




CITATION:
Conn v. Goldstone
          Resources Inc., 2011 ONCA 727



DATE: 20111121



DOCKET: C53870



COURT OF APPEAL FOR ONTARIO



MacPherson, LaForme JJ.A., and Hackland J. (
ad hoc
)



BETWEEN



Gary Conn



Plaintiff (Appellant)



and



Goldstone Resources Inc., Phillip Cunningham, Morris
          Prychidny, Paul Little, Jeffrey Elliot, Ania Baska and Ross McGroarty



Defendants (Respondents)



Peter A. Downard and Vera Toppings, for the appellant



Patricia Virc, for the respondents Baska and McGroarty

Murray Stieber, for the respondents Cunningham, Prychidny,
          Little and Elliot

Joseph DAngelo, for the respondent Goldstone Resources Inc.



Heard and released orally:
November 18, 2011



On appeal from the judgment of Justice Kelly A. Gorman of the Superior
          Court of Justice dated May 24, 2011.



ENDORSEMENT



[1]

The appellant appeals the order of a motion judge granting summary
    judgment to the respondents, dismissing the action.  The appellant alleged that
    he was defamed by a paragraph in the respondents statement of defence in a
    wrongful dismissal action, which was allegedly circulated outside of the
    proceedings prior to being filed with the court.  The statement of defence
    alleged that his termination from employment was justified for several reasons
    including that he participated in:

Installing undisclosed cameras, equipped with
    microphones, in the living accommodations where geologists and mining staff
    spent their off hours at Goldstones six bedroom house in Beardmore which
    serves as an office and residence for the companys mining staff, presumably
    for the purpose of secretly monitoring their private activities for his own
    amusement.  By doing so, Conn invaded the employees privacy and committed a
    criminal act of dishonesty [...]

[2]

The respondent sought summary judgment on the basis that the alleged
    defamatory statements which form the basis of the claim are true and therefore that
    there was no genuine issue requiring a trial.  The motion judge accepted that
    position, finding that on the record before her, the respondent had established
    the substantial truth of the allegations.

[3]

In so finding the motion judge noted that the sole issue in the
    pleadings that was not admitted was the assertion that the appellant installed
    the surveillance equipment for his own amusement and the implication that
    this was done for his personal gratification as a peeping tom or voyeur.

[4]

The motion judge held that the purpose for which the appellant installed
    the cameras was immaterial because as we interpret her reasons, the sting of
    the defamation was that the appellant unlawfully and without legal
    justification intercepted the private communications of these employees.

[5]

In our view there was sufficient evidence to support the motion judges
    conclusion on this issue.  The appellant filed no affidavit material on the
    motion, in the face of the requirement in Rule 20.02(2) requiring a responding
    party may not rest solely on the allegations or denials in the partys
    pleadings, but must set out, in affidavit material or other evidence, specific
    facts showing that there is a genuine issue requiring a trial.  In contrast the respondents filed affidavits from employees generally supporting
    the conclusions which she reached.

[6]

Accordingly, the appeal is dismissed.

[7]

The respondents are entitled to their costs of the appeal fixed as
    follows: Goldstone Resources Inc. $9,000, the Cunningham respondents $6,000 and
    the Baska respondents $5,000, all inclusive of disbursements and HST.

J.C.
    MacPherson J.A.

H.S. LaForme
    J.A.

Hackland J. (
ad hoc
)


