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Bondfield Construction Company Limited v. The Globe and Mail Inc., 2019 ONCA 166 (Doherty, Pardu and Nordheimer JJ.A.), March 4, 2019; Lascaris v. B’nai Brith Canada, 2019 ONCA 163 (Doherty, Pardu and Nordheimer JJ.A.), March 4, 2019; Levant v. Day, 2019 ONCA 244 (Doherty, Pardu and Nordheimer JJ.A.), March 28, 2019; Montour v. Beacon Publishing Inc., 2019 ONCA 246 (Doherty, Pardu and Nordheimer JJ.A.), March 29, 2019
Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228 (Rouleau, Trotter and Zarnett JJ.A.), March 22, 2019
This decision serves as a caution to lawyers who successfully represent themselves: cost recovery will not be based on their hourly rate but rather will compensate them for lost opportunities to be remunerated for other work.
The appellants appealed from a costs award of $60,583.05 awarded on a partial indemnity basis. The award was made against them following the dismissal of their application to assess the accounts of the respondents --their former lawyers-- after they had been paid and over a year after some of the accounts were issued.
The appellants took the position that the application judge’s award was excessive because it did not take into account the fact that the respondents were representing themselves on the application. They argued that the application judge erred in accepting that there had been lost opportunity costs. The appellants also submitted that the application judge erred in his interpretation of the Court of Appeal’s decision in Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.), asserting that had he properly applied the court’s decision in that case, he would have awarded a lower amount for costs. They maintained that the costs award should be set aside or reduced to a nominal amount of $5,000.
Writing for the Court of Appeal, Rouleau J.A. held that the application judge erred in principle when he treated the respondents as counsel rather than as self-represented litigants. He explained that lawyers who act for themselves must be treated like all self-represented litigants when costs are awarded in their favour. They are not to be paid based on their hourly rate for “lawyer’s work” done on their own case; rather, costs are awarded to compensate them for lost opportunities to earn remuneration from other work.
While he agreed with the appellants that the application judge misapplied Fong, Rouleau J.A. disagreed that the award should be “nominal”. Fong provides that, where a judge determines that an award is warranted and is satisfied that lost opportunity costs have been suffered because the self-represented party has forgone remunerative activity, a “moderate” or “reasonable” allowance should be made to account for the loss of time related to the preparation and presentation of the case. A nominal award is appropriate where there is little evidence of lost opportunity costs, which was not the case here.
The court accordingly set aside the application judge’s costs award and substituted a costs award to the respondents in the amount of $20,000, inclusive of disbursements and HST.
Goldman v. Weinberg, 2019 ONCA 224 (Feldman, Pepall and Nordheimer JJ.A.), March 21, 2019
Aaron Goldman appealed from the order granted by the motion judge that dismissed his action on a summary judgment basis.
The action arose out of two events that involved the appellant and the police defendants, the respondents on appeal. One event arose out of the appellant’s complaint to the Toronto Police that an employee of a company he owned had stolen a large sum of money from him. The police conducted an investigation and concluded that the appellant had not in fact lost anything as a result of the actions of the employee. The other event involved complaints made by the appellant to the Toronto Police and York Regional Police that his step-son was being physically abused by the boy’s father.
The appellant claims that the police were negligent in their investigations of both of these matters.
The motion judge concluded that the appellant’s claims should be summarily dismissed because there was no duty of care owed by the police to the appellant and because the action was commenced after the expiration of the applicable limitation period.
The court dismissed the appeal, holding that the motion judge was correct in concluding that there was no duty of care owed to the appellant by the police services.
In a brief decision, the Court of Appeal noted that it has considered the issue of the duty of care on a number of occasions, including in Norris v. Gatlien (2001), 56 O.R. (3d) 441 (C.A.) and Wellington v. Ontario, 2011 ONCA 274. The appellant’s efforts to distinguish his case from these do not succeed. His claim is neither novel nor exceptional.
McCabe v. Roman Catholic Episcopal Corporation for the Diocese of Toronto, in Canada, 2019 ONCA 213 (Strathy C.J.O., Benotto and Roberts JJ.A.), March 19, 2019
When Robert McCabe was eleven years old, he was sexually abused by a now deceased priest. Years later he sued the appellant, the Roman Catholic Episcopal Corporation for the Diocese of Toronto, for damages.
After years of denying liability, the appellant admitted liability on the first day of trial, leaving the matter of damages as the only issue to be determined at trial. A jury awarded general and aggravated damages of $250,000, damages for loss of income of $280,000, and punitive damages of $15,000.
The appellant submitted before the Court of Appeal that damages were inflated by the jury because of inflammatory remarks the respondent’s counsel made to the jury in closing submissions. It further submitted that the trial judge erred in a ruling on the admissibility of hearsay evidence and that the award for punitive damages was unwarranted.
Writing for the majority on all issues except punitive damages, Benotto J.A. rejected the appellant’s submission that the trial judge erred in excluding the hearsay evidence. She also rejected the claim that the comments that the respondent’s counsel made to the jury caused a miscarriage of justice. Justice Benotto went on to hold that the award of damages was within the permissible range.
Strathy C.J.O. and Roberts J.A. agreed with these conclusions, but differed on the issue of punitive damages.
Writing for the majority on punitive damages, Justice Roberts found that the trial judge erred in leaving this issue to the jury for determination because neither the pleadings nor the facts of the case supported such an award. In doing so, the trial judge effectively created a new and unprecedented category of punitive damages arising out of the timing of the appellant’s admission of liability.
In Roberts J.A.’s view, no reasonable jury, properly instructed, could have made such award. She explained that there is no basis in fact or in law to punish the appellant for not making an earlier admission of liability. Punitive damages cannot be awarded solely for the failure or delay of a defendant to admit liability. To create such a category of punitive damages would undermine the foundation of the litigation process. A defendant is under no obligation to admit liability and may put the plaintiff to the strict proof of his allegations without fear of invoking a punitive damages award.
The respondent claimed that the harm he suffered because of the continued litigation process, which formed the basis for the punitive damages claim left with the jury, was not obviated by the appellant’s admission of liability because he was re-victimized by having to recount his assault. Justice Roberts pointed out, however, that notwithstanding the appellant’s admission of liability, the respondent was still required to go through the painful details of the assaults and their impact on him in order to prove damages. The appellant simply put the respondent to the proof of his case, as it was entitled to do. Roberts J.A. further held that it was procedurally unfair to the appellant to allow the respondent to put forward a new basis for punitive damages that had not been pleaded or alleged until after the trial evidence was completed.
Justice Roberts noted that a defendant’s denial of liability may give rise to a costs sanction, but emphasized that it does not provide, on its own, a basis for a punitive damages award.
In Justice Benotto’s view, the appellant’s decision not to admit responsibility to a vulnerable victim of abuse was uniquely egregious, and the question of punitive damages should have been put to the jury. The claim for punitive damages was based on the fact that the appellant’s failure to admit liability caused the respondent to suffer pain, and the trial judge accepted evidence that it did. Benotto J.A. found that the trial judge’s decision to allow the question to be put to the jury was entirely reasonable and was entitled to deference. With regard to the quantum of punitive damages, Justice Benotto believed that the jury’s award was a symbolic condemnation of the appellant’s conduct in failing to admit liability despite knowledge of additional harm to the respondent, and that to overturn the jury’s determination would be to sanction that conduct.
This appeal is the first case in which a Canadian appellate court was required to determine whether a common law tort of harassment exists. In this important decision, the Court of Appeal affirmed that there is no such tort at this time.
The appeal arose from Peter Merrifield’s claim against the Attorney General and others, alleging harassment and bullying by managerial members of the Royal Canadian Mounted Police. A junior RCMP Constable in 2005, Merrifield was promoted to Corporal in 2009 and Sergeant in 2014.
A forty-day trial was held over a period of seventeen months from November 2014 to April 2016.
In a lengthy decision released in February 2017, the trial judge recognized a new freestanding tort of harassment and found that many of the managerial decisions made in relation to Merrifield constituted harassment. She also found the appellants liable for intentional infliction of mental suffering in relation to one set of interactions. The trial judge awarded Merrifield $100,000 in general damages, $41,000 in special damages, and $825,000 in costs of the action.
The Court of Appeal held that the trial judge erred by recognizing a new tort of harassment.
As the Supreme Court explained in Watkins v. Olafson, [1989] 2 S.C.R. 750, common law change is evolutionary in nature: it proceeds slowly and incrementally as existing principles are extended to new circumstances. The Court of Appeal acknowledged the importance of incremental development of the common law in Jones v. Tsige, 2012 ONCA 32, when it recognized the existence of a tort of intrusion upon seclusion. The court recalled how, in that case, it grounded the new tort in an emerging acceptance of claims for breach of privacy. Sharpe J.A. reviewed Ontario and Canadian jurisprudence, considered academic scholarship, and drew upon the laws of other countries such as the United Kingdom, all of which supported the existence of a right to privacy. Justice Sharpe also noted societal change, and in particular, technological developments that pose a threat to personal privacy, and the impetus for reform that it created. Most importantly, he found that the facts of the cried out for a remedy. As the court explained, its decision in Jones v. Tsige was ultimately couched terms of confirming the existence of the tort rather than simply creating it.
The trial judge relied on four trial decisions proffered by Merrifield as supporting the existence of the tort and establishing its elements: Mainland Sawmills Ltd. et al v. IWA-Canada et al, 2006 BCSC 1195; Savino v. Shelestowsky, 2013 ONSC 4394; McHale v. Ontario, 2014 ONSC 5179; and P.M. v. Evangelista, 2015 ONSC 1419. The Court of Appeal held that the trial judge so erred, however, finding that these cases confirm neither the existence of the tort of harassment nor its elements. In the court’s view, these cases assume rather than establish the existence of the tort. They are not authority for recognizing the existence of a tort of harassment in Ontario, and even less so for establishing either a new tort or its requisite elements.
The court explained that the common law does not and should not function so as to recognize new torts as a matter of judicial discretion, and that a court cannot create new torts any time it considers it appropriate to do so. Unlike in Jones v. Tsige, this is not a case of a culmination of a number of related legal developments. Current Canadian legal authority does not support the recognition of a tort of harassment, and no foreign judicial authority, academic authority or compelling policy rationales were provided to support the recognition of a new tort and its requisite elements. Further, unlike in Jones v. Tsige, where the facts cried out for the creation of novel legal remedy, in this case there are legal remedies available to redress conduct that is alleged to constitute harassment, such as the tort of intentional infliction of mental suffering—a more difficult tort to establish than the one proposed, in part because it is an intentional tort, while harassment would operate as a negligence-based tort.
While it did not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts, the court concluded that the respondent had failed to present a compelling reason to recognize a new tort of harassment in this case.
The Court of Appeal found that the trial judge further erred in applying the test for the intentional infliction of mental suffering. In order to establish the tort of intentional infliction of mental suffering, a plaintiff must establish that the defendant’s conduct was flagrant and outrageous, was calculated to harm the plaintiff, and caused the plaintiff to suffer a visible and provable illness. In the court’s view, the trial judge erred in concluding that the tort was established based solely on the facts of the credit card investigation. The trial judge made palpable and overriding errors in her fact-finding and incorrectly applied the legal test.
The court also held that the trial judge made numerous palpable and overriding errors in her fact-finding, including that she ignored relevant evidence, considered irrelevant matters, and made fact-findings that were clearly wrong. Such errors preclude a conclusion that the respondent was harassed as well as the trial judge’s conclusion that the tort of intentional infliction of mental suffering was established in relation to the credit card investigation or in any other context.
The appeal was allowed and the trial judgment set aside. Merrifield’s cross appeal, seeking an increase in the damages awarded, was dismissed.
Bondfield Construction Company Limited v. The Globe and Mail Inc., 2019 ONCA 166 (Doherty, Pardu and Nordheimer JJ.A.), March 4, 2019; Lascaris v. B’nai Brith Canada, 2019 ONCA 163 (Doherty, Pardu and Nordheimer JJ.A.), March 4, 2019; Levant v. Day, 2019 ONCA 244 (Doherty, Pardu and Nordheimer JJ.A.), March 28, 2019; Montour v. Beacon Publishing Inc., 2019 ONCA 246 (Doherty, Pardu and Nordheimer JJ.A.), March 29, 2019
Our fifth case is four cases for the price of one, as the Court of Appeal has started to apply its recent decision in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685 to defamation cases that have made their way to appeal. The highlight of a series of defamation appeals, Pointes clarified the interpretation of section 137 of the Courts of Justice Act, R.S.O. 1990, c. C.43, known as the Strategic Litigation against Public Participation or Anti-SLAPP provisions. As the Court of Appeal explained in Pointes:
The onus rests on the plaintiff to convince the motion judge that, looking at the motion record through the reasonableness lens, a trier could conclude that none of the defences advanced would succeed.
Last month, the Court of Appeal released decisions in four defamation cases: Bondfield Construction Company Limited v. The Globe and Mail Inc., Lascaris v. B’nai Brith Canada, Levant v. Day, and Montour v. Beacon Publishing Inc. The results of the cases are fact-dependant but, in the end, none of the proceedings was dismissed under the Anti-SLAPP provisions.
Bondfield Construction Company Limited v. The Globe and Mail Inc. arose from the respondent’s publishing of a series of articles about the appellant’s successful bid on a $300 million contract to build a new critical care facility at St. Michael’s Hospital in Toronto. The articles addressed the connection between the appellant and its president, John Aquino, with Vas Georgiou, a senior executive at St. Mike’s who was on the committee that awarded the construction contract to the appellant.
The appellant sued the respondent for $125 million, asserting that the respondent’s articles falsely alleged a corrupt connection between Aquino and Georgiou that had played a role in the appellant obtaining the contract. The respondent defended on the basis that the articles were not defamatory, but rather focused on Georgiou’s checkered past and the undisclosed conflict of interest in the bidding process flowing from Georgiou’s and Aquino’s common business interests.
The respondent brought a motion under section 137.1 of the Courts of Justice Act to dismiss the appellant’s action, claiming that the lawsuit was brought to silence it on matters of significant public importance. The motion judge allowed the respondent’s motion and dismissed the action.
The appellant appealed the decision on the basis that the motion judge misinterpreted the anti-SLAPP provisions, and in particular, subsection 137.1(4)(a)(ii).
The Court of Appeal agreed with the appellant that had the motion judge had the benefit of the sextet of decisions headlined by Pointes, the respondent’s motion would have failed.
The motion judge placed the onus on the appellant to show that the respondent did not have a valid defence. However, as explained in Pointes, subsection 137.1(4)(a)(ii) imposes a significantly less onerous burden on the appellant. The appellant was required to show that a reasonable trier could conclude that the respondent did not have a valid defence. The appellant would meet that onus if it showed that a reasonable trier could reject all of the various defences put in play by the respondent. In the court’s view, if the motion judge had the benefit of the analysis in Pointes, he would have found that the appellant had met its onus.
The court held that the claim should not have been dismissed on the “public interest” balancing provided for in subsection 137.1(4)(b), noting that there was no history of the appellant using litigation or the threat of litigation to silence critics. There was also no financial or other power imbalance that favoured the appellant over the respondent, nor any suggestion of any punitive or retributory purpose motivating the appellant’s lawsuit. To that end, there was also nothing on the record that suggested that the respondent was motivated by anything other than a desire to inform the public about the facts that their investigation revealed. The articles did not contain any deliberate falsehoods, hyperbole, personal attack, or other characteristics that would diminish public interest in protecting their expression.
In Lascaris v. B’nai Brith Canada, the appellant Dimitri Lascaris also appealed from the dismissal of his action pursuant to section 137.1 of the Courts of Justice Act. Justice Critic in the Green Party of Canada’s shadow cabinet, Lascaris advanced a resolution calling on the Green Party to support the use of peaceful boycott, divestment and sanctions to bring an end to Israel’s occupation of Palestinian territories. The respondent, an independent charitable organization involved in human rights and advocacy initiatives for the Canadian Jewish community, then began a campaign against the appellant, the Green Party, and others related to the resolution, stating that the resolution was anti-Semitic. The respondent published an article entitled “Green Party Justice Critic Advocates on Behalf of Terrorists”. The appellant later discovered another publication on the respondent’s Twitter account, stating: “[the appellant] resorts to supporting #terrorists in his desperation to delegitimize the State of #Israel”. The tweet contained a link to the respondent’s article.
The appellant commenced an action against the respondent under section 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12. The respondent defended the claim, and successfully brought a motion to dismiss the action under the Anti-SLAPP provisions of the Courts of Justice Act.
Like the motion judge in Bondfield, the motion judge in Lascaris interpreted section 137.1(4)(a)(ii) of the CJA as imposing a burden on the appellant to demonstrate that none of the defences raised by the respondent “could possibly succeed”. Finding that the appellant faced an “insurmountable hurdle” on this test with respect to the defence of fair comment, she did not deal with the respondent’s justification, qualified privilege or notice defences. The motion judge also did not consider the “balancing” part of the test set out in section 137.1(4)(b).
The Court of Appeal held that the motion judge erred in granting the motion and dismissing the appellant’s action. As in Bondfield, the court stated that the burden under section 137.1(4)(a)(ii) is not to show that a defence has no hope of success, but rather to show that it is possible that a defence would not succeed. A reasonable trier of fact could conclude that the defence of fair comment would not succeed in this case because it would be open to a trier to conclude that the statements that the appellant supported terrorists were uttered as statements of fact, or that a person could not honestly express that opinion based on the proved facts.
The court found that, for the same reasons considered with respect to the defence of fair comment, it would be open to a trier to find that it was possible that the defence of justification would not succeed. Considering the defence of qualified privilege, the court explained that in order for it to apply, the respondent must have an interest or a duty to make the impugned statements to the person to whom they were made. The court found that it was unclear what duty the respondent could point to in order to qualify its statements. Based on this analysis, the court held that the appellant had met his burden under section 137.1(4)(a)(ii) that a reasonable trier might conclude that none of the defences advanced would succeed. Turning finally to the balancing requirement under section 137.1(4)(b), the court found that the balance clearly favoured the appellant because if the appellant’s action proceeded and was ultimately successful, the damages to which he would be entitled could be significant.
The parties in Levant v. Day are from opposite ends of the “Twitterverse”. The respondent, Ezra Levant, is the principal of Rebel News, an online media outlet that comments on political and social issues, espousing right-wing or right-leaning views. The appellant, Robert Day, maintains a blog called “Canadian Cynic”. He expresses his progressive or left-wing views almost exclusively on Twitter.
When the appellant posted highly critical tweets of the respondent and of Rebel News relating to their campaign to raise money for victims of the Fort McMurray forest fires, the respondent brought an action against him for defamation.
The appellant appealed the decision of a motion judge refusing to dismiss the action pursuant to section 137.1 of the Courts of Justice Act. He submitted that the motion judge erred in concluding that (i) his tweets did not relate to a matter of public interest, (ii) the defence of fair comment was not available to him and the notice provisions of the Libel and Slander Act are inapplicable to Internet publications, and (iii) the public interest in allowing the proceeding to continue outweighed the public interest in protecting the appellant’s expression.
The Court of Appeal held that the motion judge erred in finding that the appellant’s tweets did not relate to a matter of public interest. The court noted that the appellant’s tweets, when taken as a whole and in context, are about the legitimacy of the respondent’s fundraising campaign, the benefits which should properly flow to victims of the Fort McMurray forest fires from charitable contributions and the treatment of donor contributions. These “indisputably” relate to a matter of public interest.
The court went on to find that the respondent met the test in section 137.1(4)(a)(ii) of the CJA in demonstrating that a conclusion that the appellant had no defence to the action was amongst the range of reasonable conclusions. The court concluded that that on balance, the respondent established that the harm likely to be suffered, or which had been suffered, was sufficiently serious that the public interest in allowing the proceeding to continue outweighed the public interest in protecting the appellant’s expression. The alleged defamatory statements attributed serious criminality to the respondent and, given that the appellant had 11,000 followers on Twitter, there was no indication that they were made to a small group and quickly retracted. The court noted that the appellant engaged in a sustained attack upon the respondent and that the Tweets were imbued with hyperbole and vulgar vitriol.
Montour v. Beacon Publishing Inc. arose when the appellant Beacon Publishing Inc. published an article written by the appellant Edward Myers in a magazine entitled “FrontLine Security”. The thrust of the article is that contraband tobacco is associated with organized crime, smuggling and terrorism. Beside a passage which linked crime to cigarettes manufactured in Ontario was a photograph of a brand of cigarettes manufactured by the respondent corporation, Grand River Enterprises Six Nations Ltd. The article went on to connect the respondent corporation to smuggled goods in Costa Rica and in Mexico, and to connect both the respondent corporation and its CEO, the respondent Jerry Montour, to black market cannabis cultivation.
The publication is distributed to members of Parliament and Cabinet, provincial legislatures and industry executives in the fields of national and border security, policing, infrastructure security, IT security, emergency preparedness and tax and trade policy. This particular article was also distributed to local farmers who supplied the respondent corporation with raw tobacco.
The motion judge dismissed the appellants’ motion to summarily dismiss the action. He concluded that the vast majority of the issues dealt with in the publication are matters of public interest, particularly the issues surrounding contraband tobacco. He found that there was no doubt that the words complained of were published and named the respondents. He also indicated that the references to the respondents smuggling contraband tobacco and being involved with organized crime were clearly defamatory. He therefore concluded that the claim had substantial merit. The motion judge dealt with four defences raised by the appellants --justification, responsible communication, qualified privilege and fair comment-- and concluded that none of them were made out on the evidence.
The Court of Appeal rejected the appellants’ submission that the motion judge failed to balance the public interest in protecting the expression in their article about contraband tobacco against the harm suffered by the respondents. While the motion judge found that the subject of contraband tobacco is a matter of general importance, he observed that the statements about the respondents were highly defamatory, uncorroborated allegations published with non-existent due diligence and that there was no public interest in receiving such allegations. He also found that the allegations of criminality were so serious that they would likely damage anyone’s reputation and standing in their community and that the respondents had shown credible and compelling evidence of harm because the publication was targeted at their suppliers and because it remained available on the Internet.
The court also rejected the appellants’ claim that the motion judge erred in concluding that presumed damages could amount to harm suffered by the respondents where there was no evidence of financial loss, nor any specific evidence that the respondents’ reputation was diminished on account of their actions. In this case, the presumed harm resulting from such serious statements may be weighed in the balance of public interest and harm even where there is no evidence of pecuniary loss or direct evidence about damage to reputation.
Finally, the court rejected the appellants’ submission that the motion judge erred in concluding that the defence of justification was insufficient to bar continuation of the action. The appellants’ statements linking the respondents to criminal activity were based on statements attributed to others, which were of unknown value and which did not obviously support the appellants’ conclusions. A reasonable trier could conclude that the appellants did not have a valid defence of justification.
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Benarroch v. Fred Tayar & Associates P.C., 2019 ONCA 228 (Rouleau, Trotter and Zarnett JJ.A.), March 22, 2019
This decision serves as a caution to lawyers who successfully represent themselves: cost recovery will not be based on their hourly rate but rather will compensate them for lost opportunities to be remunerated for other work.
The appellants appealed from a costs award of $60,583.05 awarded on a partial indemnity basis. The award was made against them following the dismissal of their application to assess the accounts of the respondents --their former lawyers-- after they had been paid and over a year after some of the accounts were issued.
The appellants took the position that the application judge’s award was excessive because it did not take into account the fact that the respondents were representing themselves on the application. They argued that the application judge erred in accepting that there had been lost opportunity costs. The appellants also submitted that the application judge erred in his interpretation of the Court of Appeal’s decision in Fong v. Chan (1999), 46 O.R. (3d) 330 (C.A.), asserting that had he properly applied the court’s decision in that case, he would have awarded a lower amount for costs. They maintained that the costs award should be set aside or reduced to a nominal amount of $5,000.
Writing for the Court of Appeal, Rouleau J.A. held that the application judge erred in principle when he treated the respondents as counsel rather than as self-represented litigants. He explained that lawyers who act for themselves must be treated like all self-represented litigants when costs are awarded in their favour. They are not to be paid based on their hourly rate for “lawyer’s work” done on their own case; rather, costs are awarded to compensate them for lost opportunities to earn remuneration from other work.
While he agreed with the appellants that the application judge misapplied Fong, Rouleau J.A. disagreed that the award should be “nominal”. Fong provides that, where a judge determines that an award is warranted and is satisfied that lost opportunity costs have been suffered because the self-represented party has forgone remunerative activity, a “moderate” or “reasonable” allowance should be made to account for the loss of time related to the preparation and presentation of the case. A nominal award is appropriate where there is little evidence of lost opportunity costs, which was not the case here.
The court accordingly set aside the application judge’s costs award and substituted a costs award to the respondents in the amount of $20,000, inclusive of disbursements and HST.
Goldman v. Weinberg, 2019 ONCA 224 (Feldman, Pepall and Nordheimer JJ.A.), March 21, 2019
Aaron Goldman appealed from the order granted by the motion judge that dismissed his action on a summary judgment basis.
The action arose out of two events that involved the appellant and the police defendants, the respondents on appeal. One event arose out of the appellant’s complaint to the Toronto Police that an employee of a company he owned had stolen a large sum of money from him. The police conducted an investigation and concluded that the appellant had not in fact lost anything as a result of the actions of the employee. The other event involved complaints made by the appellant to the Toronto Police and York Regional Police that his step-son was being physically abused by the boy’s father.
The appellant claims that the police were negligent in their investigations of both of these matters.
The motion judge concluded that the appellant’s claims should be summarily dismissed because there was no duty of care owed by the police to the appellant and because the action was commenced after the expiration of the applicable limitation period.
The court dismissed the appeal, holding that the motion judge was correct in concluding that there was no duty of care owed to the appellant by the police services.
In a brief decision, the Court of Appeal noted that it has considered the issue of the duty of care on a number of occasions, including in Norris v. Gatlien (2001), 56 O.R. (3d) 441 (C.A.) and Wellington v. Ontario, 2011 ONCA 274. The appellant’s efforts to distinguish his case from these do not succeed. His claim is neither novel nor exceptional.
McCabe v. Roman Catholic Episcopal Corporation for the Diocese of Toronto, in Canada, 2019 ONCA 213 (Strathy C.J.O., Benotto and Roberts JJ.A.), March 19, 2019
When Robert McCabe was eleven years old, he was sexually abused by a now deceased priest. Years later he sued the appellant, the Roman Catholic Episcopal Corporation for the Diocese of Toronto, for damages.
After years of denying liability, the appellant admitted liability on the first day of trial, leaving the matter of damages as the only issue to be determined at trial. A jury awarded general and aggravated damages of $250,000, damages for loss of income of $280,000, and punitive damages of $15,000.
The appellant submitted before the Court of Appeal that damages were inflated by the jury because of inflammatory remarks the respondent’s counsel made to the jury in closing submissions. It further submitted that the trial judge erred in a ruling on the admissibility of hearsay evidence and that the award for punitive damages was unwarranted.
Writing for the majority on all issues except punitive damages, Benotto J.A. rejected the appellant’s submission that the trial judge erred in excluding the hearsay evidence. She also rejected the claim that the comments that the respondent’s counsel made to the jury caused a miscarriage of justice. Justice Benotto went on to hold that the award of damages was within the permissible range.
Strathy C.J.O. and Roberts J.A. agreed with these conclusions, but differed on the issue of punitive damages.
Writing for the majority on punitive damages, Justice Roberts found that the trial judge erred in leaving this issue to the jury for determination because neither the pleadings nor the facts of the case supported such an award. In doing so, the trial judge effectively created a new and unprecedented category of punitive damages arising out of the timing of the appellant’s admission of liability.
In Roberts J.A.’s view, no reasonable jury, properly instructed, could have made such award. She explained that there is no basis in fact or in law to punish the appellant for not making an earlier admission of liability. Punitive damages cannot be awarded solely for the failure or delay of a defendant to admit liability. To create such a category of punitive damages would undermine the foundation of the litigation process. A defendant is under no obligation to admit liability and may put the plaintiff to the strict proof of his allegations without fear of invoking a punitive damages award.
The respondent claimed that the harm he suffered because of the continued litigation process, which formed the basis for the punitive damages claim left with the jury, was not obviated by the appellant’s admission of liability because he was re-victimized by having to recount his assault. Justice Roberts pointed out, however, that notwithstanding the appellant’s admission of liability, the respondent was still required to go through the painful details of the assaults and their impact on him in order to prove damages. The appellant simply put the respondent to the proof of his case, as it was entitled to do. Roberts J.A. further held that it was procedurally unfair to the appellant to allow the respondent to put forward a new basis for punitive damages that had not been pleaded or alleged until after the trial evidence was completed.
Justice Roberts noted that a defendant’s denial of liability may give rise to a costs sanction, but emphasized that it does not provide, on its own, a basis for a punitive damages award.
In Justice Benotto’s view, the appellant’s decision not to admit responsibility to a vulnerable victim of abuse was uniquely egregious, and the question of punitive damages should have been put to the jury. The claim for punitive damages was based on the fact that the appellant’s failure to admit liability caused the respondent to suffer pain, and the trial judge accepted evidence that it did. Benotto J.A. found that the trial judge’s decision to allow the question to be put to the jury was entirely reasonable and was entitled to deference. With regard to the quantum of punitive damages, Justice Benotto believed that the jury’s award was a symbolic condemnation of the appellant’s conduct in failing to admit liability despite knowledge of additional harm to the respondent, and that to overturn the jury’s determination would be to sanction that conduct.
This appeal is the first case in which a Canadian appellate court was required to determine whether a common law tort of harassment exists. In this important decision, the Court of Appeal affirmed that there is no such tort at this time.
The appeal arose from Peter Merrifield’s claim against the Attorney General and others, alleging harassment and bullying by managerial members of the Royal Canadian Mounted Police. A junior RCMP Constable in 2005, Merrifield was promoted to Corporal in 2009 and Sergeant in 2014.
A forty-day trial was held over a period of seventeen months from November 2014 to April 2016.
In a lengthy decision released in February 2017, the trial judge recognized a new freestanding tort of harassment and found that many of the managerial decisions made in relation to Merrifield constituted harassment. She also found the appellants liable for intentional infliction of mental suffering in relation to one set of interactions. The trial judge awarded Merrifield $100,000 in general damages, $41,000 in special damages, and $825,000 in costs of the action.
The Court of Appeal held that the trial judge erred by recognizing a new tort of harassment.
As the Supreme Court explained in Watkins v. Olafson, [1989] 2 S.C.R. 750, common law change is evolutionary in nature: it proceeds slowly and incrementally as existing principles are extended to new circumstances. The Court of Appeal acknowledged the importance of incremental development of the common law in Jones v. Tsige, 2012 ONCA 32, when it recognized the existence of a tort of intrusion upon seclusion. The court recalled how, in that case, it grounded the new tort in an emerging acceptance of claims for breach of privacy. Sharpe J.A. reviewed Ontario and Canadian jurisprudence, considered academic scholarship, and drew upon the laws of other countries such as the United Kingdom, all of which supported the existence of a right to privacy. Justice Sharpe also noted societal change, and in particular, technological developments that pose a threat to personal privacy, and the impetus for reform that it created. Most importantly, he found that the facts of the cried out for a remedy. As the court explained, its decision in Jones v. Tsige was ultimately couched terms of confirming the existence of the tort rather than simply creating it.
The trial judge relied on four trial decisions proffered by Merrifield as supporting the existence of the tort and establishing its elements: Mainland Sawmills Ltd. et al v. IWA-Canada et al, 2006 BCSC 1195; Savino v. Shelestowsky, 2013 ONSC 4394; McHale v. Ontario, 2014 ONSC 5179; and P.M. v. Evangelista, 2015 ONSC 1419. The Court of Appeal held that the trial judge so erred, however, finding that these cases confirm neither the existence of the tort of harassment nor its elements. In the court’s view, these cases assume rather than establish the existence of the tort. They are not authority for recognizing the existence of a tort of harassment in Ontario, and even less so for establishing either a new tort or its requisite elements.
The court explained that the common law does not and should not function so as to recognize new torts as a matter of judicial discretion, and that a court cannot create new torts any time it considers it appropriate to do so. Unlike in Jones v. Tsige, this is not a case of a culmination of a number of related legal developments. Current Canadian legal authority does not support the recognition of a tort of harassment, and no foreign judicial authority, academic authority or compelling policy rationales were provided to support the recognition of a new tort and its requisite elements. Further, unlike in Jones v. Tsige, where the facts cried out for the creation of novel legal remedy, in this case there are legal remedies available to redress conduct that is alleged to constitute harassment, such as the tort of intentional infliction of mental suffering—a more difficult tort to establish than the one proposed, in part because it is an intentional tort, while harassment would operate as a negligence-based tort.
While it did not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts, the court concluded that the respondent had failed to present a compelling reason to recognize a new tort of harassment in this case.
The Court of Appeal found that the trial judge further erred in applying the test for the intentional infliction of mental suffering. In order to establish the tort of intentional infliction of mental suffering, a plaintiff must establish that the defendant’s conduct was flagrant and outrageous, was calculated to harm the plaintiff, and caused the plaintiff to suffer a visible and provable illness. In the court’s view, the trial judge erred in concluding that the tort was established based solely on the facts of the credit card investigation. The trial judge made palpable and overriding errors in her fact-finding and incorrectly applied the legal test.
The court also held that the trial judge made numerous palpable and overriding errors in her fact-finding, including that she ignored relevant evidence, considered irrelevant matters, and made fact-findings that were clearly wrong. Such errors preclude a conclusion that the respondent was harassed as well as the trial judge’s conclusion that the tort of intentional infliction of mental suffering was established in relation to the credit card investigation or in any other context.
The appeal was allowed and the trial judgment set aside. Merrifield’s cross appeal, seeking an increase in the damages awarded, was dismissed.
Bondfield Construction Company Limited v. The Globe and Mail Inc., 2019 ONCA 166 (Doherty, Pardu and Nordheimer JJ.A.), March 4, 2019; Lascaris v. B’nai Brith Canada, 2019 ONCA 163 (Doherty, Pardu and Nordheimer JJ.A.), March 4, 2019; Levant v. Day, 2019 ONCA 244 (Doherty, Pardu and Nordheimer JJ.A.), March 28, 2019; Montour v. Beacon Publishing Inc., 2019 ONCA 246 (Doherty, Pardu and Nordheimer JJ.A.), March 29, 2019
Our fifth case is four cases for the price of one, as the Court of Appeal has started to apply its recent decision in 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685 to defamation cases that have made their way to appeal. The highlight of a series of defamation appeals, Pointes clarified the interpretation of section 137 of the Courts of Justice Act, R.S.O. 1990, c. C.43, known as the Strategic Litigation against Public Participation or Anti-SLAPP provisions. As the Court of Appeal explained in Pointes:
The onus rests on the plaintiff to convince the motion judge that, looking at the motion record through the reasonableness lens, a trier could conclude that none of the defences advanced would succeed.
Last month, the Court of Appeal released decisions in four defamation cases: Bondfield Construction Company Limited v. The Globe and Mail Inc., Lascaris v. B’nai Brith Canada, Levant v. Day, and Montour v. Beacon Publishing Inc. The results of the cases are fact-dependant but, in the end, none of the proceedings was dismissed under the Anti-SLAPP provisions.
Bondfield Construction Company Limited v. The Globe and Mail Inc. arose from the respondent’s publishing of a series of articles about the appellant’s successful bid on a $300 million contract to build a new critical care facility at St. Michael’s Hospital in Toronto. The articles addressed the connection between the appellant and its president, John Aquino, with Vas Georgiou, a senior executive at St. Mike’s who was on the committee that awarded the construction contract to the appellant.
The appellant sued the respondent for $125 million, asserting that the respondent’s articles falsely alleged a corrupt connection between Aquino and Georgiou that had played a role in the appellant obtaining the contract. The respondent defended on the basis that the articles were not defamatory, but rather focused on Georgiou’s checkered past and the undisclosed conflict of interest in the bidding process flowing from Georgiou’s and Aquino’s common business interests.
The respondent brought a motion under section 137.1 of the Courts of Justice Act to dismiss the appellant’s action, claiming that the lawsuit was brought to silence it on matters of significant public importance. The motion judge allowed the respondent’s motion and dismissed the action.
The appellant appealed the decision on the basis that the motion judge misinterpreted the anti-SLAPP provisions, and in particular, subsection 137.1(4)(a)(ii).
The Court of Appeal agreed with the appellant that had the motion judge had the benefit of the sextet of decisions headlined by Pointes, the respondent’s motion would have failed.
The motion judge placed the onus on the appellant to show that the respondent did not have a valid defence. However, as explained in Pointes, subsection 137.1(4)(a)(ii) imposes a significantly less onerous burden on the appellant. The appellant was required to show that a reasonable trier could conclude that the respondent did not have a valid defence. The appellant would meet that onus if it showed that a reasonable trier could reject all of the various defences put in play by the respondent. In the court’s view, if the motion judge had the benefit of the analysis in Pointes, he would have found that the appellant had met its onus.
The court held that the claim should not have been dismissed on the “public interest” balancing provided for in subsection 137.1(4)(b), noting that there was no history of the appellant using litigation or the threat of litigation to silence critics. There was also no financial or other power imbalance that favoured the appellant over the respondent, nor any suggestion of any punitive or retributory purpose motivating the appellant’s lawsuit. To that end, there was also nothing on the record that suggested that the respondent was motivated by anything other than a desire to inform the public about the facts that their investigation revealed. The articles did not contain any deliberate falsehoods, hyperbole, personal attack, or other characteristics that would diminish public interest in protecting their expression.
In Lascaris v. B’nai Brith Canada, the appellant Dimitri Lascaris also appealed from the dismissal of his action pursuant to section 137.1 of the Courts of Justice Act. Justice Critic in the Green Party of Canada’s shadow cabinet, Lascaris advanced a resolution calling on the Green Party to support the use of peaceful boycott, divestment and sanctions to bring an end to Israel’s occupation of Palestinian territories. The respondent, an independent charitable organization involved in human rights and advocacy initiatives for the Canadian Jewish community, then began a campaign against the appellant, the Green Party, and others related to the resolution, stating that the resolution was anti-Semitic. The respondent published an article entitled “Green Party Justice Critic Advocates on Behalf of Terrorists”. The appellant later discovered another publication on the respondent’s Twitter account, stating: “[the appellant] resorts to supporting #terrorists in his desperation to delegitimize the State of #Israel”. The tweet contained a link to the respondent’s article.
The appellant commenced an action against the respondent under section 5(1) of the Libel and Slander Act, R.S.O. 1990, c. L.12. The respondent defended the claim, and successfully brought a motion to dismiss the action under the Anti-SLAPP provisions of the Courts of Justice Act.
Like the motion judge in Bondfield, the motion judge in Lascaris interpreted section 137.1(4)(a)(ii) of the CJA as imposing a burden on the appellant to demonstrate that none of the defences raised by the respondent “could possibly succeed”. Finding that the appellant faced an “insurmountable hurdle” on this test with respect to the defence of fair comment, she did not deal with the respondent’s justification, qualified privilege or notice defences. The motion judge also did not consider the “balancing” part of the test set out in section 137.1(4)(b).
The Court of Appeal held that the motion judge erred in granting the motion and dismissing the appellant’s action. As in Bondfield, the court stated that the burden under section 137.1(4)(a)(ii) is not to show that a defence has no hope of success, but rather to show that it is possible that a defence would not succeed. A reasonable trier of fact could conclude that the defence of fair comment would not succeed in this case because it would be open to a trier to conclude that the statements that the appellant supported terrorists were uttered as statements of fact, or that a person could not honestly express that opinion based on the proved facts.
The court found that, for the same reasons considered with respect to the defence of fair comment, it would be open to a trier to find that it was possible that the defence of justification would not succeed. Considering the defence of qualified privilege, the court explained that in order for it to apply, the respondent must have an interest or a duty to make the impugned statements to the person to whom they were made. The court found that it was unclear what duty the respondent could point to in order to qualify its statements. Based on this analysis, the court held that the appellant had met his burden under section 137.1(4)(a)(ii) that a reasonable trier might conclude that none of the defences advanced would succeed. Turning finally to the balancing requirement under section 137.1(4)(b), the court found that the balance clearly favoured the appellant because if the appellant’s action proceeded and was ultimately successful, the damages to which he would be entitled could be significant.
The parties in Levant v. Day are from opposite ends of the “Twitterverse”. The respondent, Ezra Levant, is the principal of Rebel News, an online media outlet that comments on political and social issues, espousing right-wing or right-leaning views. The appellant, Robert Day, maintains a blog called “Canadian Cynic”. He expresses his progressive or left-wing views almost exclusively on Twitter.
When the appellant posted highly critical tweets of the respondent and of Rebel News relating to their campaign to raise money for victims of the Fort McMurray forest fires, the respondent brought an action against him for defamation.
The appellant appealed the decision of a motion judge refusing to dismiss the action pursuant to section 137.1 of the Courts of Justice Act. He submitted that the motion judge erred in concluding that (i) his tweets did not relate to a matter of public interest, (ii) the defence of fair comment was not available to him and the notice provisions of the Libel and Slander Act are inapplicable to Internet publications, and (iii) the public interest in allowing the proceeding to continue outweighed the public interest in protecting the appellant’s expression.
The Court of Appeal held that the motion judge erred in finding that the appellant’s tweets did not relate to a matter of public interest. The court noted that the appellant’s tweets, when taken as a whole and in context, are about the legitimacy of the respondent’s fundraising campaign, the benefits which should properly flow to victims of the Fort McMurray forest fires from charitable contributions and the treatment of donor contributions. These “indisputably” relate to a matter of public interest.
The court went on to find that the respondent met the test in section 137.1(4)(a)(ii) of the CJA in demonstrating that a conclusion that the appellant had no defence to the action was amongst the range of reasonable conclusions. The court concluded that that on balance, the respondent established that the harm likely to be suffered, or which had been suffered, was sufficiently serious that the public interest in allowing the proceeding to continue outweighed the public interest in protecting the appellant’s expression. The alleged defamatory statements attributed serious criminality to the respondent and, given that the appellant had 11,000 followers on Twitter, there was no indication that they were made to a small group and quickly retracted. The court noted that the appellant engaged in a sustained attack upon the respondent and that the Tweets were imbued with hyperbole and vulgar vitriol.
Montour v. Beacon Publishing Inc. arose when the appellant Beacon Publishing Inc. published an article written by the appellant Edward Myers in a magazine entitled “FrontLine Security”. The thrust of the article is that contraband tobacco is associated with organized crime, smuggling and terrorism. Beside a passage which linked crime to cigarettes manufactured in Ontario was a photograph of a brand of cigarettes manufactured by the respondent corporation, Grand River Enterprises Six Nations Ltd. The article went on to connect the respondent corporation to smuggled goods in Costa Rica and in Mexico, and to connect both the respondent corporation and its CEO, the respondent Jerry Montour, to black market cannabis cultivation.
The publication is distributed to members of Parliament and Cabinet, provincial legislatures and industry executives in the fields of national and border security, policing, infrastructure security, IT security, emergency preparedness and tax and trade policy. This particular article was also distributed to local farmers who supplied the respondent corporation with raw tobacco.
The motion judge dismissed the appellants’ motion to summarily dismiss the action. He concluded that the vast majority of the issues dealt with in the publication are matters of public interest, particularly the issues surrounding contraband tobacco. He found that there was no doubt that the words complained of were published and named the respondents. He also indicated that the references to the respondents smuggling contraband tobacco and being involved with organized crime were clearly defamatory. He therefore concluded that the claim had substantial merit. The motion judge dealt with four defences raised by the appellants --justification, responsible communication, qualified privilege and fair comment-- and concluded that none of them were made out on the evidence.
The Court of Appeal rejected the appellants’ submission that the motion judge failed to balance the public interest in protecting the expression in their article about contraband tobacco against the harm suffered by the respondents. While the motion judge found that the subject of contraband tobacco is a matter of general importance, he observed that the statements about the respondents were highly defamatory, uncorroborated allegations published with non-existent due diligence and that there was no public interest in receiving such allegations. He also found that the allegations of criminality were so serious that they would likely damage anyone’s reputation and standing in their community and that the respondents had shown credible and compelling evidence of harm because the publication was targeted at their suppliers and because it remained available on the Internet.
The court also rejected the appellants’ claim that the motion judge erred in concluding that presumed damages could amount to harm suffered by the respondents where there was no evidence of financial loss, nor any specific evidence that the respondents’ reputation was diminished on account of their actions. In this case, the presumed harm resulting from such serious statements may be weighed in the balance of public interest and harm even where there is no evidence of pecuniary loss or direct evidence about damage to reputation.
Finally, the court rejected the appellants’ submission that the motion judge erred in concluding that the defence of justification was insufficient to bar continuation of the action. The appellants’ statements linking the respondents to criminal activity were based on statements attributed to others, which were of unknown value and which did not obviously support the appellants’ conclusions. A reasonable trier could conclude that the appellants did not have a valid defence of justification.
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