Joseph Figliomeni

During a civil jury trial for defamation arising from a televised investigative documentary, the media defendants sought a ruling that the plaintiff’s claim for invasion of privacy should not be put to the jury.

The defendants argued that the Personal Information Protection and Electronic Documents Act constituted a complete legislative scheme precluding a common law privacy claim and that the tort of intrusion upon seclusion did not apply to journalistic publication.

The court held that PIPEDA does not oust the development of common law privacy claims and that media defendants are not categorically immune from liability for intrusion upon seclusion.

However, the scope of such claims is limited where journalistic activity engages freedom of expression and established defamation defences.

The court concluded that a properly instructed jury could potentially find an unlawful intrusion and therefore allowed the privacy claim to proceed to the jury with limiting instructions.

The plaintiff brought a motion shortly before trial seeking a determination under Rule 21.01(1)(a) of the Rules of Civil Procedure that a televised documentary was prima facie defamatory, along with directions regarding the order of evidence and a proposed bifurcation of liability and damages.

The court held that although questions about defamatory meaning can sometimes be determined before trial, such motions must be brought promptly under Rule 21.02.

Because the action had been underway for nine years and the motion was brought only weeks before trial, the request for a Rule 21 determination was refused.

The court also declined to modify the usual order of presentation of evidence in a jury trial or to bifurcate liability and damages absent party consent.

The plaintiff was granted leave to file a DVD of the documentary as part of the record.

In a defamation trial arising from a televised investigative report, the plaintiff moved to prevent the defendants from relying on the defences of fair comment and responsible communication before the jury.

The court considered the governing principles from the Supreme Court of Canada in WIC Radio Ltd. v. Simpson and Grant v. Torstar Corp., as well as the gatekeeping role of the trial judge when determining whether a defence should be left to the jury.

Applying the evidentiary threshold described in Boland v. The Globe and Mail, the court held that the question is whether there is any evidence upon which a jury could find the defence established.

The court found that there was ample evidence supporting both defences and that disputes about credibility and weight were matters for the jury.

Accordingly, the plaintiff’s request to remove those defences from the jury’s consideration was dismissed.

During a civil jury trial, the defendants sought to read portions of the plaintiff’s examination for discovery into evidence pursuant to Rule 31.11(1) of the Rules of Civil Procedure.

The plaintiff objected, arguing that the rule in Browne v. Dunn required the defendants to first put the evidence to the plaintiff during cross‑examination at trial.

The court held that Rule 31.11 permits a party to read discovery evidence into the record as admissions provided it is not used for impeachment purposes.

Balancing fairness considerations and the trial context, including the presence of a jury, the court allowed the defendants to read in the proposed excerpts.

The court also indicated that the plaintiff could seek leave to provide reply evidence if the read‑ins raised issues that required a response.

During a defamation trial arising from a documentary alleging scientific fraud, the defendants sought to introduce written interrogatories from a separate civil proceeding in Newfoundland and Labrador involving the plaintiff and a former research nurse.

The plaintiff objected, arguing that admission would violate the implied undertaking rule governing discovery materials from other litigation.

The court held that the defendants were not parties bound by the undertaking in the Newfoundland action and that, in any event, the common law general inclusionary rule favours admission of relevant evidence even if improperly obtained.

The interrogatories were found potentially relevant to credibility and to the defendants’ defences of fair comment and responsible journalism.

The court therefore admitted the interrogatories into evidence.

During a defamation trial, the plaintiff brought a motion to read into the record an affidavit sworn by a deceased witness.

The defendants opposed the motion, arguing the affidavit was inadmissible hearsay.

The court applied the principled exception to the hearsay rule, finding that the affidavit met the requirement of threshold reliability.

The motion was granted, and the affidavit was admitted with a mid-trial instruction to the jury regarding its weight.

The moving defendants sought to strike a jury notice in a defamation and invasion of privacy action arising from a broadcast alleging scientific fraud and financial deception.

The court reviewed the governing principles respecting the substantive right to a civil jury trial, including complexity, expert evidence, trial length, legal difficulty, and the availability of a wait-and-see approach.

Although the action involved voluminous documents, anticipated expert scientific evidence, and complex defamation issues, the court held that cogent reasons had not yet been shown to displace the jury.

The preferable course was to permit the trial to begin and reconsider discharge of the jury only if the anticipated complexities materialized to a degree warranting intervention.

The proposed intervenors brought a motion to intervene as added parties in an application concerning the interpretation of an indemnity agreement.

The proposed intervenors were defendants in a related main action regarding environmental contamination, but were not parties to the indemnity agreement.

The court dismissed the motion, finding that the proposed intervenors had no direct interest in the subject matter of the application, would not be adversely affected by its outcome, and shared no common questions of law or fact with the parties.

The court also noted that intervention would likely complicate and delay the proceedings without providing a useful contribution.

A commercial tenant brought an action alleging overpayment of additional rent and damages after disputes with its landlord concerning taxes, maintenance, and insurance charges under a net lease.

The landlord counterclaimed for unpaid rent and interest, relying in part on recalculated square footage measurements conducted years into the lease.

The court held that the landlord could not retroactively recalculate rent based on new measurements taken nine years into a ten‑year lease, and that the contractual square footage originally used by the parties governed.

The tenant failed to prove any improper TMI charges, while the landlord established entitlement to unpaid additional rent based on the original measurements.

Judgment was granted on the counterclaim for $118,761.68 plus interest accrued on funds paid into court.

The defendants brought a Rule 21.01 motion seeking an order barring the plaintiff from advancing personal injury damages arising from the death of her dog, arguing that psychiatric injury to the owner was not reasonably foreseeable and was too remote in law.

The plaintiff alleged negligent dispensing of medication caused the dog’s death and resulted in severe emotional trauma, nervous shock, and economic loss.

The court held it was not plain and obvious that the damages were unrecoverable and that issues of foreseeability, duty of care, and psychiatric injury required determination on a full evidentiary record.

The motion to strike the personal injury claims was dismissed.

However, the court granted the defendants’ alternative request for further examination for discovery and related production concerning newly disclosed economic loss reports.