Cour supérieure de justice, Cour divisionnaire, le juge Lalonde
29 juillet 2009
Procédure civile – Procès — Ajournement – Demanderesse dans une poursuite intentée devant la Cour des petites créances demande à un technicien d’éliminer les impuretés dans le son d’une bande audio, mais ne cite pas à témoigner le technicien, et le nom du technicien n’est pas inscrit sur la liste de témoins – Juge du procès ajourne le procès au lendemain, mais refuse d’accorder un ajournement plus long pour que la demanderesse puisse citer le technicien à témoigner – Juge du procès n’exerce pas son pouvoir discrétionnaire de façon inappropriée en refusant d’accorder un ajournement plus long.
Délits — Diffamation — Communication – Défenderesse évalue le travail de la demanderesse comme aide-enseignante – Demanderesse mentionne à son mari et à une connaissance qu’elle craint que la demanderesse ait fait des déclarations diffamatoires à son sujet puisqu’elle a reçu seulement deux offres d’emploi – Mari communique avec la défenderesse pour obtenir des références au sujet de la demanderesse, et la connaissance a une conversation avec la défenderesse au sujet de la demanderesse – Juge du procès ne commet pas d’erreur manifeste ou dominante en concluant que le mari et la connaissance sont des agents de la demanderesse et qu’il n’y a pas eu communication des déclarations à des tiers – Tribunal n’a pas le droit de conclure qu’il y a eu communication à des tiers parce que la demanderesse a reçu seulement deux offres d’emploi – Communication est un élément essentiel de la diffamation et il incombe à la demanderesse de l’établir.
Dans le cadre de son emploi, la défenderesse a évalué le travail de la demanderesse qui voulait se qualifier pour un emploi d’aide-enseignante. Par la suite, la demanderesse a reçu seulement deux appels pour du travail des quatre conseils scolaires dans la région. Elle a discuté de la question avec son mari et une connaissance, L, et elle a mentionné à cette dernière que la défenderesse faisait peut-être des déclarations diffamatoires à son sujet. Son mari a demandé à la défenderesse de lui fournir une référence à l’égard de la demanderesse et la défenderesse lui aurait dit que la demanderesse était menteuse et n’était pas fiable. L a rencontré la défenderesse et a enregistré secrètement une conversation à propos de la demanderesse. L’enregistrement était de mauvaise qualité et la conversation était inaudible. La demanderesse a intenté une poursuite en dommages-intérêts pour diffamation devant la Cour des petites créances. Elle a demandé à un technicien d’éliminer les impuretés dans le son de la bande vidéo, mais elle a oublié de le citer à témoigner, et le nom du technicien n’était pas inscrit sur la liste de témoins. Le juge du procès a accordé un ajournement jusqu’au lendemain matin, mais a refusé d’accorder un ajournement plus long pour que la demanderesse puisse citer le technicien à témoigner. L’action a été rejetée. La demanderesse a interjeté appel.
Arrêt, l’appel est rejeté
Le juge du procès n’a pas exercé son pouvoir discrétionnaire de façon inappropriée en refusant d’accorder un plus long ajournement. Deux conférences préparatoires au procès avaient eu lieu, et la demanderesse ne s’était pas préparée adéquatement pour un procès inscrit depuis longtemps pour instruction.
Le juge du procès n’a pas commis d’erreur manifeste ou dominante en concluant que le mari de la défenderesse et L étaient tous les deux des agents de la demanderesse et qu’il n’y avait pas eu communication des déclarations que l’on prétend diffamatoires à des tiers. Le tribunal ne pouvait raisonnablement conclure que les déclarations diffamatoires avaient été communiquées à un ou plusieurs tiers du fait que la demanderesse avait reçu seulement deux offres d’emploi. La preuve de la communication est un élément essentiel de la diffamation, et il incombe à la demanderesse de prouver qu’il y a eu communication.
Distinction d’avec l’arrêt Gaskin c. Retail Credit Co.,  R.C.S. 297,  S.C.J. No. 4; 49 D.L.R. (2d) 542,
Housen c. Nikolaisen,  2 R.C.S. 235;  S.C.J. No. 31;  A.C.S. no 31; 2002 SCC 33; 2002 CSC 33;  2 R.C.S. 235; 211 D.L.R. (4th) 577; 286 N.R. 1;  7 W.W.R. 1; J.E. 2002-617; 219 Sask.R. 1; 10 C.C.L.T. (3d) 157; 30 M.P.L.R. (3d) 1; 112 A.C.W.S. (3d) 991; Ogdensburg Bridge and Port Authority et al. v. Township of Edwardsburg,  1 O.R. 87, 59 D.L.R. (2d) 537 (C.A.).
Règles et règlements cités
Règles de la Cour des petites créances, Règl. de l’Ont 258/98, règle 2.02
Règles de procédure civile, R.R.O. 1990, Règl. 194, paragraphe 62.01(4)
Bowstead, William, Reynolds, F. M. B. et Michele Graziadei, Bowstead and Reynolds on Agency, 17e éd. (London: Sweet & Maxwell, 2001)
Appel de la décision du juge adjoint McNeely rendue le 24 juillet 2008 rejetant une poursuite en dommages-intérêts pour diffamation.
Me N. Colin Dougan, pour l’appelante/demanderesse.
Me Craig O’Brien, pour l’intimée/défenderesse.
Lalonde J.: —
 The appellant, Mary Vallières, is appealing a decision by Harold McNeely D.J. of the Small Claims Court which dismissed her claim for $10,000 damages against Caroline Samson.
 In this action, Mary Vallières alleged that Caroline Samson had caused her a loss of income by the publication of defamatory language, communicating these statements to third parties.
 In the course of her work in a Conseil des Ecoles Publiques de l’Est de l’Ontario (“CEPEO”) school, Caroline Samson appraised the work of Mary Vallières, who wanted to qualify for a teacher’s aide position. The two parties to the case disagreed as to the content of the appraisal prepared by Caroline Samson. The latter had supervised Mary Vallières for two weeks: this period was cut down to seven days for reasons not related to the appeal.
 Later, Mary Vallières received only two calls to work from the four school boards in the region. She decided to investigate, telling first her husband, Edgar Éthier, and then an acquaintance, Penny Longpré, to investigate the matter with Caroline Samson. Mr. Éthier contacted Caroline Samson to ask about Mary Vallières’ ability to perform the function of tutor, allegedly for a group of children. Penny Longpré contacted Caroline Samson for references as to Mary Vallières’ ability to act as tutor to her son. Mr. Éthier was told by Caroline Samson that Mary Vallières was [translation] “untruthful and unreliable” and that someone else should be found for the position.
 Penny Longpré met with Caroline Samson at the school where Caroline Samson was teaching and recorded the conversation which she had with Caroline Samson. The recording quality was poor and so it was impossible for the trial judge to make out what Penny Longpré or Caroline Samson were saying on the tape.
 Penny Longpré testified at the trial and stated that Caroline Samson told her it would not be wise to entrust students to Mary Vallières and she would not want her own son to be assigned to a class where the latter was a teacher’s aide. Caroline Samson also said that she could not give a good reference for Mary Vallières and that the latter had been dismissed from a teacher’s aid position in the past.
 In his decision, McNeely D.J. ruled that:
(a) Caroline Samson’s statements in her appraisal of Mary Vallières, made at her employer’s request, were not defamatory in nature;
(b) Edgar Éthier and Penny Longpré were Mary Vallières’ agents when they tried to elicit information from Caroline Samson; he also held that even if the comments on Mary Vallières were not correct, there was no communication to third persons as apart from Mary Vallières’ two agents, no other person had heard Caroline Samson’s comments: the comments made to the two agents were effectively made to Mary Vallières herself; as a result, the trial judge found that there had been no publication of the comments and so no defamation at law.
 In order to understand the grounds of appeal, I should explain that it was not possible to hear the comments made by Caroline Samson from the recording made by Penny Longpré. Mary Vallières gave the audio tape to Kevin Lamoureux, a technician, for him to clean up the sound problems in the audio tape and make copies of the tape on a CD and video with subtitles, as well as a transcript of the words contained in the recording.
 Mary Vallières forgot to summon the technician Kevin Lamoureux to the hearing and his name did not appear on the list of witnesses. She sought an adjournment so the witness could be summoned. The trial judge granted an adjournment to the following morning. Mary Vallières argued that this adjournment for such a short time was unreasonable and she deserved a new trial so she would have an opportunity to summon the technician to the trial.
 Through her counsel, Mary Vallières asked that the appeal be decided on the following points:
(a) Did McNeely D.J. err in law and in fact by refusing to accept that despite concrete proof of dissemination of defamatory language, the court could reasonably conclude by inference that such statements were disclosed to one or more third parties?
(b) Did McNeely D.J. err in law and in fact by concluding that the evidence of the audio specialist was not expert evidence despite the fact that the evidence was not admitted by the court?
(c) Did McNeely D.J. have a moral and/or legal duty to grant an adjournment at the appellant’s request to allow her expert witness to appear before the court?
Analysis and Decision
 It is clear that the trial judge made a proper analysis of the broad discretion conferred on him by rule 2.02 of the Small Claims Court Rules, O. Reg. 258/98 so that the matter could be resolved in a fair and reasonable way. The following is a reproduction of the transcript of the trial of January 25, 2008, giving the reasons which led the trial judge to proceed without hearing Kevin Lamoureux’s testimony:
Nevertheless, there is no report to summarize his evidence and I am not in a position to conclude as to whether the witness was an expert in accordance with the Rules and the law of evidence.
This trial has already been set down for several months and a second pre-trial conference was held in January 2008 to try and assist the parties with their preparations for the trial.
Rule 2.2 gives a judge a great deal of discretion in applying the rules so as to arrive at a fair and reasonable result. However, in order to decide whether the result is fair and reasonable the interests of the two parties must be weighed against each other.
As I have already heard the evidence of witnesses present at the time the alleged defamatory language was used, I am not prepared, for the reasons already stated, to grant a delay by adjournment to enable the plaintiff to summon this witness, whom she should have summoned in accordance with the rules of procedure requiring details of the witness’ evidence, or a report thereof.
 Further, the trial judge was not provided with any information as to the qualifications of the witness in question.
 I dismiss this ground of appeal as I consider that the trial judge exercised his broad discretion properly. There were two pre-trial conferences and Mary Vallières did not perform her duty to be prepared for a trial which had been set down so long in advance.
 Additionally, the individuals concerned, Edgar Éthier and Penny Longpré, testified personally at the trial, and these two witnesses were the two individuals who heard the statements about Mary Vallières that were alleged to be defamatory. In the interests of the sound administration of justice, the trial judge found it fair and equitable to all parties to continue with the trial. I find no error in the trial judge’s exercise of the discretionary authority, even for a proceeding taking place in the Small Claims Court, where parties are favoured with greater indulgence as to their compliance with the court’s rules.
Mary Vallières’ Agents
 Mary Vallières argued that her husband, Edgar Éthier, had her consent to contact Caroline Samson and in law could be described as her agent. This is not true of Penny Longpré, who acted on her own in going to question Caroline Samson without her prior consent.
 In Housen v. Nikolaisen,  2 R.C.S. 235,  S.C.J. No. 31, the Supreme Court of Canada told the judges of appellate courts that the standard to be used in upholding or reversing a trial court judgment was that of correctness on a point of law and palpable and overriding error on points of fact. The Ontario Court of Appeal has held that the question of whether someone is another’s agent is one of fact (Ogdensburg Bridge and Port Authority et al. v. Township of Edwardsburg,  1 O.R. 87, 59 D.L.R. (2d) 537 (C.A.)). According to Housen, therefore, the applicable standard is that of palpable and overriding error.
 I see no palpable and overriding error in the fact that the trial judge held that Penny Longpré was Mary Vallières’ agent. In law no authority was required to make Penny Longpré Mary Vallières’ agent. There is a concept of apparent authority in law, defined as follows in the text titled Bowstead & Reynolds on Agency (2001), at p. 90:
Under this doctrine, where a principal represents, or is regarded by the law as representing, that another has authority, he [or she] may be bound as against a third party by the acts of that other person within the authority which that person appears to have, though he had not in fact given that person such authority or had limited the authority by instructions not made known to the third party. “Ostensible or apparent authority is the authority of an agent as it appears to others.
 When she met Caroline Samson, Penny Longpré first wanted to have references on Mary Vallières. However, the transcript explained that secondly Penny Longpré made herself Mary Vallières’ agent. During the trial cross-examination, Penny Longpré said the following at pp. 21, 22 and 27 of the trial proceedings transcript:
Q. Did Mrs. Vallières mention to you that Edgar had contacted Rose des Vents?
Q. In the past?
A. Yes she did.
Q. And they had a phone conversation, Mr. Éthier ….
A. That’s how come I brought the tape recorder whenever I did go to make the visit to see Mme Samson was because there was a slandering going on said by Mary and Edgar to myself whenever — at the meeting.
Q. So, Mrs. Vallières had informed you before you went to l’école Rose des Vents that Caroline Samson …
A. That they might….
Q. …might have some slander comments towards her.
A. Yes. But they weren’t guaranteed. Like she wasn’t 100 percent.
Q. That’s not what I asked. I just asked she told you that it was a possibility that this person was slandering.
A. Could, yes.
Q. Could slander you (sic).
Q. So you went back home, took a tape recorder….
A. I spoke with my husband and I brought it to his attention everything that was going on and whenever I came back into town I ended up swinging by there on my way out of town and I had the tape recorder on me, yes.
Q. Okay, so your intent was to record that conversation even before you went into the school.
A. Yeah. Because of the information I was given by Mary, yes.
Q. Which was that there was a possible slandering that was going on.
Q. Absolutely. Okay. And when you walked into the school did you identify yourself by name to the secretary that was there?
 Penny Longpré confirmed in her cross-examination that she did not play her recording to anyone but Mary Vallières and her husband. She further admitted that it was the first time she had secretly recorded anyone and she did it with Caroline Samson because of what Mary Vallières had told her.
 According to rule 62.01(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, I was not obliged to take under advisement the question of an unauthorized agent as submitted to me by counsel for Mary Vallières. The rule provides that on appeal the Court may reject any point raised in a party’s submissions that was not stated in the grounds of appeal. I gave counsel for Mary Vallières leave to raise the question of an agent. I conclude that the trial judge did not make any palpable and overriding error by accepting, based on the transcript cited at para. 17 of this decision, that Penny Longpré was an agent of Mary Vallières, who had by implication authorized her to record Caroline Samson’s statements. This ground of appeal is not allowed.
 In granting Mary Vallières leave to file a new ground, I wanted to address all aspects of her appeal once and for all.
 The trial judge considered that the facts stated regarding the part played by Penny Longpré made her Mary Vallières’ agent. Penny Longpré already knew that Caroline Samson was not going to recommend Mary Vallières a tutor for her child. Penny Longpré recorded her conversation with Caroline Samson because of the things Mary Vallières had told her. She may perhaps not have had authority to record the conversation, but the fact remains that she did so and reported to Mary Vallières on the conversation. By these acts, Penny Longpré made herself Mary Vallières’ agent and Mary Vallières had no doubt that Penny Longpré would tell her everything that happened between her and Caroline Samson. The trial judge made no error in his conclusion.
 There was no publication to any third party and the trial judge made no error in finding that the comments made to Penny Longpré by Caroline Samson, in the circumstances described by Penny Longpré, were in effect addressed to Mary Vallières. There was therefore no publication and so no defamation.
 Edgar Éthier is Mary Vallières’ husband. As a result of the family connection, the trial judge made no palpable and overriding error. Mr. Éthier was his fact in wife’s agent in his conversation with Caroline Samson. Accordingly, there was no publication and no defamation by Caroline Samson in her conversation with Edgar Éthier.
 This ground of appeal is dismissed.
Whether Court Could Reasonably Conclude Such Statements Disclosed to One or More Third Parties
 Based on the fact that she only received two calls from schools wanting to hire her, Mary Vallières wished the court to infer publication of the statements made to Penny Longpré to one or more third parties, in particular to schools in the region.
 The submissions of counsel for Mary Vallières in this regard were as follows:
In Gaskin v. Retail Credit Co.,  R.C.S. 297 (Gaskin), the Supreme Court of Canada per Ritchie J. stated the general rule that should be applied by the courts in defamation cases similar to the one at bar. According to the Court:
It is not necessary for the plaintiff in every case to prove directly that the words complained of were brought to the actual knowledge of some third person. If he proves facts from which it can reasonably be inferred that the words were brought to the knowledge of some third person, he will establish a prima facie case.
24. Even if Longpré and Éthier were the appellant’s agents as McNeely D.J. found, the relevance of the statements made to them by the respondent cannot be ignored. In our opinion, according to the Supreme Court’s logic if this evidence is not publication and defamatory comment, it must still be seen as an act that could lead the Court to infer that the said words were probably communicated to one or more third parties.
25. According to Longpré’s testimony, in her meeting with the respondent the latter mentioned that she received [translation] “several” calls from other parents regarding the appellant’s abilities. Further, the respondent openly admitted to Longpré that she could not give them a favourable reference regarding the appellant. In view of the statements communicated to Longpré and Éthier at their initial contact with the respondent, it must be assumed that identical words were probably used to the other parents inquiring about the appellant.
26. It should also be noted that the appellant received only two calls to act as replacement following her training, after she had applied for a number of positions with four school boards in the Cornwall area. The evidence was that the CEPEO never placed the appellant’s information in its computer system, which was used to match teachers’ aides with schools needing their services.
 Counsel for Mary Vallières concluded:
Based on the facts as a whole, with supporting precedents, we consider that the statements made to Longpré and Éthier were probably communicated to the CEPEO and interested parties. We may by inference conclude that there was a strong correlation between the said words and the CEPEO’s failure to put the appellant’s information in its data base. In our opinion, and for the reasons stated above, McNeely D.J. erred in law and in fact when he concluded that the said words had not in any way been published to third parties.
 I agree with the submissions made by counsel for Caroline Samson as to the meaning of Gaskin. Proof of publication is an essential part of defamation law and it is up to Mary Vallières to prove that there was publication in her situation. Ritchie J. said the following in his judgment at pp. 298-99 R.C.S.:
There can be no doubt that proof of publication is an essential element in an action for libel and that the burden of proving this element lies upon the plaintiff. The question of whether or not that burden has been discharged is, in my opinion, one which should be left for the jury to determine, if there is any evidence from which it might reasonably be concluded to be more probable than not that a defamatory statement concerning the plaintiff has been made known to a third party or parties …
 In Gaskin, the Supreme Court of Canada was concerned with a direction given to the jury, withdrawing the case from the jury and ruling that the plaintiff had failed to prove that third parties had knowledge (received and reviewed) of his credit reports, and a new trial was ordered to determine whether there could have been an inference of publication.
 I can readily distinguish Gaskin, as in the case at bar the trial judge expressly found that there was no publication of defamatory statements to the CEPEO or any other school. In his judgment the trial judge held that:
At the trial no evidence was submitted to the Court to the effect that Samson had made negative or defamatory comments to the CEPEO or other school boards in the Cornwall area. Accordingly, since there is no such evidence, Vallières’ action for damages is without basis and I cannot conclude, without such evidence, that Samson made defamatory comments which caused injury to Vallières.
As regards the comments to Éthier and Longpré, those two individuals tried to elicit information from Samson by use of a pretext. They were Vallières’ agents. No one else heard the conversations. Accordingly, even if Samson’s comments were wrong, the comments were not published to other individuals as the communication of these words to Éthier and Longpré had the effect of speaking them to Vallières directly, and if there was no publication of comment there was no defamation.
 The only reference in all the evidence presented by Mary Vallières at trial was noted in the testimony of Penny Longpré, who stated that Caroline Samson told her she had received several calls for references about Mary Vallières. Mary Vallières confirmed she had received two calls regarding employment. The trial judge considered this evidence and found that Caroline Samson had not spoken to anyone else about Mary Vallières’ ability as a teacher’s aide. In his conclusion the trial judge, since there was no persuasive and reliable evidence, made no palpable and overriding error by refusing to infer communication by Caroline Samson to schools in the area for the purpose of blackening Mary Vallières’ reputation and indicating her lack of competence.
 For the reasons above stated, I dismiss Mary Vallières’ appeal with costs.
 If counsel cannot agree on the amount of costs, I will determine them. Brief written submissions should be sent to me within 15 days of release of this judgment by counsel for Caroline Samson, followed by a reply by counsel for Mary Vallières within 10 days following receipt of the submissions made for Caroline Samson.