Robert A. Bongard v. Keith Bullen
COURT FILE NO.: CV-24-00716719-0000 DATE: 20241105
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERT A. BONGARD Plaintiff
– and –
KEITH BULLEN Defendant
Counsel: Self-Represented and appearing in person, plaintiff, Robert A. Bongard Arthur Hamilton and Derek Kim, Lawyers for the Defendant, Keith Bullen
HEARD: August 14, 2024
G. DOW, J.
REASONS FOR DECISION
[1] The defendant, Keith Bullen seeks dismissal of this action under Section 137.1 of the Courts of Justice Act, R.S.O. 1990 c. C.43. That is, the defendant claims this action is an attempt to limit his freedom of expression on a matter of public interest.
Background
[2] The plaintiff is a part-time general contractor apparently residing in an apartment in Toronto. His mother resides in her home in Niagara-on-the-Lake and about two blocks away from the defendant, Keith Bullen and his spouse, Mary Webster. Mr. Bongard’s mother, Keith Bullen and Mary Webster attend the same church in Niagara-on-the-Lake.
[3] Robert Bongard has apparently done other renovation projects in Niagara-on-the-Lake. In 2019, Keith Bullen and his spouse spent a week in a hotel in Havana, Cuba that Robert Bongard apparently renovated and were aware of Robert Bongard’s involvement at that time.
[4] Keith Bullen is an 82 year old retired businessman with some health issues who purchased his house in Niagara-on-the-Lake in June, 2016. He and Mary Webster wished to renovate their kitchen, main foyer and main floor bathroom. They entered into discussions with Robert Bongard which resulted in a written contract dated and signed February 20, 2024 wherein Robert Bongard would complete the renovations agreed to in the amount of $44,400 plus HST (Exhibit “C” to the affidavit of Keith Bullen sworn May 10, 2024). This document sets out 39 steps to be completed, scheduled payments and other mutually agreed upon terms such as the start date for demolition to be mutually agreed upon and “all parties will make a best faith effort to move the project towards completion as quickly as possible”. The first $10,170 payment was made on February 21, 2024 in accordance with the contract. The renovation included Keith Bullen and his spouse moving their kitchen into the basement.
[5] There was also a February 28, 2024 email from Robert Bongard to Mary Webster and copied to Keith Bullen setting out the tentative schedule for the first 16 steps which were to be completed between March 1-12, 2024.
[6] From the affidavit evidence of both parties, the relationship began to sour soon after culminating in Robert Bongard attending on March 8, with a crew to begin demolition and initially being refused entry by Mary Webster on the basis she had a medical appointment that morning. Robert Bongard admitted telling Mary Webster if she did not let the demolition crew inside, “if she breached the contract, there would be litigation” (paragraph 85 of the affidavit of Robert Bongard sworn May 18, 2024). The demolition crew was admitted and work proceeded that day.
[7] Robert Bongard deposed receiving an email at 4:51 pm from Mary Webster which included advising Robert Bongard that given his reference to the litigation, Keith Bullen had “been in touch with his lawyer” (Exhibit “II” to the affidavit Robert Bongard, sworn May 18, 2024).
[8] This resulted in the allegedly offending email of March 9, 2024 referenced in the Amended Statement of Claim. Keith Bullen emailed Mary Webster at 7:39 am. “I would never have hired this person if I knew what terrible actions would come along with him” (at paragraph 6 of the Amended Statement of Claim).
[9] Given completion of the demolition work, the second $10,170 installment was due and paid. By March 12, 2024, the relationship had disintegrated to the point where Mary Webster observed Robert Bongard outside their home, and, along with other concerns, contacted the Niagara Regional Police over safety concerns. This resulted in the police accompanying Robert Bongard to Keith Bullen and Mary Webster’s home to retrieve his tools and return the key he had been given to their home.
[10] Robert Bongard alleges Mary Webster cancelled the contract on March 13, 2024 and, as a result, he requested payment of the balance due.
[11] There is related litigation, Robert Bongard v. Mary Webster, CV-24-00716720 for breach of contract and harassment which is not before me (paragraph 40 factum of Keith Bullen). Why both actions were commenced in Toronto was not made clear. This action was issued on March 18, 2024.
[12] Underlying this litigation, and raised by the parties are comments made by and to each other as of the breakdown of the relationship up to and following issuance and service of the Statement of Claim. Mr. Bongard relies on threats of consulting lawyers, calling the police to question him and having a profanity uttered at him when the Statement of Claim was served. Mr. Bullen relied on comments by Mr. Bongard about his advantage in being an experienced sophisticated, self-represented litigant (which minimizes his legal expenses) his interest and enjoyment in conducting litigation, raising Keith Bullen’s health issues as not conducive to protracted litigation and accumulating litigation expenses as a strategy to extract a settlement offer not based on the merits of the action.
Analysis
[13] Under Section 137.1 of the Courts of Justice Act, supra, the first step to achieve dismissal of this action is for the defendant to establish this litigation arises out of its expression on a matter relating to the public interest. It is clear the law in this area requires, to paraphrase the Supreme Court of Canada in 1704604 Ontario Ltd. v. Pointes Protection Association, 2020 SCC 22 (at paragraphs 20-31), comments may be assessed as a whole and whether a segment of the community would have a general interest in receiving the information. It is to be given a broad interpretation with a focus on what the expression is really about.
[14] Given the March 9, 2024, 7:39 a.m. email in question is between, as described in Keith Bullen’s factum (at paragraph 87) “from husband and wife about their general contractor or renovations to their matrimonial “forever” home”, I have difficulty with the defendant establishing this litigation arises out of expression on a matter of public interest.
[15] To the contrary, there is the concern raised by the plaintiff in the Amended Statement of Claim which alleges the defendant has specified a series of defamatory emails causing damages to the plaintiff’s reputation and a loss of business opportunity (at paragraph 11(a)). The plaintiff goes on to rely on the defendant refusing to answer questions put to him on cross-examination about whether he had spoken to third parties about the events or sent emails to the specified individuals (Bongard factum at paragraphs 118, 126-129). These refusals result in the absence of possible evidence that the expression in question was shared and more likely a matter of public interest.
[16] As the number of decisions on this issue grows, the Court has found a customer or client’s account of how a business treats its customer or client as being a public interest. The defendant relied on two set decisions in support of that position. The decision in Canadian Thermal Windows Inc. v. Seangio, 2021 ONSC 6555 referred to the reasoning in 910938 Ontario Inc. v. Moore, 2020 ONSC 4553 to conclude such complaints were a matter of public interest. However, in the 910938 Ontario Inc. v. Moore, supra decision, the litigation arose from internet postings following a confrontation between the defendant and the owner of the plaintiff’s business (a Plumbing Mart outlet). The postings were well summarized by the motion’s judge as (at paragraph 9) “To say the posts were offensive and virulent fails to do them justice. It was more a personal attack than it was a true review of the Plumbing Mart store”. Following direction to consider the communication “as a whole”, the motion’s judge concluded the expression related to a matter of public interest.
[17] Similarly, in Canadian Thermal Windows Inc. v. Seangio, supra, the action was commenced after the defendant posted “three very negative customer reviews on internet review sites” (at paragraph 1). Again, mindful of not parsing what was posted as between “customer complaints” and a private, personal attack” (at paragraph 90) the conclusion was the expression was a matter of public interest. Internet postings are widely available to the connected public.
[18] The situation before me is different as it falls short of any admitted internet postings available to the general public. To that end, while this first step places the onus on the defendant and is not an onerous one, the question remains what is the expression really about?
[19] I find, taken in its entirety, the allegedly offending sentence is not one of public interest. Rather, it is a private comment between spouses about an individual with whom they contracted to renovate their home and had a falling out. There is no evidence the email was disseminated or available to the public at large.
Conclusion
[20] As a result, the motion by the defendant is dismissed. It is not necessary to proceed with completing the analysis where the onus shifts to the plaintiff under Section 137.1(4) of the Courts of Justice Act, supra where the plaintiff must show the action has substantial merit and the defendant has no valid defences. In addition, an analysis is required of the harm likely suffered by the plaintiff as a result of the defendant’s expression of the matter is sufficiently serious that permitting the action to continue are ways the interest in protecting the defendant’s right to express his view of how the plaintiff operates.
[21] It should be noted the plaintiff raised procedural issues with respect to reliance on how the defendant tendered evidence of statements made by the plaintiff, in writing, portions of which were repeated in a letter from counsel for the defendant to the plaintiff. This secondary letter was attached to the affidavit of the defendant as Exhibit R. Further, an email from the plaintiff to the defendant marked “without prejudice” and containing redactions was tendered (Exhibit J) to the affidavit of the defendant) and contained redactions. The material contained in both communications were not relied on in reaching this decision.
Costs
[22] As required by Rule 57.01(6) the defendant uploaded a Costs Outline and a Bill of Costs in the amount of $47,619 for partial indemnity fees plus HST of $6,276.27 and disbursements of $533.00 for a total of $55,088.27. This represented costs for the entire action given, if successful, the action would have been dismissed. Further, this claim for costs did not include the time expended by senior counsel who argued the motion who confirmed he was assisting the defendant for no fee.
[23] The plaintiff uploaded his Costs Outline purporting to having spent 492 hours defending the motion and requested $75 per hour for a total claim of $36,900. He also identified $1,208.56 in disbursements which appears to represent Official Examiner fees. Given the plaintiff is self represented, I am mindful of the statement in Mustang Investigation v. Ironside et al., 2010 ONSC 3444 (at paragraph 23) that for a self-represented litigant to receive costs, he or she “must demonstrate that he or she devoted time and effort to do the work ordinarily done by a lawyer and that as a result he or she incurred an opportunity costs by foregoing remunerative activity”. It would appear Mr. Bongard has also been made aware of this requirement in his experience as a self-represented litigant given he states having forgone three renovation type contracts in order to prepare and defend this motion. However, no details of the three contracts or profit anticipated was provided. To the contrary, one job is described as being “for his friend Eric” which may mean it was not to be done for any profit.
[24] In addition, the direction under Section 137.1(8) is to not award costs if the proceeding is not dismissed “unless the judge determines that such an award is appropriate in the circumstances”.
[25] As stated in Fortress Real Developments Inc. v. Rabidoux, 2018 ONCA 686, this clause is an important change to the starting point” (at paragraph 65) in fixing costs in these types of matters. However, it does not remove the judicial discretion to impose an appropriate order.
[26] In this regard, the nature and scope of this action does not warrant an entitlement to costs. As a result, in accordance with Section 137.1(8) of the Courts of Justice Act, supra, no costs are awarded.
Mr. Justice G. Dow
Released: November 5, 2024
COURT FILE NO.: CV-24-00716719-0000 DATE: 20241105
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERT A. BONGARD Plaintiff
– and –
KEITH BULLEN Defendant
REASONS FOR DECISION
Mr. Justice G. Dow
Released: November 5, 2024