



COURT OF APPEAL FOR ONTARIO

CITATION: Amorosi v. Barker, 2020 ONCA 144

DATE: 20200220

DOCKET: C67396

Doherty, Brown and Thorburn JJ.A.

BETWEEN

Mark
    Amorosi

Plaintiff (Respondent)

and

Gerry Barker

Defendant (Appellant)

Jordan Goldblatt, for the appellant

Iain A.C. MacKinnon, for the respondent

Heard and released orally: February 10, 2020

On
    appeal from the order Justice Petersen of the Superior Court of Justice, dated August
    9, 2019.

REASONS FOR DECISION

[1]

The necessary factual background is set out in
    the reasons of the motion judge: see
Amorosi v. Barker
, 2019 ONSC
    4717.

[2]

There are two grounds of appeal:

1.

Did the motion
    judge err in granting an adjournment of the motion to allow for cross-examination
    of the appellant (plaintiff) on his affidavit filed on the motion?

2.

Did the motion judge err in the balancing of the competing interests required
    under s. 137.1(4)(b) of the
Courts of Justice Act
?

The Adjournment Issue

[3]

The appellant argues that the adjournment should not have been granted
    because it effectively deprived the motion judge of jurisdiction to hear the
    motion by extending the hearing of the motion beyond the 60-day time limit
    referred to in s. 137.2(2).

[4]

Read with s. 137.2(3), the requirement in s. 137.2(2), that the motion
    shall be heard within 60 days, requires that the date on which the motion is
    heard, that is commenced, must be within 60 days of the filing of the motion.

[5]

The language of the subsection permits the interpretation that 60 days
    refers to the commencement of the motion. The practicalities of litigation in
    the province demand that interpretation. Clearly, the legislation intended that
    these motions should be heard expeditiously. Equally clearly, the legislature did
    not intend to impose an arbitrary and unbending limit on the time needed to
    hear and determine the motion. It does not take much imagination to think of
    fact situations in which a 60-day hard cap would lead to wasting of important
    resources and unfair results.

[6]

The purpose animating s. 137.1 is fully served by interpreting the
    section as requiring that the motion be returnable before the motion judge
    within 60 days of the filing of the motion. The motion judge is then in a
    position to ensure that the motion proceeds expeditiously and fairly to all
    concerned.

[7]

The second issue, that is the balancing of the competing interests under
    s. 137.1(4)(b), engages a motion judges discretion. There are clearly
    competing interests which must be examined. The motion judge did that. This
    court has addressed the exercise of the discretion under that provision in a
    series of cases. In doing so, the court has recognized that different judges
    may well exercise their discretion differently in given cases. This court shows
    deference to those determinations.

[8]

The appellant argues that the motion judge erred in concluding there was
    evidence supporting the respondents alleged damages flowing from the alleged defamation.
    The appellant submits that, on the record, the alleged damages were
    attributable to an entirely independent event which led to the respondents
    dismissal.

[9]

We see no error in the motion judges consideration of this evidence.
    The  evidence offered by the plaintiff (respondent) suggests a causal
    connection between the defamation and damages suffered by the respondent. The
    appellants (defendant) material puts forward a separate cause for the damages.
    In exercising her discretion under s. 137.1(4)(b), the motion judge was
    entitled to consider that there was evidence of a causal connection between the
    defamation and the alleged damages. The respondent (plaintiff) was not required
    to prove his damages in the context of his response to the s. 137.1 motion.

[10]

Counsel
    for the appellant in oral argument also referred to two alleged factual errors,
    which he said constituted clear and palpable errors, warranting the
    intervention of the court. We are not satisfied that the motion judge made
    either error and, in our view, neither error, if made, was sufficiently
    material to warrant the intervention of this court.

[11]

Finally,
    we note that, in considering the plaintiffs potential damages for the purposes
    of the balancing under s. 137.1(4)(b), the motion judge observed, at para. 55
    and again at para. 70, that the plaintiffs damages might well be
    significant. In our view, it was open to her to reach that assessment and to
    take that assessment into account in the balancing required under the
    provision. We see no basis upon which we should interfere with the motion
    judges determination.

[12]

The appeal is dismissed. Costs of the appeal awarded to the respondent
    in the amount of $10,000, inclusive of disbursements and all relevant taxes.

Doherty
    J.A.

David
    Brown J.A.

Thorburn
    J.A.


