Greening v. Canadian Nuclear Safety Commission et al., 2017 ONSC 6746

CITATION: Greening v. Canadian Nuclear Safety Commission et al., 2017 ONSC 6746 COURT FILE NO.: 16-56872 DATE: 2017-11-20 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) FRANK GREENING ) ) ) Marc A. Munro, for the Plaintiff ) Plaintiff ) Responding Party ) ) - and - ) ) ) CANADIAN NUCLEAR SAFETY COMMISSION, ATTORNEY GENERAL OF CANADA and RAMZI JAMMAL ) ) ) Richard G. Dearden, for the Defendants, Moving Party, Canadian Nuclear Safety Commission and Ramzi Jammal ) Defendants Moving Party ) ) ) ) HEARD: Nov. 1, 2 and 3, 2017 REASONS FOR DECISION P. R. SWEENY J. Introduction [ 1 ] This is a motion for

summary judgment brought by the defendant Ramzi Jammal for an order dismissing the action as against him personally. He raises two issues: 1) He is accorded statutory immunity pursuant to s. 18(1) of the Nuclear Safety Control Act which prohibits civil proceedings against a person acting on behalf of the Canadian Nuclear Safety Commission (“CNSC”); and 2) He acted as an employee and officer of the CNSC and so is not personally liable. [ 2 ] The plaintiff says that these issues should not be decided on a motion for

summary judgment. He submits that there are genuine issues requiring a trial and that I will not be able to reach a fair and just determination of the issues on a motion for

summary judgment. Overview

[3] The plaintiff, Frank Greening, has a PhD in Chemistry from McMaster University. He worked for Ontario Hydro (currentlyknown as Ontario Power Generation) in the position of senior research scientist. From 2010 to 2014, he worked at Bruce Power as aradiochemistry consultant. The defendant, Ramzi Jammal (“Jammal”), is the Executive Vice-President and Chief Regulatory OperationsOfficer of the CNSC. He has been employed in that position since 2007. The CNSC was established in 2000 under the Nuclear Safetyand Control Act, SC 1997, c. 9 (NSCA) and reports to Parliament through the Minister of Natural Resources.

The CNSC’s objectives are,inter alia, “to disseminate objective scientific, technical and regulatory information concerning its activities and the effects on theenvironment and the health and safety of persons with respect to the matters it regulates.” [4] On January 6, 2014, the plaintiff provided the President and CEO of the CNSC with a copy of a letter he wrote to Ken Nash,president and CEO of the Nuclear Waste Management Organization.

This letter raised concerns about the accuracy of nuclear wasteinventory data in that it was based on calculated values rather than actual direct measurements. [5] On February 17, 2014, the plaintiff wrote to the President and CEO of CNSC, enclosing a copy of a paper he had writtenentitled, “A Critique of the RADICON Study”. The RADICON study was an ecological study on populations living near Ontario’s threenuclear power plants.

In his critique, the plaintiff challenged a number of the claims and assumptions that formed the technical basis ofthe RADICON study. [6] On March 3, 2014, Jammal wrote to the plaintiff in response to his letter of January 4, 2014.

In that letter, he advised that“despite uncertainty in the waste inventory calculations there was an adequate safety margin within the plans for the proposed DeepGeologic Repository to conclude that the design would protect both people and the environment despite any uncertainty in wastemanagement data.” [7] On March 4, 2014, the plaintiff responded to the correspondence of Jammal questioning how the CNSC could have no safetyconcerns. [8] On April 2, 2014, Jammal wrote to the plaintiff. The letter is alleged to have defamatory words contained in it.

In addition, theletter enclosed a critique of the plaintiff’s critique of the RADICON Study. The plaintiff alleges that the critique contains defamatorywords written about the plaintiff. [9] Contemporaneously with the delivery of the April 2nd letter and critique to the plaintiff, the April 2nd letter and critique,together with the correspondence of March 3 and March 4, 2014, were published on the CNSC website.

In addition, the materialpublished on the website was sent by email to some 2,000 email addresses. [10] On April 4, 2014, the plaintiff discovered the website publication and emailed the CNSC demanding that the correspondence beremoved from the website. He was particularly concerned about the fact that personal contact information was included in the posting. [11] The CNSC responding by redacting the personal contact information but did not remove the defamatory letter from its website.The plaintiff complained to the Office of the Privacy Commissioner of Canada.

The Privacy Commissioner conducted an investigation.The Privacy Commissioner determined that the ongoing publication violated the Personal Information Protection Electronic DocumentAct, S.C. 2000, c. 5. The Privacy Commissioner recommended that the letter be removed from the website immediately. The CNSCremoved the posting on September 3, 2015. [12] On March 31, 2016, the plaintiff issued the action against the CNSC, the Attorney General of Canada and Jammal. The claimseeks general damages for defamation, breach of confidence, breach of privacy, special damages and punitive damages in the amount of$250,000.

In addition, the claim seeks a mandatory order removing material posted or caused to be posted and prohibiting the defendantsCNSC and Ramzi Jammal from publishing anything about the plaintiff. [13] In the statement of defence, the defendants specifically plead that Jammal did not act in his personal capacity and the pleadingsassert, based upon s. 18 of the NSCA, that Jammal has immunity for civil liability.

The defendants also assert that the words complainedof are not defamatory, that they were made on a privileged occasion without malice, and that the communications were protected by adefence of responsible communication on matters of public interest. The defendants assert that the words complained of in the statementof claim are opinion and constitute fair comment, and were made in good faith and without malice on a matter of public interest andpublic concern.

In addition, the defendants plead that “the words complained of are not inherently malicious and are proportionate to theoccasion in which they were published.” On the issue of breach of confidentiality, the defendants assert that the communicationsbetween CNSC and the plaintiff were non-confidential. They deny they breached the plaintiff’s privacy by posting views about theplaintiff’s personal character and professional competence. Issue Should partial

summary judgment be granted dismissing this claim against the defendant Ramzi Jammal personally? [14] In Butera v. Chown, Cairns LLP, 2017 ONCA 783, the Court of Appeal dealt with the issue of the granting of partial

summaryjudgment. The court reviewed the Supreme Court of Canada decision in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87 andaddressed the issue of partial

summary judgment as follows: [25] Hryniak does not address partial

summary judgment per se except in the context of exercising the enhanced fact-finding powerscontained in r. 20.04(2.1). In that regard, Karakatsanis J. observed that it may not be in the interests of justice to use the new fact-findingpowers to grant

summary judgment against a single defendant if the claims against other parties will proceed to trial in any event. Suchpartial

summary judgment runs the risk of duplicative proceedings or inconsistent facts. On the other hand, Karakatsanis J. noted that the“resolution of an important claim against a key party could significantly advance access to justice and be the most proportionate, timelyand cost effective approach.” [26] The pre-Hryniak appellate jurisprudence on partial

summary judgment limited its availability. At para. 3 of Corchis v. KPMG PeatMarwick Thorne, (ON CA), [2002] O.J. No. 1437 (C.A.), this court applied Gold Chance International Ltd. v.

Daigle& Hancock, [2001] O.J. No. 1032 (S.C.J.) to state that: [P]artial

summary judgment ought only to be granted in the clearest of cases where the issue on which judgment is sought is clearlyseverable from the balance of the case. If this principle is not followed, there is a very real possibility of a trial result that is inconsistentwith the result of the

summary judgment motion on essentially the same claim. [27] Since Hryniak, this court has considered partial

summary judgment in Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450, 120 O.R. (3d) 438 and in Canadian Imperial Bank of Commerce v. Deloitte & Touche, 2016 ONCA 922 , 133 O.R.(3d) 561. Baywood was decided in the context of a motion for

summary judgment on all claims, but where only partial

summaryjudgment was granted. CIBC involved a motion for partial

summary judgment. [28] In both Baywood and CIBC, the court analyzed the issue from the perspective of whether (

i) there was a risk of duplicative orinconsistent findings at trial and whether (ii) granting partial

summary judgment was advisable in the context of the litigation as a whole.In both cases, the court held that partial

summary judgment was inadvisable in the circumstances. [29] The caution expressed pre-Hryniak in Corchis is equally applicable in the post-Hryniak world. In addition to the danger ofduplicative or inconsistent findings considered in Baywood and CIBC, partial

summary judgment raises further problems that areanathema to the stated objectives underlying Hryniak. [30] First, such motions cause the resolution of the main action to be delayed. Typically, an action does not progress in the face of amotion for partial

summary judgment. A delay tactic, dressed as a request for partial

summary judgment, may be used, albeit improperly,to cause an opposing party to expend time and legal fees on a motion that will not finally determine the action and, at best, will onlyresolve one element of the action. At worst, the result is only increased fees and delay. There is also always the possibility of an appeal. [31] Second, a motion for partial

summary judgment may by very expensive. The provision for a presumptive cost award for anunsuccessful

summary judgment motion that existed under the former

summary judgment rule has been repealed, thereby removing adisincentive for bringing partial

summary judgment motions. [32] Third, judges, who already face a significant responsibility addressing the increase in

summary judgment motions that have flowedsince Hryniak, are required to spend time hearing partial

summary judgment motions and writing comprehensive reasons on an issue thatdoes not dispose of the action. [33] Fourth, the record available at the hearing of a partial

summary judgment motion will likely not be as expansive as the record attrial therefore increasing the danger of inconsistent findings. [34] When bringing a motion for partial

summary judgment, the moving party should consider these factors in assessing whether themotion is advisable in the context of the litigation as a whole. A motion for partial

summary judgment should be considered to be a rareprocedure that is reserved for an issue or issues that may be readily bifurcated from those in the main action and that may be dealt withexpeditiously and in a cost effective manner. Such an approach is consistent with the objectives described by the Supreme Court inHryniak and with the direction that the Rules be liberally construed to secure the just, most expeditious, and least expensivedetermination of every civil proceeding on its merits. [35] Lastly, I would observe the obvious, namely, that a motion for partial

summary judgment differs from a motion for

summaryjudgment. If the latter is granted, subject to appeals, it results in the disposal of the entire action. In addition, to the extent the motionjudge considers it advisable, if the motion for

summary judgment is not granted but is successful in part, partial

summary judgment maybe ordered in that context. [15] The question then becomes whether there are issues that may be readily bifurcated from those in the main action and may bedealt with expeditiously and in a cost-effective manner. The defendant Jammal asserts that they can be. He argues that the statutoryimmunity provided in s. 18(1) of the Nuclear Safety and Control Act and the law with respect to the personal liability of employees andofficers, combined with the facts of this case, make it possible for me to grant

summary judgment. I disagree and for the reasons thatfollow, the motion is dismissed. [16] I shall briefly address each of the issues raised by the defendant.

Statutory Immunity – s. 18(1) of the Nuclear Safety Control Act [17] The provision relied on by Jammal reads as follows: 18(1) No civil proceedings may be brought against any member or other person of authority acting on behalf or under the direction of theCommission for anything done, reported or said in good faith in the course of the exercise or performance or purported exercise orperformance of any power, duty or function of the Commission under this Act or for any alleged neglect or default in the execution ingood faith of any such power, duty or function. [18] The defendants assert that there are three elements to the provision, which are: 1) Was Jammal acting under the authority or acting on behalf or under the direction of the Commission; 2) for anything done, reported or said in good faith; and 3) was it in the course of the exercise or performance or purported exercise of performance of any power, duty or function of theCommission under this Act? [19] The defendant Jammal states that those three criteria can be easily met based on the evidence.

Clearly, Jammal was

communicating to the plaintiff on behalf of or under the direction of the Commission. He submits that his communication was for the purposes of dealing with the dissemination of objective scientific information under s. 9 (

b) of the NSCA . In addition, he states he was acting in good faith; that is, there is no evidence of bad faith. [ 20 ] It appears to me that the significant issue is whether or not Jammal was acting in good faith. The plaintiff alleges that the communication contained defamatory words. As the Supreme Court of Canada noted in Prud’homme v. Prud’homme , 2002 SCC 85 , [2002] 4 S.C.R. 633 at para. 57 : In the common law, malice is presumed once the plaintiff establishes that the defendant spoke the offensive words about him or her. The defendant may try to rebut that presumption by citing qualified privilege.

If the defendant succeeds in establishing that the criteria for that defence have been met, the presumption of malice will fall and give way to a presumption of good faith. The plaintiff must then establish that the defendant acted in bad faith or had malicious intent. [ 21 ] In McDonald v. Freedman , 2013 ONSC 6812 , the Divisional Court noted at para. 27: Accordingly, to defeat the presumption of good faith that arises if the occasion of publication was one of qualified privilege, a plaintiff must prove malice on the part of the defendant. In this context, "malice" means: (

a) a lack of an honest belief in the truth of the libelous statements; or (

b) a use of the privileged occasion for an improper purpose. [ 22 ] In my view, the issue of whether or not the defendant Jammal acted in good faith is tied up with the determination of malice. In order to be successful in this claim against the Commission, based on the defences raised by the defendants, the issue of malice must be addressed at the trial. A jury notice has been served in this case.

Accordingly, the jury will have to make the necessary findings of fact, which will include the issue of malice. [ 23 ] Based on the evidence disclosed, I am not satisfied that it is in the interests of justice to make any determination on the issue of good faith. I am not satisfied that I can make a just determination based on the evidence before me. Accordingly, I am satisfied it is not appropriate to determine this issue on a motion for

summary judgment. Jammal is Not Personally Liable [ 24 ] Jammal asserts that the correct analysis on this issue is set out by the Court of Appeal in Lobo v. Carleton University , 2012 ONCA 498 and in particular, paras. 6 and 7 where the court wrote: [6] …This court’s decision in Montreal Trust Co. of Canada v. Scotia McLeod Inc. … 481 (Ont. C.A.) set out the criteria that need to be met to establish personal liability.

These are: (1) the actions of the employees are themselves tortious; or (2) the actions of the employees exhibit a separate identity or interest from that of the corporation or employer so as to make the act or conduct complained of their own.

As to the first basis, it is conceded that there is no plea in the fresh as amended statement of claim for fraud, deceit, dishonesty or want of authority on the part of the individual respondents. [7] With respect to the second branch of the Scotia McLeod case, we agree with the motion judge, at para. 35, that “the amended pleading […] does little more than “window dress” the suggestion of a separate identity or interest of the named Defendants from that of [ Carleton University ]” and, at para. 32 , that “the allegations made against each in pith and substance relate to decisions made within their ostensible authority as [Carleton University] employees.” [ 25 ] Based on this test, Jammal asserts that there is no fraud, deceit, dishonesty or want of authority in this case.

Accordingly, he argues that the first branch is not met and his actions do not exhibit separate identity or interest from the corporation so as to make the conduct his own. [ 26 ] The defendants cite Gyamfuaa v. LeBlanc , 2016 ONSC 5868 where Faieta J. held that, “A finding of fraud, deceit, dishonesty or want of authority is typically required to attract personal liability” (at para. 9). [ 27 ] The plaintiff points out that there is an allegation of defamation. Defamation is an intentional tort.

It would prima facie appear to bring the plaintiff within the exception of the tortious act of the defendant on the first branch of the test. I note that in Gyamfuaa , Faieta J. addressed issues of allegations of defamation. He noted that the defamation, that is the words of the plaintiff, were not specifically pleaded. However, he allowed the claim to be amended with respect to the defamation claims.

In my view, there is a significant issue as to whether an employee who defames a person can escape personal liability. [ 28 ] I am not satisfied that it is appropriate to determine this issue on the basis of the record before me and on a motion for

summary judgment. [ 29 ] Jammal also asserts that he has no personal liability for the torts of breach of confidence and breach of privacy. In my view, all these issues are best determined in the context of a full trial on a full evidentiary record with the trier of fact able to make determinations on all the issues. I am satisfied that viva voce evidence would assist the trier of fact in making these determinations. [ 30 ] In

summary, I am satisfied that there is a genuine issue requiring a trial and that I cannot reach a fair and just determination of the issues on this motion for

summary judgment. In this case, granting partial

summary judgment would not lead to any judicial economy. Mr. Jammal must give evidence at the trial. He will be cross-examined. There may be other witnesses giving evidence with respect to the circumstances surrounding the publication on the website. It is in the interests of justice that this matter proceed to trial and that all the issues including the personal liability of Jammal be determined at a trial. In the result, the motion for

summary judgment is

dismissed. [ 31 ] In my view, there is no need to exercise any of the powers set out in Rule 20.05 of the Rules of Civil Procedure with respect to the trial. In addition, it is not an appropriate case that I should seize myself of the matter as a trial judge. This is a jury trial. The defendant has been examined for discovery. The plaintiff is still to be examined by the defendant.

The plaintiff’s motion for a further and better affidavit of documents has been adjourned sine die , returnable on seven days’ notice. [ 32 ] If the parties are unable to agree on costs, I will accept written submissions addressed to me at my chambers in Hamilton (limited to 5 pages, double-spaced) together with an appropriate bill of costs and supporting dockets from the plaintiff within 14 days. The defendants shall have 14 days to reply. The submissions should also address the costs incurred with respect to the motion to extend the time to file responding material.

If submissions are not received by December 30, 2017, the issue of costs will be deemed settled. ___________________________ Sweeny J. Released: November 20, 2017 CITATION: Greening v. Canadian Nuclear Safety Commission et al., 2017 ONSC 6746 COURT FILE NO.: 16-56872 DATE: 2017-11-20

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: FRANK GREENING Plaintiff - and - CANADIAN NUCLEAR SAFETY COMMISSION, ATTORNEY GENERAL OF CANADA and RAMZI JAMMAL Defendants Moving Party REASONS FOR DECISION PRS:mw Released: November 20, 2017