Iris Fischer

This was a costs endorsement following dismissal of a defendants' security for costs motion in a defamation action under s. 12 of the Libel and Slander Act.

The court held the successful plaintiff was entitled to costs, rejected substantial indemnity, and fixed costs on a partial indemnity basis after applying the Rule 57.01(1) factors, including the motion's significant complexity, the amount at stake, and the volume of the record.

Although the plaintiff had mortgaged her property to her lawyers, the court held that circumstance did not disentitle her to costs, but it justified deferring payment until after trial.

Costs were ordered in the amount of $50,000 inclusive of disbursements and HST, payable to the plaintiff in any event of the cause.

The defendants in a libel action brought a motion for security for costs under section 12 of the Libel and Slander Act after the trial judge passed away before rendering a decision.

The court held that the test under section 12 is conjunctive, requiring the defendants to prove that the plaintiff lacks sufficient assets, that the defendants have a good defence on the merits, and that the statements were made in good faith.

Although the plaintiff lacked sufficient assets, the defendants failed to establish that their defences of justification, fair comment, or responsible journalism were more likely than not to succeed, or that the statements were made in good faith.

The motion for security for costs was dismissed.

The Town of Georgina brought a motion for an interim restraining order to prevent the respondents from dumping fill on a former pit property without a permit under the Town's Site Alteration By-law.

The respondents argued they were importing fill to rehabilitate the land pursuant to a site plan under the Aggregate Resources Act.

The court granted the interim restraining order, finding a serious issue to be tried, no irreparable harm to the respondents if delayed, and that the balance of convenience favoured the Town and the province, as the corporate owner of the land had been dissolved and the property was vested in the Crown.

Media organizations brought a motion seeking access to the transcript and materials from an in camera child protection apprehension hearing after an order excluded the media due to urgent circumstances involving missing children.

The court applied the Dagenais/Mentuck framework governing limits on the open court principle and freedom of the press.

While recognizing the strong presumption of openness, the court held that protection of vulnerable children and the administration of justice justified continued limits where some children remained missing.

However, once several children were safely in the care of the child welfare authority, the continued blanket restriction was no longer necessary.

The court ordered that a redacted transcript be made available to the media, removing identifying information and information relating to children still missing.

A media organization applied for access to and copies of exhibits filed at a criminal trial and sentencing hearing.

The accused did not oppose disclosure except for personal identifying information contained in a pre‑sentence report, a position supported by the Crown.

Applying the open court principle and the Dagenais/Mentuck framework, the court held that no evidence justified restricting access to the exhibits.

The court ordered disclosure of all exhibits but required that identifying information of third parties in the pre‑sentence report be redacted pending notice to those individuals and an opportunity for them to respond regarding potential disclosure.

In a defamation trial concerning an allegedly defamatory newspaper article also posted online, the plaintiff sought to introduce evidence of republication on third‑party websites based on Internet search results.

The court considered the rule that each republication of a libel is a separate publication and that the original publisher is not liable for subsequent republications unless an exception is pleaded, such as where repetition is the natural and probable consequence of the original publication.

The court reviewed authorities confirming that pleadings in defamation actions must specifically allege such exceptions.

Because the statement of claim did not plead the republication exception and no amendment had been sought despite notice from the defendants, the court held the plaintiff could not introduce evidence of republication by other Internet sites.

The evidentiary request was therefore refused.

The court dismissed both an application to set aside and an appeal from an accounting arbitration under an asset purchase agreement.

The moving party argued the arbitrator exceeded jurisdiction and made manifest errors by quantifying deferred-revenue adjustments without independent expert evidence.

The court held the arbitration agreement and engagement letter authorized determination and quantification of disputed deferred-revenue items, and that the award reflected a factually grounded analysis of known costs and contingency risk allocations.

The high threshold for court intervention was not met.

Media organizations sought permission to use electronic devices to transmit information from inside the courtroom and to make audio recordings during a criminal jury trial.

The court considered s. 136 of the Courts of Justice Act and an applicable practice direction permitting unobtrusive audio recording by journalists solely to supplement handwritten notes.

The court authorized such audio recordings and permitted journalists to transmit information from inside the courtroom, provided proceedings were not disrupted.

The court also established a procedure governing media access to large volumes of documentary exhibits, requiring undertakings preventing publication until a judicial determination confirmed sufficient evidence to place the document before the jury.

A publication restriction was ordered for specified personal identifying information contained in documentary materials.

The appellants brought a defamation action against the respondent newspaper and reporter over an article concerning a proposed private golf course development and alleged political influence.

At trial, the jury found for the appellants and awarded damages.

The Court of Appeal set aside the verdict and ordered a new trial, recognizing a new defence of responsible journalism.

The Supreme Court of Canada dismissed the appeal, formally recognizing the new defence of responsible communication on matters of public interest.

The Court held that the traditional strict liability regime for defamatory statements of fact failed to adequately protect freedom of expression under the Charter.

The new defence applies where the publication is on a matter of public interest and the publisher was diligent in trying to verify the allegations.

A new trial was ordered due to the trial judge's failure to leave this defence to the jury and errors in the fair comment instruction.

Media organizations appealed orders upholding a mandatory publication ban imposed under s. 517 of the Criminal Code during terrorism-related bail proceedings and interpreting the ban to apply to all jointly charged accused when requested by one accused.

The Court of Appeal held the appeal should be heard despite mootness because the issue was recurring, evasive of review, and remained adversarial.

A majority held that the mandatory ban infringed s. 2(b) of the Charter and was justified under s. 1 only where the charges may be tried by a jury; the provision was therefore read down to that extent.

The interpretation ruling applying the ban to all jointly charged accused was upheld, and no costs were awarded.

A journalist made a freedom of information request for anonymized data from police databases to investigate racial profiling.

The police refused, arguing that extracting the data required creating a new algorithm, which meant the requested information was not a 'record' under s. 2(1)(b) of the Municipal Freedom of Information and Protection of Privacy Act.

The adjudicator ordered the police to respond to the request, but the Divisional Court quashed the order.

On appeal, the Court of Appeal restored the adjudicator's order, holding that where requested information can be produced from an institution's existing computer software by means of technical expertise normally used by it, it constitutes a record under the Act.