



COURT OF APPEAL FOR ONTARIO

CITATION: Rainy River (Town) v. Olsen, 2017 ONCA 605

DATE: 20170720

DOCKET: C63224

Sharpe, Lauwers and Roberts JJ.A.

BETWEEN

The Corporation of the Town of Rainy River and
    Deborah Ewald

Applicants (Appellants)

and

Paul Olsen

Respondent (Respondent)

Allan D. McKitrick, for the appellant

No one appearing for the respondent

Heard: July 17, 2017

On appeal from the order of Justice Helen M. Pierce of
    the Superior Court of Justice, dated December 20, 2016, with reasons reported
    at 2016 ONSC 8009.

REASONS FOR DECISION

[1]

The Town of Rainy River
    and its mayor, Deborah Ewald, brought an application

to stop the
    respondent, Paul Olsen, from continuing to harass and defame the mayor, members
    of Town council, and staff. The application was brought under r. 14.05(3)(h) of
    the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194,
on the
    basis that it was unlikely that there will be any material facts in dispute.
    There were no facts in dispute since Mr. Olsen declined to participate and the
    only evidence before the application judge was provided by representatives of
    the Town. However, the application judge refused to grant any of the relief
    sought.

[2]

On this appeal,
    counsels focus was on whether the application judge erred in refusing to issue
    a
declaration that Mr. Olsens conduct
    breached the Towns Violence Free in the Workplace Policy and the Harassment
    Policy under the
Occupational Health and Safety Act
, R.S.O. 1990, c. O.1, on the basis that the Town has
    a duty to protect its workers under the terms of the Act.

[3]

The application judge
    found, at para. 35, that neither the
Occupational Health and Safety
    Act
nor
the Towns policy under it had any application to Mr.
    Olsen, since the harassment occurred outside the workplace and Mr. Olsen is not
    a worker or co-worker as defined by the Act. We see no error in this
    determination.

[4]

Counsel then focused on
    the application judges refusal to issue a permanent injunction restraining Mr.
    Olsen from making 
in any manner
    whatsoever directly or indirectly, any statements or comments about Deborah
    Ewald or any other town councillor, employee or agent that are defamatory
    and/or made with malice or ill-will. Counsel expressed particular concern
    about personally harmful effects of the dissemination of emails that are 
    malicious vexatious, harassing, defamatory and/or abusive.

[5]

The application judge
    pointed out, at para. 60, that a permanent injunction would have been
    appropriate if there had been a verdict of defamation or a final judgment in
    defamation, but there has been none here. She noted that the court will award a
permanent injunction after there has been a finding
    of defamation, as noted in
Astley v. Verdun
, 2011 ONSC 3651, 106 O.R. (3d) 792, where Chapnik J.
    wrote, at para. 21:

Permanent injunctions have consistently been ordered after
    findings of defamation where either: (1) there is a likelihood that the
    defendant will continue to publish defamatory statements despite the finding
    that he is liable to the plaintiff for defamation; or (2) there is a real possibility
    that the plaintiff will not receive any compensation, given that enforcement
    against the defendant of any damage award may not be possible. [Citations
    omitted.]

[6]

Such injunctions are not at large,
    as the appellants sought in this case, but are invariably linked to a finding
    that defamation has occurred:

see
Barrick Gold Corp. v. Lopehandia
(2004), 71 O.R. (3d) 416 (C.A.), at para. 78;
Astley
, at para. 35;
Ottawa-Carleton District
    School Board v. Scharf
, [2007] O.J. No.
    3030 (S.C.), at para. 30, aff'd 2008 ONCA 154, leave to appeal refd, [2008]
    S.C.C.A. No. 285.

[7]

As this court noted in
St.
    Lewis v. Rancort
, 2015 ONCA 513,
    337 O.A.C. 15, leave to appeal refd, [2015] S.C.C.A. No. 407, at para. 16: 
A broad ongoing injunction is an extraordinary remedy
    which should be used sparingly.  Our society protects freedom of speech as
    essential to democratic life. Restraints on it are carefully limited. One such
    restraint is the common law of defamation. However, the appellants did not seek
    a declaration that Mr. Olsen had defamed the mayor or anyone else, and the
    application judge did not make such a finding. We see no error in her refusal
    to issue a permanent injunction regarding defamatory speech.

[8]

We do not condone any of Mr.
    Olsens abusive misconduct and are sympathetic to the concerns expressed by the
    mayor and others, including their fears that his misconduct could be
    escalating. Mr. Olsen should draw no comfort from our words. Nothing prevents
    the mayor or others from suing Mr. Olsen for defamation on the basis of his
    most recent email transmissions or should he repeat his conduct, subject to
    applicable notice and limitation periods. A definitive finding could well lead
    to a permanent injunction and expose him to penalties for contempt of court if
    he persists, such as imprisonment. Mr. Olsen would be well advised to desist.

[9]

The appellants also
    have available other remedies to restrain Mr. Olsens behavior such as issuing
    a trespass notice under the
Trespass to Property Act
, R.S.O. 1990, c. T.21
,
or pursuing a peace bond under the
Criminal
    Code
.

[10]

Finally, the appellants
    also sought

a permanent order restraining Mr. Olsen from
    maintaining or purporting to maintain, without permission or authority from the
    Town, any Town property, including any municipal streets, sidewalks and road
    allowances. The evidence justifies this relief and the application judge erred
    in not addressing it directly. We allow this aspect of the appeal. Order
    accordingly.

[11]

The appeal is allowed in part with
    costs payable by Mr. Olsen to the appellants in the amount of $2,500.00,
    inclusive of disbursements and taxes, if payment is demanded by the appellants.

Robert
    J. Sharpe J.A.

P.
    Lauwers J.A.

L.B.
    Roberts J.A.


