Robertson v. McCormick, (2012) 311 N.S.R.(2d) 329 (SC)

• Judge: McDougall, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 05, 2012
• Jurisdiction: Nova Scotia
• Citations: (2012), 311 N.S.R.(2d) 329 (SC);2012 NSSC 4

Robertson v. McCormick (2012), 311 N.S.R.(2d) 329 (SC);

    985 A.P.R. 329

MLB headnote and full text

Temp. Cite: [2012] N.S.R.(2d) TBEd. JA.018

Mark Robertson (plaintiff) v. Heather McCormick (defendant)

(Hfx No. 313736; 2012 NSSC 4)

Indexed As: Robertson v. McCormick

Nova Scotia Supreme Court

McDougall, J.

January 5, 2012.

Summary:

The defendant school principal advised the plaintiff substitute teacher that he would not be recalled for the second term of the school year. The plaintiff sued, alleging three incidents of defamation: (1) the defendant advised the school board that the plaintiff failed to perform his professional duties as a teacher and was not suitable to substitute teach; (2) his non-retention deliberately conveyed a clear inference of professional incompetence to other teachers, students, parents, etc.; and (3) the defendant told others that the plaintiff failed in his professional duties by failing to adhere to required teaching strategies. The defendant moved under rule 13.03 for summary judgment to dismiss the claim on the grounds that the pleadings failed to disclose a cause of action. Alternatively, the defendant sought summary judgment dismissing the action under rule 13.04 for failing to raise a genuine issue for trial.

The Nova Scotia Supreme Court granted summary judgment under rule 13.03. The statement of claim failed to disclose a reasonable cause of action. Alternatively, the court would also have granted summary judgment on the evidence under rule 13.05, as there was no genuine issue for trial. Even if defamatory statements were made, the defendant would be protected by the defences of qualified privilege and fair comment where there was no malice.

Libel and Slander - Topic 644

The statement - What constitutes defamatory statements - General principles - Disparagement of reputation - The defendant school principal advised the plaintiff substitute teacher that he would not be recalled for the second term of the school year - The plaintiff sued for damages for defamation - The alleged defamatory statements were: (1) the defendant orally advised the school board that the plaintiff failed to perform his professional duties as a teacher and was not suitable to substitute teach; (2) his non-retention deliberately conveyed a clear inference of professional incompetence to other teachers, students, parents, etc.; and (3) the defendant orally advised others that the plaintiff failed in his professional duties by failing to adhere to required teaching strategies - The Nova Scotia Supreme Court granted the defendant summary judgment under rule 13.03, as the plaintiff's amended statement of claim failed to disclose a reasonable cause of action - The court stated that "it is plain and obvious that the amended statement of claim does not make out a cause of action in defamation. Firstly, none of the paragraphs containing the alleged defamatory communications contain exact words, or even an attempt at exact words. While failing to plead exact words is not necessarily fatal, particularly where, as here, the plaintiff does not claim to have been present to hear the alleged defamatory statements, the statements alleged in [1 and 3] do no more than relay the plaintiff's own gloss on what he appears to believe was said. As for [2], I am not satisfied that the failure to continue or extend a substitute's assignment under the Nova Scotia Education Act, on its own, can be regarded as an act of defamatory communication." - See paragraphs 22 to 34.

Libel and Slander - Topic 644

The statement - What constitutes defamatory statements - General principles - Disparagement of reputation - The defendant school principal advised the plaintiff substitute teacher that he would not be recalled for the second term of the school year - The plaintiff sued for damages for defamation - The alleged defamatory statements were: (1) the defendant orally advised the school board that the plaintiff failed to perform his professional duties as a teacher and was not suitable to substitute teach; (2) his non-retention deliberately conveyed a clear inference of professional incompetence to other teachers, students, parents, etc.; and (3) the defendant orally advised others that the plaintiff failed in his professional duties by failing to adhere to required teaching strategies - The Nova Scotia Supreme Court granted the defendant summary judgment under rule 13.04, as the evidence failed to raise a genuine issue for trial - The defendant, and the alleged recipient of the defamatory statements, both denied that they were made - The plaintiff had no evidence that any defamatory statement was made - The court stated that "I can see no genuine issue raised on the evidence provided by the plaintiff that supplements the allegations in the pleadings. The plaintiff's evidence and his written submission is primarily concerned with his complaints about the manner in which the defendant ran the school. ... It is evident that the substance of the plaintiff's claim is a complaint about the defendant's decision not to retain him as a substitute teacher in the second semester. More broadly, his complaint appears to be with the employment conditions of substitute teachers. None of this, it seems to me, helps to substantiate a claim in defamation." - See paragraphs 35 to 49.

Libel and Slander - Topic 2995

Defences - Qualified privilege - Public duty - General - The defendant school principal advised the plaintiff substitute teacher that he would not be recalled for the second term of the school year - The plaintiff sued for damages for defamation - The alleged defamatory statements included oral statements allegedly made to an administrative official disparaging the plaintiff's professional competence and suitability to teach - The Nova Scotia Supreme Court granted summary judgment dismissing the defamation claim as there was no evidence that defamatory statements were made - Alternatively, had the defendant made defamatory statements to a school board official, the defences of qualified privilege and fair comment applied - The court stated that "comments about the plaintiff's performance of his teaching duties and his suitability for the position, made without malice, would be protected by qualified privilege" - The principal had a public duty to discuss the suitability of substitute teachers with school board officials and the board officials had a duty to receive such comments - See paragraphs 51 to 70.

Libel and Slander - Topic 3114

Defences - Fair comment - What constitutes fair comment - [See Libel and Slander - Topic 2995 ].

Libel and Slander - Topic 6126

Practice - Pleadings - Statement of claim - Setting out slanderous words - The Nova Scotia Supreme Court stated that "the allegedly defamatory words constitute material facts and generally should be set out verbatim. ... There is, however, authority to the effect that where the plaintiff does not know the exact words of an alleged slander, there is some flexibility. ... Where the plaintiff is not able to particularize the defamatory words directly, and relies on third-party documents, the plaintiff must establish that there has, in fact, been defamation" - See paragraphs 17 to 19.

Practice - Topic 33

Actions - Conduct of - General - Party self-representation - The Nova Scotia Supreme Court agreed that "the plaintiff's status as a self-represented litigant does not excuse him from the rules of pleading" - See paragraph 8.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See first Libel and Slander - Topic 644 ].

Practice - Topic 5719

Judgments and orders - Summary judgments - To dismiss action - [See second Libel and Slander - Topic 644 ].

Cases Noticed:

Lieb v. Smith et al. (1994), 120 Nfld. & P.E.I.R. 201; 373 A.P.R. 201; 1994 CarswellNfld 176 (T.D.), refd to. [para. 8].

Grant et al. v. Torstar Corp. et al. (2009), 397 N.R. 1; 258 O.A.C. 285; 2009 SCC 61, refd to. [para. 14].

Waterbury Newton v. Saunders (2007), 256 N.S.R.(2d) 214; 818 A.P.R. 214; 2007 NSSC 230, refd to. [para. 15].

Bell v. Intertan Canada Ltd. et al., [2002] Sask.R. Uned. 190; 2002 SKQB 446, refd to. [para. 15].

D.C. v. Children's Aid Society of Cape Breton-Victoria (2008), 267 N.S.R.(2d) 180; 853 A.P.R. 180; 2008 NSSC 196, refd to. [para. 18].

Wallace v. Lawrence (2002), 203 N.S.R.(2d) 197; 635 A.P.R. 197; 2002 NSCA 36, refd to. [para. 18].

Abrams v. Johnson et al. (2009), 484 A.R. 211; 2009 ABQB 575 (Master), refd to. [para. 19].

MacQueen et al. v. Ispat Sidbec Inc. et al. (2007), 253 N.S.R.(2d) 188; 807 A.P.R. 188; 2007 NSCA 33, refd to. [para. 24].

Innocente v. Canada (Attorney General) (2010), 290 N.S.R.(2d) 91; 920 A.P.R. 91; 2010 NSSC 111, refd to. [para. 24].

Gowin v. Hazen Memorial Hospital Association (1984), 349 N.W.2d 4, refd to. [para. 27].

Turner v. Halifax (Regional Municipality) et al. (2009), 283 N.S.R.(2d) 239; 900 A.P.R. 239; 2009 NSCA 106, refd to. [para. 36].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 51].

Korach v. Moore (1991), 42 O.A.C. 248; 76 D.L.R.(4th) 506; 1991 CarswellOnt 1105 (C.A.), leave to appeal denied (1991), 136 N.R. 402; 79 D.L.R.(4th) vii (S.C.C.), refd to. [para. 53].

Haight-Smith v. Neden et al., [2000] B.C.T.C. 610; 2000 BCSC 1233, refd to. [para. 54].

Simpson v. Mair et al., [2008] 2 S.C.R. 420; 376 N.R. 80; 256 B.C.A.C. 1; 431 W.A.C. 1; 2008 SCC 40, refd to. [para. 58].

Horrocks v. Lowe, [1974] 1 All E.R. 662, refd to. [para. 65].

Authors and Works Noticed:

Brown, Raymond E., The Law of Defamation in Canada (2nd Ed. 1994) (Looseleaf), vol. 1, para. 5.12(1) [para. 16]; vol 4, para. 15.5(2)(d) [para. 60]; vol. 5, para. 19.1 [para. 17]; para. 19.3(2)(a)(i) [para. 30].

McConchie, Roger D., and Potts, David A., Canadian Libel and Slander Actions (2004), pp. 299 [para. 64]; 535 [para. 17].

Counsel:

Nancy Gail Rubin, Maggie Stewart and Kyle DeYoung (summer student), for the defendant/applicant;

Mark Robertson, on his own behalf.

This motion was heard on June 21-22 and 29, 2011, at Halifax, N.S., before McDougall, J., of the Nova Scotia Supreme Court, who delivered the following judgment on January 5, 2012.