2018 ONSC 2991, 2018 ONSC 2991

CITATION : Kett v. Elston, 2018 ONSC 2991 COURT FILE NO.: 146/18 DATE: 2018051 4 SUPERIOR COURT OF JUSTICE – ONTARIO RE: Donald A. Kett, Plaintiff/Responding Party AND: Harold G. Elston, Defendant/Moving Party BEFORE: Justice S. J. Woodley COUNSEL: Donald A. Kett, UNREPRESENTED Ryder Gilliland, Counsel for the Defendant/Moving Party HEARD: May 11, 2018 ruling on motion OVERVIEW [ 1 ] The defendant brings a motion to dismiss the proceedings under s. 137.1 of the Courts of Justice Act. That provision requires that a proceeding be dismissed if it arises from an expression that relates to a matter of public interest and the plaintiff cannot show that there are grounds to believe that (

i) the claim has substantial merit; and (ii) that there are no valid defences; and (iii) the public interest in the proceeding continuing outweighs the public interest in the underlying expression. If the plaintiff fails to establish any one of the three the proceeding must be dismissed. [ 2 ] In the present case the plaintiff/responding party, Donald A. Kett (“Mr. Kett”), defended the motion on the grounds that the defendant/moving party, Harold G. Elston (“Mr.

Elston”), was not appointed, retained or acting as Integrity Commissioner for the Township of Scugog when he released his Report to the Township Council on February 27, 2017 and Supplementary Report on April 17, 2017. [ 3 ] For the Reasons that follow I find that Mr. Elston was retained by the Township as Integrity Commissioner, that his Report and Supplementary Report were both prepared in his capacity as Integrity Commissioner, and that such reports arise from an expression of public interest. Further, as Mr.

Kett did not show that there are grounds to believe that the claim has substantial merit, that there are no valid defences, and that the public interest in the proceeding continuing outweighs the public interest in the underlying expression, I am required to dismiss the proceedings under s. 137.1 of the Courts of Justice Act. FACTS [ 4 ] The plaintiff Mr. Kett is a Ward 3 Councillor for the Township of Scugog (“the Township”). [ 5 ] In October of 2016 Mr. Kett was the subject of a complaint made by the Executive Director of the downtown Port Perry Business Improvement Association. [ 6 ] The defendant Mr.

Elston is a lawyer specializing in municipal law. Mr. Elston acts for public and private sector clients on municipal planning and development matters. As part of his practise Mr. Elston regularly acts as the Integrity Commissioner under the provisions of

Section 223 of the Municipal Act, 2001. [ 7 ] According to his affidavit sworn April 17, 2017, Mr. Elston was retained on October 12, 2016, by the Township as Integrity Commissioner to investigate the complaint against the plaintiff. [ 8 ] Following his appointment Mr. Elston took steps to investigate the complaint and issued a Report that was submitted to the Township Council on February 27, 2017. Based on the record before me Mr. Elston did not cause the Report to be published anywhere other than as a report to the Township Council in accordance with his statutory mandate. [ 9 ] On March 16, 2017, Mr.

Elston was advised that the Report had triggered a complaint to the Ombudsman. On April 17, 2017, Mr. Elston agreed to prepare a Supplementary Report. Based on the record before me Mr. Elston did not cause the Supplementary Report to be published anywhere other than as a report to the Township Council in accordance with his statutory mandate. [ 10 ] Following release of the Report and Supplementary Report the plaintiff Mr. Kett commenced an action against Mr. Elston relating to the Report and Supplementary Report prepared by him in his capacity as Integrity Commissioner. [ 11 ] Mr.

Elston by his legal counsel prepared and filed a defence to the plaintiff’s claim and commenced the within motion seeking a dismissal of the claim. In support of the within motion Mr. Elston filed a Motion Record enclosing his sworn affidavit outlining the facts detailed herein and attaching a copy of the Reports prepared by him in his capacity as Integrity Commissioner.

[ 12 ] The plaintiff Mr. Kett filed no materials on the motion and instead made oral submissions that (

i) Mr. Elston was not appointed, retained or acting as Integrity Commissioner when he prepared and released his Reports; (ii) the Integrity Commissioner appointed subsequent to Mr. Elston (Mr. Guy Giorno) disputed Mr. Elston’s findings as they relate to Mr. Kett; and (iii) as Mr. Elston was not acting as the Integrity Commissioner he is not entitled to the relief sought by the motion. [ 13 ] During the course of his oral submissions Mr. Kett read aloud from a report prepared by Guy Giorno (“Mr. Giorno”), who allegedly was appointed as the Integrity Commissioner following Mr. Elston’s appointment.

The report was not filed or provided to the Court, however, Mr. Kett advised that this report was prepared by Mr. Giorno as Integrity Commissioner and specifically referenced Mr. Elston’s findings as contained in the Reports produced by him to the Township. [ 14 ] The gist of that portion of the report read aloud to the court by Mr. Kett indicated that Mr. Giorno disagreed with Mr. Elston’s Report and Supplementary Report as the Reports relate to Mr. Kett. Of greater significance, however, is that the portion of Mr. Giorno’s report read aloud to the court by Mr. Kett repeatedly referred to Mr.

Elston as “the former Integrity Commissioner”. ANALYSIS [ 15 ] The evidence filed on the motion as supported by that portion of Mr. Giorno’s report read aloud to the court clearly establishes that Mr. Elston was appointed, retained and acted in his capacity as Integrity Commissioner for the Township of Scugog when he prepared and released his reports dated February 27, 2017 and April 17, 2017. [ 16 ] The proceeding commenced by Mr. Kett relating to Mr. Elston’s reports arose from an expression made by Mr. Elston in his capacity as Integrity Commissioner. Mr.

Elston was bound by statutory mandate to produce the reports and his expression relates to a matter of public interest. [ 17 ] Upon review of the materials filed with the court and upon consideration of Mr. Kett’s oral submissions, I find that the responding party, Mr. Kett, did not satisfy me on any of the grounds contained in s. 137.1(4) of the Courts of Justice Act that would defeat a dismissal of the proceeding. [ 18 ] More particularly, Mr. Kett did not present any evidence that would allow me to find that (

i) the proceeding has substantial merit; (ii) Mr. Elston has no valid defence in the proceeding; and (iii) there was any harm suffered by Mr. Kett let alone that any harm suffered was sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression. [ 19 ] As I am not satisfied that any of the grounds noted at s. 137.1(4) of the Courts of Justice Act have been satisfied, I am required to dismiss the proceedings.

DISPOSITION [ 20 ] For the reasons set out herein the within motion is granted and the proceeding is hereby dismissed as against Mr. Elston. [ 21 ] As for the costs of the proceeding, pursuant to s. 137.1(7) of the Courts of Justice Act the moving party, Mr. Elston, is entitled to costs on the motion and in the proceeding on a full indemnity basis, unless I determine that such an award is not appropriate in the circumstances. [ 22 ] Counsel for Mr. Elston provided a Costs Outline seeking costs on a complete indemnity basis.

I have reviewed the costs requested and have determined that the amount sought for the preparation of the motion report, book of authorities, factum and costs outline to be reasonable and proportional and appropriate in the circumstances. However, I find that the costs sought for the preparation of the statement of defence including meetings with client and receiving instructions to require adjustment. [ 23 ] In the particular circumstances of this case, I hereby award costs to the moving party, Mr. Elston, fixed at $12,410.00 plus H.S.T. for a total payment due by Mr. Kett to Mr. Elston of $14,023.00. Justice S.

J. Woodley Date: May 14, 2018