’s dominant motive for making the statement was malice, or that the statement was not commensurate with the occasion, either because the statement was not germane and reasonably appropriate to the occasion, or because the recipients of the statement had no interest in receiving it: Rebello, at para 94.

[54] In the event that my analysis is mistaken, I turn to the question of whether the plaintiff’s defamation claim, taking into consideration the alleged republication in 2021, is statute barred.

[55] Section 5 of the Libel and Slander Act requires the plaintiff to give the defendant notice in writing specifying the matter complained of within six weeks after the alleged libel has come to the plaintiff’s knowledge. The written notice must be served in the same manner as the statement of claim under r. 16 of the Rules of Civil Procedure, R.R.O. 1990 Reg. 194.

[56] After written notice is provided, section 6 of the Libel and Slander Act requires the plaintiff to commence the action within three months after the libel has come to the knowledge of the plaintiff.

[57] The plaintiff asserts that the defamation in this matter is neither a broadcast nor a newspaper publication as contemplated by section 6 of the Libel and Slander Act. Therefore, the plaintiff argues, the two year general limitation period contained in the s. 4 of the Limitations Act applies.

[58] I disagree with the plaintiff’s submission. There is an abundance of case law that recognizes that the element of publication can take many forms and does not require communication via newspaper or broadcast: Crookes, paras. 18-19; Wilson v. Wilson, 2019 ONSC 5726. Furthermore, s. 19 of the Limitations Act recognizes that the applicable limitation period in a case such as this is statutorily prescribed by the Libel and Slander Act.

[59] On the evidence before me, I am satisfied that the plaintiff would have discovered the libel at the earliest on May 26, 2019, and no later than July 17, 2019 when the plaintiff consented to the peace bond and restitution order.

[60] There is absolutely no evidence before me as to when the plaintiff became aware of the purported republication of GO-2019 in 2021. In the amended statement of claim, she pleads that:

On August 10, 2021, Plaintiff wrote to the Niagara Police to have the mental health accusation corrected or removed pertaining to her arrest but it was declined by the Niagara Police.
On August 30, 2021, the Niagara Police responded to the Plaintiff’s letter denying her request to remove the inaccuracies in their record, plaintiff’s lawyer, Shawn Baldeo wrote to the Niagara Police requesting that the false and erroneous record requesting corrections to police incident reports, police occurrence reports and police handwritten notes but was declined.

[61] At the very least, she was aware of the republication no later than either August 10, 2021 or August 30, 2021.

[62] Regardless of when the plaintiff discovered the purported republication, I am governed by the precedent in Frisina v. Southam Press Ltd. et al. (1980), 1980 CanLII 1749 (ON SC), 30 O.R. (2d) 65 (H.C.), at pp. 66-67, aff’d (1981), 1981 CanLII 1824 (ON CA), 33 O.R. (2d) 287 (C.A.), in which Robins J. states:

The fact that the plaintiff seeks to add a claim for earlier related alleged libels to an existing properly-constituted libel action cannot cure the failure to provide the required statutory notice. The amendment sets up additional causes of action based on the alleged defamatory material in the earlier publications and, just as lack of notice would preclude the assertion of such claims by way of separate writ of summons, so also it precludes their assertion by way of amendment to an existing action. In short, unless notice is given in accordance with s. 5(1), no claim is subsequently maintainable.

[63] There is no evidence before me that the plaintiff satisfied the preconditions of section 5 of the Libel and Slander Act at any time prior to commencing her action.

[64] A failure to serve a s. 5 notice is an absolute bar to a defamation action: Watson v. Southam(2000), 2000 CanLII 5758 (ON CA), 189 D.L.R. (4th) 695 (Ont. C.A.), at para. 50; Frisina v. Southam Press Ltd.; Filion v. Canadian Broadcasting Corp. (2000), 2000 CanLII 22387 (ON SC), 49 O.R. (3d) 364 (S.C.), at para. 22; Cartwright v. Pettkus, 1996 CarswellOnt 3080 (Div. Ct.), at paras. 15-16.

[65] The plaintiff’s failure to satisfy the preconditions of s. 5 justifies summary judgment in favour of the defendant.

Conclusion

[66] The defendant’s motion for summary judgment dismissing the plaintiff’s claim is granted.

Costs

[67] The parties are encouraged to resolve the issue of costs of the motion between themselves. If they are unable to do so, they may submit a bill of costs and make written submissions consisting of not more than three pages in length according to the following timetable:

• The defendant is to serve a bill of costs and submissions by Friday, November 17, 2023.

• The plaintiff is to serve her bill of costs and submissions no later than Friday, November 24, 2023.

• The defendant is to serve reply submissions, if any, no later than Friday, December 1, 2023.

[68] If no submissions are received by the court by December 1, 2023, or any extension by written agreement, the matter of costs will be deemed to have been settled.

L. E. Standryk J.

Released: November 7, 2023

COURT FILE NO.: CV-22-61160

DATE: 2023 11 07

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

M.B.

Plaintiff

– and –

Niagara Regional Police Services Board

Defendant

REASONS FOR decision

L. E. Standryk J.

Released: November 7, 2023

M.B. v. Niagara Regional Police Services Board, 2023 ONSC 6296

Case Summary

Overview of the Proceeding

Nature of the Motions

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Financial Outcomes

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 5