Charles Campbell

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.

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 City of Toronto and Kingsway Residents Against Poor Planning brought motions for leave to appeal an Ontario Municipal Board (OMB) decision approving a zoning by-law amendment for a seven/eight-storey development.

The applicants argued the Board erred in law by applying the repealed Etobicoke Official Plan rather than the City's in-force Official Plan, relying on the 'Clergy Principle'.

The Divisional Court dismissed the motions, finding the Board committed no error of law and properly exercised its discretion in weighing the evidence and applying the Clergy Principle.

The respondent, a judgment creditor of a deceased's estate and his company, brought an action claiming relief under the oppression remedy provisions of the Business Corporations Act.

The trial judge found that the transfer of the company's assets to other companies controlled by the deceased's widow, and the assumption of a mortgage, constituted oppression and ordered the appellants to pay the judgment debt.

On appeal, the Court of Appeal found that the trial judge misapprehended the evidence regarding the mortgage, which was a legitimate charge against the company's assets.

The Court also held that the respondent, as a contingent creditor, did not have a reasonable expectation that the company would be managed to ensure his debt was paid in priority to others, including tax authorities.

The appeal was allowed and the action dismissed.

The appellants, the chief and band council of the Wasauksing First Nation, appealed a decision dismissing their application to rectify the corporate records of Wasausink Lands Inc. (WLI) to reflect that all band members were members of WLI and the band council were its directors.

The Court of Appeal dismissed the appeal, finding no error in the trial judge's conclusion that the factual basis for rectification was not established and that s. 309(1) of the Corporations Act is not intended for fundamental corporate restructuring.

The Court also declined to impose a constructive trust as it was raised for the first time on appeal, and rejected the claim for a constitutional exemption based on aboriginal rights.