



COURT OF APPEAL
    FOR ONTARIO

CITATION: Kanak v. Riggin, 2018 ONCA 345

DATE: 20180309

DOCKET: C63856

Doherty, van Rensburg and Nordheimer JJ.A.

BETWEEN

Tracey Kanak

Plaintiff (Appellant)

and

Darryl Riggin

Defendant (Respondent)

Andrew Rogerson, for the appellant

Julian Porter, Q.C., for the respondent

Heard and released orally:  April 4, 2018

On appeal from the judgment of Justice Lucy McSweeney of
    the Superior Court of Justice, dated May 18, 2017 with reasons reported at 2017
    ONSC 2837.

REASONS FOR DECISION

[1]

The plaintiff appeals from the dismissal of her action after a five-day
    trial.  The principal claim was for defamation but there were other alternative
    causes of action advanced.

[2]

The trial judge gave careful and detailed reasons for her conclusions. 
    She found that the statements made by the respondent were defamatory but, given
    that they were made in the context of providing an employment reference, they
    were subject to a defence of qualified privilege.  The trial judge also
    concluded that the plaintiff had failed to prove malice in the making of the
    statements so the defence of qualified privilege was not defeated.

[3]

There is no error in the legal principles applied by the trial judge.  Her
    conclusions are based on the facts as she found them.  There is no basis for
    this court to interfere with those findings, absent palpable and overriding
    error, of which there is none in this case.  The appeal on the merits cannot
    succeed.  In particular, on the hearsay issue the evidence was not adduced for
    the truth of its contents.  With respect to the rule in
Browne v. Dunn
(1893), 6 R. 67, H.L., we do not see that that principle was properly engaged
    in this case in either of the instances referred to by the appellant.

[4]

The appellant also challenges the quantum of costs awarded by the trial
    judge.  Costs are a matter of discretion and the appellant cannot show any
    error that the trial judge made in the exercise of her discretion.  That said,
    the parties have agreed that, in the circumstances of this case, the costs
    ought not to have included costs for the voluntary mediation.

Conclusion

[5]

The appeal on liability is dismissed.  Leave to appeal costs is granted
    and the costs award is reduced by the sum of $8,275.00.  The respondent is
    entitled to his costs of the appeal fixed in the amount of $16,000 inclusive of
    disbursements and HST.

Doherty J.A.

K. van Rensburg
    J.A.

I.V.B. Nordheimer
    J.A.


