Guergis v. Novak et al.,

• Jurisdiction: Ontario
• Judge: Weiler, Sharpe and Rouleau, JJ.A.
• Court: Court of Appeal (Ontario)
• Citation: (2013), 308 O.A.C. 96 (CA),2013 ONCA 449
• Date: 17 April 2013

Guergis v. Novak (2013), 308 O.A.C. 96 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. JL.004

Helena Guergis (applicant/appellant) v. V. Raymond Novak , Arthur Hamilton, Cassels Brock & Blackwell LLP, The Right Honourable Stephen Harper, Guy Giorno, Shelly Glover, The Honourable Lisa Raitt, Axelle Pellerin, Conservative Party of Canada and Derrick Snowdy (defendants/ respondents )

(C56052; 2013 ONCA 449)

Indexed As: Guergis v. Novak et al.

Ontario Court of Appeal

Weiler, Sharpe and Rouleau, JJ.A.

June 28, 2013.

Summary:

Guergis was a former Minister of State for the Status of Women, member of the Conservative Party of Canada (CPC) caucus, and Member of Parliament (MP) for the Electoral District of Simcoe-Grey. She alleged that on April 9, 2010, following a conversation with Prime Minister Harper, she was pressured to resign from Cabinet and did so under duress. On the same day, the Prime Minister issued a public statement, the Prime Minister's Principal Secretary (Novak) wrote a letter to the RCMP, and the Prime Minister's Chief of Staff (Giorno) wrote a letter to the Conflict of Interest and Ethics Commissioner. Ultimately, Guergis was removed from caucus and denied a further candidacy in her riding. Guergis brought an action for damages against the defendants, who included: the CPC; Prime Minister Harper; Giorno, Novak, Raitt (a federal Cabinet minister): Pellerin (an official on Minister Raitt's staff), Glover (a Conservative MP); Hamilton (a lawyer with the firm Cassels Brock & Blackwell LLP, who was the lawyer for the Prime Minister and the CPC, at the relevant time); Cassels Brock (the law firm of the Prime Minister and the CPC, at the relevant time); and Snowdy (an individual). The tort claims advanced included defamation against all of the defendants other than the CPC, as well as conspiracy, negligence, intentional infliction of mental suffering, misfeasance in public office, and breach of a duty of care. The defendants moved to strike the claim pursuant to rule 21.01(1)(b) on the basis that it disclosed no reasonable cause of action. The defendants also alleged that the action was an abuse of process pursuant to rules 21.01(3)(d) and 25.11(c). They submitted that the plaintiff was estopped from pursuing her claim because of the holding made in an earlier proceeding before the Canadian Human Rights Commission in which the Commission decided not to deal with a complaint made by Guergis against the Prime Minister and the CPC.

The Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 4579, granted the defendants' motion. While the motion judge held that the action was an abuse of process, he independently assessed the statement of claim and concluded that it was plain and obvious that the action could not succeed. He struck the claims without leave to amend, with the exception of the claims made against Hamilton and Cassels Brock for which he granted leave to amend on terms. Guergis appealed.

The Ontario Court of Appeal dismissed the appeal with the exception of the pleading in relation to Glover. In relation to the other defendants, it was plain and obvious that the tort claims could not succeed.

Courts - Topic 2015

Controlling abuse of its process (incl. abuse of process by relitigation) - [See Estoppel - Topic 388 ].

Crown - Topic 585

Prime Minister - Authority of - [See Crown - Topic 2207 ].

Crown - Topic 2207

Crown privilege or prerogative - General - Parliamentary privilege - Guergis was a former Minister of State for the Status of Women, member of the Conservative Party of Canada caucus, and Member of Parliament for the Electoral District of Simcoe-Grey - She alleged that on April 9, 2010, following a conversation with Prime Minister Harper, she was pressured to resign from Cabinet and did so under duress - She was removed from caucus and denied a further candidacy in her riding - Guergis brought an action for damages against various defendants - In addition to defamation, Guergis pleaded other tort claims, namely, conspiracy, negligence, intentional infliction of mental suffering, misfeasance in public office, and breach of a duty of care - In doing so, she pleaded on the one hand that the Prime Minister had not received information as to allegations of Guergis's criminal activity and then "in the alternative" that he had - The motion judge held that this "alternative" pleading was incomprehensible as pleaded - In addition, the motion judge held that the other tort claims were based entirely on the alleged defamatory communications and were "dressed up" defamation claims - He struck them - Guergis appealed - The Ontario Court of Appeal held that the motion judge did not err in dismissing the other tort claims for three reasons - First, the alternative pleadings did not succeed in achieving a key purpose of the statement of claim: to enable the defendants to know what facts were alleged so as to be able to respond to them - Second, the other torts pleaded were derivative of the defamation allegation and were not based on independent facts - Third, "in seeking to pursue tort claims, such as negligence, based on the manner of her removal from Cabinet and caucus, while acknowledging that the Prime Minister's decision to remove her is not justiciable because it is protected by the exercise of Crown privilege and parliamentary prerogative, the appellant is attempting a distinction without a difference. The Prime Minister's exercise of the Crown prerogative and Parliamentary privilege extends not only to the fact of removal from office but also to how it was exercised" - See paragraphs 74 to 87.

Estoppel - Topic 388

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Decisions of administrative tribunals - The plaintiff's action against the defendants advanced tort claims, including defamation - The motion judge struck the action under rule 21.01(1)(b) on the basis that it disclosed no reasonable cause of action - The motion judge also held that the action was an abuse of process in light of a previous decision of the Canadian Human Rights Commission (CHRC) which determined that the plaintiff's core complaints were not justiciable - The plaintiff appealed - The Ontario Court of Appeal concluded that, with the exception of the claim against one of the defendants (Glover), the motion judge correctly concluded that the statement of claim should be struck under rule 21.01(1)(b) - While it was therefore unnecessary to decide the issue regarding abuse of process, the court commented on the issue - The court stated that "The motion judge's decision of whether or not estoppel should apply would have to be reconsidered in the way the law has now evolved under Penner [2013 SCC]. In relation to the respondents other than Glover, It is not necessary for us to do so, because, as we have indicated, we would dismiss the appeal against them. Glover's statement would not have been estopped under the law as it existed prior to Penner. The statement was not within the ambit of [the plaintiff's] complaint to the CHRC and the issue raised by the complaint was not necessary to the CHRC's decision. The complaint has a factual foundation that is independent of the facts forming the basis of the CHRC complaint. The motion judge erred in lumping Glover in with the other respondents on the issue of whether it would be an abuse of process for her claim to proceed" - See paragraphs 13 to 20.

Libel and Slander - Topic 653

The statement - What constitutes defamatory statements - General principles - Statements respecting public officials - [See both Libel and Slander - Topic 684 ].

Libel and Slander - Topic 684

The statement - What constitutes defamatory statements - Libel - What constitutes a defamatory statement - Guergis was a former Minister of State for the Status of Women, member of the Conservative Party of Canada caucus, and Member of Parliament (MP) for the Electoral District of Simcoe-Grey - Guergis brought an action for damages against various defendants, including Prime Minister Harper - The tort claims advanced included defamation - The statement of claim alleged, inter alia, that the Prime Minister was told of certain allegations against Guergis on April 8 or 9, 2010 - The Prime Minister then told Guergis of the allegations in his telephone call with her and obtained her resignation from Cabinet - The Prime Minister made a public statement on April 9, 2010, as follows: "Last night, my office became aware of serious allegations regarding the conduct of the Honourable Helena Guergis. These allegations relate to the conduct of Ms. Guergis and do not involve any other minister, MP, senator or federal government employee, I've referred the allegations to the Conflict of Interest and Ethics Commissioner and to the RCMP. Under the circumstances, I will not comment on them further" - Guergis submitted that the statement was capable of a defamatory meaning and would be understood to mean that she was involved in fraudulent activity and/or other criminal conduct - A motion judge struck Guergis's claim on the basis that it disclosed no reasonable cause of action - On appeal, the Ontario Court of Appeal, stated that "the motion judge did not err in holding that, as a matter of law, the public statement was not capable of bearing the defamatory meaning alleged by the appellant. The same is true of the Prime Minister's conversation with the appellant. ... The statement makes it clear that allegations of criminal conduct about the appellant had been made and that those allegations had been referred to the Conflict of Interest and Ethics Commissioner as well as to the RCMP. These were the appropriate authorities to deal with the allegations. Although the appellant submits that, in assessing whether the statements were capable of having a defamatory meaning, the motion judge should have taken into account as true her pleading that the statements resulted in injury to her reputation, political career, health and wellbeing, the test is not a subjective one. ... it is an objective one - that of the reasonable person" - See paragraphs 53 to 58.

Libel and Slander - Topic 684

The statement - What constitutes defamatory statements - Libel - What constitutes a defamatory statement - Guergis was a former Minister of State for the Status of Women, member of the Conservative Party of Canada caucus, and Member of Parliament (MP) for the Electoral District of Simcoe-Grey - She alleged that on April 9, 2010, following a conversation with Prime Minister Harper, she was pressured to resign from Cabinet and did so under duress - She was removed from caucus and denied a further candidacy in her riding - Guergis brought an action for damages against various defendants, including Glover (a Conservative MP) - The tort claims advanced included defamation - A motion judge struck Guergis's claim on the basis that it disclosed no reasonable cause of action - Guergis appealed - The Ontario Court of Appeal stated that "The issue in respect of Glover is whether it is plain and obvious that her comments during a CTV interview on May 16, 2010, that 'I can assure you that there is far more to come out' and 'This isn't finished' do not constitute defamation. ... The motion judge reviewed the video and transcript of the interview and concluded that Glover's statements could not possibly bear the implication pleaded, namely, that evidence Guergis was involved in criminal conduct would be made available in the future. ... The possible range of meanings in relation to the statement in issue includes one that is defamatory. Because the statement in question has two possible meanings, one defamatory and one not, this is not a clear case enabling the pleading to be struck, and the motion judge erred in doing so. The matter should be allowed to proceed to trial where the question of the actual meaning will be determined as a matter of fact" - See paragraphs 62 to 73.

Libel and Slander - Topic 806

The statement - Actionable statements per se - Words imputing criminal offence - [See both Libel and Slander - Topic 684 ].

Libel and Slander - Topic 2926

Defences - Absolute privilege - Communications between officers of state in relation to state affairs - Guergis was a former Minister of State for the Status of Women, member of the Conservative Party of Canada caucus, and Member of Parliament for the Electoral District of Simcoe-Grey - Guergis was removed from caucus and denied a further candidacy in her riding - She brought an action for damages against various defendants, including Raitt (a Cabinet Minister), Pellerin (an official on Minister Raitt's staff) and Giorno (the Prime Minister's Chief of Staff) - The tort claims advanced included defamation - The statement of claim alleged that Raitt had advised Pellerin that she saw Guergis using cocaine in a restaurant bathroom and that Pellerin advised Giorno of what she had been told by Raitt - In granting the defendants' motion to strike Guergis's claim on the basis that it disclosed no reasonable cause of action, the motion judge held that the above statements by Raitt and Pellerin were protected by absolute privilege - On appeal, the Ontario Court of Appeal stated that "The motion judge properly found that the communication was made by one officer of state to another officer of state and that the conditions for absolute privilege, including that the communication relate to a matter of state, were met" - See paragraphs 43 to 52.

Libel and Slander - Topic 2926

Defences - Absolute privilege - Communications between officers of state in relation to state affairs - Guergis was a former Minister of State for the Status of Women, member of the Conservative Party of Canada caucus, and Member of Parliament for the Electoral District of Simcoe-Grey - She alleged that on April 9, 2010, following a conversation with Prime Minister Harper, she was pressured to resign from Cabinet and did so under duress - On the same day, the Prime Minister's Principal Secretary (Novak) wrote a letter to the RCMP, and the Prime Minister's Chief of Staff (Giorno) wrote a letter to the Conflict of Interest and Ethics Commissioner - Ultimately, Guergis was removed from caucus and denied a further candidacy in her riding - Guergis brought an action for damages against various defendants, including Novak and Giorno - Guergis alleged that statements between Novak and Giorno and the letters drafted by them at the direction of the Prime Minister on April 9, 2010 were defamatory - A motion judge struck Guergis's claim as disclosing no reasonable cause of action - Guergis appealed - The Ontario Court of Appeal agreed with the motion judge that the April 9, 2010 communications between the Prime Minister and his senior advisors, Novak and Giorno, fell within the doctrine of absolute privilege accorded to officers of state and their senior advisers when communicating on matters within their official duties - The same rationale applied to the letter from Novak to the RCMP commissioner - Novak was an officer of state communicating with respect to a matter of state to the RCMP Commissioner, another officer of state - A second reason the motion judge struck these paragraphs was that the April 9, 2010 letters by Novak and Giorno were not defamatory on their face - The letters were not capable of bearing the implications asserted by the appellant - See paragraphs 59 to 61.

Libel and Slander - Topic 6128

Practice - Pleadings - Statement of claim - Defamation - The Ontario Court of Appeal stated that "The right to plead that a defamatory statement was made to certain unnamed persons is restricted to the case where a plaintiff has made out a prima facie case that the statement was made to a named person and has produced uncontradicted evidence of publication to other persons" - Those requirements were not met in the case before the court - Accordingly, the pleading against "others" was properly struck - See paragraph 52.

Practice - Topic 269

Persons who can sue and be sued - Legal personality - Political parties - Guergis was a former Minister of State for the Status of Women, member of the Conservative Party of Canada (CPC) caucus, and Member of Parliament for the Electoral District of Simcoe-Grey - She alleged that on April 9, 2010, following a conversation with Prime Minister Harper, she was pressured to resign from Cabinet and did so under duress - She was removed from caucus and denied a further candidacy in her riding - Guergis brought an action for damages against various defendants, including the Prime Minister and the CPC - The tort claims advanced included conspiracy - Guergis alleged, inter alia, that the CPC's committee removed her as the candidate for the CPC in the electoral district of Simcoe-Grey and that such removal was effected at the direction of the Prime Minister in furtherance of the conspiracy - The motion judge held that, as an unincorporated association, the CPC could not be sued in tort - Accordingly, he struck the claims against the CPC - The Ontario Court of Appeal agreed with the motion judge - The court also stated that "Even if the allegation regarding the Prime Minister's involvement is read as proven, s. 67(4)(c) of the Canada Elections Act, ... gives the leader of a political party the authority to refuse to endorse a candidate. As it is statutorily allowed, it therefore cannot be an unlawful act. The claims of conspiracy were properly struck" - See paragraphs 88 to 91.

Practice - Topic 1307

Pleadings - General principles - Alternative or inconsistent pleadings - [See Crown - Topic 2207 ].

Practice - Topic 2213

Pleadings - Striking out pleadings - With leave to amend - The motion judge struck the appellant's claim against the defendants on the basis that it disclosed no reasonable cause of action - The appellant submitted that the motions judge erred in not allowing her leave to amend the statement of claim in respect of the respondents - The Ontario Court of Appeal stated that "An opportunity to amend a pleading should be granted unless the claim clearly has no chance of success. That is the situation here ... Complaints that are untenable as a matter of law are not amenable to amendment. With the exception of the paragraphs in relation to [the defendant] Glover, the motion judge correctly struck the appellant's claim without leave to amend. We realize, however, that in relation to Glover, it may be necessary for the plaintiff to amend the pleading to provide proper context" - See paragraphs 92 to 94.

Practice - Topic 2230.1

Pleadings - Striking out pleadings - Grounds - Alternative claims - [See Crown - Topic 2207 ].

Practice - Topic 2239

Pleadings - Striking out pleadings - Grounds - Abuse of process or delay - [See Estoppel - Topic 388 ].

Cases Noticed:

Toronto (City) v. Canadian Union of Public Employees, Local 79 et al., [2003] 3 S.C.R. 77; 311 N.R. 201; 179 O.A.C. 291; 2003 SCC 63, refd to. [para. 15].

Penner v. Niagara Regional Police Services Board et al. (2013), 442 N.R. 140; 304 O.A.C. 106; 2013 SCC 19, refd to. [para. 17].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 34].

Black v. Chrétien et al. (2001), 147 O.A.C. 141; 54 O.R.(3d) 215 (C.A.), refd to. [para. 36].

Color Your World Corp. v. Canadian Broadcasting Corp. et al. (1998), 106 O.A.C. 279; 156 D.L.R.(4th) 27 (C.A.), refd to. [para. 37].

Grant et al. v. Torstar Corp. et al., [2009] 3 S.C.R. 640; 397 N.R. 1; 258 O.A.C. 285; 2009 SCC 61, refd to. [para. 39].

Young v. Toronto Star Newspapers Ltd. et al. (2005), 202 O.A.C. 19; 77 O.R.(3d) 680 (C.A.), refd to. [para. 40].

Dowson v. Government of Canada (1981), 37 N.R. 127; 124 D.L.R.(3d) 260 (F.C.A.), refd to. [para. 44].

Jaffe v. Americans for International Justice Foundation, [1987] O.J. No. 2370 (H.C.J.), refd to. [para. 52].

Mantini v. Smith Lyons LLP et al. (2003), 171 O.A.C. 375; 64 O.R.(3d) 516 (C.A.), leave to appeal dismissed, [2003] S.C.C.A. No. 344, refd to. [para. 56].

Myers v. Canadian Broadcasting Corp. et al. (1999), 103 O.T.C. 81; 47 C.C.L.T.(2d) 272 (Sup. Ct.), revd. in part (2001), 147 O.A.C. 310; 54 O.R.(3d) 626 (C.A.), leave to appeal denied (2002), 289 N.R. 200; 163 O.A.C. 400 (S.C.C.), refd to. [para. 56].

Miguna v. Toronto (City) Police Services Board, [2004] O.J. No. 2455 (Sup. Ct.), affd. [2005] O.J. No. 107 (C.A.), refd to. [para. 57].

Royal Bank of Canada v. Société Générale (Canada), [2007] O.J. No. 2262 (Sup. Ct.), refd to. [para. 78].

McCarthy Corp. PLC v. KPMG LLP, [2006] O.T.C. Uned. 407 (Sup. Ct.), refd to. [para. 83].

Longley et al. v. Canada (Attorney General) (2007), 231 O.A.C. 244; 88 O.R.(3d) 408; 2007 ONCA 852, refd to. [para. 89].

Byrne v. Maas, [2007] O.T.C. Uned. N88 (Sup. Ct.), refd to. [para. 93].

Baker v. Poser, 2004 CarswellOnt 4983 (Sup. Ct.), refd to. [para. 93].

Statutes Noticed:

Civil Procedure Rules (Ont.) - see Rules of Civil Procedure (Ont.).

Rules of Civil Procedure (Ont.), rule 21.01(1)(b) [para. 34].

Authors and Works Noticed:

Abrams, Linda, and McGuinness, Kevin, Canadian Civil Procedure Law (2010), p. 753 [para. 83].

Archibald, Todd, Killeen, Gordon and Morton, James C., Ontario Superior Court Practice 2013, p. 908 [para. 35].

Gatley on Libel and Slander (10th Ed. 2008), para. 3.13 [para. 40].

Halsbury's Laws of Canada, Cumulative Supplement, April 20, 2012 - Defamation - Elements of the Causes of Action - Preliminary Rulings, HDE-36 [para. 41].

Counsel:

Stephen Victor, Q.C., and David Cutler, for the appellant;

Robert W. Staley, Derek J. Bell and Jonathan G. Bell, for the respondents, The Right Honourable Stephen Harper, V. Raymond Novak, Shelley Glover and The Honourable Lisa Raitt;

Wendy J. Wagner, for the respondent, Axelle Pellerin;

Peter N. Mantas, for the respondent, Guy Giorno;

Paul D'Angelo, for the respondent, Conservative Party of Canada.

This appeal was heard on April 17, 2013, before Weiler, Sharpe and Rouleau, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was released on June 28, 2013.