Executive Summary: Key Legal and Evidentiary Issues

• The sufficiency of evidence to support a defamation and false light claim under Canadian law was central, with the court finding no genuine issue of material fact.

• Admissibility of affidavit evidence, including relevance, hearsay, lay opinion, and submissions, was rigorously scrutinized for compliance with civil procedure rules.

• The impact of civility and litigation conduct on the assessment of costs, including whether alleged incivility justified enhanced or solicitor-client costs, was a major focus.

• The scope of evidence relevant to costs was debated, particularly whether pre- and post-litigation conduct could be considered.

• The court addressed whether the defendant’s affidavits contained inadmissible argument, speculation, or irrelevant personal attacks.

• Final determination of costs and any monetary award was deferred pending further submissions and admissible evidence.

Background and facts

The case of Fraser v. MacIntosh-Wiseman arose from a dispute between former law firm partners, Donn Fraser and Sarah MacIntosh-Wiseman, following the dissolution of their firm, Mac Mac & Mac. The conflict began when MacIntosh-Wiseman left the firm to take a CEO position elsewhere, triggering a series of contentious email exchanges with Fraser. Tensions escalated after MacIntosh-Wiseman sent an email in March 2021 to Fraser and, separately, to her father (also a partner), who then distributed it to other partners and the office manager. Fraser alleged that this email was defamatory and placed him in a false light, claiming reputational harm and losses associated with the law firm’s eventual collapse.

Fraser and his law corporation sued MacIntosh-Wiseman, asserting that her email and its subsequent distribution were central to the firm’s implosion and his personal and professional damages. The defendant, MacIntosh-Wiseman, denied the allegations, arguing that the email was not defamatory and did not meet the legal threshold for such claims under Canadian law. Both parties represented themselves in the proceedings.

Summary judgment and legal analysis

The court applied the five-part summary judgment test from Shannex Inc. v. Dora Construction Ltd. and determined there were no genuine issues of material fact requiring a trial. Justice Keith found that the March 9, 2021 email, when read in context, would not be considered defamatory by a reasonable person. The court concluded that Fraser’s claim lacked any real chance of success and failed to meet the legal requirements for defamation or false light under Canadian law. As a result, summary judgment was granted in favor of MacIntosh-Wiseman, and Fraser’s claim was dismissed in its entirety.

Evidentiary and costs issues

Following the dismissal, the focus shifted to the assessment of costs. MacIntosh-Wiseman sought enhanced or solicitor-client costs, citing Fraser’s alleged incivility and litigation misconduct, and submitted evidence of significant legal expenses. The court was tasked with determining the admissibility of extensive affidavit evidence from both parties, including objections related to relevance, hearsay, lay opinion, and argumentative submissions. Justice Keith meticulously reviewed each contested statement, applying the rules of evidence and civil procedure, and provided a detailed schedule indicating which portions were admissible for the purposes of the costs hearing.

A key legal issue was whether conduct outside the formal litigation process—such as personal communications and pre- or post-litigation behavior—could be considered in the assessment of costs. The court held that while such evidence might be relevant in rare circumstances, it must have a clear and compelling connection to the litigation and the objectives of indemnification and fair, efficient proceedings.

Outcome and monetary award

The successful party in this case was Sarah MacIntosh-Wiseman, as the court dismissed Fraser’s defamation and false light claims on summary judgment. While MacIntosh-Wiseman sought costs in the amount of $111,324.86, the court did not make a final determination on the amount or entitlement to enhanced costs in this decision. Instead, it set out the framework for admissibility and indicated that the final costs award would be determined after further submissions and presentation of all admissible evidence. As of this decision, the total monetary award or costs granted in favor of the successful party could not be determined.