Court File and Parties
COURT FILE NO.: CV-21-00001547-0000 DATE: 2023 12 29
SUPERIOR COURT OF JUSTICE – ONTARIO
7755 Hurontario Street, Brampton ON L6W 4T6
RE: THE MISSISSAUGA FIRE FIGHTERS ASSOCIATION, IAFF LOCAL 1212
AND: McNAMARA, Dr. Martin
BEFORE: Justice L. Ricchetti
COUNSEL: GOLDBLATT, Jordan, for the Plaintiff MACKINNON, Iain, for the Defendant
HEARD: December 19, 2023, by Video Conference.
ENDORSEMENT
(Which Motion proceeds First)
[1] There is a preliminary issue to be decided in this proceeding, namely, whether the motion to discontinue should be heard first or whether the anti-SLAPP motion be heard first.
[2] Counsel agreed to proceed with a joint evidentiary record consisting of the Joint Brief of documents, for the court to rely on.
[3] Submissions were heard. The decision was reserved.
Background
[4] In January 2021, the Defendant, Dr. Martin McNamara (McNamara), allegedly posted, to various social media sites, documents containing expressions relating to the International Association of Fire Fighters (IAFF), and its Local 1212 Union, Mississauga Fire Fighters Association (MFFA).
[5] The Statement of Claim’s central thrust of the alleged statements made by McNamara relates to the Ontario Government’s decision that firefighters received priority to Covid-19 vaccination. For the purpose of this motion, I do not need to, nor do I, engage in the consideration of any claims of defamation, defences related thereto or whether the statements contain expressions of public interest.
[6] The Statement of Claim was issued on April 26, 2021.
[7] The Statement of Defence was delivered on May 17, 2021.
[8] The Reply was delivered on May 21, 2021.
[9] On July 15, 2021, the Plaintiff’s counsel sought to schedule examinations for discovery.
[10] On July 19, 2021, the Defendant’s counsel advised of its intention to bring a motion to strike the Statement of Claim under R. 21 and, if that motion was unsuccessful, to then bring an anti-SLAPP motion under R. 137.1 of the Courts of Justice Act (CJA).
[11] On August 10, 2022, the R. 21 motion to strike was heard by J. Rahman. The motion’s judge granted the motion in part, finding that 3 of the alleged defamatory statements were not capable of referring to the Plaintiff and struck that portion of the claim.
[12] Discussions to resolve the proceeding took place between counsel.
[13] At issue then, and repeated in submissions to this court, a dismissal of the proceeding under R. 137.1 results in a presumptive entitlement to full indemnity costs, whereas such a presumption does not arise with a discontinuance.
[14] While normally, this court would not deal with the settlement discussions, both counsel jointly put before the court, some of the settlement discussions. On September 6, 2023, as set out in an email, McNamara offered to settle the proceeding on the basis that MFFA pay McNamara substantial indemnity costs. MFFA refused this offer. The impediment to the resolution was costs.
[15] In accordance with the most recent Central West Region Notice to the Profession, a long motion can be served with a return date of “TBD” (to be determined). Then the parties are to agree on a timetable for the steps to get the motion ready to be heard. If the parties cannot agree on a timetable, the parties can attend Triage Court to set a timetable. If the parties agree on a timetable or one is imposed by the Triage Court, once they are ready to argue the motion, the parties return to Triage Court to obtain a date for the long motion.
[16] On November 20, 2023, counsel for Dr. McNamara contacted the Brampton Court to schedule a case conference to set a timetable and motion date for Dr. McNamara’s anti-SLAPP motion. Counsel were advised to schedule an attendance at Triage Court.
[17] The Triage Court date was set for December 6, 2023.
[18] On December 5, 2023, the MFFA served a motion record seeking leave to discontinue the action. This was the first indication that MFFA sought to discontinue the proceeding.
[19] On December 6, 2023, the court scheduled this hearing to determine whether the motion for leave to discontinue should be heard before the anti-SLAPP motion was scheduled/heard.
Position of the Parties
MFFA
[20] MFFA delivered a Notice of Motion for leave to discontinue. McNamara has not served an anti-SLAPP Notice of Motion or motion record.
[21] MFFA submits that McNamara did not and has not “made” an anti-SLAPP motion. Accordingly, MFFA submits that no s.137.1(5) CJA stay applies. Hence, its motion for leave to discontinue should be heard first.
[22] MFFA submits McNamara cannot bring a s.137.1 motion because the person bringing the motion must arise from an expression made by the person. Here:
“Dr. McNamara’s defence pleads that he is an innocent by-stander in this litigation, that his role “remained limited to providing information and comment as a participant to the debate” of how best to manage the COVID vaccine roll-out, and that his practice was to identify himself when posting.”
McNamara
[23] Section 137.1(5) CJA provides that, “Once a motion under this section is made, no further steps may be taken in the proceeding by any party until the motion, including any appeal of the motion, has been finally disposed of.”
[24] McNamara submits that the anti-SLAPP motion was “made” when counsel obtained a date to attend Triage Court.
[25] McNamara submits that the motion for leave to discontinue is a “further step” which is prohibited since the motion was “made”.
[26] McNamara relies heavily on the decision in Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555 to support its submissions.
[27] McNamara submits that, if his anti-SLAPP motion is successful, it would be an “important vindication to his reputation”.
Analysis
[28] There are two issues to be decided:
a) whether the anti-SLAPP motion was “made”; and
b) whether the motion for leave to discontinue is a “step” prohibited by the CJA.
[29] In Canadian Thermo, supra, J. Myers concluded that the motion for leave to discontinue was a “further step” and that the defendant’s motion was “made” when it had been served. Accordingly, the anti-SLAPP motion was permitted to proceed first.
[30] However, a similar issue was considered by the Ontario Divisional Court in Ontario College of Teachers v. Bouragba, 2023 ONSC 367 (Div. Ct.) where the court determined:
[12] Mr. Bouragba argues that the motion for leave to discontinue was a “further step in the proceeding”. It is precluded by s.137.1(5). The provision is an absolute prohibition, it is statutory, and the court has no discretion to dispense with it (see United Soils Management Ltd. v. Katu Mohamed, 2017 ONSC 904, per Penny J.). The Master found that the prohibition in s.137.1 applies to any step “to advance the litigation”, but that the prohibition does not apply to a motion seeking “to bring the entire proceeding to an end.” I agree with the Master’s conclusion on this point in the context of a motion for leave to discontinue the entire action, with prejudice.
[13] The purpose of the anti-SLAPP provision is to require that the propriety of the action be decided before the parties take other steps that run up the costs of the litigation for the parties and for the administration of justice: Ontario, Ministry of the Attorney General, Anti-SLAPP Advisory Panel: Report to the Attorney General, Toronto, 2010, para. 42. The provision does not exist to enable a defendant to obtain a decision on the merits of the anti-SLAPP motion, but rather to eliminate improper lawsuits early, to save everyone, including the administration of justice, unnecessary time and expense. In moving first reading of the legislation that enacted the anti-SLAPP provision, Attorney General Meilleur stated to the Legislature:
Catching strategic lawsuits early also has benefits for the courts, by minimizing the amount of valuable public resources wasted on those matters. This, of course, benefits all court users. (Ontario, Legislative Assembly, Official Report of Debates (Hansard), 41st Parl., 1st Sess., No 41A (December 10, 2014) at 1971)
[14] Mr. Bouragba is asking this court to set aside the discontinuance, which has the effect of terminating the action in his favour, so that he may subsequently pursue a motion before a judge for an order terminating the proceedings in his favour, at significantly greater cost to the parties and the administration of justice. The impracticality of this position is apparent on its face.
[15] Mr. Bouragba also relies on the decision of Myers J. in Canadian Thermo Windows Inc. v. Seangio, 2021 ONSC 6555 for the proposition that an action may not be discontinued in the face of a motion the anti-SLAPP provision. I do not read Canadian Thermo this way. Myers J. is clear that he did not order discontinuance, but that he was trying to assist the parties to agree to terms of a consent discontinuance (para. 39). It is evident that Myers J. was frustrated by the impracticality of the approach taken by the parties to costs of a consent discontinuance, and that the failure to agree to costs meant that there was no consent. Myers J. was not deciding the question of whether he should grant leave to discontinue on a contested leave motion, but rather he was deciding whether he had, in fact, previously granted such an order.
[16] The proper goal of an anti-SLAPP motion is to obtain a dismissal order. Discontinuance of the proceeding, with prejudice, has the same effect, at considerably less cost and delay. As a matter of simple common sense, it cannot be the case that the legislature intended to preclude discontinuance when it precluded “further steps” pending decision on the anti-SLAPP motion. The Master did not err in concluding that CJA, s.137.1(5) was no bar to the motion for leave to discontinue, on appropriate terms.
(Emphasis added).
[31] I agree and adopt the reasoning in Bouragba, supra. It is directly and clearly applicable to this case.
[32] This is a different case than Canadian Thermo surpa. Here no anti-SLAPP Notice of Motion had been served, as had been served in Canadian Thermo supra.
[33] I recognize that s.137.2 (3) CJA provides that the moving party is to obtain a hearing date from the court before the notice of motion is served. However, the anti-SLAPP motion could have been served with a “TBD” date. As set out in the Central West Region Notice to the Profession, long motions can be served with a “TBD” date.
[34] Accordingly, the anti-SLAPP motion was not yet “made” triggering the automatic stay in s.137.1 CJA.
[35] Further, and in any event, for the reasons set out in Bouragba supra, I am satisfied that bringing a motion for discontinuance is not a “step” prohibited by s. 137.1(5) of the CJA.
[36] The Rules are to be interpreted to secure a “just, most expeditious and least expensive determination” on its merits of every civil proceeding. See R. 1.04(1).
[37] The purpose of s.137.1 CJA was to have actions, where allegedly defamatory expressions are made and potentially involve matters of public interest, to be considered expeditiously (and before considerable expense is incurred) for a judicial determination whether the proceeding should proceed or be dismissed. This approach is consistent with goals set out in R. 1.04(1).
[38] To require MFFA to proceed to defend an anti-SLAPP motion, which will no doubt require detailed motion materials, facta, and a lengthy court hearing, where the ultimate goal of McNamara is to have the proceeding dismissed, will require considerable legal expense to the parties and will consume substantial judicial resources.
[39] And to what end? MFFA is prepared to discontinue the proceeding now. Without going through an anti-SLAPP motion. The court can impose a term that the discontinuance is with prejudice.
[40] The court in Bouragba supra stated:
[24] The Master rejected Mr Bouragba’s argument that he was entitled to have the merits of the anti-SLAPP motion determined. The Master’s assessment on this point was reasonable: the purpose of the anti-SLAPP provision is to provide for summary dismissal of certain claims, not to provide a forum to litigate those claims. If a plaintiff would prefer to abandon the litigation to defending the anti-SLAPP motion, there is no resulting “prejudice” to the defendant.
[41] As stated in Bouragba supra there is no prejudice where the Master added a term that the discontinuance was a bar to any subsequent proceeding arising from the same facts and causes of action. See para. 23 of Bouragba supra.
[42] McNamara submits that succeeding on the anti-SLAPP motion would provide him vindication. I reject this submission.
[43] First, success on the anti-SLAPP motion is not a certainty.
[44] Second, the parties failed efforts to end the proceeding, was over the quantum of costs. Not vindication. McNamara submits that the settlement discussions are privileged. However, McNamara included those discussion (at least a portion of them) that showed the discussions failed because of the failure to agree on costs.
[45] And, on this motion, McNamara’s significant submission to oppose the discontinuance was the lack of the presumptive full indemnity costs IF the anti-SLAPP motion was successful.
[46] The issue of “vindication” was not the problem – it was costs – money.
[47] Letting the anti-SLAPP motion go ahead because the parties cannot agree on the appropriate scale or quantum of costs, makes little sense since the court can consider all relevant circumstances and has broad discretion to award the appropriate scale of and the fair and reasonable quantum of costs in the circumstances.
[48] For the reasons set out above, I conclude that MFFA’s motion for leave to discontinue be heard first.
[49] Accordingly, I need not deal with MFFA’s other submissions, which are, in any event, more properly heard during an anti-SLAPP motion if one is heard.
[50] Costs of this motion reserved to the motion for leave to discontinue.
[51] The parties can schedule the motion for leave to discontinue with my judicial assistant, Barbara Zablotny.
RSJ L. Ricchetti
Released: December 29, 2023
COURT FILE NO.: CV-21-00001547-0000 DATE: 2023 12 29
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: THE MISSISSAUGA FIRE FIGHTERS ASSOCIATION, IAFF LOCAL 1212 v. McNAMARA, Dr. Martin
COUNSEL: J. GOLDBLATT, for the Plaintiff I. MACKINNON, for the Defendant
ENDORSEMENT
(Which Motion proceeds First)
RSJ L. RICCHETTI
Released: December 29, 2023