



COURT OF APPEAL FOR ONTARIO

CITATION: Boiko v.
    Grover, 2015 ONCA 161

DATE: 20150312

DOCKET: C57903

Lauwers, Hourigan and Pardu JJ.A.

BETWEEN

Yuri Boiko

Plaintiff (Appellant)

and

Chander Grover, Peter Hackett, Mary McLaren,
    National Research Council

Defendant (Respondent)

R. Mitchell Rowe, for the appellant

Helene Robertson, for the respondents

Heard and released orally: March 2, 2015

On appeal from the summary judgment of Justice B.R.
    Warkentin of the Superior Court of Justice, dated October 15, 2013.

ENDORSEMENT

[1]

The appellant was hired by the respondent, the National Research Council
    (NCR) in November 2001. As an employee of the NRC, he was subject to the
    terms and conditions of the
Public Service Staff Relations Act
, R.S.C.
    1985, c. P-35 (
PSSRA
), which was in effect at the time. The other
    respondents are employees of the NRC.

[2]

The first three years of the appellants employment were a probationary
    period. After he received a number of unfavourable performance reviews during
    this period, the NRC terminated his employment in July 2004.

[3]

Consistent with the NRCs standard practice, the human resources department
    prepared a draft Release on Probation document (the Release), which summarized
    the contents of the appellants performance reviews. The Release was reviewed
    by managers and other NRC human resources employees, including the individual
    respondents.

[4]

The appellant has since filed numerous complaints against the NRC in
    various forms. He commenced the underlying action for defamation in March 2009,
    seeking $1 and a letter of apology as damages. His statement of claim alleges
    that statements in the Release were defamatory.

[5]

The respondents brought a motion for summary judgment arguing that the
    appellants claim (1) was barred by the
PSSRA
; (2) was out of time; (3)
    did not correctly plead the elements of defamation; and (4) was subject to the
    defence of qualified privilege.

[6]

The motion judge granted the motion for summary judgment on three of the
    four grounds submitted by the respondents. First, the motion judge found that
    the claim was barred by the
PSSRA
. Although the claim was framed as a
    defamation action, she found that it was in reality a dispute related to the
    termination of the appellants employment. She considered this to be precisely
    the type of workplace dispute Parliament determined should be resolved by the
    grievance scheme governed by the
PSSRA
. The appellant has already
    availed himself of that system.

[7]

The motion judge found that there was no evidence to support the
    appellants argument that the sole purpose of the Release was a malicious
    desire to damage his reputation. To the contrary, the Release was a summary of
    the reasons for terminating his employment, and there was nothing new in it
    that went beyond the performance reviews. The Release was a type of document routinely
    used by the NRC. Further, the appellant conceded that the Release was never
    published outside select NRC employees.

[8]

Second, the motion judge found that the appellant did not discharge his
    burden of demonstrating that any of the statements in the Release were
    defamatory. The motion judge did not accept that the impugned statements were
    untrue. As a result, even if the appellant was not required to pursue his
    complaint through the grievance system, the motion judge found that none of the
    elements of defamation could be established, and there was no need for a trial
    on this issue.

[9]

Third, the motion judge found that the respondents were protected by
    qualified privilege, since they prepared the Release in the course of their
    employment. The appellant did not provide any evidence of malice on the part of
    the respondents, which is the only basis for depriving them of the defence of
    qualified privilege.

[10]

The
    motion judge concluded on these three separate bases that there was no genuine
    issue for trial.

[11]

This
    appeal is the latest step in a long series of claims by the appellant against
    the respondents in relation to the NRCs termination of his employment. The
    appellant has brought a number of grievances, an application for judicial
    review and Canadian Human Rights Commission complaints. He now seeks to
    litigate the underlying dispute as a claim for defamation.

[12]

We
    see no error in the motion judges determination that the defamation
    characterization does not permit the appellant to circumvent the applicable
PSSRA
grievance procedure, which he is still pursuing. We also find no error in the
    motion judges alternative conclusions  that there was no evidence to support
    the elements of defamation and that the respondents were protected by a
    qualified privilege.

[13]

The
    appeal is dismissed with costs to the respondent, fixed in the amount of
    $3,000, all-inclusive.

P.
    Lauwers J.A.

C.W.
    Hourigan J.A.

G.
    Pardu J.A.


