Court File and Parties

Chatham Court File No.: CV-22-00000972-0000 Date: 2024-06-03 Superior Court of Justice - Ontario

Re: Patricia Sparks, Plaintiff And: Wildwood by the Lake Leaseholders Association, Defendant

Before: Howard J.

Counsel: Alita F. Wolff, for the Plaintiff Steven Pickard, for the Defendant

Heard: May 27, 2024

Endorsement

Overview

[1] This endorsement applies to both CV-22-972 (the “First Action”) and CV-23-1191 (the “Second Action.”)

[2] The defendant here in the First Action and the three defendants in the Second Action, who are each individual members of the board of directors of the defendant association here, move for summary dismissal of both actions.

[3] By order of Howie J. dated March 12, 2024, the court ordered that the two summary judgment motions would be heard together and that, for the purposes of the summary judgment motion in the Second action, the parties would rely on only the material filed in the motion in the First Action.

[4] A full-day special appointment was scheduled for the hearing of the motions. Arguments concluded at about 3:00 p.m. this afternoon.

[5] At the conclusion of the hearing, I spoke to counsel about the timing of the delivery of my decision. I indicated to counsel that, assuming favourable conditions befall me this week, I may have the opportunity to provide them with a decision this week, but that if that opportunity does not materialize and I am not in a position to release a decision this week, then the reality of my schedule, my list of reserve decisions in other cases, and the prioritized nature of some of those other cases would almost certainly mean that I would not be in a position to get them a decision until six months later.

[6] I indicated to counsel that I well appreciate that the clients/parties here would just like to have a decision in hand as soon as possible and that if, in order to receive a decision this week, it meant that I would need to sacrifice some eloquence of expression, the parties would prefer that I do that, even if it means that the reasons will be somewhat “unpolished.”

[7] With that said, I started to write this endorsement that same afternoon after the conclusion of argument.

Factual Background

[8] In the circumstances, I will not spend much time setting out the factual background. The basic facts are reflected in paras. 1-12 of the moving party defendants’ factum and paras. 1-18 of the plaintiff’s factum.

[9] It is alleged that the plaintiff was a long-term member of the board of directors of the defendant association, a non-share capital corporation that operates a recreational vehicle campground in Morpeth, Ontario, on the shore of Lake Erie, near Rondeau Provincial Park. The plaintiff most recently held the position of treasurer of the association. The plaintiff alleges that in August 2021, she was not re-elected to the board of directors for the first time in about 20 years. However, it appears that the plaintiff was asked by a member of the board of directors to assist office staff on a temporary basis in order to cover a staff member’s medical leave of absence.

[10] The defendants allege that on September 22, 2021, a document setting out the job description of office staff was altered by the removal of certain text, including the phrase “any other tasks assigned by the office, coordinator, Manager or Board President or designate.” It is admitted that the plaintiff made the edits in question.

[11] It is alleged that in or about early November 2021 an anonymous complaint was received by the president of the association concerning the actions of the plaintiff in editing the job description document.

[12] On December 9, 2021, the board held a closed meeting and decided that the plaintiff would receive a letter of reprimand, which provided that the plaintiff would be ineligible for positions of employment with the association or membership on its board of directors for a period of one year.

[13] The plaintiff caused a demand letter dated April 21, 2022, to be sent by her lawyer to the defendant association, following which, on June 16, 2022, the statement of claim in the First Action was commenced against the defendant association. By statement of claim issued August 21, 2023, the Second Action was commenced against Mr. Shawn Howard [1] (the president of the association), Mr. Michael DeBurger (the treasurer, who assumed the position from the plaintiff), and Ms. Laura Webb (a member of the board of directors of the association).

[14] Generally speaking, the plaintiff alleges that, during the course of their investigation of the anonymous complaint and their subsequent treatment and disciple of the plaintiff, the defendants defamed her.

Legal Principles

[15] The legal principles informing the analytical approach that a motion judge is required to follow on a summary judgment motion are not in dispute. As reflected in clause 20.04(2)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [2], the court shall grant summary judgment if the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.

[16] As Rady J. remarked in her decision in TD v. Testa, 2022 ONSC 1576 [3], the law respecting motions for summary judgment is well settled and understood following the landmark decision of the Supreme Court of Canada in Hryniak v. Mauldin, 2014 SCC 7 [4]. Summary judgment must be granted where there is no genuine issue requiring a trial. Hryniak establishes that there will be no genuine issue requiring a trial where the motion judge is able to reach a fair and just determination on the merits on a motion for summary judgment.

[17] In Hryniak, the Supreme Court directed that the summary judgment rules must be interpreted broadly, favouring proportionality and fair access to the affordable, timely, and just adjudication of claims. [5] On the standard of fairness, the Court held 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.” [6]

[18] Writing for the unanimous Court in Hryniak, Karakatsanis J. summarized the proper approach on a summary judgment motion, as follows:

On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. [7]

[19] As our Court of Appeal has repeatedly held, “[i]t is trite law that both parties on a summary judgment motion are required to put their best foot forward. Summary judgment motions are decided by evidence of the facts and by inferences drawn from those facts. Not by speculation about the facts.” [8] As such, a party is not entitled to sit back and rely on the possibility that more favourable facts may develop at trial. The summary judgment motion judge is entitled to assume that the evidence contained in the motion record is all the evidence the parties would rely on if the matter proceeded to trial. A responding party cannot rely on unsupported allegations in the pleadings or unfounded assertions that there is a genuine issue requiring a trial.

[20] In short, a responding party must “lead trump or risk losing.” [9]

[21] At the same time, as the Court of Appeal said in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 [10], the summary judgment motion judge must “assess the advisability of the summary judgment process in the context of the litigation as a whole.”

[22] The authorities are also clear that the onus is on the moving party – here, the defendants – to establish that there is no genuine issue requiring a trial with respect to a claim or defence. [11]

Analysis

[23] In the instant case, I have come to the conclusion that the motions for summary dismissal must be dismissed. Indeed, in my view, this case is a poor candidate for summary judgment given the substantial factual disputes and witness credibility issues that are central to the plaintiff’s claim and defendants’ defence.

[24] The courts have said (without delineating firm categories of cases where summary judgment is and is not appropriate) that summary judgment will most often be appropriate where cases are document-driven, with few witnesses, and limited contentious factual issues. [12]

[25] That is simply not the case here. This case is certainly not document-driven; indeed, I expect there will be relatively few critical documents at trial. It appears there will be many witnesses at trial. There are significant credibility issues here. And there are many contentious factual issues.

[26] Counsel for the moving party defendants delivered a comprehensive factum on the motions here. The critical and most substantial (½) portion of the factum addresses each specific allegation of defamation in the plaintiff’s pleading (as particularized in her reply for demand for particulars.) As I was reviewing the factum, the thought occurred that the document may prove to be useful to defence counsel as a road map for his closing argument at trial. Because for each specific allegation, the factum identifies the specific allegation of defamation, identifies the defences asserted in response to the claim, and then provides a discussion as to why the defence should succeed. Useful at trial perhaps – but it misses the mark here. The question for present purposes is not whether a position will succeed at trial but, rather, whether the moving party defendants have discharged their onus to demonstrate that there is no genuine issue for trial.

[27] In a similar vein, the closing submission of defence counsel to me (prior to plaintiff’s counsel’s responding submissions) was to the effect that if the plaintiff “can’t make out her claim here, then it must be dismissed.” But again, respectfully, the question is not whether the plaintiff has made out her claims, the question is whether the defendants have shown that there is no genuine issue for trial.

[28] The commentary of Morden A.C.J.O. on the meaning of “genuine issues for trial” under the previous versions of Rule 20 (prior to the 2010 amendments) in Irving Ungerman Ltd. v. Galanis (1991) [13] remains instructive:

It must be clear that a trial is unnecessary. The burden is on the moving party to satisfy the court that the requirements of the rule have been met. Further, it is important to keep in mind that the court’s function is not to resolve an issue of fact but to determine whether a genuine issue [for trial] exists. [Emphasis in original.]

[29] To the same effect is the commentary of Borins J.A. in Dawson v. Rexcraft Storage & Warehouse Inc. (1998) [14], where, writing for a unanimous Ontario Court of Appeal, it was said that:

I recognize, however, that deciding when a trial is unnecessary and would serve no purpose is no mean task. However, in my respectful view, in determining this issue it is necessary that motions judges not lose sight of their narrow role, not assume the role of a trial judge, and, before granting summary judgment, be satisfied that it is clear that a trial is unnecessary.

[30] Borins J.A. went on to hold that:

However, at the end of the day, it is clear that the courts accord significant deference to the trial process as the final arbiter of the dispute which has brought the parties to litigation. If there is a genuine issue with respect to material facts then, no matter how weak, or how strong, may appear the claim, or the defence, which has been attacked by the moving party, the case must be sent to trial. It is not for the motions judge to resolve the issue. [15]

[31] While any Rule 20 decision prior to the 2010 amendments must be viewed with some scrutiny, perhaps especially given the court’s enhanced powers under subrule 20.04(2.1), in my view, these decisions of Morden A.C.J.O. and Borins J.A. on the role of the motion judge hearing a summary judgment motion remain instructive.

[32] As I have said, in my view, there are a number of significant factual disputes between the parties here.

[33] For example, there is a fundamental divide between the parties as to the nature of the job description document that the plaintiff is said to have altered. The defendants regard the job description as an inviolable “board document.” However, the plaintiff maintains that the document that she edited was a “working document” or a “draft” document. The factual dispute becomes significant, inter alia, when placed in the context of the meeting between the plaintiff and Mr. Howard and Ms. Jean Landry (secretary of the association) on November 30, 2021, during which Mr. Howard allegedly advised the plaintiff that he had received a letter from some (unnamed) lawyer, stating that the altering of a document is a criminal offence, and that he had consulted with an (unnamed) officer of the Ontario Provincial Police who supposedly offered the opinion that the actions of the plaintiff in altering the document constitute an act of forgery, contrary to s. 366 of the Criminal Code, R.S.C. 1985, c. C-46 [16].

[34] As an aside, the evidence of Mr. Howard gives rise to, inter alia, questions about what information he provided to the unnamed lawyer and/or officer about the nature of the document, whether the plaintiff’s explanation of the nature of the document was put to the lawyer and/or officer, and whether an officer of the O.P.P. would really give the opinion that edits to an alleged working draft of a document constitute the offence of forgery. In my view, answers to such questions may go to whether Mr. Howard was acting reasonably, in bad faith, and/or was actuated with malice.

[35] Central to the defence of the plaintiff against the accusations made by the defendants against her is her position that she was instructed and/or was authorized to make the edits to the document by the defendant Ms. Webb, who was then an active member of the board of directors of the association. The plaintiff maintains, as reflected in para. 8 of the statement of claim, that she acted properly within her capacity as an office staff member when she made edits to a working document after receiving authorization and approval from an active member of the association’s board of directors.

[36] For her part, Ms. Webb flatly denies that she requested, instructed or authorized the plaintiff to make the alterations in question. In para. 2 of her affidavit sworn January 4, 2024, Ms. Webb states that the plaintiff’s statement about Ms. Webb giving her permission to alter the document is “patently false.” (To the same effect are paras. 3-4 of Ms. Webb’s reply affidavit sworn March 15, 2024.) Thus, we have another fundamental factual dispute between the parties, the determination of which will, in large part, depend on credibility findings that will have to be made concerning Ms. Webb and the plaintiff.

[37] In a similar vein, the plaintiff further alleges that Ms. Webb was actually in the office on September 22, 2021, at the time when she allegedly instructed and/or authorized the plaintiff to make the alterations in question. Again, Ms. Webb flatly denies that she was present in the office on the day in question. And so, again, there is a significant factual dispute between the parties that will have to be determined, which, in turn, will require that credibility findings of Ms. Webb and the plaintiff be made.

[38] I note that in para. 7 of her reply affidavit sworn March 15, 2024, Ms. Webb gave sworn evidence that on the morning of September 22, 2021, she drove her children to school in Ridgetown and dropped them off at school at 9:00 a.m. that morning.

[39] Ms. Webb was cross-examined on her two affidavits. Her evidence was that, in anticipation of the cross-examination, she reviewed her first affidavit sworn January 4, 2024, and her second/reply affidavit sworn March 15, 2024, “multiple times.” Upon being asked about her whereabouts on the morning of September 22, 2021, during her cross-examination, Ms. Webb initially maintained, consistent with her affidavits, that she drove her children to school that morning. She testified that she “dropped them off at five minutes to nine.”

[40] However, two questions later, Ms. Webb testified that she did not, in fact, drive her children to school that morning but, rather, her husband did.

[41] In my view, in fairness to Ms. Webb, these type of inconsistences – which would seem to go to her credibility – should be resolved by a credibility analysis conducted by the trial judge after having observed the viva voce testimony of all the witnesses and considered the totality of the evidence.

[42] Interestingly, I note the evidence that on or about December 1, 2021, after the meeting with Mr. Howard and Ms. Landry on November 30, 2021, the plaintiff reached out to Mr. Dave Hyatt, the park manager, to request that he review the security camera footage, which, the plaintiff maintains, would show that Ms. Webb was present at the office on September 22, 2021, when she made the changes to the document. (One question that occurs to me is: if Ms. Webb is correct, as she adamantly maintains, that she was not present at the office on that day, and if the plaintiff, as the defendants assert, knew full well that Ms. Webb was not at the office that day, then why would the plaintiff ask for the video footage in the first place? Just so that she can be told that, as the defendants insist she already knows, there is no video footage of Ms. Webb being at the office that day? That strikes me as curious. However, it appears that line of questions was not pursued on the record before me.)

[43] In any event, the evidence indicates that, in response to the plaintiff’s request, Mr. Hyatt contacted another office staff member (Ms. Robbie Muckle) to ask her if she could forward the video footage in question to the plaintiff. However, Mr. Hyatt’s evidence is that, soon after his request of Ms. Muckle, he then received a text message from Mr. Howard “banning me from releasing any videos requested by members of the park.”

[44] More factual disputes and credibility arise out of the evidence of Ms. Muckle and Mr. DeBurger, the treasurer of the association at the material times.

[45] The evidence of Ms. Muckle, as set out in her affidavit sworn January 5, 2024, is that on August 23, 2021, Mr. DeBurger came into the office looking for records from 2018, 2019, and 2020, and searching for them on the office computer. Ms. Muckle offered assistance to try to help Mr. DeBurger find the records in question.

[46] The evidence of Ms. Muckle is that during the course of the search, Mr. DeBurger said: “well, it should be on this computer. There are no spreadsheets – everything has been deleted. It was all deleted after 12 noon on Sunday.” When Ms. Muckle asked Mr. DeBurger if the computer’s recycle bin was empty, her evidence is that he responded, “no, everything is in there, but Patty must have been trying to hide something or she wouldn’t have deleted it.”

[47] Ms. Muckle’s evidence goes on to indicate that, subsequently, Mr. DeBurger said, “I wonder what Patty and Bob took from the park and deleted everything so no one would know. There is so much deleted off this computer.”

[48] Paragraph 3 of Ms. Muckle’s affidavit sworn January 5, 2024, indicates that on August 23, 2021, Ms. Muckle made a handwritten note of the events that day, a copy of which is attached as an exhibit to her affidavit. The handwritten note does disclose the statements alleged to have been made by Mr. DeBurger as set out above, and at the bottom of the note there appears what would seem to be the signature of Ms. Muckle. However, underneath her signature is written the date of October 1, 2021. As such, the handwritten note would appear to have been made by Ms. Muckle on October 1, 2021, and not on August 23, 2021, as stated in para. 3 of her affidavit.

[49] In any event, in cross-examination, Ms. Muckle confirmed that Mr. DeBurger did in fact make the statements that she recorded in the note attached to her affidavit. She explained that she believed Mr. DeBurger was looking for Excel spreadsheets for those years because the plaintiff was the treasurer for those years and, as Ms. Muckle understood him, Mr. DeBurger believed that the plaintiff deleted the spreadsheets for those years.

[50] The evidence of Ms. Muckle on cross-examination was that the very next day, i.e., on August 24, 2021, she advised the plaintiff of the statements made by Mr. DeBurger the day before. When asked why she felt the need to speak with the plaintiff about what Mr. DeBurger had said, Ms. Muckle replied that “because he was being accusatory and … the information was in the recycle bin … He said it was in the recycle bin, so I just did not feel that he was being fair to her.” She reiterated that, “I did not think he was being fair whenever he said that she, he said that she was trying to hide stuff.” When asked in cross-examination whether she believed that Mr. DeBurger was accusing her of something she did not do, Ms. Muckle answered that she believed “he was accusing her, yeah, of something that, that she would not do.” She confirmed that, in her opinion, Mr. DeBurger was making “false accusations” because “I don’t believe Patty would have done that.”

[51] Mr. DeBurger gave evidence about the same exchange.

[52] In para. 6 of his affidavit sworn January 12, 2024, Mr. DeBurger confirmed that the same handwritten note of Ms. Muckle as attached to her affidavit correctly “captures the essence” of the occasion of August 23, 2021. Paragraph 6 of his affidavit actually refers to “August 27, 2021,” and then, on his cross-examination on that affidavit, the date of August 27, 2021, is, understandably, repeated many times. There is no evidence before me that suggests there were two such exchanges between Ms. Muckle and Mr. DeBurger (on both August 23 and August 27, 2021), and so, whether the date was actually August 23 or 27, 2021 – and that may be yet another detail that should be clarified at trial if the exact date is relevant – the bottom line is that Mr. DeBurger agreed that Ms. Muckle’s note correctly captured the essence of his exchange with her that day.

[53] However, when it was put to Mr. DeBurger on cross-examination that according to Ms. Muckle’s note, he said “but Patty must have been trying to hide something or she would not have deleted it,” Mr. DeBurger responded, “I do not believe I said that.”

[54] Similarly, when asked on cross-examination whether he made the statement “I wonder what Patty and Bob took from the park and deleted everything,” Mr. DeBurger flatly denied, twice, that he made any such statement.

[55] Once again, the court is confronted with a fundamental difference in the factual accounts of two witnesses, such that the court will be required to determine the issue after conducting a credibility analysis. Is Ms. Muckle telling the truth when she says, as recorded in her handwritten note, that she heard Mr. DeBurger make the allegedly defamatory statements? Or is Mr. DeBurger telling the truth when he says he never made those statements? Thus, in addition to the credibility of the plaintiff and Ms. Webb, the court will also have to consider the credibility of Ms. Muckle and Mr. DeBurger.

[56] I pause to repeat that I am highlighting here just some of the examples of the factual disputes between the parties. In my view, the problems in the record reviewed so far justify concluding that the defendants have failed to discharge their burden of establishing that there is no genuine issue requiring a trial. And that is without even considering the evidence of the conduct of and statements made by Mr. Howard, which are also problematic.

[57] In my view, the nature of these factual disputes and credibility challenges are not capable of determination by a motion judge on a summary judgment motion, even using the summary judgment motion judge’s enhanced powers under subrule 20.04(2.1).

[58] Mr. Pickard submits that, to paraphrase, it does not matter because, whatever was said, it was said on an occasion of qualified privilege.

[59] However, Ms. Wolff counters with her argument based on cases like Hunter v. Godin, 2012 ONSC 4774 [17], where the court addressed the limits of the defence of qualified privilege and held that:

The privilege is not absolute, however, and can be defeated if the dominant motive for publishing the statement is actual or express malice. Malice is commonly understood in the popular sense as spite or ill will; it also includes indirect motive or ulterior purposes that conflict with the sense of duty or mutual interest which the occasion created. Qualified privilege may be defeated when the limits of the duty or interests have been exceeded.

[60] In Hunter v. Godin – which, I note, was a decision rendered after a full trial on the merits – the court, having found that the defendant made defamatory statements but that the statements were made on an occasion of qualified privilege, held that the court must then “consider whether or not the privilege was lost due to the fact the statement was not relevant to the duty or interest upon which the privilege was founded, or whether or not the statement was so intemperate that it went beyond what was warranted on the privileged occasion.” [18]

[61] The court in Hunter v. Godin found that it was legitimate for the defendant to inform the union membership that a “raid” had taken place (an application by another competing union to displace the current union as the lawful bargaining agent of the employees), but it was wholly unnecessary to the duty of information to the union membership to refer to the two plaintiffs as “liars.” [19]

[62] In the result, the court found that the defendant’s comments calling the plaintiffs “liars” exceeded any legitimate purpose that the communication otherwise served, that the qualified privilege otherwise attaching to the occasion of the communication was thus defeated, and that it was therefore not necessary to make a finding of actual malice. [20]

[63] By analogy, Ms. Wolff argues here that any defence of qualified privilege is defeated, without even making a finding of actual malice, by looking at the pattern of conduct of the defendant association, Mr. Howard, and Mr. DeBurger, taking into consideration, for example, the plaintiff’s allegations that, inter alia:

a. The defendants failed to conduct a proper and transparent investigation of the complaint against the plaintiff. b. The defendants acted upon an anonymous complaint received by the defendant without disclosing full particulars to the plaintiff, which complaint Mr. Howard clearly understood to be based on hearsay evidence communicated to the anonymous complainant by a third party. c. It appears that Mr. Howard, at least on his own evidence, went out and obtained an opinion from an unnamed lawyer and an unnamed O.P.P. officer concerning the alleged criminality of the plaintiff’s conduct before even first meeting with the plaintiff to obtain her perspective and position on the alleged incidents. d. Mr. Howard exceeded the privilege when he made conclusory statements to the plaintiff at their meeting of November 30, 2021 – being the very first time that the defendants even met with the plaintiff to ask for her side of the story – and while in the presence of Ms. Landry, intimating that the plaintiff had engaged in criminal acts contrary to the Criminal Code, including forgery and fraud. e. Mr. Howard acted unreasonably when, in November 2021, he reviewed the security camera footage of the events of September 22, 2021, multiple times, although admittedly alone and unaccompanied by any other witness, and failed to take steps to secure the video footage even though he knew that the investigation was ongoing, that the footage was relevant to an exculpatory account raised by the plaintiff, and that the footage would be lost after a certain period of time by reason of being “looped” or recorded over. f. In a related vein, Mr. Howard failed to provide for a transparent investigation when he allegedly took active steps (by way of his prohibiting text message to Mr. Hyatt) to preclude the plaintiff from also viewing the very same video footage in question that he himself had viewed (but failed to take steps to secure said video footage before it was lost). g. The plaintiff was given exceedingly short notice of the board meeting scheduled to address the very serious allegations made against her concerning her supposed acts of criminal forgery and fraud, given that on the afternoon of Monday, December 6, 2021, the plaintiff received an email from the defendant association, advising that there would be a special board meeting on Thursday, December 9, 2021, to deal with her alleged improper conduct, and allowing her until Wednesday, December 8, 2021, to provide any response to the allegations – effectively less than 24 hours’ notice. h. Mr. DeBurger exceeded the privilege when he made conclusory statements to Ms. Muckle at their exchange on August 23, 2021 (or thereabouts), that “but Patty must have been trying to hide something or she would not have deleted it” and “I wonder what Patty and Bob took from the park and deleted everything.”

[64] At least at first blush, there is some merit in the response of Ms. Wolff, and, in my view, the plaintiff’s claim that the defendants’ assertion of qualified privilege has been defeated is an issue that should go to trial.

[65] Mr. Pickard also submits that whatever was said, it was said within the confines of the “board of director community,” and that members within that community have a common interest in discussing disciplinary recourse against another member.

[66] Even assuming Mr. Pickard is correct in law on this point, and even assuming further that the defence of qualified privilege is not otherwise defeated for the reasons aforesaid, there is evidence here that the dissemination of the impugned information was not confined to the board but was disclosed to the general community at the park.

[67] It is apparent from the affidavit of Ms. Caroline Klaas sworn March 12, 2024, that during the summer of 2022, Wildwood park members were discussing the plaintiff allegedly being criminally charged, “cooking books,” committing fraud, and the like. The evidence of Ms. Klaas makes it clear that defamatory allegations against the plaintiff had made their way outside the exclusive knowledge of the board and into the domain of the park’s general membership.

[68] Having said that, I appreciate Ms. Pickard’s objection to the hearsay nature of some aspects of Ms. Klaas’s evidence that came out on cross-examination. To my mind, that is an issue that should be sorted out at trial. On the record before me, there is certainly some evidence that the allegations surrounding the plaintiff made their way out into the park’s general membership.

[69] Having considered the totality of the evidence before me on the motion record, given the issues raised by both parties, I am convinced that the summary judgment process would not provide “a proportionate, more expeditious, and less expensive means to achieve a just result” than a trial. [21] I conclude that the fair appreciation of the evidence and issues that is required to make dispositive findings cannot be achieved by way of a motion for summary judgment. [22]

[70] In respect of the Second Action, the defendants submit that the plaintiff’s claims of harassment cannot stand in the face of cases like the Court of Appeal’s decision in Merrifield v. Canada (Attorney General), 2019 ONCA 205 [23]. The plaintiff responds that the Court of Appeal in Merrifield did not completely foreclose an actionable wrong based on harassment [24] and, further, that in cases like Caplan v. Atas, 2021 ONSC 670 [25], the courts have recognized an exception to Merrifield, at least for internet harassment. In my view, in the circumstances of the instant case, the plaintiff’s somewhat novel argument should not be prevented from being presented to a trial judge for determination.

[71] Beyond the plaintiff’s arguments that the instant case should be recognized as presenting an exception to the Merrifield decision, I would note that even if I were minded to dismiss the Second Action on the summary dismissal motion on the basis of the Merrifield principle, given my conclusion that the plaintiff’s claims in the First Action should survive any summary judgment motion, the court would then be faced with, at best, a situation of partial summary judgment. That is, the prospect of a dismissal of the Second Action against the three defendants would not put an end to the litigation between the plaintiff and the defendants.

[72] In other words, even if successful on the Second Action, the claims of the defendants would really result in partial summary judgment only.

[73] And in that regard, I am mindful of the caution that our Court of Appeal has repeatedly expressed regarding the granting of partial summary judgment. In Corchis v. KPMG Peat Marwick Thorne [26], the Court of Appeal held that:

… partial summary judgment ought only to be granted in the clearest of cases where the issue on which judgment is sought is clearly severable from the balance of the case. If this principle is not followed, there is a very real possibility of a trial result that is inconsistent with the result of the summary judgment motion on essentially the same claim.

[74] Subsequently, in Butera v. Chown, Cairns LLP, 2017 ONCA 783 [27], the Court of Appeal ruled that “[t]he caution expressed pre-Hryniak in Corchis is equally applicable in the post-Hryniak world. In addition to the danger of duplicative or inconsistent findings considered in Baywood and CIBC, partial summary judgment raises further problems that are anathema to the stated objectives underlying Hryniak.”

[75] Even more recently, in Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369 [28], the Court of Appeal warned that:

If used imprudently, partial summary judgment can cause delay, increase expense, and increase the danger of inconsistent findings at trial made on a more complete record: Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561 (Ont. C.A.), at paras. 29-33. These risks, which require careful consideration by motion judges, were known before Hryniak and Butera, as illustrated by this court’s decision in Corchis v. KPMG Peat Marwick Thorne, [2002] O.T.C. 475 (Ont. C.A.), at para. 3. For this reason, while partial summary judgment has its place, it “should be considered to be a rare procedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt with expeditiously and in a cost effective manner”: Butera, at para. 34.

[76] In my view, the instant case cannot be said to be either “rare” or “the clearest of cases,” where the issue of whether the plaintiff is entitled to succeed in her claims against the three individual defendants in the Second Action is “clearly severable from the balance of the case.” That is clearly not the case here.

[77] Again, as the Court of Appeal said in Baywood, this court must “assess the advisability of the summary judgment process in the context of the litigation as a whole.” Considering that larger context, I must conclude that the use of the summary judgment process here would not lead to a fair and just result that would serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole.

[78] As such, I would not dismiss the plaintiff’s claims on the basis of the defendant’s request for summary dismissal. I am not satisfied that the defendants have discharged their onus to establish that the plaintiff’s claims should be summarily dismissed.

Conclusion

[79] For all of these reasons, the defendants’ motions for summary dismissal must be dismissed.

[80] Indeed, to my mind, it should have been obvious at the outset that this case was not at all an appropriate candidate for summary judgment, given the significant factual issues in dispute being so numerous and the credibility issues being so obviously acute.

[81] Having said that, to the credit of counsel for the parties, at the court’s invitation, they were able to come to an agreement on the appropriate quantum of costs for this special appointment hearing. I am advised that the parties agreed, inter alia, that if the responding party plaintiff were successful on the motions, she should have her costs of the motions, fixed in the total amount of $12,000, all inclusive. To be clear, the plaintiff is entitled to one payment of $12,000, collectively, for the costs of the two motions for summary judgment brought in the First Action and Second Action.

[82] As such, in accordance with the agreement of the parties, there shall be an order that the defendants shall pay to the plaintiff, on a joint and several basis, her total costs of the motions in the all-inclusive amount of $12,000, within 30 days.

Original signed by “J. Paul R. Howard” J. Paul R. Howard Justice Date: June 3, 2024

[1] Mr. Howard is of no relation. [2] Rules of Civil Procedure, R.R.O. 1990, Reg. 194. [3] TD v. Testa, 2022 ONSC 1576 (S.C.J.), at paras. 41-43. [4] Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 [Hryniak]. [5] Ibid., at para. 5. [6] Ibid., at para. 50. [7] Ibid., at para. 66. [8] Chernet v. RBC General Insurance Company, 2017 ONCA 337, at para. 12. [9] 790668 Ontario Inc. v. D’Andrea, 2014 ONSC 3312 (S.C.J., per Rady J.), at pars. 72 and 117, affirmed 2015 ONCA 557; Gold Leaf Garden Products Ltd. v. Pioner Flower Farms Ltd., 2015 ONCA 365, at para. 14; Ramdial v. Davis (Litigation guardian of), 2015 ONCA 726, 68 R.F.L. (7th) 287, at para. 28, citing Corchis v. KPMG Peat Marwick Thorne, [2002] O.J. No. 1437 (C.A.), at para. 6; and 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 21 O.R. (3d) 547 (C.A.), at para. 35. See also Spencer (Litigation guardian of) v. Switzer, 2014 ONSC 2344, 37 M.P.L.R. (5th) 286 (S.C.J.), at paras. 11-12. [10] Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438 [Baywood], at paras. 33-37. [11] Lang v. Kligerman, [1998] O.J. No. 3708 (C.A.), at para. 9, cited in Hi-Tech Group Inc. v. Sears Canada Inc. (2000), 52 O.R. (3d) 97, 4 C.P.C. (5th) 35 (C.A.), at para. 30 per Morden J.A. [cited to O.R.], quoted in Great America Leasing Corp. v. Yates (2003), 68 O.R. (3d) 225, (C.A.), at paras. 33-35 per Borins J.A. See also Chao v. Chao, 2017 ONCA 701, 99 R.F.L. (7th) 281, at para. 16. [12] See Hryniak, at para. 48. [13] Irving Ungerman Ltd. v. Galanis (1991), 4 O.R. (3d) 545, 1 C.P.C. (3d) 248, 83 D.L.R. (4th) 734 (C.A.), at p. 551e [cited to O.R.]. [14] Dawson v. Rexcraft Storage & Warehouse Inc. (1998), 164 D.L.R. (4th) 257, 20 R.P.R. (3d) 207, 26 C.P.C. (4th) 1 (Ont. C.A.), at para. 20. [15] Ibid., at para. 28. [16] Criminal Code, R.S.C. 1985, c. C-46. [17] Hunter v. Godin, 2012 ONSC 4774, 2012 CarswellOnt 10513 (S.C.J.), at para. 33. [18] Ibid., at para. 41. [19] Ibid., at para. 45. [20] Ibid., at para. 48. [21] Moffitt v. TD Canada Trust, 2023 ONCA 349, 483 D.L.R. (4th) 432, at para. 55. [22] Cosford v. Player, 2012 ONCA 276, at para. 13. [23] Merrifield v. Canada (Attorney General), 2019 ONCA 205, 145 O.R. (3d) 494, 432 D.L.R. (4th) 433 [Merrifield]. [24] Ibid., at para. 53. [25] Caplan v. Atas, 2021 ONSC 670, 71 C.C.L.T. (4th) 36 (S.C.J.). [26] Corchis v. KPMG Peat Marwick Thorne, [2002] O.J. No. 1437 (C.A.) [Corchis], at para. 3. [27] Butera v. Chown, Cairns LLP, 2017 ONCA 783, 137 O.R. (3d) 561, 418 D.L.R. (4th) 657 [Butera], at para. 29, citing, inter alia, Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922, 133 O.R. (3d) 561, 404 D.L.R. (4th) 534. [28] Service Mold + Aerospace Inc. v. Khalaf, 2019 ONCA 369, 146 O.R. (3d) 135, at para. 14.