COURT FILE NO.: CV 17-63093

DATE: 2023/10/15

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Angelo Fazari, Plaintiff

A N D:

Stephen Mark Lawley, Defendant

BEFORE: The Honourable Justice A.J. Goodman

COUNSEL: C. Yamashita, for the Plaintiff,

Self-represented Defendant

HEARD: November 10, 2023

E N D O R S E M E N T

[1] This is a motion brought by the plaintiff, Angelo Fazari (“Fazari”) seeking leave to have this libel action heard as a summary judgment motion, or in the alternative, striking the jury notice and converting the action to a simplified procedure, pursuant to the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (the “Rules”).

[2] For the following reasons, the plaintiff’s motion is granted, in part.

Positions of the Parties:

[3] The plaintiff submits that this action can and should be tried in a summary fashion to save the parties, the court, and a potential jury, the time and expense of a protracted and costly trial.

[4] This defamation proceeding involves three primary issues: 1) whether the statements made by the defendant about Fazari being “under investigation for child abuse” and being a “scumbag lawyer” who uses “false claims of abuse” on Facebook are defamatory; 2) if so, whether the defendant has any valid defences; and 3) if successful, what damages, if any, ought to be awarded.

[5] Given the issues in dispute, the plaintiff submits that the action can be determined by way of affidavit evidence, cross-examinations, and a one-day hearing to argue the facts and the application of the law. The plaintiff requests leave to proceed with the summary judgment motion pursuant to r. 48.04. In the alternative, under the Simplified Proceedings Rules, the matter can be heard by a judge alone. The plaintiff says that this is the most effective and fair manner, given the particular pleadings and anticipated evidence in this action.

[6] The plaintiff says that the defendant is self-represented and intends to represent himself at trial. He intends to call 14 witnesses, not including himself. The majority of the witnesses are individuals employed by the plaintiff’s lawyer’s law firm and have irrelevant evidence to provide, or relate to issues that were raised or that could have been raised during the family law proceeding. The defendant merely desires another audience in front of a jury to air his grievances regarding the family law litigation.

[7] The defendant responds that he is entitled to a jury of his peers to hear this case. He submits that he has a viable defence to the libel action and desires to tell his whole story to a jury, who will determine the truth. He contends that a jury of his peers will recognize that the Statement of Claim is false. A jury of his peers is necessary to determine whether any defences are applicable. The defendant submits that summary judgment is rarely granted to address a defamation action.

[8] The defendant submits that he would be prejudiced by a judge-alone trial as the previous lawyer in this action is now a presiding judge in Hamilton. “Justice for ALL would be greater served should the Jury Trial be held.”

Background:

[9] Fazari is a lawyer in good standing with the Law Society of Ontario (the “LSO”) practicing in the city of Welland, in the province of Ontario.

[10] In December of 2014, Fazari was retained by the defendant’s former spouse, Amy Giammarco (“Giammarco”), to represent her in a family law proceeding against the defendant. In the course of the proceeding, a motion for spousal support was brought against the defendant and he was ultimately ordered to pay spousal support.

[11] Apparently, the defendant was upset by what transpired during the family law proceeding and allegedly began making offensive and derogative comments about the plaintiff and his professional and legal conduct. These comments included the allegation that the plaintiff purposedly misled the court that Lawley had abused his own daughter.

[12] On February 1, 2017, the defendant filed a complaint with the LSO alleging that Fazari had committed professional misconduct during the proceeding. The LSO’s investigation concluded that there was no reasonable suspicion that Fazari had engaged in any professional misconduct.

[13] On December 26, 2016, the defendant posted the following on Facebook:

… The facts are Parental Alienation is a form of child abuse. Lawyers that use false claims and legal games to deny access are the same as the mother … both are child abusers.

My ex Amy Giammarco her father Gilbert Giammarco and her lawyer Angelo Fazzari [sic] are all under investigation for child abuse. I have fought this long and hard and it has been painful and costly…. but I will continue to fight for my daughter…… I want her to have a father in her life … it is her right also!!

[14] On July 20, 2017, the defendant posted the following comment to Facebook:

Here you go Angelo Fazari… scumbag lawyer. Maybe one day you can be a better lawyer with some ethics instead of having to use false claims of abuse.

[15] On January 20, 2017 and August 15, 2017, the plaintiff served the defendant with Notices of Libel pursuant to s. 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L-12, demanding the removal of the postings, to which the defendant refused. This action was commenced by on October 10, 2017 for a claim of general damages of $150,000 and punitive and/or aggravated damages of $40,000. As the Statement of Claim was issued before the quantum was raised under the Simplified Procedure, the action proceeded under the Ordinary Procedure.

[16] On October 29, 2018, the defendant delivered a Jury Notice (the “Jury Notice”). As a result of the Jury Notice, the action must proceed under the Ordinary Procedure in spite of qualifying as a Simplified Procedure action in all other respects, apart from the issue of libel raised in the pleadings.

[17] In October 2018, the plaintiff brought a motion for an injunction requiring the defendant to remove the defamatory statements from Facebook and restraining the defendant from publishing anything related to the defamatory statements. Ultimately, the defendant provided an affidavit confirming that the defamatory statements had been removed from Facebook and that no further similar posts would be posted, pending determination of this proceeding. Notwithstanding the foregoing, it is alleged that the defendant has continued to make defamatory comments pertaining to the defendant, Giammarco as well as Ramsay J. and Valente J.

[18] The defendant has not yet delivered his affidavit of documents and no examinations for discovery have occurred.

[19] A pre-trial conference was held on September 11, 2023 before Carpenter-Gunn J. Her Honour estimated the jury trial to be 15 days should the defendant be permitted to call all of his numerous witnesses.

[20] No claim for defamation and/or slander has been commenced by the defendant against the plaintiff. Consequently, this proceeding solely relates to the defamatory statements posted by the defendant.

Legal Principles:

[21] Section 108(3) of the Courts of Justice Act, R.S.O. 1990, c. C. 43, permits a court on motion to order that “issues of fact to be tried or damages assessed, or both, without a jury. Section 108(2) of the Courts of Justice Act provides that “[o]n motion, the court may order that issues of fact be tried or damages assessed, or both, without a jury.”

[22] Rule 47.02 (2) provides that a motion to strike out a jury notice may be made on “the ground that the action ought to be tried without a jury.”

[23] A decision frequently cited with respect to the test on a motion of this kind is found in Cowles v. Balac (2006), 2006 34916, 83 O.R. (3d) 660, 216 O.A.C. 268. The principles to be taken from para. 37 of the decision include: the legal and/or factual issues to be resolved, the evidence at trial and the conduct of the trial. The overriding test is whether the moving party has shown that justice to the parties will be better served by the discharge of the jury.

[24] In deciding whether to make an order that the jury notice be struck, the trial judge has “considerable discretion”: Kempf v. Nguyen, 2015 ONCA 114, 124 O.R. (3d) 241, at para. 44. In a number of its recent decisions, the Ontario Court of Appeal addressed the manner in which a trial judge is to exercise his or her discretion on a motion to strike the jury notice. This discretion must not be exercised arbitrarily or on the basis of improper principles: at para. 44.

[25] The right to a jury trial is not to be taken away lightly: Hunt (Litigation guardian of) v. Sutton Group Incentive Realty Inc. (2002), 2002 45019 (ON CA), 60 O.R. (3d) 665, 162 O.A.C. 186, at para. 73.

[26] In MacLeod v. Canadian Road Management Company, 2018 ONSC 2186, 79 C.C.L.I. (5th) 314, Myers J. also referred to Cowles for the basic principles to be applied by the court on a motion to strike a jury notice. At paras 23-24, these principles include whether the moving party has shown the justice to the parties will be better served by the discharge of the jury; the object of a civil trial is to provide justice between the parties, nothing more; and a judge may strike a notice even before the trial has begun if the judge considers that there is no advantage to beginning the trial with the jury because the situation makes it apparent that the case should not be tried with a jury.

[27] In Girao v. Cunningham, 2020 ONCA 260, 2 C.C.L.I. (6th) 15, the Court of Appeal confirmed that the principles governing the discharge of the jury remain as set out in Kempf and that “the question for the trial judge is simply this: Will justice to the parties be better served by dismissing or retaining the jury?” At para. 171, Lauwers J.A. states: “While I recognize that the right to a jury trial in a civil action has been recognized as fundamental, it is not absolute and must sometimes yield to practicality.”

Discussion:

Is Rule 20 Summary Judgment available in this defamation case?

[28] The plaintiff acknowledges that he bears the onus of demonstrating the tests for either heads relief being sought.

[29] In Ontario, a plaintiff in a defamation proceeding is only required to establish the following: 1) that 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; 2) the plaintiff must show that the words referred to the plaintiff; and 3) the plaintiff must prove that the words were communicated to at least on person other than the plaintiff.

[30] If the above elements are established on a balance of probabilities, then liability is strict insofar as it is not necessary to prove intention. If the elements of defamation are proven, liability is established unless the defendant can rely upon one of the recognized defences. At this point, the onus shifts to the defence.

[31] There are numerous recognized defences to a defamation action. In each case, assuming the plaintiff has established the three preconditions to liability, the onus of proving the applicability of the defence lies upon the defendant. Here, the plaintiff submits that the only applicable defences would be “truth” or “justification” or “fair comment.

[32] Truth or justification is available where the defendant proves that the statement was factually accurate and substantially true. If the comments are expressions of opinion, the defence of fair comment would have to be relief upon.

[33] For the defence of fair comment to apply, it must be a matter of public interest. Secondly, the comment must be based on fact. Thirdly, the comment must be recognizable as opinion and must not purport to be a fact. Fourthly, the comment must be one that a person could honestly express on the proven facts. Finally, if the comment was primary motivated by malice then it cannot be “fair.” If the comment as made out of spite, ill will, with intent to injure or without any honest belief in the truth of the statement then malice will be established and the defence of fair comment will fail.”

[34] In the case at bar, the statements made by the defendant on Facebook are specific and personal to Fazari and the defendant’s family law proceeding.

[35] Rule 20.04(2.1) provides: 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:

[36] In the seminal case of Hryniak v Maudlin 2014 SCC 7, the Supreme Court of Canada overturned the “full appreciation” test promoted by the Ontario Court of Appeal in summary judgment matters. The Supreme Court held that there will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits. A trial is not required if a summary judgment motion can achieve a fair and just adjudication, if it provides a process that allows the judge to make the necessary findings of fact, apply the law to those facts, and is a proportionate, more expeditious and less expensive means to achieve a just result than going to trial.

[37] In summary judgment matters, a motions judge may evaluate the credibility of a deponent and draw any reasonable inferences from the evidence. The powers in r. 20.04(2.1) and (2.2) expand the number of cases in which there will be no genuine issue requiring a trial. These new fact-finding powers are discretionary and are presumptively available; they may be exercised unless it is in the interest of justice for them to be exercised only at a trial. Thus, the amendments are designed to transform r. 20 from a means to weed out unmeritorious claims to a significant alternative model of adjudication.

[38] It is true that the remedy of summary judgment is available to resolve a defamation action in appropriate circumstances. In the recent case of Lavallee v. Isak, 2021 ONSC 6661, Smith J. held that a summary judgment motion was appropriate because it could be determined on the record whether the social media posts at issue were defamatory and whether there were any valid defences to the publications. Similarly, in the case of Zhong v. Wu, 2019 ONSC 7088, the court granted summary judgment where numerous posts on social media were found to be defamatory and no defence could be relief upon by the defendant.

[39] Given the narrow issues in dispute and the estimated length of the jury trial for this matter, the plaintiff submits that the most cost-effective and efficient route is to proceed by way of summary judgment.

[40] The fact that the parties have already set the action down for trial is not determinative as to whether or not a party may move for summary judgment. As stated Quinn J. in Fruitland Juices Inc. v Custom Farm Service Inc., 2012 ONSC 4902, in granting leave for the defendants to proceed with the summary judgment motion in spite of setting the action down for trial:

A party is not obliged to bring a summary judgment motion at the earliest opportunity; neither must there be a precipitating event such as a change in circumstances. So long as the motion, if successful, will be less costly and time-consuming than the trial, and will not unduly delay the start of the trial, I do not see why the moving party must explain his or her choice of timing.

[41] The Fruitland decision was cited with approval in the subsequent case of Rego v. Walmart,2017 ONSC 812, where the court found Quinn J.’s approach to be consistent with the Supreme Court of Canada’s decision in Hyrniak. In Rego, the court granted leave for the moving party to bring a summary judgment motion because, if successful, it would in effect end the action and be more expeditious and less time consuming than a trial.

[42] Likewise, in Asa v Sacks, 2014 ONSC 4443, Lederer J. granted leave for a summary judgment to be heard in spite of a trial date having been set as there was “the prospect of a substantial saving of time.”

[43] While the plaintiff advances persuasive arguments, I am not satisfied that summary judgment will be in the interests of justice. The fact that the defendant is self-represented is a neutral factor. However, there are issues of credibility that arise on the potential evidence to be adduced, even if furnished by affidavit and cross-examinations. In my view, there is a genuine issue requiring a trial.

Should the Jury Notice be Struck in this case?

[44] A party’s entitlement to a jury trial is subject to the power of the court to order that the action proceed without a jury.

[45] Pursuant to r. 47.02 of the Rules, a motion to strike out a jury notice shall be made to a judge.

[46] Returning to Cowles, the Ontario Court of Appeal stated the following regarding the role of the Court in determining whether to strike a jury notice:

A party moving to strike a jury bears the onus of showing that there are features in the legal or factual issues to be resolved, in the evidence, or in the conduct of the trial which merit the discharge of the jury. In the end, the court must determine whether justice to the parties will be better served by trying a case with or without the jury.

[47] While the test confers rather broad discretion on a court confronted with such a motion, it is nonetheless a sensible test. After all, the object of a civil trial is to provide justice between the parties. It makes sense that neither party should have an unfettered right to determine the mode of trial. Rather, the court, which plays the role of impartial arbiter, should, when a disagreement arises, have the power to determine whether justice to the parties will be better served by trying a case with or without a jury.

[48] In the more recent case of Louis v. Poitras, 2021 ONCA 49, the Court of Appeal confirmed: “While a court should not interfere with the right to a jury trial in a civil case without just cause or compelling reasons, a judge considering a motion to strike a jury notice has broad discretion to determine the mode of trial.” Further, the court has held that the right to a jury trial is subject to the overriding interests of the administration of justice and issues of practicality.

[49] Here, I agree with the plaintiff that there are compelling reasons and issues of practicality that ought to be considered in support of striking the Jury Notice:

[50] The defendant, who is self-represented, intends to call 12 to 14 witnesses, not including himself, which is likely to extend a jury trial for several weeks at great time and expense to the parties, the jury and the court.

[51] I am persuaded by the plaintiff that the majority of the witnesses to be called by the defendant are not likely to assist this case and/or relate to his defence of this libel action.

[52] During the defendant’s submissions to this court, he tended to stray off topic, while raising immaterial issues for this particular motion. The defendant seemed to be repeating matters advanced at his previous family law proceeding. I am convinced that the trial - in whatever form, will descend into a repetition of issues already decided including related grievances about those proceedings.

[53] Further, I do not accept the defendant’s assertions that it would be easier for him, as a self-represented litigant, to advance his case before a jury. While the defendant is quite articulate and well-prepared, I am convinced that if there is a jury trial, the trial judge would have to implement strict controls, including resorting to corrective instructions with the potential for inflammatory and non-relevant evidence to be adduced; all of which would likely prejudice the plaintiff and could confuse the jury.

[54] Contrary to the defendant’s position, a jury trial would not be the most just, cost-effective and expeditious manner to conduct this litigation. In my opinion, it would be an inappropriate use of the jury’s time and the court’s resources to preside over a lengthy matter as framed here. While this is a libel case, the evidence and issues in this proceeding can be heard in a summary trial fashion, and the quantum and nature of the claim ought to be appropriately heard before a judge alone.

[55] Pursuant to r. 76.02 of the Rules of Civil Procedure, the Simplified Procedure is mandatory if the plaintiff’s claim is for money in the amount of $200,000 or less, exclusive of interest and costs. The plaintiff’s claim is for monetary payment of $150,000 in general damages and $40,000 in aggravated and/or punitive damages. Notwithstanding the claim for libel, and as mentioned, this action was commenced before the monetary jurisdiction was raised. As the defendant served a Jury Notice, this litigation has proceeded under the Ordinary Procedure.

[56] Therefore, I agree with the plaintiff that this action ought to continue under Simplified Procedure. I resort to r. 76.02(7)(c), to the effect that an action that was not commenced under the Simplified Procedure may be continued under the Simplified Procedure if a jury notice is struck out.

Conclusion:

[57] The Rules provide for an orderly framework whereby the litigants can have their day in court and obtain judgment. While the Rules provide the court with discretion in these matters, it is well-established that courts should not set aside a jury notice lightly. A court must consider the potential prejudice to the parties should the motion be allowed, and the effect of any such order on the overall integrity of the administration of justice.

[58] In my opinion, the plaintiff has demonstrated that his motion to strike the jury notice is in the interests of justice and is supported by the issues in this action and the circumstances of this litigation.

[59] Therefore, the plaintiff’s motion is granted, in part. The jury notice is set aside and the matter will proceed to trial with a judge sitting alone. Given that the monetary amount is under $200,000, this matter shall be converted to a Simplified Rules Proceeding.

[60] The r. 76 simplified procedure is to be strictly followed. As such, this will result in a summary trial of between three to five days under r. 76.12. The parties shall establish a timetable for the next steps in this action, with a subsequent proposed trial management plan under r. 76.10,. and when ready to proceed, a trial record. The timetable may be sent to me for my approval.

[61] Costs of this motion are reserved to the trial judge.

A.J. Goodman J.

DATE: November 15, 2023