



COURT OF APPEAL FOR ONTARIO

CITATION: Wallbridge v. Brunning, 2018 ONCA 363

DATE: 20180413

DOCKET: C63203

Juriansz, Lauwers & Miller JJ.A.

BETWEEN

James Wallbridge, Almeda Wallbridge and
    Wallbridge, Wallbridge

Plaintiffs (Appellants)

and

Fay Brunning and Williams-Litigation Lawyers

Defendants (Respondents)

Geoffrey D.E. Adair (Q.C), for the appellants

Michael R. Kestenberg, for the respondents

Heard: February 27, 2018

On appeal from the judgment of Justice Annalisa S.
    Rasaiah of the Superior Court of Justice, dated December 20, 2016 with reasons
    reported at 2016 ONSC 7964.

Juriansz J.A.:

A.

INTRODUCTION

[1]

Wallbridge, Wallbridge is a partnership of lawyers with offices in
    Timmins, Sudbury, North Bay and New Liskeard, Ontario. Williams Litigation
    Lawyers is a partnership of lawyers located in Ottawa, Ontario. Fay Brunning is
    a lawyer duly licensed to practice law in the Province of Ontario and she practices
    in association with Williams.

[2]

Brunnings practice is separate from that of Williams, but she shares
    the same office address, telephone number, fax number and front desk
    receptionist. She pays Williams a monthly rental fee for the space and
    facilities she uses in Williams office. Williams authorized Brunning to use
    its letterhead described below, without supervision.

[3]

Williams letterhead references Brunning as Practicing in Association,
    not in Partnership. In particular, Brunnings name is listed with other
    lawyers names in the header of the letterhead with an asterisk beside her
    name. She is the only lawyer listed in the header of the letterhead with an
    asterisk. The footer of the letterhead lists Brunnings name again and all of
    her contact information. Similarly, Brunnings email signature indicates that
    she is Practicing in Association with Williams. Williams website includes a
    photo of Brunning, along with photos of the Williams lawyers under the titles
    Our Lawyers and Meet Our Team. The other lawyers are identified as Counsel,
    Partner or Associate. Brunning is identified as Lawyer, Practicing in
    Association.

[4]

One area of Brunnings practice includes the representation of former
    Indian Residential School students claiming compensation for historical
    mistreatment at various residential schools (IRS Claims or IRS Claim).

B.

BACKGROUND

[5]

On or about May 20, 2016 Wallbridge issued a statement of claim alleging
    that Brunning made a series of defamatory comments, misrepresentations and
    allegations about or directed at Wallbridge related to their representation of
    former Indian Residential School students. Wallbridge named Williams as a
    defendant claiming that Williams was vicariously liable for the defamatory
    comments, misrepresentations and allegations of Brunning.

[6]

Williams had no knowledge of the allegedly
    defamatory correspondence written and sent by Brunning in respect of the IRS
    Claims.

[7]

Williams brought a motion for
    summary judgment seeking dismissal of the action as against it. Its
motion
    record contained its motion, the affidavit of Mr. Kelly Hart, a Partner with
    Williams, and the statements of claim and defence
.

[8]

In resisting the motion,
    Wallbridge
filed no affidavits, but did
    file a letter from
Williams counsel that provided Mr. Harts answers to
    written interrogatories made by Wallbridges counsel as cross-examination on
    Mr. Harts affidavit.
Brunning did not
    participate in the motion.

C.

MOTION JUDGES DECISION

[9]

On motion for summary judgment Williams raised two issues. First, Williams
    argued that Wallbridge had not filed the correspondence alleged to be
    defamatory, and so had failed to put its best foot forward. The content of the allegedly
    defamatory correspondence was merely set out in the statement of claim. Second,
    Williams argued that since the evidence established Brunning was never an
    employee, agent or partner of Williams and was never held out to be the same,
    there was no basis upon which it could be found vicariously liable. Therefore, there
    was no genuine issue for trial.

[10]

Wallbridge
    responded arguing that there was a genuine issue requiring a trial, being
    whether Brunning should be treated as either a partner or employee of Williams
    such that Williams was vicariously liable for the actions of Brunning in respect
    of the defamatory correspondence.

[11]

The
    motion judge granted summary judgment on the second issue, deciding that
    Williams could not be vicariously liable for Brunnings allegedly defamatory
    correspondence. She found it unnecessary to deal with the first issue.

[12]

The
    motion judge reasoned that
Brunning was not a partner or
    employee of Williams and was not acting as its agent; that
Williams took
    steps to identify its relationship with Brunning, on its letterhead and in its
    email template, so as to make the status of their relationship clear to
    recipients;
that Brunnings relationship with Williams was a space
    and cost-sharing agreement only; that
there was no evidence Williams
    specifically authorized the use of its letterhead and email template to publish
    defamatory statements; that Williams did not know about the correspondence
    until after the fact; that functionally, Williams did not control the conduct
    of Brunning and was not in command of Brunning; that Williams did not practice
    in the area of IRS Claims, and at no time did Williams participate in or act in
    respect of Brunnings IRS Claim files.

[13]

On
    these facts, the motion judge found that vicarious liability should not attach
    to Williams for any defamation by Brunning. Given her decision on the issue of
    vicarious liability, she did not address the issue of Wallbridges failure to
    adduce any evidence of the defamation.

D.

ISSUES ON APPEAL

[14]

The
    same two issues are raised on appeal.

[15]

Williams
    submits the appeal should be dismissed at first instance, on the basis that Wallbridge
    led no evidence establishing defamation on the motion. It further submits the
    motion judge correctly decided the issue of liability on summary judgment.

[16]

Wallbridge
    submits that the motion judge erred in granting summary judgment. For the
    reasons that follow, I agree.

E.

ANALYSIS

(1)

Issue 1: Wallbridges failure to file evidence of the defamation

[17]

While
    conceding that it brought its summary judgment motion solely on the basis that
    it could not be found to be vicariously liable for Brunnings allegedly defamatory
    correspondence, Williams submitted before the motion judge and in this court
    that Wallbridge had failed to file evidence establishing defamation.

[18]

The
    motion judge noted that there was no denial in Williams evidence that Brunning
    sent the correspondence, and also that the court knew from having heard another
    motion in the proceeding that Brunning claimed defences for having written the
    correspondence. The motion judge was entitled to take judicial notice of what
    was in the court file, namely, that Brunning conceded writing the
    correspondence alleged to be defamatory. She also noted that counsel for
    Wallbridge offered to file a one-paragraph affidavit attaching the allegedly
    defamatory correspondence, but did not rule on that offer, saying she did not
    need to decide the issue of the filing of further material.

[19]

Had
    the motion judge dealt with this argument, it would have been properly
    rejected. Williams defended the action as against it on the basis that it was
    not liable for any of Brunnings acts or omissions. Williams statement of
    defence did not deny or otherwise address the paragraphs of the statement of
    claim that set out Brunnings allegedly defamatory correspondence. Consistent
    with this, Williams brought its summary judgment motion solely on the basis
    that it could not be found to be vicariously liable for that correspondence.

[20]

Williams
    argument that Wallbridge failed to put its best foot forward has no merit. That
    the correspondence was allegedly defamatory was not a live material issue in
    the action between Wallbridge and Williams. The only live material issue in the
    action between them, as defined by the pleadings, was whether Williams could be
    found liable for that correspondence, and that is the issue to which Wallbridge
    responded.

[21]

While
    this is sufficient to dispose of this issue, I add that I did not find
    persuasive Williams argument that even though its summary judgment motion was
    brought on the narrow and specific ground of vicarious liability, Wallbridge
    was required to put its best foot forward and file evidence establishing defamation.
    This would mean, for example, that if a defendant brings a summary judgment
    motion on the narrow and specific ground that the plaintiff missed the
    limitation period, the plaintiff would be required to file evidence proving its
    entire case on the merits.  The proposition, if correct, would cause much
    inefficiency.

[22]

The
    authorities Williams relied on for this proposition were not helpful. For
    example, in
Mahoney v. Sokoloff
, 2015 ONCA 390, the defendants brought
    a general summary judgment motion that was granted. On appeal, this court, at
    para. 3, explained [t]he appellants complain that, in their summary judgment
    materials, the respondents failed to challenge specifically the appellants FLA-based
    claims for damages. In these circumstances, they say, they were not obliged to
    lead evidence of these damages on the summary judgment motion. This court
    rejected that argument. Accordingly, the appeal was dismissed. In
Mahoney
,
    the appellants argued they did not have to respond to an argument unless it was
    specifically raised in the summary judgment motion materials. Conversely, in
    this case, Wallbridge responded to the only argument specifically raised.

[23]

The better authority is
Transamerica Life Insurance Co. of
    Canada v. Canada Life Assurance Co
.
(1996)
,
28 O.R. (3d) 423
    (Gen. Div.)
.
The summary judgment motion
    in
Transamerica
was similar to the one in this case. Canada Life
    Assurance Co. brought a summary judgment motion on the ground that it could not
    be found to be liable for the wrongs of Canada Life Mortgage Services Ltd., its
    wholly owned subsidiary. It was on that issue that Sharpe J. found that
    Transamerica had failed to put its best foot forward. He said, at para. 24: 
[i]n my view, Transamerica has failed to present
    evidence to indicate that there is a triable issue
on this point
and
    Canada Life has met the onus of showing that it should be granted summary
    judgment
on this issue
. [Emphasis added.]

[24]

Given that Williams summary
    judgment motion was brought solely on the ground of vicarious liability,
    Wallbridge was only obliged to respond to that issue.

(2)

Issue 2: Williams possible liability for Brunnings alleged defamation

[25]

I
    would allow the appeal on this issue. The motion judge recognized that the
    question whether Williams was liable for Brunnings alleged defamation was without
    precedent and involved the application of policy rationales. The evidence
    included several factors that could support a finding that Williams should be found
    liable for the allegedly defamatory correspondence. The motion judge attached
    little weight to or disregarded these factors.

[26]

The
    question was a novel one. The implications of lawyers practicing in
    association are potentially far-reaching, certainly much wider than the
    litigants and dispute in this case. It was not in the interests of justice to
    decide the question on summary judgment motion given the importance and novelty
    of the question and the existence of much evidence supporting the appellants
    position. The question would be better determined on a full evidentiary record,
    where the factual and legal issues and the consequences of imposing liability
    on the respondent can be carefully considered.

[27]

The
    motion judge did not attach weight to the fact that the publication of most of the
    allegedly defamatory correspondence was on the letterhead of the Williams firm.
    This could reasonably be seen as Williams placing its reputation behind the
    alleged defamation.

[28]

Brunnings
    use of Williams letterhead to send the allegedly defamatory correspondence was
    fully authorized. Williams granted to Brunning a complete and uncontrolled
    licence to communicate using its letterhead. In doing so, Williams created the
    opportunity, and took the risk, Brunning could use its letterhead to publish
    defamatory material, as it is alleged she did in this case.

[29]

The
    motion judge regarded Brunning as independent from Williams such that Williams
    could not control her conduct except by reviewing all her correspondence before
    it was sent. That may be so, but Williams could have avoided being implicated
    in Brunnings conduct by refusing to allow Brunning to use its letterhead,
    leaving Brunning to use an individual letterhead showing her as a sole
    practitioner at the same address. Williams allowed its name and reputation to
    be used in conveying the alleged defamation.

[30]

While
    the motion judge found Williams never held Brunning out as a Partner or
    Associate of the firm, she never considered the import of the fact Williams
    held Brunning out as associated with it. Williams holding Brunning out as associated
    with it was methodical and purposeful. Mr. Hart states in para. 3 of his
    affidavit 
Brunning began practicing in association with Williams
on or
    about January 2, 2016. In para. 4, Mr. Hart states 
Brunning
    had an existing law practice and had no employment relationship with Williams
before
    she began practicing in association with Williams
. In para. 7, he
    states that Williams began using the [Williams] letterhead shortly after
Brunning
    began practicing in association with Williams
. In para. 9, he confirms
    that Williams website at all material times, indicated that
Brunning
    practices in association with the firm
. [Emphasis added.]

[31]

Williams
    pleading is to the same effect. Para. 5 of Williams statement of defence
    pleads that Brunning had an existing law practice when she began
practicing
    in association with Williams
. Similarly, para. 8 pleads that [a]t all
    material times, Williams letterhead clearly indicated that
Brunning was
    practicing in association with Williams.
Para. 10 denies any vicarious
    liability but affirms that Brunning at all material times
was practicing in
    association with Williams
. [Emphasis added.]

[32]

The
    header of the sample letter written on Williams letterhead and attached to Mr.
    Harts affidavit lists Brunning, with an asterisk, together with the other
    Williams lawyers. The footer of the Williams letterhead has, from left to
    right, the address and website of the Williams firm, Brunnings name with the
    identification Lawyer and her email address at the domain @williamslitigation.ca
    and finally an asterisk that states Practicing in Association, not in
    Partnership. Each of the following seven pages of the sample letter has the
    header WILLIAMS Litigation Lawyers. There is no asterisk on the headers of
    the following pages.

[33]

Exhibit
    C to Mr. Harts affidavit is a printout from Williams website. It includes
    Brunnings photo along with photos of the Williams lawyers under the titles
    Our Lawyers and Meet Our Team. The other lawyers are identified as Counsel,
    Partner or Associate. Brunning is identified as Lawyer, Practicing in
    Association.

[34]

Exhibit
    B to Mr. Harts affidavit is a sample email sent by Brunning. Below her name is
    the identification Barrister and Solicitor and the note Practicing in
    Association with Williams Litigation Lawyers. Williams logo is displayed
    prominently below.

[35]

No
    evidence from recipients of the allegedly defamatory correspondence is
    necessary to establish that they understood Brunning is associated with
    Williams. The evidence clearly establishes that fact, and Williams claims that
    is the case. The letterhead and website state that Brunning is not a Partner,
    and they distinguish her from the status of Associate. However, the evidence
    could support a finding that Williams holds Brunning out as a lawyer who is one
    of Our Lawyers and a member of Our Team, albeit one who practices in
    association with it.

[36]

Given
    the strength of the evidence that could support a finding that Williams should
    be found liable for Brunnings allegedly defamatory correspondence, and given
    the novelty and importance of the question, the motion judge should have
    refused to grant summary judgment and allowed the matter to proceed to trial.

F.

DISPOSITION

[37]

Accordingly,
    for the reasons given, I would allow the appeal. I would set aside the order of
    the motion judge, dated September 23, 2016, granting summary judgment in favour
    of Williams and dismissing Wallbridges action as against it. The appellant is entitled
    to the costs of the appeal in the agreed upon all-inclusive sum of $12,500 and
    to the costs of the motion in the amount that the trial judge fixed in favour
    of Williams.

Released: RGJ APR 13, 2018

R.G. Juriansz J.A.

I agree. P. Lauwers
    J.A.

I agree. B.W. Miller
    J.A.


